89

SEPARATE OPINION OF VICE-PRESIDENT ODA

TABLE OF CONTENTS

INTRODUCTION

PART I. DENMARK’S MISUNDERSTANDING OF CERTAIN CONCEPTS OF
THE LAW OF THE SEA AS REFLECTED IN ITS SUBMISSIONS

55

1. The submissions of Denmark
2. Problem 1 : The fishery zone (however called) is not identical to
the exclusive economic zone

(a)
(b)

(g)

The period prior to the 1950s
UNCLOS I (1958)

The 12-mile fishery zone in the period following

 UNCLOSI

Emergence of the new concept of the exclusive economic
zone
Claims to a 200-mile fishery zone since the mid-1970s

“Fishery zone” not a legal concept
The Court’s position on the 200-mile offshore fisheries

. Problem 2: The régime of the continental shelf is independent of

the concept of the exclusive economic zone

(a)
(b)
(c)

(d)
(e)

Emergence and evolution of the legal concept of the conti-
nental shelf
Post-UNCLOS I

Transition to a new situation due to new technological
developments

Transformation of the definition of the continental shelf
Ignorance of the transformation of the concept of the con-
tinental shelf and the parallel existence of the exclusive
economic zone and the continental shelf

. Problem 3: Confusion of title to the exclusive economic zone

and the continental shelf with the question of delimitation of
overlapping entitlements

(a)
(b)
(c)

Denmark’s entitlement to an exclusive economic zone and
a continental shelf in respect of Greenland

Norway’s entitlement to an exclusive economic zone and a
continental shelf in respect of Jan Mayen

Overlapping of entitlements or claims

Paragraphs
1-3

4-46

45
6-23
7-8
9-11
12-15

16
17-19

20-22
23

24-39

26-28
29-32

33-34
35-37

38-39

40-46

A1

42-43
44-46
90

MARITIME DELIMITATION (SEP. OP. ODA)

Part II. THE POSSIBLE FUNCTION OF THE COURT IN CASES OF MARITIME
DELIMITATION

1. Law of maritime delimitation in the 1958 Convention on the
Continental Shelf

(a)

(b)

(c)
(à)

(e)

Delimitation of fisheries jurisdiction not at issue at
UNCLOSI

UNCLOS I: Adoption of the Convention on the Continen-
tal Shelf

The North Sea as a practical case-study

Implications of the Judgment in the North Sea Continental
Shelf cases

Article 6 of the 1958 Convention not applicable to the pres-
ent case

. The rules for maritime delimitation discussed at the Sea-Bed

Committee and UNCLOS III, and their adoption in the 1982
United Nations Convention

(a)
(b)
(c)

Drafting of Articles 74 and 83 of the 1982 Convention
Interpretation of the provisions of Articles 74 and 83
One or two delimitation lines ?

. Role of the third party in settling disputes concerning maritime

delimitation

(a)
(b)

(c)
(d)

(e)

Infinite variety of potential delimitation lines

Role of the third party in the delimitation of maritime
boundaries

Arbitration ex aequo et bono

Limited function of the International Court of Justice in a
maritime delimitation

Effecting a delimitation ex aequo et bono

Part III. Lack oF VALID GROUNDS FOR THE LINE DRAWN IN THE
JUDGMENT

(a) Unsatisfactory “justification” by special (relevant) circum-
stances

(b) Unjustified choice of the line

(c) Mistaken definition of a single maritime boundary

(da) Conclusion

56

47-48

48-61

48
49-52
53-57
58-60

61

62-74

62-64
65-69
70-74

75-89
75-76

77-79
80-84

85-87
88-89

90-100

92-95
96-98
99
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91 MARITIME DELIMITATION (SEP. OP. ODA)

INTRODUCTION

1. Iam somewhat concerned by the rather incorrect manner in which
Denmark formulated its Application and submissions and the way in
which the Court responded to them. I will accordingly begin my opinion
by pointing out that Denmark appears to have misunderstood certain
concepts of the law of the sea, such as the exclusive economic zone and the
continental shelf, as reflected in its submissions (Part I of this opinion).

2. However, the principal reason why I am inclined to criticize the
Judgment lies in my belief that, 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. Hence I believe that the
Application unilaterally submitted by Denmark in the present case
. should have been dismissed (Part ID).

3. Even assuming that the Court is competent to draw a line or lines of
delimitation of the exclusive economic zone or the continental sheif, the
single line drawn in the Judgment (paras. 91-92) does not appear to be
supported by any cogent reasoning, although of course that line or
another line could have been decided by agreement of the Parties
(Part ITT).

PART I. DENMARK’S MISUNDERSTANDING OF CERTAIN CONCEPTS OF THE
LAW OF THE SEA AS REFLECTED IN ITS SUBMISSIONS

1. The Submissions of Denmark

4. In its Application of 16 August 1988, Denmark asked the Court

“to decide, in accordance with international law, where a single line
of delimitation shall be drawn between Denmark’s and Norway’s
fishing zones and continental shelf areas in the waters between
Greenland and Jan Mayen” (emphasis added).

In its submissions of 31 July 1989 contained in the Memorial, Denmark
asked the Court |

“(1) To adjudge and declare that Greenland is entitled to a full
200-mile fishery zone and continental shelf area vis-a-vis the island of
Jan Mayen; and consequently

(2) To draw a single line of delimitation of the fishing zone and the

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92 MARITIME DELIMITATION (SEP. OP. ODA)

continental shelf area of Greenland in the waters between Greenland
and Jan Mayen at a distance of 200 nautical miles measured from
Greenland’s baseline” (emphasis added).

In the submissions presented on 31 January 1991 in its Reply, Denmark
added concrete map references to submission (2). A further request, dated
25 January 1993, was added in the final submissions presented at the close
of the oral phase, to the effect that

“() Ifthe Court, for any reason, does not find it possible to draw
the line of delimitation requested in paragraph (2), Denmark
requests the Court to decide, in accordance with international law
and in light of the facts and arguments developed by the Parties,
where the line of delimitation shall be drawn between Denmark’s
and Norway’s fisheries zones and continental shelf areas in the
waters between Greenland and Jan Mayen, and to draw that line”
(emphasis added).

5. Itappears to me that Denmark fails to appreciate certain concepts of
the law of the sea. In the first place, it does not seem to grasp the proper
concept of the exclusive economic zone, the concept adopted in the
1982 United Nations Convention on the Law of the Sea. As a matter of
fact, this misunderstanding is not only displayed by Denmark but is also
to be observed in the position taken by Norway in these proceedings as
well as by some other countries in various contexts (Sec. 2 below).
Secondly, Denmark seems to pay little heed to the régime of the continen-
tal shelf which is fated — at least under the contemporary law of the sea —
to exist in parallel with the régime of the exclusive economic zone (Sec. 3
below). Thirdly, Denmark seems to confuse title to the continental shelf or
the exclusive economic zone with the concept of delimitation of overlap-
ping sea-areas (Sec. 4 below).

2. Problem 1: The Fishery Zone (However Called) Is Not Identical
to the Exclusive Economic Zone

6. What exactly is meant by the “fishing zone”, “fishery zone” or “fish-
eries zone” extending “200 miles from the coast”, to which Denmark
refers in its Application and submissions? Denmark indeed claimed
a 200-mile “fishing territory” in its Act No. 597 of 1976, but it has never
relied upon the concept of the exclusive economic zone, which was
adopted in the 1982 United Nations Convention on the Law of the Sea.
This consideration leads me to present some reflections on the develop-
ment of the coastal State’s exercise of jurisdiction over offshore areas.

(a) The period prior to the 1950s

7. Until the time of UNCLOS I in 1958, neither Denmark nor Norway
had ever considered the possibility of jurisdiction over, or control of, off-

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93 MARITIME DELIMITATION (SEP. OP. ODA)

shore fisheries beyond a distance of 1 league (3 nautical miles) or at most
4 nautical miles from the coast.

