MARITIME DELIMITATION IN THE AREA BETWEEN GREENLAND AND JAN MAYEN (DENMARK

V. NORWAY)
FACTS:
Government of Denmark filed in the Registry an Application instituting proceedings
against Norway, concerning the delimitation of Denmarks and Norways fishing zones
and continental shelf areas in the waters between the east coast of Greenland and the
Norwegian island of Jan Mayen, where both Parties laid claim to an area of some 72,000
square kilometers.
The Court delivered its Judgment. Denmark had asked the Court to draw a single line of
delimitation of those areas at a distance of 200 nautical miles measured from
Greenlands baseline, or, if the Court did not find it possible to draw such a line, in
accordance with international law.
Norway, for its part, had asked the Court to find that the median line constituted the
two lines of separation for the purpose of the delimitation of the two relevant areas, on
the understanding that those lines would then coincide, but that the delimitations
would remain conceptually distinct. A principal contention of Norway was that a
delimitation had already been established between Jan Mayen and Greenland, by the
effect of treaties in force between the Parties a bilateral Agreement of 1965 and the
1958 Geneva Convention on the Continental Shelf as both instruments provide for
the drawing of a median line.
The Court noted, in the first place, that the 1965 Agreement covered areas different
from the continental shelf between the two countries, and that that Agreement did not
place on record any intention of the Parties to undertake to apply the median line for
any of the subsequent delimitations of that continental shelf. The Court then found that
the force of Norways argument relating to the 1958 Convention depended in the
circumstances of the case upon the existence of special circumstances as envisaged by
the Convention.
It subsequently rejected the argument of Norway according to which the Parties, by
their conjoint conduct had long recognized the applicability of a median line
delimitation in their mutual relations. The Court examined separately the two strands of
the applicable law: the effect of Article 6 of the 1958 Convention, applicable to the
delimitation of the continental shelf boundary, and then the effect of the customary law
which governed the fishery zone. After examining the case law in this field and the
provisions of the 1982 United Nations Convention on the Law of the Sea, the Court
noted that the statement (in those provisions) of an equitable solution as the aim of
any delimitation process reflected the requirements of customary law as regards the
delimitation both of the continental shelf and of exclusive economic zones. It appeared
to the Court that, both for the continental shelf and for the fishery zones in the instant
case, it was proper to begin the process of delimitation by a median line provisionally
drawn, and it then observed that it was called upon to examine every particular factor in
the case which might suggest an adjustment or shifting of the median line provisionally
drawn. The 1958 Convention required the investigation of any special circumstances ;
the customary law based upon equitable principles for its part required the investigation
of the relevant circumstances.
 The Court found that, although it was a matter of categories which were different in
origin and in name, there was inevitably a tendency towards assimilation between the
two types of circumstances.

ISSUE: WON the circumstances of the instant case required adjustment or shifting of the
median line
HELD: To that end it considered a number of factors. With regard to the disparity or
disproportion between the lengths of the relevant coasts, alleged by Denmark, the Court
concluded that the striking difference in lengths of the relevant coasts constituted a special
circumstance within the meaning of Article 6, paragraph 1, of the 1958 Convention. Similarly, as
regards the fishery zones, the Court was of the opinion that the application of the median line
led to manifestly inequitable results. The Court concluded therefrom that the median line
should be adjusted or shifted in such a way as to effect a delimitation closer to the coast of Jan
Mayen.
The Court then considered certain circumstances that might also affect the position of the
boundary line, i.e., access to resources, essentially fishery resources (capelin), particularly with
regard to the presence of ice ; population and economy ; questions of security ; conduct of the
Parties. Among those factors, the Court only retained the one relating to access to resources,
considering that the median line was too far to the west for Denmark to be assured of equitable
access to the capelin stock. It concluded that, for that reason also, the median line had to be
adjusted or shifted eastwards. Lastly, the Court proceeded to define the single line of
delimitation as being the line M-N-O-A.

