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The 1993 Jan Mayen Judgment: the End of Illusions?

Published online by Cambridge University Press:  21 May 2009

George P. Politakis
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On June 14, 1993, just one year after an arbitral tribunal fixed the maritime boundary around the small French islands of St. Pierre and Miquelon, off Canada's Newfoundland, the International Court of Justice rendered its judgment on a closely analogous case concerning anew a relatively small insular feature lying opposite a much lengthier continental coast. A marked disparity in coastal fronts once more controlled the geographical context, so that proportionality was elevated by one of the parties to a dominant legal presumption. Yet again, equidistance crossed swords with equity, but hopefully suffered little from the Court's familiar ‘shadowboxing’ against Article 6 of the 1958 Continental Shelf Convention. One of the root causes of the dispute, the capelin fishing ground (capelin is a migratory species abundant in the areas between Jan Mayen, Iceland and Greenland), was shared out in equal halves, the judgment sending strong echoes of distributive justice in this respect. As for the boundary line, the Court evinced afresh its inventiveness with a view to equally apportioning satisfaction. The judgment marks a most-welcome rapprochement of Article 6 and equitable principles discourse, an affirmed restoration of equidistance, and a victory for often victimized small islands. Proportionality, as a test of the equitability of the solution, was ignored and seems now to have completed its life cycle. The Court's decision also amounted to what may be termed a premiere. Indeed, this is the first maritime delimitation case heard by the Court on the basis of a unilateral application relying on declarations under Article 36 paragraph 2 of the Statute.

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Articles
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Netherlands International Law Review , Volume 41 , Issue 1 , May 1994 , pp. 1 - 29
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Copyright © T.M.C. Asser Press 1994

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References

1. For commentaries on that decision, see Ruiz-Fabri, H., ‘Sur la délimitation des espaces maritimes entre le Canada et la France, sentence arbitrate du 10 juin 1992’, 97 RGDIP (1993) pp. 67–106Google Scholar; la Fayette, L. de, ‘The Award in the Canada-France Maritime Boundary Arbitration’, 8 Int. J. Marine & Coastal L. (1993)pp. 77–103CrossRefGoogle Scholar; G.P. Politakis, ‘The French-Canadian Arbitration Around St.Pierre and Miquelon: Unmasked Opportunism and the Triumph of the Unexpected’, Ibid. pp. 105–134.

2. Judge Oda criticized the Court for having entertained the case since in his view, ‘as a matter of principle, the delimitation of maritime boundaries, whether of the exclusive economic zone or of the continental shelf, does not fall within the sphere of competence of the Court unless the Court is specifically requested, by agreement of the parties, to effect a delimitation of that kind, applying equity within the law or determining a solution ex aequo et bono’; see the Separate Opinion of Oda, Judge, ICJ Rep. (1993) pp. 91, 111–114Google Scholar. Contra, see the Separate Opinion of Judge Ajibola, Ibid., pp. 283–285.

3. For a description of the relevant area, see Maritime Delimitation in the Area Between Greenland and Jan Mayen, Judgment, ICJ Rep. (1993) [hereinafter Judgment], paras. 11–15, pp. 44–46Google Scholar.

4. See the Memorial, Danish, Vol. I, paras. 365–377, pp. 117–121Google Scholar, and the Reply, Danish, Vol. I, paras. 452–458, pp. 165–167Google Scholar.

5. See the Memorial, Danish, Vol. I, paras. 295–301, pp. 95–97Google Scholar.

6. Denmark's view with regard to the treatment of islands in State practice was that ‘ever since the question of maritime delimitation between States first emerged islands have been given special attention’; see the Reply, Danish, Vol. I, paras. 204–276, pp. 83–99Google Scholar.

7. This reflects perhaps the more than dubious customary character of the so-called rocks-principle. As a recent study concluded, ‘the problem would, therefore, seem to be not whether Article 121, paragraph 3 has acquired the status of a norm of customary law, but whether it is at all capable of generating such a norm’; see Kwiatkowska, B. and Soons, A.H.A., ‘Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own’, 21 NYIL (1990) p. 180Google Scholar.