8. While the post-war claims of some Latin American countries to
wider offshore areas of maritime sovereignty (extending over a 200-mile
distance from the coast) for exploitation as their own fishing grounds
were eventually asserted jointly in the Santiago Declaration of 1952, both
Denmark and Norway lodged their respective protests at the position
being taken by those countries. The areas claimed by those Latin Ameri-
can countries were sometimes referred to as “fishery zones” or “fishing
zones”, but they never gained universal recognition in international law.

(b) UNCLOS I (1958)

9. One of the most important issues at UNCLOS I (a conference con-
vened in 1958 in Geneva after being prepared over several years by the
International Law Commission) consisted in the determination of the
limit of the territorial sea. This problem was characterized at the Confer-
ence as a confrontation between the narrower limit (3 or 4 miles) and the
wider limit (12 miles), and the concept of a “fishery zone” to be estab-
lished outside the territorial sea but within 12 miles from the coast was
proposed by States favouring the narrower territorial-sea limit as a com-
promise to be offered those wanting a 12-mile limit within which to exer-
cise exclusive offshore fishing rights.

10. The very concept of the “fishery zone” was thus proposed as a sub-
stitute for the extension of the territorial sea to 12 miles, which was not
then acceptable to some States (mostly the Western States), and it is
important to note that the outer limit of the fishery zone thus mooted was
to be 12 miles from the coast. It cannot be over-emphasized, moreover,
that the concept of the fishery zone discussed at UNCLOS I was different
in nature from that of the maritime sovereignty straightforwardly claimed
around 1950 by the Latin American States, to cover 200-mile offshore
areas.

11. UNCLOS I narrowly failed in its attempt to fix the limit of the terri-
torial sea, and for that reason there were no further references to the con-
cept of the fishery zone, which had been put forward only in that
connection.

(c) The 12-mile fishery zone in the period following UNCLOS I

12. In the upshot, UNCLOS I neither fixed a 12-mile limit to the terri-
torial sea in the Convention on the Territorial Sea and the Contiguous

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94 MARITIME DELIMITATION (SEP. OP. ODA)

Zone, nor introduced the concept of the 12-mile fishery zone as compen-
sation for the retention of the narrower territorial sea. Nevertheless, the
concept of the 12-mile “fishery zone” which had not been recognized in
1958 began to take root in the period after UNCLOS I.

13. One after the other, both Denmark and Norway unilaterally estab-
lished a 12-mile zone for fishery purposes. However, the unilateral estab-
lishment of such a fishery zone at that time was, of course, not limited to
Denmark and Norway. Indeed, States began increasingly to agree among
themselves that they should be entitled to establish such a zone. The
1964 Fisheries Convention concluded among European countries includ-
ing Denmark (but not Norway), represented a type of such an agreement
in which each contracting State recognized the right of any other contract-
ing party to establish a belt 6 miles wide in which the coastal State would
have the exclusive right to fish and exclusive jurisdiction in matters of
fisheries, together with an outer 6-mile belt in which the continuation of
traditional foreign fishing would be guaranteed.

14. The concept of the 12-mile fishery zone, which was never accepted
at UNCLOS I, had thus rapidly gained general recognition. By the mid-
1970s, that same fishery zone, while not provided for in any of the uni-
versal documents concerning the law of the sea, existed as a firmly
established institution.

15. Iceland was unique in claiming a 50-mile fishery limit by its
1971 policy statement and the 1972 resolution adopted by the Althing.
That Icelandic claim occasioned objections by the Federal Republic of
Germany and the United Kingdom, and was in issue in proceedings
before the International Court of Justice in the Fisheries Jurisdiction
(United Kingdom v. Iceland) and Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland) cases. In its Judgments, the Court found that the uni-
lateral extension of the exclusive fishing rights of Iceland to 50 miles
was “not opposable to” the United Kingdom or the Federal Republic
(CJ. Reports 1974, pp. 34 and 205).

(d) Emergence of the new concept of the exclusive economic zone

16. One of the new trends in UNCLOS III during the 1970s was that
the claim to a 200-mile zone (which had been advanced by some
Latin American nations as an area of maritime sovereignty in the post-war
period but had met with strenuous objections from other countries), had
now become recognized — but only in the form of the “exclusive econ-
omic zone”. In comparison with the progress made by the concept of the
200-mile “exclusive economic zone”, which rapidly gained world-wide
support, the concept of a 12-mile “fishery zone” lost all its significance.
However, the concept of the “exclusive economic zone”, which on the one
hand was much wider in scope than that of the fishery zone because of the
inclusion of control by the coastal State not only over fishing but also over
various other activities, did on the other hand envisage for the coastal

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95 MARITIME DELIMITATION (SEP. OP. ODA)

State certain obligations concerning the control and management of
fisheries.

(e) Claims to a 200-mile fishery zone since the mid-1970s

17. While the régime envisaged for the exclusive economic zone was
still in a chaotic state at the early stages of UNCLOS III (the Caracas ses-
sion in 1974 and the Geneva session in 1975), a number of States, which
had discerned the general trend of expansion of coastal jurisdiction over
extended offshore areas, vied with each other, prior to the adoption of the
Convention at the Conference in 1982, in bluntly claiming their fishery
interests in those areas.

18. Denmark established a 200-mile “fishery territory” by Act No. 597
of 17 December 1976 to replace its Act No. 207 of 1964, and Norway estab-
lished a 200-mile “economic zone” by its Act No. 91 of 17 December
1976 and its Royal Decree of the same date. Other States were meanwhile
making haste to declare a 200-mile fishery zone in order to secure exclu-
sive control of fishing in their respective offshore areas, disregarding the
concept of the exclusive economic zone (which was to be suggested at
UNCLOS III for incorporation into the as yet unfinalized Convention).

19. This unilateral process does not alter the fact that, under the 1982
United Nations Convention on the Law of the Sea, whose rules in most
respects are widely held to have superseded earlier law, the claim to a dis-
tance of 200 miles is permissible only in respect of the exclusive economic
zone (defined in detail and in strict terms in Part V of the Convention), in
which due consideration is given to the common interest of the rest of the
world — that is, to the conservation and optimum utilization of fishery
resources.

(f) “Fishery zone” not a legal concept

20. There is certainly no provision in the 1982 Convention that relates
to a 200-mile “fishery zone” as such. The “fishing zone” (or “fishery
zone”) which Denmark and Norway established respectively (and which
Denmark mentions in its Application) is not the exclusive economic zone
as defined in that Convention.

21. However, it is undeniable that today a number of States have
claimed a 200-mile “fishery zone” or “economic zone” — but not an
“exclusive economic zone”. These States include Canada, Germany,
Japan, the Netherlands and the United States, all of which would have
been strongly opposed to the exercise of exclusive fishing rights by coastal

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96 MARITIME DELIMITATION (SEP. OP. ODA)

States in offshore areas beyond the limit of the territorial sea even if the
latter had been extended from its traditional 3-mile to a 12-mile limit. It
may for this reason be contended that, thanks to these repeated claims
made by certain States, including both developed and developing coun-
tries (many of which have been asserted during the past decade), the con-
cept of the 200-mile fishery zone has become customary international law
quite independently of the 1982 Convention.

22. It is noted that the respondent State, Norway, has also and in the
same manner laid claim to a 200-mile “fishing zone”. Thus I am ready to
accept that the Court was bound, in these proceedings, to proceed with the
“fishery zone” as an established concept, setting aside that of the “exclu-
sive economic zone”.