SS LOTUS CASE

Facts:

A collision occurred shortly before midnight on the 2nd of August 1926 between the
French mail steamer Lotus and the Turkish collier Boz-Kourt. A French citizen captained
the French mail steamer by the name Demons while the Turkish collier Boz-Kourt was
captained by Hassan Bey. The Turks lost eight men after their ship cut into two and sank
as a result of the collision.
Although the Lotus did all it could do within its power to help the ship wrecked persons,
it continued on its course to Constantinople, where it arrived on August 3.
On the 5th of August, Lieutenant Demons was asked by the Turkish authority to go
ashore to give evidence. After Demons was examined, he was placed under arrest
without informing the French Consul-General and Hassan Bey.
The Turkish courts, for negligence conduct in allowing the accident to occur convicted
demons.
This basis was contended by Demons on the ground that the court lacked jurisdiction
over him. With this, both countries agreed to submit to the Permanent Court of
International Justice, the question of whether the exercise of Turkish criminal
 jurisdiction over Demons for an incident that occurred on the high seas contravened
international law.

ISSUES:
1. WON Turkey violated international law when Turkish courts exercised jurisdiction over a
crime committed by a French national, outside Turkey?
2. WON a rule of international law, which prohibits a state from exercising criminal jurisdiction
over a foreign national who commits acts outside of the states national jurisdiction exist?

HELD:
1. No. Turkey, by instituting criminal proceedings against Demons, did not violate international
law. The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its
territory unless an international treaty or customary law permits it to do so. This is what we
called the first principle of the Lotus Case. The Court held that:
Now the first and foremost restriction imposed by international law upon a State is that
failing the existence of a permissive rule to the contrary it may not exercise its power in any
form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot
be exercised by a State outside its territory except by virtue of a permissive rule derived from
international custom or from a convention.
The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction,
in any matter, even if there is no specific rule of international law permitting it to do so. In
these instances, States have a wide measure of discretion, which is only limited by the
prohibitive rules of international law. The Court held that:
It does not, however, follow that international law prohibits a State from exercising
jurisdiction in its own territory, in respect of any case which relates to acts which have taken
place abroad, and in which it cannot rely on some permissive rule of international law. Such a
view would only be tenable if international law contained a general prohibition to States to
extend the application of their laws and the jurisdiction of their courts to persons, property and
acts outside their territory, and if, as an exception to this general prohibition, it allowed States
to do so in certain specific cases. But this is certainly not the case under international law as it
stands at present. Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to persons, property and
acts outside their territory, it leaves them in this respect a wide measure of discretion, which is
only limited in certain cases by prohibitive rules; as regards other cases, every State remains
free to adopt the principles which it regards as best and most suitable. This discretion left to
States by international law explains the great variety of rules which they have been able to
adopt without objections or complaints on the part of other States In these circumstances all
that can be required of a State is that it should not overstep the limits which international law
places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its
sovereignty.
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite
to exercise jurisdiction, the Court argued, then it wouldin many cases result in paralysing the
action of the courts, owing to the impossibility of citing a universally accepted rule on which to
support the exercise of their [States] jurisdiction The Court based this finding on the sovereign
will of States. It held that:
International law governs relations between independent States. The rules of law binding
upon States therefor emanate from their own free will as expressed in conventions or by
usages generally accepted as expressing principles of law and established in order to regulate
the relations between these co-existing independent communities or with a view to the
achievement of common aims. Restrictions upon the independence of States cannot therefore
be presumed
2. No. A rule of international law, which prohibits a state from exercising criminal jurisdiction
over a foreign national who commits acts outside of the states national jurisdiction, does not
exist. Failing the existence of a permissive rule to the contrary is the first and foremost
restriction imposed by international law on a state and it may not exercise its power in any
form in the territory of another state. This does not imply that international law prohibits a
state from exercising jurisdiction in its own territory, in respect of any case that relates to acts
that have taken place abroad which it cannot rely on some permissive rule of international law.
In this situation, it is impossible to hold that there is a rule of international law that prohibits
Turkey from prosecuting Demons because he was aboard a French ship. This stems from the
fact that the effects of the alleged offense occurred on a Turkish vessel. Hence, both states here
may exercise concurrent jurisdiction over this matter because there is no rule of international
law in regards to collision cases to the effect that criminal proceedings are exclusively within
the jurisdiction of the state whose flag is flown.

