Maritime Delimitation (Publications on Ocean Development, 53)

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Author: Rainer Lagoni | Daniel Vignes

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MARITIME DELIMITATION

Publications on Ocean Development Volume 53 A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development General Editor: Vaughan Lowe Chichele Professor of Public International Law and Fellow of All Souls College, Oxford University

The titles published in this series are listed at the end of this volume.

Maritime Delimitation

EDITED BY

RAINER LAGONI AND

DANIEL VIGNES

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

A C.I.P. record for this book is available from the Library of Congress. Printed on acid-free paper. ISSN 0924-1922 ISBN-13: 978-90-04-15033-1 ISBN-10: 90-04-15033-1 © 2006 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Contents Preface ...................................................................................................... Rainer Lagoni and Daniel Vignes

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La Délimitation des Frontières Maritimes dans la Jurisprudence Internationale: Vue d’Ensemble .............................................................. Laurent Lucchini

1

The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf ............................................ Rüdiger Wolfrum

19

Provisional Measures and Interventions in Maritime Delimitation Disputes .................................................................................................... Santiago Torres Bernárdez

33

What have the United Nations Convention and the International Tribunal for the Law of the Sea to offer as regards Maritime Delimitation Disputes? ............................................................................ Tullio Treves

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The Role of the Technical Expert in Maritime Delimitation Cases ........ Martin Pratt

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Preparing for a Delimitation Case: The Practitioner’s View .................... Rodman R. Bundy

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Negotiating Maritime Boundary Agreements: A Personal View .............. David Anderson

121

Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation ........................................ Thomas A. Mensah

143

Maritime Delimitation in Complex Island Situations: A Case Study on the Caribbean Sea ................................................................................ Chris Carleton

153

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Contents

Recent Developments as regards Maritime Delimitation in the Adriatic Sea .............................................................................................. Tullio Scovazzi

189

Maritime Delimitation in a Semi-enclosed Sea: The Case of the Adriatic Sea .............................................................................................. Budislav Vukas

205

Some Thoughts on the Extension of Existing Boundaries for the Delimitation of New Maritime Zones ...................................................... Irini Papanicolopulu

223

Index ........................................................................................................

237

Preface The delimitation of maritime zones is an important requirement for peaceful relations between neighbouring States. In many situations it is a necessary precondition not only for the exploration and exploitation of the natural resources of the continental shelf and the exclusive economic zone but also for the protection and preservation of the marine environment. There are numerous examples of areas between States with opposite or adjacent coasts where sovereignty over an island or territory may not be contested but the delimitation of the continental shelf and exclusive economic zone is still pending. Under the Law of the Sea Convention, the delimitation of these zones shall be effected by agreement on the basis of international law. The Convention does not, however, offer a definitive answer as to the methods that should be applied: should the boundary line be determined by geographical methods, as is provided for the delimitation of the territorial sea, on the basis of geology, or rather by way of equitable principles? States with opposite or adjacent coasts planning to delimit their continental shelf or exclusive economic zone, must take all relevant aspects of delimitation into account “in order to achieve an equitable solution”, as is required under the Law of the Sea Convention. The papers presented by Judges of the International Tribunal for the Law of the Sea, eminent scholars and experienced practitioners at the Symposium on Maritime Delimitation, which are published hereafter, deal with various aspects of delimitation: the jurisprudence of international courts and tribunals and their relevance for delimitation, the impact of the Law of the Sea Convention on delimitation, the role of legal practitioners and diplomatic negotiators with regard to delimitation, and delimitation under particular geological circumstances and in geographically complex regional situations. The Symposium was held at the International Tribunal for the Law of the Sea on 25 and 26 September 2004. It was organized by the International Foundation for the Law of the Sea, in co-operation with the Association Internationale du Droit de la Mer, the Institut du droit économique de la mer, Monaco, the Law of the Sea and Maritime Law Institute of the University of Hamburg, the Federal Maritime and Hydrographic Agency, and the Bucerius Law School, Hamburg. The Symposium was generously sponsored by the Edmund Siemers-Stiftung, the ZEIT-Stiftung Ebelin und Gerd Bucerius and the Stiftung für das Seerechtsinstitut. The editors wish to express their profound gratitude to all of them for their valuable contributions to the success of the Symposium. They are particularly grateful to the President of the

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Preface

International Tribunal for the Law of the Sea for the opportunity to use the magnificent premises of the Tribunal for this event, and to the speakers for their outstanding presentations. Hamburg 2005 Rainer Lagoni and Daniel Vignes

La Délimitation des Frontières Maritimes dans la Jurisprudence Internationale: Vue d’Ensemble Laurent Lucchini* Traiter de la délimitation maritime à travers la jurisprudence internationale risque d’aboutir à des vues bien réductrices, compte tenu de l’ampleur du sujet et de la complexité d’une question sur laquelle les tribunaux internationaux ont hésité durant des années avant de fixer un processus clair et des règles satisfaisantes. Aussi devrait-on pardonner à l’auteur de ces lignes une approche trop brutale et un survol trop lointain d’un sujet qui appellerait plus de subtilité et de nuance. Il est parfois affirmé que l’établissement des frontières maritimes constitue un des problèmes territoriaux majeurs de notre époque. Or, pendant une longue période, les délimitations maritimes ont été rares,1 voire exceptionnelles,

* Professeur émérite à l’Université Panthéon-Sorbonne (Paris I), Président du Conseil scientifique de l’INDEMER. 1 Voir à ce sujet, rapportée par G. Gidel (Le droit international public de la mer, Tome III, Châteauroux/Paris, Etablissements Mellottée, 1934, pp. 765–766) la position adoptée par le gouvernement néerlandais, déclinant une offre belge de délimitation latérale entre les deux pays. Le Ministre des Affaires Etrangères des Pays-Bas expliquait ainsi la décision prise: “il n’est guère usité d’étendre la description des limites entre deux Etats au delà du territoire et jusqu’en mer”.