8. Denmark also touched on geology, without according any independent role to it, in order to demonstrate that ‘there exists no common shelf between East Greenland and Jan Mayen’; see the Memorial, Danish, Vol. I, paras. 153–158, pp. 37–40Google Scholar, and the Reply, Danish, Vol. I, paras. 58–71, pp. 23–28Google Scholar.

9. See the Memorial, Danish, Vol. I, paras. 302–313, pp. 97–101Google Scholar.

10. For a colourful narration on the history, culture and lifestyle of Greenlandic Inuit through the centuries, see Lynge, F., Oral Pleadings, CR 93/2, pp. 8–37Google Scholar (these page numbers refer to the provisional transcript of the oral hearings).

11. On the overwhelming dependency of Greenlanders on fishing for their livelihood, see the Reply, Danish, Vol. I, paras. 101–105, pp. 38–40Google Scholar. See also Trolle, K., Oral Pleadings, CR 93/2, pp. 38–60Google Scholar.

12. See the Memorial, Danish, Vol. I, para. 311, p. 100Google Scholar.

13. See Tresselt, P., Oral Pleadings, CR 93/5, pp. 51–53Google Scholar. On the fact that northeastern Greenland is no less desolate, barren, or inhospitable to human habitation than Jan Mayen, see also the Rejoinder, Norwegian, paras. 51–58, pp. 17–20Google Scholar, and the Reply, Danish, Vol. I, paras. 133–137, pp. 52–54Google Scholar.

14. See the Norwegian Counter-Memorial, Vol. I, para. 73, p. 21Google Scholar.

15. Ibid. para. 612, p. 174. See also the Rejoinder, Norwegian, paras. 551–560, pp. 163–166Google Scholar.

16. See the Memorial, Danish, Vol. I, paras. 314–319, pp. 101–102Google Scholar.

17. Ibid. para. 317, p. 102.

18. See the Reply, Danish, Vol. I, paras. 309–319, pp. 114–118Google Scholar, and Lehmann, T., Oral Pleadings, CR 93/3, pp. 38–55Google Scholar.

19. See the Reply, Danish, paras. 277–298, pp. 100–108Google Scholar, and Magid, P., Oral Pleadings, CR 93/3, pp. 30–37Google Scholar. The continental shelf agreement of October 1981 was concluded on the basis of the recommendations of a conciliation commission which had been delivered in May 1981. On this boundary settlement, see Churchill, R.R., ‘Maritime Delimitation in the Jan Mayen Area’, 9 Marine policy (1985)pp. 16–38CrossRefGoogle Scholar; Richardson, E.L., ‘Jan Mayen in Perspective’, 82 AJIL (1988) pp. 443–458CrossRefGoogle Scholar; Evensen, J., ‘La délimitation du plateau continental entre la Norvège et l’Islande dans le secteur de Jan Maye’, 27 AFDI (1981) pp. 711–738CrossRefGoogle Scholar; Gounaris, E., ‘The Delimitation of the Continental Shelf of Jan Mayen’, 21 Archiv des Völkerrechts (1983) pp. 492–501Google Scholar.

20. See the Norwegian Counter-Memorial, Vol. I, para. 252, p. 72Google Scholar.

21. Ibid. para. 231, p. 66, and the Rejoinder, Norwegian, paras. 633–641, pp. 187–189Google Scholar.

22. See the Memorial, Danish, Vol. I, paras. 320–356, pp. 102–111Google Scholar.

23. Ibid. paras. 376–377, p. 121.

24. See Bernhard, J., Oral Pleadings, CR 93/4, pp. 51–52Google Scholar. Denmark further contended that Jan Mayen should be more than satisfied with its unobstructed 200-mile projection to the east and a somewhat reduced zone to the south and to the west. As it was argued, ‘the Jan Mayen fishery zone has an expanse of some 255,000 square kilometres, even if full respect is accorded to Greenland's 200-mile zone. This should be related to the size of Jan Mayen, which is only about 380 square kilometres. Such a maritime area may be considered exorbitant compared to the land area on which it is based’; see the Reply, Danish, Vol. I, para. 7 and para. 308, pp. 4, 113–114Google Scholar.