TEMPLE OF PREAH VIHEAR (CAMBODIA V. THAILAND)

Facts:
1. Cambodia complained that Thailand had occupied a piece of its territory surrounding
the ruins of the Temple of Preah Vihear, a place of pilgrimage and worship for
Cambodians, and asked the Court to declare that territorial sovereignty over the Temple
belonged to it and that Thailand was under an obligation to withdraw the armed
detachment stationed there since 1954.
2. Thailand filed preliminary objections to the Courts jurisdiction, which were rejected in a
Judgment given on 26 May 1961.
3. In its Judgment on the merits, rendered on 15 June 1962, the Court noted that a Franco-
Siamese Treaty of 1904 provided that, in the area under consideration, the frontier was
to follow the watershed line, and that a map based on the work of a Mixed Delimitation
Commission showed the Temple on the Cambodian side of the boundary.
4. Thailand asserted various arguments aimed at showing that the map had no binding
character. One of its contentions was that the map had never been accepted by
Thailand or, alternatively, that if Thailand had accepted it, it had done so only because
of a mistaken belief that the frontier indicated corresponded to the watershed line.
ISSUE: WON Cambodia had sovereignty over the territory of Preah Vihar
1. HELD: No. Cambodia has no sovereignty over the whole territory of the promontory of
PV. The Court found that Thailand had indeed accepted the map and concluded that the
Temple was situated on Cambodian territory. Thailand was under an obligation to
withdraw any military or police force stationed there and to restore to Cambodia any
 objects removed from the ruins since 1954. The commission that marked the map finally
was a joint commission form both party and both of them adopted the same without
objection therefore Cambodia had sovereignty over that area according to their treaty.

ERITREA-YEMEN ARBITRATION

FACTS:
In an Agreement on Principles of May 21, 1996, Eritea and Yemen agreed to renounce the use of
force against each other and to settle their dispute on questions of territorial sovereignty and of
delimitation of maritime borders peacefully.

The agreement implemented a two-stage process contemplated in the agreement on principles.

1. FIRST STAGE The tribunal was to decide territorial sovereignty [over the disputed islands in the
Red Sea], in accordance with the principles, rules and practice of Intl law applicable to the matter,
and on the basis, in particular, of historic titles.
2. SECOND STAGE The tribunal was to issue an award delimiting maritime boundaries taking into
account the opinion that it will have formed on questions of territorial sovereignty, the [UNCLOS],
and any other pertinent factor.

Eritea claimed territorial sovereignty over all the islands by virtue of Italian sovereignty.
1. It was acquired by effective occupation sometime after Turkish renunciation.
2. Italian title was transferred to Ethiopia and, upon its accession to independence in 1993, Eritea
succeeded to it.

Temen based its claim on original, historic or traditional Yemeni title, from the 6 th century.
1. Ttitle was recognized by Yemens integration into the Ottoman Empire and reverted: to Yemen upon
the empires demise.

Both Eritea and Yemen adduced evidence of more recent demonstrations of sovereignty, including Petroleum
exploration agreements and sovereignty.

Eritea contended that the scope of the dispute included the northern islands of Jabal al-Tayr and the Zubayr
group. Yemen disagreed, so Art. 2(2) of the Arbitration agreement requested the Tribunal to resolve the
dispute.
1. The Tribunal took note of the possible discrepancy between the agreement on principles and the
arbitration agreement (in which case the latter would prevail).
2. However, it relied on the final sentence of Art. 2(2) of the arbitration agreement: The Tribunal shall
decide on the definition of the scope of the dispute on the basis of the respective positions of the two
Parties.
a. It held that all islands came within the scope of the dispute, reasoning that the parties
positions at the time of the arbitration agreement should form the basis for the
determination by the tribunal of the scope of the dispute.
b. This, according to the author, is a curiously passive posture with respect to the matter in
dispute.
i. The competence assigned to the Tribunal to make the decision was surrendered to
the broadest submission of one of the parties, for, in the nature of the situation, the
other party will always have to defend against it, if only for a special or conditional
basis.