1 Rainer Lagoni and Daniel Vignes (eds.), Maritime Delimitation, pp. 1–18. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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Laurent Lucchini

n’intervenant le plus souvent que pour tracer des frontières dans des passages resserrés.2 Mais, en quelques décennies, elles se sont multipliées, à telle enseigne qu’elles donnent lieu aujourd’hui à un bloc avoisinant les 200 accords. Comment est-on passé de cette phase d’indifférence prolongée à ce mouvement puissant d’établissement de frontières maritimes et quelles sont les raisons – du moins les principales d’entre elles – qui en sont à la source? • D’abord, des raisons classiques et évidentes de sécurité juridique – valant aussi bien pour les Etats eux-mêmes que pour les différents opérateurs (navigateurs, pêcheurs, pétroliers etc.) qui mènent leurs activités en mer – militent en faveur de frontières caractérisées – à l’instar des frontières terrestres – par “stabilité et permanence”.3 • Au facteur précédent s’en ajoute un autre, plus récent, qui renforce fortement l’intérêt de la délimitation. Ce facteur explicatif tient à la diversification ainsi qu’à l’extension sans précédent des zones relevant de la souveraineté ou de la juridiction de l’Etat côtier; il a pour effet de transformer radicalement la notion de “voisinage” en mer et, du même coup, d’accroître largement le nombre des hypothèses dans lesquelles les délimitations se révèlent nécessaires. Ces opérations s’imposent de façon d’autant plus impérieuse, d’ailleurs, qu’elles portent sur des enjeux spatiaux parfois considérables, accompagnés de tous les atouts que l’espace ainsi gagné implique en ressources biologiques et (ou) minérales et en mobilité des flottes. On connaît les voies à utiliser en vue de procéder à une délimitation maritime entre deux Etats côtiers voisins. La voie normale, naturelle, est celle de l’accord, dont les Conventions de Genève sur le droit de la mer de 1958 et celle de Montego Bay du 10 décembre 1982 soulignent le caractère premier et primordial.4 A défaut d’accord cependant, les Etats peuvent avoir recours au juge, que

2 W. Boggs, Delimitation of the Territorial Sea, 24 AJIL, 1930, p. 541; J. Guerra, Les eaux territoriales dans les détroits peu larges, Memorandum présenté à l’International Law Association (Conférence de Stockholm 1923); Song-Myon-Rhee, “Sea Boundary Delimitation between States Before World War II”, 76 AJIL, 1982, p. 555. 3 Cf. arrêt rendu par la CIJ le 19 décembre 1978 en l’Affaire du plateau continental de la mer Egée (Grèce-Turquie): “Qu’il s’agisse d’une frontière terrestre ou d’une limite de plateau continental, l’opération est essentiellement la même; elle comporte le même élément inhérent de stabilité et de permanence”, CIJ Rec. 1978, para. 85 in fine. 4 L’article 6 de la Convention de 1958 sur le plateau continental spécifie dans son article 1er paragraphes 1 et 2 que “Dans le cas où un même plateau continental est adjacent aux territoires de deux ou plusieurs Etats . . . la délimitation du plateau continental entre ces Etats est déterminée par accord entre ces Etats.” De son côté, la Convention des Nations Unies sur le droit de la mer de 1982 dans les paragraphes 1 de ses articles 74 et 83 (zone économique exclusive et plateau continental) stipule que: “La

La Délimitation des Frontières Maritimes

3

celui-ci ait été dans les dernières décennies la Cour internationale de Justice ou certains tribunaux ad hoc. La création assez récente du Tribunal international du droit de la mer n’a pas encore donné l’occasion à celui-ci d’apporter sa contribution à ce contentieux, mais il a pleine vocation pour le faire. Dans l’hypothèse d’un contentieux judiciaire toutefois, il ne faut pas se masquer les difficultés de la tâche qui s’impose au juge. A quoi tiennent-elles? 1. Au fait, en premier lieu, qu’une délimitation, quelle qu’elle soit, est une affaire qui revêt une grande importance pour l’Etat: “opération juridicopolitique” précise la Cour internationale de Justice.5 En effet, la dimension politique est essentielle, dans la mesure où elle renvoie à la détermination d’une composante capitale de l’Etat: son aire territoriale et ses ultimes limites de compétence en mer. La situation du juge est peut-être d’autant plus délicate d’ailleurs qu’il est le plus souvent appelé à connaître des cas les plus complexes et sensibles, ceux dans lesquels les Parties en présence ne sont pas parvenues à s’entendre directement. 2. Ces difficultés découlent, en second lieu, du fait que le juge doit uniquement trancher sur la base du droit. Son intervention n’est pas, en effet, régie par le principe de liberté contractuelle qui s’applique aux Etats dans le cadre de la négociation d’un accord. De surcroît, au cours des dernières années, le juge n’a guère pu prendre appui sur les dispositions conventionnelles pertinentes de la Convention sur le droit de la mer de 1982,6 dont on sait la pauvreté, mis à part le seul relief qu’elle possède – mais de grande importance – du résultat équitable à atteindre. Le juge a ainsi été amené à connaître d’un bataillon compact d’affaires de délimitation maritime, un nombre d’affaires d’ailleurs sensiblement plus élevé que dans les autres secteurs du droit international et dont les premières sont arrivées à point nommé pour alimenter, dans une période critique, le rôle de la Cour internationale de Justice. La jurisprudence qui en est résultée et les règles que celle-ci a fixées ne se sont pas développées de façon lisse et continue. Néanmoins, on a pu affirmer qu’à l’heure actuelle,

