INTERNATIONAL COURT OF JUSTICE
MARITIME DELIMITATION
IN THE AREA BETWEEN
GREENLAND AND JAN MAYEN
(DENMARKINORWAY)
REJOINDER
SUBMITTEDBY
THE GOVERNMENT OF
THE KINGDOM OF
NORWAY
27Septem1991 SUMMARYTABLEOF CONTENTS
PART1:THE FACTS ......................................... 5
Chapter 1:General ....................................... 7
Chapter II: History of the Dispute .......................1...
Chapter III: Geography of the Region ..................17....
Chapter IV: Activities in the Region ....................23
PARTII: THE LAW ............................................49................
Introduction ..............................................51.
A: Treaîy Obligationsofthe Parties InterSe ................5.
Chapter 1:The 1965Agreement between Norway
and Denmark ....................................................
Chapter II: The 1958Convention on the
Continental Shelf ..............................................
9: The Conductof the Parties .Recognitionand
Acquiescence ........................................................
Introduction ...............................................7.........
Chapter III: The Consistent Conduct of Denmark ..... 78
Chapter IV: Conclusions on the Conduct of the
Parties ........................................................
C: General InternationaL l aw ...............................105.......
Chapter V: The General Character of the Danish
Reply .................................................1..5...
Chapter VI: Th. I.equitable Character of the
Danish Crtteria .......................................113.............
Chapter VII: The Significanc....................................
Maritime Delimitation ... 121
ChSimilar Geographical Situationser St........................0
Chapter IX: The Substantial Interest of Norway
in the Jan Mayen Maritime Region .................1..8..
Chapter X: Security Considerations and the
Coastal State's Protective Interests ..................1...
Chapter XI: Certain lrrelevant Factors Invoked
by Denmark ..........................................163.......
Chapter XII: The Elements of an Equitable
Solution ..............................................1............PARTIII: CONCLUSION ...................................1......
Chapter 1:The Irrelevance of References to Bear
Island .................................................1...........
Chapter IIII:rThe Nature of the Judicial Function..........1....
in the Present Proceedings ...........................1.....
Submssions .............................................1..........
ANNEXES ....................................................1..5...
....
List of Annexes .........................................197
List of Tables ...........................................2..........
List of Maps ............................................25.......
Maps TABLEOF CONTENTS
INTRODUCTION ...........................................................
PART 1:THE FACTS .........................................5..................
CHAPTER 1:GENERAL ..............................7............
1. Human Settlement and Activities in the Region . 7
2 . The Status of Greenland in the Proceedings .......8
3 . The Jan Mayen Baselines .................................
4 . The Southern Limit of the Disputed Area ........10
CHAPTER II: HISTORY OF THE DISPUTE ........11
1. Introduction ......................................1............
2 . The So-called Incident ............................12...........
3 . Discussion of an Arbitral Procedure ................... 14
CHAPTER III: GEOGRAPHY OF THE REGION ..17
1. General Description of the Region ...............17....
2 . Greenland's Maritime Zone ......................20.......
3. Geology and Geomorphology in the Area
between Jan Mayen and Greenland ..............21....
23
CHAPTER IV: ACTIVITIES IN THE REGION ......
21. The Greenland Economy...............................26.........
3. Fisheries in the Jan Mayen-Greenland Region ...27
.......................................
(a) General Comments 27
(b) and Non-Greenland FishingGreen......................
(c) Catches in the East Greenland Area .............
(d) Greenland Sealing and Whaling ..............3...
(e) The EC Interest in Greenland Quotas ..........
(f) The Disposa1of Greenland's Capelin
Allotment .........................................9..........3
Considerations for Future Management
4. Policies ...........................................40....................
(a) The Interrelationship between Marine
Resources in the East Greenland, Iceland
and Jan Mayen Area .........................40........
(b) Multi-species Management ...................41.......
(c) Delimitation and Management ...............42.....
5. Greenland's Interest in Capelin ..................43.......
6. The Norwegian Fishing, Sealing and Whaling
Interest ................................................
(a) Norwegian Fishing in the Waters around
Greenland ....................................4.3...... (b) Nonvegian Fishing ...........................................
(c) Sealing and Whaling in the Jan Mayen-East 44
Greenland Area ..............................45.......
7. Activities in the Disputed Area ...................47...
8. Marine Research .................................48.
PARTII: THE LAW ..........................................4.........
INTRODUCTION .....................................51................
(a) The Treaty Obligations of the Parties
Inter Se .......................................5.........
(b) The Effect of the Conduct of the Parties ......2
(c) General International Law ...................53......
A: Treaty Obligations of the Parties InterSe ....................
CHAPTER 1:THE 1965AGREEMENT
BETWEEN NORWAY AND DENMARK ............55..
1. General ............................................55..................
2. Delimitation in Relation to Demarcation ........... 56
3. The 1979Agreement on Delimitation between
Nonuay and Denmark in the Faroe Islands
Region .....................................................
4. Diplomatic Contacts and Legal Argument .......62
CHAPTER II: THE 1958CONVENTION
ON1.HEGeneralENT......................................................
2. The Relationship between the 1965Agreement
and the 1958Convention ...............................
3. If the 1958Convention were Exclusively
Applicable ..........................................7.....
(a) Denmark's Invocation of "Special
Circumstances" in the Reply .....................
(b) The Danish Interpretation of "Special
Circumstances" in the North Sea Cases .......69
(c) The Operation of the 1958Convention .......72
4. Summary of Nonvay's Views on the 1958
Convention .................................................
B: The Conduct of the Parties .Recognition and
Acquiesence .............................................7....
INTRODUCTION .....................................7......... CHAPTER III:THE CONSISTENT CONDUCT
OF DENMARK .......................................78...
1. The Danish Royal Decree of 7 June 1963
concerning the Continental Shelf ..................8...
2. The Danish Act of 9 June 1971on the
Continental Shelf ..................................3......
3. The Danish Act of 17December 1976on the
Fishing Territory of the Kingdom of Denmark . 84
(a) Introduction ..................................84.........
(b) LegislativeHistory ............................85..........
(c) Interpretation of the Act ......................6.....
(d) The Prime Minister's Authority under the
Act .....................................................
4. The Implementation Order of 14 May 1980 ......88
5. Municipal Legislation and International Law ... 90
6. The Position of the Parties during the
Negotiations at the Third United Nations
Conference on the Law of the Sea ...............9...
7. Contacts between Foreign Ministers on Danish
Maritime Claims ..................................94
CHAPTER IV: CONCLUSIONS ON THE
CONDUCT OF THE PARTIES ................................97
1. Recognition and Adoption ........................8....
2. Danish Extension beyond the Median Line is
Not Opposable to Nonvay ..............................
3. The Median Line Boundary is Opposable to
Denmark ........................................1.2.......
4. The Principle of Estoppel .........................02...
C: General International Law .............................0......
CHAPTER V:THE GENERAL CHARACTER
OF THE DANISH REPLY ...........................1.5.....
1. Th. O.ter Limit of the 200-mileZone
Principle ...........................................5.........
2. The Danish Conception of Entitlement ..........06
3. The Role of Geography in Delimitation ..........10
CHAPTER VI:THE INEQUITABLE
CHARACTER OF THE DANISH CRITERIA ......113
1. The Alleged Inconsequence of Jan Mayen as
Land Territory ...................................1.3.....
2. The Erroneous Characterization of the Legal
and Geographical Framework ..................115
3. Further Departures from Legal Principle .........17
4 . Conclusion ........................................20......CHAPTER VII: THE SIGNIFICANCE OF
IS1.NDThe Danish PositionITA.............................21.
2. Preparatory Work of the First United Nations
Conference on the Law of the Sea ...............2.1
3. Preparatory Work of the Third United
Nations Conference on the Law of the Sea .....128
4. Doctrine .........................................3........
5. The Decisions of International Tribunals .......135
6. Considerations of Principle ......................3....
7. The Decision of the Court of Arbitration in
the Anglo-FrenchCase ..........................137.
CHAPTER VIII: THE PRACTICE OF OTHER
STATESIN SIMILAR GEOGRAPHICAL
SITUATIONS ........................................14..........
1. The Attitude of Denmark to State Practice .....140
2. Which State Practice is Relevant? ................40..
3. State Practice Relied on in the Counter-
Memorial ........................................4........
4. The Danish Approach ..........................14.8....
5. The Correct Procedure of Delimitation .........149
(a) Islands Located Near the Primary
Boundary ...................................15........
(b) Islands Located in Such a Way as to
Cause Distortion of the Primary Boundary .150
(c) Islands of State C Producing Local
Frontages within a Delimitation Area
of States A and Bos............................5......
(d) Islands Situated Near to a Coast and
being under the Same Sovereignty ...........51.
6. Conclusion: The Role of Jan Mayen ............52.
CHAPTER IX: THE SUBSTANTIAL INTEREST
OF NORWAY IN THE JAN MAYEN MARITIME
REGION ............................................1............
1. The Purpose ..............................................
2. The Relevance of the Norwegian Interest ........58
CHAPTER X: SECURITY CONSIDERATIONS
AND THE COASTAL STATES PROTECTIVE
INTERESTS ..........................................6.........
CHAPTER XI: CERTAIN IRRELEVANT
FACTORS INVOKED BY DENMARK ..............63.
1. The Purpose ....................................16..........
2. Area ............................................16........... 3. Population .................. ....................1.63....
4. Constitutional Status ............................1..6...
5. Cultural Heritage ................................167
6. The Ice Condition along Greenland's Coast ....1.67
CHAPTER XII: THE ELEMENTS OF AN
EQUITABLE SOLUTION ............................169
1. The Purpose ......................................1.........
2. The Legal and Geographical Framework .......169
3. The Primary Boundary and the Principle of
Equal Division ...................................170....
4. There are No Causes of Distortion Requiring
Modification of the Median Line Boundary ....174
(a) Incidental Special Features within a
Geographical Situation of Quasi-equality .... 174
(b) The General Geographical Context .............. 175
(c) Small Islands Close to the Median Line ......176
5. Confirmation of the Median Line by Other
Relevant Factors .................................1.......
6. Confirmation of the Median Line by Evidence
of the Normal Standards of Equity in
Comparable Cases ...............................178............
7. The Absence of Disproportionality ..............178...
8. Criteria Suited for Use in a Multi-purpose
Delimitation ......................................179........
9. The Absence of Prejudice to the Claims of
Adjacent States in the Same Region ............180...
11. Conclusioned ................e.........................3.
PART III: CONCLUSION ..................................1.85......
CHAPTER 1:THE IRRELEVANCE OF
REFERENCES TO BEAR ISLAND .................1..7
CHAPTER II: PRINCIPAL CONCLUSIONS ..........190
FUNCTION IN THE PRESENT PROCEEDINGSCIAL .191
SUBMISSIONS ........................................193.....
ANNEXES ....................................................1.....
.....LIST OF ANNEXES ................................1..7......
Annex 83: Crown Prince Regent's Decree of 30 June
1955concerning the Basepoints for
Jan Mayen ................................1..9.....
Annex 84: Memorandum from the Embassy of
Denmark in Oslo to the Norwegian
Ministry of Foreign Affairs handed over
10July 1963concerning the Danish Royal
Decree No. 259 of 7 June 1963on the
Continental Shelf .........................201
Annex 85: Danish Billconcerning the Continental
Shelf submitted on 13January 1971 .......203
Annex 86: Letter of 2 December 1974from the
Norwegian Minister of lndustry to the
United States National Science Foun-
dation concerning Drilling Operations
on the V~ringPlateau ......................1....
Annex 87: Danish Billconcerning the Fishing
Territory of theKingdom of Denmark
submitted on 9 November 1976 ............16..
Annex 88: Excerpts of Records of Proceedings of
the Folketing 1976-77,relating to the Bill
concerning the Fishing Territory of the
Kingdom of Denmark .....................2...
Annex 89: Message of 27 August 1981from the
Norwegian Ministry of Defence to the
Coast Guard Vessel K/V Farmconcerning
Inspections in the Disputed Area ..........37.
Annex 90: Press Release of 30 August 1981from
the Danish Ministry of Foreign Affairs ....238
Annex 91: Message of 30 August 1981from the
Naval Command North Norway to the
Coast Guard VesselK/V Farmconcerning
Inspections in the Disputed Area .........239
Annex 92: ExecutiveOrder No. 437 of 31 August
1981on Amendment of Executive Order
No. 176of 14May 1980on the Fishing
Territory in the Waters surrounding
Greenland .................................4.......Annex 93: TelexMessagedated 21 September 1981
from the Faroe Islands Lanàsstyrito the
Norwegian Directorate of Fisherieson the
Faroese Capelin Fishery in the Fishery
Zone between Jan Mayen and Greenland
in 1981 ....................................4........
Annex 94: Minutes of Meeting in Copenhagen
21 June 1988 .............................2........
LIST OF TABLES ...................................5........
LIST OF MAPS ......................................5.........
MAPS INTRODUCTION
1. This Rejoinder is being filed pursuant to the Order of
the President of the Court of 21 June 1990, fixing 1October 1991
as the time-limit for the filing of the Rejoinder ofthe Kingdom of
Norway.
2. This Rejoinder will primarily address itself to a re-
sponse to assertions made in the Danish Reply, submitted on 1
February 1991. It will seek to bring out and comment upon the
issuesthat stilldivide the Parties. It isto be regretted that, as noted
in the Danish Reply (p. 3, para. l), there is not much common
ground between the Parties. The Nonvegian Government would
have hoped that, after the exchange of the initial Pleadings, the
Danish position in these proceedings would have come closer to
the position which Denmark held at least since 1963,and which
coincideswith Norway's viewon the lawof maritime delimitation.
Generally, the Nonvegian Govemment refers to the presentations
of its Counter-Memorial, and maintains the positions set out
therein.
3. Denmark has chosen to file a unilateral application to
the Court. In its amended submissions, it has unilaterally re-
quested the Court
a) to adjudge and declare that Greenland (not Denmark) is
entitled to a full 200-mile fishery zone;
b) to adjudge and declare that Greenland (not Denmark) is
entitled to a full 200-milecontinental shelf area vis-à-visthe
island of Jan Mayen; and
"consequently", to draw a single line of delimitation and
c) continental shelf area of Greenland (not Denmark) in the
waters between Greenland and Jan Mayen at a distance of
200 nautical miles measured from Greenland's baseline,
(which is now further specified).
4. With regard to the extent of its continental shelfrights,
Norway relies on several distinct legal bases, al1 leading to the
conclusion that the median line is the limit of Denmark's entitle-
ment and therefore constitutes the boundary: the generally
worded bilateral Agreement of 8 December 1965,the fact of both
Parties being party to the Continental Shelf Convention of 1958,
the consistent conduct of the Parties, as well as general interna-
tional law. The Danish side requests Norway (Reply, p. 161,para.441) to state which rule - in the singular - applies. The answer is
that al1these legalbases, separately as wellas conjointly, refute the
Danish claim.
5. As for the extent of the fisheryzones, Norway relies on
the consistent conduct of the Parties, as well as general interna-
tional law, which hoth point to the median line as delimiting the
Parties' entitlement to fishery zones.
6. The Danish claim that the Court should, "conse-
quently", draw a single line of delimitation calls for comment.
When Denmark requests the Court to draw a "single line of
delimitation", the request must be understood as being restricted
to the continental shelf and the fishery zones. The request cannot
be held to relate to a "single maritime boundary" in the sense of
a delimitation for al1legal purposes. Likewise, the request cannot
be held to disregard existingtreaty relations in respect of some but
not al1 legal relationships, or disregard the fact that under the
general international law, the factors taken into regard to deter-
mine an equitable solution may lead to differing delimitations for
instance in respect of the continental shelf and the water column
resources.
7. Further, it is unclear whether Denmark requests the
Court to effect a specificdelimitation rather than determining the
principles to be applied in performing such specific delimitation.
This Rejoinder will revert to these questions in Chapter III of
Part III (pp. 191-192, paras. 648-658).
8. Denmark now concedes that the Court should not
consider any area which could involve the interests of Iceland.
Norway has no objection to the redefinition of the disputed area,
as described at pages 15-16,paragraphs 29-30 of the Reply, in so
far as the interest of Iceland are concerned.
9. Notwithstanding thecommon position of the Parties in
respect of Iceland's interests, Denmark continues to raise issues
which appear irrelevant to the dispute now before the Court,
including details of Norway's consideration of Kolbeinsey as a
basepoint. These issues will he dealt with below (p. 10, paras.
24-26).
10. Nonvay must formally state that there is no renuncia-
tion on its part, as suggested in paragraph 29 of the Reply, of any
claims to areas to the east of the median line hetween Jan Mayen
and Greenland and south of 70'12'04"N. In the event of anychange in Iceland's determination of relevant basepoints, Nor-
way'sarea of maritime jurisdiction would be adjusted correspond-
ingly.
11. The Danish arguments with reference to Bear Island
are not relevant to the present proceedings, for reasons which are
set out in Chapter 1 of Part III of this Rejoinder (pp. 187-189,
paras. 633-641). PART1
THE FACTS CHAPTER1
GENERAL
12. The Norwegian Government found it natural to give a
general account in the Counter-Memorial of the history and
general activities in the area of Jan Mayen and the adjoining
region. This survey included Map 1,depicting human settlement in
a broad Northeast Atlantic context, and traditional Norwegian
hunting and fishing grounds. The Danish Reply contains a
number of comments on Map 1 attached to the Norwegian
Counter-Memorial, which cal1for a response.
13. The purpose of this map was primarily to illustrate that
the pattern of population settlement in Norway has traditionally
and persistently followed the coastline of thecountry. The sea has
been a source of livelihood and a communication link. The use of
a symbol for the relationship of population to area, broken down
into relatively small units, is a common device in economic
cartography. The criterion "Land use involving 10people or more
within a radius of 2 kilometres" has been taken from a similar
representation in the Norwegian National Atlas, and isconsidered
adequate when illustrating the distribution of the discontinuous
settlements thatprevail in the Nordic and Arctic regions.
14. It is regretted that some locations in Greenland were
omitted in Map 1.The addition to the map of four settlements in
Northwest Greenland and two settlements in Southeast Green-
land would not, however, alter the main picture. East Greenland
is sparsely populated, particularly that part of it that faces Jan
Mayen (see Chapter III, p. 17 ff.).
15. Denmark also contends that the seasonal settlements
of the semi-nomadic part of the Greenland population should
qualify for their own symbol on the map. The deliberate Danish
policy of regrouping the aboriginal population in permanent
settlements hasdrastically inhibited the traditional Inuit life-style
based on a pattern of seasonal migration. The great majority of
the population that can be described as "semi-nomadic" have
their permanent dwellings in the settlements indicated on Map 1.
Providing a correct representation of the remaining semi-nomadic
migrations would involve severe definition problems, as well as
dificulties in presentation. 16. The Reply contends that the use of symbols to denote
Norwegian hunting grounds is "similarly incorrect" (p. 34, para.
94). It is correctly observed that the presentation is not linked to
any specificyear or period. The purpose was to provide a pictorial
illustration of the general areas of Norwegian activity in the
harvesting of mantime resource in the general area. The point to
be illustrated is that Norwegian fishermen, whalers, sealers and
hunters have been active in this area at various times, at various
locations, over a period ofmore than a century. The population of
Nonvay has used the whole of the Northeast Atlantic for its
livelihood. Norway is not a newcomer in the region, and Norway
isnota "distant-water fishingnation" sending out its hi-tech fleets
in the last fewdecades. That,and nothing more, was the objective
of the illustrative symbols in Map 1.
17. The specific Danish complaints in respect of the use of
symbols to indicate Norwegian activities address two points: The
first is to the effect that the Greenland Home Rule Authority has
not authonzed Nonvegian whaling within the Greenland fishery
zone since 1985.The second is that sealing has not been pennitted
since 1988.That is, of course, perfectly correct, but the purpose of
the illustration would not have been met if it had been limited to
depicting activities solely since 1988. The Norwegian Govern-
ment, Norwegian fishermen, and, indeed, the Norwegian general
public sympathize fully with the Home Rule Authority in its
endeavours to maintain a traditional, honourable and environ-
mentally sound and defensible harvest of whales and seals.
Nevertheless, it would be entirely misleading if an illustration of
traditional Norwegian mantime activities were to omit any refer-
ence to whaling and sealing in waters off Greenland.
18. The Danish Reply seeks to convey the impression,
directly and indirectly, that the present proceedings relate to a
dispute between Norway and Greenland,and that Greenland is a
separate entity capable of exercising rights and answering to
obligations under international law. This is most clearly stated in
the Danish submissions (Reply, p. 177, para. 481), where the
Court is requested to "...adjudge and declare that Greenlandis
enrilledto a full 200-milefishery zone and continental shelf area
..."and "to draw a single line of delimitation of thefishery zoneand continental shev area of Greenland ..."(emphasis supplied).
The suggestive language is multiplied throughout the Reply.'
19. The fact that Greenland has been givensome degree of
autonomy does not alter the formal and legal aspects of thestatus
of the Kingdom of Denmark as a party to the present proceedings.
Greenland remains an integral part of the Kingdom of Denmark.
Boundariesfor thecontinental shelf and of the fisheryzones in the
area between Jan Mayen and Greenland constitute boundaries
between the Kingdom of Norway and the Kingdom of Denmark.
Denmark has instituted the present proceedings against Norway
in its own name, and not in the name of the Home Rule Authority;
the two Kingdoms are the Parties in the case.
20. The present proceedings concern matters relating to
distinctive regions of each of the two Kingdoms. That fact does
not make these proceedings different from any other dispute
between two independent, industrialized States sharing the same
historical and cultural traditions and having comparable levelsof
social and economic development, means and resources.
21. It has been noted that the Government of Denmark
has arranged for the relevant part of the East Greenland baseline
to be revised, and that new coordinates have been supplied
(Danish Memorial, p. 9, n. 1,and Reply, p. 16,para. 31 and n. 3,
and Annex 58).
22. The Norwegian Government has likewiseconducted a
hydrographic and geodetic survey of the basepoints ofJan Mayen.
The baselines for the island were established bv the Crown Prince
Regent's Decree of 30 June 1955 (Annex 83). The coordinates
given refer to European Datum 1950(ED 50).
23. The new survey comprised an inspection of the base-
points, and their positioning by means of satellite instrumenta-
tion. On that basis, coordinates for the 17basepoints defined in
the Decree of 1955 have been recalculated in World Geodetic
')At page6 (para. 14),the phraseologyis"..Greenlandis entitl..."At page 12
@ara.33). the referencei"..maritimeareasthat Greenlandcloi..Y .t page32
to 200 mil..."At page 45 (para.11itis - patentlyincarrectly- stateO..intryzone
1977and 1980..Greenlondw~osmemberof the EuropeanCommunities.."(Emphaîis
suppliedinIIcases). number ofsimilarformulationsoccur passimin the Reply.System 1984(WGS84). A comparativetable showingCO-ordinates
in both systems is found at Annex 83. The basepoints established
in 1955have not been changed, but the location of each point can
now be stated in the same system as that of the East Greenland
baselines.
24. The Danish Reply (p. 15, para. 27) has raised two
specific questions regarding the basis for describing the disputed
area so as to avoid any determination by the Court which might
affect an unresolved dispute between Denmark and Iceland.
Although these questions are not relevant to the present proceed-
ings, responses are provided below:
25. There is no express agreement or specific understand-
ing between Norway and Iceland providing for the recognition by
Norway of Kolbeinsey as an Icelandic basepoint. Nor has there
been any formal unilateral determination by Nonvay on the issue.
The relevant Agreements between Norway and Iceland imply
that, in the absence of any further specification, and of any
particular statement of reservation on the part of Nonvay, the
delimitations as between the economic zones and between the
appurtenant parts of the continental shelf of the Parties must be
determined on the basis of such basepoints and baselines as may
from time to time be applied by Iceland in conformity with
international law.
26. The sketch map in Annex 72 to the Counter-Memorial
was produced specifically for the Counter-Memorial. It has not
been published in any other context. The sketch map attached to
Proposition No. 61 to the Storting for 1981 (Annex 57 to the
Reply) was,as appears clearly from theaccompanying text, drawn
up by Dr. Finn Sollie(to accompany an article in the publication
In~ernasjonalPolirikk). As stated in the heading, the sketch map
served only to illustrate the "cooperation area as defined in the
Agreement". Indeed, the same sketch map was used in the
Icelandic bill to the Allting on the ratification of the 1981
Agreement, presumably without any prejudice as to the Icelandic
position on Kolbeinsey as a basepoint. The origins of the sketch
map published by the United Nations Secretariat (Annex 56to the
Reply) are not known. CHAPTERII
HISTORYOF THE DISPUTE
27. It is worth noting that the Parties hold different views
of the history of the dispute. The Danish account of the period of
negotiations and contacts conveys the impression of a constant
and frustrating failure toroduce progress. That is not surprising,
in relation to Danish ambitions for a conclusion exclusively on
Denmark's own terms. On the otherhand, Nonvay's impression is
that Denmark was not inclined to conduct meaningful negotia-
tions. In the outcome, Denmark maintained its claim to a full
200-milecontinental shelf and fisherieszone.
28. A period of negotiations and contacts commenced in
1980. By 1987,this process had not brought about any substantial
agreement. Discussions between the Parties then concentrated on
alternatives for dispute resolution which might break the impasse
caused by the inflexible Danish attitudes.
29. It isalso noteworthy thatDenmark instituted proceed-
ings before the Court by unilateral application without advising
Nonvay, in regard to a matter where the negotiation of a Special
Agreement has ovenvhelmingly been the approach chosen by
States which maintain normal friendly relations.
30. The Danish Memorial provided, and the Reply main-
tains, an inflated and overly dramatized account of an early
discussion between the Parties regarding their attitudes to surveil-
lance activities with regard to the disputed area. Likewise, the
Danish presentation of the discussions concerning the possibility
of settling the disputethrough an arbitral procedure appears to be
far removed from the Norwegian perception.
3 1. The Reply offersan explanation of the background for
the decision of the Government of Denmark to proceed to the
opening of the present proceedings by means of a unilateral
application. The procedural consequences following from the
chosen means of procedure are dealt with elsewhere in this
Rejoinder (see Chapter III of Part III, pp. 191-192).
32. The negativeDanish perception of the generalprogress
of the negotiations and contacts between the Parties, and of thehandling of practical dificulties in the early stages, make it
necessary for Norway to clanfy certain issuesof fact mentioned in
the Danish Reply.
The Danish Reply (pp. 16-17,paras. 33-35)continues
33.
to maintain that the events of the latter part of August 1981
constituted an "incident" of a "serious character". Excerpts from
a contemporary Danish account, on a day-by-day basis, of the
Danish perceptions of that sequence of events are provided in
Annex 59 to the Reply. It is suggested that this account corrob-
orates the Norwegian evaluation of those events.
34. In the Memorial (p. 17,para. 54), Denmark describes
the Norwegian Coast Guard missions with a certain dramatic
flavour:
"At the end of August ...a Norwegian coastguard ship was
sailing towards the disputed area with instructions to board
Danish fishing vessels and hand over written warnings
ordering the vessels to stop fishing and leave the Norwegian
fishery zone."
35. The misperception conveyed by the quotation above is
partly corrected by the day-to-day account in Annex 59 to the
Reply, but the Norwegian Government wishes to give a complete
account of the actual situation in the Jan Mayen zone at that time.
36. From 1 July 1981, Norwegian fisheries surveillance
vessels had been present on an almost continuous basis in Jan
Mayen waters, notably to survey the fishing for capelin and blue
whiting by vessels from several nations. The Norwegian Coast
Guard vessel K/V Heimdaland the Coast Guard auxiliary vessel
K/V Mogsterfiordwere assisting the Norwegian purse seine fleet
until the Norwegian capelin quota was completed on 16August.
Their presence in the fishing area was utterly pacific, and was
associated with none of the characteristics of an "international
incident" in the normal usage of that term. The despatch of the
Coast Guard vesselK/V Farmon 25 August 1981to relieve these
two vesselsdid not imply any change in the pattern of operations
of the Norwegian Coast Guard, and represented in fact a reduc-
tion in the number of Norwegian surveillance vessels present in
the region. 37. After consultations with the Danish side on 26 August
1981(referred to in the Reply, Annex 59),the Coast Guard vessel
K/V Farm received instructions, on 27 August 1981, to show
restraint uponarriva1 in the Jan Mayen fishery zone and not to
follow standard procedures in relation to illegal fishing. With
reference to ongoing negotiations with Denmark, K/V Farm was
instructed, until further noticnot to board or inspect Danish or
Faroese vessels fishing without a license in the Norwegian zone.
Vesselswere only to be instructed by radio to stopthe fishing and
leave the zone (a translation of the signal from the Ministry of
Defence is presented in Annex 89). In the following days, several
Danish and Faroese vessels expressly stated that they were
ignonng these radio instructions from the Nonvegian Coast
Guard. How best to deal with this demonstrative action by
fishermen was discussed with Danish officials on 28 August
(referred to in the Reply,Annex 59).On 30August 1981,after this
bilateral discussion, Norwegian Coast Guard vessels were in-
structed to board Danish and Faroese vessels,and to issue written
instructions to stop fishing and leave thearea. An oral warning
about the consequences of illegal fishing for the allocation of
future permits to fish in Nonvegian waters was to be given. No
means of force were to be used. Confiict with the Danish Coast
Guard was to be avoided (a translation of the orders from Naval
Command Northern Norway is presented in Annex 91).
38. Denmark appears to have accepted this mild form of
action, judging from a Danish press release issued in the evening
of 30 August 1981(a translation is reproduced in Annex 90). It
States:
"The temporary instruction to the Coast Guard vessel
VŒdderen isnot to intervene if theNonvegians board Danish
fishing vessels only to issue written warnings."
39. The Danish account in the Reply (Annex 59)correctly
makes it clear that there was continuous contact between Gov-
ernment officials and between the Foreign Ministers throughout
the period in question. The first personal meeting between the
Foreign Ministers occurred on 1 September 1981,in conjunction
with a regular meeting in Copenhagen of Nordic Foreign Minis-
ters, not as a crisis measure.
40. The situation was never "cntical" in the sense that
there was any risk of serious confrontation. 41. Thispoint is not a question of terminology.The choice
of words in the Danish Memorial (p. 17,paras. 54-57)creates the
impression that the Government of Norway was deliberately
escalating the disputeta a levelwhich involveda disproportionate
use of Coast Guard resources, in a manner which might be taken
to affect or alter the nature of the dispute. As set out in the
Counter-Memorial (p. 75, paras. 267-269),the activities of Nor-
wegiansurveillancevesselsdid not have the purpose or the effect
of producing an escalation of the dispute.
42. This view is corroborated by the contemporary docu-
mentation adduced as Annex 59to the Danish Reply. It is further
corroborated by a statement by the Local Government of the
Faroe Islands, in a communication ta the Norwegian Directorate
of Fisheries on 21 September 1981:
"The Faroe Islands Landsstyri[theexecutivebody]ispleased
to note that no seriousincidents haveas yet taken place,and
hopes that the high-levelcontacts between the two govern-
ments will make it possible to continue to avoid such
incidents."(Annex 91).
Severalof the Danish fishingvesselsoperating in the disputed area
at the time were from the Faroe Islands.
43. The contemporary Danish account shows that there
was no lack of contact between the two Parties, and that their
representatives on the ministerial level as well as on the level of
officiais were able to communicate in a rnanner which waswell
suitedta prevent the occurrenceof any dangeroussituation. There
was no physical conflict on the fishing grounds.
44. Norway therefore has dificulty in seeingthe justifica-
tion for the assertion in the Danish Reply (p. 17, para. 35), that
"[tlhe seriouscharacter of the incidentproved the dangers created
b3.the absence of a clear jurisdictional line in the disputed area
45. The Danish Reply,at page 18(para. 42), characterizes
as "incorrect" the Norwegianaccount of the efforts of the Parties
to provide for the settlement of the delimitation i~sueby arbitra-
tion (pp. 73-74, paras. 262-263 of the Counter-Memorial). At
pages 19-21(paras. 43-51)of the Reply,a Danish account is given,
accompanied by a "Conclusion Résumé" at Annex 62. 46. The Danish account corroborates the Norwegian im-
pression that the Danish ofiïcials would report fully to their
Government, and that there might possibly be contacts with
relevant Parliamentary bodies. As noted in the Danish "Con-
clusion Résumé",the Norwegian side had made it clear that it
expected a further Danish reaction. As further noted, "These Iast
statements were not commented upon by the Danish side". The
Norwegian expectation of further contacts in the matter could
therefore not have been "based on the Danish response", as
phrased in the Reply. That expectation did in fact exist, based on
the setting, thecontext, and the lack of comment from the Danish
side. The Norwegian impression is refiected in the Minutes from
the meeting on 21 June 1988, which appear in Annex 94. The
circumstances give little support to the Danish contention that
"For anyone present at the meeting it was clear that the time for
further negotiations between the Parties on these issues had come
to an end".
47. The Danish Reply asserts (p. 20, para. 49) that the
contents of the Norwegian counter-proposal " ..could only lead
to the conclusion that it would not be possible to come to terms
with Norway on the contents of a special agreement". This is a
conclusion which is not based on the actual progress of the
discussions.
48. The Parties had discussed various alternatives for an
arbitral procedure. It is true that it was common ground that the
Norwegian proposal would entail a procedure consisting of
several steps. It remains Norway's conviction that the procedure
would not have been a complicated one. It would have served to
isolate the purely Iegal questions, and provided a judicial deter-
mination of those legal questions. (The "conclusion résumé"
contained in Annex 62 to the Danish Reply contains a misinter-
pretation of the Norwegian proposal. The object of the Nonve-
gian proposal was precisely to provide binding responses to the
legal questions.) The Norwegian proposa1 aimed at combining a
judicial procedure, giving conclusive decisions on purely legal
issues,with the possibility oftilizing the legaldecisions in further
attempts to settle the delimitation matter through negotiations. It
remains Nonvay's viewthat this would have constituted the most
suitable procedure for settling delimitation disputes in a manner
which corresponds to legal concems as well as practical and
political requirements.
49. Even though the Parties had not achieved agreement
on arrangements for an arbitral procedure, this did not excludethe possibility of agreeingon the terms under which a delimitation
dispute could most usefully and most suitably have been brought
before the International Court of Justice. It may reasonably be
inferred that Denmark, after it had changed its mind on arbitra-
tion, was determined to commence proceedings before the Court
by means of a unilateral application, and consciously avoided
exploring the possibilities of a Special Agreement.
50. The Danish Reply makes it clear that Denmark chose
not to seek a collaborative approach to the present litigation.
Therefore, Denmark can have no cornplaint ifNorway insists that
the present proceedingsmust be dealt with by the Court strictly on
the basis of the formal legal relationship between the Parties.
There is no Special Agreement indicating a specially fashioned
mandate for the Court. There is no explicit and specific elabora-
tion of the judicial function. CHAPTER III
GEOGRAPHYOF THE REGION
51. The physical geography of Northeastern Greenland
and Jan Mayen is similar in many ways. It is thus surprising that
Denmark uses extensive quotations from various sources to
substantiate that Jan Mayen, like most other Arctic areas, is
"desolate" and "isolated".
52. The vegetation of Northeast Greenland is as sparse as
that of Jan Mayen; indeed the interior is covered by a massiveice
cap. In the Greenland Atlas, submitted together with the Reply,
the vegetation of the regions of Greenland facing Jan Mayen is
described as "High-Arctic - no willowscrub or herb slopes - but
heaths, fellfields,snow patches. 'Desert'in the intenor." (p. 42).
53. The main settlement of the Northeast coast of Green-
land - Ittoqqortoormitt/Scoresbysund - is descnbed by the
Greenland Atlas (p. 52) as being "very isolated". Iceconditions
make Ittoqqortoormitt/Scoresbysund inaccessible from the sea
during more than nine months of the year, and scheduled air
transport is viaIceland.
54. Northeastern Greenland is sparsely populated. Only a
fewkilometres north of Ittoqqortoormitt/Scores anyatunn-d,
al park of 972,000square kilometres (including later extensions)
was established in 1974. The national park covers the entire
Northeastern and Northern coast of Greenland and a large
section of the ice cap (seesketch map at p. 19).According to the
Greenland Yearbook2 (p. 94), the national park is inhabited only
by the crew of the three manned meteorological and scientific
stations (Station Nord, Danmarkshavn and Daneborg). These
settlements are of the same character as the station on Jan Mayen.
All visits to the area require a permit from the Greenland Home
Rule Authority.
55. The Ittoqqortoormitt/Scoresbysund area was unpopu-
lated until 19253.The background for the establishment of this
settlement is descnbed along the following linesin a recent article
in the magazine Gronland
2,drbog Gronlo1988,Statsministeriet, Granlandsa, sbenhavn, 1989
3 ReporofrheGreenfondCommissiPan 6,Copenhagen1950,pp. 7, 15. "It was the dispute between Norway and Denmark over the
sovereignty over Northeastem Greenland that was the direct
cause of the establishment of Scoresbysund. In the agree-
ment from 1924 between the two States, Norway promised
to renounce the Scoresbysund area if an Eskimo settlement
was established in the district. This was done in 1925, but
upon a private initiative, since the Danish State was very
cautious about adding more fuel to the conflict. A private
committee headed by Einar Mikkelsen organised in 1924the
construction of a number of dwellings, and the following
year 70 persons moved from Ammassalik, where the hunting
resources were insufficient due to a rapidly growing popu-
lation." (Grenland,No. 6 1989, p. 186).
56. The Ittoqqortoormitt/Scores comsmuunity is
overwhelmingly dependent on outside supplies and public sup-
port. Since the end of the 1960s the local economy has suffered
increasingly as a result of a deteriorating market for seal furs. It
has not been possible to establish commercial fisheries in the area
to compensate for the loss of income. Today catch activities
represent only 5 per cent. of the local income4, and the munici-
pality is the poorest in Greenland. It is the port of registration for
only one sea-going fishing vessel. At the end of the 1970s the
Greenland Council even discussed the possibility of dismantling
the whole community, but recent prospecting for oil has so far
halted such a development. In 1990,however, the oil companies
involved relinquished their concession.
57. The experience of more than 65 years illustrates that
settlement in these areas of the Arctic is highly dependent on
outside support, and may undergo drastic changes in short time
spans, even in times of modem technology. There is no sharp
distinction between those settlements which may be characterized
as "permanent" or "natural", and those which are maintained for
administrative, scientific or other specialized purposes. It is
remarkable that Denmark should wish, in these circumstances, to
place emphasis on population as a factor in maritime delimitation.
In the Danish Reply, at paragraph 81, an attempt is
58.
made to show a connection between alleged "Norwegian expan-
sionist activities in the North Atlantic region" leading to proceed-
ings in the Eastern GreenlandCase(P.C.I.J.,SeriesAlB. No. 51.p.
22), and the issuesof thepresent proceedings. It is pointed out "in
passing" that the Norwegian territorial occupation in East Green-
') Gronland,Nr.6 1989,p.188, Det grenlandskeSelskab,Charlottenlund Northeast Greenland National Park
land in 1931 concerned an area more or less inshore from Jan
Mayen. That has a very natural explanation: this was theegion in
which there had been considerable Nomegian activity, on land in
Greenland and on Jan Mayen, as well as in the maritime area
between the two islands. At the sarne time, this was a part of
Greenland in which neither Danes nor Greenlanders had been
active to any noticeable degree. After the Judgment of the
Permanent Court in the Eastern GreenlandCase in 1933, the
Norwegian activities continued onshore in Greenland under theterms of the 1924 Convention concerning East Greenland
((Counter-Memorial, Annex 39), but now under Danish jurisdic-
tion. As stated in the Norwegian Counter-Memorial at paragraph
87, arrangements for access for Nonvegian hunters to East
Greenland subsisted until 1967,and national treatment for Nor-
wegian fishermen in Danish jurisdictional waters off East Green-
land was carried on for a further decade. There can be nothing
surprising or sinister in the fact that the territory disputed in 1931
is situated opposite Jan Mayen, and that the maritime area at
present in dispute lies in the same region. On the contrary, the
Danish observation underlines that there has been a continuous
Norwegian interest in that particular region, recognized by both
Parties, for a long span of time.
59. The Danish Reply (p. 157, para. 430) points to the
extensive maritime zone of Jan Mayen to the east, and links this
consideration to a statement questioning the reason for "Jan
Mayen extending its broad maritime zone Westof the island at the
expense of the maritime zone off the mainland of Greenland"
(emphasis added).
60. The starement might leave a mistaken impression of
the area of Greeiiland's zone. On the basis of approximate
calculations, the total area of Greenland's zone,outside baselines
and within agreed boundary lines and calculated median lines
(excluding the disputed area in relation to Jan Mayen), amounts
to 2,006,000 square kilometres. Greenland's interna1 waters,
within baselines,cover a surface of approximately 220,000 square
kilometres. The Greenland shelf and zone are eight times as large
as the fishery zone of the Faroe Islands (around 260,000 square
kilometres; there is a claim to a more extensive continental shelf
area to the south). Greenland, with a population which is
comparable in numbers to that of the Faroe Islands, can in no way
be said to be disadvantaged in its zonal endowment, even if parts
of the zone are ice-infested.
61. The disputed area is around 64,500 square kilometres.
That is around 2.9 per cent. of the Greenland zone (excluding the
disputed area). The disputed area constitutes 20.1 percent. of the
Jan Mayen shelf and zone, including the disputed area.
62. The Greenland zone and the Jan Mayen shelf and zone
are shown on Map V, appended to this Rejoinder, with anindication of the disputed area, and an illustration of the relative
importance of the disputed area in relationhe maritime areas
of bath islands.
3.GEOLOG ANYD GEOMORPHO LNOTGEAREA BETWEEN
JAN MAYE NND GREENLAND
63. The Norwegian Counter-Memorial (at pp. 28-31, pa-
ras. 102-109)soughtta describe the geological and geomorpho-
logical circumstances in the region between Jan Mayen and
Greenland. There should have been no reasonable ground for
misunderstanding in this connection.
64. However, in view of the tenor of the comments in the
Reply (p.28,para. 71), it is necessaryta return ta the subject of
the geologicalandgeomorphological characteristics of the region.
65. During the Tertiary era the Norwegian-Greenland Sea
wascreated through the process of seafloor spre-typicalfor
the deep oceanfloor. The mainlands of Norway and Greenland
started splitting apartaboutillionyears aga. BetweenIceland
and Jan Mayen a second spreading axis became active about
million years ago, splitting a micro-continent off the Greenland
continental margin. This micro-continent constitutes the major
part of the Jan Mayen Ridge, a prominent submarinetopographic
ridge extending southwards from Jan Mayen.
66. In the last 15million years active spreading has only
taken place along the Kolbeinsey Ridge, which trends northeast-
erly approximately midway between Jan Mayen and Greenland.
67. The exact extension of the Jan Mayen micro-continent
is notfully known. To the south of the easily definable topo-
graphie ridge there is a set of morphologie ridges with less relief,
indicating a continuation and fragmentation of the
micro-continent. To theWest of the main topographic ridge
geophysical observations indicate the continuation of the
continent out to a distance of approximately 50 nautical miles
Westof the ndge itself.Nor has there been any certain delimitation
of the micro-continenta the north. Most geophysicists assume
that Jan Mayen itself is underlain by volcanics relatednic
crust. The boundary betweencontinental and oceaniccrust on the
Jan Mayen Ridge is thoughta be situated slightlyta the south of
theisland. 68. The depth of the oceanic area between Iceland, Jan
Mayen and Greenland is anomalously shallow for an oceanic
crustal area. Except for an elongated trough immediately Westof
the Jan Mayen Ridge, approximately 110nautical miles long in a
north-south direction and 35nautical miles across at its broadest,
and a few isolated deeps of insignificant extent, the water depth
does not exceed 2,000 metres. The shallowness of the seabed is
ascribed to those geologic processes acting below the crust which
also created the volcanic islands of Jan Mayen and Iceland.
Processes of this nature also account for the rough seabottom
morphology often found around volcanic islands.
69. On this basis, two conclusions may be drawn. The
seabed of most of the region between, on the one side, Jan Mayen
and the Jan Mayen Ridge and, on the other side, Greenland and
the relativelyshallow seabed terrace immediately adjacent to the
Coast, consists of oceanic rock. The standard elements of termi-
nology telating to the geomorphological aspects of the continental
margin arenot easily applicable in everyrespect or in al1locations.
70. A third conclusion may be drawn from a study of the
bathymetry of the region. The recent volcanic activity has created
a generally irregularsea-bottom morphology. The only significant
geomorphological feature in the area is the Kolbeinsey Ridge. It
has the typical morphology of an active spreading ridge, a central
rift and a set of elongated, non-continuous volcanic mountains
elevated from the surrounding areas both to the northwest and to
the southeast (see Map III attached to the Norwegian Counter-
Memorial). CHAPTER IV
ACTIVITIES IN THE REGION
71. A considerable proportion of Part 1 of the Danish
Reply (pp. 28-79, paras. 72-203) is devoted to activities in the
region. After introductory remarks and comments concerning
Map 1 of the Norwegian Counter-Memorial, the bulk of the
presentation relates to the Greenland economy and its fisheries
industry, to the marine living resources off the East Coast of
Greenland, and to marine scientific research in the region.
72. The introductory remarks on this section of the Reply
(p. 29, para. 73)seek to establish an extremely narrow perspective.
While detailed comment on those rernarks more appropriately
belongs in Part IIof the present Rejoinder, the Government of
Nonvay wishes to avoid any misunderstanding by stating its main
views with reference to the Danish remarks at this stage:
73. While thecoastal geography of Jan Mayen and Green-
land should be determinative for the delimitation of the continen-
tal shelfareas appertaining to each of the two States and of their
fisheries zones, it does not follow that there is any particular,
artificially constructed "geographical area" as illustrated inn-
ish Map V. The coastlines on both sides are by themselves
sufficient to establish thecoastal projections of the two States, and
to determine where these overlap. This is where the disputed area
then occurs. No construct of a "geographical area" is required.
74. The Norwegian Governrnent does not recognize that
the present dispute is limited in time to "a certain period" after
1979as "the only period when competing claims have been made
to the maritime area in question". On the contrary, hoth Parties
have since 1963established the bases for "competing claims" in
their respective legislation with regard to the continental shelf. It
has been made patently clear that this legislation covered al1parts
of each Kingdom, thereby including the continental shelf areas
appertaining to hoth islands within the scope of their respective
shelfareas, as defined by parallel statutory instruments. It follows
that at some time after 1963,and before 1979,clairnsto shelfareas
must have overlapped.
75. The Norwegian Government cannot agree that per-
spectives on shelf or zona1 delimitation should be limited by
reference to the current availability or exploitability of anyparticular resource. While it may be true that there appear to be
few immediate prospects for hydrocarbon activities in the shelf
areas between Jan Mayen and Greenland, it was pointed out in
the Norwegian Counter-Memorial (at para. 67) that the presence
of sub-sea rift zones may create an environment where polyme-
tallic sulphides may occur. Future exploitation of such deposits is
under discussion. Moreover, the responsibilities and jurisdiction
of a coastal State with respect to its continental shelf also extend
to matters relating to scientific research. While maintaining a
favourable and supportive attitude towards such research by
foreign nationals and institutions, Norway would not wish to
withdraw from its responsibilities, or abdicate its jurisdiction in
that regard.
76. Finally, Nonvay cannot agree that the issue be treated
as a dispute between Greenland and Norway, with Greenland as
something more than, or distinct from, a geographical region
forming a part of the Kingdom of Denmark. Thus, paragraph 75
(p. 29)reads in part: "..activities are then alleged to be opposable
to neighbouring countries,in the present case to Greenland."
(emphasis supplied) and " ..how could an expansive Norwegian
maritime policy in the North Atlantic region in general be
opposable to Greenland ...".
77. In the Norwegian Counter-Memorial. the chapter de-
voted to regional activities was entitled "Norway's Interest in the
Jan Mayen Region" (Chapter III of Part 1,pp. 33-52).The main
purpose was to illustrate that for nearly one and a half centuries,
Norwegian sealers, whalers, hunters and fishermen have been
utilizing the waters in the Denmark Strait and in the area around
Jan Mayen and off the coast of East Greenland, and harvesting
the resources. It was also pointed out that these Nonvegian
activities extended to waters off the Westcoast of Greenland. In
some measure, the land was also put to use, both with regard to
East Greenland and to Jan Mayen.
78. The Norwegian Counter-Memorial sought to establish
a broad picture, historical as well as current, of Nonvegian
activitiesin the Arctic, in order to bring out clearly that the area
between Greenland and Jan Mayen is a region which has for a
long time been part of the economic basis of several Norwegian
coastal communities. It is a region where, over the last century,
most of the activity has been Norwegian. That activity has
comprised sealing, hunting, whaling and fishing. It is in fact a
region which Norwegians have habitually regarded as a familiar
area of operations for their maritime industry. Jan Mayen isnot afar-flung colonial dependency; it is constitutionally an integral
part of the Kingdom of Norway. The absence of a permanent
population has not meant that the island or the waters around it
have not been utilized. The establishment of Norway's fishing
zone around Jan Mayen in 1980 was not the beginning of
Norwegian maritime activity in the area; it was a further, natural
development of Norway's interests. The exercise of fisheries
jurisdiction in a broad maritime belt was newadministrative tool
for conserving and managing the resources of the region in a
responsible and orderly manner.
79. The comments in the Reply (p. 32, para. 83) on the
proportion of fish products in the total exports of Norway and
Greenland respectively tend to establish a comparison directly
betweenthe Kingdom of Norway on the one hand, and Greenland
as part of theKingdom of Denmark on the other. In this context,
reference is made to the Resolution of the First United Nations
Conference on the Law of the Sea, adopted on 26 April 1958,
concerning "Special Situations Relating to Coastal Fisheries".
80. The identification of Greenland as a territory to be
given special regard in considering fishenes outside fishery zones
of limited extent, is of historicalterest only. After the adoption
of the concept of broad fishing zones, it is more relevant to refer
to Article 71 of the 1982United Nations Convention on the Law
of the Sea. This provision is specifically limited to covering the
position of coastalStates only. However, the net export values of
attributable fish products for the Kingdom of Denmark as a
whole amounted to 3.22 per cent. of total exports in 1986.The
corresponding figure for Norway was 5.69 per cent. (of total
exports including petroleum products). (Source: Yearbook of
Nordic Statistics, 1987,Tables 118and 129).
81. Pages 32-33, paragraphs 84-86 of the Reply describe
the system under which the Home Government of Greenland
disposesof the Greenland allotment of capelin under the tripartite
Agreement of 1989.It appears to be common ground betweenthe
Parties that the Greenland fishing industry is at present not in a
position to catch or process capelin, and that the Home Govern-
ment's benefitsfrom its management of its stock allotment derive
from feespaid by foreign fishermen.It followsfrom the provisions
of the tripartite Agreement that Norway is fully satisfied withthe
method employed by the Home Government.
82. It has not been possibleto developlarge-scalecommer-
cial fishing from Settlements along the east Coast of Greenland.According to the Greenland Atlas, submitted by the Government
of Denmark together with the Reply, "fast iceand drift iceprevent
fishing for most of the year" from Ittoqqortoormitt/Scoresbysund
(p. 52).This seems to be a permanent obstacle to any large-scale
fishing based in Ittoqqortoormitt/Scores InbtheuAnd.mas-
salik area, 500 kilometres further south, the prawn fishery has
been somewhat developed. However, out of a total of 453
registered modern Greenland fishing vessels of more than five
gross register tons, only fivehad their home port in Ammassalik5.
According to an article in the Magazine Gronland6,there were
some prospects of developing cod Ijshing from Ammassalik in the
1960s.A maximum catch of 6,000 tons was reached in 1966,but
the catches then dropped drastically shortly thereafter. In 1986the
total catch reached 12 tons. The instability of the stock in this
fringe area of the cod fishing grounds hampers any major
investment, and only larger vessels can operate safely in these
dificult waters.