(g) The Court's position on the 200-mile offshore fisheries

23. As the concept of the “fishery zone” has no standing, at least in the
1982 Convention, and still remains a merely political concept, I would
have liked the Court to have taken a clear stance with respect to the confu-
sion (by not only the Applicant but by both Parties) between the concepts
of the “exclusive economic zone” and the “fishery zone”. Its failure to do
so leads me to wonder what will become in future of the concept of the
exclusive economic zone, as provided for in that Convention. I am afraid
that the concept of the “exclusive economic zone” will appear completely
obsolete, even before the 1982 Convention has come into force.

3. Problem 2: The Régime of the Continental Shelf Is Independent of the
Concept of the Exclusive Economic Zone

24. Inits Application, Denmark asked the Court to “decide... wherea
single line of delimitation shall be drawn between Denmark’s and Nor-
way’s fishing zones and continental shelf areas” and in its subsequent sub-
missions requested the Court “to draw a single line of delimitation of the
fishing zone and the continental shelf area of Greenland ... at...”

25. How is it possible for Denmark to presuppose the identity of the
boundary of the exclusive economic zone (for that is what it really alludes
to) with that of the continental shelf, when both régimes originated against
different backgrounds and exist in parallel? Is it the intention of Denmark
to contend that the original, or proper, régime of the continental shelf has
completely crumbled away, to be replaced by the new régime of the exclu-
sive economic zone? An examination of the emergence and evolution of
the concept of the continental shelf may be in order, given these con-
siderations.

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97 MARITIME DELIMITATION (SEP. OP. ODA)

(a) Emergence and evolution of the legal concept of the continental shelf

26. There can be no doubt that the political concept of the continental
shelf was initiated by the Truman Proclamation of 1945. At that time,
neither Denmark nor Norway indicated any specific attitude either for
or against it. In other words, they appeared indifferent to the problem of
the continental shelf.

27. It was UNCLOS I that produced the legal concept of the continen-
tal shelf, defined as:

“the sea-bed and subsoil of the submarine areas adjacent to the
coast ... 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 the said areas” (Convention on the Conti-
nental Shelf, Art. 1).

(In the last-quoted phrase, the word “admits” has been generally inter-
preted as meaning “ceases to admit”, which is of course a necessary gloss.)
Later, the definition of the continental shelf seems to have been further
affected by the 1969 Judgments in the North Sea Continental Shelf cases,
in which it was seen as constituting a “natural prolongation of [the] land
territory into and under the sea” (.C.J. Reports 1969, p. 53).

28. The fact is that few States at UNCLOS I had any firm idea concern-
ing the concept of the “exploitability test”, and may well have entertained
nothing more than a very vague notion that the exploitation of the sub-
marine areas should be permitted somewhere — even beyond a depth of
200 metres — if the development of technology were to allow that possi-
bility, and that it should remain subject to some degree of national control.
If there was any question of delimitation at that time, what was really at
issue related simply to submarine areas up to the 200-metre isobath. In
1958, at any rate, few delegates realized where the novel introduction of
submarine technology into the debate might ultimately lead.

(b) Post-UNCLOS I

29. The Geneva Convention on the Continental Shelf became effective
in June 1964; Denmark had ratified it in 1963 and Norway acceded to it in
1971. In 1968, Denmark also ratified the Optional Protocol of Signature
concerning the Compulsory Settlement of Disputes; Norway neither rati-
fied nor acceded to the Optional Protocol.

30. The concept of the continental shelf as a geographical entity subject
to a special régime rapidly became established in customary international

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98 MARITIME DELIMITATION (SEP. OP. ODA)

law. At all events, the actual institution in law of the continental shelf has
not been challenged since the adoption of the Convention.

31. Whether the national continental shelf requires the specific claim
of each State, or whether it now exists ipso jure in international law,
remains to be examined. In 1963 Denmark issued a “Royal Decree con-
cerning the Exercise of Danish sovereignty over the Continental Shelf”,
using terms similar to those used in the 1958 Convention: in the same year
Norway issued a “Royal Decree relating to the Sovereign Rights of Nor-
way over the Sea-Bed and Subsoil outside the Norwegian Coast”, an “Act
No. 12 relating to Exploration and Exploitation of Submagine Natural
Resources” and an “Act No. 12 relating to Scientific Résearch and
Exploration for and Exploitation of Resources other than Petroleum
Resources”.

32. I must add at this juncture, and it cannot be over-emphasized, that
in the mid-1960s there did not exist any idea that the area between Green-
land and Jan Mayen would constitute a part of the continental shelf of any
State.

(c) Transition to a new situation due to new technological developments

33. In the mid-1960s, when it became apparent that the rapid develop-
ment of technology would accelerate the exploitation of mineral
resources beyond the 200-metre isobath and that the whole submarine
area of the vast ocean might eventually become exploitable, two opposite
interpretations were presented for the definition of the “exploitability
test”. One was that, as the whole area of the ocean would become exploit-
able (thus becoming a continental shelf within the meaning of the
1958 Convention), it should be divided by a median line throughout the
world. The other idea was that, with the gradual advancement of techno-
logy throughout the world, the continental shelf of each State would
gradually extend further, thus meeting the continental shelf of the oppo-
site side at the deepest point.

34. In response to the median-line theory and the deepest-trench
theory, which had in common their understanding that, in theory, the
whole area of the world’s ocean would, owing to the development of
advanced technologies, soon have the status of the continental shelf of any
and every State, Ambassador Pardo of Malta, in his epoch-making
statement to the General Assembly on 1 November 1967, appealed for a
halt to that expansion of the continental shelf, by suggesting that the
sea-bed of the vast ocean should be considered as the “common heritage
of mankind”. The work towards a new régime of the ocean was accordingly
launched at the United Nations Sea-Bed Committee between 1968 and
1973, and was followed up by UNCLOS III, which commenced in 1974
in Caracas.

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99 MARITIME DELIMITATION (SEP. OP. ODA)

(d) Transformation of the definition of the continental shelf

35. In parallel with the appearance of the new concept of the “exclusive
economic zone”, the definition of the continental shelf also underwent a
complete transformation. In order to apply a brake to the unlimited
expansion of the continental shelf in terms of the “exploitability test”, the
outer edge of the continental margin as the natural prolongation of land
territory in accordance with topographical and geological concepts (i.e.,
the original concept) was fixed as the outer limit of the “continental
shelf”.

36. On the other hand, the distance criterion of the 200-mile limit,
which was quite irrelevant to the original concept and had been advocated
only for fisheries purposes, was introduced into the field of the continen-
tal shelf although it had no relevance to submarine topography and geo-
logy — except in so far as that shelf could be further extended. The new
definition of the continental shelf, as incorporated into the 1982 Conven-
tion, was simply the product of a compromise between the self-serving,
and therefore conflicting, interests of each State at UNCLOS III.

37. Thus the concept of the continental shelf as the “natural prolonga-
tion of [the] land territory into and under the sea”, which the International
Court of Justice had properly applied in its 1969 Judgment to define the
“continental shelf” (and which had originally featured in the 1958 Con-
vention), had been completely transformed by the new introduction of the
200-mile-distance criterion and the continental shelf had outgrown its ori-
ginal significance within the meaning of that Convention. It is, however, a
remarkable fact (and a most unfortunate one) that, while the continental
shelf was thus redefined (Art. 76), that transformation of the concept was
scarcely discussed at UNCLOS III, so that the essential provisions in the
1958 Convention relevant to the basic concept of that area remained
unaffected (Arts. 77-81).

(e) Ignorance of the transformation of the concept of the continental shelf
and the parallel existence of the exclusive economic zone and the conti-
nental shelf

38. The concept of the continental shelf as understood today is not the
same as the one which was adopted in the 1958 Convention and prevailed
prior to UNCLOS IIL The sea area in dispute in the present case between
Greenland and Jan Mayen (or the area defined as the “relevant area” in
the Judgment (para. 20)) is not the “continental shelf” within the meaning
of the 1958 Convention, but may well be the continental shelf referred to
in the 1982 United Nations Convention, or in the customary international
law which may now be reflected in that Convention. This is an important
point, but one which both the Applicant and the Court, in my view, have
failed to appreciate fully.