délimitation de la zone économique exclusive (plateau continental) entre Etats dont les côtes sont adjacentes ou se font face est effectuée par voie d’accord . . .” 5 “Une délimitation qu’elle soit maritime ou terrestre est une opération juridico-politique” précise la Chambre de la Cour dans son arrêt rendu le 12 octobre 1984 en l’Affaire de la délimitation de la frontière maritime dans la région du golfe du Maine, CIJ Rec. 1984, para. 55. 6 Sont visés le paragraphe 1 des articles 74 (zone économique exclusive) et 83 (plateau continental), les dispositions de l’article 15 relatives à la délimitation de la mer territoriale – qui reprennent mutatis mutandis celles de l’article 12 de la Convention de Genève de 1958 sur la mer territoriale et la zone contiguë – sont plus explicites.

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Laurent Lucchini la jurisprudence(était) parvenue à un degré nouveau d’unité et de certitude en conservant la souplesse nécessaire.7

Si l’on ne peut qu’être d’accord avec les propos tenus par un parfait connaisseur de ces questions, on pourrait cependant les infléchir quelque peu pour estimer que si le juge a mené à bien une œuvre importante d’élaboration normative, de clarification et d’unification (I), cette œuvre n’est cependant pas pleinement achevée (II).

I. ŒUVRE NORMATIVE ET DE CLARIFICATION Par son arrêt du 20 février 1969 (premier arrêt sur les aspects “modernes” de la délimitation) rendu dans les Affaires de délimitation du plateau continental de la mer du Nord, appelée à indiquer les principes et règles de droit international applicables à la délimitation maritime,8 la Cour internationale de Justice a développé une théorie quasi inédite, selon laquelle les droits de l’Etat côtier sur le plateau continental reposaient sur le fait que celui-ci constituait le prolongement naturel du territoire terrestre sous la mer et étaient encadrés, en même temps que bornés, par ledit plateau. De ce fait, la Cour expliquait que: La délimitation est une opération qui consiste à déterminer les limites d’une zone relevant déjà en principe de l’Etat riverain et non à définir cette zone de novo.9

Pareille théorie est certes séduisante intellectuellement en raison de l’équation qu’elle souhaite établir entre configuration physique des fonds et règles de droit applicables, même s’il est difficile de comprendre dans la logique de cette conception que les prolongements naturels de deux Etats puissent alors se chevaucher. Mais, en tout état de cause, cette jurisprudence de la Cour a exercé pendant longtemps une sorte d’effet de glaciation, tant sur les juges que sur les Etats. A la vérité, malgré les réticences antérieures observées dans la doctrine et la jurisprudence, il a fallu attendre l’arrêt de la Cour de La Haye du 3 juin 198510

7 Discours prononcé par Gilbert Guillaume, ancien Président de la CIJ, en 2001 devant la 6ème Commission de l’Assemblée Générale des Nations Unies. 8 Les deux compromis conclus le 2 février 1967 entre, d’une part, la République fédérale d’Allemagne et le Danemark, d’autre part entre la République fédérale d’Allemagne et les Pays-Bas ne sollicitaient pas de la CIJ le tracé de lignes de délimitation. La question posée était la suivante: “Quels sont les principes et les règles du droit international applicables à la délimitation entre les Parties des zones de plateau continental de la mer du Nord relevant de chacune d’elles . . .?” 9 CIJ Rec. 1969, para. 18, p. 22. 10 Affaire du plateau continental (Jamahiriya arabe libyenne/Malte).


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pour que cette théorie soit abandonnée – au moins à l’intérieur des 200 milles marins11 – au profit du seul titre de la distance, tel qu’il figure à l’article 76 paragraphe 1er de la Convention sur le droit de la mer de 1982. Le présent propos n’est pas de faire l’exposition de la jurisprudence actuelle, mais d’en déterminer les caractéristiques essentielles et d’étudier les apports du juge. De ce point de vue, il semble que trois caractéristiques principales puissent être décelées.

