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Jan Mayen in Perspective

Published online by Cambridge University Press:  27 February 2017

Elliot L. Richardson
Elliot L. Richardson*
Affiliation:
Of the District of Columbia Bar
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Extract

On October 22, 1981, the Governments of Iceland and Norway approved an agreement for the joint management of the resources of the Jan Mayen continental shelf. Incorporating the recommendations of a three-member conciliation commission, the Agreement obviated the need to draw a line demarcating the right to exploit the nonliving resources in the disputed area. The proliferation of boundary disputes during the intervening 7 years makes this an appropriate time to look at the potential benefits of using this approach in other maritime boundary disputes. After reviewing the stages in the resolution of the Jan Mayen dispute and the terms of the Agreement, this essay will discuss other situations in which the joint development approach has been used, the factors affecting its success and some examples of current delimitation disputes where this approach may be applicable.

Type
Research Article
Information
American Journal of International Law , Volume 82 , Issue 3 , July 1988 , pp. 443 - 458
Copyright
Copyright © American Society of International Law 1988

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References

1 Agreement on the Continental Shelf between Iceland and Jan Mayen, done Oct. 22, 1981, Iceland-Norway, reprinted in 21 ILM 1222 (1982).

2 United Nations Convention on the Law of the Sea, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea With Annexes and Index, UN Sales No. E.83.V.5 (1983). The Convention was adopted on Apr. 30, 1982, and open for signature from Dec. 10, 1982, to Dec. 9, 1984, during which time it received 159 signatures. Currently, it has 34 of the 60 ratifications required to bring it into force. Oceans Pol’y News, September 1987, at 1. Article 121 provides that islands are entitled to a territorial sea, an economic zone and a continental shelf. See Iceland: Law No. 41 Concerning the Territorial Sea, the Economic Zone and the Continental Shelf, June 1, 1979, reprinted in 18 ILM 1504(1979).

3 Law No. 2 Concerning Jan Mayen, Feb. 27, 1930, reprinted in I.C.5 Ministry of Foreign Affairs, Norwegian Laws and Acts, Selected for the Foreign Service (1980).

4 Agreement Concerning Fishery and Continental Shelf Questions, May 28, 1980 (entered into force June 1980), 1980 Overenskomster med fremmede stater 912. See Churchill, , Maritime Delimitation in the Jan Mayen Area, 9 Marine Pol’y 16 (1985)CrossRefGoogle Scholar.

5 Agreement Concerning Fishery and Continental Shelf Questions, supra note 4, preamble. See also Iceland: Law Concerning the Territorial Sea, the Economic Zone and the Continental Shelf, supra note 2.

6 Conciliation Commission on the Continental Shelf Area between Iceland and Jan, Mayen, Report and Recommendations to the Governments of Iceland and Norway (1981)Google Scholar, reprinted in 20 ILM 797 (1981) [hereinafter Report].

7 Agreement Concerning Fishery and Continental Shelf Questions, supra note 4, Art. 9.

8 An approach addressed to the realities underlying cooperation in solving delimitation disputes was anticipated by Judge Jessup. North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 67–84 (Judgment of Feb. 20) (Jessup, J., sep. op.).

9 The value of having adequate knowledge of a disputed area is illustrated by the Danish-Swedish continental shelf dispute in the Kattegatt. Despite Swedish protests, a Danish company proceeded with exploratory drilling in 1983, only to find no commercially exploitable resources in the disputed zone. This discovery relaxed the political tension, although the delimitation is still pending. See Lagoni, , Interim Measures pending Maritime Delimitation Agreements, 78 AJIL 345, 363–64 (1984)Google Scholar.

10 In addition to Dr. Talwani, the members of the special scientific advisory committee were Dr. Karl Hinz (Bundesanstalt für Geowissenschaften und Rohstoffe, Federal Republic of Germany), Dr. Lucien Montadert (Institut francais du Pétrole), Dr. Olav Eldholm (University of Oslo, Norway), Mr. E. Bergsager (Norwegian Petroleum Directorate), Dr. Gudmundur Palmason (National Energy Authority, Iceland), Dr. Lewis Alexander (Geographer of the United States), Dr. N. Terence Edgar (U.S. Geological Survey) and Mr. John Mutter, rapporteur (Lamont-Doherty Geological Observatory).