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100 MARITIME DELIMITATION (SEP. OP. ODA)

39. Furthermore, throughout the meetings of the United Nations Sea-
Bed Committee and UNCLOS III in the 1970s, the exclusive economic
zone as.a new concept and the continental shelf as a concept transformed
from the 1958 Convention were considered as separate régimes, to be pro-
vided for in parallel in the final text of the Convention. In this respect the
Danish submissions in its Application were misguided when the Court
was asked “to decide . . . where a single line of delimitation shall be
drawn”, because Denmark presupposed a line which could not a priori
exist. This is another point which did not receive the due attention of the
Applicant and the Court.

4. Problem 3: Confusion of Title to the Exclusive Economic Zone and the
Continental Shelf and the Question of Delimitation of Overlapping
Entitlements

40. Denmark, in submission (1) in the Memorial and the Reply, asks
the Court to declare its entitlement “to a full 200-mile fishery zone and
continental shelf area vis-à-vis the island of Jan Mayen”. In my view,
when title to an area of maritime jurisdiction exists — be it to a continental
shelf or (arguendo) to a fishery zone — it exists erga omnes, i.e., is oppos-
able to all States under international law and is not limited to any specific
geographical component of any one State. That being understood, it
appears to me necessary to point to a certain conceptual confusion that
emerges from Denmark’s presentation of its claim.

(a) Denmark’s entitlement to an exclusive economic zone and a continental
Shelf in respect of Greenland

41. Whether “Greenland” is entitled “to a full 200-mile fishery zone
and continental shelf area” is a general question concerning Denmark’s
title to those areas. It is accordingly different from the question of the
extent of the area in which its entitlement may be claimed and which
needs to be delimited as it overlaps with the opposing entitlement of
another State. What Denmark really seeks in submission (1), inits relation
“vis-a-vis the island of Jan Mayen”, is that the Court should effect a deli-
mitation making no abatement of what would be its maximum theoretical
entitlement in the absence of any competing title; submission (1) has no
effective meaning if read on its own, i.e., without any reference to sub-
mission (2).

(b) Norway’s entitlement to an exclusive economic zone and a continental
shelf in respect of Jan Mayen

42. In the light of the drafting process of the 1958 and 1982 Conven-
tions, the entitlements of Jan Mayen (or rather of Norway on its behalf) to

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101 MARITIME DELIMITATION (SEP. OP. ODA)

the 200-mile exclusive economic zone and/or continental shelf need not,
I submit, have been taken for granted. In the present case, however,
Denmark did not dispute the entitlements of Jan Mayen as a singular
island of smaller dimensions to an exclusive economic zone and/or a con-
tinental shelf.

43. Denmark only questioned the extent of the area to which Jan
Mayen’s entitlements extend. It is important to note, however, that Nor-
way claimed theoretical entitlement up to the full 200-mile extent for the
exclusive economic zone and continental shelf of Jan Mayen but, taking a
rather modest approach, simply refrained from asserting its full entitle-
ment vis-à-vis Greenland.

(c) Overlapping of entitlements or claims

44. As can be seen from its submissions, Denmark does not seem to
grasp that, where the entitlements of two opposite States overlap in an
area less than 400 miles apart, the question of delimitation arises in the
area of overlapping entitlements of the two States. Unlike Norway, Den-
mark was not ready to have the area of overlap delimited but simply
claimed the whole potential area of its entitlement. Denmark appears to
believe that the possession of a maximum entitlement (in respect of
Greenland) implies that the line of delimitation should be drawn without
any regard to the maximum entitlement of Norway (in respect of
Jan Mayen). In this respect, Denmark tends to ignore the distinction
between determining the limits of entitlements to sea areas and the divi-
sion of overlapping claims.

45. The Court likewise pays insufficent heed to this distinction. Des-
pite the fact that at one point it suggests the “area of overlapping potential
entitlement” as one of the three areas designated as relevant for the pur-
pose of the Judgment (para. 19), it scarcely makes use of this area in its
reasoning but relies mainly on the “area of overlapping claims”, i.e., the
overlapping of the maximum entitlement of Greenland, presented as a
claim, and the modest claim made on behalf of Jan Mayen (Judgment,
para. 18), in order to justify the line which it has drawn.

46. I am afraid that this Judgment, which barely paid the requisite
attention to Jan Mayen’s potential entitlement and was too much con-
cerned with the “area of overlapping claims” could well lead a State, at
some future time, to claim its maximum entitlement in the initial stage
of negotiations with its neighbouring State for the delimitation of mari-
time boundaries, either of the exclusive economic zone or the continental
shelf.

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PART II. THE POSSIBLE FUNCTION OF THE COURT IN CASES OF MARITIME
DELIMITATION

47. To define what roles it may or may not be open to the Court to
assume in matters of maritime delimitation, it is necessary to review the
principles on the subject that have evolved in international law.

1. Law of Maritime Delimitation in the 1958 Convention
on the Continental Shelf

(a) Delimitation of fisheries jurisdiction not at issue at UNCLOS I

48. The offshore areas dealt with in UNCLOS I were primarily
either the territorial sea or the contiguous zone. Agreement on the
width of the territorial sea was not reached, except in the sense that
it should not exceed 12 miles — the distance fixed for the contiguous
zone. In such circumstances, the delimitation of the territorial sea
and the contiguous zone as between adjacent or opposite States in rather
narrow areas was not seen as a new or very significant issue. The focus
in UNCLOS I was upon the delimitation of the continental shelf, extend-
ing further than those narrower areas but, in principle, as far as the
200-metre isobath. However, I must repeat that for fisheries purposes
there did not exist any concept of further jurisdiction of the coastal State
beyond 12 miles from the coast.

(b) UNCLOS I: Adoption of the Convention on the Continental Shelf

49. It is not necessary to follow the whole of the drafting process lead-
ing to Article 6 of the Convention governing the delimitation of the conti-
nental shelf. UNCLOS I accepted the need for the insertion into the Con-
vention of a provision on the continental shelf, the text of which had been
prepared by the International Law Commission in deliberations over a
period of several years in the mid-1950s:

“Where the same continental shelf is adjacent to the territories of
two or more States [{a) whose coasts are opposite each other], [(b) the
territories of two adjacent States], the boundary of the continental
shelf . .. shall be determined by agreement between them. In the
absence of agreement, and unless another boundary line is justified
by special circumstances, [(a)the boundary is the median line] [(b) the

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103 MARITIME DELIMITATION (SEP. OP. ODA)

boundary of the continental shelf shall be determined by application
of the principle of equidistance from the nearest points of the base-
line]. . .” (Convention on the Continental Shelf, Art. 6.)

50. Itis important to note, firstly, that when the delimitation of the con-
tinental shelf was under consideration prior to or at UNCLOS I, the area
beyond the 200-metre isobath was scarcely considered. This preliminary
understanding is essential when one is interpreting Article 6 of the Con-
vention.

51. Secondly, the provision that “the boundary . . . shall be determined
by agreement between [the States concerned]” may well have the status of
a legal principle but it does not indicate any criteria for determining the
boundaries of the (legal) continental shelf. In addition, the suggestion to
employ as the boundary line, “in the absence of agreement [and] unless
another boundary line is justified by special circumstances”, (i) “a median
line [in the case of the opposite States]” and (ii) a line to “be determined by
the principle of equidistance [in the case of adjacent States]” gave not the
slightest clue as to the “circumstances” which would be so “special” as to
“justify” a line other than a median line (or the equidistance line).