1. L’établissement d’un Processus de Délimitation Simple Finie “la croisade contre l’équidistance” dont parlait à juste titre Prosper Weil pour qualifier l’attitude adoptée pendant de longues années par le juge.12 Désormais, la première étape empruntée par celui-ci consiste à tracer une ligne provisoire d’équidistance (“équidistance de premier pas”13). Puis, le juge examine – deuxième étape – si la ligne ainsi tracée produit un résultat équitable. Si celui-ci est atteint, la ligne “provisoire” d’équidistance devient définitive.14 Au contraire, si la ligne provisoire ne satisfait pas les exigences du résultat équitable, le juge – troisième étape – doit procéder à son “ajustement” ou à son “déplacement” en fonction des circonstances pertinentes de l’espèce.15 11 La Cour précise, en effet: “du moment que l’évolution du droit permet à un Etat de prétendre que le plateau continental relevant de lui s’étend jusqu’à 200 milles de ses côtes, quelles que soient les caractéristiques géologiques du sol et du sous-sol correspondants, il n’existe aucune raison de faire jouer un rôle aux facteurs géologiques ou géophysiques jusqu’à cette distance, que ce soit au stade de la vérification du titre juridique des Etats intéressés ou à celui de la délimitation de leurs prétentions”, CIJ Rec. 1985, para. 39, p. 35. Elle refuse même sèchement tout rôle aux considérations physiques des fonds en tant que circonstance pertinente: “Quant à faire jouer un rôle comme circonstance pertinente aux fins de la délimitation à un facteur qui n’en joue aucun pour la validité du titre juridique, on ne voit à cela aucune raison non plus”, ibid., para. 40. 12 P. Weil, Perspectives du droit de la délimitation maritime (Paris, A. Pedone, 1988), p. 216. 13 Ibid., p. 220. 14 Ainsi que la CIJ l’a constaté dans son arrêt du 10 octobre 2002 en l’Affaire de la frontière terrestre et maritime entre le Cameroun et le Nigéria; Guinée équatoriale intervenant: “La Cour décide . . . que la ligne d’équidistance aboutit à un résultat équitable aux fins de la délimitation du secteur dans lequel la Cour a compétence pour se prononcer”, para. 306 de l’arrêt. 15 Depuis 1985 et l’arrêt rendu dans le différend entre Malte et la Libye, les décisions font état d’ajustement ou de déplacement à effectuer au cas où la ligne provisoire d’équidistance n’aboutirait pas à un résultat équitable. Mais n’est plus évoqué le changement possible de méthode. Or, dans l’Affaire de la délimitation de la frontière

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Ce mode opératoire a été appliqué de façon constante dans les différentes décisions rendues, y compris dans les arrêts les plus récents, aussi bien entre Qatar et Bahrein en 2001 qu’entre le Cameroun et le Nigéria en 2002. Les arrêts disent adopter “la même méthode”.16 Deux observations complémentaires méritent d’être faites: • La première concerne les arabesques que la jurisprudence a pu faire sur la place tenue par l’équidistance dans l’opération de délimitation. On ne revient pas – bien entendu – sur les oppositions irréductibles du “groupe des 22” (partisans de l’équidistance) et du “groupe des 29” (partisans de l’équité) au cours des travaux de la 3ème Conférence des Nations Unies sur le droit de la mer et les piètres résultats conventionnels auxquels elles ont conduit.17 Mais le juge lui même s’est livré pendant longtemps à une critique sévère de l’équidistance en en soulignant les effets pervers18 et en lui déniant toute place prioritaire ou même particulière dans l’opération de délimitation.19 L’arrêt du 3 juin 1985 lui même, qui marque pourtant une profonde évolution, sinon un revirement, quelques paragraphes avant de faire recours à l’équidistance provisoire se montre très précautionneux à son égard: La Cour ne saurait admettre, même comme étape préliminaire et provisoire du tracé d’une ligne de délimitation, la méthode de l’équidistance doive forcément être utilisée.20

Or, désormais, l’attitude du juge a profondément changé. Du fait de sa commodité d’utilisation, de la photographie claire et immédiate qu’elle donne, l’équidistance est devenue le point de départ obligé du processus de délimita-

maritime dans la région du golfe du Maine (arrêt du 12 octobre 1984), la Chambre de la CIJ insistait sur cette possibilité dans les termes suivants: “Il n’y a pas . . . une méthode dont on puisse dire absolument qu’elle doit être prise en considération en priorité, une méthode par l’application de laquelle toute opération de délimitation devrait pouvoir commencer, quitte à en corriger les effets ou même à l’écarter ensuite en faveur d’une autre si lesdits effets se révélaient carrément insatisfaisants par rapport à la situation existant en l’espèce. Dans chaque cas concret, les circonstances peuvent au départ faire apparaître une certaine méthode comme mieux appropriée; mais il faut toujours se réserver la possibilité d’y renoncer en faveur d’une autre méthode si cela se justifiait par la suite”, CIJ Rec. 1984, para. 163, p. 315. 16 Cf. Arrêt du 10 octobre 2002, CIJ Rec., para. 290. 17 Cf. L. Lucchini et M. Voelckel, Droit de la mer, Tome 2, Vol. I, Délimitation (Paris, A. Pedone, 1996), pp. 78–89. 18 Voir notamment les qualificatifs sans indulgence utilisés: “l’emploi de cette méthode peut dans certains cas aboutir à des résultats de prime abord extraordinaires, anormaux ou déraisonnables”, CIJ Rec. 1969, para. 24, p. 23. 19 Cf. CIJ Rec. 1982, para. 110, p. 79; CIJ Rec. 1984, para. 107, p. 297; sentence arbitrale du 14 février 1985, para. 102. 20 CIJ Rec. 1985, para. 43, p. 37.