11 Report, supra note 6, at 806–07.

12 Id. at 813–14.

13 Id. at 818.

14 Id. at 823.

15 Id. at 822, 824.

16 Id. at 826.

17 Id.

18 The area was defined by a series of coordinates as the zone between 70°35′ and 68° north latitude, and 10°30′ and 6°30′ west longitude. Agreement on the Continental Shelf, supra note 1, 21 ILM at 1223.

19 Report, supra note 6, at 830–31.

20 Id. at 832–34.

21 Id. at 836–39.

22 Id. at 837.

23 Id. at 838. In making these technical recommendations, the commission benefited from the special expertise of Ambassador Evensen, whose experience in the North Sea negotiations had familiarized him with the legal, scientific and commercial aspects of the methods of petroleum development.

24 Unitization procedures usually allow each party to maintain jurisdiction on its side of the boundary line while the field is exploited as a single unit subject to well-defined installations and apportionment of reserves. The procedures are intended to promote good oil-well practice.

25 Report, supra note 6, at 839. Although not immediately recommending them, the commission also suggested including in a future agreement other fields of cooperation such as transfer of technology, long–term petroleum supply agreements to Iceland, access to scientific and practical training, and other spheres of activity not involving resources. Id. at 840.

26 Article IV of the Antarctic Treaty of 1959 is a prime example of sidestepping of the sovereignty question while research activities proceed. The Treaty establishes a regime for managing Antarctica but does not resolve the problems arising from the refusal of the United States, the USSR, Japan and others to recognize any territorial claims. Instead, Article IV simply freezes the parties’ claims. Antarctic Treaty, done Dec. 1, 1959, 12 UST 794, TIAS No. 4780, 402 UNTS 71. A similar solution seems likely in the Antarctic mineral regime currently being negotiated. See infra note 29.

27 See Onorato, , Apportionment of an International Common Petroleum Deposit, 17 Int’l & Comp. L.Q. 85 (1968)CrossRefGoogle Scholar; Lagoni, , Oil and Gas Deposits Across National Frontiers, 73 AJIL 215 (1979)CrossRefGoogle Scholar; Reid, , Petroleum Development in Areas of International Seabed Boundary Disputes: Means for Resolution, 3 Oil & Gas: L. & Tax’n Rev. 214 (1984/85)Google Scholar.

28 An example is the agreement between Austria and Czechoslovakia over the division of common gas fields lying in the Zwerndorf-Vysoká frontier area. See Agreement Concerning the Working of Common Deposits of Natural Gas and Petroleum, Jan. 23, 1960, Austria-Czechoslovakia, 495 UNTS 125. See also Lagoni, supra note 27, at 223.

29 Since 1982, the parties to the 1959 Antarctic Treaty have been negotiating a legal regime that would govern the possibility of minerals development in Antarctica, including potential hydrocarbons on the surrounding continental margin. Although the draft regime is not a public document, a copy of its text has been published by Greenpeace. One of the most up–to–date descriptions of this proposed international management regime can be found in R. Tucker Scully’s The Antarctic Mineral Resource Negotiations: A Report (paper presented at the 20th Annual Meeting of the Law of the Sea Institute, Miami, July 23,1986). See also Joyner, , The Antarctic Minerals Negotiating Process, 81 AJIL 888 (1987)CrossRefGoogle Scholar.

30 Agreement Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom, United Kingdom–Norway, May 10, 1976, 1977 Gr. Brit. T.S. No. 113 (Cmd. 7043).

31 Convention sur la délimitation des plateaux continentaux des deux Etats dans le golfe de Gascogne (golfe de Biscaye), Jan. 29, 1974, France–Spain, reprinted in 80 Revue Générale de Droit International Public 368 (1976). For additional agreements on maritime delimitation and fishing, see UN Doc. ST/LEG/SER.B/16, at 407 (1974).