25. See Weil, P., Oral Pleadings, CR 93/8, p. 64Google Scholar. Norway, in fact, spared no words in order to denounce the extravagance of the Danish claim. As it was argued in the written submissions, ‘such exaggerated and monopolistic claims are not simply “inequitable” but in legal terms invalid’; see the Norwegian Counter-Memorial, Vol. I, para. 662, p. 186Google Scholar. While during the oral proceedings it was stated: ‘the way Denmark presents things, it is not a delimitation, but a non-delimitation that Denmark is requesting of the Court… By endeavouring to enclose the disputed area between the line running 200 miles from Greenland, a line of maximalist projection antecedent to any delimitation, and the median line, a line of moderation conceived as the result of a delimitation, Denmark risks giving a false picture of reality … There is hardly any need to add that, should this conclusion not be dispelled, States would be led to submit to international tribunals, systematically, claims as maximalist as possible’; see Weil, P., Oral Pleadings, CR 93/8, pp. 34, 38Google Scholar. And elsewhere, he referred with irony to ‘the triple good luck to have at one and the same time a vast territory, a continental character and a long seaboard [which gives] the temptation of pleading the capitis deminutio of the entitlement of the other party if the latter was afflicted by all ills at once, and had the triple bad luck of having a small territory, an insular character and a short coastline’; Ibid. p. 19.

26. See the Memorial, Danish, Vol. I, paras. 346–347, p. 110Google Scholar.

27. See Weil, P., Oral Pleadings, CR 93/9, p. 29Google Scholar.

28. See the Norwegian Counter-Memorial, Vol. I, paras. 280–301, pp. 81–86Google Scholar. See also the Rejoinder, Norwegian, paras. 159–162 and paras. 172–266, pp. 51–52, 55–76Google Scholar.

29. Art. 1 reads as follows: ‘the boundary between those parts of the continental shelf over which Norway and Denmark respectively exercise sovereign rights shall be the median line which at every point is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each Contracting Party is measured’.

30. See the Norwegian Counter-Memorial, Vol. I, para. 283, p. 82Google Scholar.

31. Ibid. para. 282, p. 81. For Denmark's position, see the Reply, Danish, Vol. I, paras. 337–350, pp. 126–130Google Scholar.

32. See the Norwegian Counter-Memorial, Vol. I, para. 296, p. 85Google Scholar.

33. Ibid. paras. 323–411 and paras. 528–560, pp. 93–119, 154–161. See also the Rejoinder, Norwegian, paras. 163–165 and paras. 270–364, pp. 52–53, 78–104Google Scholar.

34. On the notion of estoppel and the element of detrimental reliance, see the Rejoinder, Norwegian, para. 363, p. 103Google Scholar.

35. See the Norwegian Counter-Memorial, Vol. I, para. 558, p. 161Google Scholar. Denmark countered these arguments in the Reply, Danish, Vol. I, paras. 351–408, pp. 130–150Google Scholar.

36. In the Norwegian Rejoinder, however, one finds no more references to a boundary already in place, but only statements like the ‘median line has legal validity’, or ‘Art. 1 of the 1965 Agreement sets out a general and dispositive norm … the opinio juris of the Parties’.

37. See the Norwegian Counter-Memorial, Vol. I, paras. 412–527 and paras. 659–676, pp.121–154, 185–189Google Scholar. See also the Rejoinder, Norwegian, paras. 166–171 and paras. 365–385, pp. 53–54, 105–112Google Scholar.

38. See the Norwegian Counter-Memorial, Vol. I, para. 665, p. 186Google Scholar. On the treatment of islands in general, see the Rejoinder, Norwegian, paras. 412–531, pp. 121–156Google Scholar.

39. See the Norwegian Counter-Memorial, Vol. I, para. 667, p. 187Google Scholar.

40. Ibid. para. 675, p. 189.

41. Ibid. para. 565, p. 163. See also the Rejoinder, Norwegian, paras. 541–546, pp. 161–162Google Scholar.

42. See the Norwegian Counter-Memorial, Vol. I, paras. 567–596, pp. 164–170Google Scholar.

43. Ibid. paras. 679–688, pp. 189–192.

44. Ibid. para. 666, p. 187.

45. See Weil, P., Oral Pleadings, CR 93//9, p. 8Google Scholar.

46. Ibid. pp. 7, 9.

47. See the Norwegian Counter-Memorial, Vol. I, para. 686, p. 191Google Scholar. And elsewhere it was asserted that ‘there is no point in defining a surface area, 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’; see the Rejoinder, Norwegian, para. 615, p. 181Google Scholar. See also Ibid. para. 625, p. 183.