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tion. En procédant ainsi, le juge rejoint largement la pratique des Etats, telle qu’elle se dégage des accords de délimitation dans lesquels l’équidistance occupe une place de choix.21 Il rejoint également les pratiques nationales internes; en effet, chaque Etat, confronté à une opération de délimitation, trace naturellement au départ, une ligne d’équidistance afin d’avoir – avant même d’engager toute négociation – une première vue d’ensemble. • La seconde observation porte sur les circonstances pertinentes. Ainsi qu’il a été vu, le processus de délimitation est fondé sur un schéma général unique, mais ce schéma général se concilie cependant avec l’idée selon laquelle chaque cas constitue un unicum22 qui nécessite la prise en considération des circonstances pertinentes (ou spéciales) propres à l’espèce. Dans ces conditions, ces circonstances ne peuvent en toute bonne logique donner lieu à l’établissement d’une liste complète. Le juge l’a affirmé dans les termes clairs suivants: Il n’y a pas de limites juridiques aux considérations que les Etats peuvent examiner afin de s’assurer qu’ils vont appliquer des procédés équitables.23

On sait cependant, au regard des décisions rendues, que la plupart de ces circonstances pertinentes sont de nature géographique.24 Ces circonstances sont diverses: – disproportion flagrante entre les longueurs respectives des côtes des deux Etats en présence, pour la partie des côtes – bien sûr – s’ouvrant sur la zone dans laquelle la délimitation doit avoir lieu; – plus généralement, configuration côtière: concavité, convexité, nombreuses et profondes indentations; – présence d’îles relevant de l’un ou l’autre des Etats dans la zone où la délimitation doit avoir lieu, leur plus ou moins grande dimension, leur position (du bon ou du mauvais côté de la ligne médiane) etc. Mais d’autres considérations peuvent éventuellement avoir une certaine pertinence: facteurs économiques, facteurs de défense et de sécurité25 etc. 21 Cf. J. Beer-Gabel, “Les accords conclus en matière de délimitation”, in: Le processus de délimitation maritime. Etude d’un cas fictif, INDEMER (Paris, A. Pedone, 2004), p. 323 et suiv., spécialement pp. 330–331. 22 CIJ Rec. 1984, para. 81, p. 290. Voir également R.D. Hodgson et R.W. Smith, “Boundary Issues Created by Extended and National Maritime Jurisdiction”, The Geographical Review, Oct. 1979, p. 426. 23 CIJ Rec. 1969, para. 93, p. 50. 24 “Les caractéristiques géographiques sont au cœur du processus de délimitation”, sentence arbitrale du 10 juin 1992, Affaire de la délimitation des espaces maritimes entre le Canada et la France, para. 24. 25 Ces intérêts de défense et de sécurité ont été particulièrement pris en considération

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Toutefois, il n’existe pas de relation précise, mathématique entre les facteurs retenus par le juge et la mesure corrélative du déplacement de la ligne d’équidistance. Sur ce terrain, le juge se garde d’être trop disert.

2. La Jurisprudence est Créatrice de Droit La jurisprudence afférente à la délimitation maritime forme un pan quelque peu à part dans la jurisprudence internationale, dans la mesure notamment où elle laisse apparaître – plus que dans d’autres domaines – l’accomplissement par le juge d’une fonction qui déborde sensiblement celle qui lui est normalement dévolue. En effet, le rôle assigné au juge en droit international est d’interpréter la règle de droit ou bien, constatant le droit existant, d’en faire application à l’espèce. L’article 38 paragraphe 1 ne spécifie-t-il pas d’ailleurs que la Cour internationale de Justice a pour mission de trancher les litiges juridiques qui lui sont soumis “conformément au droit international”? Parfois, la Cour s’est expressément refusée d’ailleurs à se reconnaître un rôle créateur.26 Et pourtant, il semble bien qu’en matière de délimitation maritime, le juge ait entendu donner naissance à son propre système de règles. Comment expliquer ce phénomène? Essentiellement par des raisons historiques. Dans les Affaires du plateau continental de la mer du Nord, en effet, la Cour s’est refusée à voir dans l’article 6 de la Convention de Genève de 1958 sur le plateau continental27 une règle de caractère coutumier. Du coup, elle est con-

par la Sentence arbitrale de 1977 dans le litige relatif au plateau continental opposant la France au Royaume Uni. Le Tribunal reconnaît que “Parmi les . . . éléments du régime juridique entrant en ligne de compte figurent les diverses considérations d’équité invoquées par les Parties au sujet de leurs intérêts respectifs en matière de navigation, de défense et de sécurité”, para. 188. 26 “(La Cour) . . . dit le droit existant et ne légifère point. Cela est vrai même si la Cour, en disant et en appliquant le droit, doit nécessairement en préciser la portée et, parfois, en constater l’évolution.” Avis consultatif du 8 juillet 1996 dans l’Affaire de la licéité de la menace ou de l’emploi d’armes nucléaires, CIJ Rec. 1996, para. 18, in fine p. 237. 27 Rappelons les termes du paragraphe 1er de l’article 6 qui règle de la question de la délimitation entre Etats dont les côtes se font face: “Dans le cas où un même plateau continental est adjacent aux territoires de deux ou plusieurs Etats dont les côtes se font face, la délimitation du plateau continental entre ces Etats est déterminée par accord entre ces Etats. A défaut d’accord, et à moins que des circonstances spéciales ne justifient une autre délimitation, celle-ci est constituée par la ligne médiane dont tous les points sont équidistants des points les plus proches des lignes de base à partir desquelles est mesurée la largeur de la mer territoriale de chacun de ces Etats.”