32 Lagoni, supra note 27, at 223–26. Another kind of cooperative agreement is that of the Ems-Dollart Treaty between Holland and the Federal Republic of Germany, which encourages concessionaires in the Ems River Estuary, long claimed by both countries, to enter into joint operations on either side of the boundary. The Treaty also adopts the common approach for the exploration and exploitation of the area. Supplementary Agreement to the Treaty Concerning Arrangements for Cooperation in the Ems Estuary (Ems-Dollart Treaty), Apr. 8, 1960, Netherlands–Federal Republic of Germany, 509 UNTS 104.

35 “Fifteen percent of Iceland’s population is employed in the fishing industry, while the earnings of fisheries amount to some 17 percent of the gross national product. Of the country’s total exports, fish products account for 75 percent, and of this 95 percent is caught in Icelandic waters.” Østreng, W., International Exploitation of ‘National’ Ocean Minerals (Fridtjof Nansen Institute, Study No. R:007, 1983)Google Scholar.

34 Østreng discusses the “Keflavik card” as a political factor influencing the formulation of the Norwegian negotiating standpoint before negotiations with Iceland actually took place. If tensions rose to the point where Iceland pulled out of NATO, as it had threatened to do in the “Cod Wars” with the United Kingdom, the United States would have been left without a base in the entire Norwegian Sea, which is of vital importance for surveillance of the Kola Peninsula. Nor could Norway have relocated the base on its territory. To do so would be in violation of its self-imposed military policy of “reassurance” for the Soviets, whereby Norway does not allow stationing of foreign troops on its soil during peacetime. Incidentally, the Norwegians mediated the “Cod Wars” dispute, which would have put them in an awkward position if they took a hard stance in the Jan Mayen dispute. Id. at 16–20.

35 Id at 31.

36 Id.

37 Agreement on East Coast Fishery Resources, Mar. 29, 1979, United States–Canada (not ratified by the United States). Linked to the Agreement was the Maritime Boundary Settlement Treaty with Canada, later ratified by both sides, calling for submission of the dispute to the International Court of Justice. Maritime Boundary Settlement Treaty, Mar. 29, 1979, United States–Canada, TIAS No. 10,204 (entered into force Nov. 20, 1981).

38 Clain, , Gulf of Maine—A Disappointing First in the Delimitation of a Single Maritime Boundary, 25 Va. J. Int’l L. 521 (1985)Google Scholar.

39 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12).

40 United States–Canadian Fishing Agreements: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 96th Cong., 1st Sess. 40, 43 (1979) (statement of Lloyd N. Cutler), quoted in Clain, supra note 38, at 603.

41 Clain, supra note 38, at 605 (emphasis in original).

42 Østreng, , Regional Delimitation Arrangements in the Arctic Seas: Cases of Precedence?, 10 Marine Pol’y 132, 143 (1986)Google Scholar.

43 Greece unsuccessfully requested interim measures of protection and the Court held that it lacked jurisdiction to entertain the Greek Application. Aegean Sea Continental Shelf (Greece v. Turk.), 1976ICJ Rep. 3 (Interim Protection Order of Sept. 11); and Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 3 (Judgment of Dec. 19). The dispute has been going on since 1976. Turkey maintained that Greece had refused to participate in meaningful negotiations even to the extent of refusing to attempt to agree on the definition of the area in question. Observations of the Government of Turkey on the Request by the Government of Greece for Provisional Measures of Protection, 1976 ICJ Pleadings (Aegean Sea Continental Shelf) 69, 70, para. 10 (Observations submitted in 1976). See also Lagoni, supra note 9, at 355; The Maritime Dimension 184–85 (R. P. Barston & P. Birnie eds. 1980).

44 W. Østreng, supra note 33, at 31–32.

45 “Considering the object and purpose of the obligation, one has to endorse the opinion that it must arise as soon as the claims overlap. Otherwise, one of the states concerned could prejudice the negotiations before they actually started.” Lagoni, supra note 9, at 364. The obligation would remain if negotiations reached a deadlock or were discontinued, or if one of the parties issued notice that a dispute had arisen. Id.