83. It remains, in the Norwegian view, an important
element for the understanding of both the social and the economic
geography of the maritime area between Jan Mayen and Green-
land that the distance between Jan Mayen and those home ports
where most of the Norwegian purse seiners are based, is less than
one half of the distance from the disputed area to that part of
Greenland where the sea-going fishing fleetisbased. This is not an
academic geographical observation. Thereare important practical
and financial implications. If Greenland fishing vessels at some
point in the future were to engage in fishing in the disputed area,
it would take them two to three times longer than Norwegian
vesselsto reach the fishing grounds from their bases. It would cost
them two to three times as much in fuel, and two to three times as
much time away from the fishing grounds if they should decide to
land catches in West Greenland.
84. The specificdata on the general economic situation of
Greenland, and on the fiscal situation of the Home Rule Author-
ity (pp. 36-42, paras. 97-110 of the Reply) are without relevance
for the consideration of any maritime delimitation.
')havn,1989.land1988,p. 383,Table 38,Statsmi, renlandsafdelingen,Keben-
'1Gronlandnr. 7-8 1p.207. Det granlandskeSelskab.Charlottenlund 85. To the extent that the Reply (e.g., at p. 52, paras.
333-334)seeks to underline the separate and autonomous charac-
ter of Greenland, as opposed to the Kingdom as a whole, it might,
however, be of interest to take note of TableIIIin the Reply, at
page 41, setting out income and expenditure for the Home Rule
Authority. The table does not specify the exact proportion of the
contribution from the Central Government to the Greenland
budget, but according to the Greenland Yearbook for 1989,
page 71, about half of the total expenses were financed by
Copenhagen. Greenland makes insignificant contributions to the
Central Government budget. In the aforementioned Yearbook for
Greenland 1989,page 157,it is stated that "it is not unrealistic to
presume that around 40 to 50 per cent. of the Gross National
Income directly or indirectly can be derived from this contnbu-
tion" (from the Central Government). This reflects a situation
that is common to most Arctic communities that are heavily
dependent upon outside support.
86. Norway further wishes to point out that the relative
role of fishenes in Greenland's economy may be somewhat
reduced if the bleak prospects for future mining incomes in
Greenland (described in para. 103of the Reply) were to improve.
It is true that the income may drap drastically in the short term,
but, as mentioned in the Reply, extensive exploration surveys are
being carried out in Greenland. Projects for gold and platinum
mining are under consideration, and a comprehensive seismic
survey programme has recently been launched. Greenland is
currently reconsidering its regulations for exploration and exploi-
tation ofmineral resources, in order to attract further investment.
(a) GeneralCommenrs
87. In the Danish Reply, a considerable section (pp. 42-78,
paras. 111-199)is devoted to an expanded account of the Green-
land economy and of its fisheries sector, vanous aspects of
fisheries in theregion, and the resource base for those fisheries.
While fishing activities are not in any way determinative of the
boundary issue, it may be useful for the Court to have an
understanding of the resource availability and the operating
conditions for the fishing industry working out of Greenland, and
in waters off Greenland and Jan Mayen. 88. At the outset of the comments on Greenland and
non-Greenland fishing in waters off or in the vicinity of Green-
land, the Reply (p. 42, para. 112) acknowledges that the presen-
tation in the Norwegian Counter-Memorial has succeeded in
presenting a general survey of the traditional wide-ranging North
Atlantic operations of the Norwegian fishing fleet. Those opera-
tions are of long standing and varied in nature. They not only
cover fishing for several species, but also include sealing,whaling,
and for a considerable period of time, land-based hunting opera-
tions. Norwegian maritime activities in the Jan Mayen-East
Greenland region are of a different character, compared with the
distant-water fisheries in the region (in which vesselsfrom many
participating countries have engaged only in the post-war period).
89. The comment, at the same reference, that most of the
statistics provided in the Counter-Memorial concern fishing out-
sidethe disputed area istherefore entirely apposite.The intent and
purpose was to provide a general background, not to present
argument based on volumes of fishing or catch activities in the
disputed area alone.
(b) TheRelationshipbetweenGreenlandand
Non-GreenlandFishing
90. In Tables V and VI (at pp. 47-8), the Reply furnishes a
picture of the relationship between Greenland and non-Greenland
catches which does not appear to correspond to the allocation of
quotas as set out for 1990in Table VI1(at p. 57).In 1989,foreign
catches are stated to be 24 per cent. of the total catch (total
tonnage, without correction for value conversion factors). For
1990,quotas to foreigners, mainly to the EC, amount to 41.4 per
cent. of aggregate quotas.
91. This discrepancy does not necessarily reflect any
change in basic Greenland management policy. But it may mean
that quota allocations for the EC have been set at an unrealisti-
cally high level.
92. A comparison of 1989 catch statistics with quota
figuresset for 1990supports this hypothesis. Thus, Table VI of the
Reply(p. 48) givestotal foreigncatches as around 52,000tons. EC
quotas for 1990(including transfers to Norway) amount to nearly
156,000tons. None of the studies on expected fish stock abun-
dance discussed within the Northwest Atlantic Fisheries Organi-
zation (NAFO) and the International Council for the Explorationofthe Sea(ICES) have predictedany such dramatic changesin the
availability of fishablequantities within Greenland waters.Nor is
any such increase confirmed by the preliminary catch figures for
1990(seeTable7at p. 32.The sketch map at p. 31showsthe limits
of the ICES statistical areas).
93. There may be many good reasons for stipulating
inflated quotas. A quota which is higher than realistic catch
expectations may look good in a number of contexts, and may
givea superficialimpressionof fairnessand generosity on thepart
of the coastal State. Alternatively, inflated quotas may give an
illusion of balanced benefits to both parties in a transaction.
Whatever the underlying purpose of an inflated quota, it repre-
sents essentially a promise of a right to catch "paper fish".
94. Quotas for "paper fish" do not give a true picture of
catch opportunities, nor of the real benefitsaccruingto any of the
parties.
95. NAFO prelirninary catch statistics for 1989 show a
total catch off WestGreenland of 173,000tons, or 89 percent. of
West Greenland quotas set for 1990. That gives a basis for
concluding that there is a reasonable expectation that these 1990
quotas are for "real fish. The total catch off West Greenland in
1989was fivetimesthe catch taken off East Greenland in the same
year, as set out in Table VI1of the Danish Reply.
96. The non-Greenland component of the total catch
conforms entirely to this pattern, The bulk of the non-Greenland
fishing in the Greenland fishery zone takes place off the western
coast. There is a reasonable relationship between catches and
quotas for this region. Non-Greenland fishing in the East Green-
land fisheryzone is comparatively limited (cf.Table 7), and there
is no realistic relationship between quotas and actual catches.
(c) Catches inthe East GreenlandArea
97. The Danish Reply seeks to create the impression that
Greenland catches off the east coast constitute an essential
element in the overall fisheries economy of Greenland. This is
underlined and illustrated by reference to quotas established for
fishing in the Greenland fisherieszone off the east coast (Reply,
pp. 51-69,paras. 131-173). 98. The following tables, based on ICES statistics, show
that there have been considerable variations in Greenland fish
catches (exclusiveof shrimp) off East Greenland during the 1980s.
As will be seen from Table 7, Greenland catches off East
Greenland peaked in the years 1986.Otherwise, fishcatches have
been small or insignificant. Table 8 shows that the bulk of the
catches in the two best years were redfish, whichdoes not appear
ta have been caught at al1by Greenland vesselsin the three most
recent years.
99. Table 7 also gives approximate figures (extrapolated
from Table VI1in the Danish Reply) for catches taken within the
East Greenland fishery zone after 1980. It will be seen that the
Greenland zone proportion of total catches varies greatly, from
93.5 percent. in 1983to around one fifth in 1980and 1985.This
table also makes clear that Greenland catches (excludingshrimp)
make up a very small proportion of total catches in the East
Greenland fishery zone.
100. Table 7 is intended to focus attention on fishing by
Norway and Denmark, specifyingGreenland catches. Therefore,
the column for "others" contains aggregate catch figures for a
number of important participants. That calls for somecomments.
There was a major increase in catches by "others" in 1976.That
year, the USSR accounted for the greatest catch volume: 101.7
thousand tons, mostly redfish.In the followingfour years, lceland
had large catches, mainly of capelin (Icelandic total catches per
year (thousand tons): 1977:71.1; 1978:168.4; 1979: 114.5; 1980:
108.7).From 1981to 1984,the Federal Republicof Germany had
the largest catches (in thousand tons: 1981: 80.3; 1982:59.2; 1983:
41.7; 1984:25.1). By far the most important speciescaught was
redfish. In 1985and 1986,Iceland's capelincatches again were the
largest element: 173.6 and 148.5 thousand tons respectively. In
1987, the USSR caught 68.5 thousand tons of redfish, and the
Faroe Islands 69.2 thousand tons of capelin. In 1988,the USSR
redfish catch was 55.3thousand tons, and Iceland'scapelin catch
45.6 thousand tons. In 1989and 1990,the Federal Republic of
Germany accounted for the largest catches, with 13.9 and 26.8
thousand tons, mainly cod and redfish.
101. This breakdown of catches by "others" again demon-
strates the variability of the fishing patterns off East Greenland.
Capelin and redfish represent the largest volumes; these species
are mainly fished outside the East Greenland fishery zone. It is
made clear that Nonvegian catches in most years after 1979 are
comparable in magnitude to those of the most important"others". At the same time, Greenland and other Danish catches
(not including Faroese) are also insignificant compared with
various major components of catches by "others".
ICES Statistical Areas-
Year
I I I I I I I I
SourceIn :ternational Council for the Exploration of the Sea (ICES), Bulletin Statistique
des Pkhs Maritimes.
1988-1990:ICES, preliminary figures. Data for 1990incomplete.
.. :Data not avaikble.
') Source: Danish Reply, Table VI1 (p. 55). Extrapolation fram bar chart diagram gives
approximate figures only; figures include shrimp.
') Greenland and non-Greenland v-1s. Catches of Redfish (in 1,000tons) in the
East Greenland ~rea', 1977-1990
(ICES Statistical Area XIV)
Green- Den-
Year Norway land markz Others Total
1977 O.1 - - 14.3 14.4
1978 - - - 19.3 19.3
1979 - - - 15.9 15.9
1980 - - - 30.3 30.3
1981 - - - 36.4 36.4
1982 - - - 57.9 57.9
1983 - - - 29.1 29.1
1984 - - - 15.4 15.4
1985 - 5.5 - 54.5 60.0
1986 - 9.5 - 75.2 84.7
1987 - 0.7 - 80.6 81.3
1988 - 0.0 - 77.9 77.9
1989 - 0.0 - 16.8 16.8
1990 5.0 0.0 .. 18.2 23.2
Source: InternationalCoulr theExploratoftheSea(ICES),BulletinStatistique
des PEchcsMaritimes.
1988-1990:ICES.preliminaryfigures.Datafor 1990incompletc.
..:Data nat available.
')The redfirhstockis mainlyto bcfoundoutsidctheGrcenlandfishcriazone southcast
ofGreenland.
') ExcludingGrccnlandand theFaroeIslands. 102. On the other hand, Greenland shrimp catches off East
Greenland appear to have undergone a steady improvement, cf.
Table 9 below:
Table9
Greenland Shrimp Catches (in 1,000tons) in the
East Greenland Area, 1980-1990
(ICES Statistical Area XIVa and XIVb)
Year XIVa XIVb
1980 - O.1
1981 - 0.2
1982 - 1.1
1983 - 1.5
1984 - 1.9
1985 - 2.6
-
1986 - 5.8
1987 6.6
1988 - 7.6
1989 - 6.0
1990 - 6.2
Source: International Council for the oftheSea(ICES), Bulletin Statistique
des PêcherMaritimes.
1988-1990ICES,preliminaryfigures.
103. It should be noted that no Greenland shrimp catches
have been recorded in ICES statistical area XIV a. That means
that there have been no shrimp catches off East Greenland north
of 68' N. The pattern for Greenland shrimp catches conforms
with the commercial fishing pattern. As is shown in Table 5.4,
page 7in Appendix 5 (Corrected Reprint) to the Counter-Memo-
rial, Greenlanders using modern fishing methods have not re-
ported fish catches north of 68"N.
104. This is the background against which the allocation of
East Greenland catch quotas to Greenland fishermen for 1990of
68,980tons must bejudged. Apart from the shrimp quota of 9,000
tons, the quotas appear unrelated to past catch performance: less
than 3,000 tons per annum before 1985,a peak of 10,000tons in
1986,and between 500and 4,500tons in the years 1987-90.Except
for the capelin quota, they are also without relevance to any
evaluation of the fisheriespotential for Greenland in the disputed
area. (d) GreenlandSealingand Whaling
105. In paragraph 176 of the Reply, Denmark complains
that Nonvay "omits al1reference to the hunt for seals and whales
carried out by the Inuit inhabitants of the settlements of East
Greenland." It is true that the communities in Ittoqqortoormitt/
Scoresbysund and Ammassalik are involved in seal hunting,
although it seems to be somewhat overstated to Saythat "Al1the
settlements of East Greenland are essentiallyhunting communities
depending primarily on sealing, and to a lesser degree on whaling
and Iishing for nourishment and generation of income" (Reply,
para. 185),or that "sealing and whaling are the dominant sources
of income to the inhabitants of the municipalities ofasiilaqIAm-
massalik and Ittoqqortoormitt/Scores (beyslu,nara. 192).
In Ittoqqortoormitt/Scores forinstndce, hunting for seal
and other mammals provided about 5 per cent. of the money
income of households in 1985.' In any event the Greenland
catches take place in inshore or nearshore waters, and were thus
not included in Table 5 of the Counter-Memorial, which focuses
on the irnmediate surroundings of the disputed area.
106. Nonvay also feels the need to refute the Danish
allegation "that the massive Norwegian sealing efforts have not
been without detrimental effects on the Inuit population of East
Greenland." According to the Report by the Danish Greenland
Commission dating from 1950,only 10percent. of the Norwegian
sealing took place within the territorial waters of Greenland
(under the 1924East Greenland Convention, Counter-Memorial,
Annex 39) and then generally far away from the Inuit hunting
grounds. Thus the direct competition with the Greenland sealing
was minimal. The most important motive for moving part of the
Ammassalik population northwards to Ittoqqortoormitt/Scores-
bysund in 1925was in fact to counter any Norwegian sovereignty
claims in the area (cf. pp. 17-18, para. 55).
107. As to Greenland whaling, Eastern Greenland waters
are of minor importance compared with the Western Greenland
whaling, as illustrated in the following table:
7)Accordingtoan articby Finn BreinholtLarin?Gnmland, No. 6 1989, Del
Grrrnlandreelskab,Charlottenlund. Greenland Catches of Whale
(1982-1989)
West Greenland East Greenland
Year Minke Fin Hump- Minke
whale whale back whale
1982 250 9 12 1
1983 209 7 14 9
1984 237 8 11 11
1985 22 9 9 14
1986 145 8 - 2
1987 85 9 - 4
1988 109 8 - 1O
1989 60 23 - 12
SourcA:rbogforGronland1989
(e) TheEC InterestinGreenlandQuotas
108. In the Reply (pp. 57-58,para. 141),it is suggestedthat
theovenvhelmingpart of the total ECquota has been allocated in
the East Greenland area, stated as 85 per cent. That is correct as
far as tonnage figures are concerned. But it appears highly
unlikelythat EC fishermenwilltake anysubstantial amount of the
quotas allocated,except for cod and shrimp. According ta the
Reply (Table VII, p.59, total catches in East Greenland fishery
zone in the years 1980-1989averaged approximately 70,000 tons
per annum. As shown in Table VI11(Reply, p. 57),the quotas for
the East Greenland fishery zone in 1990add up to 207,000tons.
That isthree timesasmuch as the averagecatch, and around seven
times higher than the catch in 1989.Table 11below illustrates the
development of EC fisheries in East Greenland Waters (ICES
Statistical Area XIV)ince 1980. Table 11
EC Catches of Fish and Shrimp (in 1,000tons)
in the East Greenland Area, 1980-1990
(ICES Statistical Area XIV)
Blue Green-
Year Red- Shrimp Whi- Cod Cape- land Other Total
fish ting lin Hali- Species
but
1980 30.2 0.7 8.7 3.2 12.6 2.1 8.5 66.0
1981 36.4 0.6 17.3 7.4 17.2 2.9 16.2 98.0
1982 37.1 1.4 0.8 8.9 - 2.4 10.1 60.7
1983 28.9 0.7 0.0 8.3 - 1.1 3.4 42.4
1984 14.1 0.9 0.0 7.0 7.9 0.8 3.1 33.9
1985 5.9 0.3 - 2.0 16.2 0.6 26.1
1.1
1986 5.6 0.5 - 4.1 5.4 0.7 0.7 17.0
1987 4.7 0.6 - 5.3 - 0.4 0.7 11.7
1988 5.7 0.4 - 12.0 - 0.6 0.9 19.6
1989 2.4 0.3 - 11.9 - 0.4 0.6 15.6
- 29.5
1990 .. ..
Source:InternationalCouncilfor the Explorationof the Sea.(ICES)
BulletinStatistiquedesPéchesMaritimes.
..:8Data nat available.aryfigures.Data for1990incomplete.
109. It will be seen that catches of redfish have declined
considerahly since 1982.There is nothing to indicate that Com-
munity fishing patterns are undergoing any dramatic change.
Table VI11of the Reply (p. 57) gives the EC quotas for 1990for
redfish as 46.820 tons, for Greenland halibut as 3.550 tons for
capelin as 30.000tons and for blue whiting as 30.000tons. When
these figures are compared with recent catches, as set out in
Table 11,it isclear that for stocks other than cod and shrimp, EC
quotas may largely be taken to relate to "paper fish".
110. This conclusion has a bearing on assessinghow the EC
payment to Greenland for fishing rights relates to actual catches.
The Reply argues that since the EC capelin quota for 1990 of
30.000 tons constitutes approximately one fourth of the total
volume (by weight) of total EC quotas, the allocation of capelin
fishing rights to the EC is of important financial value to
Greenland ("... Greenland derives a substantial income...", Reply
p. 58, para. 141). Recorded EC catches of capelin (al1taken by
Danish iïshermen) in [CES Area XIV are shown in Table 12
below. It will be seen that these catches total only 59,300 tons
since 1980,and that no catches at al1have been taken since 1986.If EC fishermen do not in fact fish capelin, it seems unlikely that
capelin quotas in themselves represent a source of "substantial
income".
Table 12
Reported EC Catches of Capelin (in 1,000tons) in the East
Greenland Area, 1980-1990(ICES
Statistical Area XIVa and XIVb)
Year XIVa XIVb Total
1980 ... 12.6 12.6
-
1981 1-.2 - 17-2
1982
1983 - - -
1984 - 7.9 7.9
1985 ... 16.2 16.2
1986 5.4l - 5.4'
- - -
1987 - - -
1988
1989 - - -
1990 - - -
Source:lnternationalCouncforthe Explorationof the Sea (ICES). Bulletin Statistique
des PechesMaritimes.
1988-1990:ICES. prelirninaryfigures.
..:magnitudeno1available,data no1availableseparatelybut includedelsewhere.
111. Access rights for cod and shrimp are without doubt of
importance, more so than indicated by quota tonnages in isola-
tion. It is, however, difficult to relate "paper fish" quotas directly
or indirectly to the consideration which is paid for the totality of
EC quotas in the Greenland zone.
112. Therefore, when the EC ensures the payment of total
fees of approximately USD 36 million per annum for al1 EC
quotas (cf. Reply, p. 50,para. 127)during the current period, it is
more natural to regard this payment as a remuneration for the
right to fish the more valuable stocks of cod, shrimp and redfish,
rather than to distribute this amount in relation to quota tonnages
of lower-priced species which are not even exploited.
'includes 1.3 ihousand tons reponeArea XIV, withoutspeciïyingsub-area. 113. On the other hand, even if EC fishermen do not utilize
their capelin quotas in Greenland waters, that does not mean that
it is impossible to ascribe a value to the access rights to the 66,000
tons of capelin accruing to Greenland under the tripartite agree-
ment in 1990.
114. In contractual arrangements between the Norwegian
Herring Sales Organization and the Royal Greenland Trawler
Division covering fishing rights for capelin in 1990,a sliding scale
fee of between 12and 14percent. of landed price was stipulated,
varying in relation to the pricelevelactually ohtained. Sinceprices
remained in the low scale, calculations may be based on a fee of
Danish kroner 72 (or USD 9.32) per metric ton. At this price, the
real value to the Home Rule Authority of the allocation of 30,000
tons of capelin to the EC would amount to USD 280,000, or less
than oneper cent. (0.78) of the total amount of USD 36 million.
The assessment inthe Reply (para. 141)of the relative value of the
EC capelin quota - which is not fished - is grossly overstated.
115. More generally, the figures presented by Denmark
indicate that - apart from quotas for "paper fish" - the real
Community interest in fishing off the East Greenland Coast is at
present limited, and that there is no Community interest linked to
fishing in the disputed area.
(f) The Disposal of GreenlandS CapelinAllotment
116. Under the terms of the tripartite arrangement, Green-
land has been entitled to dispose of a portion of the total
allowahle catch of the capelin stock which moves through the
waters encompassed by the fishing zones of Jan Mayen, Iceland
and Greenland. Based on a share of 11 per cent. - equal to
Norway's share - Greenland authorities had at their disposai
99,000 tons for the 1989-90 catch season, and 66,000 tons for
1990-91catch season.
117. The account of administrative practices for licensing
foreign fishing for capelin, given in the Reply at page 65 (para.
161), might leave the impression that only Faroese vessels are
engaged in fishing on the Greenland quota. However, Norwegian
vesselspurchased fishing rights in 1989and 1990for 10,000and
6,500 tons of capelin, respectively, on the basis of contractual
arrangements hetween the Royal Greenland Trawler Division and
the Norwegian Herring Sales Organization. The terms of those
purchases included cash payment, limited hiring of Greenlandcrew, and prescribed catch reporting and accounting routines to
ensure that the full amount of contracted volumes was ascribed to
the Royal Greenland contracts, irrespective of the location of any
specificcatch.
118. However, there is no indication that Norwegian vessels
fishingcapelin on the Greenland quota under this contract were in
any sense chartered by Royal Greenland. The vessels remained
under owner's instructions, and operated at owner's risk and
account.
119. There is agreement among scientists from the three
parties to the tripartite capelin arrangement that there is no
connection between the pelagic stock of capelin and local stocks
occurring in East Greenland fjords (Reply, pp. 61-62, para. 153).
(a) TheInterrelaiionshipbefweenMarine Resourcesin the
East Greenland,Icelandand JanMayen Area
120. The most important exploited resources in the East
Greenland fishery zone south of 68"N are localized stocks of
shrimp and demersal fish. Seal and whale stocks migrate through-
out a wide area.
121. Further north, in the waters between Jan Mayen and
Greenland, the resource occurrences comprise species and stocks
which move between the Jan Mayen, Greenland and Iceland
zones, or waters beyond any coastal zone: capelin, blue whiting,
harp and hooded seals, and various species or whales.
122. These pelagic or migratory stocks have an interest for
al1coastal States in the region. There is either a direct interest in
the actual harvesting of each stock separately, or a complex and
indirect interest, derived from the fact that tbese different species
interact within thesame ecological system.
123. Thus, the capelin stock which occurs in the waters
between Jan Mayen and Greenland (and which may be exploited
within these waters) also moves within the Iceland Economic
Zone, and is available for exploitation during the summer to the
north and Westof Iceland, and in autumnand winter to the south
of Iceland. Throughout its migration in Icelandic waters, capelinalso forms part of the nutritional base for Iceland's localized,
stationary cod stocks, and probably to some extent also for East
Greenland cod stocks.
124. At the same time, at a higher level of the marine food
chain, seals and whales feed on the capelin stock. Seals feed in
direct competition with fisheries, both on demersal fish and
pelagic species (herring and capelin). They also compete with
demersal fishstocks in feedingon pelagicspecies.Whales compete
in the same manner, to the extent that they feed on pelagic
fishstocks. The minke whale does so, and is probably the most
numerous species of whales in the region. The ScientificCommit-
tee of the IWC assesses the size of the Central North Atlantic
stock of minke whale to be 28,000 (1990). Fin whales probably
constitute an even larger biomass. The East Greenland-lceland
stock of fin whales was estimated to be about 16,000 (1991).Fin
whales feed profusely, but not exclusively,on pelagic fish.Whales
also compete with exploited Iish stocks in another way, as baleen
whales takethe bulk of their nutritional energy from small marine
plankton organisms, Le.,krill and other smallcrustaceans and fish
larvae.
(b) Multi-species Managemeni
125. This complex ecological interrelationship between dif-
ferent marine species, and the impact of man's harvesting activi-
ties, are not yet fully understood. More empirical marine scientific
investigation is needed before we can attempt to quantify the
various elements in the interrelationship.
126. There is, however, growing recognition among both
marine biologists and fisheries administrators that the approach
to fisheriesmanagement must be changed. It isno longer sufficient
to regard each species or stock in isolation, and decide upon
harvest volumes, catch limitations and other conservation mea-
sures solelywith a viewto utilizing that particular speciesor stock
as efficiently and prudently as possible (an approach based on
considerations limited to the concept of "maximum sustainable
yield" (MSY), widely applied in national administrations and in
international fisheries commissions).
127. Work is in progress to develop procedures and tech-
niques for a multispecies management approach, i.e. an approach
that takes into account the effect whichmanagement and conser-
vation measures and policies for one speciesor stock may have on
other species or stocks. 128. This approach must deal not only with the reproduc-
tive capacity of, Say, capelin and the harvestiiig needs of the
capelin fisherman, so as to adjust thecatch to ensure an optimum
long-term exploitation of capelin. It must also reckon with the fact
that capelin is an important food item for cod, and that a catch
which is rational when regarded as a harvest of the capelin stock
alone, which has a strong regenerative capability, mdy be exces-
sive in relation to a management objective for the cod stock that
feeds on it.
129. The stocks of fish and manne mammals which move
through the zones of Jan Mayen, Greenland and Iceland, or any
two of them, need to be subject to joint management procedures.
This is required not only by the biological unity of each stock, but
also because of the varying impact of management and conserva-
tion measures on the related interests of each of the parties. The
fact that national management alone does not suffice is under-
scored by the implications of multispecies management for diffe-
rent and perhaps competing national interests.
130. The need for joint assessments and management deci-
sions for the capelin stock by al1 three interested parties will
remain even after the settlement of the delimitation issues between
Jan Mayen and Greenland. In the Reply (p. 67, paras. 167-168),it
is stated that "....without an established delimitation of the
maritime areas under consideration, no solid basis exists for
coming to terms on a joint management of the relevant re-
sources". Joint management is described as "a most useful and
natural supplement to a maritime delimitation".
(c) Delimiiation andManagemeni
131. It must be pointed out that agreement or acceptance of
lines of delimitation does not in any way substitute for broader
agreement on joint management of any joint stock. There are no
firm criteria for determining the "zona1 attachment" of a joint
stock, i.e. determining the proportion of the stock which may be
ascribed to each coastal State by virtue of the dependence of the
stock on the various zones, for feeding, breeding, or the occur-
rence of fishable concentrations.
132. The main inducement to agree on joint management
measures liesin the capacity of each interested Party to harvest
what it considers its share within its ownjurisdictional waters, or
on the high seas. Norway has a fleet of purse seiners with aconsiderable harvesting capacity, and with great iiexibility in its
pattern of operations. This fleetutilizes the capelin stock in the
Jan Mayen-Iceland-Greenland area seasonally as a part of a
diversified resource base.ts operations within the undisputed Jan
Mayen fishing zone can be adjusted to secure sufficient catches to
make a convincing case for agreed joint management measures.
133. The Danish Reply (pp. 68-69,paras. 170-173)discusses
the value to Greenland of its share of the capelin resource. As
indicated in paragraph 114(p. 39) above, the value of the capelin
componentofthe total EC quota would be lessthan one per cent.
of the amount provided as remuneration by the EC. The amounts
fished under Norwegian or Faroese contracts would not materi-
ally affect this picture. The statement that capelin represented 1.6
per cent. of the 1988 value of catches landed in Greenland
disregards the fact that a considerahle proportion of the total
catches in the Greenland zone are not landed in Greenland.
134. The exploitation of the capelin resource requires a
specially equipped fleet, and access to processing plants. A
shore-based processing industry requires a substantial and steady
supply of raw material. Building and maintaining a specialized
fleet of purse seiners would absorb considerable capital, and
profitable operation would depend on access to a varied resource
base throughout most of the year. It isdifficult to see that the
Greenland share alone of the capelin stock which moves in the
zones of Iceland, Greenland and Jan Mayen could be a sufficient
basis for a new specialized fleetor a new land-based processing
industry.
(a) NorwegianFishingin the WatersaroundGreenland
135. In Tables IV and V, the Danish Reply (pp. 45 and 47)
conveys information on the relativeshares ofcatches in the waters
around Greenland of Greenland fishermen, Norwegians and
others. The point is made that there has been a general decline in
the tonnage of Norwegian catches since around 1970.This does
not necessarily imply acorresponding reduction in the value of the
catches. As is noted in the Reply (p. 51, para. 130), the relativevalue of shrimp catches is greater than that of cod and other fish,
which means that tonnage alone does not givea true picture of the
value of the Norwegian catches in the Greenland zone in recent
years.
136. As is noted in the Reply (pp. 50-51, paras. 128-130),
Norwegian fishing within the Greenland fisheryzone has in recent
years chiefly been carried out under arrangements by which the
EC transfers to Norway a portion of the quotas allotted to the
EC. In return, the EC is granted access to fishing in the Norwe-
gian Economic Zone, within the overall exchanges of quotas
between Norway and the EC, on the basis of reciprocity. This
reallocation of quotas is specifically recognized by the EC-
Greenland Fishery Agreement (Reply, p. 50, para. 126), and
indicates an acceptance of the need to harmonize fisheries man-
agement policies for extended zones of coastal State jurisdiction
with the real fishing interests and requirements.
(6) Norwegian Fishingin the Jan Mayen -East Greenland Area
137. The Norwegian interest in utilizing the resources in the
Greenland- Jan Mayen area has been changing. Originally
confined to East Greenland and adjacent waters, it was extended
to WestGreenland waters as well.Sincethe late 1970s,it has again
been concentrated in East Greenland waters and the Jan Mayen
fishery zone, including the disputed area.
138. In the undisputed part of the Jan Mayen fishery zone a
shrimp fishery, and in recent years also a scallop fishery, have
been developed. An experimental longline fishery for Greenland
halibut was conducted in late summer 1991.
139. Since 1978 the capelin fishery has been the most
important Norwegian activity in the Jan Mayen area. The follow-
ing table shows the zonal distribution of Norwegian catches of
summer capelin. Table 13
Norwegian Catches of Summer Capelin' (in 1,000tons)
in the Jan Mayen Area, 1978-90
Jan
Year Mayen Disputed land2 Iceland3 Total
zone ares zone zone
- -
1978 154 18 154
1979 123 84 - - 123
1980 120 77 - - 120
1981 90 1 - - 90
1982 - - - - -
1983 - - - - -
- -
1984 106 13 - - 106
1985 193 183 193
1986 150 80 - - 150
1987 82 74 - - 82
1988 8 8 - 4 12
1989 O O - 52 53
1990 1 - - 21 22
SUM 1,027 538 - 77 1,105
Per cent. 93 48,7 - 7 1O0
SourceN:onvegian DirectorateofFisheries
140. The table underscores the importance of the disputed
area. Nearly 50percent. of total Norwegian catchesin the period
1978-1990stem from this area.
(c) Sealingand Whalingin theJanMayen - East Greenland Area
141. The commercial hunt carried out by Norwegians is
required to comply with the principles of rational management,
and thus has to be based on the best scientificadvice. It remains
a Norwegian policy to carry on controlled and closely regulated
sealing and whaling.
') Does not includewintercapelin,which is caught exclusivelyin the lcelandicZone.
')Nonvegian firhingfor capelinin theGreenhasbeenauthorizedsince 1989.
')Nonvegian fishingin thelcelandicZonehas been authorizedsince 1988. 142. Sealing in the Jan Mayen-East Greenland area has
been an important Norwegian interest for nearly 150years. The
need for responsible government involvement in the regulation of
the hunt was felt at an early stage. Such regulations were first laid
down in 1876. An internationally agreed opening date for the
West Ice seal hunt was established the same year. Since 1958
advice from the Sealing Commission for the North East Atlantic
(and later from a bilateral scientificworking group under the Joint
Nonvegian-Soviet Fisheries Commission) has provided the basis
for the regulation of sealing in the West Ice. Since 1960,hunting
for hooded seal in the Denmark Strait has been prohibited on
conservation grounds. Acting upon a Norwegian proposal, the
]CES in 1984established a permanent working groupon harp and
hooded seals to provide stock assessments and management
advice.
143. As stated in the Norwegian Counter-Memorial (pp.
35-37, paras. 120-123,and Appendix 5, Table 5.12), the waters in
the vicinity of Jan Mayen have traditionally been important for
Norwegian whaling, beginning in 1882.As was shown, the catch
locations cover a wide area. The minke whale stock which is now
hunted in the waters off Jan Mayen, East Greenland and Iceland
is defined as a separate stock, termed the Central North Atlantic
stock, by the International Whaling Commission.
144. Norwegian catches from this stock were reduced by
decreasing quotas during the 1980s,until the Norwegian Govern-
ment suspended commercial whaling from 1988.During the years
1982-1987,Norwegian whalers nevertheless caught an average of
85whales per year. The average annual Greenland catch of minke
whales off East Greenland in the same peciod was sevenwhales.
145. As in earlier days, fishing and hunting still constitute
the main basis for settlement and employment in a large number
of Norwegian coastal communities today. Norwegian hunting in
the areas around Jan Mayen forms a natural part of overall
Norwegian catch activities. As mentioned in the Norwegian
Counter-Memorial and referred to in the Danish Reply, the
disputed area constitutes an important hunting ground for Nor-
wegian seal hunters.
146. The Norwegian seal hunt is a seasonal activity, and
does not by itself provide a sufficient economic basis for the
sealing vessels. Althoughthese vessels are specially designed and
reinforced forseal hunting, they are also employed in ordinaryfishing activities. However, sealing constitutes an important eco-
nomic supplement to the overall fishing activities of these vessels.
147. Today it cannot be said, as asserted in the Danish
Reply, that the Norwegian vessels by and large only utilize the
skinof the seals. In fact, the blubber is fullyutilized,and sealmeat
is increasingly used for human consumption. Whatever is not
marketable as food is processed for animal fodder.
148. The reduction in Nonvegian seal catches over the last
decade is primarily due to the import ban on certain seal products
imposed by the European Community as a result of campaigns
against sealing by various organizations. Catches during the
period 1980-1991are therefore not representative.
149. For sealing, the location of the ice edge during the
breeding and moulting season varies greatly. Recorded seal
concentrations in waters between Jan Mayen and Greenland for a
representative period are shown in sketch maps in Appendix 3 to
the Counter-Memorial, at pages 222-223. A consistent pattern of
harvest and management isdependent upon access to the breeding
and moulting areas, irrespective of annual variations due to
meteorological and hydrological causes. This establishes a point
of mutual interest for Nonvay and Greenland.
150. On the basis of the discussion above, the pattern of
catch operations in the disputed area can be briefly summarized
as follows:
-
there has been no Greenland fishing or sealing;
- there has been a limited EC fishery for capelin;
- there has been some Iceland and Faroese fishing for capelin;
-
sealing by the USSR in the region has continued, and
extends to the disputed area according to ice conditions;
- Norwegian capelin catches in the disputed area have for a
long period been considerable, and amount to around one
half of the total Nonvegian take of this capelin stock since
1978;
- the disputed area is a major location for Norwegian sealing;
whaling has also taken place in the disputed area. 151. The Norwegian Counter-Memorial gave a presenta-
tion of Norwegian marine scientific research and fisheries inves-
tigation activitiesin the Northwest Atlantic and in Greenland and
Jan Mayen waters (Counter-Memorial, p. 50, para. 160, and
Appendix 4, pp. 225 ff.). The Danish Reply (pp. 78-79, paras.
200-203,and Annex 65) provides information on Danish, Green-
land and other oceanographical and fisheries-related research
activities in East Greenland waters.
152. In the period 1960-1989, Nonvegian field activity
included research and surveycruisesin Jan Mayen and Greenland
waters alone totalling 2,428 vesseldays for fish, shellfish,general
and environmental marine studies, and manne mammal studies.
That signifiesan average of 81 vesseldays per annum. Activities
in marine mammal research and in fish and shrimp studies have
increased significantlyin recent years. The Nonvegian Council for
Fisheries Research has organized and funded a broad, interdisci-
plinary Marine Mammal Research Programme, which also covers
these waters.
153. The Greenland Fisheries Research lnstitute has been
devoting increased attention to waters off East Greenland. How-
ever, the preponderance of the Institute's research activities
continues to take place in the waters off West Greenland. Even
though Denmark - as well as Nonvay - has participated in a
number ofinternational research projects covering watersoff East
Greenland, the main effort in fisheriesresearchinthesewaters has
been directed at thecapelin stock. Quite naturally, these inquiries
have been conducted by Norway, Iceland and the Faroe Islands. PARTII
THE LAW INTRODUCTION
154. As in theCounter-Memorial, Norway continues to rely
on three separate, but mutually compatible sets of legal reasoning
based upon:
(a) the treaty obligations of the Parties inter se;
(b) the effect of the conduct of the Parties;
general international law expressive of equitable princi-
(c) ples applicable in order to achieve an equitable solution.
155. Each of these lines of reasoning will support the
conclusion that the median line has legal validity as the boundary
separating thecontinental shelf areas ofNorway and Denmark in
the region between Jan Mayen and Greenland, and, at the same
the, has validity for the delimitation of the adjoining fishery
zones in the region. Conversely, these premises and arguments
lead equally to the conclusion that there is no reason to depart
from a median line as between the two coasts, either for the shelf
or for fishery zones.
156. These lines of legal reasoning must be approached in a
certain practical sequence. There is a certain chronological se-
quence involved, extending over a considerable period.
157. The three lines of reasoning are parallel and compati-
ble, and lead to the same conclusion, and elements subsumed
under one line of reasoning support contentions of another line of
reasoning. The lines of reasoning are alternative, in the sense that
they operate separately and independently, and the same solutions
willderive from each of them. It is submitted that they operate in
the alternative, in the sense that if one of them is chosen as
determining the conclusions of the Court, there is no need to
pursue any other line of reasoning.
158. The main features of these three lines of reasoning are:
(a) The Treaty Obligations of the Parties Inter Se
159. The bilateral Agreement of 1965(Counter-Memorial,
Annex 46) establishes the median line as the general boundary
between al1areas of continental shelf which fall to be delimited
between Norway and Denmark. The remaining task isthe demar-
cation of the boundary, Le.,setting out the specificturning points
(and their geographical coordinates) of the median line. 160. The 1958Convention on the Continental Shelfentered
into force for Norway in 1971.It did not modify or supersede the
1965 Agreement. The 1965 Agreement must be regarded as an
agreement pursuant to the Convention. It has interaliathe effect
that the occurrence of any specialcircumstance has been denied by
the Parties. The two instruments operate conjointly.
161. Even if the 1958 Convention were to be applied in
isolation, it would follow from the provisions of Article 6,
paragraph 1, that the boundary is the median line. There is no
special circumstance present in the region which could justify a
departurefrom the median line. There are no other coasts, and no
incidental features, which could exercise a distorting influence on
a median line boundary between the coasts of Jan Mayen and
Greenland.
162. For the delimitation of the fishery zones in the area
between Jan Mayen and Greenland, the treaty relationship be-
tween the Parties is not directly applicable. However, the preva-
lent practice in the North AtlanticINorth Sea region has been
either to establish the boundaries for fishery zones (or exclusive
economic zones) along previously established continental shelf
boundaries, or to abstain from determining separate boundaries
for such zones (relying often in practice on the shelf boundaries as
indicative, to avoid conflict between the enforcement agencies of
States with adjoining zones). There is thus an immediate link
between the continental shelf boundary and the delimitation of
fishing zones.
(b) TheEffectof theConductof the Parties
163. Denmark's conduct in respect of maritime delimitation
has consistently confirmed that international law prescribes the
median line as the boundary for thecontinental shelfand for other
zones of maritime jurisdiction. In the most authoritative form,
these statements are contained in Denmark's administrative and
legislative instruments governing the extent of Denmark's conti-
nental shelf and of its fishery zone, dating from 1963and 1976
respectively. These instruments identified the international claims
of Denmark, and established with binding effect the legal position
of the Danish State, foreign States and private persons. The
instruments are unqualified in their references to the median line
as the boundary, and do not provide for any exceptions or
attenuations, except such departures from the median line as
might be agreed with another State. Denmark has consistently
and forcefully pursued the same positions in international fora. 164. On this basis, Denmark must be regarded as having
expressly recognized the median line, or acquiesced in it, as
constituting a boundary for the continental shelf and for the
fishery zone in relation to Norway, including the region between
Jan Mayen and Greenland.
165. The consistent pattern of Danish conduct, together
with Denmark's knowledge of the corresponding positions of
Norway in respect of maritime delimitation, have the consequence
that Danish claims to shelf areas beyond the median line, or to
fisheriesjurisdiction beyond the median line, are not opposable to
Norway. In the same rnanner, Denmark is precluded from
pursuing theseclaims by theoperation of the principle ofestoppel.
(c) General InternationalLaw
166. The rules and principles of general international law
governing maritime delimitation would also lead to the adoption
of the median line as the boundary for the continental shelf and
for the fishery zones. The main considerations of the Norwegian
argument are the following:
167. The geographical framework of the area in which the
delimitation isto be effectedisan extensive,open maritime region.
The region is linked to other sea areas by broad expanses of ocean.
The coasts of Jan Mayen and East Greenland faceeach other over
an open, uncluttered expanse of water, at a minimum distance of
254 nautical miles.
168. Jan Mayen occupies a position of geographical and
geological independence. In relation to Greenland, Jan Mayen is
the only body of land to have a bearing on any maritime
boundary. There are no incidental special features in the geo-
graphical relationship between Jan Mayen and Greenland. Their
coastlines present no peculiarities which would influence the
delimitation operation or justify any abatement of the primary
line of delimitation.
169. The conduct of the Parties, and their congruent views
on the international law of maritime entitlement and delimitation,
testify to their general acceptance of a common standard for
determining what is equitable and what is not in maritime
delimitation (the exception being the Danish position with regard
to the object of the present proceedings). It should, however, be
noted that the assessment of the equity of a continental shelfboundary and of a fishery zone boundary need not in fact be
congruent, even if the fundamental standard is common. The
Parties have in al1 previous contexts agreed that landmass and
population do not qualify as factors relevant to delimitation.
170. There is a considerable volume of State practice which
indicates that in coastal relationships which are essentially similar
to that existing between Jan Mayen and Greenland, full effect is
given to offshore islands. Evenminor features are given full effect
when geographically isolated. In such instances, when two land
territories aresufficiently separate, and identifiable as indepen-
dent geographical features, State practice is preponderantly to the
effectthat the delimitation between theircoasts isto be carried out
on a level of equal consideration. The two features are to be
considered on their own merits. State practicedoes not impose the
inferiority of one feature to another, but accepts that in a coastal
relationship between only two geographical features, these fea-
tures command the delimitation by themselves.
171. Jan Mayen and the waters surrounding it are a part of
a region in which Norwegian activities have traditionally been
important, comprising sealing, whaling, hunting and fishing. With
technological developments, the Nonvegian interest linked to Jan
Mayen has broadened, covering also potential mineral exploita-
tion, environmental protection concerns, communications and
navigational support, air and sea rescue servicesand the general
protective interests of Nonvay in the area. The inhospitable
natural conditions of the region are a common feature of al1
Arctic territories, and are comparable to the situation of the
regions of Greenland (not covered by ice) lying opposite Jan
Mayen. CHAPTER II.
GREENLAND
Section 1.History and Constitutional Status
A. HISTORY
IMMIGRATION
92. The history of the Greenland people is characterized by
seven waves of immigration, followed by a colonial period of some
immigration.
93. Greenland and the main place names mentioned in this
Chapter are shown on Map III, annexed to this volume.
94. The first immigration known to archaeologists took
place about 2500 B.C. when a group of palaeo-Eskimo hunters set
out from the easternmost part of North Canada across the narrow
straitsto thenorthernmostpart and later the eastcoastof Greenland
(Independence 1culture).
95. In the second wave, which also started from Canada,
presumably immediatelyafter the firstone, the immigrants were also
palaeo-Eskimo hunters. Contrary to the first immigrants they spread
south along the Westcoast (Saqqaq culture).
96. About 1000B.C. a third group arrived from North Can-
ada. Like the first immigrants they moved northeastward and then
southward round the coast (Independence II culture).
97. Shortly thereafter yet anothergroup of people, presum-
ably of the same ethnic origin, entered Greenland by the same ap-
proaches but they went south across Melville Bayand downthe west
coast (Dorset culture).
98. About AD 900, still by the same routes from present-day
Canada, camethe vanguard ofthe people who were to take posses-
sion of Greenland in both east and West(Thule culture). They later
named themselves Kalaallitand became the ancestors of the people
inhabiting modern Greenland. In Greenlandic the country is called
Kalaallit Nunaat.
99. In 985 a group of people from Iceland settled in the
south-west part of Greenland. In order to attract more settlers fromIceland, these Norse peasants of Viking culture named the country
'Greenland'. Thus, the south-west part of Greenland was a part of
the European-Nordic cultural region throughout the Middle Ages.
The Norsemen in Greenland had become extinct at the end of the
15thcentury.
100. The last immigration from Canada took place during the
period about 1700 - 1900.The immigrants were polar Eskimos who
now inhabit the Thule district.
101. In 1721 the King of Denmark sent an expedition to
Greenland to re-establish connection with the Norsemen there, not
knowing that they had become extinct. Unable to accomplish the
task assigned to it, the expedition assumed Lutheran missionary
work among the Eskimos in West Greenland and established a
trading post in the district. This marked the advent of a colonial
period which lasted until 1953.
102. North-East Greenland, Le.,thearea between what today
is known as Peary Land and Scoresbysund, and which includes the
area between the 70" and 76"N latitudes relevant to the present dis-
pute, has been inhabited forseveral thousand years, presumably the
longest continuous period of habitation in Greenland. Here remains
of the lndependence 1culture have been found, e.g. in Peary Land
dated to approximately 2500 B.C.
Remains of large settlements belonging to later cultures have now
been found on Ile de France, around Dove Bay, and as far south as
at Cape South in Scoresby Sound Fiord. The total number of former
settlements that have been found in North-East Greenland is close
to three hundred, leaving no doubt that the population of this area
was at times relatively large.
103. North-East Greenland has thus been populated and its
natural resources exploited over a time span of some 4500 years.
104. In the centuries following 1721,Denmark established al-
together 16 settlement districts in Greenland. This process was
peaceful and without any armed conflict between Denmark and the
aboriginalpopulation. Denmark did not exercise authority over the
administration of wildlife resources (marine mammals, fish and
birds), which since ancient times had been managed by the huntersthemselves by way of prescriptive rights which various settlements
and families had gained with respect to specific hunting and fishing
areas.
105. Culturally,asalient feature ofthe period wasthe effort to
create a written language which could turn the West Greenland dia-
lect of the principal Eskimo language into a usable tool in modem
Greenland. Analphabetism was practically eliminated in the 19th
century.
106. An important event took place when the Permanent
Court of International Justice on 5pfil 1933passed judgment in
the case concerningthe Legal Siatusof Eastern Greenland(P.C.I.J.
1933 Series A/B, No. 53).Thedisputearose out ofthe actionof Nor-
way in proclaiming on IOJuly 1931the occupation ofa zone of Eas-
tern Greenland betweenlatitudes 71°30'and 75"40'N. Denmark re-
sponded by instituting proceedings with the Court asking it to de-
clare the Nonvegian proclamation invalid on the ground that the
area to which it referred was subject to Danish sovereignty, which
extended to the whole of Greenland. TheCourt held that there was
suficient evidence to establish Denmark's title to the whole of the
country. The area which Nonvay had claimed was therefore not
terra nulliuscapable of being acquired by her occupation.
The maritime area which is now in dispute lies off theastof that
part of Eastern Greenland which was the subject of the Court's ml-
ing in 1933.
107. During the Second World War connections with Den-
mark, which was occupied by German troops, were temporarily cut
off.
108. In 1946the Danish Government listed Greenland as a
non-self-governing territory with the United Nationsnder Article
73 of the Charter of the United Nations, thereby formally acknowl-
edging ~reenland's colonial status. In the period of 1946- 1953
Denmark submitted annual reports to the United Nationsonthead-
ministration of Greenland pursuant to Article 73 e of the Charter.
GREENLAND'S STATUS PRIOR TO THE ENACTMEN OTF THEREVISED
DANISH CONSTITUTIO IN1953
109. Greenland was a Danish colony upto the enactment of a
revised Danish Constitution in 1953.The constitutional separation
of powers did not apply to Greenland prior to 1953,and Greenlandwasmled bythe Danish Government mainly through administrative
-overnment orders. There were no Greenland representatives in the
Danish Parliament, the Rigsdag.
110. The seat of the governmental administration of Green-
land was in Copenhagen with local representatives in Greenland.
From 1908the Greenland population participated in the adminis-
tration through the two popularly elected Provincial Councils, one
for Northem, the other for Southern Greenland, (the Landsrid). In
1950the two Provincial Councils were merged.
111. The Provincial Council was empowered by the Rigsdag
to issue administrative orders and decisions in certain, specified
spheres of the Greenland Society. Additionally, the Provincial
Council had an advisory role to the Rigsdag;bills affecting Green-
land affairs were submitted tothe Provincial Council for comments
before being passed into law.
THEPERIOD FROM 5JUNE1953 TO 1MAY 1979
112. In 1952,the popularly elected Provincial Council opted
forGreenland's integration with equal nghts intothe Danish Realm
in lieu of continued colonial status by approving a proposed con-
stitutional revision extending the applicability of the constitution to
Greenland. Underlying the decision of the Provincial Council was
the belief that only freeing Greenland from its colonial status
through integration intothe Danish Realm could secure the Green-
land population greater influence on domestic affairs.
113. On 5 June 1953 a revised Danish Constitution was
passed. Section 1of the Constitution provides that the Constitution
shall apply to al1parts of the Danish Realm.
Greenland's colonial status wasthus ended through full integration
into the Danish Realm. Greenland was given no special constitu-
tional position within the Realm except that the Constitution se-
cured the Greenland population two out of the 179 seats in the
newly established single-chamber Danish Parliament, the Folketing.
Byvirtue of itsgeneral scope of application the Constitution put the
Greenland population on an equal footing with the Danes and the
Faroese.
Parliamentary Acts passed by the Folkeringnow applied directly to
Greenland unless expressly limited in geographical scope.
114. The advisory and executive competence ofthe Provincial
Council wasextended considerably in the following period,but con-stitutionally, Greenland in effect enjoyed no higher or lower degree
of self-government than other parts of Denmark, except for the
Faroe Islands which gained Home Rule in 1948.
115. By Resolution 849,the General Assembly of the United
Nations in 1954approved the constitutional integration of Green-
land intothe Danish Realm and deleted Greenland from the list of
non-self-governing temtories.
116. Segments oftheGreenland population werenot satisfied
withthe way colonialism came to an end in Greenland. Denouncing
integration into the Danish Realm they advocated increased auto-
nomy with self-government for Greenland.
Aspirations for increased autonomy in Greenland ranging from the
introduction of a Home Rule system similar to the Faroese to full
political and economic self-determination through secession from
the Danish Realm were voiced with growing intensity in the 1960s
and 1970s.