9

trainte de définir les principes juridiques régissant la délimitation du plateau entre deux Etats. Mais, sans doute peu désireuse de susciter de trop vives réactions des Etats, elle présente ces principes comme étant le produit d’un processus coutumier qui s’est développé hors de son action. En revanche, en 1993, à l’occasion de l’Affaire de la délimitation maritime dans la région située entre le Groenland et Jan Mayen (Danemark c. Norvège), elle se montre plus sûre d’elle et reconnaît en ces termes le rôle que le juge a tenu dans la mise en place des ces règles coutumières: Ainsi pour la délimitation du plateau continental . . . même s’il convenait d’appliquer, non l’article 6 de la Convention de 1958, mais le droit coutumier du plateau continental tel qu’il s’est développé dans la jurisprudence . . .28

3. Deux Séries de Règles Apparemment Distinctes Ce troisième élément s’inscrit dans le prolongement du précédent. L’œuvre jurisprudentielle accomplie n’est peut être pas aussi originale qu’il pourrait y paraître. Sur ce point, quelques explications se révèlent nécessaires. Il existe deux séries de règles, distinctes par leur origine, qui régissent la délimitation maritime: • l’une, conventionnelle, qui est la règle “équidistance-circonstances spéciales” valable pour la mer territoriale,29 mais aussi pour le plateau continental;30 • l’autre, élaborée par la jurisprudence, qui s’applique à la zone économique exclusive, au plateau continental et qui s’exprime par la formule: “principes équitables-circonstances pertinentes”.31 Or, ces deux systèmes de règles sont proches l’un de l’autre et s’il y a un grand mérite à reconnaître à la jurisprudence, c’est sans doute – après des tergiversations de départ – d’avoir souligné leur profonde unité, sinon même leur identité. Cette proximité a été tôt remarquée. De façon timide mais clairvoyante, le Tribunal arbitral appelé à se prononcer sur la délimitation du plateau continental entre la République française et le Royaume-Uni de Grande Bretagne et

28

Arrêt du 14 juin 1993, CIJ Rec. 1993, para. 51, p. 61. Article 12 de la Convention de Genève de 1958 sur la mer territoriale et la zone contiguë et article 15 de la Convention dur le droit de la mer de 1982. Les deux textes, d’ailleurs, font mention, à côté des circonstances spéciales de nature à écarter l’application de l’équidistance, l’existence de titres historiques. 30 Article 6 de la Convention de Genève de 1958 sur le plateau continental. 31 Cf. J.-P. Quéneudec, Les principes dégagés par le juge et le rôle des circonstances pertinentes in Le processus de délimitation maritime, op. cit., supra note 21, pp. 279–285. 29

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d’Irlande du Nord notait déjà, dans sa Décision du 30 juin 1977, la parenté existant entre les dispositions de l’article 6 de la Convention de 1958 sur le plateau continental et les principes équitables hérités de la jurisprudence: Les différentes façons dont les exigences des principes équitables ou les effets des circonstances spéciales sont présentées reflètent des différences d’approche et de terminologie plutôt que des différences de fond.32

L’arrêt rendu par la Haute juridiction de La Haye le 14 juin 1993 dans le différend entre le Danemark et la Norvège est encore plus clair: Bien qu’il s’agisse de catégories différentes par leur origine et par leur nom, il y a inévitablement une tendance à l’assimilation des circonstances spéciales de l’article 6 de la Convention de 1958 et des circonstances pertinentes en droit coutumier, ne serait-ce que parce que toutes deux doivent permettre d’atteindre un résultat équitable.33

Cette même idée est reprise de façon récurrente. On la retrouve exprimée dans les arrêts de 2001 dans le différend maritime entre Qatar et Bahrein et de 2002 à propos du litige opposant le Cameroun et le Nigéria. Citons ce passage de l’arrêt rendu par la Cour internationale de Justice à l’occasion du différend maritime entre Qatar et Bahrein: La règle de l’équidistance-circonstances spéciales . . . et la règle des principes équitables-circonstances pertinentes telle qu’elle s’est développée dans la jurisprudence et la pratique des Etats . . . sont étroitement liées l’une à l’autre.34

Observons, de surcroît que cette marche vers l’unification est englobante. Elle ne concerne pas seulement les dispositions de l’article 6 de la Convention de 1958 sur le plateau continental et les règles venues de la jurisprudence relatives au plateau, mais elle concerne plus généralement toutes les délimitations maritimes quelles que soient les zones en cause, qu’il s’agisse de la mer territoriale (article 15 de la Convention du 10 décembre 1982 sur le droit de la mer) ou de la zone économique exclusive, de la zone de pêche ou du plateau continental. Ainsi, le recul dont nous disposons désormais permet de constater la verdeur et la modernité de l’article 6 de la Convention de 1958. Elle permet également de saluer la sagesse des rédacteurs des Conventions de 1958, puisque, après des détours, ce sont des règles similaires à celles qu’ils avaient forgées qui aujourd’hui prévalent, bien que la définition du plateau continental ait profondément changé entre temps. Cette évolution jurisprudentielle est d’autant plus positive qu’il en est résulté clarté et visibilité pour les plaideurs éventuels.

32 33 34

Para. 148. CIJ Rec. 1993, para. 56, p. 62. CIJ, Arrêt du 16 mars 2001, para. 231.


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Malgré tout, quels que soient les progrès réalisés par la jurisprudence et la qualité de celle-ci, l’œuvre entreprise en matière de délimitation n’est pas encore menée à son terme.