In response to Yemens invocation of the doctrine of uti possidetis, the Tribunal wavered, doubting the law,
but giving some effect to Ottoman allocations of jurisdiction.
 1. The factual predicate for the application of uti possidetis was a clear source of where the
administrative boundaries of the Ottoman Empire were located, which was the question at bar.
2. While skirting the question whether the doctrine of uti possidetis, at the time thought of as
essentially one applicable to Latin America, could properly be applied to interpret a juridical
question arising in the Middle East shortly after the close of [WWI], The Tribunal seemed to apply a
type of uti possidetis when it found that even when the whole region was under Ottoman rule it
would was assumed that the powers of jurisdiction and administration over the islands should be
divided between the two opposite coasts.

The Tribunal was rather defensive with respect to the information It had solicited regarding petroleum
agreements and explorations undertaken under the auspices of the respective parties.
1. Yemen contended that it was not relevant in the first phase of the arbitration and expressed concern
that it was being used to prefigure a median line.
a. The Tribunal assured the parties that no member of the of the Tribunal had mentioned
equity or equitable principles.
i. As a general matter, however, it stated that it could not accept the proposition that
the intl law governing land territory and the intl law governing maritime
boundaries are not only different but also discrete and bear no juridical relevance to
each other.
ii. The Tribunal insisted still that there could not be any question of drawing any
maritime boundary line based on equitable principles in the arbitrations first stage.

The Tribunal rejected Yemens argument for a reversion of title on the basis of law and facts.
1. Yemen had not established that the doctrine was part of international law.
2. Yemen had not persuaded the Tribunal that the historic bilad el Yemen had exercised territorial
control over coastal areas and perforce over the islands.
3. In any case, because the Ottoman Empire would have had title to the Islands and the Treaty of
Lausanne could have validly alienated that title, the chain of title necessary for a reversion would
have been interrupted.
4. In a shadowy application of the doctrine of uti possidetis, the Tribunal did take account of the exercise
of jurisdiction which could constitute historic fact.
a. The allocation of administrative powers over the Red Sea islands during the Osmanli period
was one such historic fact.

Sovereign title includes the capacity to alienate. Hence the successor to the Ottoman Empire was able to
alienate the islands as it did in the treaty of Lausannes Art. 16. [p. 670].
1. All the contested islands, according to the Tribunal were covered by such provision, despite
intermittent acceptance that [some] were under the jurisdiction of Italy and had erga omnes effect.

As regards Yemens contention that the Lausanne treaty was res inter alios acta, the Tribunal said:

[t]his special category of treaties also represents a legal reality which necessarily impinges upon the third states,
because they have effect erga omnes. If State A has title to territory and passes it to State B, then it is legally
without purpose for State C to invoke the principle of res inter alios acta, unless its title is better than that of A
(rather than of B). In the absence of such better title, a claim of res inter alios acta is without legal import.

Yemens protests could have no effect on this alienation, as Yemen did not have title.

At the core of the Tribunals award is a reading of At. 16 of the Lausanne Treaty:

in 1923 Turkey renounced title to those islands over which it had sovereignty until then. They did not become
res nullius that is to say, open to acquisitive prescription by any state, including any of the High Contracting
Parties (including Italy). Nor did they automatically revert (insofar as they had ever belonged) to the Imam
[Yemen]. Sovereign title over them remained indeterminate pro tempore.
In its view, the Tribunal was confirmed by the 1927 Rome Conventions which produced a signed record and
by the 1938 Anglo-Italian Agreement and Protocol, especially Art. 4 of Annex III., which had the effect of
depriving Italian actions of legal and title-generating force in the contested islands.
1. Arguably, such actions would have otherwise signified or constituted effective occupation.

This negative analysis of Art. 16 does not answer the question of who is the territorial sovereign of the contested
islands, but rather who was not the territorial sovereign and therefore could not pass title to a putative
successor.
1. The analysis is oddly incomplete.
a. The Tribunal does not explain when and why Art. 16s suspensive force ceased, such that the
Tribunal and the parties before it could determine only by reference to alleged effectivits of
Eritea and Yemen and without the participation of all the parties concerned (e.g. states
whose ships traverse the Red Sea and are parties to the Lighthouse Convention, and also
include the UK, France, Ethiopia, Russia, Israel and the US).
b. If the class parties concerned is this large, then the relevance of may bilateral judicial and
arbitral precedents is called into question.