48. See Weil, P., Oral Pleadings, CR 93/9, p. 17Google Scholar.

49. Judgment, paras. 22–40, pp. 48–56Google Scholar.

50. Ibid. para. 27, pp. 50–51.

51. Ibid. para. 28, p. 51.

52. Ibid. para. 39, p. 56.

53. Ibid. para. 85, p. 76.

54. Ibid. para. 86, p. 77.

55. Ibid. para. 44, p. 58.

56. Ibid. para. 46, p. 58.

57. Ibid.

58. Ibid. para. 51, p. 61.

59. In the words of Judge Ajibola, ‘while one may venture to say that special circumstances relate to geophysical peculiarities in respect of coasts of States, the term relevant circumstances is perhaps wider in scope, but similar in purpose and content … Thus the end result of solving the equation is special circumstances/equidistance being equal apparently to relevant circumstances/equitable principles’; see the Separate Opinion of Judge Ajibola, pp. 301, 303. Cf., the view of Judge Schwebel: ‘nor in interpreting the 1958 Convention may “special” circumstances be equated with the broader range of “relevant” circumstances which may be applicable in customary international law. The factors that are pertinent to a circumstance clearly are wider than those which are special to it’; see the Separate Opinion of Judge Schwebel, p. 121. Likewise, Judge Shahabuddeen: ‘whereas “relevant circumstances” may well require the application of equidistance, “special circumstances” can only operate to exclude it, and never to apply it. Hence, as compared with “relevant circumstances”, “special circumstances” are both narrower in scope and exclusionary in effect in relation to the use of the equidistance method. Relevant circumstances exist in all cases; special circumstances exist only in some’; see the Separate Opinion of Judge Shahabuddeen, p. 148.

60. Denmark recalled to this end the position of the Court in earlier cases (see Memorial, Vol. I, paras. 263–268, pp. 78–80Google Scholar), and the Court had a certain difficulty in overcoming that argument, see Judgment, para. 51, pp. 60–61Google Scholar.

61. Ibid. para. 56, p. 62.

62. Ibid. para. 68, pp. 68–69.

63. Separate Opinion of Judge Oda, para. 92, p. 115.

64. As Judge Schwebel pointed out, ‘an island was not conceived to be of itself a special circumstance which affects its own coastal projections. That concept is so bizarre that naturally it finds no expression in the intentions of those who drafted the 1958 Convention’; see the Separate Opinion of Judge Schwebel, p. 123. See also Brownlie, I., Oral Pleadings, CR 93/7, p. 35Google Scholar, and Weil, P., Oral Pleadings, CR 93/8, p. 55Google Scholar.

65. Separate Opinion of Judge Schwebel, pp. 125–126.

66. See Weil, P., Oral Pleadings, CR 93/8, p. 39Google Scholar.

67. Judgment, para. 76, p. 72Google Scholar.

68. Ibid. para. 75, p. 72.

69. Ibid. paras. 79–80, pp. 73–74.

70. Ibid. para. 80, p. 74. Despite the firm position of the Court on this issue, some commentators argue that effect should be given sooner or later by the courts to economic, navigational, security, and defence interests within a larger perception of equity; see, for instance, Kwiatkowska, B., ‘Economic and Environmental Considerations in Maritime Boundary Delimitations’, in Charney, J.I. and Alexander, L.M., eds., International Maritime Boundaries (1993) Vol. I, p. 108Google Scholar. Note also Judge Oda's point of view: ‘in my concept of equity, it is not merely the simple disparity of opposite coastlines which must be taken into account but also disparity of geographical (natural or socio-economic) situations, e.g., population, socio-economic activity, existence of communities behind the coastline and the distance of an uninhabited island from the nearest community of the mainland or main territory’; see the Separate Opinion of Judge Oda, para. 98, p. 116. In the same vein, Judge Weeramantry wrote: ‘any general proposition that population or economy are irrelevant because, unlike geophysical configurations, they may change with time is juristically untenable and not in conformity with the flexibility of equity’; see the Separate Opinion of Judge Weeramantry, para. 211, p. 268.