52. Certainly, one State might have the view that no other line but the
median line (or the equidistance line) would be justified in the absence of
any “special circumstances” and the other State might point to the exis-
tence of some special circumstances which, in its view, did justify a depar-
ture from the median line (or the equidistance line). The question
remained as to whether any legal criteria would have to be met by such
justifying special circumstances.

(c) The North Sea as a practical case-study

53. The question of the delimitation of the continental shelf became of
imminent importance in the mid-1960s, particularly in the areas of the
North Sea. The discovery of reserves of oil or natural gas in this region
necessitated the division, early in the 1960s, of the sea-bed of these
shallow waters among the surrounding nations. The whole area of
the North Sea is shallower than 200 metres (with the exception of the Nor-
wegian Trough) and there was no doubt about the area being a conti-
nental shelf within the meaning of the 1958 Convention, irrespective of
any interpretation of the definition of its “exploitability” as provided
for in the Convention.

54. A number of bilateral agreements were successively concluded
in the period 1964-1966 among States of the region, including Denmark
and Norway, on the basis of a general application of the equidistance
or the median line (Netherlands-United Kingdom, 1965; Norway-United
Kingdom, 1965; Denmark-Germany, 1965; Germany- Netherlands, 1965;

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104 MARITIME DELIMITATION (SEP. OP. ODA)

Denmark-United Kingdom, 1966; Denmark-Netherlands, 1966). It is
important to bear in mind that the 1965 Agreement between Denmark and
Norway, which has been much discussed in the present case, was simply
one of a number!. As has already been stated (para. 32 above), in those
days the area between Greenland and Jan Mayen was never deemed to be
one covered by the concept of the continental shelf, so it is obvious that the
1965 Agreement did not apply to that area.

55. In 1967 the delimitation between Germany on the one hand and
Denmark and the Netherlands on the other, which except for some areas
extending over a short distance from their coasts had not been agreed
upon through diplomatic negotiations, was brought jointly to the Interna-
tional Court of Justice. The North Sea Continental Shelf cases should be
understood in the context of a chain of bilateral negotiations in the
North Sea region in the 1960s.

56. Germany viewed the mechanical application of the equidistance-
line rule as being unfavourable to its own interests in respect of the adja-
cent coasts of Denmark and the Netherlands. In that case before the
Court, Germany presented various arguments contesting Denmark’s/the
Netherlands’ positions based on the application of the equidistance-line
rule. It was argued by Germany that, while the equidistance line was
applicable, the base for measuring the distance should be determined
in the case of adjacent States in such a way as to take account of macro-
geographical factors, by taking a rectified coastline, that is, the coastal
front or “coastal façade” (see I.C.J. Pleadings, North Sea Continental Shelf,
Vol. II, p. 193).

57. The International Court of Justice stated, in its 1969 Judgment,
that:

“delimitation is to be effected by agreement in accordance with equi-
table principles, and taking account of all the relevant circumstances,
in such a way as to leave as much as possible to each Party all those
parts of the continental shelf that constitute a natural prolongation of
its land territory into and under the sea, without encroachment on the
natural prolongation of the land territory of the other” (Z.C.J. Reports
1969, p. 53, para. 101 (C) (1)).,

Thanks to that Judgment of the Court, the delimitation in the south-east-

| As has been pointed out, Norway is separated from the main part of the North Sea
continental shelf by a deep trench, known as the Norwegian Trough. It was really remark-
able that Norway, in spite of the existence of that trench, could participate in the divi-
sion of the continental shelf of the North Sea by applying in general the rule of the
median line or the equidistance line. The reason behind this solution can only be a mat-
ter of pure conjecture but it seems to me that there existed some general feeling among
the countries of the North Sea region that Norway ought not to be isolated in this
respect.

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105 MARITIME DELIMITATION (SEP. OP. ODA)

ern part of the North Sea was subsequently agreed in 1971 between Den-
mark and Germany, as well as between the Netherlands and Germany.

(d) Implications of the Judgment in the North Sea Continental Shelf cases

58. There are a few points which must be given due consideration when
the Judgment in the North Sea Continental Shelf cases is interpreted.
Firstly, the Judgment referred to a sea not exceeding 200 metres in depth,
hence one underlain by a continental shelf of the most unambiguous kind,
and was delivered in 1969, at a time when jurists continued to conceive of
the shelf primarily in a geological and topographical sense — hence in
terms (to quote the Judgment) of the “natural prolongation of [the] land
territory into and under the sea”.

59. Secondly, the suggestion of dividing the shelf in:

“such a way as to leave as much as possible to each Party all those
parts of the continental shelf that constitute a natural prolongation of
its land territory ... without encroachment on the natural prolonga-
tion of the land territory of the other”

did not contain any concrete indication for the delimitation of the area
and did not go beyond the simple suggestion of an “equitable solution”,
the expression later employed in the 1982 United Nations Convention.

60. Thirdly, one should try to be precise about the status of the indica-
tion given by the Court as to “the factors to be taken into account... in the
course of the negotiation”. Did this indication simply constitute a sugges-
tion put forward by the Court in order to assist negotiations between the
Parties, or did it amount to a determination of law on the basis of
Article 38, paragraph 1, of the Court’s Statute?

(e) Article 6 of the 1958 Convention not applicable to the present case

61. As has already been explained (para. 50 above), Article 6 of the
1958 Convention is applicable to the continental shelf in an orthodox
sense, i.e., the sea-bed areas inside the 200-metre isobath. The area
between Greenland and Jan Mayen is not a continental shelf in that
sense, though it certainly is taken to be a continental shelf in accor-
dance with the transformed concept. This is a point of which, in
my view, the Applicant and the Court were not sufficiently aware.
It seems to me that the Parties to this case and the Court erred in
taking the 1958 Convention as the rule with regard to the delimi-
tation of the continental shelf while the rule of the 1982 Convention
is valid for the delimitation of the exclusive economic zone. What

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106 MARITIME DELIMITATION (SEP. OP. ODA)

applies today to the delimitation of either the exclusive economic
zone or the continental shelf is the 1982 United Nations Conven-
tion — or customary international law which may be reflected in that
Convention.

2. The Rules for Maritime Delimitation Discussed at the Sea-Bed Commit-
tee and UNCLOS III, and Their Adoption in the 1982 United Nations
Convention

(a) Drafting of Articles 74 and 83 of the 1982 Convention

62. As has already been said (para. 16 above), the new concept of the
exclusive economic zone has its own background and exists in parallel
with the transformed concept of the continental shelf. The delimitations
to be effected under each régime could have been separate. Nevertheless,
as they had in common at least the 200-mile distance criterion (qualified,
in the case of the continental shelf, by the possibility of a further extension
as far as the outer edge of the continental slope), the delimitation issues of
these two separate régimes were discussed together by the delegates at
UNCLOS III. Article 74 (for the delimitation of the exclusive economic
zone) and Article 83 (for the delimitation of the continental shelf) were
drafted in the same fashion in the 1982 United Nations Convention on the
Law of the Sea.

63. A detailed analysis of the background to these provisions may not
be necessary, as only minimum information is required in this instance. In
1978, the conflict of the two schools of thought had become apparent with
regard to the question of the delimitation of both the exclusive economic
zone or the continental shelf at UNCLOS III. The median-line schoo!
proposed the following draft:

“The delimitation of the Exclusive Economic Zone [Continental
Shelf] between adjacent or opposite States shall be effected by agree-
ment employing, as a general principle, the median or equidistance
line, taking into account any special circumstances where this is justi-
fied”

and the equitable-principle school proposed that:

“The delimitation of the exclusive economic zone [continental
shelf] between adjacent or/and opposite States shall be effected by
agreement, in accordance with equitable principles taking into

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account all relevant circumstances and employing any methods,
where appropriate, to lead to an equitable solution.”