The tribunal concluded that Italy could not make q claim that it had title over the islands in dispute.
1. It is curious that the Tribunal interprets Art. 23 of the 1957 Peace Treaty as not merely relinquishing
its rights to participate as a concerned party in the disposition of the islands under Art. 16 of the
Treaty of Lausanne, but also as a renunciation of claims of Italy to the islands.
2. If Turkey had title until 1923, whereupon Art. 16 deprived Italian effectivits of legal effect, what
substantive Italian title was being renounced?
3. In the view of the Tribunal, the indeterminate status of the island was confirmed by a 1949 UN
Working Paper in connection with the preparation of the draft Eritrean Constitution.

With respect to the lighthouses on some of the contested islands, the Tribunal held that [b]y the outreak of
[WWII] it may be said that the maintenance of the lights is seen as a non-sovereign act and there is agreement
that the underlying title to the islands concerned was left in abeyance.
1. In this regard, various Ethiopian activities were immaterial to sovereignty.
2. Yet because by the early 1970s Yemen was regarded by the [UK] as the leading party concerned for
purposes of Art. 16 of the Treay of Lausanne, at lest so far Abu Ali and Jabal al-Tayr were concerned,
the fact that Yemen relit the lighthouse in 1987 was an act not without significance by virtue of Art.
16 of the [said treaty]. As a legal matter:

The erection and maintenance of lights, outside of any treaty arrangements and for the indefinite
future, had certain implications. The acceptance of Yemens offer did not constitute recognition of
Yemen sovereignty over islands. But it did accept the reality that Yemen was best placed, and was
willing, to take on the role of providing and managing lights in that part of the Red Sea; and that when
the time came finally to determine the status of those islands Yemen would certainly be a party
concerned.

Despite the fact that the Tribunals theory was based on a reading of Art. 16 that deprived manifestations of
sovereignty of acquisitive force, almost 1/3 of its opinion assesses the quality of the parties factual evidence
of alleged effectivits.
1. The tribunal found that legislative and constitutional acts by both parties lacked specific reference to
the islands by name.
2. It also found that the activities of the parties in relation regulation of fishing allow no clear
conclusion to be drawn.
3. It did not find that Ethiopian naval patrols were directed at fishing regulation, but concluded that
there was somewhat greater Yemeni in the granting of permission related to the islands.
4. No evidence of publication of general information regarding pilotage or maritime safety by Eritrea.
On the other hand, Yemen published six notices.
a. While not dispositive of the title, it supposes a presence and knolwdge of location.
5. It discounted the maintenance of the lighthouses, it took note of the placement of markers.
 6. No manifestations may be inferred from SAR operations because they are a generalized duty
incumbent on any person or vessel.
7. It found sparse and inconsistent evidence of the maintenance of naval and coast guard patrols in the
waters around the islands on behalf of both parties.
a. However, from 1983-1991, it found widespread surveillance and military reconnaissance
activities in the waters around the islands by the Ethiopian Navy.
b. Yemen, on the other hand, conducted very few similar activities in the area.
i. They did not protest the Ethiopian presence, nor were permanent garrisons or
military posts were established in the islands until after 1995.
8. No legal significance can be ascribed to private fishing activities without evidence of state licensing
and enforcement.
a. State activity was the critical factor.
9. The maintenance of shrines and holy places was not deemed critical evidence, unless it was a
governmental activity.
10. Intentions with respect to governmental investment activity were, apparently, allowed some
probative weight.
11. The regulation of electronic equipment on the islands in the course of military activities was not
viewed as an exercise of sovereign authority, but appeared to allow more weight to a recent scientific
expedition by Yemen.
12. Overflights of uninhabited islans were not evidence of effectivits.

The parties had differed on the probative value of the many maps that were adduced.
1. Eritrea contended that map evidence was contradictory and unreliable.
2. Yemen argued that it was important evidence of general opinion, of the attitueds of the parties and of
acquiescence.
3. The Tribunal held that Temeni map evidence was superior in cope and volume, but was not
decisive.

The tribunal, with regard to the information it had solicited from the parties with regard to petroleum
exploration and exploitation activities, concluded that offshore petroleum contracts entered into by the
parties failed to establish or even strengthen, either of their claims to sovereignty over the islands, [t]hose
contracts however lend a measure of support to the median line between the coasts of [the two parties],
drawn without regard to the islands, dividing the respective jurisdictions of the parties.
1. Nevertheless, the implementation of the petroleum contracts involved state activities to which the
Tribunal did allow legal significance.