II. L’ŒUVRE JURISPRUDENTIELLE N’EST PAS ENCORE ACHEVÉE Elle n’est pas achevée et ceci d’un double point de vue: – Au delà de la démarche suivie et des principes généraux qui ont été rappelés, quelques incertitudes marquent encore la jurisprudence actuelle; – Mais, l’incertitude atteint un degré beaucoup plus élevé encore dans un autre domaine, puisqu’il n’existe pas en la matière de jurisprudence internationale, celui des délimitations maritimes futures qui seront soumises au juge et qui impliqueront des plateaux continentaux s’étendant au delà des 200 milles marins.

1. Une Certaine Volatilité Normative de la Jurisprudence Actuelle Force est de constater que cette jurisprudence comporte des zones d’ombre. Il n’en sera pas fait, dans les développements suivants, un inventaire complet, mais quelques exemples significatifs en seront donnés. • Deux notions voisines, mais non identiques, d’abord, dictent quelques remarques. – La première a trait à ce qu’il est convenu de dénommer la zone pertinente pour la délimitation.35 Les obscurités relatives à cette notion sont de deux ordres: (1) Quant à la détermination de la zone en question: Le juge s’en tient parfois à la volonté des Parties, telle que celle-ci s’est exprimée dans le compromis;36 Parfois, il tient compte de la volonté convergente des Etats en litige, telle qu’elle découle de leurs plaidoiries;37 35

Avec des variations de vocabulaire qui semblent traduire un certain embarras du juge. Il est fait état, en effet, de “zone pertinente pour la délimitation” (CIJ Rec. 1993, para. 20, p. 47), de “zone considérée” (CIJ Rec. 1982, para. 35, p. 42), de “aire de délimitation” (CIJ Rec. 1984, para. 41, p. 272), de “région concernée” (S.A. du 30 juin 1977, para. 2) etc. 36 Ainsi en est-il dans l’Affaire de la délimitation de la frontière maritime dans la région du golfe du Maine, cf. CIJ Rec. 1984, para. 5, p. 253. 37 Cf. CIJ Rec. 1982, para. 35, p. 42. Voir également le litige franco-canadien et la Sentence du 10 juin 1992: “Dans la présente affaire, les deux Parties ont déterminé,

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Mais le juge peut aussi prendre lui même l’initiative de fixer les limites de la zone pertinente afin de mieux tenir compte des intérêts des tiers.38 (2) Quant à l’utilité même de la notion: La seconde obscurité tient, en effet, à la difficulté de savoir (sauf hypothèse d’interférence des droits ou revendications éventuels d’Etats tiers dans la zone) quelle est l’utilité profonde de la fixation de la zone dans laquelle la délimitation doit avoir lieu, notamment à raison de l’existence de la notion voisine, mais plus opératoire, de “côtes pertinentes”. – La deuxième notion pour laquelle le flou prévaut est, en effet, celle de “côtes pertinentes”. A l’évidence, les seules côtes à retenir pour l’opération de délimitation sont celles par le biais desquelles un chevauchement des titres existe. Néanmoins, la réalité de chaque cas rend les choses plus complexes. Il est vrai que le choix des segments de côtes pertinentes est un problème délicat. Il est cependant mal résolu. La jurisprudence y apporte une attention parfois distraite;39 surtout, elle manque de constance dans les quelques indications qu’elle fournit. Il arrive même que l’identification des côtes pertinentes lui apparaisse impossible, comme cela s’est produit dans le différend opposant la Libye et Malte, où le juge est acculé à un constat d’impuissance: Le contexte géographique rend la marge de détermination des côtes pertinentes et des zones pertinentes si large que pratiquement n’importe quelle variante pourrait être retenue.40

En définitive, on peut se demander cependant si – compte tenu de la place désormais occupée par la pratique de la “ligne d’équidistance provisoire” et dans la logique de cette pratique – ne devraient pas être retenus comme seuls pertinents les segments de côtes joignant les points de base sur lesquels s’appuie la construction de la ligne d’équidistance entre deux Etats voisins.41

comme région concernée, la concavité géographique formée par Terre-Neuve et la Nouvelle Ecosse” (para. 26). 38 CIJ Rec. 1985, paras. 20–22, pp. 24–28. 39 A l’exception toutefois de l’Affaire de la délimitation des espaces maritimes entre le Canada et la France dans laquelle les deux Parties ayant déterminé “différemment les côtes qui devraient être considérées comme faisant partie de la zone en litige” (para. 27 de la Sentence du 10 juin 1992), l’attention du Tribunal d’arbitrage s’est longuement attachée à ce point (paras. 27–33). 40 CIJ Rec. 1985, para. 74, p. 53. 41 N’est-ce pas d’ailleurs la démarche qui a été adoptée par la Haute Juridiction de La Haye dans son arrêt rendu en l’Affaire de la frontière terrestre et maritime entre le Cameroun et le Nigéria; Guinée équatoriale intervenant? La Cour considère, en effet, qu’elle doit “déterminer quelles sont les côtes pertinentes des Parties à partir


13

• Le principe de non empiétement demanderait, de son côté, à être “revisitée” afin d’échapper au brouillard qui semble l’entourer. Enoncé pour la première fois en 1969, il s’inscrivait alors harmonieusement dans la logique d’application de la notion d’un plateau continental considéré comme le prolongement naturel du territoire terrestre. En d’autres termes, la ligne de séparation entre les plateaux continentaux des deux parties devait être tracée de telle sorte qu’elle n’empiète pas sur le prolongement naturel du territoire terrestre de l’une d’elles. A cet égard, le passage suivant du dispositif de l’arrêt de la Cour internationale de Justice du 20 février 1969 se révélait particulièrement éclairant: La délimitation doit s’opérer . . . de manière à attribuer, dans toute la mesure du possible, à chaque Partie la totalité des zones du plateau continental qui constituent le prolongement naturel de son territoire sous la mer et n’empiètent pas sur le prolongement naturel du territoire de l’autre.42