Important political issuessuch asthe Greenland demand for an ex-
tension of the fishery zone, Greenland's association with the Euro-
pean Communities, and granting of concessions for exploitation of
the natural resources of Greenland spurred a political mobilization
of the Greenland population in the 1970s.Coupled with a growing
Greenland consciousness this political mobilization underscored
the Greenland desire for wider participation in decision-making
processes.
In the mid-1970sGreenland witnessed the birth of the first political
movements from which the present political parties have developed,
clearly distinguishable by their views on Greenland's association
with the Danish Realm as well as their political colour.
117. In 1972, the Provincial Council recommended to the
Danish Governmentthat the issue of granting the Provincial Coun-
cilincreased influence upon andjoint responsibility forthe develop-
ment of Greenland be studied.
118. A Commission on Home Rule in Greenland composed
of Greenland and Danish politicians was established by the Danish
Government. On the basis ofthe recommendations and proposals of
this Commission, the Folketing passed the Greenland Home Rule
Act No. 557of 29 November 1978(Annex 18). 119. Bya referendum held in Greenland on 17January 1979 a
large majority of the population of Greenlandapprovedthe coming
into forceofthe Act; 70 percent. of the votes cast favoured the intro-
duction of Home Rule in Greenland which became effective as of
1 May 1979.
120. Greenland Home Rule is an extensive type of self-gov-
ernment. By the Greenland Home Rule Act the Danish Parliament,
the Folketing, has delegated legislative and executive powers to the
Home Rule Authority, consisting of the popularly elected legislative
Greenland Assembly, the Landsting, and the executive branch, the
Landsstyre, elected by the Landsting.Presently, the Landstinghas 27
members and the Landsstyre has 5 members.
The powers transferred by statute are in principle identical to the
powers exercised by the central authorities of the Realm in other
parts of Denmark. Consequently, the Folketingand the Danish Gov-
ernment refrain from enacting legislation and exercising administra-
tive powers in the fieldswhere these powers have been transferred to
the Home Rule authorities.
121. The Home Rule Act provides that the Home Rule
Authority may request that a number of fields specified in a Sche-
dule annexed to the Act be transferredto Home Rule, cf.Section 4of
the Act. The list of functionally defined, transferable fields con-
tained in the Schedule is not exhaustive; however, transfer of legis-
lative and executive powers in fields other than those listed in the
Schedule is subject to prior agreement between the Home Rule
Authority and the central authorities of the Realm, cf. Section 7 of
the Home Rule Act.
122. During the ten years that have elapsed since the estab-
lishment of Home Rule in 1979,the Home Rule Authority has al-
most exhausted the list in the Schedule and thus assumed authority
in most aspects of life in Greenland. Out ofthe 17fields listed in the
Schedule, the more important ones in which transfer has taken place
include inter a1ia:The organisation of the Home Rule system; taxa-
tion; regulation of trade, including fisheries and hunting: educa-
tion; supply of commodities; transport and communications; social
security; labour affairs; housing; environmental protection and
conservation of nature.
The health service is the one field of major importance in the Sche-
dule that has yet to be transferred to Home Rule. The survey inAnnex 19 may be consulted for further details regarding matters
transferred to Greenland Home Rule and dates of transfer.
123. The number of Acts (Landsringslove)passed and Statu-
tory Orders (Landstingsforordin siuedeby)the Landsring since
the introduction of Home Rule on IMay 1979until 31 December
1988nins to about 200.
124. Greenland Home Rule tests on the basic principle that
legislative power and the power of the purse should not be divided.
Consequently, Section 4(2) of the Home Rule Act provides that
when the Folketingtransfers a field to Home Rule, the Home Rule
Authority must assume the inherent expenses. Conversely, the
Home Rule Authority is the sole beneficiary of taxes and revenue
generated in fields transferred to Home Rule.
125. Since Greenland self-financing is not yet possible in a
number of capital-intensive fields annstmment has been created in
the Home Rule Act to facilitatetransfer of powers to Home Rule in
fields requiring Danish subsidies.
According to Section 5(1)of the Act the Folkeringmay bystatute ef-
fect atransfer of authority and the subsidiesto be paid in such fields
through vesting the Home Rule with the power to issue Statutory
Orders within a subsidized field. The Folketingpasses, upon consul-
tation with the Home Rule Authority, an Enabling Act specifying
the competence transferred to Home Rule and establishinga frame-
work in the form ofa fewfundamental principles for each fieldwhile
leaving it to the Home Rule authorities to decide the more detailed
regulations and undertake the administration of the said field.
Whereas a legislative initiative in a field transferredr Section 4
of the Act takes the form of an Act passed by the Landsring. the
Home'Rule Authority confines itself to issuing Statutory Orders
under Section 5.
126. The Danish subsidies to the Home Rule Authority are
not earmarked for specific purposes but granted as a lump sum.
Thus, the Home Rule Authority has virtually complete freedom to
determine the order of priority for expenditure of the funds allo-
cated by the Folketing.The Danish block grants are fixed by Acts of
the Folketingfor three-year periods, and the amount is provided forannually in the Danish Budget. The 1989block grant to the Green-
land Home Rule Authority amounts to well over DKK 1,500mil-
lion, equivalent to approximately USD 194million').
127. The Home Rule Act has not altered Greenland's con-
stitutional status as a part of the Danish Realm.
128. The constitutional principle of the national unity of the
Realm, derived from Section 1of the Danish Constitution and ex-
pressed in Section 1of the Home Rule Act, sets certain limits to the
scope of Greenland Home Rule: sovereignty continues to rest with
the centralauthorities ofthe Realm; Greenland remainsa part ofthe
Danish Realm; only fields appertaining exclusively to Greenland
may be transferred to Home Rule;the delegation of powers cannot
be unlimited and must be precisely defined by statute; certain fields,
the so-called affairs of State, may not be transferred to Home Rule.
These exclusive affairs of Stateinclude inter aliaexternal relations,
defence policy, financial and monetary policy, the administration of
justice.
129. However, with respect to non-transferable and non-
transferred fields, the Home Rule Authority has an important advi-
sory function to the central authorities ofthe Realm. Proposed legis-
lation exclusively addressing Greenland affairs must be submitted
to the Home Rule Authority for comments prior to the introduction
ofthe bill in the Danish Folketing,cf.Section 12(1)ofthe Home Rule
Act. Where proposed legislation is "of particular importance to
Greenland" the Home Rule Authority must be consulted before it is
put into effectin Greenland, cf. Section 12(3)ofthe Home Rule Act.
130. With theintroduction of Home Rulean intensive process
of "Greenlandization" commenced. The autonomy of Greenland
was symbolized by the bringing into existence of an official Green-
land flagand coat of arms. The Home Rule Authority hasmade and
ismaking great efforts to preserve the Greenland culture and heri-
tage. The language is of vital importance and Section 9 of the Home
Rule Act proclaims Greenlandic to be the principal language in
7 niroughourtheMemorioljgures in DanishKronerhbeenconverredinroUSDol-
lors onthebosis ofrhe rale ojexchangeon 1June 1989when100 US Dollars(USD)
equelledDonishKroner(DKK) 772.25.
32Greenland. In 1983 the university-level Inuit Institute was estab-
lished in Nuuk, the capital of Greenland, where linguists are
modernizing Greenlandic in order to meet the needs created by the
development of Greenland.
131. The new Greenland consciousness has also found inter-
national forms of expression. Greenland representatives have often
assumed a leading role in the cultural and political Fourth World
conferences on issues relating to ethnic minorities. One example is
the Inuit Circumpolar Conference, a pan-Eskimo non-govemmen-
ta1organization that acquired NGO status under the auspices of the
United Nations in 1983.
132. In 1985Greenland was admitted to the Nordic Council
as a member of the Danish delegation. The Nordic Council is a par-
liamentary and govemmental organ of co-operation among Den-
mark, Finland, Iceland, Norway, and Sweden.
133. The power to conduct Foreign policy is a constitutional
prerogative of the Danish Government, and no part of this preroga-
tive may be transferred to Greenland Home Rule, cf. Section 1Iof
the Home Rule Act.
However, the Home Rule Act has created co-operative procedures
sewing to accommodate the interests of Greenland and to alleviate
potential conflict of interests between Greenland and Denmark in
matters of foreign policy by granting the Home Rule Authority a
number of important functions of an advisory, representative and
executive nature.
134. Extensive legislative and executive powers, territorially
as well as functionallydefined,have been transferred to Home Rule.
Consequently, the co-operation of the Home Rule Authority will
often be necessary to fulfil Denmark's international obligations. Ac-
cordingly, the Home Rule Act provides that the Danish Government
must consult the Home Rule Authority before entering into treaties
that particularly affect Greenland interests, cf. Section 13 of the
Home Rule Act. This consultative procedure applies whether or not
the treaty concernsa transferred field.
135. International treaties concluded by the Danish Govern-
ment and customary international law bind the Home Rule Author-
ity to the same extent as they do the Government of Denmark. In
order to ensure that Denmark and Greenland comply with their in-ternational obligations, the Danish Government may direct the
Home Rule Authority to takethe necessary steps to fulfil such obli-
gations, cf. Section 10of the Home Rule Act.
136. Legislative and administrative orders of the Home Rule
Authority, e.g., concerning regulation of fisheries, may affect third
State interests and the position of the Danish Government vis-à-vis
other countries. Under the Act the Home Rule Authority is, there-
fore, under obligation to consult the central authorities of the Realm
before introducing measures that might prejudice Denmark's inter-
ests, cf. Section 1l(2) of the Home Rule Act.
137. The Home Rule Authority may send representatives to
Danish diplomatic missions in order to safeguard important com-
mercial interests of Greenland, cf. Section 16(1)of the Home Rule
Act.
138. Although, in principle, treaty-making powers are vested
exclusively in the Danish Government,the central authorities of the
Realm may, upon request, authorize the Home Rule Authority to
conduct, with the assistance of the Foreign Service, international
negotiations on purely Greenland affairs, cf. Section 16(3)of the
Act. The Home Rule Authority has notablyavailed itself ofthe right
to conduct bilateral negotiations in connection with the conclusion
of fishery agreements.
139. Denmark's membership of the European Communities
(EC) was effected by accession to the Treatiesestablishingthe Euro-
pean Communities. Denmark's membership includedGreenland as
a part of the Danish Realm.
140. In the referendum held in October 1972on Denmark's
proposed membership of the EC approximately 70 per cent. of the
votes cast in Greenland opposed Denmark's accession.
141. Greenland's capacity under international treaty law to
unilaterally withdraw from the EConce Home Rule had been estab-
lished was a matter of concern and debate during the preparations
for Home Rule. Since the treaty-making power under Home Rule
would remain with the Danish Government, Greenland's with-
drawal from the EC would be contingent upon the CO-operationof
the central authorities of the Realm.
Prior to the introduction of Home Rule the Danish Prime Ministerdeclared thatthe Danish Governmentdidnot wish to force uponthe
Greenland Home Rule Authority any particular association with the
EC.
142. The introduction of Home Rule inGreenland in 1979did
not persealter Greenland's position within the EC. The legal actsof
the EC continued to apply to Greenland and the special arrange-
ments made with respect to Greenland's fishery rights remained
valid. Similarly, Home Rule did not change the division of legisla-
tive and representative powers between the EC and the central
authorities of the Realm.
143. In a referendum held in Greenland in 1982,a majority of
the electorate opted for Greenland's withdrawal from the EC. The
Danish Government subsequently reafirmed its commitment to
support Greenland's decision to withdraw.
144. The negotiations on Greenland's withdrawal from the
EC and the subsequent agreements between the EEC and
Denmark/Greenland commenced in 1982.On the basis of a Treaty
amending, with regard to Greenland, the Treaties Establishing the
European Communities (Annex 20), concluded on 13 March 1984
by the Member States, Greenland's withdrawal from the EC became
effective from IFebruary 1985.
145. Upon withdrawal Greenland was accorded Overseas
Countries and Territories(OCT) status under Part four ofthe Treaty
establishing the European Economic Community. The OCT status
of Greenland is reflected in the Protocol on the Special Arrange-
ment for Greenland linked to the 13 March 1984Treaty on Green-
land's withdrawal from the EC. Greenland produce falling under
the common market scheme for fisheries produce may be imported
to the EEC exempt from duty and quantitative restrictions. This fa-
voured status is,however, explicitly contingent upon the conclusion
of an agreement between the EEC and Denmark/Gieenland grant-
ing EC Member States satisfactory access to the fishery zones of
Greenland.
In accordance with the Protocol, a ten year Agreement on Fisheries
was concluded on 13 March 1984 between the EEC, on the one
hand, and the Government of Denmark and the Home Rule Author-
ity of Greenland, on the other (Annex 21). Recognizing in its pre-
amblethe vital importance ofthe fishing industry to the economy of
Greenland,the Agreement lays down the principles for EEC fishing
in the fishery zones of Greenland, cf. paragraph 177. Section 2. Population
146. As of 1January 1989the population of Greenland num-
bered 55,1718).
Four fifths of the people inhabiting Greenland are Inuit (Eskimos).
The lastfifth represents predominantly Danes, most of whom stay in
Greenland for a comparatively short period carrying out work for
which there is a shortage of qualified personnel in Greenland.
147. At the start of the 20th century the population of Green-
land numbered about 12,000.This figure doubled during the first
half ofthe century. Since 1950the populationhasdoubled in only 20
years. Especially in the 1960sthe growth rate was remarkably high.
In the period from 1950to 1970,the Greenland society had to adapt
itself to an annual population growth of 3.5 per cent. To meet this
challengesubstantial investments were required, especially in order
to provide increased occupational opportunities. In 1988the rate of
population growthwas 1.2percent., but it is not expected to remain
at this reduced level. Forecasts in March 1989suggest a rise in popu-
lation to 61,000in the year 2000.Due tothis development theGreen-
land Home Rule Authority will still have to provide training and
jobs for the increasing population within the working age group.
148. Eighty per cent. of the Greenland population live in the
western part of Greenland,extending from Disko Bayin the north to
Cape Farewell in the south. This isbecause the waters offthis stretch
of Coastare heated by the North Atlantic Current and are thus prac-
tically ice-free al1year round.
The remaining part oftheGreenland population livesin the hunting
regions of North-West Greenland (approximately 14per cent.) and
East Greenland (approximately 6 percent.).
In East Greenlandthe population growth in the Ammassalik district
at the start of this century generated a demand for renewed utiliza-
tion of hunting regions which had previously been abandoned. This
led tothe foundation ofthe Scoresbysundsettlement in 1925by hun-
ters moving in from the Ammassalik district.
As of 1 January 1989,3,425persons lived in East Greenland, 2,861in
the municipality of Tasiilaq (Ammassalik) and 564 in the munici-
pality of lttoqqortoormiit (Scoresbysund).
7 ber ofindependeniSraies.e.8.. Nouni (8.042 in 1983). Tuvalu(8.229 in 1985).SI.
Chrisrophernd Nevis(47.000in 19871,Kiribati(66.250in 1987)and theSeychelles
(67,090in 1987).Someo/rheseSraresare memberso/ihe UniiedNaiions.Source:
Sraiesmon'sYear-Book.1988.
36 Section 3. Geography, Geology and Climate
A. GEOCRAPHY
149. Greenland covers an area of approximately 2,200,000
square kilometres of which about 1,858,000square kilometres are
covered by an ice cap. The remaining 342,000square kilometres are
ice-free land.
150.
Greenland's northernmost point (excluding two tiny is-
lands) is Cape Morris Jesup, which is situated at latitude 83"39'N,
only 380 nautical miles from the North Pole. The southern tip, Cape
Farewell, lies at 59"46'N, which is about the latitude of Oslo and
Stockholm. Greenland thus extends from north to south over about
24 degrees of latitude, a distance of 2,670 kilometres.
151. Greenland's westernmost point is the westernmost of the
Carey Islands, situated at 73"15'W.The easternmost point is Nord-
ostrundingen, 1I021'W. At its widest, Greenland measures more
than 1,300kilometres from east to West.
152. The coastline of Greenland is estimated to be about
40,000 kilometres !on& when one takes into account the shorelines
of the hundreds of fiords, among them the Scoresby Sound Fiord
complex, the world's largest network of fiords. Behind the rugged
Coast,which in many places is fringed by innumerable rocks and is-
lands,there is a belt of ice-free land which is at its widest, about 300
kilometres, in the area Westand north-west of Scoresbysund in East
Greenland, while in West Greenland north of Sisimiut (Holsteins-
borg) it reaches a width of 180kilometres. Most of the coastal area of
Greenland is mountainous; the highest point in Greenland is the
3,733 mettes high summit of Mount Gunnbjorn, which lies between
Ammassalik and Scoresbysund.
153. Greenland was once part of a vast megacontinent known
as Laurasia, which included most of North America, Greenland, Eu-
rope north of the Alps, and Asia north of the Himalaya. The break-
up of this megacontinent, which ultimately led to the formation of
the North Atlantic Ocean, the Norwegian Sea, the Greenland Sea,
the Labrador Sea, Davis Strait and Baffin Bay,began about 250 mil-
lion years (m.y.) ago, and Greenland finally became a separate con-
tinental entity about 55 m.y. ago. 154. The rocks making up Greenland range in age from some
of the oldest continental crustal rocks known tothe recent deposits
by glaciers and melt water rivers. The major part of Greenland be-
longs to a Precambrian shield or craton (a geologically old and
stablearea) built up of more than 2500 m.y. old crystalline rocks. To
the north this craton is flanked by a belt of folded sedimentary rocks
about 600-400 m.y. old, while the ice-free area of East Greenland
stretching from Scoresbysund to Nordostrundingen is built up of an
array of rocks from more than 2000 m.y. to about 475 m.y. old, al1of
which were folded and altered during a period of mountain building
that ended about 450 m.y. ago. These folded rocks are overlain by
thick sequences of sedimentary rocks laid down in the interval 390 -
75 m.y. ago. South of Scoresbysund extrusive basalt lavas about 55
m.y. in age cover al1the older rocks.
155. The final event in the geological history of East Green-
land was the development of the Inland Ice sheet, a consequence of
the majorclimaticdeterioration that set in about 2.5 m.y. ago. At the
height ofthe last major glaciation the extent of the ice cap was much
greater than today, and parts of the continental shelf were covered
by ice.
156. The East Greenland shelf is a distinct offshore morpho-
logical feature throughoutthe relevant area, as may be seen from the
figure on the opposite page.
157. The shelf break is approximately 55 nautical miles from
the coast at 72N and approximately 100 nautical miles from the
coast at 76N. As an estimate it can be said that the edge of the con-
tinental margin lies less than 200 nautical miles from the coast
within the relevant area.
158. Jan Mayen is a volcanic island situated at the northern
end of a submarine feature known as the Jan Mayen Ridge, cf. the
figure on the opposite page. Water depths increase southwards
along the Ridge from Jan Mayen and reach 1,000metres at a point
about 150nautical miles south ofthe southwestern tip ofthe island.
While one does not commonly talk of a continental shelf, with a
shelf break and margin, in connection with small volcanic islands,Simplified bathymetric map of the Greenland-Jan Mayen area. Depths in metres
39one may in the case ofJan Mayen and theJan Mayen Ridge arbitra-
rily define a shelf with a shelfbreak atthe 1,000metre isobath. How-
ever, it should be noted that in the maritime area WestofJan Mayen
and north of approximately 70"N, the sea floor topography is rough,
and terms like continental rise, slope and shelfbreak are not applic-
able in this area. As for the shelf margin to the Westof the Ridge and
south of 70°N, this is within 50 nautical miles of the axis of the
Ridge, i.e. more than 200nautical miles from the east CoastofGreen-
land.
It is generally accepted in the scientific community that the Jan
Mayen Ridge was split offthe east side of Greenland when the axis
of seafloorspreading in the southern pari of the Norwegian-Green-
land Sea shifted from a position in the Norwegian Sea to ifs present
position along the submarine Kolbeinsey Ridge. This split-off
started about 30 m.y. ago, and the ocean between Jan Mayen and
East Greenland is floored by oceanic cmst formed during the last
approximately 25 m.y., cf. paragraph 203.
As is evident from the foregoing, there exists no common shelf be-
tween East Greenland and Jan Mayen.
159. The whole of Greenland has an arctic climate but owing
to the island's vast expanse there are great variations in humidity
and temperature. The ice cap makes the climate arctic even in South
Greenland where the annual mean temperature is around or below
freezing point. Even in the warmest month the mean temperature
does not rise above 10°C (50°F) which corresponds to the tempera-
ture of the timber line. Consequently there are no forests, but in the
southernmost parts there are birch shrubs with scattered patches of
Greenland rowan, and willow scrubsare seen upto 72N. With a few
exceptions, growth of cultivated plants is not profitable. Grain, for
example, cannot ripen. Another characteristic feature of an arctic
climate isthat the subsoil is frost-bound at a certaindepth. Theshort
summer leaves time for only the upper layers to thaw. This phe-
nomenon, known as permafrost, gives rise to high costs of building
and construction because instability of the upper layers of soi1en-
hances the need for foundation.
160. One of the most important mechanisms regulating the
climate and its variations is the exchange of heat between sea and
atmosphere.
The permanent oceancurrent in Fram Strait which separates North-
East Greenland from Svalbard is of vital importance for the entire
energy balance in East Greenland regions. From the Arctic OceanSEAICE
Normal distriof sea ice
JANUARY FEBRUARY MARCH APRIL MAY JUNE
JULY AUGUST SEPTEMBER OCTOBER NOVEMBER DECEMBER
Greatdwiationsfrom normal dmayoccurion
17 Elar West
ice
Source:laat unaat Gsreenlandthe ice-cold East Greenland Current runs south alongthe east coast
of Greenland until it eventually meets the warm lrminger Current,
which is a branch of the North Atlantic Current, and bends to the
West,south of lceland towards South-EastGreenland. The two cur-
rents take the same course, the East Greenland Current as a cold
surfacecurrent (the water is less salty and therefore lighter), and the
lrminger Current as a warm undercurrent (the water is saltier and
therefore heavier). lnfluenced by the rotation of the Earth the cur-
rents bend to the Westround Cape Farewell and continue north-
wards along West Greenland while gradually mingling. Both sea
and airtemperaturesare therefore higher in West Greenland than in
East Greenland, and variations in the force ofthe two currents cause
variations in temperature.
The southward flow ofthe cold East Greenland Current carries with
it enormous quantities of ice, about 6 million tons per minute. The
figure on the previous page shows the mean month-by-month dis-
tribution of compact ice and polar ice around the coasts of Green-
land.
The figure illustrates how the waters offthe northern segment ofthe
east coast of Greenland are permanently covered by compact ice.
Scoresbysund is practically unnavigable throughout the year and
the important East Greenland settlement of Ammassalik is navi-
gable only from July through October.
Compact ice and polar ice make coastal fishing ofFthe east coast of
Greenland north of Cape Brewster practically impossible for al1 12
months ofan averageyear. The icepack extends so Farseawardsthat
it coversthe disputed area for most of the year, allowing commercial
fishing within the disputed area only in late summer and early
autumn (July - September).
Section 4. EconomicStructure and Exploitation of Resources
161. Geography, demography and climate are factors of im-
portance to the economy of any developing area. In Greenland, the
influence of these factors upon the economy has been of particular
weight.
162. When looking atthe Greenland economy it must be kept
in mind that one of the most striking features in the history of the
people of Greenland is the struggle for survival in this arctic region
where a vast land area ofapproximately 2,200,000square kilometres
with a surrounding sea of about 2,000,000 square kilometres can
hardly sustain a population of about 55,000people. Every possible
resource must be relied upon, and every kind of resource exploita-tion requires a considerable amount of imagination because of the
ice conditions on land as well as in the sea, cf. paragraph 164.The
population of the north-west and eastern parts ofGreenland has de-
veloped the so-called allu-hunting i.e., hunting at breathing holes,
travelling from place to place on the ice-belt off the shores looking
for breathing holes to which the seals are drawn.
163. Arctic weather conditions coupled with the enormous
distances and the low population density have required large per
capita investments in infrastructure and communications. These cir-
cumstances similarly account for a relatively high cost level of pub-
lic services and a corresponding heavy burden on the expense bud-
get ofthe Home Rule Authority.
164. Traditional as well as modern Greenland economy has
relied on exploitation of natural resources asthe principal means of
survival and generation ofincome. The arctic climate excludes farm-
ing and most kinds of animal husbandry, and thus Greenland de-
pends heavily on fish produce and to a lesser extent on minera1 re-
sources for its export earnings.
165. Table 1below demonstrates how fish and fish products
have accounted for approximately 80 percent. of the total value of
Greenland exports in the period 1985-1988.
This high percentage makes Greenland asdependent on fisheries as
fishery-dependent Iceland and the Faroe Islands. Ore and minerals,
primarily zinc and lead, made up between 12and 18percent. of the
total export value in the sameperiod.
TABLE 1 Compositionof Exports. Valuesinmillionsof USD(current
price~)~).
Items 1985 1986 1987 1988
Fish and fish products 185 220 256 268
Ore and minerals .... 44 40 37 62
Otheritems ......... 9 12 14 II
Total .............. 238 272 307 341
Source:Q-Data. Nuuk. StarirriskeMeddelelrer.1989:l
166. Export earnings, however, are not sufficient to finance Green-
land's imports. Greenland has seen a continuous trade deficit for
many years. Table II below depicts the balance of trade in selected
years since 1970.
O,ThrouphouttheAiemoriolligurinDuni~hKmnrrho,rhrrnron,errrd,nrrUT /)O/-
ryuulledUuntrhKmnrrlDKK,ei77225pon 1June IYYY*hm Ibu US DoIlor< USD,TABLE II Greenlandk TradeBalance.Selected years between1970
and 1988. Valuesinmillionsof USD (currentprices).
1970 1975 1980 1985 1986 1987 1988
Exports ......... 13 66 135 239 272 307 341
Imports ........ 51 96 239 407 382 466 443
Tradedeficit .... 38 30 104 168 110 159 102
Source: The Prime MinisrerS Deparrmenr: Greenland Yearbook 1988.Copenhogen
Although thetrade deficit has increased considerably since 1970in
absolute figures - with a downward trend since 1985, however - it
should be noted that the growth rate of exports has by farexceeded
that of imports; in 1970the export value amounted to a mere fourth
of the import value, whereas that figure had risen to approximately
three fourths in 1988.
167. Since the export earnings of Greenland are not yet ca-
pable of sustaining the economy, Greenland has, to a very large ex-
tent, to rely on unrequited transfers from Denmark to finance im-
ports and public expenditurelO). In 1987, Danish unrequited trans-
fers totalled approximately USD 343 million, a figure almost identi-
cal with the 1988value of the entire exports of Greenland, cf. Table
II above.
168. Table III below provides a general view of the economy
of the public sector in Greenland in the year of 1987,listing the ag-
gregate income and expenses of the Home Rule Authority, the in-
come and expenses'of the municipal sector in Greenland, and the
Greenland-related expenses of the central authorities of the Realm.
'7 Unrequired rrons/err include direci paymenrs ro Greenland brancher of the Central
Aurhoriries o/rhe Realm. block10the Home Rule Aurhoriry. nndsubridies ro
"or rronsferred Io Home Rule, whereor theblockgranrsjinonce rheoperorionr o/theî
Home RuleAurhoriry in rrans/erredjields. ~Jporag-a126.TheHome Rule
Aurhority enjoyscompletefieedom in allocaring theblockgmnrs rospect~cpurpses.
Wirh the gradurrons/ero Home Rule. rhe Danish Srore's direcr poymenrr have
decreasedwhileblockgranrs haveincreased. TABLE 1111987incomeand expenditure oftheHomeRuleAuthority.
1987 incomeand expenditure of the municipalsector in Greenland,
and the 1987Greenland-relatedexpenditureofthe centralauthorities
of the Realm. Valuesinmillions of USD (currentprices).
1987
A. TheHome Rule Authority
1. Totalincome ....................... 370
lncome tax and duties ............ 105
Blockgrants .................... 174
Otherincome ................... 91
2. Totaloperating and capital expenditure . 435
3. Deficit ............................. 65
B. The municipalsector in Greenland
1. Total income ....................... 215
Municipal taxes ................. 114
Blockgrants and directpayments .'. 91
Other income ................... 1O
2. Totaloperating and capital expenditure .
3. .Surplus ............................
C. The centralauthoritiesofrhe Realm
1. Total Greenland-related expenditure
(unrequited transfers) ................
Block grants to the Home Rule
Authority and the municipal sector . 186
Operating and capital expenditure
in fields not transfemed to Home
Rule ........................... 157
Source: Reporton the Economic Developmenreenlandin 1988.submitredbythe
AdvisoryCommitteon the Economyof Greenland,the Rime Minister'sDe-
partment.Copenhagen.
169. In addition to Danish disbursements the Home Rule
Authority has secured the necessary funding for its operations
through raising Danish-currency loans in mortgage banks in Den-
mark. In 1988,the Lnndsstyre,obtained foreign-currency loans in
commercial banks abroad in the amount of USD 150million.
170. Finally, the overall size of the economy of Greenland
may be illustrated by Table IV below depicting Greenland's Gross
Domestic Product, Gross National Product, and Gross National In-
come.TABLEI V GrossNationalIncomeofGreenland.Selectedyears 1984.
1986,1987. Currenrprices inmillionsof USD.
1984 1986 1987
1. Gross Domestic Product ..... 530 618 70 1
2. Indirecttaxes .............. 32 43 58
3. Subsidies .................. 53 14 14
4. Gross National Product in
market prices (+ 2-3) ....... 509 647 745
5. Wages, dividends, and inter-
eststo abroad (net).......... 37 52 52
6. Gross National Income in
market prices (4-5).......... 472 595 693
7. Unrequited transfers from
abroad .................... 340 340 372
8. Gross National Income, dis-
os able(6+ 7). ............. 812 935 1,065
Source:Q-Data. Nuuk.StatistiskeMeddelelserond91989:3
The relatively high Gross National lncome figure belies the actual
scarcity of financial resources in Greenland. Greenland's economy
is still very much in a stage of development with unusually large
capital-intensive investment requirements. The majority of these
public and commercial investments, e.g. in housing, educational
and health systems, supply of goods, public fisheries industry and
fishing vessels, etc., are undertaken by the public sectorthat plays a
predominant role in the economy of Greenland.
171. The cost level for investments in construction and engi-
neering projects is considerably elevated in Greenland due to the
complete dependence on imported materials, high transportation
costs, and difîïcult climatic and environmental conditions.
172. Similarly, the maintenance of a satisfactory level of pub-
licservices requires additional expenditure in Greenland,ecause a
fairly small population lives scatteredover extremely longstretches
of coast in small villages and towns accessible only by ship or heli-
copter.
173. During the 20th century Greenland fishing activities
have developed from small-scale fishing from kayaks and other
primitive boatsinto an industrytilizing modernequipment, includ-
ing large sea-going trawlers and other highly specialized vessels.Major investments have been made not only in order to build up an
efficient fishing fleet but also to construct new, and improve exist-
ing, on-shore facilities such as fish-processing plants.
174. Todaythe Greenland fisheries sector employs about one
fourth of the labour force and accounts for approximately 80 per
cent. of the total export earnings, cf. paragraph 165.Merely to Say
that Greenland is dependent on the natural resources of the sea is
not sufficiently emphatic. The fact is that the development of the
fisheries sector is decisive for the development of thentire Green-
land economy.
175. The fundamental prerequisite for the development of
any fisheries sector is the existence of exploitable fish stoFortu-
nately, many lucrative fishing grounds are to be found in the seas
surroundingGreenland.This fact has attracted many foreign fishing
vessels for decades. In order to preserve the fish stock an annual
total allowable catch (TAC) is established for each of the economi-
cally interesting species on the basis of marine biological advice.
176. Effective from 1 Febmary 1985legislative competence in
fishery matters was transferred to the Greenland Home Rule
Authority. The Home Rule allowed for such transfer ofcompetence
as early as 1979,but this competence was exercised by the EEC and .
could not be transferred to Greenland for independent exerciseuntil
after Greenland's withdrawal from the EC.
177. Simultaneously with the Treaty on Greenland's with-
drawal from the EC, a ten-year Agreement on Fisheries was con-
cluded between Denmark/Greenland and the EEC (Annex 21).The
Agreement, dated 13March 1984,envisages the conclusion of sup-
plementary protocols. A Protocol of the same date regulates fishing
by EEC vesselsin Greenland waters, including what speciesmay be
fished, what catch possibilities are allotted to the EEC, and whafi-
nancial compensation Greenland should receive from the EEC for
fishing rights granted to the EEC. Under the five-year Protocol, ex-
piring on 31 December 1989,Greenland has received annual pay-
ments from the EEC in the amount of USD 27.5 million.
In recognition of Greenland's economic dependence on fisheries
the above-mentioned Agreement on Fisheries and supplementary
protocols guarantee Greenland minimum quotas if biological cir-
cumstancesfora givenfishing yearrequire TACSto be fixedbelow a
certain level. Insuch cases the EEC quotas will be fixed at a level
below the quantities fixed in the Protocol, without this reduction af-
fecting the level ofGreenland's annual remuneration, cf.Anicle 7of
the Agreement on Fisheries. 178. The Commercial Fisheries Act of the Landsring,No. II
of 21 November 1984(Annex 22)empowers the Landsstyreto estab-
lish annual TACs and quotas based upon marine biological advice.
The TACs and the quotas for 1988are contained in the Greenland
Home Rule Executive Order No. 27of 1December 1987(Annex 23).
The Order reflects that the most valuable species (cod, shrimps and
Greenland halibut) in the waters off West Greenland are largely
resewed for Greenland fishermen. In East Greenland waters, non-
Greenland fishing vessels (including those of the European Com-
munities) have been granted larger quotas, but primarily for species
that Greenland itself has not yet been able to exploit to any major
extent.
179. Greenland's share of total catches in Greenland waters
has shown an upward trend in recent years with the 1987Greenland
catch accounting for 85percent. ofthe total againstonly 62percent.
in 1984.
The increasing capacity of the Greenland fishing fleet is illustrated
in Table Vbelow listing the total tonnage of the Greenland fishing
vessels.
0
TABLE V Total tonnageof registeredfishing vesselsin Greenlandof
20 GRTor more.
1984 1985 1986 1987 1988
Tonnage.. ... ......... 24.457 28.787 32.817 33,465 39.970
Source: 7heDonishYenrbookon Fisheri1984- 1988.
THEFISHING FOR CAPELIN
180. At present capelin is the only fish that is being commer-
cially exploited in the disputed area. As the economic potential of
the capelin fishing is substantial, the issue of the exploitation of the
capelin stock has played an important role during the negotiations
between Denmark and Norway concerning the maritime delimita-
tion in the present case, cf. Part 1,Sectio2.
181. Capelin is a species which is used primarily for produc-
tion of fishmeal and fish oil. However, the population of the small
communities on the east Coastof Greenland has a long tradition of
using capelin for human as well as animal consumption, cf. Annex
24 on the role of capelin in the traditional Greenland society.
182. Capelin is a migratory fish with a life span of-34 years.
The relevant capelin stock is found within the economic zone of Ice-
land and the fishery zones of Greenland and Jan Mayen, includingthe disputed area. The migratory pattern of the capelin varies greatly
with the climatic conditions but may in very general terms be de-
scribed as follows:
The three-year-old capelin spawn off the south Coast of lceland in
the months of March and April"). The young capelin remain pri-
marily in lcelandic waters, the one-year-olds spending the months
of May through August inside the Greenland fishery zone. In sum-
mer and autumnsome of the two and three-year-old capelin expand
their migratory range to include the waters between Greenland and
Jan Mayen. These fish return to lcelandic waters in October where
they stay until March when the majority spawn at the age of three
years and die.
The migratory routes of two and three-year-old maturing capelin
during the year is shown in the figure below.
BJAN MAIEN
") Capelin olsospawnin rhejiords ofEasr Greenland.especiallyin rhe Ammassalik
regionl"Ammassalik"meanscapelinplacein Greenlandic).burir remoinsuncerrain
Io wharexrenrrhio connecrionbernsrhesrock.~.
49 183. Capelin is considered to be commercially fishable at the
age of 31 - 39 months. It is estimated that during the period from
July to September over half the fishable stock is outside the Icelan-
dic economic zone, part of this adult stock migrating to thedisputed
area between Greenland andJan Mayen, cf. the figure below show-
ing the typical geographical distribution of juvenile and adult
capelin during feeding season.
Horizontal shading: adults Vertical shading: juveniles
68.
66'
64.
184. Even though ice conditions prevent coastal fishing off
East Greenland practically throughout the year and in the disputed
area for a good part of the year, cf. paragraph 160,there is accessto
the disputed area during the months of July through September,
making it one of the most important fishing grounds for summer
capelin.
185. From the early 1960sthrough the mid-1970s capelin was
fished commercially only off the coasts of Iceland, and purely by
lcelandic fishermen. In the late 1970s Norwegian and Danish ves-
sels commenced fishing capelin in the waters between Greenland
and Jan Mayen. 186. Total annual and seasonal catches of capelin in the Ice-
land - Greenland /Jan Mayen area are shown in Annex 25. In 1987
the total catch ofcapelin amounted to about I million tonnes.
187. Catches ofcapelin in Greenland fishingterritory off East
Greenland from 1981up to and including 1987,as reported to the
Danish authorities, are listed in the table below which shows the
combined Greenland, Faroese and EEC catches.
TABLEVICombinedGreenland.Faroese and EECcarches ofcapelin
in tonnes.
1981 82. 83. 84 85 86 87
Total ....... 23,473 O O 14,177 81,242 69,690 66,342
* Corcherno1allowedhecauseofrhebiologiealsrarurofrhesrock.
The Danish authorities are not in possession of reports on Nor-
wegian or lcelandic capelin catches within the disputed area.
188. At present, exploitation of the fishing resources in
Greenland waters is the only way in which Greenland in the fore-
seeable future can achieve a higher degree of economic indepen-
dence. The Home Rule authorities aim at building up fishing and
production capacities which will be adequate to meet that goal.
Throughout the years the fisheries sector as a whole has suffered
substantial losses and been dependent on considerable public sub-
sidies. To reverse this trend the Home Rule authorities have focused
on modernizing the production machinery, on gearing investment to
availability of resources and,taught by history, on not relying solely
on one species which has proved to be vulnerable to climatic
changes.
189. The preliminary goals set for exploitation by Greenland
alone of the resources within Greenland's fishing zone have been
realized to a great extent. A further development of fisheries in
Greenland waters requires continued technological development
and exploitation of al1potential resources in the form of either fish-
ing from own vessels or selling fishing rights under agreements with
other countries.
190. Exploration for and exploitation of the non-living re-
sources of Greenland have been carried out since the middle of the
19thcentury.Many varieties of ore and minerals have been extracted at various
locations in Greenland during the years, e.g., lead, zinc, coal and
cryolite. However, the majority of the mining activities have now
ceased, and today only one mine is in operation, namely the "Black
Angel" lead and zinc mine in the municipality of Uummannaq. This
mine hasbeen almost exhausted, however, andthe "Black Angel" is
expected to close down in 1990.
191. Several attempts have been made to find new deposits of
exploitable non-living resources in Greenland. Thus, exploratory
activities are camed out for hard minerals as well as for hydrocar-
bons.
192. At present, on-shore exploration for hydrocarbons is
being carned out in Jameson Land in East Greenland in an area of
10,000square kilometres. Seismic surveys were initiated in Jameson
Land in 1985.
With a viewto providinga basis fordecision-makingconcerning fu-
ture oil exploration activities in paris ofGreenlandother than Jame-
son Land, itis planned during the next sixyears to carry out a recon-
naissance survey of off-shore oil potential. This project covers col-
lection, processing, interpretation, and sale of about 13,500line ki-
lometres of new seismic data collected on shelf areas off the West
and east coasts of Greenland, 8,500 kilometres off North-East
Greenland and 5,000kilometres off West Greenland.
It isstill too early to tell whether exploration activities in Greenland
will result in the discovery of deposits of exploitable non-living re-
sources which inthe future may contribute to the development ofthe
Greenland economy.
193. The exploration activities in Greenland are carried out
partly by the public sector and partly by private enterprises on the
basis of licences and concessions. The concessions were formerly
granted solely by Danish authorities, but following the introduction
of a new scheme for the administration of mineral resources in
Greenland in 1979,granting of concessions and licences and al1
other substantial decisions regarding mineral resources in Green-
land are contingent on agreement between the Danish Minister for
Energy and the Greenland Landsstyre12)
'*inrludingthene6oagrremrnr on dt>rrihurtofpuhlii. rebenuebelnern Greenlund
anJ Denmark. </: Ihe AdniinnrrrurianoJ~AiinHe~<~urrrir Greml<ind1Anne.r
26 unilArr No Shi ui2GNoirmher 19790" Miner"/Hrcriuri.err.inGrernlund.
or omrnd~dh~ACINo. 844 0/21DecemberIMS(Annex 27, A: TREATYOBLIGATIONS
OF THE PARTIESINTER SE
CHAPTER 1
THE 1965AGREEMENT BETWEEN
NORWAY AND DENMARK
172. In theDanish Reply (p. 126,para. 337),the Norwegian
line of argument is summarized briefly and adequately. In the
following paragraphs of the Reply, attempts are made to show
that Article 1 of the 1965Agreement does not have that general
and dispositive meaning which follows from its simple and
straightforward wording. It should be noted, however, that the
Reply does not seek to refute the contention that the language of
Article 1 is clear and unequivocal in its content and general and
unlimited in its application.
173. Instead, the Reply seeks to rely upon thees of treaty
interpretation, and emphasizes thcontextof the terms of a treaty
in the light of its object and purpose.
174. It should be noted that part of this context is the
Danish Royal Decree of 7 June 1963concerning the continental
shelf, with itssolute statement on median linedelimitation. The
context is characterized by Denmark's concurrent involvement in
other boundary negotiations, leading up to the signature of
Agreements with the United Kingdom and theNetherlands within
lessthan four months. The viewsof Denmark on that context are
clearly set out in pleadings before the Court in theNorth Sea
Cases, (below, p. 69, para. 231, and p. 71, para. 237).
175. Denmark complains that Norway is attempting to
"isolate" Article 1 of the 1965 Agreement, and appears to
maintain that the general tenor of Article 1must be read with, and
in the light of, themore specific language of Article 2, setting out
the precise coordinates for the establishment of the continental
shelf boundary in the North Sea.
176. Article I of the Agreement is general in scope and
provides for the delimitation of al1areas of continental shelf which
may fall to be delimited as between the Parties, whereas Article 2
fulfils the function of setting out the location of the houndary inthe North Sea by identifying its terminal points and the turning
points by the geographical coordinates, in a process which has
been described as "demarcation". The specificity of Article 2
related ta the particular boundary then being delimited, but the
generality of Article 1 was not limited or affected by it. In fact, if
the scope of Article 1is limited to the area expressed in Article 2,
why was it necessary to have Article 1 at all?
In paragraph 339 of the Reply, it is stated flatly that
177.
"this is wrong". Relying on Basdevant's Dictionnairede la Termi-
nologiedu Droit Inrernaiional,it is maintained that:
"demarcation is a material and technical operation ... by
means ofboundary markers in the case of a land frontier and
by lights and buoys in a maritime boundary."
178. In the seminal work on International Boundarie -s A
Study of BoundaryFunciionsand Problems(New York, Columbia
University Press, 1940),at page 32, the origin of the authority on
which Denmark relies is given. It appears that A. Henry
Mc Mahon, writing in 1935,found that it was annoying that the
terms "delimitation" and "demarcation" often seemed to be used
interchangeably. Instead, he arbitrarily suggested a distinction
which corresponds ta the differentiated meanings offered by
Basdevant.
179. An alternative usage appears, however, to apply these
tems ta the process of international boundary drawing in a more
sophisticated manner. The most recent edition of Nguyen Quoc
Dinh's standard work" deals with boundary-making as a three-
phase operation, involving the following distinctive elements:
"L'opération complètede déterminationde la ligne frontière
sedécomposeen plusieurs phases. La premièreest cellede la
délimitation,opération juridique et politique qui fixe l'é-
tendue spatiale du ou des pouvoirs étatiques. La seconde est
la démarcaiiono , pération technique d'exécution quireporte
sur le sol les termes d'une délimitation établie.La troisième
")with PatcickDaillierand Alain PelleInrernarioPublic.3èmeédition, Pans,
LibrairieGénérale de Droiett de Jurisprudence,29. et ultime phase consiste dans I'abornement,opération qui
matérialisela frontière sur le terrain par des repèresconve-
nus (bornes, piquets etc.)."
180. This three-phased conception of the boundary-drawing
seems to be consistent with the current practice of the Secretary-
General of the United Nations. In a recent report to the Security
Council on the establishment of a Boundary Demarcation Com-
mission to carry out certain tasks relating to the international
boundary between Iraq and KuwaitI2, it is stated:
"The terms of reference of the Commission will be to
demarcate ingeographical coordinates of latitude and longi-
tude the international boundary set out intheAgreedMinutes
between Kuwait and Iraq referred to above". ...
"The demarcation of the boundary ..will be accomplished
by drawing upon the appropriate material, including ...(a)
map ...
"The physical representation of the boundary will becarried
out through the erection of an appropriate number of
boundary pillars or monuments." (emphasis supplied).
181. It is submitted that this usage isentirely consistent with
the contention that Article 1 of the 1965 Agreement between
Nonvay and Denmark had the primary function of effecting the
first stage of delimitation. This provision States in unambiguous
terms that "[tlhe boundary ...shall be the median line ...".This
normative statement must be held to apply wherever and when-
ever parts of the continental shelf appertaining to Norway and
Denmark fall to be delimited. There is no geographical restriction
linked to this provision, and the preamble of the Agreement isalso
broad and general.
182. Article 2 was designed to demarcate the median line
within a specific geographical location, i.e. in the North Sea, by
specifying the coordinates for the terminal and turning points for
that median line. This demarcation would also incorporate sucb
adjustments as may be desirable "to arrive at a practicable
application of the principle referred to in Article 1 ...".
12ReportO/rheSecreiory-CeneralRegardingPurugrapO/SeeuriryCouncilResoluiio,t
687 (1991). U.N. Doc. S/2255May 1991.
I3)AgreeMinutesin UnitedNorions T?eolySeric.~,VolNo. 7063p321,1964 183. It should be noted that the technical difficulties which
arise in boundary-making in sandy desert regions (to which the
Secretary-General's Report refers) are not unlike those obtaining
in maritime boundary-making.
184. It should also be noted that in certaincircumstances, it
isnecessary to establish a "third phase" even for continental shelf
boundaries. A "physical representation" may take the simple
form of markings on an installation straddling a boundary (which
is the case in the three unitized fields operated across the shelf
boundary between Norway and the United Kingdom). In other
circumstances, it may be desirable to provide a precise, physical
representation of the boundary in the fom of sub-sea markers
(which may be supplemented with electronic identifiers).
185. Alternatively, finely specifieddescriptions of the actual
location of a shelfboundary may be givenby defining it in relation
to one or more positioning systems, with or without reference to
physical installations ormarkers. Such definitions willhave a high
degree of precision, and will assist greatly in determining the
physical location ofany point of the boundary within a margin of
some decimetres. Such a description of the boundary would,
however, be more detailed than would be considered necessary -
or even useful - for the second-phase demarcation of a boundary.
But a description of this level of precision might serve an
administrative purpose in establishing the exact location of a
boundary tri-point, or technical purposes in relation to an off-
shoreinstallation and itsemplacement, or for the determination of
the allocation of the respective shares of a resource deposit
straddling a boundary.
186. In these contexts, a detailed description would corre-
spond to the physical representation of the boundary in its
physical environment.
187. Indeed, in 1965there was every reason for both Parties
to emphasize their attachment to the median line as the primary
nom for continental shelf delimitation by setting out a general
statement to the effect that:
"[tlhe boundary between those parts of the continental shelf
over which Norway and Denmark respectively exercise
sovereign rights shall be the median line ...". 188. In the same manner, the unqualified and unambiguous
statement of a general nom for the delimitation of adjoining
continental shelf areas served to establish certainty and predict-
ability in the relations between the Parties.
189. The Norwegian Government remains confident in its
viewthat Article 1of the Agreement of 1965sets out a general and
dispositive norm governing the delimitation of al1areas of conti-
nental shelf which would fall to be delimited as between Norway
and Denmark. This norm reflects the common views - the opinio
juris - of the Parties with regard to the tenor of the noms of
general international law, corresponding exactly with the provi-
sions of proclamatory instruments of both Parties defining their
respective continental shelves and the extent of their claims. The
1965Agreement makes no reference to any exceptions from the
general nom, and contains no proviso allowing for a departure
from it in the case of the continental shelf areas between Jan
Mayen and Greenland.
190. The Danish Reply reiterates (at p. 28,para. 71)that "...
there exists no common shelf between East Greenland and Jan
Mayen". Thiscontention isqualified as "a statement of geological
fact". The contention isirrelevant. As a matter of law, a statement
of geological science is in no way conclusive for the purpose of
determining the extent of coastal State jurisdiction and exerciseof
sovereign rights with respect to the continental shelf and its
resources.
191. The definition of the continental shelf for juridical
purposes has never been a mechanical reflection of concepts,
teminology or definitions applied within the science of geology.
In the TunisialLibya Case, the Court noted that:
"...at a very early stage in the development of the continen-
tal shelf as a concept of law, it acquired a more extensive
connotation, so as eventually to embrace any sea-bed area
possessing a particular relationship with the coastline of a
neighbouring State, whether or not such an area presented
the specificcharacteristics which a geographer would recog-
nize as those of what he would classify as 'continental shelf.
This widening of the concept for legal purposes, evident
particularly in the use of the criterion of exploitability for
determining the seaward extent of shelf rights, is clearly
apparent in the records of the International Law Commis- sion and other travaux préparatoires of the 1958 Geneva
Convention on the Continental Shelf." (I.C.J. Reports 1982,
p. 45, para. 41).
The Court goes on to comment that:
"...the definition [in Article 1 of the Convention on the
Continental Shelflof the outer limit of the shelf by reference
to the possibility ofexploitationofthe sea-bed ..emphasizes
the lack of identity between the legal concept of the conti-
nental shelf and the physical phenomenon known to geog-
raphers by that name." (I.C.J. Reports 1982 p. 44-5, para.
42).
192. It should be recalled that the definition of the conti-
nental shelf in Danish legislation restates the double criteria of
Article 1of the 1958Convention (Article 1of Royal Decree of 7
June 1963,Counter-Memorial Annex 29). The Norwegian defini-
tion of the shelf was, until the Act of 22 March 1985relating to
Petroleum Activities, solelybased on thecriterion of exploitability
(Royal Decree of 31 May 1963, Annex 21, and Act of 21 June
1963,Annex 22). There is thus no doubt that both States applied
a definitional criterion which was divorced from geology, and
which carried with it an automatic expansion of the area claimed
for the exercise of coastal State sovereign rights, as technical
capabilities for exploitation progressively developed.
193. The Norwegian Government was fullyconscious of the
effects of the "variable" or "movable" criterion for defining the
national area of continental shelf. Thus, in 1974,the Norwegian
Minister responsible for petroleum affairs made representations to
the United States government agency responsible for deep subsea
drilling operations carried out for scientific researchpurposes on
the Voring Plateau by the drillship Glomar Challenger. In a letter
to the U.S. National ScienceFoundation dated 2 December 1974,
the Minister for Industry stated that the Norwegian Government
held the view that offshore areas in water depths from 1,206
metres to 1,439 metres, at a distance of between 130 and 162
nautical miles from land, were part of the Norwegian continental
shelf. On that basis, it wasfound "highly regrettable" that drilling
operations had taken place without the required permission
(Annex 86).
194. On the basis of the views demonstrably held by Nor-
way at that time, and expressed internationally in defence of
Norwegian interests, it may safely be concluded that Norway atthe same time also held the view that the seabed between Jan
Mayen and Greenland would be subject to the sovereign rights
and jurisdiction of the two coastal States. Whether the nature of
the subsoil rock was oceanic or continental was recognized to be
irrelevant.