71. Judgment, para. 81, pp. 74–75Google Scholar.

72. For Judge Schwebel, however, ‘the Court by this holding of distributive justice has departed from the accepted law of the matter, as fashioned pre-eminently by it’; see the Separate Opinion of Judge Schwebel, p. 120. As has recently been observed, ‘on the relatively rare occasions where a boundary is determined by some form of third party settlement, the court or tribunal concerned is unlikely (at least on the basis of past practice) to give much weight to fisheries factors in determining a boundary line’. But it was added with caution: ‘it should be pointed out, however, that international courts and tribunals have hardly maintained a consistent development of the law in the successive boundary cases which have come before them, so that it is always possible that in future a court or tribunal may decide to take a rather different view of the role of fisheries interests in maritime boundary delimitation’; see Churchill, R.R., ‘Fisheries Issues in Maritime Boundary Delimitation’, 17 Marine Policy (1993) pp. 57, 53–54CrossRefGoogle Scholar.

73. See the Separate Opinion of Judge Oda, para. 99, p. 117.

74. Judgment, paras. 52–53, pp. 61–62Google Scholar.

75. Ibid. paras. 77–78, pp. 72–73. For an illustration of ice coverage in late April and late August, see map II annexed to the Norwegian Counter-Memorial.

76. On this hypothesis, see the Separate Opinion of Judge Weeramantry, para. 226, p. 271.

77. One cannot resist quoting Judge Schwebel's comment on the infinite variety of possible equitable solutions: ‘if what is lawful in maritime delimitation by the Court is what is equitable, and if what is equitable is as variable as the weather of The Hague, then this innovation may be seen as, and it may be, as defensible and desirable as another’; see the Separate Opinion of Judge Schwebel, p. 120.

78. Judgment, paras. 18–19, p. 47Google Scholar.

79. Ibid. para. 87, p. 77.

80. See Tresselt, P., Oral Pleadings, CR 93/5, p. 43Google Scholar.

81. Judge Schwebel raised this point as follows: ‘the line of delimitation indicated by the Court gives the impression of rewarding Denmark's maximalist claim and penalizing Norway's moderation … What is clear is that the Court's Judgment may tend to encourage immoderate and discourage moderate claims in future’; see Separate Opinion of Judge Schwebel, pp. 126–127.

82. Judgment, para. 70, p. 69Google Scholar.

83. One can hardly disagree with these fine words of Prosper Weil: ‘asking for 100 in the hope of obtaining 50 has become a commonplace of delimitation proceedings: the expectation that, out of respect for equity, the judge will in the end more or less split the difference encourages parties to adopt such a tactic … In the interest of international justice, it may be desirable that a halt be called to this tendency. I would add that it would be a matter of regret for Norway if Denmark was to benefit from its outrageous maximalization and if Norway would, for its part, have to regret having adopted a balanced and reasonable position … Moderation should not be penalized and maximalism should not be rewarded’; see Oral Pleadings, CR 93/9, pp. 30–31.

84. Judgment, paras. 65–67, pp. 67–68Google Scholar.

85. Ibid. para. 69, p. 69.

86. Ibid. para. 64, p. 67.

87. Ibid. para. 70, p. 69.

88. Ibid. para. 20, p. 47.

89. See Aréchaga, Jiménez de, Oral Pleadings, CR 93/2, p. 80Google Scholar.

90 See Weil, P., Oral Pleadings, CR 93/9, p. 21Google Scholar.

91. See Dissenting Opinion of Judge Fischer, para. 13, p. 309.

92. The Court had not availed itself of a similar opportunity presented in the Gulf of Maine Case. As Orrego Vicuña noticed, ‘the Gulf of Maine decision has evidenced a strong reluctance to apply the 1958 rules in any circumstances whatsoever’; see Vicuña, F. Orrego, ‘The Role of the International Court of Justice and Other Tribunals in the Development of the Law of Maritime Delimitation’, in Soons, A.H.A., ed., Implementation of the Law of the Sea Convention Through International Institutions – Proceedings of the 23rd Annual Conference of the Law of the Sea Institute (1990) p. 606Google Scholar.