64. The effort to reach a compromise between these two schools of
thought was not successful!. In 1981, at the tenth session, Ambas-

1 Mr. Manner, Chairman of Negotiating Group 7, reported in the course of the
seventh session (28 March-19 May 1978):

“No compromise on this point did materialize during the discussions held,
although one may note, that there appears to be general agreement as regards two
of the various elements of delimitation: first, consensus seems to prevail to the
effect that any measure of delimitation should be effected by agreement, and
second, all the proposals presented refer to relevant or special circumstances as
factors to be taken into account in the process of delimitation.” (UNCLOS II,
Official Records, Vol. X, p. 124.)

He also reported at the resumed seventh session (21 August-15 September 1978):
“During the discussions general understanding seemed to emerge to the effect

that the final solution could contain the following four elements: (1) a reference to
the effect that any measure of delimitation should be effected by agreement; (2) a
reference to the effect that all relevant or special circumstances are to be taken into
account in the process of delimitation; (3) in some form, a reference to equity or
equitable principles; (4) in some form, a reference to the median or equidistance
line.” (Ibid., p. 171.)

In his statement on 24 April 1979 to the Second Committee of the Conference at the

eighth session, he stated that “[djespite intensive negotiations, the Group had not suc-

ceeded in reaching agreement on any of the texts before it” (ibid., Vol. XI, p. 59) but

suggested as a possible basis for compromise the following text:

“The delimitation of the exclusive economic zone (or of the continental shelf)
between States with opposite or adjacent coasts shall be effected by agreement
between the parties concerned, taking into account all relevant criteria and
special circumstances in order to arrive at a solution in accordance with equi-
table principles, applying the equidistance rule or such other means as are appro-
priate in each specific case.” (Ibid.)

Mr. Manner again in his Report on 22 August 1979, at the resumed eighth session, stated
that
“[a]s before, the discussions on delimitation criteria were characterized by the
opposing positions of, on the one hand, delegations advocating the equidistance
rule and, on the other hand, those specifically emphasizing delimitation in accord-
ance with equitable principles” (ibid., Vol. XII, p. 107).
On 24 March 1980 at the ninth session he suggested his assessment of alternatives which
might, in time, secure a consensus at the conference:

“Article 74 [83]. 1. The delimitation of the exclusive economic zone [continental
shelf] between States with opposite or adjacent coasts shall be effected by agree-
ment in conformity with international law. Such an agreement shall be in accord-
ance with equitable principles, employing the median or equidistance line, where
appropriate, and taking account of all circumstances prevailing in the area con-
cerned.” (Ibid., Vol. XIII, p. 77.)

This draft was incorporated in the Informal Composite Negotiating Text/Revision 2
(11 April 1980) by a decision of the “collegium” but was not agreeable to both groups at
the plenary meetings on 28 July 1980 at the resumed ninth session; Negotiating Group 7
had, by that time, been dissolved.

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sador Koh of Singapore, who became President of UNCLOS III on the
death of Ambassador Amerasinghe of Sri Lanka, held meetings with the
chairmen of each group and then, on 28 August 1981 at the resumed tenth
session, formulated a proposal for a solution. In the plenary meetings the
chairmen of the two groups gave their respective support and that text
constituted the provisions in the final version of the Draft Convention on
the Law of the Sea (28 August 1981) which was finally adopted as Ar-
ticles 74 and 83 of the 1982 United Nations Convention, which read:

“The delimitation of [the exclusive economic zone] [the continen-
tal shelf] between States with opposite or adjacent coasts shall be
effected by agreement on the basis of international law, as referred to
in Article 38 of the Statute of the International Court of Justice, in
order to achieve an equitable solution.”

Whether Articles 74 and 83 of the 1982 Convention (which has not yet
entered into force) have any validity as customary international law or not
may still be arguable, but this is a different problem.

(b) Interpretation of the provisions of Articles 74 and 83

65. It is not easy to give a proper interpretation to a text which, after
the failure of negotiations over a lengthy period at the Conference, was
drafted by one person (i.e., the President of UNCLOS IID and adopted
without any further discussion. However, there can be no doubt that the
whole concept of Articles 74 and 83 originated from Article 6 of the 1958
Convention and was a product of a compromise between the two
opposite schools of thought, the median-line school and the equitable-
principle school. Against this background, I would make the following
suggestions.

66. Firstly, the words “in order to achieve an equitable solution” cannot
be interpreted as indicating anything more than the target of the negotia-
tion to reach an agreement. The text may indicate a frame of mind, but it is
not expressive of a rule of law. It must be borne in mind that, while the
reference to “special circumstances” in the 1958 Convention or to “all
relevant circumstances” in the negotiations at UNCLOS III was finally
dropped, those concepts were well reflected in the provision quoted
above. In other words, the consideration of some relevant or special cir-
cumstances may be required if one is to arrive at an “equitable solution”.

67. Secondly, what is the meaning of this provision that agreement must
be reached “on the basis of international law, as referred to in Article 38 of
the Statute of the International Court of Justice”? Agreement between
States is simply a result of diplomatic negotiations and is reached by the

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109 MARITIME DELIMITATION (SEP. OP. ODA)

free will of the States concerned (cf. the doctrine of liberty of contract).
The deciding factors in such diplomatic negotiations are simply negotiat-
ing powers and the skills of each State’s negotiator as well as the position,
geographical and other, of each State.

68. It may be contended that there can be a legal framework within
which — and only within which — the content of an agreement is justifi-
able under international law and that any agreement contrary to jus cogens
should be regarded as invalid. For example, an agreement obtained by
duress might be open to challenge. Except in that very general sense, there
does not in my view exist any jus cogens governing the delimitation of
overlapping maritime titles. The parties can freely negotiate and can reach
an agreement on whatever they wish, employing all possible elements and
factors to strengthen their own position. In other words, there is no legal
constraint, hence no rule, which guides the negotiations on delimitation,
even though the negotiations should be directed “to achievling] an equi-
table solution”. Disagreement over the points arising during the effort to
reach agreement cannot constitute a “legal dispute”, because law is not
involved in choosing the line among infinite possibilities.

69. Thirdly, in spite of the practical identity between Article 74 and
Article 83, there is, of course, no guarantee that the delimitation of the
exclusive economic zone and the delimitation of the continental shelf will
necessarily be identical. The “equitable solution” to be reached by nego-
tiation in the delimitation of the exclusive economic zones and that of the
continental shelf areas can certainly be different, as the “special” or “rele-
vant” circumstances to be taken into account when defining a delimita-
tion line may well be different in each case.

(c) One or two delimitation lines ?

70. Whether the boundary of the continental shelf areas and the bound-
ary of the exclusive economic zone are or are not identical will depend
quite simply on the result of each delimitation, which can well be different
with respect to the two different areas. In the absence of an agreement
between the States concerned, one cannot presuppose a single delimita-
tion for two separate and independent régimes, the exclusive economic
zone and the continental shelf, although the possibility of an eventual
coincidence of the two lines may not be excluded.

71. [have however some sympathy with the Danish attitude and with
the Court’s tendency to prefer a single maritime boundary, since, if the
acceptance of wider claims to coastal jurisdiction over offshore fisheries
had been seen as inevitable, those two régimes should have been amalga-
mated in the new law of the sea. What is deplorable about the new order in
the oceans (which was being prepared in UNCLOS IID) is the fact that an

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immature concept of the exclusive economic zone has been introduced to
coexist with the previously accepted concept of the continental shelf
which has been re-defined and thus transformed, and that the concept of
the exclusive economic zone has in fact had the effect of ousting the latter
concept. Article 56, paragraph 3, which provides that

“[t]he rights set out in this article [rights, jurisdiction and duties of the
coastal State in the exclusive economic zone] with respect to the sea-
bed and subsoil shall be exercised in accordance with Part VI [conti-
nental shelf]”,

which was incorporated without discussion, seems to be an extremely
misguided provision and is difficult to understand.