195. In paragraph 342 (p. 127) ff. of the Danisb Reply,
reference is made to the subsequent 1979 Agreement specifying
the course of the contiiicntal shelf boundary and the EEZ fisheries
zone boundary in relation to the region bëtween ~orway and the
Faroe Islands. The Reply quotes comments in the Nonvegian
Proposition to the Storting as an acknowledgement that the 1965
Agreement did not relate to any shelf areas beyond the southern
part of the North Sea and the Skagerrak.
196. That assumption is not justified. The text of the
Proposition (as quoted in the Reply) makes an initial statement
that the 1965 Agreement concerned "the delimitation of the
continental shelf between the two States". That corresponds
entirely tothe Norwegian position that this agreement was general
in nature, and related to al1areas of continental shelf falling to be
delimited. The Proposition goes on to state that "the Agreement
did not coverthe delimitation of the continental shelf in the area
between Norway and the Faroe Islands." (emphasis supplied). An
explanation is offered: Norway did not at the time wish to open
this part of the continental shelf to exploitation. That is theme
reasoning which caused the 1965Agreement between Nonvay and
the United Kingdom (Counter-Memorial, Annex 44) to halt the
dividing line, for the time being, at thelatitude of 61"44'12"N.The
context makes it clear that in presenting the 1979Agreement to
the Norwegian Parliament, the substantive connection with the
earlier negotiation was clearly borne in mind.
197. It may well be that it would have been more elegant to
record this further demarcation of shelf and zonal boundaries by
the adoption of a Protocol to the 1965Agreement (avoiding, for
instance, the need to restate the substance of the existing unitiza-
tion clause). But that does not detract from the fact that the 1979
Agreement follows exactlythe pattern of the previous instrument,
by positing the goveming nom in Article 1, and setting out the
specifics of the demarcation in Article 2. The additional elementwas the wish of the Parties to provide for delimitation of the
200-mile economic zone and fishery zone. No controversy was
perceived, but the new element transcended the scope of the 1965
Agreement.
198. At any rate, at the time when negotiations for the 1979
Agreement commenced, the task was seen as a simple and mainly
technical operation. Only administrative conveniences appear to
have played a part in choosing the form of an independent
instrument. No other considerations were present. The technical
calculations for the demarcation of thealready established median
line were carried out and accepted by both sides in less than six
months.
199. Paragraph 344 of the Danish Reply refers to the fact
that "for the time being", the Parties did not wish to establish the
boundary beyond 200 nautical miles from their baselines. It is
suggested that this implies an acknowledgement by Norway that
the 1965 Agreement did not apply in this region. The simple
explanation is of course that in 1979,there was still good reason
to avoid action which might be seen to discount ongoing negoti-
ations at the Third United Nations Conference on the Law of the
Sea. At the same time, any extension of the bilateral boundary
beyond a point 200 nautical miles distant from the coasts of each
Party would require technical inquiries which it might, for the
time being, be impractical to carry out. The statement in the third
preambular paragraph of the 1979Agreement that:
"for the time being, [the Parties] will not establish the
boundary farther north than to the point which lies 200
nautical miles from the nearest point on the baselines ..."
thus in no way implies a retreat from the statement of the 1965
Agreement, reiterated in Article 1of the 1979Agreement, that this
boundary will be the median line whenever the Parties find it
necessary to demarcate it.
200. The Government of Denmark complains (at p. 130,
para. 350 of the Reply) that the 1965 Agreement was not put
forward in argument by the Norwegian side in the course of the
negotiations and contacts which took place between the Parties in
the years between 1980and 1988. 201. That might have been an apposite complaint had it
related to pleadings before a judicial body. In relation to a
diplomatic negotiation between two friendly Governments it is
not. After 1983,in particular, the aim of the Norwegian Govern-
ment was to seek a mutually acceptable practical solution. The
practical issues relatedoverwhelmingly to fisheries, as well as to
sealing and whaling. Jurisdictional and resource questions specif-
ically relating to the continental shelf were not prominent.
202. This context called for diplomatic techniques, not for
strident advocacy. However, concerns of political expediency and
diplomatic tactics are not pertinent at the present juncture, since
Denmark has chosen to seek ajudicial determination, rather than
continuing the negotiation efîort. Denmark has no valid com-
plaint if Nonvay now invokes the legal effects of a prior treaty,
with its clear and specific implications, even if Norway for
political and diplomatic reasons did not draw upon that treaty as
an element in negotiations. CHAPTERII
THE 1958 CONVENTIONON THE CONTINENTALSHELF
203. In the Danish Memorial, the 1958Convention on the
Continental Shelf is referred to at pages 59-64 (paras. 210-219).
Initially, it is acknowledged that the Convention remains in force
as between the two States (para. 210).
204. After citingvarious Judgments of the Court (and that
of the Anglo-French Court of Arbitration), it is stated (p. 63,
para. 218) that:
"[olne cannot, however,claim that Article 6 expressesa rule
of customary international law governing al1maritime de-
limitations today, suchas for instance delimitation of fishery
zones."
205. After having quoted the Chamber of the Court in the
GulfofMaine Case (I.C.J. Reports 1984, p. 303, para. 125),the
Memorial concludes, however, that:
"[iln the present case concerning a single line ofdelimitation
both for a fisheryzone and a continental shelfarea, it is the
contention of the Government of Denmark that the appli-
cable principlesand rules are those having found expression
in the 1982United Nations Convention on the Law of the
Sea." (Memorial, para. 219).
206. In its Counter-Memorial, the Norwegian Government
contended that in respect ofthe continental shelf between Green-
land and Jan Mayen, Denmark continues to be bound by its
obligations under the 1958Convention on the Continental Shelf
(pp. 84-86,paras. 293-301).
207. In its Reply (p. 163, paras. 447-448), Denmark now
admits, in asomewhat subsidiary manner, that delimitation is not
necessarily to be considered under the exclusiveperspective of a
singlemaritime boundary ("It could alsohave been considered to
develop the legal argument in respect ofthe continental shelf and
the fishery zone respectively"). On that basis, it islirmed that
the 1958 Convention is in force between the two Parties, and
acknowledged that "the equidistance/special circumstances rule
contained in Article 6 ...would be the governing norm deciding
the boundary line for the shelf '. 208. This acknowledgement dispels the illusion that the
legal relationship between the Parties in relation to the delimita-
tion of thecontinental shelfis based exclusivelyon customary law.
The 1958Convention is directly applicable to the delimitation of
the continental shelf between the Parties.
209. The acknowledgement also serves to recall that the
present proceedings are not based on any procedural arrangement
which might affect the competence of the Court, or extend or
restrict the sources of law to which it should have recourse, or
otherwise specifying the functions of the Court.
210. In the Guifof Maine Case, the Chamber expressed that
it:
"therefore takes the view that if a question as to the
delimitation of the continental shelf only had arisen ...there
would be no doubt as to the mandatory application of the
method prescribed in Article 6 of the Convention, always
subject, ...to ..recourse ...to another method or combina-
tion of methods where special circumstances so require."
(I.C.J. Reports 1984, p. 59, para. 118).
211. The Chamber concluded, however, that its function
was not to provide a delimitation of the continental shelf alone.
The Chamber accepted the fact that the Parties, in their Special
Agreement, had defined the judicial function in a manner which
required thedrawing of a singledelimitation line for both the shelf
and the superjacent fisheryzone (ibid., para. 119).This conclusion
inspired the Chamber to concentrate its consideration on those
legally relevant factors which were equally applicable to both the
shelf and the fishery zone.
212. In the present proceedings, there is no Special Agree-
ment, and one Party alone has requested the Court to determine
a "single maritime boundary". In this connection, it may be useful
to recall the comment of the Chamber in the Guifof Maine Case
to the effect that:
"even the 1982 United Nations Convention on the Law of
the Sea, which is not yet in force ..still does not provide for
the delimitation of both objects by a single line ..."(I.C.J.
Reports 1984, p. 49, para 84). 213. In assessing the import of the 1958Convention on the
Continental Shelf, by which the Parties are bound, the first
consideration is whether the Parties have acted in a manner which
could have modified or affected the operation of the provisions of
the Convention.
214. The 1965Agreement was negotiated in full knowledge
of the 1958Convention. Both Parties had modelled their domestic
legislation and their international policy on the Convention,
which both regarded as an expression of codified customary
international law. The Convention had entered into force (on 10
June 1964) before the conclusion of the 1965 Agreement. Al-
though Norway, for reasons which had nothing to do with
delimitation, did not adhere to the 1958 Convention until 1971,
the 1965Agreement is in conformity with the Convention. The
conclusion of that Agreement conforms with the prirnary norm
for the delimitation ofthe continental shelf as set out in Article 6,
paragraphs 1and 2, namely that theboundary shall be determined
by agreement between the Parties. The 1965 Agreement is an
instance of application of the principles of the 1958Convention,
even though it was not at the time formally in force for Norway.
That temporal coincidence could not have the legaleffect that the
1958Convention as /ex posterior should override the 1965Agree-
ment, as suggested in the Danish Reply, at page 129(para. 345).
215. On the contrary, as the specificinstrument, in applica-
tion of the pre-existing general Convention of 1958, the 1965
bilateral Agreement must be seen as governing the relationship
between the Parties. Article 1of the Agreement must be read as a
confirmation that the Parties recognize that there are no special
circumstances which could affect continental shelf delimitations
between them.
216. As stated in the Counter-Memorial (p. 86, para. 300),
it is the viewofthe Nonvegian Government that the provisions of
Article 6 of the 1958Convention are to be applied in the light of
the 1965Agreement, and thus the two treaty obligations operate
conjointly. Invocation of the occurrence of a special circumstance
has been precluded by the generality of Article 1 of the 1965
Agreement.
217. It is thecontention of the Norwegian Government that
the 1958Convention applies to the delimitation of thecontinentalshelf as between the Parties in the region between Jan Mayen and
Greenland, in the light of the 1965 Agreement. The Agreement,
read with the Convention,constitutes a recognition that no special
circumstance exists in areas in which the continental shelf would
fall to be delimited as between the Parties. Alternatively, the
Agreement implies that the Parties have renounced the proviso of
Article 6, paragraph 1 of the Convention, relating to special
circumstances, or have otherwise determined that it is not opera-
tional.
218. The conclusion, as stated in the Norwegian Counter-
Memorial (p. 86, para. 301),is that the median line constitutesthe
boundary, and that Denmark is bound by the Convention not to
exerciseany jurisdiction with regard to anypart of thecontinental
shelf to the east of the median line.
219. Alternatively, if the implications of the 1958Conven-
tion for the delimitation of the continental shelf between the
Parties were to be contemplated in isolation from the 1965
Agreement, the legal effects would be considerably different from
what is suggested in the Danish Reply at page 163(para. 448).
220. In the uncomplicated coastal geography of Jan Mayen
and Greenland, with no intruding or distorting extraneous fea-
tures, there are no "special circumstances" within the meaning of
the 1958 Convention. Denmark has nonetheless suggested the
existence of special circumstances.
221. Within the scope of Article 6, paragraph I of the 1958
Convention, the first stepin an examination of the Danish claims
would be to determine whether any geographical situation, or any
factor invoked in support, would in fact correspond to a "special
circumstance" within the meaning of the Convention. The next
step would be to assess whether the impact of any single such
circumstance, or of an aggregation of such circumstances, might
be of a nature to "justify" a departure from the median line.
(a) Denmark'sInvocation of "Special Circumstances"
in the Repiy
222. Neither the Danish Memorial nor the Reply provides
any substantial attempt at identifying those conditions whichDenmark considers as constituting "special circumstances" within
the meaning of the 1958 Convention. There is no reasoned
attempt to substantiate the position that any particular condition
has such an effect on the drawing of a median line that "another
boundary line is justified".
223. Instead, the Government of Denmark is content to
make some vague allegations about the legal contents of the
special circumstance clause.
224. At pages 163-164(para. 448) of the Reply it is stated
that:
"[oln the basis of'the 1958Convention the Govemment of
Denmark could plead along the same lines as in the Memo-
rial and this Reply in support of a contention that the island
of Jan Mayen, par excellence,falls within the concept of
'specialcircumstances' and should be given no effect on
Greenland's 200-mile continental shelf area." (italics in
original).
225. This assertion statement amounts to saying that Jan
Mayen is a special circurnstance unto itself. But the language of
Article 6, paragraph 1of the Convention would appear to require
that any alleged special circumstance, and its effect, must be
considered inrelatioto a median line boundary, as drawn wifhouf
regard to the feature or condition cited as a special circumstance.
226. There is, in the system of the 1958Convention, no such
thing as a self-defining special circumstance per se. It must be
demonstrable that thefeature or condition has an untoward effect
on the drawing of a median line. For a special circumstance to
taken into consideration, it is a further requirement that this
untoward effect be of sufficient impact on the total picture of the
delimitation to be effected, so as to offend against a certain
minimum standard of what is considered equitable.
227. The suggestion that Jan Mayen as such and of ifseIf
should be considered as a special circumstance, and that the
consequence of that consideration should be to disregard the
island entirely for the purpose of delimitation, is self-defeating. It
is incompatible with the statement in the Reply (p. 152,para. 414)
to the effect that "[tlhe Governrnent of Denmark does not,
however, question Jan Mayen's status as an island under interna-tional law ...",referring further to the fact that Denmark did not
object to the establishment of Jan Mayen's fishery zone "to the
east towards the open sea."
228. Where the practice of the Court has rejected a factor or
situation asnot constituting a relevantcircumstance in cases where
Article 6, paragraph 1, of the 1958 Convention did not apply,
these holdings must afortiori exclude such factors or situations as
special circumstances within the scope of that provision.
229. A further indication of the Danish misinterpretation of
the concept of special circumstances may be found at page 83
(para. 205), where a passage from the Report of the International
Law Commission to the General Assembly in 1956 is quoted
without further comment.
(b) TheDanishZnterpretationof "Special Circumstances"
in the North Sea Cases
230. If the Government of Denmark is rather vague in the
present pleadings, it has made its views on Article 6 of the 1958
Convention very clear on a previous occasion. In its pleadings
before the Court in the North Sea ContinentalSheifCases,a very
extensive account was given of the legal contents of the equi-
distance/special circumstances formula. This view contradicts the
present position of Denmark.
231. In itsCounter-Memorial in the North SeaContinental
SheifCases,Denmark strongly argues against the Federal Repub-
lic who:
"seems to assume that this clause opens up a general liberty
to depart from the rule of equidistance whenever a State
finds that the application of the generalrule does not give a
result that satisfies its aspirations". (Z.C.J.Pleadings,North
Sea ContinentalShelf.Vol. 1, p. 214, para. 156.)
232. As opposed to this broad view Denmark givesa stnctly
legal and limited interpretation of the ''special circumstances"
clause:
"The special circumstance clause was, however, formulated
and intended to be applied as a rule of law. It admits the
possibility of a modification of the general rule on the basis
of geographical configuration only in the cases where a particular coastline, by reason of some exceptionalfeature,
gives the State concerned an extent of continental shelf
abnormally largeinrelation to the generalconfigurationof ifs
coast. Then a correction isallowed by the clause in favour of
an adjacent State whose continental shelf is correspondingly
made abnormallysmall inrelation to the general configuration
of its coast by that same exceptional feature ..The clause
neither contemplates nor admits a State's being deprived of
areas of continental shelfwhich are naturally appurtenant to
its coast and entirely normal in relation to the general
configuration of its coast; for to allow that would be to do
inequity and injustice to the State so deprived." (I.C.J
Pleadings, North Sea Continental Shelf. Vol. 1,p. 214, para.
156.)
233. In the oral pleadings the Danishagent rejected the view
that there was any room for the concepts of thejust and equitable
share and the coastal frontage within the equidistance/special
circumstances formula. He stated that if the concept of the just
and equitable share could be based on the special circumstances
clause
"it would mean that the equidistance rule would be virtually
without effect, as every conceivable equidistance boundary,
according to the Federal Republic, should be put to the test
of thejust and equitable shareand, if it did not pass the test,
should be replaced by another boundary line." (I.C.J.
Pleadings, North Sea Continental Shelf, Vol. 11,p. 144).
234. In relation to the concept of coastal frontages, the
Danish agent further stated that the interpretation of the Federal
Republic
"would mean a complete negation of the main rule of
equidistance because this rule has nothing to do with
proportionality according to coastal frontages, a concept
completely unknown during the work in the International
Law Commission and the Geneva Conference." (I.C.J.
Pleading, North Sea Continental Shelf, Vol. II, p. 145).
235. This is quite different from present Danish allegations
about the equidistance/special circumstances formula being "an
expression of equity" (Reply, para. 448), and about the extensive
Danish list of "relevant factors" being applicable also in relation
to Article 6 of the Geneva Convention. 236. The attempt in the Reply to interpret the equidis-
tance/special circumstances formula in relation to islands is also
quite different fromthe viewtaken in 1969.At page 83 (para. 205),
Denmark quotes the aforementioned passage from the Report of
the International Law Commission to the General Assembly in
1956which appears in the Commentary to Article 72 (as it then
was). The passage reads as follows:
"provision must be made for departures necessitated by any
exceptional configuration of the Coast, as well as the pres-
ence of islands or of navigable channels. This case may arise
fairly often, so that the rule adopted is fairly elastic."
(Yearbook, ILC, 1956,II, p. 300).
237. In the North Sea ConrinentalShev Cases, Denmark
gave a detailed interpretation of this statement from the Interna-
tional Law Commission. After having rejectedthis commentary as
a foundation for an interpretation of special circumstances in a
broad sense, the Common Rejoinder of Denmark and the Neth-
erlands interprets the ILC Commentary along the following lines:
"The commentary states that a modification of the strict
application of the equidistance principle may often he
required and since there are a great number of small,
insignificanislands throughout the world - also situated in
such a way that they might influence the delimitation of the
continental shelf- it is obvious that the interpretation laid
down here [the more strict interpretation of Denmark and
theNetherlands - reflected in thequotation in para. 2321will
frequenrly make the clause applicable." ((I.C.J. Pleadings,
North Sea Continental Shelf, Vol. 1, p. 527, para. 126;
emphasis supplied).
238. In an individual observation of the Danish Govern-
ment in the Common Rejoinder, Denmark exemplifieswhat kind
of "small insignificant islands", that are in a particular geographic
position, may be considered as a special circumstance. Denmark
refers specifically to "an uninhabited sand reef' situated on the
common shelf of a "State A and a State B(that) are fronting each
other." (I.C.J. Pleadings,North Sea ContinentalShelf, Vol. 1,
p. 532, para. 142).In other words, the island is not considered to
be a special circumstance unto itself, but can only he taken into
consideration in relation to a median line boundary drawn
between other coasts - the coasts of State A and State B. 239. An explanation which may be offered for this change
in attitude is, of course, that the Court did not find for Denmark
in 1969.Such an explanation would miss the point of the Court's
position entirely. In theorthSea Cases,the Court found that the
1958Convention was not opposable to Germany, which was not
a party, and that the Convention was neither "declaratory of a
mandatory rule of customary international law" from its incep-
tion, nor has "its subsequent effect been constitutive of such a
rule" (I.C.J. Reports 1969, p. 45, para. 81). Quite simply, the
Court did not find reason to address the concept of "special
circumstances" as a matter of interpretation of Article 6 of the
1958 Convention, because that Convention was not material to
the case.
240. But the Convention is clearly material in the present
case. It remains obligatory as between the parties thereto, among
them Norway and Denmark. Denmark's views on the drafting
intent and interpretation of Article 6 remain valuable and valid.
(c) TheOperationof the 1958Convention
241. As long as Denmark recognizes that Jan Mayen gen-
erates a continental shelf, that means that the 1958 Convention
provides certain norms for a delimitation. The first norm is that
the Parties are free to negotiate a boundary, taking into account
such legal and political considerations as they see fit. The Parties
are called upon to negotiate meaningfully.
242. Article 6 of the 1958Convention lays down a specific
nom to be applied in law in the event of a failure to agree. This
substantive norm prescribes the median or equidistant line. The
median line, which applies as between opposite coasts, could only
be modified by the presence of any special circumstance, of a
nature to justifysuch a modification.
243. Article 6 of the 1958 Convention does not specify
either thesubstantive or procedural alternatives in the event of the
existence of any relevant special circumstance of that qualified
character. Jurisprudence has not up to now dealt with this
particular question as between parties to the 1958 Convention
which had not made specific provision for judicial settlement
through a Special Agreement.
244. In the present proceedings, the terms of the 1958
Convention only allow for an investigation as to whether, withinthe geographical situation obtaining in the region betwèen Jan
Mayen and Greenland, there is present any specrfi cirmmstance,
additional to the very existence of Jan Mayen itself, which would
in law have the effect of modifying the median line.
245. That, and nothing more, is what is required under the
provisions of Article 6, paragraph 1of the 1958Convention, if it
is to be regarded in isolation.
246. Denmark has not adduced relevant evidence, or suffi-
cient argument to enable the' Court to arrive at any other
conclusion than that there isno specialcircumstance present in the
region between Jan Mayen and Greenland to justify another
boundary line than the median line.
247. In the foregoing, various aspects of the application of
the 1958 Convention on the Continental Shelf have been ad-
dressed, mainly in the context of the comments presented in the
Danish Reply. Since the Reply discloses that the Government of
Denmark does not seem to appreciate fully the role which the
1958Convention has in the legal relationship between the Parties,
it may be useful to set out, in compressed form, a more structured
exposition of the views of the Norwegian Government in that
respect.
248. The implications of the fact that the 1958Convention
on the Continental Shelf is a treaty in force between the Parties -
now acknowledged by Denmark - are several.
249. The foremost implication - so obvious as to be almost
overlooked - is that the delimitation of the continental shelf
between Jan Mayen and Greenland is governed by the provisions
of Article 6 of the 1958Convention (insofar as it is not regarded
as determined by the 1965bilateral Agreement).
250. The coasts of those two territories are opposite each
other, which subsumes the situation under paragraph 1of Article
6.The primary nom isthen that "the boundary of thecontinental
shelf appertaining to such States shallbe deierminedby agreemeni
beiweenihem."(emphasis supplied).
251. The Parties must observe the technical requirements of
paragraph 3 of Article 6 (in so far as they may be practicable).And the Parties must respect the rights of third States with regard
to their interest in those areas of continental shelf which may be
affected by the delimitation which the Parties would like to
establish.
252. Otherwise, the Parties are free to establish a boundary
by whatever criteria they see fit. They are not bound by any
restrictions with regard to theconsiderations which are allowed to
influence the determination of the boundary. There is no injunc-
tion or restraint with respect to the evaluation of the qualityof the
boundary arrived at in the process of negotiation.
253. Moreover, the Parties may agree not to delimit their
respective shelf areas, and may or may not define common rules
governing activities in any part of their shelf areas, or throughout
them. They may agree upon interim arrangements. If they so wish,
they may also agree upon procedures for dealing with the issues
raised by failure to agree on any of the aspects of an agreed
approach to the delimitation process.
254. Such agreement may extend to the submission of the
matter forjudicial or arbitral decision. If so,the agreement may be
more or less precise or detailed in specifying the function of the
Court or Arbitral Tribunal. The Parties may in so doing request
the Court or Tribunal to determine the boundary.
255. It is Norway's position that Norway and Denmark
have agreed on the delimitation of al1 their continental shelf
boundaries, in conformity with the pnmary delimitation norm of
the 1958Convention. Denmark contends that this is not the case.
The consequence of the Danish contention must be that the
alternative delimitation norm of that Convention applies. That is
Norway's alternative position. At the same time, there is no
agreement between the Parties establishing any particular settle-
ment procedure.
256. Article 6, paragraph 1 of the 1958 Convention fur-
nishes a clear provision for the situation obtaining where the
Parties fail to agree on a boundary (or any aspect of delimitation
obviating the need for a boundary, or on any settlement proce-
dure): "In the absence of agreement, and unless anotherboundary
line is justified by special circumstances, the boundary is the
median line, ...". 257. Denmark has now brought the matter before the
Court, and has requested the Court to determine the boundary
between the continental shelf of Jan Mayen and that of Green-
land.
258. Under the terms of the 1958Convention, this means
that the Court willhave to examine thequestion of whether or not
there would be present in the region any special circumstance,
and, if so, whethersuch a circumstance justifies another boundary
than the median line.
259. The coasts of Jan Mayen and Greenland are opposite
coasts, and the question must therefore be addressed on the basis
of paragraph 1 of Article 6. It is not a matter of evaluating "the
application of the principle of equidistance", which is theopera-
tive language of paragraph 2. The question is more straightfor-
ward: unless there is present a special circumstance whichjustifies
another boundary, the median line is the boundary for the
continental shelf.
260. The function of the Court in the present matter, under
the terms of the 1958Convention, must therefore be a different
one from what the Court has encountered in previous maritime
delimitation cases, both in terms of the operative conclusions of
the Judgment, and with regard to the sources of law which can be
considered relevant.
261. It is the principal view of the Norwegian Government
that the 1958Convention must be held to apply conjointly with
the 1965 bilateral Agreement, as well as other transactions
between the Parties, in relation to the delimitation of the conti-
nental shelf between Jan Mayen and Greenland.
262. In the event that the 1958 Convention were to be
considered in isolation, it is the view of the Norwegian Govern-
ment that the substantive delimitation norm of the Convention
should be applied in its simplest form, that is according to its
straightforward wording, unaffected by elements of interpretation
which have been established in contexts where States are not
mutually bound by the Convention.
263. The Danish Reply has acknowledged (albeit in a
somewhat subsidiary fashion) that the delimitation of the conti-
nental shelf in the area could have been considered separately (cf.
p. 64, para. 207 above). Otherwise, the Reply isstrangely silent on
the question of the continued applicability of the 1958 Conven-
tion. 264. At pages 161-162(paras. 443-444) of the Reply, how-
ever, an effort is made to juxtapose the nom contained in Article
6 of the 1958 Convention on the Continental Shelf, and the
provisions of Article 83 (and correspondingly in Article 74) of the
1982Convention on the Law of the Sea. In its discussion of the
provisions of the new instrument, it is stated that the general rule
of equity which isembodied " ..fails to giveguidance on the exact
contents of that rule." (p. 162, para. 443).
265. Article 83 contains a reference to "the basis of inter-
national law, as referred to in Article 38 of the Statute of the
International Court of Justice". It is submitted that this reference
provides a much more positive and helpful framework for the
delimitation process than that which is suggested by the Reply. It
is made clear that previously agreed delimitations are not super-
seded. Consequently, for States party to the 1958Convention, a
renvoito the substantive noms iscontained in Article 6. As stated
by Professor Caflisch, the renvoiformula "...in essence preserves
the stattrsquo ..."(in R. Bernhardt (Ed.): Encyclopediaof Public
InternationalLaw, vol. 11, p. 217).
266. Thus, for parties to the 1958Convention, the situation
is clear enough. The application of the provisions of the 1958
Convention follows directly from the language of the 1982
Convention; the injunction "...to achieve an equitable solution"
set out in Article 83, paragraph 1 of the 1982 Convention is
already safeguarded by the 1958Convention. There is no contra-
diction between the two instruments; they rely on each other. C: GENERALINTERNATIONALLAW
CHAPTER V
THE GENERAL CHARACTER OF THE DANISH REPLY
1. THE OUTER LIMIT OF THE 200-MILE ZONE PRINCIPLE
365. Like its predecessor, the Danish Memorial, the Danish
Reply purports to rely exclusivelyupon general international law.
However, as before, the actual mode of reliance upon general
international lawscharacterized by an eccentricity which inhibits
the appropriate development of the pleadings.
366. The solution proposed by Denmark is premised upon a
principle whichis unrelated to delimitation according to equitable
principles and is completely unrelated to the relevant jurispru-
dence of international tribunals. The principle is that of the
200-mile outer limit of a fishery zone and/or continental shelf
measured from Greenland's baseline. In its Reply (p. 152, para.
414) in response to the Counter-Memorial, Denmark complains
that "nowhere in the Memorial" has Denmark "used the expres-
sion quoted by Norway: 'outer limit of 200 mileszone princ".le'
That is true and the quotation marks were intended to highlight
the "principle". (If this had involved a quotation, reference
would have been provided).
367. The fact remains that the 200-mileouter limit criterion
is invoked as the basis of delimitation and therefore (itbe
presumed) as a legal principle. This is clear from the relevant
passages in the Danish Reply. Thus in the passage in which
Denmark complains of the Norwegian use of the term "prin-
ciple", the Danish Government states that: "The Danish conten-
tion is that an equitable boundary linein the waters between
Greenland and Jan Mayen 'should be drawn along the outer limit'
of Greenland's fishery zone ..."(Reply, p. 152, para. 414;
emphasis supplied).
368. No attempt is made by Denmark to explain why
tribunals have not referred toh a criterion and why it is not to
be found in the literature. 369. The resort to an eccentric criterion inevitably draws in
its train various elements of confusion. The first example involves
a major contradiction in the Danish argument. For the Danish
Reply confuses the forms of a delimitation argument with the
substance of various assertions that "Greenland's 200-mile zone"
has a higher status and is inessencenot susceptible to a process of
delimitation.
370. This position is evident in the following passages in the
Reply:
(a) "In the view of the Danish Government an equitable
solution in this area would notallow Jan Mayen to encroach
upon Greenland's 200-mile fishery zone and corresponding
shelf area". (p.4, para. 7, emphasis supplied).
(b) "Denmark does not, for its part, question Jan Mayen's
status as an island under international law, but it is the
Danish submission that the small size and unpopulated
character of Jan Mayen does not entitle the island to a
maritime zone which impinges upon Greenland's 200-mile
zone". (p. 5, para. 10, emphasis supplied).
(c) "The Government of Denmark has asked the Court to
declare that Greenland is entitled to a full 200-milefishery
zone and continental shelf area vis-a-vis the island of Jan
Mayen. It is Denmark's contention that international law
supports the claim to a 200-milefishery zone and a 200-mile
continental shelf area". (p. 6, para. 14,emphasis supplied).
(d) "The examples do not support the Norwegian claim that Jan
Mayen should be allowed to impinge upon Greenland's full
200-mile fishery zone and continental shelf area". (p. 86,
para. 215, emphasis supplied).
"These facts must weigh heavily in favour of not allowing
(e)
the island of Jan Mayen to infringe upon Greenland's
200-mile fishery zone and corresponding continental shelf
area". (p. 120,para. 327, emphasis supplied).
(f) "Denmark bases its legal position in the present maritime
delimitation dispute on the premise that an island with the
characteristics of Jan Mayen may have title to a zone, but as
regards the extent of that zone cannot generate a maritime
zone which impinges on that ofGreenland. A claim of that
kind by Norway could not produce an equitable solution as
required by the governing international nom for deciding maritime delimitation issues. Consequently, thedelimitation
in this case mustrespectGreenlandS200-mile zone,notwith-
standing that DenmarkIGreenland, for its part, does not
question Jan Mayen's entitlement to a territorial sea of 12
miles and an additional maritime zone of no less than 32
miles up to the 200-mile limit measured from Greenland's
baseline". (p. 153, para. 415, second and third emphases
supplied).
(g) "Applying these factors with a viewtoan equitable solution
constitutes the governing rule of the present dispute and
leads Denmark to submit that the island of Jan Mayen
cannot beaccordedan effect in the delimitationwhichwould
reduce Greenland's 200-milefisheryzoneand corresponding
continental shelf'. (p. 163,para. 445, emphasis supplied).
(h) "448. As the 1958Geneva Convention on the Continental
Shelf is in force betweenthe two Parties (the Memonal, p.
59, para. 210), the equidistance/special circumstances rule
contained in Article 6 of the Convention would be the
governing norm decidingthe boundary line for the shelf.On
the basis of the 1958Convention the Government of Den-
mark could plead along the same lines as in the Memorial
and this Reply in support of a contention that the island of
Jan Mayen, par excellence, falls within the concept of
'special circumstances' and should begiven no effect on
Greenland's 200-mile continental shewarea. As the equidi-
stance/special circumstances rule can be seen as an expres-
sionofequity, seethe Memonal, page 63,paragraph 218,the
same pleading could be advanced to the effect that the
relevant factors supporting a rule of equity in the present
case lead to a solution wherebyJan Mayen wouldnot be
allowed to impinge upon GreenlandS 200-milecontinental
shel/.
449. As to the fishery zones the governing norm of delimi-
tation is that whichleads to an equitable solution, cf. Article
83 of the 1982 Convention on the Law of the Sea. The
pleading developed in the Memorial and this Reply with
particular emphasis on the factor relating to the importance
to Greenland ofthe fisheryresource could alsobe developed
in support of the contention that the boundaryline must
respect GreenlandS200-milefishery zone. ..."(pp. 163-164,
paras. 448-449;emphasis supplied).
(i) "To conclude this first consideration, it would seem to
follow from the very nature of the island of Jan Mayen - seenin relation to the delimitation dispute in question, which
is concerned with broad maritime zones of an economic
character - that themethod of drawing a line of delimitation
would have to be based on the premise that the islandof Jan
Mayen could not be accorded a maritime zone which would
impingeupon GreenlandS right to a 200-milefishery zone and
a correspondingcontinental shelf area." (p. 168, para. 462,
emphasis supplied).
371. In these passages, which occur in key sections of the
Reply, it is clear that the Danish Government has moved beyond
considerations of delimitation in accordance with legal principle.
The starting point of such thinking is not delimitation but
entitlement. Moreover,theconception of entitlement presented by
Denmark is incompatible with a legal framework.
372. There is a broad range of State practice to evidence a
general opiniojuris that islands have an entitlement to extend their
zone generation capacity fully, until overlapping areas of exten-
sion are created and a delimitation iscalled for. States which have
taken part in the shaping of this State practice range from those
having superpower status to island states with very small popu-
lations and very restricted land area. Some of the territories
concerned have had various foms of non-self-governing status;
others have been independent States. There is no known instance
of a State objecting ta this practice. Map VI1 attached to this
Rejoinder shows the extent of zones of maritime jurisdiction
claimed and recognized for islands in a central part of the Pacific
Ocean.
373. The Danish thesis that the outer limit of the 200-mile
zone has a status analogous to jas cogensand is not subject ta the
normal process of delimitation is accompanied by the claim that
state practicecan be found to support the Danish thesis. Denmark
in fact only invokes two items which are supposed to rom
precedents: Bear Island and the Norwegian Agreement with
Iceland of 28 May 1980.As to the former, see Chapter 1of Part
III (pp. 187-189, paras 633-641). The question of State practice
will be examined fully in Chapter VI11below (pp. 139 ff.). For
present purposes three observations are called for.
374. In the first place, it is clear that there is no general
practice of states to supportthe Danishcontentions. Secondly,the
Norwegian Agreement with Iceland of 28 May 1980wasapproved
by the Stortingexplicitly on the basis that no precedent was being
created in relation to other delimitations (see the Counter-Memorial, pp. 107-108,paras. 368-370), and this is accepted by
the Danish Government in the Reply. (p. 118,para. 319).Thirdly,
the position adopted by Denmark in its pleadings is impossible Io
reconcile with its previous pattern of conduct and especially with
the provisions of the Danish Executive Order of 14 May 1980
(Counter-Memorial, Annex 38). In relation to Jan Mayen the
Order provides:
"Where the island of Jan Mayen lies opposite Greenland at
a distance of lesshan 400miles,iurisdiction of fisheriesshall
not, until further notice, be exeicised beyond the line which
everywhere is equidistant from the nearest points of the
baselines of the coasts concerned (median line)."
375. The position of Denmark according to which Norway
is not entitled "to encroach upon" Greenland's 200-mile fishery
zone and shelf area (see para. 370(a)above) necessarily involvesa
refusa1 to give effect to Norway's entitlement in respect of Jan
Mayen. The passages from the Danish Reply set forth above
(para. 370) fullyjustify theconcerns on the question of entitlement
expressed by Norway in the Counter-Memorial (pp. 185-186,
paras. 661-662).Denmark's case isnot only based upon thepetitio
principiithat Denmark's "entitlement" must be respected but that
Norway's need not be. It bears no relation to any principle of
international law.
376. The assertions by Denmark that title and delimitation
are distinct (Reply, p. 5,para. 9; pp. 150-151,para. 410)are beside
the point. The Danish insistencethat the basis of "delimitation" is
the full extent of the Danish maritime zone (see Reply, p. 153,
para. 415) involves a reliance upon title. No balancing up of
relevant factors in accordance with equitable principles is envis-
aged: only a legal prevalence of Greenland's 200-mile zone.
377. In thissame context the statements in the Reply to the
effect that Denmark recognizes the status of Jan Mayen as an
island for purposes of international law (p. 5, para. 10; p. 152,
para. 414) are paradoxical. If Jan Mayen is an island then its
entitlement isof the same class as that of anyother Coastand there
is no principle known to the law according to which the fishery
zone or exclusive economic zone of another State could produce
an automatic and mandatory reduction of the normal entitlement
of Jan Mayen. 378. The eccentric result of the Danish argumentation is a
peremptory refusal to recognize the entitlement of Jan Mayen in
accordance with the law.
379. Like the Danish Memorial, the Replyhas a tendency to
misuse categories and thus to misrepresent the law. The Reply
continues to insist, in an unhelpfully academic style, that
"islands" as such form a "separate legal category" (p. 83, para.
204). The State practice and the well-developed jurisprudence
establish beyond any doubt that it is the geography of coasts,
including their relationships, from which the respective entitle-
ments flow, and which govern delimitation in accordance with
equitable principles. The involvement of islands as such provides
no useful signals preciselybecause the category is too diverse and
incoherent.
380. The role of geography in delimitation was the subject
of serious confusion in the Danish Memorial. In particular, the
Memorial insisted that the coasts of Norway and Greenland were
"opposite" coasts comparable to those of the United Kingdom
and France involved in the Anglo-FrenchCase: see the Memonal,
(pp. 95-96,para. 295).The ineptitude of this characterization was
pointed out in the Counter-Mernorial (p. 141, paras. 470-473).
The Norwegian Government pointed out that:
"In the present case, there is no channel, no geographically
introverted situation like that formed by the English Chan-
nel, and no geographical symmetry (opposite States having
almost equal coastlines) (see the Anglo-FrenchCase, ibid.).
Even more significantly, in the present case there can be no
question of location on the 'wrong side' of a median line
because there is no median line between Greenland and the
mainland of Norway: the existence of a sector of high seas
intervenes. The legal consequence is that the coasts of
continental Norway and Greenland have no relation of
adjacency for purposes of delimitation, and that 'opposite-
ness' is without relevance." (p. 141,para. 473).
381. It is unfortunate that this confusion has not been
avoided in the Danish Reply. It is true that the Reply contains
some evidence of contrition, and accordingly the following state-
ment appears: "The delimitation dispute, however, concerns the maritime
zone between Greenland and Jan Mayen and not the sea
between Greenland and the Norwegian mainland. Norway,
therefore, is not a coastal state in relation to the present
delimitation dispute". (Reply, p. 159,para. 436 infine).
382. However, this contrition is only partial and Jan Mayen
is now presented as a "detached" island (Reply, p. 85, para. 211;
p. 109, para. 299). This question-begging description tempts the
Danish Government into replaying the Anglo-FrenchCase in the
following passage:
"Jan Mayen is not a 'geographically independent feature' as
maintained by Norway. The very existence of the present
dispute contradicts the notion of Jan Mayen as an indepen-
dent feature. The fact that the distance from Greenland to
Jan Mayen is about 250 nautical miles does not entitle a
barren, uninhabited island far away from the mainland of
Nonvay to full effectin a maritime delimitation opposite the
mainland of Greenland. State practice and case law, in
particular the Channel Islands Award suggest that the
enclave solution is the one appropriate in the case of
distorting islands which are mid-way islands or 'wholly
detached' from their mainland. If Jan Mayen were closer to
Greenland enclaving would be the logical solution; in other
terms, full recognition of 200 miles for Greenland and an
enclave of 12-mileterritorial sea for the island. Fortunately
for Norway, the relative long distance between Greenland
and Jan Mayen obviates the need for enclaving and allows ta
Jan Mayen a much larger area." (pp. 156-157,para. 429).
383. This passage of the Danish Reply conjures up an
artificial geographical framework in which the distance of Jan
Mayen from Norway is claimed to be relevant, and where it is
suggested that the delimitation area consists ofthe North Atlantic
as a whole. In the normal context of legal principle, delimitation
isrelated ta real geography and ta the area within which theactual
coastal relationships are meaningful. The quoted passage epito-
mises the wishful thinking behind the Danish arguments concern-
ing the geographical framework of the case - and, by the same
token, the legal framework which governs it.
384. In any case, this passage (Reply, para. 429) is incom-
patible with the contents of paragraph 436 of the Reply (quoted
above, para. 381). The latter clearly States that Nonvay "is not a
coastal State in relationto the present delimitation dispute". Inwhichcase it iscontradictory to assert that (Reply,para. 429)Jan
Mayen is "wholly detached" from "[its] mainland". Of course,
this is a consequence of the wishful thinking of Denmark,
according to which Jan Mayen is given the role of the Channel
Islands in the Anglo-FrenchCase. The fact is that in the Anglo-
FrenchCasethe geographical framework was essentiallydifferent
and the Channel Islands were "wholly detached" not only in
relation to themainland of the United Kingdom but within the
specific framework involving a situation of quasi-equality and a
continuous area of continental shelf dividedby a primary bound-
ary in the form of a median line (seefurther below, Chapter VII,
at pp. 137-139, paras. 455461).
385. The element of wishful thinking is given greater em-
phasis by the referenceto enclavingin paragraph 429of the Reply
on the contingency: "If Jan Mayen were closer to Greenland
enclaving would be the logical solution ...".Not only is the
contingency whimsical, but the hypothesis is completely baseless
because it assumes a legal comparability with the Anglo-French
Case. CHAPTERVI
THE INEQUITABLECHARACTER OF
THE DANISH CRITERIA
386. The Danish claim involves the application of two
criteria, of which the second is the corollary of the first. The first
criterion is stated in different ways but always amounts to the
same thing: the asserted inconsequence of Jan Mayen as land
territory. The second criterion is that of the full entitlement of
Denmark based upon a 200-mile zone which is resistant to any
process of delimitation in accordance with international law.
387. The following passages in the Reply contain the rele-
vant message:
(a) "Denmark does not, for its part, question Jan Mayen's
status as an island in international law, but it is the Danish
submission that the small sizeand unpopulated character of
Jan Mayen does not entitle the island to a maritime zone
which impinges upon Greenland's 200-mile zone". (p. 5,
para. 10).
(b) "The Jan Mayen fishery zone ...has an expanse of some
255,000square kilometres, even if full respect is accorded to
Greenland's 200-milezone. This shouldbe related to the size
of Jan Mayen, which is only about 380 square kilometres.
Such a maritime area may be considered exorbitant com-
pared to the land area on which it is based". (p. 114,para.
308).
(c) "The fundamental norm governing maritime delimitation is
to achieve an equitable solution, seethe 1982Convention on
the Law of the Sea, Articles 74and 83,and theGulfofMaine
case, I.C.J. Reports 1984,pages 299-300, paragraph 112. It
follows that Jan Mayen's entitlement to a fishery zone and a
continental shelfdoes not automatically endow Jan Mayen
with an equal position in a delimitation dispute vis-à-vis an
island State (Iceland) or a mainland (Greenland)- not even
as a starting point. The entitlement towards the open sea
cannot be compared to an entitlement which, if accepted,
would encroach upon the legitimate rights of other States".
(p. 121,para. 328).(d) "The only delimitation situations which have deviated from
the median line do so because a median line would not
render an equitable result, see e.g., the boundary line
between Iceland and Jan Mayen and that between the
Nonvegian mainland and Bear Island. In neither of these
situations are human societies in jeopardy - as far as these
two desolated islands are concerned - and therefore these
islandshave not been allowed to encroach upon the 200-mile
economic zone established by Iceland and mainland Nor-
way, respectively. Denmark fully agrees with the attitude
adopted by Iceland and Norway. International law has been
created and developed to serve the needs of human societies,
not to accommodate landscapes". (p. 123,para. 333).
"The fact that the distance fromGreenland to Jan Mayen is
(e) about 250 nautical miles does not entitle a barren, uninhab-
ited island far away from the mainland of Norway to full
effect in a maritime delimitation opposite the mainland of
Greenland". (pp. 156-157,para. 429).
(f) "Article 121does not, however, address the question of the
effect of an island in aelimitation situation. It would be in
line with the reasoning underlying Article 121(3), as indeed
with the basic philosophy behind the new order governing
the regime of the sea-bed outside national jurisdiction as
contained in the 1982Convention on the Law of the Sea, to
adopt an approach towards delimitation consistent with the
one adopted for the singling out of rocks for special
treatment as regards entitlement. Othenvise small islands
without population would be given a role in international
maritime law which is completely out of proportion to the
other basic concept contained in the 1982 Convention,
namely that of allowingcoastal States broad maritime zones.
That concept has as its rationale the support of the living
conditions of the coastal State population and as far as
Greenland is concerned its ovenvhelming dependency on
fishery has been described in Part 1 under E. and F. It has
never been intended that the concept of the new broad
maritime zones should turn into a device which could supply
a mainland in possession of a far-away island without a
natural population with disproportionate maritime zones.
Only where a detached island can claim a statusmore or less
similar to that of the mainland it confronts, Le., a living
community which depends for its survival on itssurrounding
sea, would it be reasonable to regard that island as equal in
principle to an opposite-lying mainland. But that is not the
case as far as the present dispute is concerned. Though Jan Mayen is not a mere rock, it is certainly not the type of
island one would expect to be entitled to broad maritime
zones at the expense of an opposite-lying mainland". (pp.
167-168,para. 461).
388. These passages convey essentially the same message:
that Jan Mayen is an island but does not have a normal
entitlement. Thus the last passage quoted: "..it iscertainly not the
type of island one would expect to be entitled to broad maritime
zones at theexpenseof an opposite-lyingmainland". The corollary
given to this concept of the inconsequence of Jan Mayen is stated
in the very next paragraph of the Reply:
"To conclude this first consideration, it would seem to
follow from the very nature of the island of Jan Mayen -
seenin relation to the delimitation dispute in question, which
is concerned with broad maritime zones of an economic
character- that themethod of drawing a line of delimitation
would have to be based on the premise that the island of Jan
Mayen could not be accorded a maritime zone which would
impinge upon Greenland's right to a 200-mile fishery zone
and a corresponding continental shelf area". (p. 168,para.
462).
389. The passages from the Reply (in para. 387 above)
involve the following elements of confusion:
(a) The issueof delimitation isin essencereplaced by the issueof
entitlement.
(b) The acceptance that Jan Mayen has the status of an island in
international law (seepara. 387(a) above) iscontradicted by
the persistent assertions that Jan Mayen is not entitled "to
impinge" upon the entitlements of Denmark.
390. These elements of confusion are aligned with a com-
pletely erroneous characterization of the legal and geographical
framework. Emphasis is given to the distance of Jan Mayen from
Nonvay (para. 387(e) above) and Jan Mayen is described as a
"detached island (para. 387(f) above). And the "mainland" of
Greenland isopposed to the "mainland" of Nonvay, in relation to
which Jan Mayen is "far away" and "detached". 391. In thcse passages both the concepts and the terminol-
ogy necessarily involve a reversion to the discredited analysis
according to which the coasts of Greenland and Norway consti-
tute the relevant opposite coasts. The Danish Reply has, in some
places at least, recognized that "the coasts of continental Norway
and Greenland have no relation of adjacency for purposes of
delimitation, and [thatl 'oppositeness' is without relevance" (p.
141, para. 473).~his noi~iihstandin~, in the two passages referrid
to above (para. 387(e)and (1))thc Governmtnt of Denmark insisrs
that the relevant oPbositen&s is between Norway and Greenland
and that therefore Jan Mayen simply does not qualify as an
opposite land territory vis-à-vis Greenland.
392. The outcome of this type of analysis is a total depar-
ture from legal considerations relating to delimitation. Geograph-
ical relationships can only be classified within a framework which
reflects two criteria. The first is that the delimitation should be
assessed in the context of the geographical area "directly con-
cerned" in the delimitation: see the Judgment of the Chamber in
the Gulfof Maine Case, (I.C.J. Reports 1984,p. 268,para. 28;pp.
272-273,para. 41). The second criterion is related to the first: the
geography of coasts determines thelocation of those areas "where
the maritime projections of the coasts of the States between which
delimitation is to be effected converge and overlap" (ibid., p. 85,
para. 195).
393. The Danish analysis, which presents Jan Mayen as a
"detached" island and as a non-mainland not "opposite" the
"mainland" of Greenland, has no basis in the relevant principles
and rules governing delimitation. This analysis constitutes a
further episode of the exotic reasoning which characterized the
Memorial. Geography, according to Denmark, is not so much to
be refashioned but rather to be rejected altogether.
394. In summary, the Danish Reply seeks to deny that Jan
Mayen has any entitlement of its own and in so doing uses a
modus operandiwhich cannot be reconciled with the legal princi-
ples and rules governing delimitation.
395. The eccentricity of the reasoning is enlarged by the
insistencethat abiniiioJan Mayen does not qualify as an opposite
Coastin relation to Greenland, and by the attempt to portray Jan
Mayen as an ancillary feature of the mainland of Norway. Phrases
such as "detached", "mainland", and "opposite" can only have
an appropriate legal significance within the context of the geo-
graphical area "directly concerned in the delimitation.islands. Sixexamples are given, none of which bears any similarity
to the situation of Jan Mayen even "if Jan Mayen were closer to
Greenland" (cf. Reply, para. 429, quoted in paragraph 398
above).
401. The interest shown by the Danish Government in the
practice of enclaving and the examples introduced provide further
evidenceof wisbful thinking. In each of the sixexamples offered in
the Reply, the framework of the delimitation area was established
by the opposite or adjacent mainland or long coasts of the
delimiting States. In each case theprimary delimitation was based
upon equidistance and the islands involved were incidental fea-
tures in the context of the geographical framework directly
relating to the delimitation area. The six examples can be charac-
terized in this mode one by one.
(1) Italy-Yugoslavia, 1968 (Repl, nnex73).
402. The delimitation is an equidistance line between the
long coast mainlands of Italy and Yugoslavia; for the latter the
mainland consists of the major Yugoslav islands. The Yugoslav
islands of Pelagruz and Kajola, situated near the median line, were
given a 12-mile semi-enclave. The geographical framework con-
sisted of the more or lessparallel mainlands formed by the Italian
coast and the major Yugoslav islands.
(2) Italy-Tunisia,1971 (Reply,Annex74).
403. The delimitation is again an equidistance linerelated to
two opposite mainlands which are directly related to the delimi-
tation area. The islands of Lampedusa, Pantelleria, Lampione and
Linosa are situated near to the equidistance line and, in order to
avoid the delimitation as a whole becoming distorted in favour of
Italy, these islands were given special treatment. This treatment
was related to a geographical framework of which the principal
features were the opposite facing mainlands of Italy and Tunisia.
(3) Iran-SaudiArabia, 1968 (Reply,Annex68).
404. This delimitation involves an insignificant variant of
the situation obtaining in the two previous examples. The geo-
graphical framework was the long coast mainlands of Iran and
Saudi Arabia, both of which abutted directly upon the delimita-
tion area. (4) Abu Dhabi-Qatar, 1969 (Reply,Annex75).
405. This delimitation involves another variant of the situ-
ation in which a primary delimitation based upon equidistance is
not allowed to be distorted by the presence of an island in the
vicinity of the primary delimitation. In fact the relevant Agree-
ment involves the allocation of sovereignty in respect of certain
islands, including Dayyinah.
(5) Iran-United ArabEmirates,1974(Reply,Annex76).
406. This case is broadly similar to the others previously
noted, the geographical framework consisting of two long coast
mainlands.
(6) Australia-PapuaNew Guinea, 1978 (Reply,Annex77).