The Tribunals Conclusions

1. The tribunal held that neither party was able to establish historic titlte to the islands, islets and rocks, and
that the relatively recent history of use and possession would prove decisive.
a. Yes, applying the test of continuous and peaceful display of the functions of State within
a given region, as established in Island of Palmas, or even accepting a test of very little
in the way f actual exercise of sovereign rights, the tribunal was not certain that either
party had demonstrated title.
2. The tribunal avoided an award of non liquet by reaching for criteria that the Arbitration
Agreement had not authorized:

In these circumstances where for all the reasons just described the activities relied upon by the parties,
though many, sometimes speak with an uncertain voice, it is surely right for the tribunal to consider
whether there are in the instant case other factors which might help to resolve some of these
uncertainties.

3. The tribunal acknowledged that its departure was quite radical [p. 674 for the block quote].
a. The departure from the crompromis was even further than the preceding question
suggests, as the assignment of what the Tribunal styled the various sub-units of islands
was effected simply by a presumption of proximity.
 i. Mohabbakah islands were assigned to Eritrea because of how close it was to
the Eritrean coast, regardless of the history.
ii. The High Islet, slightly more than 12 nautical miles from the territorial sea
baseline, was included in the assignment for the rather tautological reason that
it was part of the same group sharing the same legal destiny.
1. The effort by Eritrea to leapfrog seaward to include other islands
beyond the 12-mile territorial sea was blocked by the Tribunal, because
the more seaward islands do not benefit from the neo-presumption of
propinquity.
2. Yet the tribunal awarded the small Haycock islands which lie beyond
Eritreas territorial sea to Eritrea because Yemen failed to establish a
superior claim in light of the islands geographical proximity to Eritrea.
iii. A party seeking to defeat the presumption of proximity is, apparently, obliged to
submit a fully-established case to the contrary, while all that is needed to defeat
the proximity argument beyond the territorial sea is another relatively superior
title.
1. Yemen could not only marshal a superior claim to overcome proximity,
but, in fact, Eritreas petroleum activity extended to the Haycock islands
while Yemens did not.
2. Such activity was not protested by Yemen.
iv. South West Rocks were also awarded to Eritrea because they were, at various
times, considered to form the easternmost limit of African-coast jurisdiction
and because of Italian assertions of jurisdiction over all the proposed sites.
1. The Tribunal, however, did not inquire as to whether the rocks were
capable of appropriation.
2. Nor did it explain why assertions of jurisdiction could not trump Art. 16
in any other areas should suddenly acquire a decisive legal valence.
3. Neither did it explain why uti possidetis, whose legal application was
not accepted, should have legal effect here,
v. The Hanish islands and Zuqar could not be adjudicated upon using the
propinquity presumption or appurtenance factor, which are in the center of
the red sea and divided by a median line.
1. According to the Tribunal neither party could make a historical claim to
the islands, hence, the Tribunal had to look into other factors.
a. Construction and maintenance of lighthouses cogent
evidence of Yemen presence.
b. Naval patrols Ambiguous. No compelling case for either
party.
c. Petroleum agreements no conclusive evidence could be
gleaned from such.
2. Thus, the tribunal was faced with a quandary of deciding when its
record was based on insufficient evidence. Hence, it looked to
effectivits.
a. Yemen submitted 48 alleged happenings or incidents in
respect of the islands between 1989- mid-1991
b. On the basis of such, the Tribunal rules in favor of Yemen.
vi. With respect to Hanish, the Tribunal acknowledged that Eritreas claim was
well-established, however, Yemen had more to show by way of presence and
display of authority.
vii. With respect to Jabal al-Tayr and the Zubayr group, the tribunal noted the
paucity of evidence adduced by both sides, as well as the proximity of the
islands to Yemenis coast.
1. While the tribunal was ambivalent regarding the sovereignty
consequences of maintaining a lighthouse, it found that Yemens actions
 in this regard and the response of the international maritime users was
a factor of some significance.
2. Hence, the tribunal rued in favor of Yemen in this regard.