72. If UNCLOS III was set upon instituting the exclusive economic
zone, it ought frankly to have first wound up the original concept of the
continental shelf. Thus the régime under the 1982 Convention remains
immature in some respects, such as the exclusive economic zone and the
continental shelf. At all events, the transformed concept of the continental
shelf espoused by the 1982 Convention still remains unclear, particularly
in its relation to the parallel régime of the exclusive economic zone, and
does not stand up to criticism from a purely legal standpoint. As has
already been said (para. 37 above), the continental shelf (which should
have been examined more cautiously with the introduction of its new
definition) was scarcely discussed at UNCLOS III.

73. However, in spite of all I have said, the two régimes of the exclusive
economic zone and the continental shelf exist separately and in parallel in
the 1982 United Nations Convention, hence in existing international law,
and the delimitation for each is different.

74. Having said all this, I do not rule out the possibility that, from the
practical standpoint of the exercise of their respective jurisdictions over
the offshore areas for the purpose of the control of maritime resources,
States in negotiation may prefer to have a single boundary rather than two
separate boundaries, but then they should be in agreement on this point as
in the case concerning the Delimitation of the Maritime Boundary in the
Gulf of Maine Area.

3. Role of the Third Party in Settling Disputes concerning Maritime
Delimitation
(a) Infinite variety of potential delimitation lines

75. While the entitlement to areas is erga omnes, the delimitation of
areas is solely related to the drawing of a line between two conflicting
entitlements, which remains a matter for the States concerned. This is

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111 MARITIME DELIMITATION (SEP. OP. ODA)

why the 1958 Convention provides in the case of the continental shelf
that “the boundary of the continental shelf appertaining to . . . States
shall be determined by agreement between them” (Art. 6) and the 1982
United Nations Convention provides in relation to the exclusive economic
zone and the continental shelf that “[tlhe delimitation of [the exclusive
economic zone] [the continental shelf] between States with opposite
or adjacent coasts shall be effected by agreement” (Arts. 74 and 83).

76. In reality the delimitation of a line to be effected by agreement may
vary in an infinite number of ways within a certain range, and the choos-
ing of one of these variations after consideration of “special circum-
stances”, “relevant circumstances” or “factors to be taken into account”
etc., does not belong to the function of law. No line thus drawn can be
illegal or contrary to rules of international law.

(b) Role of the third party in the delimitation of maritime boundaries

77. When a question is to be resolved by agreement, if that agreement
cannot be achieved because of a divergence of views on various relevant
elements governing the negotiation, that failure to reach agreement —
assuming good faith — will not have been due to a difference in the inter-
pretation of international law but to a difference in the concepts of equity
upheld by each party.

78. The function of the third party in assisting the parties in dispute
could be either to suggest concrete guidelines for the evaluation of each of
the above-mentioned relevant elements in order to assign them a proper
place in the negotiations or to proceed itself to choose a line by weighing
up the relevant factors or elements from among an infinite variety of
possibilities so that an equitable solution may be reached.

79. The most that can be done by this Court, as a judicial tribunal apply-
ing international law, is to declare that the lines of delimitation for the
exclusive economic zone and the continental shelf, respectively, must be
drawn by agreement between the Parties, as provided for in the
1982 United Nations Convention, from among the infinite possibilities
lying somewhere between the line asked for by Denmark and the other line
asked for by Norway. This is, however, not what Denmark asked the
Court to do in the present case. Denmark asked the Court to draw “a...
line of delimitation... at a distance of 200 nautical miles” (submission (2))
or to draw simply “the line of delimitation” (submission (3)).

(c) Arbitration ex aequo et bono

80. The delimitation of a maritime boundary line which “shall be
effected by agreement” is not a matter to be decided by the International

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Court of Justice unless it is jointly requested to do so by the States con-
cerned. With the exception of the Aegean Sea Continental Shelfcase which
was also concerned with the title of islands to a continental shelf but which
did not proceed to the merits phase, this is the first case in the history of the
Court concerning maritime delimitation to have been brought by uni-
lateral application.

81. The Court is competent under Article 36, paragraph 1, to be seised
of “all cases which the parties refer to it”, but does not have jurisdiction
under Article 36, paragraph 2, to deal with a dispute of this kind, which is
neither “the interpretation of a treaty” nor “any question of international
law”. Let me, for the sake of argument, assume (in the light of the different
ways in which Norway, as a respondent State, argued its case before the
Court) that Norway had consented to join Denmark in asking the Court to
draw a boundary line and that the present case therefore fell to be consid-
ered as one in which the Court had been requested jointly by the Parties to
decide on maritime delimitation.

82. Here it is once again important to be clear about the distinction
between the invocation of declarations made under Article 36, para-
graph 2, of the Statute, which cannot enlarge the Court’s powers beyond
the strict application of law to the case concerned, and the submission of a
case by special agreement — one of the methods of seisin available under
Article 36, paragraph 1 — which does enable the parties, by consent, to
confer on the Court an arbitral, i.e., quasi-political, role whereby equity
may be applied where no law exists.

83. It may be interesting to note that the initial draft of the provision
relevant to the delimitation of the continental shelf, that is, the provision
adopted by the International Law Commission in 1951, read as follows:

“Two or more States to whose territories the same continental
shelf is contiguous should establish boundaries in the area of the con-
tinental shelf by agreement. Failing agreement, the parties are under
the obligation to have the boundary fixed by arbitration”,

and the commentary attached to this provision read, in part:

“It is not feasible to lay down any general rule which States should
follow; ...Itis proposed ... that if agreement cannot be reached and
a prompt solution is needed, the interested States should be under an
obligation to submit to arbitration ex aequo et bono. The term ‘arbi-
tration’ is used in the widest sense, and includes possible recourse to

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the International Court of Justice.” (Yearbook of the International
Law Commission, 1951, Vol. IL, p. 1431.)

84. Another important factor to be remembered is that in the 1982
United Nations Convention, an independent part of which contains the
detailed provisions on dispute settlement, disputes concerning the inter-
pretation or application of Articles 74 and 83 relating to sea boundary
delimitations may, by the declaration of a State party, be excluded from
compulsory procedures entailing binding decisions, provided that the
matter is submitted to conciliation as provided in Annex V of that Con-
vention.

(d) Limited function of the International Court of Justice in a maritime
delimitation

85. Accordingly, and on the premise that there are in fact no rules of
law for effecting a maritime delimitation in the presence of overlapping
titles (not overlapping claims), it follows that if the Court is requested by
the parties to decide on a maritime delimitation in accordance with
Article 36, paragraph 1, of the Statute, it will not be expected to apply rules
of international law but will simply “decide a case ex aequo et bono”.

86. In other words, the presentation of a case of maritime delimitation
by agreement between the States in dispute in accordance with Article 36,
paragraph 1, means by implication that the parties are requesting the
Court “to decide a case ex aequo et bono” in accordance with Article 38,
paragraph 2, of the Statute. For instance, in my view, the Judgment of the
Court in the case concerning the Continental Shelf (Libyan Arab Jamahi-
riya/Malta) must be interpreted as having been given on that basis, even
though the Court never expressly stated as much. It certainly is not a con-
vincing exposition of the law.