407. This delimitation, in spite of its unusual features, is yet
another variant of the geographical framework consisting of
opposite-facing mainlands. The description of this delimitation in
the Reply (pp. 98-99,para. 275)isimprecise.There it isstated that
theAustralian islands of Boiguand Sabai were given"a territorial
sea of 3 miles only facing the mainland coast" (emphasis sup-
plied). This is misleading: in fact the delimitation (for fisheries
purposes) in relation to Papua New Guinea gives full effectto the
two Australian islands. Moreover, whilst it is true that the
"maritime boundary" is a median line, the fisheries delimitation
favours Australia and is hinged upon these two islands. It is thus
fomally correct to state, as the Reply does, that "on the seaward
side they were, in effect, ignored for purposes of the maritime
boundary", but the fact remains that they were recognized as
having a critical significance for purposes of fisheriesjurisdiction.
408. The conclusion must be that the six examples of State
practice invoked by Denmark provide no support whatsoever to
the Danish position. Al1six examples are related to geographical
situations where there are critical differences from the geograph-
ical framework obtaining in the present case. In any case, the
Australia -Papua New Guinea example involves according con-
siderable significance to islands in the context of establishing a
fisheriesjurisdiction boundary line.
409. The Danish Reply (p. 99, para. 276) also refers to the
Award in the Sharjah-Dubai Continental Shelf Arbitration (1981).The Award has not been published. However, the position of Abu
Musa bears no geographical or legal similarity to that of Jan
Mayen according to information available.
410. The irrelevance of the practice invoked by Denmark
anses from the persistent attempts to rely upon the Anglo-French
Case in spite of its being conspicuously inapposite. Thus para-
graphs 275 and 276 of the Reply (which conclude the "enclaving
of islands" section) contain entirely pointless references to the
Anglo-FrenchCaseand the treatment of theChannel Islands in the
Award.
41 1. In conclusion, the inequitable nature of the critena of
delimitation proposed by Denmark isestablished by the following
considerations:
(a) The persistent tendency to deny that Jan Mayen has a
normal entitlement as a land territory.
(b) .The endemic confusion of the issue of entitlement and the
issue of delimitation.
(c) The insistence on the eccentric criterion consisting of the
outer limit of a 200-mile zone.
(d) The substantial failure to identify the relevant geographical
framework and the consequent misuse of terms such as
"mainland", "detached island", and "opposite".
(e) The visualization of Greenland as a mainland and of Jan
Mayen as a small island detached from its mainland Coast.
(f) The failure to recognize that Jan Mayen and Greenland are
the only features relevant to the dispute.
(g) The assertion that Denmark should be the beneficiary of the
same delimitation as Iceland.
(h) The repeated attempts to compare the delimitation area with
the geographical and legal framework of the Anglo-French
Case, with particular reference to the Channel Islands
region. CHAPTER VI1
THE SIGNIFICANCE OF ISLANDS IN
MARITIME DELlMlTATION
412. The Danish position on the significance of islands
continues to be both abstractand categorical. In thecontention of
the Danish Government "islands" form a discrete legal category.
In the face of Norway's rejection of this view, the Reply reaffirms
the position:
"ln the viewof theGovernment of Denmark this assertion is
not warranted. Ever since the question of maritime delimi-
tation between States first emerged in the preparations
leading to the First United Nations Conference on the Law
of the Sea in 1958,islands have been given specialattention"
(p. 83, para. 204).
413. In the Reply Denmark purports to rely on the prepa-
ratory work of the First and Third United Nations Conferences,
on the literature of the subject, on the case law, and on State
practice, in order to give credibility to a misleading construction
of the legalposition. In the present chapter the legal materials will
be examined apart from the materials of State practice which will
be examined in Chapter VI11below (pp. 14G157).
414. The Reply (p. 83, para. 205)quotes a passage from the
Report of the International Law Commission to the General
Assembly in 1956which appearsin the "Commentdry" to Article
72 (as itthen was). The passage reads as follows:
"As in the case of the boundaries of the territorial sea,
provision must be made for departures necessitated by any
exceptional configuration of the Coast, as well as the pres-
ence of islands or of navigable channels. This case may arise
fairly often, so that the rule adopted is fairly elastic."
(Yearbook, ILC, 1956,II, p. 300). 415. This paisage is offered to support the assertion that in
thepreparations for the 1958Conference "islands have been given
special attention" (Reply, p. 83, para. 204). The documentary
record does not support this bold assertion.
416.
The "Commentary" quoted by Denmark links the
issue of delimitation of the continental shelf with the delimitation
of the territorial sea and thus the previous sentence reads as
follows:
"For the determination of the limits of the continental shelf
the Commission adopted the same principle as for the
articles 12and 14concerning the delimitation of the territo-
rial sea."
417. When the preparatory work is followed back it can be
seen that islands did not receive "special attention".
418. In the first place they do not figure either in the
"Commentary" appended to draft Article 12 (Yearbook, ILC,
1956, 11, p. 271) or in the "Commentary" appended to draft
Article 14 (ibid., p. 272). The relevant parts of the Report of the
International Law Commission of 1955contain no additions to
the Report of 1954 (Yearbook, ILC, 1955,11,p. 38, which relates
to the corresponding draft articles 14and 15).
419. The Report of the International Law Commission of
1954 contains no reference of any kind to islands in the "Com-
ment~" appended to the relevant draft Articles 15 and 16 (Year-
book, ILC, 1954, Il,pp. 157-158).The "Comment" appended to
draft Article 15 (Delimitation of the territorial sea of two States
the coasts of which are opposite each other) stresses the identity of
the principles to be applied to the delimitation of the continental
shelf.
420. The Commission at this time had in front of it the third
report of Mr. François, the Special Rapporteur. The relevant
draft articles proposed were as follows:
"Article 16
Délimitationde la mer territorialede deux Etats dont les côtes
sont situéesenface l'une del'autre
1.La frontièreinternationaleentre deux Etats dont lescôtes
sont situéesen face l'une de l'autreà une distance de moins de 2 T milles (Tétant la largeur de la mer territoriale) est, en
règle générale,la ligne médiane dont chaque point est
équidistantdeslignesde base des Etats en question.Toute île
sera prise en considération lors de l'établissementde cette
ligne, à moins que les Etats adjacents n'en aient décidé
autrement d'un commun accord. De même,les fonds afîieu-
rants à basse mer, situésà moins de T milles d'un seul Etat,
seront pris en considération;par contre, ceux situées à moins
de T millesde l'un et l'autre Etat n'entreront pas en ligne de
compte lors de l'établissementde la ligne médiane.
2. Exceptionnellement, lesintérêtd se navigation ou de pêche
pourront justifier un autre tracéde la frontière, à fixer d'un
commun accord entre les parties intéressées.
3. La ligne sera tracée sur les cartes en service à grande
échelle.
Article 17
Délimitationde la mer territoriale de deux Etats adjacents
La ligne de frontière à travers la mer territoriale de deux
Etats adjacents, là où elle n'a pasencore été fixéed'une autre
manière, sera tracée selon le principe d'équidistance des
lignes de côte respectives. La méthode, suivant laquelle ce
principe sera appliqué,fera, dans chaque cas spécial,l'objet
d'un accord entre les parties."(Yearbook, ILC, 1954, 11,p.
6)'6.
16)Unoficial translation:
Article 16
Delimitation of the territorial sea oftwo States the coasts of which are opposite
1.The international boundary ktween two States the coasts aareopposite at a
distanceaf lessthan 2 T nautical miles (T king the breadth of the sen)is, inl
general,the median line every point of which is equidistant from the baselines of the
Statesconcerned. Every island shall betaken in10consideration in the establishment of
this line,nless the adjoining States have decided othenvise by mulual agreement.
only. shall k taken into consideratonnthe other hand, those situated less han T
nautical miles fromth States shall no1be taken into account in the establishment of
themedian line.
2 Ex~cpiidn;~ll).ndvig~il>r fiçherieintcrc5ir m.,itif) dnothcJr.+uingoi thr
bounilar!. to hcJctrrminch) m~tu.iIagrrr.meni betuezn thi inicre<iedpdriiri
3.The line shall bemarked on large-xale aficial chartn.
123 421. These draft articles do not indicate that "islands have
been givenspecial attention" as asserted in the Danish Reply. Nor
was the Danish Government concerned about islands when it
responded to the Secretary-Generai's request of 1952concerning
delimitation of the territorial waters of two adjacent States. The
Danish reply (in a note verbale dated 26 March 1953) was as
follows:
"The Permanent Delegate of Denmark to the United Na-
tions presents his compliments and hasthe honour to inform
the Secretary-General of the United Nations - in accordance
with the Secretary-General's request in note No. LEC
29212106of November 13, 1952concerning the question of
delimitation of the territorial waters of two adjacent States-
that the question as far as Denmark is concerned has been
solved through declarations concluded with Germany and
Sweden. Two copies of each of these declarations published
on December 21, 1923and February 22, 1932respectivelyas
wellas maps of the 'Sund', 'Flensborg fjord'and 'Listerdyb'
are annexed [norreproducedin this documenf].
It will be seen from these documents and maps that in
principle the median line has been followed - exceptions
having only been made in cases where the interests of the
States concerned with regard to navigation and fishing have
warranted another basis of delimitation." (As reproduced in
Doc A/CN.4/71; Yearbook,ILC, 1953, II,p. 79 at p. 82).
422. In this contextit may be remarked that the Norwegian
reply to the Secretary-General's request likewise makes no men-
tion of islands (ibid.,pp. 83-84).
423. The line of drafts and the observations of Govern-
ments can be traced further back. In its Commentary to draft
article 7 concerning shelf delimitation contained in its Report of
1953 the International Law Commission explained the phrase
"unless another boundary is justified by special circumstances"
(Yearbook, ILC, 1953, II, pp. 213, 216). In particular, the Com-
mission stated: "As in the case of theboundaries of coastal waters,
Article 17
Delimitationof the terseaof two adjacent States
Tyet been determinedin any other manner, be drawn according to the principleof1
equidistanceframthe respectivecoastlines.Themethodforapplyingthisprincipleshall,
in everyspecialcase, be thesubjectof an agreementbetweenthe parties.provision must be made for departures necessitated by any
exceptional configuration of theCoast, as well as the presence of
islands or of navigablechannels." (ibid., p. 216, para. 82).
424. Two observations are called for. First, this last refer-
enceto islandsoccurs only twicein four years of the Commission's
records. Secondly, the context makes it clear that it was islands
close to coasts which were envisaged, us in the case of the
delimitationof territoriulwaters.Thus the beginning of the relevant
commentary by the Commission is as follows:
"In the matter of the delimitation of the boundaries of the
continental shelf the Commission was in the position to
derive some guidance from proposals made by the Commit-
tee of Experts on the delimitation of territorial waters."
(Yearbook, ILC, 1953,II, p. 216, para. 81).
425. The reference is to the Report of the Committee of
Experts annexed to the Second Report of Mr. François, the
Special Rapporteur. The relevant passages of this Report are as
follows:
"VI
Comment faut-il déterminerla frontièreinternationale entre
deux pays dont lescôtes se trouvent vis-à-vis'unede l'autre
à une distance de moins de 2 T milles?
La frontière entre deux Etats dont les côtes sont situées en
face l'une de l'autreà une distance de moins de 2 T milles
devrait être comme règle généralela ligne médiane dont
chaque point est équidistant des deux côtes. Toute île doit
êtreprise en considération lors de l'établissementde cette
ligne, à moins que les Etats adjacents n'en aient décidé
autrement d'un commun accord. De même,les fonds ameu-
rants à basse mer, situésà moins de T millesd'un seul Etat,
devraient êtrepris en considération;par contre, les fonds de
ce genre qui ne sont pas soumis à une souveraineté dé-
terminéeet qui se trouvent à moins de T milles de l'un et
l'autre Etat ne devraient pas entrer en ligne de compte lors
de l'établissementde la ligne médiane. II peut toutefois y
avoir des raisons spéciales,telles que des intérde naviga-
tion ou de pêche,écartant la frontière de la ligne médiane.
La ligne devrait êtretracéesur lescartes en serviceà grande
échelle,surtout lorsqu'une partie quelconque de l'étendue
d'eau est étroite et relativement tortueuse. Comment faut-il déterminer la délimitation des mers terri-
toriales de deux Etats adjacents? Est-ce que cela peut se faire
par:
A. Le prolongement de la frontière de terre?
B. Une ligne perpendiculaire à la côte à l'endroit où la
frontiére entre les deux territoires atteint la mer?
C. Le tracé d'une ligne perpendiculaire partant du point
mentionné sous B suivant la direction généralede la lignede
côte?
D. Une ligne médiane?Si oui, comment faut-il tracer cette
ligne?
Dans quelle mesure faut-il tenir compte de la présencedes
îles, des sèches,ainsi que des chenaux navigables?
1.Aprèsune discussion approfondie le Comitéa déclaré que
la frontière (latérale)entre les mers territoriales respectives
de deux Etats adjacents, là où elle n'apas déjà été fixéed'une
autre manière,devrait êtretracéeselon le principe d'èquidi-
stance de la côte de part et d'autre de l'aboutissement de la
frontière.
2. Dans certain cas,cette méthodene permettra pas d'abou-
tir à une solution équitable, laquelle devra alors être rec-
herchéedans des négociations." (Yearbook,ILC, 1953,II, p.
75 at pp. 77-79)17.
") Unoficial translation:
VI
How is the boundary ta be determined between two countries the coasts of which are
situated vis-à-viseach other ai a distance of less than 2 T nautical miles?
Ihr boundag heiueen iw<>Siair, ihc co3r1, of u.hich are ritwid uppoçiie each oiher
ai a Ji,isncr of Io, khan2 T naut,cnl milrr should AS 3 gr.nîr.Arulc be ihr median llnc
eizry poini of uhich iszquidisi.tni IO the iuo caasl, Cbrry islÿnrlshauld betskcn intu
~ - ~ ~ ~ ~~ ~ ~~~ ~~ ~ ~iahli~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ , ~~ ~ ~ ~ ~ ~d~3i~~t~~ ~~--e~ ~~uedectd~~-
othenvise by mutual agreement. Equally, low tide elevations situated lcss than T
nautical miles from oneof the States onlv should be taken inta consideration: an the
other hand. elevations of this kind which arelesslhan T nautical milesfrom boih States
should not'be taken into account in establishing the median line. Theremay sometimss
be special reasons, such as navigalion or fisheries intererts. for shilling the boundary
from the median line.The lineshould be marked on large-scaleoflicial charts. esrxciallv
when the body of water is narrow and relatively corn& 426. This Report of the Committee of Experts
(A/CN.4.61/Add. 1) was a key document, as the Commission
recognises in its Report of 1953(seepara. 13 above) , and also in
its Report of 1956(Yearbook,ILC, 1956, II,p. 271;Commentary
upon Article 12, para. 2). It is the substantial source of the
"special circumstances" solution and it does not support the view
that "islands have been given special attention".
427. Byway ofconclusion theGovernment of Norway finds
it necessary to stress two elements which are a persistent influence
in the documentary record. The Commission was concerned to
maintain flexibility and this is evident in the Reports of 1953
(Yearbook, ILC, 1953,II, p. 216, para. 82) and 1956(ibid., 1956,
II, p. 300, Commentary upon Article 72, para. 1). As a conse-
quence, Article 6 of the Continental Shelf Convention of 1958
refers only to "special circurnstances" and makes no mention of
"islands". The draft Article 72proposed by the International Law
Commission was adopted as Article 6 of the Convention without
difficulty at the United Nations Conference on the Law of the Sea
(Official Records, Vol.VI,Summaryof Records and Annexes,pp.
91-98).
428. Secondly, the Commission considered continental shelf
delimitation and territorial sea delimitation in close association.
The connection thus established strongly indicates that the real
focus on the effect of islands on delimitation was in thecontext of
establishing the median or equidistant line in inshore or closed
waters. In this context, the influence of an island, as an incidental
VI1
Could this be done by:n of the territorial sea of two adjacent States to be determined?
A. The prolongation of the land boundary?
B.A line perpendicular to the Coastal the place where thc boundary between the two
terrilones reaches the sea?
C. The drawing of a line perpendicular to the general direction of the coasts from the
point mentioned under B?
D. A median line? Ifso. how should this line be drawn?
To which extent is the presence ofislands, drying shoals as well as navigable channels
to be taken into account?
1.After an extensive discussion the Committee declared that the (lateral) boundary
between the respective 1er"tseasof two adjacent States. where il has not been
determined in any other manner. should be drawn according to the principle of
equidistancerom bath coasts at the terminus of the fronticr.
which shouldthen be sought in negotiations.low the achievement of an equitable solution,feature, could easily he seen as disproportionate. The concerns of
the Commission did not concentrate on the different perspectives
which present themselves in drawingcontinental shelf houndaries,
within much more spacious geographical frames of reference.
Islands could be perceived as creating distortions, and thus as a
source of difficulty, ininshore delimitations. The logical conclu-
sion on the basis of the Commission's preparatory work is quite
simplythat the Commission saw no difficulty arising from the role
of islands in "long distance", opposite Coastdelimitations. In the
Gulf of Maine Case, the Chamher was clearly aware of the
fundamental distinction between " 'long distance' delimitation"
and inshore situations (I.C.J. Reports 1984, p. 314, paras. 160-
161). The thrust of the Commission's deliberation over years is
clearly that the principle of equidistance was accepted aspredom-
inant.
429. The Danish Reply (pp. 83-84, para. 207) invokes the
records of the Third United Nations Conference in support of its
position that "islands" form a discrete legal category. However,
the only document actually cited is the proposal dated 27 August
1974by a group of African States concerning "draft articles on the
regime of islands" (Reply, Annex 66;A.CONF.62/C.2/L.62/Rev.
1).
430. The significance of thisand other proposals which refer
to islandscan only be appreciated effectively within the general
context of the debate on delimitation. In the Second Committee
there were various proposals on continental shelf or exclusive
economic zone delimitation, of which six made no reference to
islands as such (see UNCLOS, Off: Recs., III, pp. 190 (Nether-
lands), 202, 211(Greece), 211(Japan), 220(Ireland), 240 (African
States)). On the other hand seven proposals on delimitation
(including theproposal referred to by Denmark) expresslyrefer to
islands (UNCLOS, Off. Recs., Ill, pp. 201,213 (Turkey), 195,228
(Romania), 205 (Kenya and Tunisia), 232 (African States), 237
(France)). It is to he recalled that Turkey did not sign the Law of
the Sea Convention, and that Romania signed but hasnot ratified
the Convention.
431. In the course of the debates in the Second Committee
of the Third United Nations Conference the Danish delegationadopted the position that delimitation should be based upon
Article 6 of the 1958 Geneva Convention on the Continental
Shelf. Thus at the 20th Meeting the Danish representative, Mr.
Kiær, expressed the following views:
"22. In narrow waters where two or more States shared the
same continental shelf and were opposite or adjacent to each
other, the question of delimitation presented difficult prob-
lems. The point of departure for discussing them should be
article of the 1958Geneva Convention on the Continental
Shelf, which provided that the delimitation should be deter-
mined by agreement: in the absence of agreement, unless
another solution was justified by special circumstances, the
boundary should be determined by the median line. Where
thesame continental shelf was adjacent to the coastal States
bordering each other, the rule in article 6,paragraph 2 of the
Convention was very similar to the rule in the case of States
opposite each other: the delimitation should be determined
by agreement and, as a residual rule, the Convention
established the principle of equidistance.
23. In his delegation's view, the principle of equidistance,
based as it was on law and practice, had won general
recognition for very good reasons. Without that rule, there
would be no objective criteria on which to base a delimita-
tion: everything would be open to negotiation and ad hoc
solutions. That would be a negation of the rule of law and
could lead to an increasing number of disputes among
States.
24. On the question of the continental shelf of islands, the
basis for the Committee's deliberations should also be the
1958Geneva Convention on theContinental Shelf.In article
1,paragraph (b) of that Convention, thecontinental shelf of
islands was defined in the same way as for other territories.
International law concerning the delimitation of the conti-
nental shelf was, as a general rule, the same for islands as for
the State as a whole. An oceanic island would have a full
sea-bed area, and for an island situated closer to another
country, the delimitation of the continental shelf would be
based on the principle of equidistance in accordance with
article 6, paragraph 1 of the Geneva Convention." (Sum-
mary Recorcis,20th Meeting, 30 July 1974).
432. In paragraph 24 the Danish representative adopted the
position that islands do not constitute a special category withinthe norms governing delimitation. As Mr. Kiær says: "the conti-
nental shelf of islands was defined in thesame way as for other
territories". This position wasreaffirmed by the Danish delega-
tion during the 39th Meeting of the Second Committee:
"4. The delimitation of island ocean space or sea-bed in the
case of adjacent or opposite States should continue to be
based, generally speaking, on the clear-cut equidistance
principle. His delegation therefore supported the provisions
on that subject contained in documents A/CONF.62/C.2/
L.25 and 31." (SummaryRecord, 39th Meeting, 14August
1974).
433. In this passage the Danish representative referred to
two proposais for draft articles. The first is a Greek proposal the
pertinent provision of which (Article 6) avoids distinguishing
betweenislandsand other baselines (Doc. A/CONF.62/C.2/L.25).
(UNCLOS, Ofl, Recs., III, p. 202). The second proposal sup-
ported by Denmark was a Japanese proposal the text of which
reads (in its first revision):
"1. The coastal State exercises sovereign rights over the
continental shelf(thecoastal sea-bedarea) for theurpose of
exploring it and exploiting itsineral resources.
2. The outer limit of the continental shelf (the coastal
sea-bed area) shall not exceed a maximum distance of 200
nautical milesfrom the baselinefor measuring thebreadth of
the territorial sea as set out in.
3. (a)Wherethe coasts of two or more States are adjacent or
opposite to each other, the delimitation of the boundary of
the continental shelf (the coastal sea-bed area) appertaining
to such States shall be determined by agreement between
them, taking into account the principle of equidistance.
(b) Failingsuch agreement, no State is entitled to extend
its sovereign rights over the continental shelf (the coastal
sea-bed area) beyond the median line, every point of which
is equidistant from the nearest points of the baselines,
continental or insular, from which the breadth of the
territorial sea of each States measured.
4. Nothing provided herein shall prejudice the existing
agreements between the coastal States concerned relating to
the delimitation of the boundary of their respective conti- nental shelf (coastal sea-bed area)." (Doc. AICONF.621
C.2/L.31/Rev. 1) (UNCLOS, Off .ecs., III, p. 211).
434. The position of Denmark remained unchanged in
subsequent sessions of the Third United Nations Conference. In
particular, statements by the Danish delegation in Negotiating
Group 7 during 1978indicate continued adherence to the median
line principle and no reference to islands as a discrete legal
category: see the Counter-Memorial, pages 99-103 (paras. 345-
353).
435. The preparatory work of the Third Conference does
not, it is submitted, disclosethat "special attention" was devoted
to islands in the context of delimitation. Evense proposals on
delimitation which expressly referto islands do so in the normal
context of delimitation in accordance with equitable principles.
The proposal given prominence in the Reply involved 14African
States. In fact on the day before (26 August 1974) 18African
States, including 9 of the States involved in theroposal of 27
August 1974, had produced draft articles on the exclusive eco-
nomic zone, the delimitation provisions of which make no refer-
ence to islands (see Doc. A/CONF. 621C.21L.82,UNCLOS, Off.
Recs., III,p. 240).The relevant provision of this proposal (Article
8) is as follows:
"1. The delimitation of the exclusiveeconomiczone between
adjacent or opposite States shall be done by agreements
betweenthem on the basisof principlesofequity, themedian
line not being the only method of delimitation.
2. For this purpose, special account shall be taken of
geological and geomorphological factors as well as other
special circumstances which prevail."
436. The conclusion warranted by the documentary mate-
rials is, quite simply, that the different currents of opinion were
compatible with the application of equitable principles relating to
delimitation and no categorical significance was accorded to
islands in the context of delimitation. The general language of
Articles 74 and 83 of the Law of the Sea Convention provides
confirmation of this, if such confirmation were needed. 437. The Danish Reply invokes the literature on maritime
delimitation to support the generalized thesis that islands always
cal1for "special attention". Unfortunately the mode of invoking
doctrine is perfunctory and consists of two inconclusive quota-
tions from the writings of Professor Weil and Dr. Jayewardene
(Reply, pp. 84-85, paras. 209-210). In order to set the record
straight it is necessary to examine asufficient sample of doctrinal
opinion relating to the period 1979to 1991.
438. On closer acquaintance with the literature, the writers
will befound to stress the importance of taking into consideration
the overall geographical circumstances and not just the involve-
ment of one or more islands. Thus the work of Dr. Clive R.
Symmons expresses the following view in the conclusions:
"A detailed spelling out of the effect of insular formations
on such delimitations may, therefore, cause inequity in its
own turn by failing to take due account of al1the variable
circumstances.
For this reason, the attempts to extrapolate supposedly
objectiveformulae from existing State practice have limited
value when they are proffered as solutions for the future; for
their very rigidity inevitablyails to take into account al1the
circumstances which may be perceived to be relevant in a
given situation or to cater for the manifold possibilities of
the resultant treatment of an insular formation which such
particular circumstances may be seen to warrant in solving
insular basepoint problems. The recent Franco-British arbi-
tration proceedings have shown this only too clearly, where
time and again the Court was to emphasize the necessity of
considering al1the geographical circumstances of the case."
(The Maritime Zones of Islands in International Law, The
Hague, 1979,pp. 207-208;emphasis in the original).
439. An acknowledged authority on the law ofthe sea isthe
work of Professor Daniel O'Connell, edited by Professor Ivan
Shearer, of which an extended section is devoted to islands (Vol.
II, pp. 714-723) in Chapter 18 on delimitation of the continental
shelf and exclusive economic zone. With reference to the back-
ground of the Continental Shelf Convention of 1958,O'Connell
States the following: "It must be concluded from this drafting history that islands
are not in themselves 'specialcircumstances', although their
characteristics may contribute to their being treated as such
in some cases. Their location cannot be a 'special circum-
stance' whereby they might be deprived of what, in other
circumstances, would be undeniably attnbutable to them,
but it might amount to such if the lines of equidistance they
subtend when related to a neighbouring shore are such that
a restoration of the equally inherent rights of neighbouring
States requires a departure from such lines. Proximity of an
island to one Coastrather than another is irrelevant in itself,
because proximity is not adjacency. But it may be relevant if
it deflects a boundary so as to defeat rights of apportion-
ment which accrue pursuant to 'natural prolongation'. The
minor role to be ascnbed to islands in this respect was
brought out by the one remark made about them by the
Court in the North Sea Continental Sheif Case. The Court
said that a median line must divide the area equally between
States,ignoring 'islets or rocks' and minor coastal projec-
tions, whose disproportionately distorting effects could be
eliminated by 'other means'.That affords no support for any
view that islands can be denied continental shelf rights
merely on the basis of location." (p. 718;footnotes omitted).
440. In a monograph published in 1984Dr. Haritini Dipla
is careful to emphasize the variety of solutions applicable to cases
of delimitation involving islands (Le RégimeJuridique desîles dans
le droit internationalde la mer,Paris, 1984,pp. 229-231).
441. A more recent authonty is the work of Professor P.
Weil, Perspectives du Droit de la Délimitation Maritime (Paris,
1988), published also in English translation under the title The
Law of Maritime Delimitation - Refleciions (Cambridge, 1989).
Under the rubric of "islands" the English edition contains the
following passages:
"Although the 1958and 1982 Conventions do not provide
any special rule on the subject, it has always been accepted,
in State practice as in legal theory, that the effect given to
islands by international law for delimitation purposes differs
from one island to another. Reference is often made, on this
point, to Commander Kennedy's intervention at the 1958
Geneva Conference. After noting, as mentioned previously,
that 'among the special circumstances which might exist
there was, for example, the presence of a small or large
island in the area to be apportioned', the United Kingdom representative suggested that 'for purposes of drawing a
boundary, islands should be treated on their merits'. The
'merits'to be taken into consideration are various: the sizeof
the island, its population, its economy, its position on the
'good'or 'bad'side of the median line or nearer to or further
form one of the coasts. Depending on the circumstances, the
island will be given full or partial effect. In certain cases it
will be ignored. In others it will be enclaved, which means
that the delimitation will becarried out between the main-
landsas if the island did not exist, and it willbe givenits own
maritime space around its coasts. These various approaches
have been dealt with extensively in the literature, and there
are many examples in State practice.
The courts apply the theory of special geographical features
to islands. If the island appears as an integral part of the
general coastalconfiguration, it is treated for the purposes of
delimitation on the same footing as the mainland and given
full effect. If, on the other hand, it seems to be an aberrant
geographical feature in relation to the general configuration
or an insianificant feature, it is -iven partial effect or in-ored
.." (pp. 229-230)18.
442. These passages do not support the viewthat the role of
islands in delimitation is always simple and straightforward, and
mechanically points towards the same result. That is candidly
acknowledged in the Reply (p. 84, para. 209), referring to Weil
(English edition,p. 233)as an authonty for characterising the rôle
of islands as presenting "a kaleidoscopic picture, scarcely ex-
plained in case law ...".
443. The Reply (pp. 84-85, para. 210) also offers a quota-
tion from the work of Dr. Hiran W. Jayewardene, The Regime of
Islands in International Law (Dordrecht, 1990). The relevant
passage is as follows:
'8The statement by Commander Kennedy appears U. N. ConferenΠonthe Law of the
Sea,OfficiaRecordsVol. VI. p. 93. para. 3. The full text of the passage quoted is as
presence of small ar large island in the area to be apportioned; he suggested that, for
thepurposes of drawing a boundary, islands should k treated on lheir merits, very
small islands or sand cays on a continuous continental shelf and outside the belts of
territoiseaking neglectedas base points for mearurcment and having only their own
appropriate territorial Other types of spcircumstances were the possession by
one of the two States concerned ofsmineral exploration rights, or the presence of
justified, but the median line would still provide the kst starting pain1 for negotia-
lions." "In State practice, islands have constantly emerged as
natural features warranting special solutions. In the case of
riversandlakes inparticular, emergence of islands and similar
natural phenomena giverise to issues of considerablelegal
complexity. In the maritime limits sphere, islands have
recently emerged as one of the most troublesome features. A
wide body of State practice has developed, but considerable
refinement of legal techniqueis required. (p. 192)(words not
included in the quotation in the Reply have been italicised).
444. In fact, in the text of Chapter 8 of this work it is
revealed that the author is of the view that islands form "a
category of features which could fall within the special circum-
stances proviso" (p. 307, emphasis supplied). Thus Dr. Jayewar-
dene is lessthan categorical in his views.The author also refers to
the North SeaCases(I.C.J. Reports 1969,para. 57)and Statesthat
"[tlhe Judgment of the Court also offers further confirmation of .
the view that islands couldconstitute special circumstances" (pp.
307-308,emphasis supplied). Once again, the expression of view is
qualified in form. However, the author is incorrect in claiming
that the Judgment in the NorthSea Casessupports the view "that
islands could constitute special circumstances". The relevant
passage contains no such proposition, and refers only to "the
presence of islets, rocks andminor coastal projections".
445. In the Counter-Memorial the Government of Norway
gave a detailed account of the relevant decisions of international
tribunals (pp. 134-137,paras. 446-456; pp. 142-154,paras. 478-
527). The outcome was to demonstrate the misunderstandings of
the law presented in the Danish Memorial (pp. 81-90, paras.
274-288).
446. In particular, Norway found it necessary to make the
following points:
(a) The significance of a particular feature, such as an island,
must depend on its location in relation to other geographical
features and the geographical features of the area takenas a
whole.
The comparison between Jan Mayen and the role of the
(b) Channel Islands in the Anglo-FrenchCase is completely
inappropriate.(c) International tribunals do not draw conclusions on the basis
of a simple classification of features such as "islands", "long
coasts", and so forth.
447. The Danish Reply fails to mount a serious refutation of
the relevant parts of the Counter-Memorial. The Reply confines
its response to two paragraphs, in the first of which it is pointed
out that the International Court "has attributed less than full
effectto several islands in itsJudgments ....(p. 97,para. 268).The
paragraph appears in a section ofthe Reply (pp. 96-97)devoted to
a listing of delimitations in which islands have been given "partial
effect" and this perpetuates the abstract, categorical, and
question-begging methodology of the Memorial.
448. The second paragraph (Reply, p. 99, para. 276) forms
part of a similar academic catalogue under the heading "enclaving
of islands". There is here a reference to the unpublished award in
the Sharjah-DuhaiArbilration, in which it would seem that the
geographical framework was in no way comparable to the present
case.
449. The relevance of State practice willbe examined, in the
light of its treatment in the Reply, in the chapter which follows.
For the present it isnecessary to indicate certain major flawsin the
way in which the Danish Government evaluates and presents the
materials of State practice.
450. The first major flaw is to insist upon the relevance of
delimitations involving the presence of islands between opposite
long coasts abutting upon the same continental shelf area. In such
a situation a two-stage process cornes into play: first, the creation
of a primary delimitation on the basis of equidistance; and,
secondly, the need to establish whether this primary delimitation
should be adjusted to take account of orshore islands and islands
in the vicinity of theedian line. The present case bears no legal
resernblance to this type of scenario.
451. The second major flaw is to fail to see that islands are
generally given full effectwhen they are constitutive elements of
the geographical framework; that is, when an island abuts directly
upon thearea in which a delimitation isto be carried out,and thus
in itself in terms of coastal geography denotes a region orsub-region of maritime areas. Moreover, in this setting it is the
geographical significance of the island or islands rather than the
population or economic importance which counts.
452. The following are examples of situations of this type:
(a) The existence of a frontage of major islands (the Yugoslav
coastal front in the delimitation between Italy and Yugosla-
via).
(b) Islands forming a continuation of a mainland or of an island
group consisting of a core of larger islands (Bahrain-Saudi
Arabia; Norway-United Kingdom).
(c) A string of islands parallel to a long Coast (Australia-
Indonesia (Timor and Arafura Seas)).
453. This analysis will be developed further in the chapter
which follows. For present purposes it suffices to indicate the
importance attaching to islands which have a role in establishing
a framework of coastal relations and in pointing out a region or
sub-region of convergence. This role is unrelated to the economic
importance of the islands concerned.
454. Conversely, islands which do not play such a role are
given special treatment. Thus, for example, the islands between
Italy and Tunisia were semi-enclaved. For this reason this delim-
itation is invoked in the Reply (p. 98, para. 271), along with
others, as an example of reducing the effect of islands "causing
inequity" (Reply, p. 97, para. 269). This and similarexamples are
completely beside the point. The islands concerned are incidental
features in geographical terms and, given their location, are
accorded an effect which is relarivelyspeakingsignificant rather
than insignificant.
455. The confusion inherent in the thinking behind both the
Memorial and the Reply is highlighted by the frequent invocation
of the decision in the Anglo-FrenchCase, the methodology and
conclusions of which are inimical to the outcome for which the
Danish Government is striving in these proceedings.
456. The methodology of the Court of Arbitration involved
the establishment of various geographical regions which providedthe legal framework for delimitation. These regions were the
English Channel region, the Atlantic region, and the Channel
Islands region (see the Decision (of 30 June 1977), paras. 87-88,
103, 181-183, 187-188, 199, 201,204 and 237-248).
457. The legal framework employed for purposes of delim-
itation consisted of themajor geographical features of each region
and, in particular, the coasts of the Parties "actually abutting on
the continental shelf of' the particular region (cf. the Decision,
para. 248). On the basis of this creation of a framework for the
application of legal principles, the Court first of al1decided that
the general geographical framework produced a "primary bound-
ary" which took the form of a mid-Channel rnedian line (Decision,
para. 201).
458. The geographical framework of decision in the Anglo-
French Case did not consist of islands and no island had a role in
establishing the "primary boundary". Consequently the Decision
has no relevance to the situation in which an island is both
politically and geographically an independent feature forming
part of the framework of decision.
459. For the rest, the Anglo-French Case provides useful
examples of the diversity of the significance attaching to islands
which do not form part of the geographical and therefore legal
framework of decision. Thus the Scilly Islands were given half
effectnot becauseof their sire but because of "the distorting effect
on thecourse of theboundary of the more westerlyposition of the
Scillies" compared with Ushant (Decision,para. 248). In contrast
the French island of Ushant was given full effect (Decision,paras.
248-254).
460. The treatment of the Channel Islands fell within the
overall pattern. (Decision,para. 187).They were disadvantaged in
relation to the "primary boundary" and thus were "on the wrong
side" of the mid-Channel median line. (Decision, para. 199). In
addition, within the framework formed by the English Channel,
the Channel Islands were "wholly detached geographically from
the United Kingdom" (ibid).However, they were not accorded the
six-mile zone contended for by France but a twelve-mile zone
which involved the recognition of the 12-milefishery zone of the
Channel Islands (Decision,paras. 187, 202).
461. Moreover, a part of the legal framework of decision
consisted of "the limits of the territorial seas and coastal fisheries
of the French Republic and the United Kingdom in the ChannelIslands region"(Decisi onr. 187).In this context, it may be
noted that the assumption was one of the equality of the two
Parties in respect of fisheries, both States having established
12-milefishery zones.theconfiguration of coasts which isof primary legalrelevance and
that is a question unrelated to macrogeographical regions. Sec-
ondly, and conversely, it does not follow that delimitations
relating to "the actual area of delimitation" are comparable and
relevant since coastal relationships and relevant circumstances
may Varyeven within a region.
467. In the present context, it is necessary to point out that,
if practice in the North Atlantic region is adverted to, then the
norm of delimitation is the median line, as the Reply recognises,
referring to Canada-Greenland, Greenland-Iceland, Iceland-
Faroe Islands, Faroe Islands-Norway, and Shetland Islands-
Norway (Reply, pp. 122-123, para. 331). The only case of
delimitation not based on a rnedian line is that of Jan Mayen-
Iceland. Why, then, does Denmark prefer the exception to the
regional norm?
468. The principal focus of the section of the Reply devoted
to State practice is upon the substantial sample produced in the
Counter-Memorial of geographical situations which are compa-
rable to the relationship between Greenland and Jan Mayen and
which have been the subject of international agreement. The
Danish Reply (p. 86, para. 215) denies the comparability of the
examples presented in the Counter-Memorial (pp. 176-181,paras.
618-648) and this comprehensive denial calls for a response.
(1) Norway-UnitedKingdom(Phase 1)(1965)
469. The Reply (pp. 86-87, para. 216) cornplains that Nor-
way "fails to acknowledge the fact that the Shetland Islands
notoriously have a sizeable indigenous population of their own".
This criticism lacks validity on several grounds. First, it assumes
that population is a standard determinant of significance for
purposes of delimitation. A considerable population did not
prevent the enclaving of the Channel Islands (130,000 in 1977),
whilst Seal Island (a small population) was accorded half-effect
which was by no means an insignificant outcome given that this
involved a transverse displacement of the central segment of the
Gulf of Maine delimitation (which would also determine the
incidence of the all-important third segment: see Gulf of Maine
Case,I.C.J. Reports 1984,p. 336, para. 222). Both in the case of
the Channel Islands and in the case of Seal Island the primary
factor was location. 470. There is no proof that, even if the Shetland Islands
were uninhabited, the delimitation would have been affected. In
any case, of the 104islands in the group only 14are inhabited.
(2) Japan-Republicof Korea(1974)
471. The Reply (p. 87, para. 218) makes two complaints.
The first is that the Counter-Memonal "ignores the fact that the
Tsushima Islands are large islands of about 708 square kilome-
Ires". This cannot affect comparability. The Tsushima Islands are
some 70 kilometres in length; Jan Mayen is 53.6 kilometres long.
It is not established that area, as opposed to location, is relevant
to delimitation: and in the Libya-Malta Case the Court observed:
"Landmass has never been regarded as a basis of entitlement
to continental shelf rights, and such a proposition finds no
support in the practice of States, in the jurisprudence, in
doctrine, or indeed in the work of the Third United Nations
Conference on the Law of the Sea. It would radically change
the part played by the relationship between coast and
continental shelf. The capacity to engender continental shelf
rights derives not from the landmass, but from sovereignty
over the landmass; and it is by means of the maritime front
of this landmass, in other words by its coastal opening, that
this territorial sovereignty brings its continental shelf nghts
into effect. What distinguishes a coastal State with continen-
tal shelf rights from a landlocked State which has none, is
certainly not the landmass, which both possess, but the
existence of a maritime front in one State and its absence in
the other. The juridical link between the State's territorial
sovereignty and its rights to certain adjacent maritime
expanses isestablished by means of its coast. The concept of
adjacency measured by distance is based entirely on that of
the coastline, and not on that of the landmass." (I.C.J.
Reports 1985, p. 41, para. 49).
472. In any case, and for the record, Jan Mayen has an area
of 380 square kilometres.
473. The Reply also points out that the Tsushima islands
have a population of 47,000 but makes no attempt to prove that
this fact, ratherthan location, was the determining factor in the
delimitation. (3) India-lndones(Phase 1) (1974)
474. In this delimitation the Indian island of Great Nicobar
wasgiven full effect.The delimitation isdescribedin the Reply (p.
87,para. 220)as a "modified" equidistanceline. However,the line
is "modified" only in the sense that it is not technically a "true"
equidistance line (see the US Dept. of State, Limits in the Seas,
No. 62,p. 3).Consequently, thestatement that Great Nicobar was
given fullefïectremains unqualified.
475. The Reply goes on to challenge the comparability of
this item with the factors operating in the present case. The
reasons for the alleged lack of comparability are "because both
the opposite coasts consisted of narrow ends of linear island
chains, and secondly, because there was not a great disparity
betweenthe lengths of the relevant coasts, thecoastal front on the
Indian side being about 16 miles, and on the Indonesian side
about 20 miles in length."
476. These assertions involve an artificially narrow appre-
ciation of the length of the relevant coastal fronts. In the Danish
conception these are confined to the sections of coasts between
basepoints which generate the equidistance line. Such an ap-
proach is not in accordance with the principle that the relevant
coasts are those which abut directly upon the continental shelf
area in dispute: see the Decision in the Anglo-FrenchCase, para.
248. The coasts of Great Nicobar which satisfy this condition
consist of the whole eastcoast of Great Nicobar, a distance of 29
nautical miles. If the island fronts are taken, ignoring the gap
between Little Nicobar and Nancowry, the distance is 82 miles.
On the Indonesian side the relevant fronts total 325 miles
(Kepulan Kokos on the west coast of Sumatra to Northwest
Island and to Ujong Jambo Aje on the east coast).
477. There is no substantial basis for doubting the compa-
rability of the Great Nicobar delimitations (see also Phase 2
below,para. 481).The Reply(p. 87,para. 221)also allegesthat the
sizeof Great Nicobar was relevant, an assertion which is unprov-
able and in any case contrary to legal principle (see above, para.
471).
(4) Colombia-Panama (1976)
478. The criticismof the Norwegian presentation contained
in the Reply(p. 88,para. 224) isessentiallyan obfuscation, in view
of the fact that in the Caribbean delimitation the principle ofequidistance was substantially applied. In this connection it is
interesting to see the full text of the passage from the Canadian
Annexes quoted in part in the Reply:
"The assumption by the United States that a boundary has
been delimited in accordance with the equidistance method
only if it results in an equidistance line is further illustrated
by the inclusion of the Colombia-Panama boundary in the
Caribbean Sea in the United States list of boundaries that
incorporate equidistance lines only in part. This boundary,
in fact, provides an interesting example of the way in which
the equidistance method can be modified. The step-like
configuration of the boundary beyond turning point G
follows parallels of latitude and meridians of longitude in a
way that is intimately related to and derived from an
equidistance line. The boundary provided for an equal
exchange of areas in relation to a modified equidistance line
drawn to givehalf-effectto theColombian Albuquerque and
Southeast Cays, and fulleffect to the islands of San Andreas
and Providencia, while disregarding Roncador, whose sov-
ereignty is unresolved. The line is, in effect, a modified
equidistance boundary." (Gulf of Maine Case, Annexes to
the Reply submitted by Canada, Vol. 1,State Practice, p. 12,
para. 11).
(5) India-TheMaldives(1976)
479. In the submission of the Nonvegian Government the
considerations advanced in the Reply (pp. 88-89, paras. 227-228)
leave intact the statement of the Counter-Memorial to the effect
that: "Overall, the arrangements provide no evidence of discrim-
ination against ofîshore islands".
480. The Reply asserts, without supporting evidence, that
"Apparently, Minicoy was seenby lndia, not as an isolated island
but as the most southerly island in the Laccadive Islands ..."(p.
89, para. 228). In any event, even if this were the case, this would
not make Minicoy larger or less isolated. Moreover, the fact that
Minicoy is populated does not rebut the presumption that geo-
graphical factors were operating. (6) India-lndonesi(Phase2) (1977)
481. The analysis offered above in relation to Phase 1
(paras. 474-477) applies here also. In the analysis of this delimi-
tation by the Geographer of the Department of State the follow-
ing appears:
"The two countries have agreed to create a maritime bound-
ary using the equidistant methodology. As shown in Table 1
each turning/terminal point is essentially the same distance
from the respective baseline. The letters given to the turning
points in the Andaman Sea segment (K,N, and 0) suggest
that thecountriesmay have simplified theequidistant lineby
discarding some turning points (i.e.,L and M). It also
appears that al1islands and rocks have been given fulland
equal weight in the equidistant calculation." (Limits in the
Seas, No. 93, 17August 1981, p. 3).
(7) Colombia-CostaRica(1977)
482. The Reply (pp. 89-90, paras. 231-234) makes no at-
tempt to dispute the comparability of this delimitation, whilst
providing a certain amount of somewhat speculative political
history. The fact remains that the negotiators of the Agreement
found that the solution adopted corresponded to the geographical
situation.
(8) UnitedStates-Venezuela(1978)
483. The Reply (pp. 90-91, paras. 235-238) exhibits an
obscurely expressed unease about the role of Aves Island in this
delimitation. The incontrovertible fact remains that Aves Island
was given full weight.
(9) The Netherlands-Venezuel(1978)
484. The criticism offered in the Danish Reply (pp. 91-92,
paras. 239-243) is difficult to follow. The fact remains that the
sector of the delimitation involving the Dutch islands of Aruba,
Bonaire and Curacao (that is, presenting opposite coasts) is
almost an equidistance line (as the Reply (para. 242) concedes).
485. The Reply asserts (para. 241) that the Agreement of
1978 "is not an equidistance agreement". This is, with respect,
beside the point if in eflecr more or less full weightwas accordedto the offshore islands. The Danish argument amounts to saying
that the delimitation is not based upon pure equidistance. The
Geographer of the Department of State remarks:
"Although several of the boundary points are on or near an
equidistant line, this boundary is not based on the equidis-
tancemethod. Under a strict application of equidistance, the
Netherlands would have received a larger maritime area."
(Limits inthe Sens, No. 105, p. 5).
(10) Mexico-United States(1978)
486. The position of the Reply (p. 92, paras. 244-245) is
confused. The fact is that intheCaribbean full effect was givento
three small features. The Reply (para. 245) complains that the
Counter-Memorial did not refer to the Pacific sector of the
delimitation. However, in that sector also islands were given full
effect. Consequently, the reference to a "trade-off" in the Reply is
difficult to understand.
(11) India-Thailand(1978)
487. The text of the Reply (pp. 92-93, paras. 246-248)
appears to confirm the fact that the Nicobar Islands were given
full effect in this delimitation. The fact that full effect was also
given to "the relevant Thai islands" does not reduce the compa-
rability of the case. The Nicobars have been given full weight in
spite of their distance from India.
488. There is also an obscure reference in the Reply (para.
248) to the fact that the line between points 1and 2 is effectively
a continuation of phase two of the India-Indonesia boundary in
order to establish a tripoint. This cannot detract from the fact that
the delimitation consists of a line of equidistance.
(12)Norway-United Kingdom(Phase 2)(1978)
489. The relevant commentary has been set forth above
(paras. 469-470).
(13)Dominican Republic-Venezu( el979)
490. The treatment of this material in the Reply (pp. 93-94,
paras. 250-251)involves a complete obfuscation of the real issue. The fact that the Netherlands Antilles Islands were adopted by
third parties as a significant part of the legal framework of
delimitation does not involve downgrading the offshore islands.
In effect these islands were treated as if they were Venezuelan
islands havingfulleffect.
491. The Reply (p. 94, para. 252) seeks to deny the compa-
rability of this delimitation by reference to the population of the
Faroe Islands, their independent economy, and the fact that they
enjoy an independent political status. As on other occasions no
evidence is offered to supportthe assertion that factors other than
coastal configuration played a role. Not surprisingly: there is no
evidence. As stated in the foregoing (pp. 61-62, paras. 195-199)
this delimitation followed upon a governing delimitation agree-
ment between the Parties, prescribing the median line as the shelf
boundary. The median linewas applied as a matter of course both
for the shelf between the Nonvegian mainland and the Faroe
Islands, and for 200-mile zones. This followed the applicable
national laws of both Parties. On the Norwegian side, there was
no consideration of any other line of delimitation, and indeed, on
the basis of Norwegian law and Nonvegian approaches to mari-
time delimitation, any such thought would have been out of the
question.
(15) France-Venezuela(1980)
492. The observations in the Reply (p. 94, paras. 253-254)
fail to obscure the central fact that in general the small Isla Aves
and the much larger French islands had been treated on a basis of
parity. This remains true even if the alignment is not itself an
equidistance line. In the result Venezuela has been given almost
100 per cent of the areas which would have accrued from
equidistance as such in relation to Martinique and approximately
80 per cent of such areas in relation to Guadeloupe.
(16) Ausîralia-France(1982)
493. The Reply (p. 95, paras. 256-257) rejects the compara-
bility of this delimitation on the basis that the boundary "is
essentially a median line between two sets of broadly comparable
islands, with each set of islands being backed by long coastlines
..."This assertion fails to correspond with the facts relating to thedelimitation in the Indian Ocean: the reference in paragraph 256
to the delimitation in theoral Sea "with each set of islands being
backed by long coastlines" is otiose.
494. The delimitation in the Indian Ocean involves the
Kerguelen Islands which are a major feature with a frontage of
over 70 miles. In comparison the two opposite facing islands of
Heard and McDonald have very limited coasts abutting upon the
delimitation area. The delimitation of these two groups 200 miles
apart gives full effectto the verynor Australian islands, a result
which Denmark does not seek to controvert.
(17) India-Myanmar (Burma) (1986)
495. As on previous occasions the Reply (p. 95, para. 259)
introduces references to area, population, and economic activity
without seeking to establish the actual relevance. if any, of such
factors to the particular delimitation.
Comment
496. The survey now completed seeks to provide a balanced
impression of the relevant State practice, and is concerned to
correct the errors to be found in the commentary produced in the
Reply. It remains to point out that none of the examples of
geographically comparable practice provides even minimal sup-
port for the type of delimitation proposed by Denmark in the
present case.
497. At this point it isappropriate respectfully to remind the
Court that the perspective within which the Danish Government
evaluates the State practice presented on behalf of Norway is
deeply flawed.The most general flawis the insistencethat al1State
practice involving islands has a categorical reference. The other
major flaws flow from this lack of sensitivity to the geographical
and legal framework within which the process of delimitation
must take place.
498. The most significant error in the Danish analysis is to
fail to see that, when islands are by themselves part of the
geographical framework, they are generally given full effect. 499. The focus of the Danish arguments, like some of the
literature, is upon the category of "islands" as geographical
features. This type of approach ignores the procedure of delimi-
tation adopted in the practice of international tribunals. Tribunals
approach the geographical circumstances and coastal relation-
ships as a whole. In terms of the history of the dispute and the
major geographical features of the region a legal and geographical
framework is determined within which the process of delimitation
will be carried out.
500. The features which count for the purpose of determin-
ing the legal framework are the coasts actually abutting upon the
continental shelf of the region (see the Decision of the Court of
Arbitration in the Anglo-French Case, paras. 246, 248). The
criterion appears to be essentially the same in the case of
multi-purpose delimitation. The Chamber of the Court in the Gulf
of Maine Case referred to "the geographical area directly con-
cerned in this delimitation" (I.C.J. Reports 1984,p. 268,para. 28).