93. As one author arbitrarily generalized, for instance, ‘islands do not generate extended maritime jurisdiction in the same way that other land masses do. Even inhabited islands (such as Jersey and Guernsey in the English Channel, Kerkennah Island near Tunisia, and Seal Island in the Gulf of Maine) do not generate full extended maritime zones if the impact of such an extension is to interfere with the claim of another nation based on a continental land mass’; see van Dyke, J.M., ‘The Role of Islands in Delimiting Maritime Zones: The Case of the Aegean Sea’, 8 Ocean YB (1989)p. 64Google Scholar. On this point, see also Evans, M.D., Relevant Circumstances and Maritime Delimitation (1989) pp. 135–141Google Scholar. For a systematic view on the treatment of islands in negotiated boundary agreements, see Bowett, D., ‘Islands, Rocks, Reefs, and Low-Tide Elevations in Maritime Boundary Delimitations’, in Charney & Alexander, op. cit. n. 70, pp. 131–151Google Scholar.

94. Judgment, para. 58, p. 64Google Scholar.

95. As a learned scholar put it, ‘a court of justice should not diverge from its equitable sentiment in order to reach a transaction, trying at any price to satisfy both disputing parties. The basis of transaction lies in opportunity, rather than in equity and in law’; see Degan, V.D., ‘Equitable Principles in Maritime Delimitations’, in International Law atthe Time of its Codification – Essays in Honour of Roberto Ago (1987) Vol. II, pp. 136–137Google Scholar.

96. Cf., Kwiatkowska who wrote: ‘an inclusion of economic considerations into circumstances relevant to maritime delimitation (to an extent broader than the courts so far admit) … is advocated on the basis of the assumption that the courts’ present restrictive approach may be subject to evolution towards a more liberal approach’; see Kwiatkowska, , loc. cit. n. 70, pp. 106–107Google Scholar. While Prosper Weil observed that ‘there is no denying that in practice economic and human geography, including the location of the resources and the respective wealth of the parties, have more than once actually been in the court's mind’; see Weil, P., ‘Geographic Considerations in Maritime Delimitation’, in Charney & Alexander, op. cit. n. 70, p. 118Google Scholar. Yet another scholar wrote, ‘the significance of economic factors to boundary delimitation has never been questioned’; see Sharma, S.P., ‘The Relevance of Economic Factors to the Law of Maritime Delimitation Between Neighboring States’, in Brown, E.D. and Churchill, R.R., eds., The UN Convention on the Law of the Sea: Impact and Implementation – Proceedings of the Law of the Sea Institute Nineteenth Annual Conference1987 p. 261Google Scholar.

97. On the rise and fall of the concept of natural prolongation, see the sharp remarks by Highet, K., ‘The Use of Geophysical Factors in the Delimitation of Maritime Boundaries’, in Charney & Alexander, op.cit. n. 70, pp. 163–202Google Scholar.

98. See North Sea Continental Shelf, Judgment, ICJ Rep. (1969) para. 95, p. 51Google Scholar.

99. The expression belongs to Judge ad hoc Valticos, Separate Opinion, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Rep. (1985) p. 106Google Scholar.

100. Keith Highet, for instance, in a recent essay considers that ‘it is now clear that the combination of these diverse [political] factors encouraged the Court to produce a decision which was both wide-ranging and aggressive’ and notes with some irony that ‘with hindsight, it might have been far more constructive if the Court had actually been requested to draw the line’; see Highet, , loc. cit. n. 97, pp. 166, 170Google Scholar. Another commentator criticized the ‘attitude of international jurisprudence toward the value to be attributed to the median line or equidistance rule and the clearly evidenced reluctance to grant to the practice of States the value it ought to have in making the general rule of delimitation relevant’, yet considered that jurisprudence ‘now seems to be progressing toward revaluation of this method [median line]’; see Ciciriello, M.C., ‘The Effect of Islands on the Delimitation of Marine Areas’, in Vukas, B., ed., Essays on the New Law of the Sea 2 (1990) pp. 35, 36Google Scholar.