46 See generally id.

47 North Sea Continental Shelf Cases, 1969 ICJ Rep. at 42. See also W. Østreng, supra note 33, at 137, 141–44.

48 Potential areas for the application of the joint development approach that are not discussed here are the Timor Gap between Australia and Indonesia, the Gulf of Thailand and the Gulf of Tonkin. See Valencia & Miyoshi, , Southeast Asian Seas: Joint Development of Hydrocarbons in Overlapping Claim Areas, 16 Ocean Dev. & Int’l L. 211 (1986)CrossRefGoogle Scholar. See also Dzurek, , Boundary and Resource Disputes in the South China Sea, 5 Ocean Y.B. 254 (1985)Google Scholar; Park, , China and Maritime Jurisdiction: Some Boundary Issues, 22 Ger. V.B. Int’l L. 119 (1979)Google Scholar. Offshore industry in Africa is still in its early stages, and few delimitation agreements have, as yet, been concluded. The joint development approach may be useful in this region as the need arises in the future.

49 Treaty Relating to the Submarine Areas of the Gulf of Paria, Feb. 26, 1942, United Kingdom–Venezuela, 205 LNTS 121.

50 Nweihed, , EZ (Uneasy) Delimitation in the Semi–enclosed Caribbean Sea: Recent Agreements Between Venezuela and Her Neighbors, 8 Ocean Dev. & Int’l L. 1 (1980)Google Scholar.

51 Id. at 16.

52 Fishing Agreement, December 1977, Venezuela–Trinidad and Tobago, Bilateral Treaties pf Trinidad and Tobago (1979), Gazeta Oficial de la República de Venezuela, June 7, 1978.

55 Telephone interview with Andrés Aguilar Mawdsley, Permanent Representative of Venezuela to the United Nations (June 1986).

54 A report of the Inter-American Dialogue refers to the principle of joint exploitation as particularly appropriate for the Caribbean: “Joint regimes—which would harmonize with a tradition of integration between political units [in the] region—could reduce costs, and might make it easier for outside countries and agencies to render technical assistance.” Inter-American Dialogue, The Americas at a Crossroads 50 (Woodrow Wilson International Center for Scholars, 1983).

55 Agreement on Cooperation in the Field of Environmental Protection, Dec. 4, 1972, United States–USSR, 23 UST 3544, TIAS No. 7512.

56 Antinori, , The Bering Sea: A Maritime Delimitation Dispute Between the United States and the Soviet Union, 18 Ocean Dev. & Int’l L. 1 (1987)Google Scholar.

57 Note, Delimiting Continental Shelf Boundaries in the Arctic: The United States–Canada Beaufort Sea Boundary, 22 Va. J. Int’l L. 221, 243–44 (1981). There is a distinction, however: the U.S.–USSR delimitation pursuant to the 1867 Convention line was a maritime boundary covering the sea, while the U.S.–Canada line is described by the bilateral treaties as running “as far as the Frozen Ocean” (“jusqu’au” in the French version). Id. at 227–28.

58 Russia’s cession of its interest in Alaska to the United States in the 1867 treaty specifically provided for continued use of the 141st meridian boundary. Art. I, Cession of Alaska, Mar. 30, 1867, United States–Russia, 15 Stat. 539, TS No. 301, 11 Bevans 1216. See also Note, supra note 57, at 228.

59 North Sea Oil, Economist, Feb. 18, 1984, at 74 (U.S. ed.).

60 Brown, , Rockall and the Limits of National Jurisdiction of the UK (Part 2), 2 Marine Pol’y 275, 289 (1978)Google Scholar.

61 See Law of the Sea Convention, supra note 2, Art. 121(3).

62 Britain and Ireland; the other border, Economist, July 5, 1980, at 62.

63 There is substantial geological evidence that Rockall and the Faeroe Islands are linked by an unbroken extent of submerged continental crust, thus establishing a basis for a claim of natural prolongation. Brown, supra note 60, at 284.