The Chamber also stated that: "The involvement of coasts other
than those directly surrounding the Gulf does not and may not
have the effect of extending the delimitation area to maritime
areas which have in fact nothing to do with it" (ibid p..,72,para.
41).
501. No doubt the identification of the geographical frame-
work involves a degree of appreciation. It is certain that this
process is not the same as the selection of "relevant coasts" for the
purposes of applying a proportionality test. Othenvise, the deter-
mination ofthe geographical framework isinevitably acraft based
upon experience and good sense. The relevant expenence consists
of State practice and jurisprudence of international tribunals.
502. The experience reveals a critical distinction in the
determination of the role of islands. Islands are given full effect
when they form part of the geographical framework and thus
constitute features which abut directly upon the area in dispute
and which consequently mark out a maritime region. In contrast,
islands which are incidental tosuch a geographical framework are
given special treatment commensurate with their different role.
The examples of "enclaving" and various other modes of giving
less than full effect to islands are in al1cases related to islands
which do not form part of the geographical and legal framework
within which delimitation takes place.
IIMn""I>rlimiurion 503. In the present dispute Jan Mayen has a role in estab-
lishing the geographical framework of delimitation and, in the
current usage, is to be given "full effect". This conclusion is
confirmed by reference to those special situations in which islands
in practice have qualified for special treatment.
504. Islands which have qualified for special treatment in
delimitation practice usually fall into one of the following cate-
gories:
(a) IslanakLocated Near the Primary Boundary
505. Many examples of special treatment involve islands
located near the line of the primary boundary resulting from the
principal geographical features of the region. Thus islands near
the median line may be given special treatment (Italy-Tunisia) or
in an appropriate case treated as cancelling out each other's effects
(Iran-Saudi Arabia).
(b) IslandrLocated in Sucha Wayas to Cause Distortion
of thePrimary Boundary
506. When an island is located in such a way that allowing
it to have fullefïect would cause an unreasonable distortion of the
primary boundary dictated by the applicable geographical frame-
work, then such an island will be given special treatment. This is
exemplified in the case of continental shelf delimitation by the
treatment of the Scilly Islands in the Decision of the Court of
Arbitration in the Anglo-FrenchCase (paras. 248-251). In the
context of multi-purpose delimitation the practice is well illus-
trated by the treatment of Seal Island by the Chamber of the
Court in the Guljof MaineCase(I.C.J.Reports 1984,p. 336,para.
222).
507. The treatment of the Channel Islands in the Anglo-
French Case is also essentially an example of this class of
delimitation, because it was essentially their location in relation to
the primary boundary which occasioned their disadvantage (see
the Decision,paras. 187-201). (c) Is/andFof State C Producing Local Frontages withina
Delimitation Area Framed by the Opposite FacingCoasts of
StatesA and B
508. This situation obtains in the Caribbean where the
Netherlands Antilles consists of an island chain of Dutch islands
(Aruba, Curaçao and Bonaire) lying off Venezuela. In this
situation the delimitations between Venezuelaand, in their role as
opposite States, the United States and the Dorninican Republic,
respectively, employed the northern face of the Netherlands
Antilles as the relevantoasts. Thus the islands of theNetherlands
Antilles were given full effect for the purpose of delimitations
between third States (see the Counter-Memorial, pp. 178-179,
paras. 633-634; p. 180,paras. 639-640).
509. Whatever the complexities of the position in theCarib-
bean, thesolutions adopted do not suggest that offshore islands of
a differing sovereignty are to be given short shrift.
(d) Islanàs Situated Near IO a Coast and being
under the Same Sovereignty
510. Islands which are situated close to a coast and sharing
the same title to sovereignty may be ignored or given lessthan full
effect. In some cases the island is so closely associated with the
coast that there is no case for giving the feature an independent
effect.Thus, if the geographical framework is taken to include the
general direction of the pertinent coast, a relatively small discor-
dant feature will be ignored, as Jerba was in the Tunisia-Libya
Case (I.C.J. Reports 1982, p. 85, para. 120).
51 1. Similarly, islands which are situated close to the coast
willbe given lessthan "full effect". The reasons for this result will
depend on a variety of factors: see the Tunisia-LibyaCase (ibid., p.
89 para. 129) (relating to the Kerkennah Islands); and the
delimitation between Iran and Saudi Arabia (relating to the
Iranian island of Kharg). Such islands do not form part of the
geographical framework and, given their location, are given
appropriate weight.
512. It can be stated with confidence that the situation of
Jan Mayen does not bear any similarity to the islands within the
four categories accorded special treatment in practice. Jan Mayen
is an independent feature geographically speaking and is a majordeterminant of the delimitation area. Consequently, it cannot be
located "near the primary boundary"; and it cannot cause a
distortion of the primary boundary.
513. In the same context Jan Mayen does not fall within the
third category of cases of special treatment. Jan Mayen is not
situated in a delimitation area between the coasts of opposite
States and so no question of a "screening effect" can arise. Nor
can Jan Mayen be classified as an island situated near to a Coast
and under the same sovereignty.
514. As a matter of principle Jan Mayen is an independent
geographical feature with a substantial frontage opposite Green-
land. These two opposite-facing frontages form the basis for a
pnmary boundary which is the median line, an alignment recog-
nized and confirmed by the conduct of the Parties. Jan Mayen
thus constitutes a part of the geographical framework within
which delimitation is assessed.
515. The question which remains is whether there is any
justification for the "correction" or "modification" of the pri-
mary boundary in accordance with equitable principles. There is
in fact no basis recognized by the law that would justify such
"correction" or "modification", and this conclusion will be
amplified in Chapter XII below (pp. 169-184).
516. The equitable standards indicated by the State practice
establish that an island in the position of Jan Mayen should be
treated as normal land territory and should therefore be given
"full effect".
517. The application of equitable pnnciples involves refer-
ence primarily to geographical factors and the configuration of
coasts. It is location, which is a matter also of configuration of
coasts, which is the predominant consideration. It follows that
area is not relevant and the tendency of the Danish Government
to insist on area is eccentric and not in accord with legal principle.
In its Judgment in the Libya-Malta Case the Court firmly rejected
the relevance of landmass to the generation of continental shelf
nghts: (I.C.J. Reports 1985, pp. 40-41, para. 49). 518. In the same context the Award of the Court of
Arbitration in the Guinea-Guinea-BissauCase expressed the
following view:
"As for proportionality with relation to the land mass of
each State, the Tribunal considers that thisoes not consti-
tute a relevant factor in this case. The rights which a State
may claim to have over the sea are not related to the extent
of theterritory behind its coasts, but to thecoasts themselves
and to the manner in which they border this territory. A
State with a fairly small land area may well be justified in
claiming a much more extensive maritime territory than a
larger country. Everything depends on their respective mar-
itime facades and their formations." (Award, International
Law Reports (Ed. E. Lauterpacht), Vo1.77,p. 688,para. 119).
519. It isto be noted that in the Guinea- Guinea-BissaCase
the Award made reference to land mass only in the context of
reference to "additional circumstances" as a means of checking
the equity of the result based upon the more important relevant
circumstances (see the Award,ibid.,pp. 685-690, paras. 112, 125).
520. The significance of location and coastal configuration
also dictates the essential irrelevance of population and economic
activity for maritime delimitation purposes. This is particularly
the case in relation to islands and other features which constitute
the geographical framework of the delimitation area. Interna-
tional tribunals show no interest in the degree to which such
"framework" features are populated or are associated with eco-
nomic activity. That has been fully confirmed in the practice of
international tribunals.
521. It is nevertheless a recurrenteme that population and
economic importance may be regarded as relevant in relation to
islands. Apart from any misunderstandings in this respect which
might derive from a wishfully broad interpretation of Article 121,
paragraph 3, of the 1982 Law of the Sea Convention, certain
comments in the Anglo-FrenchCaseand in the Gulfof MaineCase
could mistakenly be read as supporting this contention.
522. In the Anglo-FrenchCase, the Court of Arbitration
made reference to "the equitable considerations invoked by the
United Kingdom as carrying a certain weight" (Decision,para.
198). Those considerations covered a series of unrelated factors.
In the paraphrase of the Court, they included "the particular
character of the Channel Islands as not rocks or islets butpopulous islands of a certain political and economic importance",
and "the close ties between the islands and the United Kingdom
and the latter's responsibility for their defence and security".
These factors were claimed as a reason for linking the island shelf
ta that ofthe United Kingdom. The other considerations invoked
by the United Kingdom were directly related ta the geography of
the region, and ta the viewthat thedrawing of a median line ta the
Westand north of the islands would not cause any "disproportion
or exaggeration".
523. In according "a certain weight" ta the argument of the
United Kingdom, the Court of Arbitration addressed al1 these
considerations as a whole. The only effect denving from these
considerations was to invalidate the French proposal to reduce the
entitlement of the Channel Islands to a six-mileenclave (Decision,
para. 198).
524. In the Gulfof Maine Case, the Chamber discussed the
presence off Nova Scotia of Seal Island as "one aspect which,
though minor, might have some influence ...".In the words of the
Judgment:
"The Chamber considers that Seal Island (together with its
smaller neighbour, Mud Island), by reason of its dimensions
and, more particularly, of itsgeographicalposition, cannot be
disregarded for the present purpose. According ta the
information available to the Chamber it is some two-and-a-
half miles long, rises ta a height of some 50 feet above sea
level, and is inhabited al1 the year round. It is still more
pertinent to observe that as a result of its situation off Cape
Sable, only some nine miles inside the closing line of the
Gulf, the island occupiesa commandingposition in the entry
ta the Gulf." (I.C.J. Reports 1984, pp. 336-337, para. 222;
emphasis added).
525. It will be seen that the reference to population is
incidental ta a generaldescription of the island. It was a reasoning
exclusivelybased upon the geographicalrelationshipof Seal Island
ta other geographical features in the region which led the Cham-
ber ta find it "appropriate" ta give the island half effect (in the
calculation of the ratio of coastline lengths by which a trueedian
line would be adjusted, ibid., and Technical Report, ibid., p. 350,
paras. 12-13). 526. It should be noted that the incidental references to
island populations in both these instances were made in a context
where the island or islands did not form part of the legal
framework of the delimitation.
527. It is necessary to underline that the categories of
"population" or "economic activity" are not terms of art. If, for
the sake of argument, it is assumed that non-geographical factors
are relevant to a particular delimitation, such factors cannot be
put into compartments.
528. In the Anglo-French Case the Court of Arbitration
treated navigational, defence and security considerations as "equi-
table considerations" to be given a certain weight. At the same
time the Court made it clear that such considerations were
subordinate to the geographical circumstances of the region
constituted by the opposite coasts of the English Channel. Fur-
thermore, the Court also indicated that geography more or less
determined the existence of the predominant interests of the
parties in particular areas of the English Channel.
529. The relevant passage in the Decision of the Court of
Arbitration is as follows:
"Other elements in the framework are the various equitable
considerations invoked by the Parties regarding their respec-
tive navigational defence and security interests in theegion.
These considerations may be, and have been, urged by both
Parties as supporting the solutions which they advocate: by
the French Republic in favour of a continuous link between
the eastern and western parts of its continental shelf in the
Channel; and by the United Kingdom in favour of a
continuous link between the continental shelf and the Chan-
nel Islands and that of the mainland. Moreover, the weight
of such considerations in this region is, in any event,
somewhat diminished by the very particular character ofthe
English Channel as a major route of international maritime
navigation serving ports outside the territories of either of
the Parties. Consequently, they cannot be regarded by the
Court as exercising a decisive influence on the delimitation
of the boundary in the present case. They may support and
strengthen, but they cannot negative, any conclusions that
are already indicated by the geographical, political and legal
circumstances of the region which the Court has identified.
As to the conclusion to be drawn from those considerations
in connection with the delimitation of the continental shelf. the Court thinks it sufficientto Saythat, in its view,they tend
to evidencethe predominant interest of the French Republic
in the southern areas of the English Channel, a predomi-
nance which is also strongly indicated by its position as a
riparian State along the whole of the Channel's south
coast." (Decision,para. 188).
530. This passage gives full expression ta a consideration
which is foreign ta the Danish pleadings, that is ta Say,that the
significanceof sea areas as such is a measure of the delimitation
within the region. Moreover, it is also pointed out that the status
of riparian State is itself an interest ta be given appropriate value.
531. It may be of some interest ta compare directly the
geography which dictated the solution in the Anglo-FrenchCase,
and that which obtains in the region between Jan Mayen and
Greenland. The sketch maps at page 157show both situations, on
the same scale. The configuration of the coasts of France and the
United Kingdom, with their island appendages, and the cramped
and close relationship between these coasts, is clearly apparent.
The open and spacious sea area which separates Jan Mayen and
Greenland, and the uncomplicated relationship of oppositeness of
their coasts clearly distinguish the two situations.Geographical Situation of Jan Mayen and Greenland
Compared with the Channel Region CHAPTERIX
THE SUBSTANTIAL INTERESTOF NORWAY
IN THE JAN MAYENMARITIME REGION
532. The purpose is twofold. First, in view of the nature of
the Danish response to the relevant section in the Counter-
Memorial (paras. 567-596),the argument in the latter isconfirmed
both as to the law and as to the facts.
533. The nature of the response in the Reply (pp. 158-159,
para. 436)is to make a concession to the effect that the Applicant
Statedoes "not deny that Norway has indeed shown an interest in
exploitingdifferent hunting and fishing grounds far away from its
own shores". The concession is, of course, accompanied by a
denial that such an interest is legally relevant. It is necessary for
the Norwegian Government to examine the bases of this denial,
and that examination is the second purpose of the present chapter.
534. The reasons offered in the Reply for denying the legal
relevance of Nonvay's interest in the region are varied. The
description of Norway's fishery policy as "expansionist" can only
be described as fanciful. The historical reference to the origins of
the concept of the exclusive economic zone is question-begging
and is an indirect expression of the Danish conception that Jan
Mayen does not have a normal entitlement to maritime zones.
535. The passage concerned is as follows:
"Indeed, a major factor in the international efforts to
establish 200-mile exclusive economic zones in favour of
coastal States was precisely the need generally felt by the
international community to have these States, and among
them especially the developing countries, protected against
exploitation of the resources in their adjacent waters by
long-range fishingfleets from highly developed and indus-
trialised countries a situation which corresponds well to
Norway's activities close to the shores of Greenland"
(Reply, p. 159,para. 436). 536. On further examination this appears to be a presenta-
tion of the unequal access to resources thesis which the Court
rejectedin the Libya-MallaCase (I.C.J. Reports 1985,p. 41, para.
50),and which did not find favour with the Court of Arbitration
which decided the Guinea - Guinea-BissauCase (see the Award,
InternationalLaw Reports(Ed. E. Lauterpacht), Vol. 77, p. 689,
para. 123). Such an argument is in any case inappropriate. First,
of all, it isinappropriate becauseGreenland has closetieswith the
fishenes operations of the EEC. Secondly, Greenland as a sepa-
rate geographical unit has extensive accessto fishenes resources,
together with sealing and whaling (see in particular pp. 27-40,
paras. 87-119, above).
537. In parenthesis, it may be pointed out that it is Den-
mark which isclaiming a virtual monopoly of the resources in the
region between Greenland and Jan Mayen.
538. The Reply (para. 436 infine) observes that "Norway,
therefore, is not a coastal State in relation to the presentelimi-
tation dispute". This iscertainly true in respectof the mainland of
Nonvay but it isnot true in relation to thecoastal frontages of Jan
Mayen. Moreover, the Reply insinuates that Norway can have no
"substantial interests" in respectof Jan Mayen becausethe island
has no permanent population. This proposition is based on a
faulty legalpremise: that no legitimateinterest can existin such an
area. In any event Norway has in the Counter-Memorial carefully
indicated the nature of itsinterest in the Jan Mayen region and in
the Reply Denmark has conceded the substance (whilst insisting
on its irrelevance).
539. In the Counter-Memorial (p. 164,paras. 567-569)the
Nonvegian Government indicated a factor of considerable legal
importance concerning which the Reply has chosen to remain
silent. This factor is the symbiotic relationship between the land
territory of the coastal State and its interestsin themaritimeeas.
The interest of Norway in the maritime areas of the region is
enhanced by virtue of its sovereignty over Jan Mayen; and
Nonvay's sovereignty over Jan Mayen is enhanced by its interest
in the maritime areas adjacent toJan Mayen.
540. In the final analysis, the existenceof Norwegian tern-
tory in the region provides the entitlement to appurtenant mari-
time areas and a substantial legal interest is to be presumed. It is
sovereignty over land territory and location which form thepnmary evidence of legal interest. In the jurisprudence of the
Court, emphasishas always been placed upon the role of the Coast
of each of the Parties which:
"constitutes the starting line from which one has to set out
inorder to ascertain how far the submarine areas appertain-
ing to each of them extend in a seaward direction, as wellas
in relation to neighbouring States situated either in an
adjacent or opposite position". (Judgment of the Court in
the Tunisia-LibyaCase,I.C.J. Reports 1982,p. 61, para. 74;
and see also the Libya-Malta Case, I.C.J. Reports 1985, p.
40, para. 47). CHAPTER X
SECURITY CONSIDERATIONS AND THE COASTAL
STATE'SPROTECTIVE INTERESTS
541. The Danish Government appears to accept the Nor-
wegian position as to the relevance of security considerations as
such: see the Counter-Memorial, page 162(paras. 561-562),and
compare the Reply, page 159(para. 437).
542. However, the Counter-Memorial presented two other
issues in this connection about which the Reply has nothing to
Say.First, the Norwegian Government expressed its concern for
the protective interest which a coastal state has in relation to
maritime areas and their resources. (Counter-Memorial, p. 163,
paras. 563-565).The practical ramifications of this, and the system
of support and assistance for fishing vessels in theegion, were
also setforth in detail (ibid., p. 168, paras. 586-589).As it was
pointed out, thisinterest of Nonvay isdirectly connected with the
exploitation of the resources of the maritimeeas appurtenant to
the island (ibid.,p. 169,para. 590).This type of interest, together
with an interest in future exploitation of mineral resources in the
shelf, cannot be accommodated by reliance upon a territorial sea
and contiguous zone. (cf. the Reply, p. 159,para. 437).
543. The second issueignored in the Reply isthe fundamen-
ta1consideration that a delimitation should not create an imbal-
ance in the relative security position of the two Parties, as this
clearly be inequitable. (Counter-Memorial, p. 163,paras.
would
565-566).A notable feature of the jurisprudence is that, whilst
courts are unwilling toallow considerations of security to intrude
upon the major task of establishing a primary boundary in
accordance with geographical criteria, they are concerned to avoid
creating conditions of imbalance.
544. There can be little doubt that this was a factor in the
decision of the Court of Arbitration in the Anglo-FrenchCase to
enclave the Channel Islands,because to do otherwise would have
failed to recognize "the predominant interest of the French
Republic in the southern areas of the English Channel": see the
Decision(para. 188;cf. also paras. 197-198).
545. A similar concern for balance in this context is evident
in the Award in the Guinea - Guinea-BissauCase: "Ta the economic circumstances, the Parties linked a cir-
cumstance concerned with security. This is not without
interest, but it must be emphasised that neither the exclusive
economiczone nor the continental shelf are zones of sover-
eignty. However, the implications that this circumstance
might have had wereavoided by the fact that,in itsproposed
solution, the Tribunal has taken care to ensure that each
State controls the maritime territones situated opposite its
coasts and in their vicinity. The Tribunalhas constantly been
guided by itsconcern ta find an equitable solution. Its prime
objective has been to avoid that either Party, for one reason
or another, should see rights exercised opposite its Coast or
in the immediate vicinity thereof, which could prevent the
exercise of its own right to development or compromise its
security." (International Law Reports (Ed. E. Lauterpacht),
Vol. 77, p. 689, para. 124)
546. It is evident that the claims formulated by Denmark in
these proceedings are incompatible with any such conceptions of
avoiding irnbalance in matters of protection and security, and are
essentially inequitable. Moreover, in this context, the conditions
prevailing in the North Atlantic, the distance between Jan Mayen
and mainland Norway, and the existence of patterns of economic
and associated activities in the adjacent maritime areas, are
circumstances which cannot be taken ta diminish the significance
of the protective interest of Norway. CHAPTER XI
CERTAIN IRRELEVANT FACTORS
INVOKED BY DENMARK
547. In a casual and disjointed fashion the Reply invokes a
number of factors to support the "200-mile outer limit" claim
which are legallyirrelevant. The purpose of the present chapter is
to examine these factors.
548. From time to time the Reply invokes area as a factor in
delimitation: seethe passages at page 5,paragraph 10,andp. 114,
para. 308;the various references to area in the sections devoted to
State practice (pp. 87,para. 218;p. 87,para. 221;p. 95, para. 259;
p. 96, paras. 261-262);and certain other references (forxample,
at p. 165,para. 453).
549. These references to area are not supported by any
authority and theDanish Government makes no attempt to refute
the legal authorities set forth in the Counter-Memonal (pp.
173-174,paras. 606-610) which indicate the irrelevance of land
mass. The Court is respectfully referred to the passages in the
Counter-Memorial.
550. The relevance of area is also contradicted by State
practice and, in particular, by the delimitation betweennmark
and Norway in respect of the Faroes (Counter-Memorial, Annex
69). The total land area of the Faroes is 1,399square kilometres
(540 square miles). The major discrepancy between this and the
area of the adjacent parts ofainland Norway was clearly of no
relevance to the delimitation.
551. The Reply contains persistent references to the factor
of population: see the passages at pages 156-157(para. 429), 158
(para.435), 159(para. 436), 163(para. 445), 165(paras. 452-453),169(para. 463). As in the case of the references to "area", so here
there is no attempt to provide authonty for the relevance of
population.
552. As a matter of legal principle, the factor of compara-
tive population is as irrelevant as the argument relating to
landmass. Population is not a factor relating to the title of a
coastal state to shelf areas. In the case of fishery conservation
zones and exclusive economic zones the basis of title is related to
the possession of a coast and the elements of protection and
management of resources inherent in control of a coast and the
adjacent maritime areas.
553. Thus population iscompletely unrelated to the basis of
entitlement of the coastal state. The population factor, like the
landmass, is not linked juridically with the concepts of coastline
and of adjacency measured by distance: see the Judgment in the
Libya-Malta Case (I.C.J. Reports pp. 40-41, para. 49). This
consideration applies with more rather than less force in the case
of long-distance delimitation involving the distance principle and
claims to zones up to 200 miles from the baselines.
554. The operation of a population factor in the context of
delimitation is also ruled out by its lack of reliability. In the
Tunisia-LibyaCase the Court rejected economic considerations
precisely because of their unpredictability. In the words of the
Judgment:
"The Court is, however, of the view that these economic
considerations cannot be taken into account for the delimi-
tation of the continental shelf areas appertaining to each
Party. They are virtually extraneous factors since they are
variables which unpredictable national fortune or calamity,
as the case may be, might at any time cause to tilt the scale
one way or the other. A country might be poor today and
become rich tomorrow as a result of an event such as the
discovery of a valuable economic resource." (I.C.J. Reports
1982,p. 77, para. 107).
555. In the Libya-Malta Case the Court set aside economic
considerations on the basis that they are unrelated to the basis of
entitlement. In the words of the Judgment:
"The Court does not however consider that a delimitation
should be influenced by the relativeeconomic position of the
two States in question, in such a way that the area of continental shelf regarded as appertaining to the less rich of
the two States would be somewhat increased in order to
compensate for its inferiority in economic resources. Such
considerations are totally unrelated to the underlying inten-
tion of the applicablerules of international law. It is clear
that neither the rules determining the validity of legal
entitlement to the continental shelf, nor those concerning
delimitation between neighbouring countries, leaveroom for
any considerations of economic development of the States in
question." (I.C.J. Reports 1985, p. 41, para. 50).
556. In the practice of international tribunals, the elements
of population and economic importance have not been treated as
relevant in relation to maritime delimitation. In terms of geo-
graphical description, these elements may have been mentioned,
but tribunals have not in fact given them any importance in the
actual determination of boundaries. In this respect, islands have
not been treated differently from mainland features: see para-
graphs 520-526above.
557. There is,moreover, no evidence in the practice of states
that population has any significance either in determining the
overall design of the particular delimitation or in the selection of
basepoints. This proposition can be tested by reference to the
practice of the Parties to these proceedings. The United Kingdom
and Norway have concluded two delimitation agreements (in 1965
and 1978) concerning the continental shelf areas between the
Shetland Islands and Norway: see the Counter-Memorial, An-
nexes 44 and 67.
558. These related delimitations are based upon geograph-
ical considerations and result in equidistance lines. The northern-
most 20 miles of the 1965boundary, and the whole of the 1978
boundary, are controlled by two outlying features of the Shetland
group (Outer Flaess and Out Stack). Out Stack is an isolated and
uninhabited rock. Outer Flaess is a rock near the inhabited island
of Unst. The population of Unst isapproximately 1100(but many
of these people are employees of the Royal Air Force). There is
not the slightest indication either in the text of the delimitation
agreements or in the characteristics of the resulting boundaries
that population had any relevance.
559. The same is true of the continental shelf delimitation
concluded between Norway and Denmark relating to the areas
between the Faroes and Norway in 1979 (Counter-Memorial,
Annex 69). 560. In any case,as Norway has pointed out in the Counter-
Memorial, the comparisons between Jan Mayen and Greenland
do not produce indications which are unfavourable to Norway. A
very smallproportion of the population of Greenland liveswithin
the Arctic Circle (at the same latitudes as Jan Mayen). Moreover,
the vast area of Greenland produces a low density of one person
per 40square kilometres.The Jan Mayendensity isone person per
15 square kilometres. Only 6 per cent. of the population of
Greenland lives in East Greenland (see the references in the
Counter-Memorial, p. 175,para. 616).
561. In the same mode as "area" and "population", the
Reply invokes "constitutional status" as a relevant factor in
various passages: see pages 158(para. 439, 163(para. 449, 165
(para. 453), and 169(para. 463). These references are al1casual
and no attempt is made to justify the assumption that "the
constitutional status of the respective territones" is relevant to
delimitation.
562. There is no evidence intheState practice to justify such
an assumption. Moreover, a perusal of significantmonographs on
maritime delimitation published in recent years fails to uncover
referencesto "constitutional status" as a relevant circumstance or
factor: see, forexample, Evans, Relevant Circumstances in Mari-
time Delimitation, Oxford, 1989;and Weil, The Law of Maritime
Delimilation - Refections, Cambridge, 1989.
563. In any event, the foreign relations of Greenlandremain
under the direct control of the Danish Government: see the
Memorial(pp. 33-34,paras. 133-138).Consequently, Greenland is
for present purposes Danish territory and the legislation of
Denmark concerning both the Continental shelf and fisheries
consistsof Decrees,Acts, and ExecutiveOrders in the usual form.
564. As the Court indicated in the Libya-Malta Case, it is
not the political statusof an island which is pertinent but whether
or not the island concerned:
"formed a part of the territory of one of the surrounding
countries. This aspect of the matter is related not solely to
the circumstances of Malta being a group of islands, and an
independent State, but also to the position of the islands in the wider geographical context, particularly their position in
a semi-enclosed sea." (I.C.J. Reports 1985,p. 42, para. 53).
As will be seen, the Court's consideration concentrated on the
"surrounding" geography, the "wider geographical context", and
the position of Malta in a semi-enclosed sea.
565. The Reply contains two passing references to "cultural
heritage" as a relevant factor: see pages 163(para. 449, and 169
(para. 463). No elucidation is provided and such a consideration
is absent from State practice and from the literature concerning
maritime delimitation. The concept of "cultural heritage" does
not figure in the list of "the relevant factors in the present case"
contained in the Memorial (pp. 95-111, paras. 294-356).
566. The Reply (pp. 169-170,para. 465) refers to the "ice
condition along Greenland's east coast" as a "factor operating in
favour of the 200-mile linemeasured from the actual baselines of
Greenland". The reason given for this assertion is the fact that
"throughout the year only part of Greenland's 200-mile fishery
zone is accessible by boat or ship".
567. The argument is fiawed in two respects. In the first
place it is question-begging: the Danish 200-milefishery zone is a
part of the delimitation area and overlaps the boundaries claimed
by Norway. The extent of the zone is thus in issue and the zone is
not itself a quantity to be weighed in a balancing of equities.
568. Secondly, there is no evidence that the application of
equitable principles could involve giving such weight to naviga-
tional interests that the boundary line related to geographical and
legal circumstances would be displaced. In so far as the jurispru-
dence provides any indications on this subject, the evidence
suggests that such interests may be invoked in order to confirm
the primary boundary emerging from the geographical frame-
work: see the Decision of the Court of Arbitration in the
Anglo-FrenchCase (para. 188). 569. The Danish argument concerning accessibilityby boats
and ships in the waters off eastern Greenland is contradictory.
The icecondition isinvoked as a factorsupporting a monopolistic
claim. The inference must be that Greenland is disadvantaged by
the fact that the masses of ice in the waters off East Greenland
create problems which must be compensated for in delimitation.
That approach isentirely alien to the law. But it isdoubly ironical
if this argument is put forward at the same time as Denmark
insists that Jan Mayen by virtue of itsdesolate nature, its isolation
and alleged dificulty in communications is thereby disqua/i/iedto
an equal entitlement and an evenhanded delimitation. CHAPTER XII
THE ELEMENTSOF AN EQUITABLESOLUTION
570. In this Chapter the Norwegian Government will
present the elements of an equitable solution seen against the
background of the Memorial, Counter-Memorial, and Reply.
571. It is axiomatic that delimitation is effected within a
certain legal and geographical framework. The determination of
this framework has three elements. The first involves a reference
to the history of the dispute and the overlapping claims of the
Parties.
572. The second element involves reference to the principal
geographical features of thearea to which the conflicting claims of
the Parties relate. Thus the selection is not an abstract geograph-
ical exercise but a question of geographical areas related to the
dispute. Thus in the North Sea Cases, it was the southern sectors
of the North Sea which were the areas in which the claims of the
Parties converged: see the Judgment, I.C.J. Reports 1969, pages
49-50, paragraphs 89, 91. Similarly, the Chamher of the Court in
the Gulfof Maine Case took considerable care in deciding which
was "the geographical area directly concerned in this delimita-
tion" (I.C.J. Reports 1984,p. 268,para. 28 (and see also at p. 273,
para. 41)).
573. The third element is closely related to the second and
consists of the determination of the coastal frontages which are
the critical features in view of the general configuration of the
coasts of the Parties.hus, in the case of the Atlantic region, the
Court of Arbitration in the Anglo-FrenchCase stated that "the
method of delimitation which it adopts for the Atlantic region
must be one that has relation to the coasts of the Parties actually
abutting on the continental shelf of that region". (Decision, para.
248).As the Court stated in its Judgment in the Libya-Malta Case:
"The juridical link between the State's territorial sovereignty
and its rights to certain adjacent maritime expanses is
established by means of its Coast.The concept of adjacency measured by distance is based entirely on that of the
coastline, and not on that of thelandmass." ( I.C.J. Reports
1985,p. 41, para. 49).
574. The geographical framework in the present dispute,
assessed in the light of these legal considerations, consists of the
opposite-facing frontages of Greenland and Jan Mayen, the latter
having a frontage 53.6kilometres in length. Both theeastern coast
of Greenland and Jan Mayen are features which stand indepen-
dently and do not form part of an external geographical frame-
work.
575. Jan Mayen is located 250 nautical miles from Green-
land and its eastern and northern coast front upon extensive areas
of high seas: see Map IV appended to the Counter-Memorial.
There are no other geographical features involved. These facts
constitute significant elements in the framework of delimitation.
576. On the basis of the legal and geographical framework
it isnormal for international tnbunals to carry out the process of
delimitation in two stages. The first stage involves establishing a
provisional or primary boundary which may be subject to modi-
fication in the light of certain relevant circumstances. Thisodus
operandi was applied by the Chamber in the Guifof Maine Case
(I.C.J. Reports 1984, pp. 327-328, paras. 195, 197).It was also
employed by the Court in the Libya-Malta Case (I.C.J. Reports
1985,pp. 46-47, paras. 60-61).
577. Title to seabed areas and the water column depends on
sovereignty over coasts, and the concept of adjacency thus
requires translation into a distancecriterion. In the Guifof Maine
Case the Chamber of the Court gave clear expression to the
principle of equal division (Counter-Memorial, pp. 124-126,pa-
ras. 421-424).In relation to the geography of coasts theChamber
expressed its position thus:
"Within this framework, it is inevitable that the Chamber's
basic choice should favour a criterion long held to be as
equitable as it is simple, namely that in principle, while
having regard to the special circumstances of the case, one
would aim at an equal division of areas where the maritime projections of the coasts of the States between which delim-
itation is to be effected converge and overlap." (I.C.J.
Reports 1984, p. 327, para. 195).
578. ~he Reply-(pp. 153-154, para. 417) asserts that "No
principle of equal division is pronounced by the Chamber". This
isan artificial reaction to a passage in the Counter-Memorial (pp.
125-126,para. 423) quoting the Chamber which expressly refers to
the "criterion" ofequal division. Moreover, the Judgment of the
Chamber contains a considerable number of passages which
obviously have not come to the attention of the Danish Govern-
ment.
579. Two other relevant passages from the Judgment may
be quoted:
"This method is inspired by and derives from a particular
equitable criterion: namely, that the equitable solution, at
least prima facie, is an equal division of the areas of overlap
of the continental shelves of the two litigant States. The
applicability of this method is, however, subject to the
condition that there are no special circumstances in the case
which would make that criterion inequitable, by showing
such division to be unreasonable and so entailing recourse to
a different method or methods or, at the very least, appro-
priate correction of the effect produced by the application of
the first method". (I.C.J. Reports 1984, pp. 300-301, para.
115).
"There has been no systematic definition of the equitable
criteria that may be taken into consideration for an interna-
tional maritime delimitation, and this would in any event be
difficult apriori, because of their highly variable adaptability
to different concrete situations. Codification efforts have left
this field untouched. Such criteria have however been men-
tioned in the arguments advanced by the parties in cases
concerning the determination of continental shelf bound-
aries, and in the judicial or arbitral decision in those cases.
There is, for example, the criterion expressed by the classic
formula that the land dominates the sea; the criterion
advocating, in cases where no special circumstances require
correction thereof, the equal division of the areas of overlap
of the maritime and submarine zones appertaining to the
respective coasts of neighbouring States ...." (ibid., pp.
312-313, para. 157). 580. In addition, apart from paragraphs 115, 157and 195,
already quoted, there are a further seven passages in which the
criterion of equal division features prominently (I.C.J. Reports
1984,p. 328,para. 197;pp. 329-330,para. 201;pp. 331-332,para.
209; p.332, para. 210; pp. 332-333,para. 212; p. 333,para. 213; p.
334, para. 217).
581. The Reply (p. 154,para. 418)also complains that "one
looks in vain in international legal sources to find a 'principle of
equal division'..". In response to this comment it has to be said
that any detailed account of maritime delimitation would be at
fault if no reference were made to the principle of equal division.
It is, therefore, not surprising to find several passages in Professor
Weil'smonograph which givesignificanceto the criterion of equal
division: see Weil,TheLaw of Maritime Delimitation - Reflections,
Cambridge, 1989,pp. 57-58, 195.With reference to the decision in
the Gulf of Maine Case Professor Weil analyses the position as
follows:
"As a result, theChamber begins by drawing a median line;
then, finding in a 'second stage'that this provisional line
might 'produce an unreasonable effect if uncorrected', en-
gages in the 'specific task of correction', which, by taking
into account the position of the land boundary and the
comparative length of the two coastal fronts, will result in a
'corrected median line'. Even for those segments where it
refused to take equidistance as the point of departure, the
Chamber adopts a two-stage process, but in a slightly
different form. The first stage consists in the equal division
of the areas of overlap. This 'basic criterion', however, may
in certain geographical conditions prove inequitable and will
then, at a second stage, have to be 'adjusted or flexibly
applied' in order to make it 'genuinely equitable ...in
relation to the varying requirements of a reality that takes
many shapes and foms'. This is why, in certain cases, the
starting point of an equal division of zones of overlap must
be 'combined' with 'appropriate auxiliary criteria'. The
originality of this approach liesin the fact that the two stages
are defined lessby relation to a method than to an equitable
principle: the first stage, in particular, is characterised more
by the equitable principle of the equal division of zones of
overlap than by use of the equidistance method." (ibid., p.
195;footnotes omitted).
582. The modus operandi adopted by the Chamber in the
Gulfof Maine Case related to a multi-purpose delimitation. In theLihya-Malta Case essentially the same two-stage approach was
adopted in the context of continental shelf delimitation (I.C.J.
Reports 1985,p. 47, paras. 62-63).
583. The jurisprudence emphasises that in the context of
delimitation of areas between opposite States the equitable
boundary will normally be on the basis of a median line. Thus the
Judgment in the North SeaCasesstated that:
"Before going further it will be convenient to deal brieîly
with two subsidiary matters. Most of the difficulties felt in
the International Law Commission related, as here, to the
case of the lateral boundary between adjacent States. Less
diflïculty was felt over that of the median line boundary
between opposite States, although it too is an equidistance
line. For this there seems to the Court to be good reason.
The continental shelf area off, and dividing, opposite States,
can be claimed by each of them to be a natural prolongation
of its territory.hese prolongations meet and overlap, and
can therefore only be delimited by means of a median line;
and, ignoring the presence of islets, rocks and minor coastal
projections, the disproportionally distorting effect of which
can be eliminated by other means, such a line must effect an
equal division of the particular area involved ..." (I.C.J.
Reports 1969, p. 36, para. 57).
584. This position was to be restated in several contexts by
the Court of Arbitration in the Anglo-FrenchCase (Reports of
lniernationalArbitral Atvards,Vol. 18,pp. 51-53, paras. 85-87; p.
56,para. 95;pp. 58-59,para. 103;p. 88, para, 182;pp. 94-95,para.
201;pp. 110-111,para. 237;pp. 111-112,para. 239).The principle
was adopted by the Chamber in the Gulfof MaineCasein relation
to a multi-purpose delimitation: (I.C.J. Reports1984,pp. 329-333,
paras. 201-213;pp. 333-334,para. 216). In the Libya-Malta Case
the Court formulated the principle once again, this time in relation
to the delimitation of shelf areas: (I.C.J. Reports 1985, p. 47,
paras. 62-63).TheCourt quotedthe passage from theJudgment in
the North Sea Casesquoted in the preceding paragraph.
585. The coasts of Greenland and Jan Mayen are opposite
coasts and as a consequence of the geography of the coasts the
delimitation should be a median line. As the Chamber in the Guy
of Maine Case emphasises, it is geography which prescribes the
principle of division (I.C.J. Reporis 1984, p. 331, para. 206; pp.
333-334,para. 216).There is no other geographical feature present
which would require any adjustment of the median line. 586. The judicial authorities quoted above (paras. 583-584)
state that the median line delimitation between opposite coasts
will besubject to "correction" (Guyof Maine Case, I.C.J. Reports
1984,pp. 334-335,paras. 217-218)or "adjustment" (Libya-Malta
Case, ibid., 1985,pp. 50, para. 68; 51-53,paras. 71-73) in order to
take account of other geographical factors which constitute
sources of inequity.
587. It may be noted that any such process of correction or
adjustment is required to be essentially compatible with the legal
and geographical framework and is therefore limited in extent.
588. Such modifications in the primary boundary based on
a median line can only be compatible with equitable principles in
three types of situation, and the case of Jan Mayen does not fit
into any of these special cases, which will now be examined.
(a) Incidental Special Features withina GeographicalSituation of
Quasi-equality
589. The passage from the Judgment in the North Sea Cases
(I.C.J. Reports 1969,pp. 49-50, para. 91)(Counter-Memonal, pp.
127-128, para. 428) states very clearly that the abating of the
effects of an "incidental special feature" can take place only if
there is "a geographical situation of quasi-equality as between a
number of States". Thus there could be no question "of rendering
the situation of a State with an extensivecoastline similar to that
of a State with a restricted coastline". The Court explains further:
"Equality is to be reckoned within the same plane, and it is not
such natural inequalities as these that equity could remedy".
590. In accordance with this approach international tribu-
nals have, when the facts allowed, determined the existence of
geographical situations of quasi-equality. In the North Sea Cases
the quasi-equality took the form of "three States whose North Sea
coastlines are in fact comparable in length and which, therefore,
have been given broadly equal treatment by nature ..."(I.C.J.
Reports 1969, pp. 49-50, para. 91). In the Anglo-French Case the
coasts of the mainlands of the Parties faced each other "in a
relation of approximate equality" (Reports of International Arbi-
tral Awards, Vol. 18, pp. 87-88, paras. 181-182; see also p. 94,
para. 199). In the Gulf of Maine Case the Chamber placedemphasis on the geographical coherence of the interior of theGulf
ofMaineand the quasi-parallelism between theopposite coasts of
Massachusetts and Nova Scotia (I.C.J. Reporls1984, pp. 333-334,
paras. 215-217).
591. In the geographical circumstances of the present case
there is no "geographical situation of quasi-equality as between a
number of States". Jan Mayen is an independent feature 250
nautical miles east of Greenland. There is no geographical nom
of quasi-equality, but merely a relationship of juxtaposition and
distance. There is geography but there are no "incidental special
features". Jan Mayen ispart of the legal framework andcannot be
in any sense "incidental", especially unto itself.
592. Given that "equality is ta be reckoned within the same
plane", there isno equitable basis for "adjustment" of the median
line boundary in the present case. Incidentally, it may be noted
that the Reply (p. 155, para. 420) recognises that "no quasi-
equality exists in geographical terms" in the present case. How-
ever, the Norwegian Govemment considers that this admission is
probably based upon a misreading of the Judgment in the North
Sea Cases, and is therefore reluctant to rely upon it.
593. Jan Mayen and Greenland are two islands whose
relative locations are charactenzed by a relationship of pure
juxtaposition and distance. There is no complicated geography;
there are no external "incidental special features". Jan Mayen
constitutes one of the two main features which define the geo-
graphical framework.
(b) TheGeneralGeographicalContexr
594. In the Libya-Malta Case the Court gave a certain
weight to the position ofMalta as a group of islands "in the wider
geographical context, particularly their position in a semi-
enclosed sea" (I.C.J. Reports 1985, p. 42, para. 53). This consid-
eration was later elucidated in the following passage from the
Judgment:
"In the present case, the Court has also to look beyond the
area concerned in the case, and consider the general geo-
graphical context in which the delimitation will have ta be
effected. The Court observes that delimitation, although it
relates only to the continental shelf appertaining ta two
States, is also a delimitation between a portion of the southern littoral and a portion of the northern littoral of the
Central Mediterranean. If account is taken of that setting,
the Maltese islands appearas a minor feature of thenorthern
seaboard of the region in question, located substantially to
the south of the general direction of that seaboard, and
themselves comprising a very limited coastal segment. From
the viewpoint of the general geography of the region, this
southward location of the coasts of the Maltese islands
constitutes a geographical feature which should be taken
into account as a pertinent circumstance; its influence on the
delimitation Linemust be weighed in order to arrive at an
equitable result." (I.C.J. Reports 1985,p. 50, para. 69).
595. The same Judgment referred once again to "the general
geographical context in which the islands of Malta appear as a
relatively small feature in a semi-enclosed sea" (I.C.J. Reports
1985, p. 52, para. 73). As in the previous passage quoted, the
emphasis is upon the introverted geographical and political
framework constituted by the northern and southern littorals of
the Central Mediterranean as a region.
596. The situation of Jan Mayen stands in complete con-
trast. The general geographical context is charactenzed by open-
ness and the sea areas are unconlined. Moreover, there is no
enclosed or semi-enclosed sea area of which the extensive mari-
time areas between Greenland and Jan Mayen form part. There is,
in particular, no equivalent to the ltalian littoral.
(c) SmallIslandsClose to the MedianLine
597. The final category of situations in which equitable
principles cal1for some modification of the primary delimitation
constituted by a median line consists of cases in which islands not
forming part of the geographical framework lie near the median
or are otherwise located in such a way as to causedistortion of the
primary boundary. Such islands qualify for special treatment and
the relevant categones have been examined in Chapter VI11above
(pp. 150-151,paras. 504-511).
598. The legal sources envisage modification resulting from
minor features within some larger framework. The relevant
passages in the North SeaCases refer to "the presence of islets,
rocks and minor coastal projections" and to "an incidental special
feature" (I.C.J. Reports 1969,p. 36, para. 57; pp. 49-50, para. 91;
respectively).The operative provisions of theJudgment list, as thefirst of relevant factors, "the general configuration of the coasts of
the Parties, as well as the presence of any special or unusual
features" (ibid., pp. 53-54, para. 101(D)).
599.
Jan Mayen does not fall within any of these categories
involving modification of a median line, inter alia, because it
constitutes a part of the geographical framework of the delimita-
tion. It cannot be regarded as incidental to any other mainland
feature or coast. Moreover, political circumstances are relevant:
seethe Decision in the Anglo-FrenchCase (Reporls of International
Arbitral Awards, Vol. 18, p. 90, para. 188). The location of Jan
Mayen does not involve the creation of an intrusion into an area
surrounded by the coasts of Greenland, similar to the position of
theChannel Islands close to the French coast and within the Golfe
Breton-Normand. The areas of overlapping claims in the present
case are, so to speak, geographically neutral. Jan Mayen has no
connection with the coasts of Greenland apart from the fact of its
position 250 nautical miles distant from Greenland.
600. In the circumstances of the present dispute the equita-
ble character of the median line boundary is confirmed by other
relevant circumstances or factors:
The substantial interest of Norway in the Jan Mayen
(a) maritime region; and
(b) The protective interest of Norway in relation to maritime
areas, their resources, and associated activities.
601. It is evident that considerations of this type militate
against any cause of imbalance. This must be a particularly cogent
factor in relation to the exploitation of resources and access to
natural resources both in the present and in the future. Equality
remains the ruling concept in maritime delimitation aimed at
achieving an equitable result.
602. The equitable nature of the median line is also con-
firmed by the conduct of the Parties, the role of which as an
element of the equitable solution was elucidated in the Counter-
Memorial (pp. 154-161,paras. 528-560). 603. Norway has demonstrated that in comparable geo-
graphical situations, involving essentiallysimilar coastal relation-
ships, the normal standard of equity involves giving full effectto
major offshore islands facing opposite coasts under the sover-
eignty of another State: seethe Counter-Memorial, pages 176-183,
paragraphs 618-658.
604. The practice establishes decisively that islandswhich
form part of a framework of delimitation are given "full effect"
(in the jargon). That is toSaythey are given full faith and credit
as land territory of the particular coastal State. This aspect of the
matter has been examined in Chapter VI11above, pages 149-152,
paragraphs 502-513, where it was shown that only islands not
fonning part of the geographical framework are given special
treatment.
605. The State practice also includes five delimitations
involving geographical and political circumstances directly com-
parable to the relationship of Jan Mayen and Greenland. These
cases relate to relationships between a long coast and a single
island at a substantial distance from that coast. Three of them
have been discussed in the foregoing: India-Indonesia (both
phases, paras. 474-477and 481);Japan-Republic of Korea (paras.
471-473); Australia-France (paras. 493-494). In addition, the
delimitations between Bahrein and Iran (1971) and Italy and
Spain (1974) apply the pnnciple of equidistance between a long
coast and a singleisland at a substantial distance.
606. In general the State practiceconfinns that the critical
factors in delimitation are coastal configuration and relationships,
that is to Say, location, rather than area, population, or the
economic significanceof the land territory.
607. It is a commonplace that international tribunals refer
to the factor of proportionality as an ex post facto test of the
equitable character of a delimitation resulting from the applicable
pnnciples and rules of international law.The position in respectof
the present dispute has been carefully examined in the Counter-
Memorial (pp. 189-192,paras. 679-688).The Reply adds nothingto the treatment of the subject in the Memorial (see the Reply, p.
163,paras. 445-446). Consequently, the Norwegian Government
respectfully asks the Court to refer in general to the relevant
passages in the Counter-Memorial.
608. In conclusion it may be noted that the Reply makes no
effort to rectify the cardinal error propounded in the Memorial,
according to which proportionality ispresented as an independent
method of delimitation. The decisions of international tribunals
have been consistent in rejecting this view:see theDecision of the
Court of Arbitration in the Anglo-FrenchCase, (Reports of
InternationalArbitral Awards); Vol. 18, p. 58, para. 101; the
Judgment of the Chamber in the Gulf of Maine Case (I.C.J.
Reports1984,p. 323,para. 185);and theJudgment of the Court in
the Libya-Malia Case (ibid., 1985,pp. 45-46, para. 58).
609. It will be helpful to point out the link which the
Chamber in the Gulf of Maine Case discerned between the
requirements of multi-purpose delimitation and the criterion of
the equal division ofareas of convergence. The relevant passages
in the Judgment are to be found at paragraphs 191to 203. The
essential reasoning is caught in particular in the following pas-
sages:
"194. In reality, a delimitation by a single line, such as that
which has to be carried out in the present case, Le., a
delimitation which has to apply at one and the same time to
the continental shelf and to the superjacent water column
can only be carried out by the application of a criterion, or
combination of criteria, which does not give preferential
treatment to one of these two objects to thedetriment of the
other, and at the same time is such as to be equally suitable
to the division of either of them. In that regard, moreover, it
can be foreseen that with the gradua1 adoption by the
majority of maritime States of an exclusive economic zone
and, consequently, an increasingly general demand for single
delimitation, so as to avoid as far as possible the disadvan-
tages inherent in a plurality of separate delimitations, pref-
erence will henceforth inevitably be given to criteria that,
because of their more neutral character, are best suited for
use in a multi-purpose delimitation." "195. To return to the immediate concerns of the Chamber,
it is, accordingly, towards an application to the present case
of criteria more especially derived from geography that it
feels bound to turn. What is here understood by geography
is of course mainly the geography of coasts, which has
primarily a physical aspect, to which may be added, in the
second place, a political aspect. Within this framework, itis
inevitable that the Chamber's basic choice should favour a
criterion long held to be as equitable as it is simple, namely
that in principle, while having regard to the special circum-
stances of the case, one should aim at an equal division of
areas where the maritime projections of the coasts of the
States between whichdelimitation is to be effected converge
and overlap." (I.C.J. Reports 1984, p. 327).
610. The Guv of Maine Cuse had its origins in a Special
Agreement, specifically requesting a single maritime boundary.
However, the statements quoted concern issues of general princi-
ple. Although the Chamber gives particular stress to the connec-
tion between multi-purpose delimitation and the criterion of equal
division, thestatements are equallyvalid for a shelfor fisheryzone
delimitation.
611. It is generally recognizedthat an equitable delimitation
should take into account, in the sense of not prejudicing, the
claims of third States whose coasts abut upon the same maritime
areas. The legal position maintained by the Government of
Nonvay does not involve prejudice to the rights of any third State.
612. The artificiality of the figuredescribed in the Memorial
as the "area relevant to the delimitation dispute" has been
explained in the Counter-Memorial (pp. 148-149,paras. 503-506).
The Reply (pp. 11-16,paras. 19-32)does not show any substantial
change in the thinking of the Danish Government. The disputed
area is defined by the simple overlap of the median line boundary
and theextravagant Danish proposal of the 200 mileouter limit of
Greenland's fisheryzone and continental shelf.That result follows
from the fact that Nonvay by its own legislation, and by itsinterpretation of the rules of international law, is precluded from
claiming sovereign rights beyond the median line, for the water
column as wellas for the shelf.It followsthat the disputed area is
one-sided;it distorts the picture whichappears if the full shelfand
zonal generation potential of Jan Mayen is taken into consider-
ation; and it is artificial, becauseit disregards important elements
of the geography.