87. However, there is no escaping the fact that the rendering of a deci-
sion ex aequo et bono is only admissible with the consent of the parties.
This was not a big problem in earlier delimitation cases, because the con-
sent derived or could be inferred from the special agreement concerned.
But if the Court intended in this case to apply equitable considerations, it

! This text did not appear in the later (i.e., post-1953) text drawn up by the Interna-
tional Law Commission. After 1953, the International Law Commission prepared an
independent article concerning dispute settlement, to cover not only delimitation but
also other aspects of the continental shelf, which finally became the optional protocol
for the settlement of disputes attached to the four Geneva Conventions on the law of the
sea adopted at UNCLOS I.

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114 MARITIME DELIMITATION (SEP. OP. ODA)

should, in my view, first have decided that the submissions or, alterna-
tively, the arguments of the Parties, in particular Norway, permitted the
conclusion that a consent had emerged between them amounting to a spe-
cial agreement to the effect that the Court was not bound to adhere to
strict law. In this way the case could conceivably have been, so to speak,
transferred from the ambit of Article 36, paragraph 2, to that of Article 36,
paragraph 1, as a very special case of forum prorogatum.

(e) Effecting a delimitation ex aequo et bono

88. Only in a case in which the parties in dispute have asked the Court
by agreement to effect a maritime delimitation ex aequo et bono is it quali-
fied to examine what factors or elements should be taken into account as
relevant, and to what degree such factors or elements should be evaluated
when it is determining the line to be drawn or indicating a concrete line
based on its own evaluation of the relevant factors and elements.

89. I must add furthermore that, if a single maritime delimitation for
the continental shelf and the exclusive economic zone is to be effected by
the Court in response to a joint request by the parties in dispute, then the
parties have to agree which factors or elements relevant to either the exclu-
sive economic zone or the continental shelf (or, in other words, relevant to
either fishery resources or mineral resources), are to be given priority. The
Court is not competent even as an arbitrator to decide the priority of
either the exclusive economic zone or the continental shelf unless
expressly requested to do so by the parties.

PART ITI. LAcK OF VALID GROUNDS FOR THE LINE DRAWN IN THE
JUDGMENT

90. The Court has drawn “the delimitation line that divides the conti-
nental shelf and fishery zones of the Kingdom of Denmark and the King-
dom of Norway”. Holding as I do the view that the Court is not competent
to determine the delimitation line at all unless requested jointly by the
Parties to decide the case ex aequo et bono, 1am in no position to comment
on the actual course of the delimitation effected by the Court.

91. Iam concerned, however, that, even supposing that the Court had
been requested by agreement to draw a single maritime boundary on the
basis of Article 38, paragraph 2, of the Statute, it did not present any con-
vincing statement of its reasons for having drawn the particular single
maritime boundary line shown on sketch-map No. 2 attached to the Judg-
ment. The line drawn by the Court may well be one of an infinite number
of possibilities which could have been indicated if the Court had thought

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any one of them would lead to an equitable solution. However, in choos-
ing this line rather than any other, the Court seems to have taken a purely
arbitrary decision.

(a) Unsatisfactory “justification” by special (relevant) circumstances

92. Firstly, the Court seems to take the view that the disparity in the
lengths of the coastlines of the opposite States must necessarily be re-
flected in an adjustment or shifting of the median line taken as a line of
departure. However, the Court appears to overlook one geometrical fact,
namely that, in the case of opposite coasts of disparate lengths, even an
unadjusted median line leaves a greater portion to the State with the
longer coastline. What is more, the Court does not indicate the reasoning
that has led it to conclude that the longer coastline should automatically
lead to an even larger portion of the maritime area.

93. Even supposing that the State with the longer coastline is to be
entitled to a much larger portion than the median line would confer, the
drawing of the line connecting points A, O, N and M, as proposed
in sketch-map No. 2 in the Judgment, is not, in my view, supported by
any reasons that can be described as objective or convincing.

94. Secondly, I can accept that, just as in the North Sea Continental Shelf
cases where the “natural resources of the continental shelf areas involved”
were suggested as a factor to be taken into account, the “fishing resources”
may well be a relevant factor in the delimitation of the exclusive economic
zone. However, no reason is given in the Judgment as to why “equitable
access” to the fishing resources is a relevant factor and the Court does
not explain what the words “equitable” access can be taken to mean.
Does the Court intend that Greenland’s inhabitants or Danish fisher-
men, together with Norwegian fishermen (there are no inhabitants
on Jan Mayen), should be entitled to “equitable access” to the fishing
resources in one specific area, the area east of the median line, a long
way from Greenland but close to Jan Mayen? Why is only that specific
area taken up for the consideration of “equitable access to the fishing
resources”? In fact capelin fishing has been controlled under an inter-
national arrangement without any reference to the division of the sea
areas concerned.

95. Inspite of repeated references to the concept of “equitable access to
the fishing resources”, the Court does not give the slightest hint in its rea-
soning as to why the median line as a line of departure should be adjusted
or shifted so as to allot one-half of the southern part of the “area of over-
lapping claims” to Greenland (or Denmark) while leaving the other half to
Jan Mayen (or Norway).

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(b) Unjustified choice of the line

96. In taking not only “the disparity of coastal lengths” but also “equi-
table access to the fishing resources” as factors for the purpose of adjust-
ing or shifting the median line as a line of departure, the Court was too
much concerned with “the area of overlapping claims” when it divided the
area between Greenland and Jan Mayen. The Court was incorrect in
unduly concerning itself with the “area of overlapping claims” while
neglecting the rest of the “relevant area”, when allocating the areas to
each State.

97. The task confronting the Court was not to delimit the boundary of
the “area of overlapping claims” but to do so of the maritime area between
Greenland and Jan Mayen, in other words the “relevant area” as defined
in the Judgment (para. 20), although the line had of course to be located in
the “area of overlapping claims”. Its manipulation of the delimitation
line, choosing points M, N and O on a ratio of 1:1 or 1:2 between the two
lines, i.e., the maximum 200-mile line of the Danish entitlement and the
median line, the line of Norway’s modest assertion, can only be described
as misguided.

98. Laccept that the median line may be taken as a line of departure and
then adjusted or shifted, with special (relevant) circumstances or relevant
factors (elements) being given due consideration. 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, for example, 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. The existence, quality and quantity of marine resources (either
fishery or mineral) are relevant, but equity surely requires that any deci-
sion as to how these resources should be allotted to each party should take
account not only of such relatively objective ecological facts but also of
their relative significance, perhaps amounting to dependence, to the com-
munities appertaining to either party. Certainly, it is impossible to calcu-
late and balance up these elements mathematically in order to draw a line
with total objectivity. Thus the drawing of a line must depend upon the
conscientious but infinitely variable assessment of those drawing it.

(c) Mistaken definition of a single maritime boundary

99. I must also add that the Court failed to discern the possible differ-
ences in the special (relevant) circumstances which need to be taken into

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consideration in order to achieve an equitable solution, depending on
whether one is effecting the delimitation of the exclusive economic zone
or that of the continental shelf. If the marine resources constitute a factor
to be taken into account, it is unthinkable to draw a single maritime bound-
ary without having a clear idea as to which particular circumstances ought
to predominate (i.e., those relating either to the exclusive economic zone
or to the continental shelf). The Court does not give any good reason why
equitable access to the “fishing resources” should have also been taken
into account when it drew the line constituting the boundary not only of
the exclusive economic zone but also of the continental shelf. The Court
has apparently erred in this respect after taking it for granted that there
ought to be such a single boundary.

(d) Conclusion

100. As I have already pointed out, the line connecting points M, N, O
and A, which is drawn eastwards of the median line as a result of adjust-
ment and shifting, cannot be categorized as mistaken because it rep-
resents one choice from an infinite number of potential lines of delimita-
tion in this area, but I venture to suggest that it was drawn in an arbitrary
manner, unsupported by any sufficiently profound analysis. That the
effort of the Court was conscientiously directed towards the finding of an
equitable solution is something which, however, I readily acknowledge.

(Signed) Shigeru Opa.

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