613. The Danish Reply is accompanied by Map VI, which
depicts the construction of a line 200 nautical miles from Green-
land. That map adequately illustrates the shelfand zonal genera-
tion potential of Greenland, if Jan Mayen had not been located
where it was. Map VI, appended to the present Rejoinder,
includes the corresponding and countervailing potential of Jan
Mayen. This map showsthat there isa broad area ofoverlapofthe
areas of shelf and zone. Although Nonvay does not, and cannot,
pursue a claim beyond the median line,it may beuseful to have a
clear picture of that potential area of overlap of claims.
614. The use of the loose terms "delimitation area" or
"relevant area" has no independent significance in legal terms.
What matters in a legal evaluation are the actual geographical
configurations and coastal relationships. The terms "delimitation
area" or "relevant area" serve to identify the regional circum-
scription of those coasts and their configurations which influence
the delimitation. The practical effect of identifying the "relevant
area" is firstly to indicate the region within which the boundary
will have its course. It is secondly to exclude from further
consideration the geography which liesoutsidethis area.
615. In the case of opposite coasts, the relevant area should
illustrate the essential relationship, which is one of frontal oppo-
sition. There isno point in defininga surfacearea, for the purpose
of assessing or measuring its acreage. The surface area as such
does not bring the delimitation process further; it does not make
it easier to determine an equitable delimitation.
616. The Danish pleadings have put fonvard essentially
congruent depictions of the "relevant area" Such an exercise is
somewhat figurative, and, as stated, is only an indirect tool in
identifying which coastlines are to be taken into account.
617. In the present case several versions of a relevant area
can be constmcted, al1 different from the model presented by
Denmark, to bring out the element of frontal opposition. 618. The type of exercise involved in constructing such
intellectual tools is normally a part of the process by which
geographical facts are analysed and fitted into a legal framework.
A related but substantially distinct operation is involved when a
tribunal considers that a disparity in the lengths of the coasts of
the Parties constitutes a relevant circumstance to be taken into
account. Thissituation also calls for a fairly precise determination
of the relevant coasts: see the Judgment in the Libya-Malta Case
(I.C.J. Reports 1985, pp. 49-50, paras. 67-68).
619. Any coast which itself is determinative in the shaping
of the geographical framework has thereby manifested its impact
on the delimitation process. Such a coast is not automatically
subject to discounting by the mechanical comparison of its length
with that of another relevant coastline.
620. The coast of Jan Mayen is clearly one which deter-
mines the geographical framework for the delimitation of mari-
time areas in the region between Jan Mayen and Greenland. That
is regardless of how one chooses to construct the "relevant area".
There are quite simply only two coastlines to consider; they are
not equal in length, but they contribute on a basis of equality to
the definition of any "relevant area", and indeed, to the definition
of the dispute.
621. It is to berecalled in this context that the effects of any
adjustment of a primary delimitation in the light of a disparity of
coastal lengths have been of small scale. There are good reasons
for this. The parameters of adjustment are highly impressionistic
and if substantial adjustment takes place, the objective reliance
upon geography, by means of the instruments of distance and
adjacency, will be destroyed.
622. It is for this reason that the process of modification of
a primary delimitation on the basis of a median line is expressed
by tribunals exclusively as the "adjustment" of the median line
and not its displacement or invalidation. Thus in the Guvof Maine
Case the Chamber refers to the "correction" of the median line
(I.C.J. Reports 1984, pp. 334-337,paras. 218-223).The alignment
does not lose its normative integrity as a median line. Similarly, in
the Libya-Malta Case the Court refers to "the adjustment of the
median line" (I.C.J. Reports 1985, p. 50, para. 68; pp. 51-53,
paras. 71-73).Moreover, a consideration appliedby the Court was
the need to decide on this adjustment "without ceasing to have an
approximately median location" (ibid.,~. 52, para. 73). 623. In the submission of the Norwegian Government,
reference ta disparity in coastal lengths leads directly to the
problems which international tribunals have indicated, if propor-
tionality were to be treated as an independent principle of
delimitation. A lack of clear and decisive articulation of the
reasons for an adjustment conduces to the view that the process
itself is close to the limits of legal principle.
624. The fundamental question is the significance of the
pnnciple of distance as the basis of title and the relation between
distance and actual geography of coasts. Distance focuses upon
location, basepoints, and relationships of coasts. Ratios or com-
parisons of coastal lengths bear no logical relation either ta
location or to relationships.
625. Reliance not only upon ratios of coasts but also upon
other criteria involving coastal length involves a departure from
real geography, an abuse of the concept of entitlement, and the
injection of disguised elements of land mass and geophysics. Such
risks are present particularly in a situation of opposite facing
coasts, preciselybecause any departure from the median line can
only be at the expense of the prevailing geographical relationships.
Moreover, these nsks are increased, rather than diminished, in a
situation in which there is no semi-enclosed sea and no "Italian
coast". In other words there are no "parameters of adjustment"
comparable to those detected by the Court in the Libya-Malta
Case.
626. Those considerations are respectfully commended to
the Court in relation to the Danish Government's proposais
concerning "the relevant area" in the present case.
627. In conclusion the Norwegian Government considers
that the median line represents an equitable delimitation in the
present case bath in respect of fisheriesjurisdiction and in respect
of continental shelf areas. It is not necessary to summarize the
considerations expounded above in support of this conclusion.
However, there are certain points to be made by way of clarifica-
tion and emphasis.
628. In the geographical circumstances of Greenland and
Jan Mayen the drawbacks of the equidistance method which theCourt was concerned to avoid in the North Sea Casesare not
present. On the contrary, preciselybecause considerations of title
and distance generate a median line boundary, any departure
from this alignment would do violenceto legal principle.
629. Proportionality considerations in whatever form do
not produce either reasons for a particular alignment or reasons
for a particular adjustment to an alignment. Reference to the
comparable lengths of coasts can only reflect spatial and distrib-
utive elements which the Court rejected in the North Sea Cases.
The difference in coastal lengths is impossible to articulate in
termsof a boundary.
630. To giveeffectto a factor basedon coastal lengthsin the
present case would be to erect this factor into a pnnciple of
entitlement (see the Judgment of the Court in the Libya-Malta
Care on this point: I.C.J. Reports 1985,p. 45, para. 58). Such a
result would be incompatible with the true basis of title, which is
distance. It would also be incompatible with the principle of
general international law, confirmed in Article 121of the Law of
the Sea Convention, according to which islands constitute land
territory.
631. The position of the Danish Government on the ques-
tion of coastal lengths remains more than a little obscure. It is
dificult to see howthe categoncal relianceupon the outer limit of
200 nautical miles can be related to, much lessjustified by, any
legalconception of proportionality.
632. The distance of Jan Mayen from Greenland is neither
a geographicaladvantage nor a geographicaldisadvantage. It is a
geographical (and political) datum. The practice of States in
comparable situations confirms the view that considerations of
size and distance do not justify elements of cut-off or encroach-
ment. The frontal opposition of coasts under the sovereignty of
different States connotes equality both of entitlement and delim-
itation. PARTIII
CONCLUSION CHAPTER 1
THE IRRELEVANCE OF REFERENCES TO BEAR ISLAND
633. Denmark continues, in the Reply, to invoke as a
relevant elementof State practice what itersists in referring to as
the "delimitation" between the Fisheries Protection Zone around
Svalbard (Spitsbergen), and the Economic Zone off Norway's
mainland coast (Reply, pp. 100-108,paras. 277-298).The Norwe-
gian Government is therefore bound to reiterate its position as set
out in the Counter-Memorial (p. 66, para. 231).
634. The Economic Zone off mainland Nonvay was estab-
lished with effectfrom 1January 1977,pursuant to Royal Decree
of 17 December 1976 (Counter-Memorial, Annex 25). The en-
abling Act of the same date, relating to the Economic Zone of
Nonvay (Counter-Memorial, Annex 24), specifically authorizes
the King to determine that the establishment of the zoneshall be
carned out at varying dates in regard to different waters (Section
1, first paragraph). It was decided as a first stage only to establish
a zone off thecoast of mainland Norway.
635. In accordance with Section 1,second paragraph, of the
Act, the outer limit of the mainland zone would be drawn at a
distance of 200nautical milesfrom baselines,"but not beyond the
median line in relation to other States" (emphasis supplied). In
establishing the 200-milemainland Economic Zone, Norway did
not consider and did not effect any "delimitation" vis-à-vis Bear
Island nor any otherpart of the Svalbard archipelago, which form
an integral part of the sovereign State of Norway. A full 200-mile
zone was established from the mainland, also in areas where the
distance between the mainland and Spitsbergen is less than 400
nautical miles.This, of course, demonstrates theegal position in
relation to Svalbard as a part of theKingdom of Nonvay, but
obviouslycannot be seenas a "delimitation", nor as evidencethat
Norway would disregard islands like Bear Island (or any other
island in the Svalbard archipelago) in the event of a delimitation
under international law between sovereignStates.
636. The Fisheries Protection Zone around Svalbard was
established with effect from 15 June 1977 (pursuant to Royal
Decree of 3 June 1977;Counter-Memorial, Annex 26). Section 1,
third paragraph, of the Decree specifiedthat the zone extends to
an outer limit of 200nautical milesfrom baselines(or correspond-
ing linesbetweenheadlands where baselineshad not been formallyestablished),to the outer limit ofthe mainland zone, and to agreed
limits where the zone was adjacent to the area of jurisdiction of
another State.
637. The more recentlyestablishedzonewasthus definedon
the basis of the configuration of the previously existing zone.
Again, no delimitation was intended, or even considered, as
between parts of Svalbard and the Norwegian mainland.
638. It is clear that there can be no question of any
delimitation, as that concept is known in intemational law,
between two maritime areas both subject to the same sovereign
authority, both under the surveillanceof the same Coast Guard,
both givingriseto thejurisdiction of the samecourts in relation to
law enforcement (cf. Counter-Memorial, p. 137,para. 459).
639. As stated in the Counter-Memorial (at p. 65, para.
230),policyconsiderations linked to possibly differingviewswith
regard to the interpretation of the 1920SpitsbergenTreaty played
a part in determining the scopeof the regulations for the Fisheries
Protection Zone. Nonvay chose to limit that scope to those
conservation and administrative measures which werenecessary
to cover actual resource management needs and to ensure the
proper and orderly conduct of fishing operations (cf. Counter-
Memorial, p. 65, para. 230).
640. The Govemment of Denmark appears to suggest that
the line of separation between two Nonvegian maritime areas is
an intemational delimitation. It bases its argument in that regard
on various aspects of the 1920 Spitsbergen Treaty, and the
difference of views in relation thereto. The Govemment of
Denmark has at the sametimeconclusivelydemonstrated that the
circumstancespertaining to Svalbard and the Fishenes Protection
Zone are unique. It has thereby effectivelyacknowledgedthat the
line of separation between the Fisheries Protection Zone and the
mainland economic zone cannot have any significance as a
precedent.
641. The Norwegian Govemment, when exercising sover-
eign authority with regard to the waters around Svalbard, is of
course free to adopt such measures as are adjusted to Nonvay's
general policy.at any time. In the Reply, the Government of
Denmark makes a number of statements touching upon the
status,interpretation and implicationsof the Treaty of 9 February
1920 relating to Spitsbergen. Any discussion of matters which
might arise in that respect is entirely extraneous to the presentproceedings.The NorwegianGovernmentwill thereforenot take
up a rebuttal of any particular statement relatingthereto. It
reservesits position in respect of any and al1such statements. CHAFTER II
PRINCIPAL CONCLUSIONS
642. On the basis of the Rejoinder now presented to the
Court the Norwegian Government reaffirms the general conclu-
sions formulated in the Counter-Memonal @. 196,para. 701).
643. The Norwegian position is to be understood primarily
in the light of the bilateral relations of the Parties and the relevant
chronological sequence. The continental shelf rights of Norway
did not, in terms of general international law, depend upon
express claim or specific legislation.ch nghts arose ipso facto
and by operation of law.
644. The question of delimitation of the continental shelf
between the Parties to these proceedings was conclusirely deter-
mined by Article 1 of the bilateral Agreement of 1965. As a
consequence of this Agreement, and the conduct of the Parties, a
median line boundary was established for al1parts of the conti-
nental shelf.This boundary, based as it was upon the pnnciple of
agreement, was also in conformity with the stipulation of agree-
ment as the primary criterion of delimitation contained in Article
6 of the Convention of 1958,and with the congruent claims and
legislation of both Parties.
645. On the basis of the conduct of the Parties, the median
line boundary was recognized as constituting a delimitation of
adjoining fishenes zones between Greenland and Jan Mayen, the
specific legislation of the Parties having made such recognition
inevitable.
646. There have been no developments in general interna-
tional law which could affect the validity of the median line
boundary. The principle of consent is entirely compatible with
general international law, and the principle of the stability of
boundaries applies with equal strength both to land and to
maritime boundaries.
647. Without prejudice to the operation of the principle of
consent, the validity of theedian line boundary receives inde-
pendent support and confirmation from the equitable pnnciples
forming part of general international law. In the geographical
circumstancesobtaining in the region of Jan Mayen there are no
legalconsiderations requiring the modification of the median line
boundary. CHAPTER III
THE NATUREOF THE JUDICIAL FUNCTION
IN THE PRESENT PROCEEDINGS
648. In its Application of 16August 1988 Denmark fomu-
lated its request to the Court in the following tenns:
"..to decide, in accordance with international law, wherea
singlelineofdelimitation shall bedrawn betweenDenmark's
and Norway's fishing zones and continental shelf areas in
the waters between Greenland and Jan Mayen".
649. In its Memonal of July 1989the Danish submission
was refonnulated as follows:
"To adjudge and declare that Greenland is entitled to a full
200-milefisheryzone and continental shelfarea vis-à-visthe
island of Jan Mayen; and consequenrly
To draw a single lineof delimitation of the fishingzone and
continental shelf area of Greenland in the waters between
Greenland and Jan Mayen at a distanceof 200nautical miles
measured from Greenland's baseline."
650. In the Danish ReplyofJanuary 1991thesecondpart of
the submission has receiveda further addition:
"(...from Greenland's baseline), the appropriate part of
which is given by straight lines (geodesics) joining the
followingpoints in the indicated order: ..."
651. While the first part of the refomulated submissionis a
request for the Court to adjudge separately on the entitlement to
the continental shelf and the fisheryzone, the second part of the
submission, in the same manner as the original application, asks
the Court "to draw a single line of delimitation".
652. In its Counter-Memorial (pp. 1-4,paras. 5-13and pp.
197-198,paras. 702-704)the Norwegian Government stated its
position in regard to two procedural issues arising out of the
Danish submissions.
653. In the first place Norway pointed out that to the extent
that a claim for a single maritime boundary was a claim'to a
delimitation of a different nature, such a claim would not be
admissible without a Special Agreement between the Parties. SUBMISSIONS
Havingregard to the considerations set forth in the Nonvegian
Counter-Memorialand this Rejoinder, in particular, the evidence
relating to the relations of the Parties at the material times, and
maintaining without change the submissions presented in the
Counter-Memorial,
May it please the Court to adjudgeanddeclarethat:
(1) The median line constitutes the boundary for the purpose of
delimitation of the relevant areas of the continental shelfbetween
Nonvay and Denmark in the region between Jan Mayen and
Greenland;
(2) The median line constitutes the boundary for the purpose of
delimitation of the relevant areas of the adjoining fisherieszones
in the region between Jan Mayen and Greenland;
(3) The Danish claims are without foundation and invalid, and
that the Submissions contained in the Danish Memorial are
rejected.
Oslo, 27 September 1991
Bjern Haug Per Tresselt
(signed) (signed)
Agents of theGovernmentof theKingdomof NorwayANNEXES LIST OF ANNEXES
(inehronologicalrder)
Annex 83: Crown Prince Regent's Decree of 30 June
1955concerning the Basepoints for Jan
Mayen .........................................9..........
Annex 84: Memorandum from the Embassy of Denmark
in Oslo to the Nonvegian Ministry of Foreign
Affairs handed over 10July 1963concerning
the Danish Royal Decree No. 259 of 7 June
1963on the Continental Shelf ................2.01....
Annex 85: Danish Billconcerning the Continental Shelf
submitted on 13January 1971 ...............2.03....
Annex 86: Letter of 2 December 1974from the
Norwegian Minister of Industry to the United
States National ScienceFoundation
concerning Drilling Operations on the Vsring
Plateau ......................................2...........
Annex 87: Danish Billconcerning the Fishing Territory
of the Kingdom of Denmark submitted on 9
November 1976 .............................2.........
Annex 88: Excerpts of Records of Proceedings of the
Folketing 1976-77,relating to the Bill
conserning the Fishing Territory of the
Kingdom of Denmark .......................2.........
Annex 89: Message of 27 August 1981from the
Norwegian Ministry of Defence to the Coast
Guard VesselK/V Farm concerning
Inspections in the Disputed Area .............237..
Annex 90: Press Release of 30 August 1981from the
Danish Ministry of Foreign Affairs ............38.
Annex 91: Message of 30 August 1981from the Naval
Command North Nonvay to the Coast Guard
VesselK/V Farmconcerning Inspections in
the Disputed Area ...........................23.......
Annex 92: Executive Order No. 437 of 31 August 1981
on Amendment of Executive Order No. 176
of 14 May 1980on the Fishing Territory in
the Waters surrounding Greenland ...........240..Annex 93: TelexMessage dated 21 September1981from
the FaroeIslands Landsstyrito the Norwegian
Directorateof Fisherieson the Faroese
CapelinFisheryin the FisheryZone between
Jan Mayen and Greenlandin 1981 .............2.1
Annex 94: Minutesof Meetingin Copenhagen21 June
1988 ........................................ 244Translation ANNEX 83
Crown Prince Regent'sDecree of 30 June 1955
concerningBasepoinb for Jan Mayen
III. The outer limit for the Norwegian Fishery Zone for Jan
Mayen shall be drawn (according to Royal Decree of 22 February
1812) four nautical miles beyond and parallel to the straight
baselines between the following points:
Base- PositionofBasepoint
point Nsmeof Basepoint
No. LatihideN LongitudeW
1. Nordkapp, skerry on the east side .... 71"09,6' 7' 57,T
2. Austkapp ............................. 71"08,8' 7' 56,l'
3. Ssraustkapp ............................71"01,T. 7"59,8'
4. Ssraustkapp, headland point ...........71"00,Y 8" 00.8'
5. Kapp Wohlgemuth .....................71'00,4' 8' 03.0'
67. Kjeglenet ....................................50,0'' 8"57,0''
8. Ssrkapp ......................... ... 70"49,6' 9'00,O'
9. Sjuskjera, the southernmost skerry ... 70"49,8' 9" 03.5'
10. Skerry off Hoybergodden ..............70" 52,0' 9" 05,O'
II. Headland Westof Richterkrateret ..... 70"52,s' 9" 04.4'
12. Outermost skerry northwest of
Richterkrateret ........................7.0' 52,7' 9" 03,Y
13. Skerry outside Fuglessyla ..............70' 54,9' 8' 57,0'
71"07,4' 8' 17,5'
71' 09,6' 8" 04.5'
side ................. ..................71"09,7' 7' 58,3'
17. Nordkapp, skerry to the north-
east ................................ 71"09,7' 7" 57,s' Note:Coordinats forJan MayenBasepointsin WCS 84
ValuesPSgiveninCmra
Pnnre Regent'kre+ CoirespondingvaluinWGS 84
Base-
point LatitudN Longihdr W LatitudN LongitudeW
No.
1. 71"09,6' 7"57,2'
2. 71"08,ô' 71"09' 25,lO" 7"56'45,62"
71'01,2' 7" 56,l' 71"Oô'44,89" 7"55'43,OO"
3. 7' 59,s' 71' 01' 16,67" 7' 59' 10,18"
4. 71"00,9' 8' 00,8' 71' 00'47.58'' 8"00' 34,32"
5. 71"00,4' 8'03,O' 71"00'17,96" 8' 02' 49,84"
6. 70"51,6' 8' 49,3' 70' 51'34,23" 8' 49' 00,47"
7. 70"50,0' 8' 57.0' 70"49' 55,22" 8' 56'34,66"
8. 70"49,6' 9" 00,0' 70"49' 31,04" 8' 59'37,07"
9. 70'49.8' 9" 03,5' 70"49' 39.82'' 9" 03'45,98"
IO. 70' 52,O' 9" 05,0' 70"51' 51,96" 9" 04' 38,63"
11. 70"52,5' 9"04,4' 70' 52'20.95" 9"04' 07,37"
12. 70"52,7' 9" 03,9' 70' 52' 34,71" 9" 03' 45,17"
13. 70"549' 8' 57,0' 70' 54'47,59" 8' 56'53,88"
14. 71' 07,4' 8' 17.5' 71' 07' 20,33" 8' 17' 10,lO"
15. 71"09,6' 8' 04,s 71"09' 31.23'' 8' 04'05,89"
16. 71'09,7' 7' 58,3' 71' 09' 38,32" 7' 58'08,42"
17. 71'09,7' 7' 573' 71'09' 35.26" 7' 57'09,83" Translation ANNEX 84
Memorandum from the Embassyof Denmarkin Oslo
to theNorwegian Ministryof ForeignAiTainhanded over10 July 1963
concerning theDanishRoyalDecreeNo. 259 of 7 June 1963on the
ContinentalShelf
MEMORANDUM
On 12June 1963Denmark deposited with the Secretary-General
of the United Nations its instrument of ratification conceming the
Convention on the Continental Shelf signed in Geneva on 29
April 1958at the United Nations Conference on the Law of the
Sea.
In this connection, a Royal Decree was issued on 7 June 1963
concerning the exerciseof Danish sovereignty over the continental
shelf. The text of the Decree reads as follows:
"In accordance with the Convention on the Continental Shelf
signed at theUnited Nations Conference in Geneva in 1958on the
Law of the Sea,and with referenceto the resolution of 2 May 1963
by the Folketing, thefollowing is hereby laid down:
Article 1
Danish sovereignty shall be exercised, in so far as the exploration
and exploitation of natural resources are concerned, over that
portion of the continental shelf which, according to the Conven-
tion on the Continental Shelf which was opened for signature at
Geneva on 29 April 1958 (hereinafter referred to as the "Con-
vention"), belongs to the Kingdom of Denmark, cf. Article 2.
Article2
1. In accordance with Article 1 of the Convention, the term
"continental shelf' is used as referring (a) to the seabed and
subsoil of the submarine areas adjacent to the Coast but outside
the area of the territorial sea, to a depth of 200 metres or, beyond
that limit, to where the depth of the superjacent waters admits of
the exploitation of the natural resources of theaid areas; (b) to
the seabed and subsoil of similar submarine areas adjacent to the
coasts of islands.
2. The boundary of the continental shelf in relation to foreign
States whose coasts are opposite the coasts of the Kingdom ofDenmark or are adjacent to Denmark shall be determined in
accordance with Article6 of the Convention, that is to say, in the
absence of special agreement, the boundary is the median line,
every point of whichis equidistant from the nearest points of the
baselines from which the breadth of the territorial sea of each
State is measured.
3. The Minister of Public Works may, if necessary, cause official
charts to be prepared on whichthe boundary lineshall be entered.
Article3
The exploration and exploitation of the natural resources of the
continental shelf referred to in Articleay be effected only by
virtue of a concession granted in pursuance of Act No. 181of 8
May 1950 concerning prospecting for and exploitation of raw
materials in the subsoil of theingdom of Denmark or of Royal
Order No. 153of 27 April1935 concerningthe exploitation of raw
materials in thesoi1of Greenland."
A corresponding notification has been communicated to the
Governments of Sweden, the Soviet Union, Poland, the Federal
Republic of Germany, the Netherlands, the United Kingdom of
Great Britain and Northern Ireland, Iceland, Canada and the
USA. ANNEX 85
DanishBiii concerningthe ContinentalShelf
submitted on 13January 1971by the Minister of Justice
1.The natural resources of the Danish continental shelf are vested
in the Danish State and may only be explored or utilized by other
parties under a concession or licence.
2. For the purposes of this Act the term "natural resources"
rneans:
(1) The mineral and other non-living resources of the seabed
and its subsoil, and
(2) Living organisms which, when harvestable, are either im-
mobile on or under the seabed, or are unable to move
unless they areinconstant physical contact with the seabed
or its subsoil.
Article 2
1. The Minister of Public Works may permit exploration of the
naturai resources specified in Article 1, paragraph 2(1), where
such exploration is not undertaken with a view to utilization. He
may also permit the rernoval of such raw materials as were
available for utilization byrivate interests in Denmark before 23
February 1932. Othenvise exploration and utilization of the
resources specified in Article 1, paragraph 2(1), may only take
place under a concession granted in accordance with the rules laid
down in the Act concerning prospecting for and exploitation of
raw materials in the subsoil of the Kingdom of Denmark.
2. The Minister of Fisheries may permit fishingand exploration of
the living organisms specified in Article 1, paragraph 2(2). If the
study of the natural resources specified in Article 1, paragraph
2(1)isrequired for fisheriesor oceanographic research, permission
for such study shall similarly be granted by the Minister of
Fisheries.
3. Permits according to the second period of paragraph 1 and
paragraph 2 are given for up ta 5 years at a time. They may bemade conditional, among other things, on payment of fees to the
authorities and on the landing of recovered raw materials in this
country.
Article 3
1.Danish law shall apply to installations which are to be used for
exploration or exploitation of the continental shelf and are
situated in the area of the shelf and in safety zones surrounding
the installation (cf. however, paragraph (2)). In determining the
area of jurisdiction of Danish courts and administrative authori-
ties,installations and safetyzones shall be deemed to belong to the
area nearest to them, Saveas otherwise provided by the Minister
concerned.
2. The following laws shall not apply to installations and safety
zones:
(1) The Act on Salt Water Fisheries;
(2) The Act on Hunting;
(3) The Act concerning the Conduct of Economic Activities in
Greenland;
(4) The Act on Hunting and Fresh Water Fisheries in Green-
land; and
(5) The Act on Commercial Trapping, Fishing and Hunting in
Greenland.
1.The Minister of Public Works may prescribe special regulations
concerning safety measures in connexion with the setting-up and
operation of the installationsspecified in Article 3, paragraph 1,
concerning the laying of pipelines and cables and concerning
measures to prevent or remedy pollution. Supervision to ensure
compliance with the regulations shall be the responsibility of the
authorities entrusted with similar tasks under other laws, and
complaints concerning decisions of the supewisory authority shall
be made in accordance with the regulations otherwise applicable
to complaints concerning such decisions. The Minister may,
however, authorize departures from these provisions.
2. The Minister may also prescribe regulations concerning the
establishment of safety zones surrounding installations used for
such exploration or exploitation. The maximum extent of such
zones shall be 500metres round the installation, measured fromany point at its outer edge. The Minister may prescribe rules
concerning sailing in safety zones and, in that connexion, rnay
prohibit access to thern by unauthorized ships.
3. The Minister of Public Works shall draw up the regulations
specifiedinparagraphs 1and 2 of this Article in consultation with
the ministers responsible for dealing with matters of this kind.
Article 5
1. Violations of the exclusive right of the State under Article 1
shall be punishable by a fineor term of detention not exceedingsix
months Savewhere a higher penalty is applicable under another
law.
2. Any failure to comply with the conditions governing a conces-
sion or licencegranted in pursuance of this Act or in pursuance of
the laws specifiedin Article 2, paragraph 1,and Article 6, shall be
punishable by a fine Save where a higher penalty is applicable
under another law.
3. Rules issued in pursuance of Article 4 may provide for a penalty
of a fine for any violation of such rules.
4. In the case of offences committed by joint-stock companies,
CO-operativesocieties or the like, the Company or society as such
may be held liable.
Article 6
in the case of installations and safety zones (cf. Article 3,
paragraph 1)situated or established in the part of thecontinental
shelf appertaining to Greenland, the law otherwise applicable to
Greenland shall apply. The Minister for Greenland shall exercise
the powers specified in Articles 2 and 4 in compliance with the
regulations laid down in theAct concerning mineral raw materials
in Greenland.
Article 7
The Act enters into force on 1 March 1971.
Paragraph 2 of Article 3 of Royal Decree No. 259 of 7 June 1963
concerning the Exerciseof Danish Sovereignty over the Continen-
tal Shelf is repealed. Article 8
The Act does not apply to the Faroe Islands
CommeoisontheBill
GeneralComments
On 31 May 1963, Denmark ratified the Convention on the
Continental Shelf. This was done in pursuance of the consent
granted by the Folketing on 2 May 1963(see Folketingstidende
1962-63, Supplement A, col. 1569; Supplement B, col. 779;
Supplement C, col. 363; and Records of the Proceedings of the
Folketing 1962-63,cols. 4231, 4830and 5215). The Convention
was included as an annex to the ratificationroposal submitted to
the Folketing.
It was subsequently established, by Royal Decree of 7 June 1963,
that Danish sovereignty shall be exercised, in so far as the
exploration and exploitation of natural resources are concerned,
over that portion of the shelf which according to the Convention
belongs to Denmark. Article 3 of the Decree laid down that the
exploration and exploitation of the natural resources which the
Convention gives member countries exclusive rights to exploit
must be carried out by virtue of concessionsgranted in pursuance
of Act No. 181 of 8 May 1950concerning prospecting for and
exploitation of raw materials in the subsoil of the Kingdom of
Denmark or, where Greenland is concerned, in pursuance of
Royal Order No. 153of 27April 1935concemingthe exploitation
of raw materials in the soi1of Greenland.
With authority in the Royal Decree and the Subsoil Act, Royal
Decree of 5 October 1963granted companies in the A.P. Meller
shipowning group exclusive concessions to exploit various raw
materials on inter alia the continental shelf.Where the continental
shelf offGreenland isconcerned, a number of permits to carry out
preliminary studies have been issued according to Act No. 166 of
12May 1965concerning mineral raw materials in Greenland.
In 1967,the Ministry of Public Works appointed a committee to
study the problems relating to exploration and recovery activities
on the Danish continental shelf. This committee appointed two
sub-committees, one which was mandated to study the legal
problems arising inconnection with activitieson the shelf,and one
to report on safety problems relating to exploration and recovery.
The present Billwas prepared by the above-mentioned committee
on legal problems. The Ministries whose areas of responsibilitythe problems particularly relate to were represented on the
committee, which was chaired by the Minister of Justice.
The assumption which the sub-committee took as its point of
departure was that the Decree of 7 June 1963must be presumed
ta have entailed that such Danish legislation as is not according to
its own content limited to the land areas and sea territories has
been extended to apply to activities relating to exploration for and
exploitation of natural resources on the shelf. The committee
nevertheless decided that to prevent al1doubtsas to the extent to
which Danish legislation and law enforcement applies to the shelf,
it would be advisable ta carry out a comprehensive legal regula-
tion of conditions on the continental shelf.
The Ministry of Justice shares the committee's view, and the Bill
is identical with the committee's draft.
Swedenand Norway have also enacted special legislation concern-
ing conditions on thecontinental shelf, viz. Sweden's ActNo. 314
of 3 June 1966conceming the Continental Shelf, and Norway's
Act of 21 June 1963relating to Exploration for and Exploitation
of Submarine Natural Resources.
Where such activities on the continental shelf are concerned as are
already covered by current legislation, implementation of the Act
will entail no administrative consequences. The extent of the
administrative work which will be necessary in connection with
any permits granted ta carry on exploration and recovery not
covered by existing legislation will depend on the number of
permits given. It will, however, be possible ta compensate for
increased administrative costs by collecting the fees mentioned in
paragraph 3of Article 2, and if recovery of raw materials, such as
pebble gravel, gravel and sand, is initiated, the activity may result
in revenues to the state. It is impossible, given the nature of the
case, to estimate the amount of any such revenues.
Commentson individualprovisionsin the Bill
Re Article 1
Re paragraph 1.According to Article 1of the Convention on the
Continental Shelf, the continental shelf comprises the seabed and
subsoil of the submarine areas adjacent to the Coast but outside
the area of the territorial sea, to a depth of 200 metres or, beyond
that limit,ta where the depth of the superjacent waters admits of
the exploitation of the natural resources of the said areas.In cases where the Danish continental shelf is adjacent to the
shelves of other States, delimitation shall according to the Con-
vention primarily be agreed between the neighbour states. In the
absence of an agreement,delimitation shall be in accordance with
the equidistance principle, unless special circumstancesindicate a
different boundary line.
On the basis of these provisions, Denmark has to date concluded
continental shelf agreementswith Nonvay, Great Britain and the
Netherlands, and with the Federal Republic of Germany concern-
ing delimitation, in the coastal regions, of the continental shelf of
the North Sea. (Lovtidende C, Executive Order No. 48 of 11July
1966,cf.Executive Order No. 67 of 21 June 1968,Executive Order
No. 14of 17February 1967,Executive Order No. 56 of 11August
1967and Executive Order No. 37of 11June 1966).Following new
negotiations with the Federal Republic of Germany on the basis
of the judgement delivered by the International Court of Justice at
The Hague, the two countries have initialled a new agreement
concerning the whole extent of the dividing line, which will be
signed in the near futureand then submitted to the Folketing with
a view to ratification. The agreement will require minor adjust-
ments to the agreements with Great Britain and the Netherlands.
In respect of other Danish waters, the question may also arise of
establishingthe limits to the continental shelf in the Kattegat and
the Baltic and, in respect of Greenland, in relation to Canada.
Furthermore, it is to be expected that in the next few years,
provisions will be laid down at international levelconceming the
outer limits of the continental shelf where it meets the deep
seabed.
The Act does not apply to Denmark's territorial seas. Their extent
is established in Royal Decree No. 437 of 21 December 1966and,
in respect of Greenland, in Royal DecreeNo. 191of 27May 1963.
Re paragraph 2. The delimitation of the natural resources to
which the Act applies corresponds to the delimitation in para-
graph 4 of Article 2 of the Convention.
It follows from the provision that the Act does not concem
fisheries for other speciesthan those which are unable to move
except in constant physical contact with the seabed or subsoil.
Ordinary fisheries will accordingly only be affected if, in connec-
tion with the establishment of safety zones etc., cf. paragraph 2 of
Article 4 of the proposed Act, certain reductions are made in
fishing areas. Such reductions can, however, hardly be supposed
toentail lasting inconvenience. Re Article 2
Re paragraph 1. This provision relates to mineral and other
non-living resources on the seabed or in the subsoil. As a main
rule, the provisions of the Act concerning prospecting for and
exploitation of raw materials in the subsoil of the Kingdom of
Denmark also apply to exploration for and exploitation of these
resources, cf. the last period of the provision. The Subsoil Act lays
down a complicated procedure for issuing exploration and recov-
ery permits, cf. Article 2 of the Act. It was found reasonable to
propose the introduction of a less complicated procedure in
respect of exploration undertaken for purely scientific purposes,
i.e. with no viewto subsequent utilization. It is therefore proposed
that the Minister of Public Works be authorized to permit such
exploration.
The Subsoil Act excepts from its area of application such raw
materials as were available for utilization by private interests in
Denmark before 23 February 1932. Examples of such materials
might be rock, pebble gravel, sand and gravel, which are covered
by the Continental Shelf Convention. In recent years there has
been a considerable increase in the utilization of such raw
materials off the Coastof Denmark and, as can be seen in the Bill
concerning exploration for and utilization of sea materials in the
territorial sea recently submitted by the Minister of Public Works,
it must now be regarded as necessary to establish control of the
extent of the utilization and the location where the recovered raw
materials are to be landed. As the raw materials are to someextent
also recovered on the continental shelf, the control should extend
to cover it. That is the purpose of the provision in the second
period of the first paragraph of Article 2.
Re paragraph 2. Extensive scientific studies are currently being
carried out of the seas and their living resources. Denmark is
engaged in these studies, which must be expected to concern
themselves increasingly with the waters around Denmark. It is
proposed to authorize the Minister of Fisheries to permit such
studies, and such studies as relate immediately to the non-living
resources on the seabed or in the subsoil, but the final object of
which is to shed light on conditions aflecting the living resources.
It is presupposed that in such cases the Minister of Fisheries will
issue such permits in consultation with the Minister of Public
Works.
Re paragraph 3. The provision only relates to the permits
mentioned in the second period of paragraph 1and paragraph 2.
Concessions to prospect for and recover raw materials which fall
within the scope of the Subsoil Act will continue to be issued inpursuance of that Act. Permits may be issued subject to condi-
tions, for instance that the research plans must be approved by the
competent Ministry, that the research work must be carried on
with a certain levelof intensity, and that the results of the use of
the permits must be notified to the Ministries concerned. It is
furthermore proposed that permits may be made conditional on
the payment of a fee to the authorities and the landing of
recovered raw materials in this country.
Re Article 3
Re paragraph 1. As mentioned in the general comments, such
portions of Danish legislation as are not lirnited by their contents
to the land territory and the territorial sea must to thatxtent be
supposed to apply to activities related to the exploration and
exploitation of the natural resources of the continental shelf. The
aim of this provision is to establish this explicitly.
The possibility was considered of formulating the provision so as
to list the Acts which were to apply to the continental shelf.
Preference was giveninstead to a general extension of Danish law,
explicitly excepting those Acts which will not apply, cf. the
comments on paragraph 2. This was partly because this is the
safest procedure, and partly because parts of Danish law, for
instance significant parts of the lawrelating to damages, has not
been codified.
In accordance with Swedish and Nonvegian continental shelf
legislation, it is proposed toextend the scope of Danish law to
installations and safetyzones, but not to the rest of thecontinental
shelf. The legal effect of this will be that installations and safety
zones will be regarded as parts of the Danish state in so far as the
validity of Danish law is concerned. It follows from this that the
Danish state has jurisdiction with regard to violations of Danish
law, cf. litra1of paragraph 1of Article 6 of the civil penal code.
"Installation" is not defined more closely, because it is not
possible to foresee the particular nature of the technical means
that may be used in exploration and utilization. Platforms,
whether fixed or mobile, will be covered by the term "instal-
lation". The same will apply to vessels used for drilling on the
continental shelf. Whether or not ships used for exploration may
be regarded as installations in the meaning of the Act willdepend
among other things on the intensity and duration of the explora-
tion activity and on the nature and equipment of the vessel. The
most reasonable solution must be to let this delimitation find
expression in court practice.The general extension of Danish law entails, for instance, that
legislation protecting workers, regulations imposing technical
requirements on engines, electrical equipment etc., and regula-
tions relating to the safety of.shipping and the like will apply to
installations and in safety zones. It will be possible to exercise
authority in laws to issue administrative regulations relating to
installations and safety zones.
Re paragraph 2. The Convention on the Continental Shelf does
not give the contracting States exclusive rights to other foms of
activity on the shelf than those relating to the exploration and
recovery of the natural resources mentioned in Article 1.
Exceptions willtherefore have to be made to the generalextension
of Danish law to installations and safety zones in respect of laws
which, according to their content, would be applicable in this area,
but which are incompatible with the provisions of the Convention.
Re Article 4
Re paragraphs 1 and 2. Cases may arise where it will not be
suficient to extend existing legislation to installations and safety
zones. The need may arise, for instance, to issue special safety
regulations because of the special risks which may be involved in
exploration and exploitation of the continental shelf. Such regu-
lations may be required, not only in relation to the installations
themselves and pipelines issuing from them, but also in relation to
pipelines from installations located outside the Danishcontinental
shelf. Such regulations must be expected to impinge on the areas
of responsibility of several Ministries. For administrative reasons,
it isconsidered most expedient to place the authority in the hands
of one Minister, and it isproposed to givethe powers to issue such
regulations to the Minister of Public Works, who according to
paragraph 1of Article 2of the Billisthe person who willbe chiefly
responsible for the administration of exploration and utilization
of the natural resources of the continental shelf.
With the Minister of Public Works responsible for issuing any
administrative regulations with which it is found necessary to
supplement current provisions, doubts rnay arise concerning
which authority isto supervisecompliancewith the rules, and with
whom appeals against decisions by the supervisory authority may
be lodged. It is therefore emphasized in the proposed Act that the
general rules governing these matters will apply unless it is found
practical to depart from them in a given case. Administrative
regulations issued pursuant to this provision ought presumably as
a rule to contain explicit rules governing supervision and the right
to appeal.Re paragraph 3. The rules must of course be formulated in
consultation with the Ministries whose areas of responsibility are
affected. This would in any case follow from normal practice
under administrative law but, having regard to the fact that the
Act impinges on the areas of responsibility of a large number of
Ministries, it was thought bestto include a provision expresslyto
this effect in the Act.
Re Article 5
Re paragraph 1. Current legislation contains no particular penal
provision relating to unwarranted exploration and recovery of
natural resources on the continental shelf.
It was therefore decided to propose an express penal clause
relating to infringement of the state'sexclusiverights accordingta
Article 1 of the Act.
Re paragraph 2. Failure ta observe conditions in licences and
permits may result in loss of the licenceor permit. This sanction
is not, however, likely ta be applied in less serious cases of
non-compliance. It should therefore also be possible to impose
fines.
Re Article 6
Where the part of the continental shelfappertaining to Greenland
is concemed, it should be such Danish law as is generally
applicable to Greenland which is extended in scope. It would in
any case be possible ta arrive at the same result by interpreting the
provision in paragraph 1 of Article 3, but it was found more
appropriate to lay it down explicitly.For practical reasons, Acts in
respect of which exceptions are to be made are exhaustivelylisted
in paragraph 2 of Article 3, although systematic considerations
might have suggested the inclusion here of the legislation specific
to Greenland.
Re Article7
Article3 of Royal DecreeNo. 259of 7June 1963provides that the
exploration and exploitation of the natural resources of the shelf
requires a concession in pursuance of the Subsoil Act or in
pursuance of Royal Order No. 153of 27 April 1935concerning
the exploitation of raw materials in the sail of Greenland.
According ta paragraph 1of Article 2 of the Bill,cf. Article 6, this
provision will be superfluous, and its repeal is accordingly pro-
posed.For administrative reasons, specifically regard for legislation
particular to the Faroes, it is deemed most appropriate to regulate
circumstances relating to the continental shelf around the Faroes
in a separate Act.(Original:Englishj ANNEX86
Letterof 2December 1974
fromtheNonvegianMinisterof Indusîry
to the UnitedStatesNationalScienceFoundation
concerningDrillingOperationson theVeringPlateau
National Science Foundation
1800G. Street - More
Washington DC 20550
USA
2 December 1974
Sirs,
DEEP SEA DRILLING PROJECT
During the period 15-22August 1974and as part of the Deep Sea
Drilling Project, which, according to our information is founded
on a contract between the Regents of the University of California
and the US National Science Foundation with the Scripps Insti-
tution of Oceanography acting asoperator of the drillship Glomar
Challenger drilled 5 holes in the Voering Plateau in an area
designated by 67-12' and 6T57' Lat.N. and 455' and 6"18'
L0ng.E. The sea depth varied from 1206to 1439metres, and the
holes were drilled from 105to 456metres down in the seabed. The
distance from land was between 130and 162nautical miles. In the
period 6-14 September another 3 holes were drilled on the Jan
Mayen Ridge at depths varying from 187 metres to 320 metres
into the seabed. These drill holes were located between 65 and 100
nautical miles from Jan Mayen Island.
The Norwegian Government holds the view that the above
mentioned areas are part of the Norwegian continental shelf.
According to Article 5, paragraph 8 of the Convention on the
Continental Shelf of 1958 ratified by both the United States of
Amenca and Norway, and the Norwegian Royal Decree of 31
January 1969 relating to Scientific Research for Natural Re-
sources on the Nonvegian Continental Shelf etc., the consent of
the coastal state must be obtained in respect of any research
concerning the continental shelf which is undertaken there.
Such consent had not been obtained by the project leader when
thisdrilling operation was undertaken.On 23 April 1974the Norwegian Petroleum Directorate received
a letter requesting permission to execute the planned drilling
program. The letter was signed by five Nonvegian scientists with
Professor, now Director K.S. Heier of Norges Geologiske Under-
snkelse, acting as contact-man with the project leaders.
The request raised various political and practical problems of
great importance, and the matter was taken up with the Ministry
of Industry and the Ministry of Foreign Affairs. Upon theirce
the Petroleum Directorate on 9 July informed the Norwegian
scientists that permission to execute the planned drilling could not
be given. According to the Ministry of Industry's information,
due to various misunderstandings and practical problems, the
letter was not in fact receivedby the project leader until2 October
1974.
The Ministry of Industry, however, takes it for granted that the
project leaders understood that permission from the proper
Norwegian authonties was necessary before any drilling could be
undertaken. The drilling should not therefore have been under-
taken before the attitude of the Norwegian authorities was
ascertained.
The Ministry of Industry findsit highly regrettable that the "Deep
Sea Drilling Project", which is generally esteemed as a serious
research project, should have been carried out under the circum-
stances described above.
The Ministry of Industry has every confidence that thecontents of
thisletter will be made known to the persons responsible for the
drilling operation in question, so that such regrettable incidents
may be avoided in future.
Yours faithfully,
(Signe n)gvald Ulveseth
(Signe d)ut DæhlinTranslarion ANNEX 87
DanishBillconcerningthe FishingTerritoryof the Kingdomof
Denmark
submitted on 9 November 1976by the Prime Minister.
1. (1) The Prime Minister shall be empowered to enact that the
fishing territory of the Kingdom of Denmark be extended to a
breadth of 200 nautical miles (1 nautical mile = 1,852metres) so
that the fishing territory, in addition to the interna1 waters, shall
comprise waters along the coasts of the Kingdom of Denmark,
delimited by a line (the fishing limit) which at every point is 200
nautical miles from the baselines applicable at any given time. The
extension may be effected for one area at a time.
(2) Failing any agreement to the contrary, the delimitation of the
fishing territory relative to foreign States whosecoasts are situated
at a distance oflessthan 400 nautical miles opposite the coasts of
the Kingdom of Denmark or adjacent to Denmark, shall be a line
which at every point is equidistant from the nearest points on the
baselines at the coasts of the two States (the median line).
(3) Detailed provisions governing the delimitation of the fishing
territory of the Faroe Islands shall be laid down by Royal
Ordinance.
2. (1) This Act shall enter into force on 1January 1977.
(2) In step with the extension of the fishing territory in pursuance
of Article 1, section (1) of this Act, subsection (2) and (3) of the
Salt Water Fisheries Act (Act No. 195of 26 May 1965)shall be
repealed, whilein the Commercial Hunting, Fishing and Shooting
Activities Act for Greenland (Act No. 413 of 13June 1973),the
words "12 nautical miles" in subsection (1) shall be amended to
read "200 nautical miles".
(3) The Fishing Territory of Denmark Act (Act No. 207 of 2 June
1964)shall be repealed. Comments on the Bill
Generalcomments
1. The rules currently in force relating to the Danish fishing
territory are laid down in Act No. 195 of 26 May 1965on Sait
Water Fisheries. Off the Kattegat, Skagerrak and North Sea
coasts the limit is 12nautical miles, whereas it is 3 nautical miles
off other coasts.
The Act does not apply to the Faroe Islands or Greenland. The
fishing limit established forhose territories is 12nautical miles,
cf. in respect of Greenland Act No. 413 of 13June 1973and in
respect of the Faroes Royal Ordinance No. 129of 18March 1976.
Concerning the reasons for the Salt Water Fishenes Act, see
Folketingstidende 1964-65,cols. 2342,2644,4896,4910, and 5169;
Supplement A col. 1105;Supplement B col. 505; 735;Supplement
C col. 461. With regard to the Act for Greenland, see Folketings-
tidende 1972-73,cols. 3375, 5205,6950, and 7225; Supplement A
col. 4949; Supplement B col. 2145; Supplement C col. 1601.
2. The 12nautical mile fishing limit was established in accordance
with the European Fishenes Convention of 9 March 1964,
concerning which seeExecutive Order No. 10of 27 January 1965,
Lovtidende C. At this time, however, developments were already
taking place in the international community in the direction of
steadily increasing claims by coastal states to control over marine
resources.
This trend culminated at the third United Nations Conference on
the Law of the Sea, where the proceedings so far have shown that
there is a large rnajority in favour of the establishment of
"economic zones" of 200 nautical miles, within which the coastal
state shall among other things have the right to exploit living and
mineral resources. Especially important in this connection is the
right of the coastal state to the fish resources, seeing that on the
basis of theGeneva Convention of 1958on the Continental Shelf,
current international law has already granted coastal states sov-
ereign rights over the continental shelf.
Despite the widespread support at the Law of the Sea Conference
for the principle of economic zones, difficult negotiations still lie
ahead. The reason for this is that full agreement has yet to be
reached on the more detailed rules which are to apply within the
zone: a particular source ofifficultiesis thequestion of the rights
in the area of other countries.
3. The trend in the direction of extended claims by coastal states
to broad sea areas has already led to the unilateral establishmentby some 40 countries of national zones exceeding 12 nautical
miles. As a consequence, moreover, of the growing threat to fish
stocks of over-fishing, especially in the North Atlantic area,
pressure is mounting in a number of coastal states to extend
fishing territories or establish economic zones now, without
awaiting the outcome of the Conference on the Law of the Sea.
In addition to Iceland, which set its fishing limit at 200 nautical
miles in the autumn of 1975,the USA has resolved to extend its
fishing limit to 200 nautical miles, withfect from 1March 1977.
The Government of Canada has made known that the Canadian
fishing limit is being set at 200 nautical miles as from 1 January
1977.The Norwegian Government has stated that it considers an
extension to 200nautical miles by the end of 1976to be necessary,
and proposed legislation authorizing the Government to establish
an economiczone has been submitted to the Storting. In addition,
Mexico has adopted a law on economic zones, which entered into
force on 6 June 1976. We have also been informed that in July
1976, the French legislative assembly, too, enacted a law autho-
rizing the French Government to establish an economic zone.
In a declaration dated 27 July, the Council of theC emphasised
the threat posed to the fish stocks in the waters of member
countries by the decisions of a number of countries to extend their
fishing zones, and expressed its determination to protect the
lawful rights of Community fishermen. The Council decided that
the necessary steps should be taken in accordance with the
conclusion reached by the Conference on the Law of the Sea, but
noted that the extension of their fishing zones by other states
could oblige member states to act before the Conference had
concluded its work. It was decided to act in concert, according to
more detailed rules to be adopted in the autumn.
At the end of September, the EC Commission proposed a
concerted extension by member states of their fishingzones to 200
nautical miles as of I January 1977 in those areas which are
particularly threatened by the consequences of extensions of their
fishing territories by other countries, i.e. the North Sea and the
North Atlantic.
4. The Government's position is that questions relating to the law
of the seacan best be resolvedon an international basis, and it has
therefore been regarded as important that the negotiations at the
Conference on the Law of the Sea should result in the earliest
possible adoption of an extensive and broadly supported conven-
tion. Despite the developments in certain areas, the Government
remains of the opinion that the many complex issues beingdiscussed at the Conference can only be resolved by means of a
globally accepted convention; and under al1circumstances, every
effort must be made to continue the work on the law of the sea
convention.
However, developments in the practice of states where fisheries
are concerned leave Denmark no choice. With the establishment
of 200 nautical mile zones off the United States, Canada, Iceland
and Norway, the only important fishing areas remaining open in
the North Atlantic will be the waters around Greenland and the
Faroes, and the North Sea. A serious situation for the fish stocks
could arise very rapidly if large parts of the international fishing
fleet, having been excluded from other countries' coasts, were free
to begin fishing in Danish waters. This would of course especially
affect Greenland and the Faroes, whose populations depend on
fisheriesto a decisivedegree.Against this background, in July and
August 1976respectively,Greenland's Provincial Council and the
Home Rule Authority of the Faroes resolved to request the
Government to take steps at the earliest opportunity to extend the
fishing limit to 200 nautical miles. But in the North Sea, too, any
further strain on resources could have incalculable consequences.
To prevent the very serious consequences to Danish, Greenland
and Faroes fishinginterestsentailed by other countries' extensions
to their fishing territories, it is therefore necessary to enable
Denmark to extend its fishing territories.
On the basis of negotiations at the Conference on the Law of the
Sea, and because certain countries in our region wish to establish
economic zones, the Government also considered that question,
but decided that the extension where Denmark is concerned
should for the present be in theform of an extension to the fishing
territories, seeing that the new concept in international law, "an
economic zone", has yet to find its definitive meaning. It must in
this connection be emphasized that, where resources on the seabed
are concerned, sovereign rights over the continental shelf already
apply according to current international law and current Danish
law (Decree of 7 July [sic]1963on Danish Sovereignty over the
Continental Shelf and Act of 9 July [sic]1971 concerning the
Continental Shelf).
Upon the establishment of a fishery limit of 200 nautical miles,
questions of delimitation in relation to other countries willarise in
a number of cases. Although in theory the possibility of different
fishery and continental shelf boundaries cannot be ruled out, this
would be an unrealistic solution. In practice, these limits must
coincide. That means that where Denmark is concerned, conti-
nental shelf boundaries which have already been agreed may be used as fishery boundaries. In those cases where a shelf boundary
hasnot yet been agreed, it is important, sincethe fishery limit also
influences shelf delimitation, that both fishing interests and shelf
interest be taken into account in future negotiations on the
delimitation of the Danish area.
5.The present Billconcerning an extension to the fishing territory
has been prepared on the basis of discussions between the Prime
Minister's Ofice, the Ministry of Foreign Affairs, the Ministry of
Defence, the Ministry of Justice, the Ministry of Trade, the
Ministry of the Environment, the Ministry of Fisheries, and the
Ministry for Greenland.
A draft of the Billhas been submitted for comment to the Home
Rule Authority of the Faroes and the Provincial Council of
Greenland, and was approved by both authorities.
The Billin itselfisnot believedto entail financial consequences for
central or local government. An extension of the fishing terntory
' on the scale envisaged here must, however, have consequences for
the future fisheries inspection. No exact figures can at present be
submitted for the increase incosts, because the scale and nature of
the inspection service has not yet been finally settled, but the
extension of the fishing territory does entai1 a need to give the
fisheries inspection increased resources.
Commentson individualprovisionsin the Bill
Re Section 1
Subsection (1) of Section 1 of the Bill isworded as authority for
the Prime Minister to establish the new fishing limit, while the
provision also provides that separate extensions may be made for
particular sea areas. Among the reasons why the Government is
proposing an enablingAct are that the international situation, on
which the choice of the time for and the scale of a Danish fishing
limit extension as described will be based, is not clear at the
present time, and that it may be necessary to implement the
extension at short notice. The timing of the extension must be
viewed in relation to the fishing limit extensions of other coun-
tries, and rnust where Denmark and Greenland as members of the
EC are concerned be coordinated within the Community. Since a
fishing limit extension willaffect the fisheriesofother countries in
areas that will fall within the extension, negotiations will have to
be conducted concerning future rules for fishenes within the new
fishing limit.
The provision in the Bill for the possibility of extending fishing
limitsin one sea area at a time was included in theexpectation thatan extension off Greenland and the Faroes may be called for
before extensions elsewhere in the realm, and because an extension
in the Baltic, for instance, would require special consideration
and, in addition to the EC coordination, would also cal1 for
harmonization with the positions of the other coastal Statesin the
Baltic region.
Subsection (2), Section 1of the Bill,relating to the delimitation of
theDanish fishingterritory in relation to other countries, has been
drawn up on the same lines as earlier legal rules in this field, and
prescribes that in the absence of an agreement in this respect, a
boundary following a median line shall be established. Upon an
extension to 200 nautical miles, the need arises for agreements on
delimitation in the North Sea, theBaltic Sea, and the Kattegat, as
well as around the Faroe Islands and Greenland.
Re Section 2
The appropriate date from which tomake a fishing limit extension
effectiveis not clear at the moment, but at least where the Faroes
and Greenland are concerned, the question of an extension will
arise on 1 January 1977, and it is accordingly proposed in
subsection (1) of Section 2to make the enabling Act effectiveas of
1January 1977.
When a 200 nautical mile fishinglimit is established, the existing
12 nautical mile limits must be abolished and, pursuant to
subsection (2) of Section 2 of the Bill, the boundary provision
relating to Denmark in the Salt Water Fishenes Act and the
corresponding provision relating to Greenland in the Act for
Greenland concerning Fisheries etc. will therefore be repealed. As
already mentioned, the boundary provision for the Faroes was
laid down by Royal Ordinance, and will be repealed when the
Royal Ordinance mentioned in subsection (3) of Section 1 of the
Billis issued.
In addition to EC rules, fishing in Denmark and Greenland is
regulated in the Salt Water Fisheries Act and the Act for
Greenland concerning Fishenes and Hunting, and these provi-
sions willremain applicable to fisheries also after an extension to
the fishing limit. As a result of negotiations, both at the third
United Nations Conference on the Law of the Sea and in the EC
concerning changes injoint EC fisheries policies,it is nevertheless
to be expected that changes will have to be made in the existing
legislation. Amendments have already been proposed to the Act
on Commercial Trapping, Fishing and Hunting in Greenland
(amendments to subsection (8) of Section 1 and to Article II of
the Act). Other necessary proposed amendments to existinglegislation will be submitted to the Folketing as and when the
results of the international negotiations mentioned become avail-
able.
According to the Home Rule Act, the issuing of rules governing
fishingoff the Faroes is the Faroes' ownconcern, cf. item 13of list
A in the Act. The rules currently in force are contained in the
Lagting'sAct No. 12of 10March 1964as subsequently amended.Translation Appendix(1) to ANNEX 87
Act No. 195 of 26 May 1965 on Salt WaterFisheries
1. Unless otherwise provided, this Act applies to fisheries in the
fishing territory of Denmark, except for waters which fall within
the scope of the Act on Fresh Water Fisheries.
2. In addition ta inner waters, Denmark's fishing territory com-
prises sea territories along the Danish coasts delimited by a line
(the fishing limit) which runs parallel to the base lines in force at
any given time and at the following distance from them:
(1) In respect of Denmark's North Sea, Skagerrak and Katte-
gat coasts: 12nautical miles (1 nautical mile = 1,852m).
In this connection, Kattegat means the waters delimited to
the south by lines drawn from Hasenme to Gniben Point,
from Korshage to Spodsbjerg and from Gilbjerg Head to
Kullen.
(2) In respect of other Danish coasts: 3 nautical miles.
3. Where the Danish coast lies opposite the coast of a foreign
state, the fishing limitmay however not cross any such line as may
follow from a special agreement with the foreign state in question
or, in the absence of such an agreement, the linewhich at al1points
is equally distant from theclosest points of the low-water lines of
the coasts of the two States.
4. Fishing in Denmark's fishing territory may only be carried on
by:
(1) Danish nationals,
(2) persons who are and have permanently been resident in this
country for the past two years,
(3) foundations and associations whose managements consist
exclusivelyof Danish nationals resident in the realm,
(4) jointly-owned shipping companies, of which at least two-
thirds are owned by Danish nationals, and whose manag-
ing shipowner is Danish and resident in the realm,
(5) joint-stock companies and other companies with limited
liability which have elected a Board at least two-thirds of
whose members are Danish nationals resident in the realm, (6) other companies, at least two-thirds of whose participants
are Danish nationals resident in the realm.
Provided foundations, associations or companies are participants
in jointly-owned shipping companies or in the companies men-
tioned in No. 6, each participant must satisfy the requirements for
being regarded as a Danish owner.
5. It is prohibited for others than those mentioned in subsection 4
to process or tranship fish in Danish fishing territory or to
transport fish or fish products through Danish fishing territory
direct from the sea to Danish landing places.
6. Ships used for the purposes mentioned in subsection 4 and 5
must be Danish and two-thirds of the crew must satisfy the
conditions in No. 1or 2 of subsection 4.
7. The Minister of Fisheries may make exceptions to the provi-
sions in subsections 4 to 6 when this is believed to be in the
interests of fisheries development, and exceptions to the provi-
sions mentioned may similarly be made in agreementswith foreign
States. By agreement with Norway and Sweden it may further-
more be decided that where Norwegian and Swedishfishermen are
concerned, the fishing territoryshall be smaller in extent than laid
down in No. Iof subsection 2. The Minister of Fisheries willissue
more detailed provisions concerning the implementation of such
agreements.
8. Irrespective of the provisions in subsection 4, and according to
the respective rules laid down by the Minister of Fisheries,
Finnish, Icelandic, Norwegian and Swedishnationals may engage
in angling with rods, jigs or similar hand tackle. The Minister of
Fisheries may issue rules concerning permission for other foreign
nations to engage in angling to the same extent.Translarion Appendix(2) tn ANNEX 87
Act No. 413 of 13 June 1973 onCommercial Fishing,
Trapping and Hunting in Greenland
Section 1.
1.Commercial fishing, trapping and hunting at sea off Greenland
within a distance of 12nautical milesof such boundary linesas the
Minister for Greenland shall lay down, may only be engaged in
by:
(1) Persons resident in Greenland and having permanent links
with the Greenland community.
(2) Foundations and associations whose managements consist
exclusivelyof persons as mentioned under No. 1.
(3) Jointly-owned shipping companies, in which two-thirds of
the shares and the bulk of the capital are held by persons as
mentioned under No. 1,and whose managing shipowner is
a person as mentioned under No. 1.
(4) Joint-stock companies and other companies with limited
liability which have elected a Board, when at least two-
thirds of the Board and themajority of the participants are
persons as mentioned in No. 1, and when the bulk of the
company's capital is owned by persons as mentioned under
No. 1.
(5) Other companies, in which at least two-thirds of the
participants including those with fullliability are persons as
mentioned under No. 1, and when the bulk of the compa-
ny'scapital is owned by persons as mentioned under No. 1.
2. If foundations, associations or companies are participants in
jointly-owned shipping companies or thecompanies mentioned in
No. 5 of subsection 1, those participants must satisfy the condi-
tions for being permitted themselves to engage in commercial
fishing, trapping and hunting.
3. Persons and companies etc. engaging in commercial fishing in
the area mentioned in subsection 1, must possess certificates
stating that they satisfy the conditions in subsection 1. The
certificateis valid for five years, and is issued by the local council
of the person's place of residence or the place where the Company
etc. has its registered office. If a local council refuses to issue such
a certificate, the decision may be appealed to the Governor of
Greenland, whose decision may be appealed to the Minister.4. The Minister may issue provisions according to which the
persons and companies etc. mentioned in subsection I may only
engage in commercial trapping and hunting in the area mentioned
in subsection 1if they are in possession ofa certificate stating that
they are engaged in trapping and hunting either as a principal or
as a secondary occupation.
5. Without the permission of the Minister or, as authorized by
him, of the Governor of Greenland, other persons than those
mentioned in subsection 1rnay not process or tranship fish or fish
products within the area mentioned in subsection 1, or transport
fish or fish products direct from the sea through this area to
landing places in Greenland.
6. Only vesselsregistered in a Greenland home port may be used
for the purposes mentioned in subsection 4 and 5.
7. Under very exceptional circumstances, the Minister rnaydepart
from the provisions in subsection1 and 6 when this is believedto
be of significance to the development of the Greenland fisheries.
8. The Minister may issue provisions according to which persons
and companies etc. not covered by subsection 1, but who were
covered by subsection 1of section1 of Act No. 223of 3June 1967
on Commercial Hunting, Fishing and Shooting in Greenland are
permitted to continue to engage in activities as mentioned in
subsection 1and 5and for this purpose to use vessels registeredin
home ports elsewhere in the realm. Appendix(3) to ANNEX 87
Act No. 207 of 12 June 1964
on Denmark's Fishing Territory
Section 1
The Minister of Fisheries is empowered to establish the more
detailed rules for Denmark's fishing territory in accordance with
the provisions contained in the Convention on Fisheries entered
into on 9 March 1964.
Section 2
This Act does not apply to the Faroe Islands or Greenland.Translation ANNEX 88
ExcerptsfromRecordsof Proceedingsof the Folketing1976 - 77,
relatingta the Bill concerning the Fishing Terrofythe
Kingdomof Denmark
---
Writtenpresentation of a proposai.
The PrimeMinister(Anker Jorgensen):
1 hereby take leave to submit to the honourable assembly a
proposed Act relating to the fishing territory of the Kingdom of
Denmark.
As we know, the Third UN Conference on the Law of the Sea has
for a long time been engaged with the problems concerning the
distribution of marine resources between the countries of the
world. Despite widespread support for the principle of establish-
ing 200 nautical mile economic zones, the Conference has not yet
reached agreement on the rules which willapply within the zones.
It istheGovernment's position that themany prohlems relating to
the law of the sea can best be solved in an international context,
and that efforts to arrive at a globally accepted law of the sea
convention must be continued regardless of developments in
particular sectors.
On the basis of the negotiations at the Conference on the Law of
the Sea, the Government has considered whether an economic
zone ought already now to be established but, having regard to the
fact that the law of the sea concept has yet to find its definitive
form, has decided against submitting a proposal to that effect at
the present time.
Where fisheries are concerned, however, in view ofthe increasing
threat of over-fishing of fish stocks, a number of countries have
decided not to await the results of the law of the sea conference,
but have either already moved their fishing limits out to 200
nautical milesor are about to take that step. In the North Atlantic
area, this applies to such Statesas the USA, Canada,and Iceland.
Norway, too, intends to establish a 200 nautical mile zone.
A result of this development will be that the only significant
fishing areas to remain open will be in the waters off Greenland
and the Faroes and in the North Sea. A serious situation for fish
stocks could arise very rapidly, should the international fishingîieet which is excluded from other areas be free to move to these
waters. Greenland and the Faroes, whose populations are vitally
dependent on fisheries, would be particularly affected.
The Government therefore regards it as absolutely essential to
comply with the requests from Greenland's Provincial Council
and the Faroese Home Rule Authority to carry out an extension
of the fishing limit to 200 nautical miles no later than 1 January
1977.
The question of extending fishing territories also arises in connec-
tion with Danish waters. As a member of the EC, Denmark
applies a joint fisheries policy with the other member countries.
TheEC isat this moment engaged in very thorough discussions of
fishenes problems, and it is anticipated that it will be possible to
carry out coordinated extensions for the member countries in the
North Sea and the North Atlantic from 1January 1977.With this
in mind, the Government is seeking powers to carry out an
extension of the fishing territory.
For the Kattegat and the Baltic, the intention on Denmark's part
is tomaintain the existing pattern of fisheries. Negotiations with
other riparian Statesin the region suggest that it willbe possible to
reach agreement on a regional arrangement, so that the question
of extending fishing territories in these areas will not arise at
present.
The planned extensions of the fishing territory presuppose nego-
tiations with the countries whose fishing interests willbe affected.
These negotiations, which where Denmark and Greenland are
concerned, must be conducted at Community level, must be
expected to result in the mutual concession of fishing rights. It is
unlikely that it will be possible to conclude these negotiations
earlierthan during the course of 1977.
The extension of Denmark's fishing limits gives rise in a number
of cases to problems of delimitation in relation to other countries.
According to the general rules of international law, delimitation
must be according to the median line principle, as it is in respect
of thecontinental shelf, over which as you know Denmark already
has sovereign rights according to the rules in force. In future
negotiations concerning the delimitation of Danish territory,
importance will have to be attached to both fishing and shelf-
related interests.
In consequence of the very considerable widening of the fishing
territory, from the present 12nautical miles to 200 nautical miles,
fisheries inspection duties will be significantly expanded, and
increased allocations will be necessary for that purpose. Specificinformation on the amounts needed cannot be given at this time,
because the scale of the fishing limit extension and the more
detailed inspection duties have yet to he finally settled.
Referring you to the above presentation and to the comrnents
accompanyingtheproposed Act, 1recommend the proposal to the
Folketing for favourable and rapid treatment.
- - -
(Records of Proceedings 1976 - 77, cols. 1344 - 1346)
Firstdebateon theproposedAct relaiingto theFishingTerritoryof
the Kingdomof Denmark
Berglund (Greenland):
Let me Sayhow pleased 1am that the present proposed Act has
brought us closer to fulfilling one of the greatest wishes of
Greenlanders, which has been voiced several times over many
years.
It is apparently necessary to underline how essential an extension
of the fishing terntory is to us in Greenland. As Mr. Hilmar
Baunsgaard also said, it is the only considerablefishing areain the
North Atlantic which will still be open when other countries
extend their fishing territories. There is therefore a grave risk that
fishermen who fish in the fishing territories of other countries will
move to Greenland waters, creating a serious danger of over-
fishing of fish stocks. That would result in a reduction of the raw
materials available for processing in Greenland and an ensuing
increased deficit to be covered by the Treasury.
In his written presentation, the Prime Minister States that it is
absolutely necessary to comply with the Provincial Council's
request that an extension of the fishing limit to 200 nautical miles
be carried out no later than I January 1977.This extension of the
fishing territory presupposes negotiations with the countries
whose fishing interests are affected, and it is expected that the
negotiations will be concluded in the course of 1977. 1 therefore
wish to ask the Prime Minister what consequences unconcluded
negotiations will have for an extension of Greenland's fishing
territory on 1January 1977,and what arrangements wecan expect
with the countries whose fishing interests are affected. The last
sentence of subsection 1 of section 1 of the proposed Act reads:
"The extension may be effectedfor one area at a time". 1therefore
wish to ask the Prime Minister whether the Government intendsto accept Canada's extension in relation to West Greenland. If so,
1 would point out that the northern boundary of Canada's
extension is ICNAF statistical area zero, Le., outside Holstein-
borg, whereby the shrimp fishing grounds north of that boundary
will remain unprotected. 1 therefore request the Government to
use its best officesto see that theboundary to the extension of the
fishing territory off West Greenland is moved to 75"N, i.e. up to
Melville Bay.
The increase in fisheries inspectionbas been mentioned. There is
no optionbut to increase the amount of inspection off Greenland,
and 1therefore urge the Government to examine the possibility of
EC support for increasing fisheries inspection off Greenland in
connection with the extension of the fishing territory. We already
know that certain other EC countries have been givensupport,so
there should be possibilities.
Finally, 1recommend the approval of the proposed Act.
ThueChristiansen(SF):
We in Greenland have for years now been pointing out to the
authorities that if Our fish resources are to be maintained and
protected, measures such asquota arrangements and an extension
of the fishing limits must be adopted. We have thus as a group, a
political body, in Greenland for several years been pointing to the
need for a rapid and effective extension of the fishing limit.
Now, fortunately, we have reached a stage where from this
rostrum we can begin to consider a proposed Act, the intention of
which is to protect fish stocks here inDenmark and not least off
the Faroes and in Greenland. This is an important step for us
Greenlanders and for our fishermen, who have been waiting for
years for a proposed Act of this nature from the Danish Govern-
ment. It is gratifying that we have made so much progress.
Nevertheless, 1cannot refrain from pointing out that Greenland's
fishery policy problems are far from being solved by the present
proposed Act. 1daresay we recall Greenland's clear "No" to the
Common Market. One of the most important reasons for that
"No" was that it would exclude foreign fishermen, including
members of the Common Market, from our fishing grounds,
which were and still are threatened by over-fishing. The proposed
Act will not exclude fishermen whose nations belong to the EC,
andas long asno negotiations are initiated concerning fish quotas
and economic zones, the danger will remain of over-fishing of
Greenland's most important source of industrial income. We
expect negotiations to be initiated in the very near future between
Denmark and the EC and the Provincial Council of Greenlandconcerning quotasand economic boundary arrangements, for the
greatest possible benefit of Greenland's fishing interests.
It is important to bear in mind that Greenland's fisheries are
Greenland's most important industry, and that Greenlanders are
completely dependent on them. Greenland will soon have home
rule, and it ismy hope that the Government willtake the necessary
decisions on protecting Greenland's fisheriesat the earliestoppor-
tunity.
With these reservations, 1recomrnend the rapid approval of the
present proposed Act.
(Records of Proceedings 1976 - 77, cols. 1978- 1980)
The second debate on the proposed Act relating to the Fishing
Territoryof the Kingdomof Denmark.
---
Erlendsson(FP):
As we know, a good deal has happened since the first debate on
this proposed Act, so it may be appropriate to make some general
comments in the second debate as well.
The directive from the Soviet Union concerning a possible
extension of the Soviet Union's fishing limits to 200nautical miles
could have very serious consequences for Danish fisheries, not
least in theBaltic. Asfar as we know, admittedly,nothing definite
has emerged as to whether it will be applied in the Baltic, but it
does seem verylikelythat it willbe used to put pressure on the EC
countries, at least on Denmark, if the proclaimed EC intention to
make very considerable cuts in Soviet catches is implemented. If
the Soviet Union cannot be brought to the negotiating table, al1
Soviet Union fishing rights in common EC waters will be with-
drawn.
In that event, according to former Minister of Fisheries Kofoed,
Bornholm fishermen will lose half their catches, corresponding to
a loss of between DKK 15 and 20 million. Where the loss is
concerned, this is a miscalculation, seeing that over the past three
years the earnings of Danish fishing vessels based on Bornholm
have iiuctuated between DKK 95 and 111million. Should Poland
and East Germany follow the Soviet Union and extend their
fishing limits, as must be considered highly probable, and shouldFinland and Sweden in self-defence do the same, the loss to the
Bornholm fishermen would not be DKK 50-55 million, which
would be the correct figure on Mr. Kofoed's premises, but rather
in the region of DKK 80-85 million. That would be an economic
disaster for the 15percent. of the Bornholm population who are
directly or indirectly dependent on the fishing industry. In viewof
this, theGovernment must immediately takethe necessarysteps to
ensure fullcompensation incommon EC waters, including Green-
land waters, and raise the question in the ongoing negotiations
with the Faroese authorities.
1 should also like to say a word or two about the size of the sea
area which it will be the Danish Fisheries Inspectorate's respon-
sibility to monitor when the Danish fishing territories around
Greenland are extended.
IntheJoint Council, we were informed by the Prime Minister that
it was a matter of a fisheries surveillance area three times the size
of the present area. 1 do not see how that can be correct. At
present, so we are informed, the area amounts to 18,000 square
nautical miles; and since the area to be extended reaches a little
more than halfway up the West coast of Greenland and the
extension is from 12to 200nautical miles, the figure of three times
the present area is completely unrealistic. It has also been decided
into the bargain not to include Greenland's east coast, and there
is no chyme or reason in that either, in view of the very
considerable fisheriescarried on, admittedly by the fishing vessels
of foreign powers, in the Denmark Straits.
1 also wonder at the statement to the Joint Council that where
southern Denmark is concerned, the extended fishing territories
willform part of the future joint EC fishingzone. This willalsobe
the case for the waters around Greenland, a fact thereisno reason
to conceal from anyone.
Patursson(Faeroes):
It was on 6 August of this year that the Faroese legislative
assembly (Lagting) unanimously resolved to extend the Faeroes
fishing limits from their present 12to 200 nautical miles no later
than 1January 1977.The Danish Government has since submit-
ted to the Folketing the present proposed Act relating to the
extension of the fishing territory of the Kingdom of Denmark to
200 nautical miles. The Act will enter into force on 1 January
1977, and the proposa1 states that the more detailed rules con-
cerning the delimitation of the fishing territory off the Faroes will
be laid down by Royal Decree. According to my information, that
Decree is to enter into force on the same date as the Act itself, i.e.on 1 January 1977. 1 note that a unanimous Committee has
recommended the adoption of the proposed Act with no amend-
ments.
When the proposed Act is adopted and the promised Royal
Decree isissued, al1foreign fishing within a 200-nautical mile limit
will be prohibited. Another consequence is that the right of
determination, or indeed sovereignty, over fisherieswithin the 200
nautical miles passesto the Faroese authorities and to them alone.
Since 1964,this Faroese authority has been exercisedover fishing
within 12nautical miles. It will now, as mentioned, be extended to
200nautical miles.This takes place according to Act No. 137of 23
March 1948relating to Faroese Home Rule, and the resolution by
the Lagting of 13May the same year, which transferred administ-
rative and legislative authority in respect of hunting and protec-
tion of animals in the territory and fishing and the protection of
fish in the territory to Faroese authorities.1 repeat, that from 1
January 1977 the right of determination, the sovereignty if you
iike, over fisheries within the 200 nautical miles will rest solely
with the Faroese authorities and with no other instance.
1 have a couple of comments to make on the proposed Act.
Subsection 2 of section I States that failing any agreement to the
contrary, the delimitation of the fishing territory relative to
foreign States whose coasts are situated at a distance of lessthan
400 nautical miles opposite the coasts of the Kingdom of Den-
mark or adjacent to Denmark, shall be a line which at every point
isequidistantfrom the nearest points on the baselines at thecoasts
of the two States (the median line). This is al1right where Iceland
and Norway are concerned, but a problem arises in relation to
Great Britain. As you will know, Great Britain has fixed a fishing
limit at Rockall. That limit has never been recognized and never
will berecognized by the Faroes. The distance between the Faroes
and Rockall is about 300 nautical miles, i.e. less than the 400
nautical miles mentioned. It will therefore be necessary, when
issuing the Royal Decree, to ensure that the Faroese fishing limit
to the southwest, that is towards Rockall, is given its full extent,
i.e. 200 nautical miles. This will be of the utmost importance to
Faroese fisheries.
The second point 1want to touch on concerns fisheriesinspection.
The Faroese have increasingly participated in this inspection
themselves, and the government of the Faroes recently established
its own inspection and rescue service. However, any fines imposed
forunlawful fishing and confiscated catches and equipment go to
the Danish Treasury alone. There has to be a reasonable sharing
of such moneys between the Danish and Faeroes treasuries.Finally, let merepeat the request 1made in the first debate on this
matter: for the Faroese inspection serviceto be giventhe necessary
police authority. This has with time become a long-standing
Faroese demand, and it would be appropriate to grant it on the
same day as the 200nautical mile limitenters into force, 1January
1977.
With these comments, 1 recommend that the proposed Act be
adopted.
The Prime Minister(Anker Jorgensen):
Let me begin by thanking you for the excellent reception accorded
this proposal in this assembly and the very objective treatment
which, 1 am given to understand, it was given in the specially
appointed committee.
Permit me a few comments on what earlier speakers have said.
First to Mr. Erlendsson, who raised the question of the Soviet
Union's extension of its fishing limits. 1can begin by mentioning
that according to our calculations, the figures mentioned by Mr.
Erlendsson relating to the Bornholm fisheriesare not correct. The
amount which Danish fishermen may stand to lose amounts to
14-15 million and not, as Mr. Erlendsson maintained, 85-90
million.
But what may be threatened is one thing, and the issue itself quite
another, and according to the information currently available on
the decree announced on Friday by the Soviet Union concerning
an extension of their fishing territory, it is an enabling decree,
according to which the Soviet Council of Ministers can decide to
introduce new 200 nautical mile fishing territories in various
waters. In principle, in other words, theprocedure involved isvery
similar to what we are currently discussing where Denmark is
concerned, namely the basic legislation being debated by the
Folketing respecting Danish fishing territory.
The Soviet decree as we know it does not state in which waters or
from what date the new rules will be made applicable. We have
therefore been seeking further information through our Embassy
in Moscow. The Soviet authorities, however, have not at present
been able to inform us of the date of the entry into force or of the
extent to which the extended fishing territory would be intro-
duced.
It is of course the fisheries in the Baltic which are of particular
interest to us. Fisheries in those waters are currently regulated by
the Convention on the Baltic Fisheries Commission, to which al1
Baltic riparian states are parties. At the meeting of the Commis-
sion in Warsaw in October of this year, a quota agreement wasalso entered into for 1977,to which borh Denmark and the Soviet
Union acceded, so the assumption on Denmark's part must be
that Baltic fisheries will continue to be regulated in accordance
with the existing agreements.
Mr. Erlendsson also took up the whole question of the size of the
extension to take place around Greenland, and disputed the
information we have given through the Ministry. 1would point
out that what we said at committee meetings and also wrote to the
committee, tomake sure that we know exactly what weare talking
about, is based on estimates. No high degree of accuracy is
possible at the present time, but where Greenland isconcerned the
200 nautical miles will mean, we said, a ninefold increase in the
area. But owing to great sea depths, where no extensive fishing
willbe practicable with the methods in use, the area in question is
regarded as considerably lessthan 9 times the present area. There
are a number of areas which it is reasonable to deduct, leaving a
total of 3 times the present area. That is, of course, an estimate,
and it is not possible at present to be more precise1am also quite
certain that Mr. Erlendsson's information would not stand up to
closer scrutiny.
Mr. Lowzow discussed relations with England. On this, al11can
say is that, as in numerous other areas related to this matter of
extending fishingterritories, weare in a process of negotiation. No
decisions whatsoever have been taken; there is nothing to suggest
that we are about to take any. The position is that the English
desire for a special fishing territory within the common EC sea
territoriesis not one which Denmark or, 1think 1can safely Say,
a number of other EC countries can support. That is to Saythat,
with regard to the English desire, which moreover is shared by
Ireland, 1cannot promise what the outcome willbe, but it isat any
rate not a desire supported by wide circles or by large countries
within the European Community.
1believe those were the questions asked. 1would like to conclude
by thanking you for the constructive debate on the proposal in
question.
(Records of Proceedings 1976 - 77, cols. 3240- 3247)Translation ANNEX89
Messageof 27 August1981
fromthe Norwegian Ministry of Defencteo theCoastGuard
Vesse1K/V FarrnconcerningInspectionsin the DisputedArea
[Technicalcommunications procedures and filing annotations
not included in translation]
RESTRICTED
Danish and Norwegian authorities are considering the Jan Mayen
fishery zone.
Until further notice, Danish and Faroese vessels fishing without
permission in the zone shall not - repeat not - be boarded and
inspected, but be advised to stop fishing and leave the area.
The vesselsshall be noted and reported, but the Coast Guard shall
otherwise not intervene.
Photographic evidence that capelin is fished is desired
Acknowledgement to Defence Command North Norway and to
Headquarters Defence Command Norway.Translarion ANNEX 90
Press Releaseof 30 August1981
fromthe Danish Ministryof ForeignAffain
The Foreign Ministry makes known:
Having been informed that the Norwegian Coast Guard vessel
Farmhas been instructed to board Danish vesselsto deliver them
written warnings, the Foreign Ministry has issued the following
statement:
The Danish fishing vesselsare in an area between Greenland and
Jan Mayen which according to Danish law is Danish fishing
territory, where Danish fishermen accordingly have the right to
fish. It is unacceptable for Norway in this way to exercise fisheries
inspection in respect of Danish vesselsin Danish fishingterritories
in a situation where the question of the delimitation of the fishing
zones around Greenland and Jan Mayen is the object of negoti-
ations between the Danish and Norwegian authorities.Denmark's
Ambassador in Oslo has been instructed to make this clear to the
Norwegian Ministry of Foreign Affairs.
When in contrast to Denmark Norway announced in June 1980
that Norway had decided to enforce Norwegian fishing regula-
tions in the area in question, we reacted immediately,emphasizing
to Norway that this had created a new situation. Wemade it clear
that in the light of this and subsequent developments, the Danish
Government would consider whether this called for a change in
the earlierdecision by Denmark not to exercise fisheriesjunsdic-
tion in the area until further notice.
Under the present circumstances, the Government has decided to
avail itself of its right to exercise fisheriesjurisdiction in the area,
and a Danish inspection vesselis on its way to the area to exercise
Danish sovereignty. The Danish Ambassador in Oslo has likewise
been instructed toinform the Norwegian Foreign Ministry of this.
Now as before, the Danish Government wishesto avoid steps that
might strain relations between two such closely connected coun-
tries as Norway and Denmark.
The temporary instruction to the Coast Guard vessel Vadderen is
not to intervene if theNorwegians board Danish fishing vessels
only to issue wntten warnings.
Copenhagen, 30 August 1981Trunslurion ANNEX 91
Messageof 30 August1981
fromthe NavalCommandNorth Norwayto the Coast Cuard
Vesse1K/V Farm concerningInspectionsin the DisputedArea
[Technical communications procedures and filing annotations
not included in translation]
RESTRICTED
Concerns instructions receivedfrom Ministry of Defence by State
Secretary Bruland.
1. Danish and Faeroese fishing vessels fishing illegally in the Jan
Mayen zone are to be boarded, and shall be givena written order
to stop fishing and leave the area.
At the same time an oral warning shall be issued, to the effectthat
if the order is not complied with this will have consequences for
subsequent participation in fishing in Norwegian waters.
Means of force are not to be employed
2. After delivery of the warning, resume patrol. If a Danish
surveillancevesse1arrives in the area, conflict with it shall be
avoided.
3. Report to Naval CommandNorth Norway after each boarding.
4. K/V FarmacknowledgeTranslation ANNEX 92
ExecutiveOrderNo. 437 of 31 August1981on Amendment of
ExecutiveOrderNo. 176 14 May 1980on the Fishing Territoriy n the
Waters surrounding Greenland
Section 1
Executive Order of 14 May 1980on the Fishing Territory in the
Waters surrounding Greenland shall be amended as follows:
Section 1, subsection 4, second sentence shall read as follows:
"Where the island of Jan Mayen lies opposite Greenland, the
breadth of the fishing territory shall be 200 nautical miles
measured from the baselines referred to in Section 2."
Section 2
This Executive Order shall enter into force upon its publication in
the Official Gazette.
Prime Minister's Office, 31 August 1981
(Signed) Anker Jsrgensen
(Countersigned)/Ruth ChristensenTranslation ANNEX 93
Telex Messagedated21 September1981from the Faroe Islands
Landsstyri to the NorwegianDirectorateof Fisheries
on the FaroeseCapelinFisheryin theFisheryZone
betweenJan MayenandGreenland
Re Faroese capelin fishery in the fisheryzone between Jan Mayen
and Greenland in 1981.
The Faroe Islands Landsstyri [the executive body] has noted the
contents of the telex from the Directorate of Fisheries dated 17
September 1981conceming Faroese capelin fishery in the disputed
area between Jan Mayen and Eastern Greenland in relation to the
fisheryagreement of 1981between the Faroe Islands and Norway.
The Faroe Islands Landsstyri would like to make the following
comments on the statement from the Directorate of Fisheries:
The Faroe Islands Land.~styriagrees with the Directorate of
Fisheries that the issue should be considered in the light of the
memorandum from the Faroe Islands Landsstyri, quoted hy the
Directorate of Fisheries, concerning the request by the Faroe
Islands for a capelin quota for 1981 in the waters round Jan
Mayen. As is evident from this memorandum, the request served
two purposes. Firstly, the Faroe Islands wished to continue to
have access to this fishery, with as large as possible a quota
allocated over as long a season as possible. Secondly, the Faroe
Islands wished to avoid increasing the risk of incidents in the
disputed area between Eastern Greenland and Jan Mayen, where
Faroese fishing would in any case be taking place. As was also
quoted, it was made quite clear that the Faroese side could not
recognize any other conception of the boundary between Green-
land (Danish) territory and Norwegian territory than what had
been declared by the Danish Government.
The Faroe Islands hoped to obtain permission from both parties
in the dispute for Faroese vessels to fish in the area, partly to
reassure the masters, and partly to give the governments con-
cerned an opportunity to refrain from intervening in Faroese
fishing operations, since it was assumed that these governments
wished to keep the number of incidents in the area to a minimum.
In order to achieve these aims, the Faroese side requested, as you
know, a quota of 10,000tons and access for al1Faroese FOI-981
vessels; likewise,they did not wish to see theason limited to thefewdays it would presumably take for the whole Norwegian purse
seine fleet to fish the Norwegian quota off Jan Mayen. These
requests were complied with, but only to a limited degree and on
such restrictive terms that this to some extent limited the value of
the arrangement, especially as regards conditions in the disputed
area. In addition, the capelin stock appears to have stayed in the
disputed area longer than could have been foreseen by any of the
parties.
The Faroe Islands Landssiyrican confirm that Faroese fishing
operations in the undisputed Norwegian zone round Jan Mayen
have been discontinued as requested by Norway after about 3,500
tons had been taken, i.e. 1,000tons more than was permitted. We
hope Norway will consider this exceeding of the quota in the light
of the difficulties involved in stopping fishing operations of this
type at short notice.
Since then, Faroese vessels have continued to fish for capelin in
the Greenland zone, including the zone to which both Greenland
and Norway lay claim. These operations are being carried out
with the Danish Government's consent within a Danish quota of
80,000 tons.
It has been noted that the Norwegian fishery inspection authori-
tieshave pointed out to the Faroese vesselsthat Norway considers
the area to be part of the fishery zone round Jan Mayen and
therefore regards Faroese fishing operations as exceeding the
quota granted by Nonvay.
As mentioned above, the Faroe Islands Landsstyrirefers to the
fact that the Danish Government considers the area to be part of
Greenland's fishery zone, and that the fishery now in progress is
therefore covered by a quota granted by Denmark. This is in
accordance with the Faroese memorandum mentioned above and
is therefore not in conflict with the fishery agreement of 1981
between the Faroe Islands and Norway.
It is not for the Faroe Islands Landsstyrito interfere in thedispute
between Norway and Denmark over the course of the boundary
line. The main task of the Landsstyriin this matter is to try to
ensure as far as possible that the dispute does not affect the
possibilities of Faroese vessels to fish in theea.
The Faroe Islands Landssiyri is pleased to note that no serious
incidents have as yet taken place, and hopes that the high-level
contacts between the two governments will make it possible to
continue to avoid such incidents.Finally, we should like to add that the Faroe Islands Landrstyri
hopes that the two govemments will be able to reach an arrange-
ment which will create a mutually recognized framework for
fisheries in the area before the next capelin season. This hope is
partly based on the positive experience of the Faroe Islands in
another disputed area where the Norwegian Government is one of
the parties, that is to say in the so-called "grey zone" in the
Barents Sea.
The Faroe Islands Landss~yriTranslation ANNEX 94
Minutes of Meeting in Copenhagen21 June 1988
CONFIDENTIAL
MEMORANDUM
Delimitation Jan Mayen - Greenland. Thequestion of a possible
judicial settlement. Meeting in Copenhagen1 June 1988
Reference is made to the enclosed copy of the confidential
Memorandum of 17.6.88 (Appendix 1). [Not included in this
submission.]
At the meeting at senior civil servant level in Copenhagen on
21.6.88, the parties had thesame representatives as at the corre-
sponding informal meeting in Oslo on 20.5.88 (Appendix 2), and
the parties were still agreed that the meetings should be informal
and confidential so that information does not reach the media.
There was also agreement that the meetings were of an explor-
atory, non-committal and technical nature and are intended to
elucidate modalities in the event of a possiblejudicial settlement of
an unresolved problem, and that what the parties said did not
represent government positions.
The Danish side wished to see the Norwegian ideas on judicial
procedure, which had previously been sketched orally, set out in
writing; accordingly the Norwegian side first handed over an
informal document outlining the approach envisaged for judicial
proceedings (Appendix 3), and next an informal document con-
taining the questions which it is felt that a Tribunal should
initially determine (Appendix 4). (For the sake of comparison, a
copy is also enclosed of the informal document containing
elements of an arbitration agreement (Appendix 5) which Den-
mark submitted prior to the meeting of 20.5.88 in Oslo.)
When the two Norwegian documents were presented, it was
emphasized that they were wholly non-committal personal ideas
which were submitted solely for the purposes of illustration, with
no commitment to particular or exhaustive formulations, and that
they could not be regarded as expressing government positions.
There was once again emphasis on the diff~cultiesthat would arise
in seeking a judicial decision, especially with regard to the
composition of the Tribunal and its mandate. Its composition
would not be greatly facilitated if the approach outlined waschosen, but it would give the parties a good opportunity to
monitor developments and results, in that the procedure envis-
aged several stages, in which a Tribunal would first assess
fundamental legal questions.The Norwegian sketch was intended
to illustrate the problems one would be confronted with in
connection with a judicial decision, and on Norway's part was
also meant as a genuine attempt to accommodate the assessed
Danish desire for arbitration. It must therefore not be regarded as
an attempt at delaying tactics. It is still the opinion on the
Norwegian side that a comprehensive negotiated solution offers
distinct advantages, and that it should be perfectly possible to
arrive atsuch a negotiated final solution.
On the Danish side there were few comments on the two
Norwegian papers. It was admitted that they served to clarify the
ideas which had previously been expressed orally, and the inno-
vative thinking in the Norwegian sketch was acknowledged, but
doubt was expressed as to whether Danish political authonties or
the industries affected would show the same appreciation of the
sketch. It was far from what Denmark had had in mind for a
judicial settlement. It looked like developing into a complicated
and time-consuming procedure. What they had had in mind was
a simplified arbitration procedure based on the Danish elements
in a relatively straightfonvard case. From the Danish point of
view the case does not appear complicated, whereas the new
sketch for a procedure could entail endless proceedings. The
Norwegian sketches would nevertheless be faithfully reported to
the political authorities in Denmark.
With particular regard to the possible preliminary questions to a
court, it was moreover maintained on the Danish side that the
decisive question remains of what could bring the case to a final
conclusion within a reasonable space of time. As they saw it, the
Danish offer of arbitration might have moved the case in the
direction of a solution in 1-2years. Ajudicial decision would also
relieve the politicians of responsibility for the outcome. The
preliminary questions will not settle the case, and that kind of
approach would fail to produce a feeling of progress seen with
Danish eyes. The final Danish response to the Norwegian sketch
must, however, be developed through the normal decision-making
processes.
It wasemphasized on Norway's part that the informal Norwegian
sketch reflected the legal problems which it would be necessary to
face up to regardless of the procedure chosen for arriving, in the
event, at a judicial decision.Concerning the Norwegian decision-making process, it was
pointed out that a decision on apossiblejudicial settlement would
have to be taken not only by the Government, but also by the
Storting. The Storting would have to be drawn intothe process in
two stages: before an agreement to adopt a judicial procedure is
worked out, the underlying principle would have to be considered
by the Foreign Affairs Committee; then the actual agreement on a
judicial settlement would have to be submitted to the Storting for
its consent before Norway could ratify it.
It was also maintained on the Norwegian side that a judicial
decision would only partly relieve the politicians of responsibility
fortheoutcome of the case, and that the administration would not
be able to disclaim responsibility for the outcome or for the proper
composition of the court. Attention was again called to the many
uncertain factors attaching to the result. What was wanted was an
optimal solution to the boundary question which would give an
effective practicable and amicable conclusion. It was far from
certain that an arbitration tribunal would contribute to this. On
the Norwegian side attempts had accordingly been made to
comply with the Danish desire for arbitration without forgoing
the possibility of a forward-looking overall solution. Eight years
were not a long time for delimitation negotiations. Given satis-
factory resource management, the time spent would be no signifi-
cant cost if it could save the parties from other disadvantages. It
waç suggested that it could take 2-3 years, from the time when
agreement is reached on the composition and an agreement to
seek arbitration is ratified, for a possible final solution to be
achieved. But the composition of the court would have to be
settled before any compromise could be entered into concerning
some form or other of arbitration.
The Danish side would again consider how progress in the case
might be achieved, either through a judicial solution or by means
ofcontinued negotiations, and would consider what would lead to
themost satisfactory progress: the Nonvegian proposal of a series
of controlled steps, political negotiations at ministerial level, or
other possibilities. The Danes now had a great deal to present to
their government.
On the basis of the preliminay Danish comments on the informal
Nonvegian sketch, it is diflicult to form any definite opinion
about what view the Danes will take of the matter. What does
seemclear, at any rate, is that the Danish administration has beenmade aware of the many problems which will arise in connection
with a judicial decision, and thus of the advantages of seeking a
negoriated solution.
As things stand, it seems best to give the Danes time for interna1
consideration. There is reason, however, to try to keep ourselves
as wellinformed as possible of such considerations, among other
things through the Embassy in Copenhagen. In the somewhat
longer term it may also be desirable to involve the Embassy more
activelyin order, if possible, to influence how the Danish position
develops and the Danish decision-making process at its various
stages. The principal Norwegian objective should still be not to
missopportunities of arriving at a negotiated solution which takes
every aspect of the case into account.
The Ministry of Foreign Affairs
2nd Legal Affairs Division, 24 June 1988.
(Signeà) Bye Appendix2 to ANNEX 94
Meetingin Oslo 20 May 1988
List of Participants
[Norway:]
Per Tresselt, Director General
Legal Department
Professor dr.juris Carl August Fleischer
The Adviser in International Law to the Ministry of Foreign
Affairs
Birger Bye, Head of Division
2nd Legal Affairs Division
Thor Gislesen, Counsellor
Royal Emhassy, Copenhagen
[Denmark:]
Tyge Lehmann, Under-Secretary
Head of the Legal Department
John Bernhard, Head of Division
Legal Department (R.I.)
John Kierulf, Head of Section
Deputy Head of the Law of the Sea Secretariat
Aase Adamsen, Head of Section
Law of the Sea Secretariat
Per Magid, Barrister
Legal Adviser[Original: English] Appendix3 toANNEX 94
CONFIDENTIAL
Article??
[ (1) ] The Tribunal is requested (i) to determine certain questions
of law, bearing on the matter of the delimitation between the
portions of the continental shelf appertaining to each of the
Parties, and between the areas of Zones of maritime resource
jurisdiction appertaining to each of the Parties, in the region
between Greenland and Jan Mayen, in accordance with the rules
of international law applicable in the matter as between the
Parties, and (ii) subject to a further request by the Parties to that
effect,to determine the course of the boundaries corresponding to
the findings of the Tribunal.
[ (2) Stipulations as to sources of substantive law. ]
Article ??bis
The Tribunal is requested to deliver an interlocutory award,
providing its responses to the following questions:
Article ??ier
Each Party may request the Tribunal to clarify any matter arising
out of the interlocutory award, orto reconsider its award, or any
part thereof, within a period of [] days after the rendering of the
award. The Tribunal shall set time limits for each Party to
comment in writing on any such request, and may allow for
written counter-comment to be presented, and/or permit oral
argument to be heard. The Tribunal shall respond to any request
for clarification or reconsideration of its interlocutory award
within a period of [ ]days after the submission of final written
comment or the conclusion of oral argument.
Article ??quater
The Parties agree to accept as final and binding the responses of
the Tribunal to the questions set out in Article?? bisa,fter such
clarifications and reconsiderations as may have been called for. Article r! quinquies
(1) Within of [ ] days of the rendering of the interlocutory award,
or of the rendering of a response to a request for clarification or
reconsideration of that award, whatever is the latest, the Parties
shall resume their negotiations on the delimitation questions with
a view to their resolution in the light of the interlocutory award.
(2) The Parties may likewise within a period of [ ] days from the
resumption of their negotiations, by an instrument supplementary
to the present compromis, request the Tribunal to extend its
functions in any manner agreed by the Parties, includinga request
to determine the course of the boundaries corresponding to the
findings of the Tribunal with respect to the questions set out in
Article ?? bis. In that event, the Tribunal shall make the necessary
arrangements for the further proceedings in the case, and make
such adjustments in respect of financial and other administrative
matters as may be warranted by the extension of its function.
(3) The foregoing shall be without prejudice to the right of each
Party to have recourse to any other means of judicial settlement
availahle to it, in accordance with the relevant instruments.[Original:EnglisJ Appendix4 to ANNEX 94
CONFIDENTIAL
Article ??bis
The tribunal is requested to deliver an interlocutory award,
providing its responses to the following questions:
(i) What was the maximum extent of the continental shelf
appertaining to each of the Parties in theregion between
Greenland and Jan Mayen on 1January 1980,in the light
of pertinent rules of international law binding upon the
Parties, and of their national legislation?
(ii) Has the complementarity of the provisions of the national
legislation of the parties relating to the delimitation of the
continental shelf had the effect of defining the parameters
for the drawing of the boundary between the portions of
the continental shelf appertaining to each of the Parties.
(iii)If the answer to question (ii) above is negative, what was
the effect of the parallel and complementary national
legislation of the Parties with regard to the delimitation of
the continental shelf in the region between Greenland and
Jan Mayen?
(iv) In international law, is there any requirement for congruity
between the boundaries of the continental shelf and the
boundaries of the exclusiveeconomic zone (or correspond-
ing zones of maritime resourcejurisdiction), in the absence
of an agreement between the Parties to that effect?
(v) 1s the extension hy Denmark of the Fisheries Zone for
Greenland North of 67' Northern latitude by Decree of 30
May 1980opposable against Norway, in viewof thetenour
of theKingdom of Denmark Fishing Territory Act of 17
December 1976ai the time of the extension?
(vi)Does the process of negotiation undertaken by the Parties
for the delimitation of their continental shelves and other
zones of maritime resource jurisdiction fulfil the require-
ment under international law for meaningful and substan-
tive negotiations? Appendix5 to ANNEX 94
CONFIDENTIAL
Elementsof an Arbitration Agreement
Preamble
Recognizing the importance attached by the Parties to
judicial proceedings as an instrument for the attainment of
a peaceful and amicable solution to disputes and as a
contributory factor towards consolidation of the interna-
tional system of law.
-
Recognizing that delimitation disputes which have been the
subject of long-time, inconclusive negotiations are suitable
for judicial settlement as shown by previous international
practice.
Emphasizing that a settlement of the delimitation dispute
will lay a solid foundation for potential bilateral agree-
ments on mutual fishing rights and other exploitation of
the resources of the maritime area concerned.
Operative lerms
-
The Court of Arbitration shall be composed of one or two
persons appointed by either Party to the dispute (always
provided that neither Party may appoint more than one
person of its own nationality) as well as an umpire to be
appointed by the Parties jointly or, alternatively, by the
President of the International Court of Justice.
- The appointment of arbitrators shall be made within
specified time limits.
- The Court of Arbitration shall settle the question as to
where a single line of delimitation shall be drawn between
the contracting Parties' continental shelf areas and fishing
zones in the waters between Greenland and Jan Mayen.
- TheCourt of Arbitration shall baseits decision on the rules
of international law.
-
Arbitration shall be conducredgrosso modo in compliance
with Articles 63to 85of theConvention of 18October 1907
concerning Pacific Settlement of International Disputes.
- The Arbitration Agreement shall be rarifiedand enter into
force on the date of the exchange of the instruments of
ratification. LIST OF TABLES
TABLES INCLUDED IN THE REJOINDER
Table 7: Total Catches of Fish (in 1,000tons) in the
East Greenland Area, 1958-1990(ICES
Statistical Area XIV) ...........................3.2........
Table 8: Catches of Redfish (in 1,000tons) in the East
Greenland Area, 1977-1990(ICES Statistical
Area XIV) ......................................33..........
Table 9: Greenland Shrimp Catches (in 1,000tons) in
the East Greenland Area, 1980-1990(ICES
Statistical AreaXIVa and XIVb) ..................... 34
Table 10: Greenland Catches of Whale (1982-1989) .......36
Table 11: EC Catches of Fish and Shrimp (in 1,000
tons) in the East Greenland Area, 1980-1990
(ICES Statistical Area XIV) ....................37..
Table 12: Reported EC Catches of Capelin (in 1,000
tons) in the East Greenland Area, 1980-1990
(ICES Statistical Area XIVa and XIVb) ........38
Table 13: Norwegian Catches of Sumrner Capelin
(in 1,000tons) in the Jan Mayen Area
1978-1990 .......................................45........... LIST OF MAPS
Map V Disputed area in Relation to Jan Mayen and
Greenland Zones
Map VI Calculation o200 Nautical Mile Zones from
Jan Mayen and Greenland
Map VI1 200-MileZones in the Pacific Ocean
Northeast Greenland National Park....................................
ICES Statistical Are....................................................
Geographical Situation of Jan Mayen and Greenland
Compared with the Channel Region .....................................157 Map V
DISPUTEDAREA
IN RELATIONTO JAN MAYEN
AND GREENLANDZONES
Scale
~ap pqhn: StsreoOWqueeniVial
CBnlial7l'NB'W
Greenland Zone
2225500squarekilometres
Medianline -
Jan MayenZone
320500square kilometres
,- Disputedarea
6450squarekilometres
The disputed area corresponds to:
20.1 percent. of Jan Mayen Zone withinmedian line
2.9 percent. of GreenlandZone within médian line
Rejoinder of the Government of the Kingdom of Norway