Mais, hors l’application de la théorie du prolongement naturel, abandonné par la jurisprudence pour un plateau ne s’étendant pas au delà des 200 milles, que devient le principe? Il est évident, tout d’abord, que toute projection des côtes pertinentes d’un Etat empiète sur la projection des côtes pertinentes de l’autre Etat et entraîne un effet d’amputation. Le phénomène est inhérent à toute délimitation et vaut pour la projection des deux Etats en présence. Cette observation étant faite, le principe signifierait-il que si le titre sur le plateau continental ou la zone économique exclusive (zones de juridiction) d’un Etat chevauche le titre d’un autre Etat sur sa mer territoriale (zone de souveraineté), le second ne devrait pas faire l’objet d’amputation?43 Quoi qu’il en soit, le principe a perdu une bonne part de sa spécificité d’origine et s’est banalisé. Il est plutôt conçu désormais comme devant assurer que la ligne de délimitation choisie n’est pas trop proche de la côte de l’une des Parties. C’est en tout cas la position qui avait été adoptée par Malte dans le litige l’opposant à la Libye.44 C’est également une considération à laquelle le Tribunal, chargé d’arbitrer le différend entre la Guinée et la Guinée-Bissau, s’est montré sensible dans sa sentence du 14 février 1985:

desquelles seront fixés les points de base qui serviront à la construction de la ligne d’équidistance”, Arrêt du 10 octobre 2002, para. 290. 42 CIJ Rec. 1969, para. 101 C. 1, p. 53. 43 Voir N. Marques Antunes, Towards the Conceptualisation of Maritime Delimitation. Legal and Technical Aspects of a Political Process, Publications on Ocean Development, Vol. 42 (Leiden, Martinus Nijhoff Publishers, 2003). 44 Voir en ce sens, l’arrêt de la CIJ du 3 juin 1985, notamment son para. 51 (CIJ Rec. 1985, p. 42).

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Laurent Lucchini Pour faire reposer une délimitation sur une base équitable et objective, il faut autant que possible chercher à assurer à chaque Etat le contrôle des territoires maritimes situés en face de ses côtes et dans leur voisinage.45

En tout cas, la Chambre de la Cour internationale de Justice, dans l’Affaire de la délimitation de la frontière maritime dans la région du golfe du Maine fait preuve de clarté en classant par mi les principes équitables celui . . . recommandant dans la mesure du possible, le non empiétement de la projection en mer de la côte d’un Etat sur des étendues trop proches de la côté d’un autre Etat.

Une question importante mérite d’être posée: l’existence de ces zones grises est-elle le signe indiquant que des progrès sont encore à faire dans l’affinement sur certains points de la jurisprudence ou bien est-elle la rançon de la nécessaire souplesse dont doit pouvoir disposer le juge dans son appréciation d’ensemble de la situation d’espèce? Si cette seconde interprétation n’a pas à être retenue, le juge serait alors bien inspiré d’augmenter la visibilité en apportant plus de lumière sur les points cidessus évoqués, comme sur d’autres d’ailleurs, notamment sur les facteurs de caractère économique.46 Sont-ils pris en considération? Lesquels d’entre eux? Et dans le cas où ils interviennent, quelle influence ont-ils dans l’ajustement ou le déplacement de la ligne provisoire d’équidistance? Autrement dit, la jurisprudence de 1993 est-elle exceptionnelle ou non?47

2. La Délimitation Future par Voie Juridictionnelle de Plateaux Continentaux S’étendant au Delà des 200 milles Combien plus ombreuse encore, parce qu’elle relève de la prospective et d’un registre nouveau, est la question de la délimitation par la voie juridictionnelle internationale de plateaux continentaux se prolongeant au delà des 200 milles marins. 45

Affaire de la délimitation de la frontière maritime (Guinée/Guinée-Bissau), Sentence du 14 février 1985, para. 92. 46 Sur ce point, la jurisprudence est assez fluctuante. Dans l’arrêt qu’elle avait rendu en 1984 dans le litige opposant les Etats Unis au Canada, la Chambre de la Cour internationale de Justice s’était montrée peu favorable à la prise en considération de ces facteurs économiques en tant que circonstance pertinente, sauf à vérifier que la ligne de séparation adoptée n’était pas “susceptible d’entraîner des répercussions catastrophiques pour la subsistance et le développement économique des populations des pays intéressés” (CIJ Rec. 1984, para. 237 in fine, p. 342). 47 Malgré la jurisprudence citée à la note ci-dessus, la Cour, dans son arrêt du 14 juin 1993 fait intervenir ces facteurs (en l’occurrence les ressources en capelan de la zone) comme un élément important dans la détermination de la ligne de délimitation. Voir notamment CIJ Rec. 1993, paras. 73–76.


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On connaît les dispositions de l’article 76 paragraphe 1 de la Convention sur le droit de la mer de 198248 qui s’appuient sur deux titres à la possession de droits sur le plateau continental: • le titre de la distance des 200 milles marins; • le titre du prolongement naturel du territoire terrestre lorsque celui-ci déborde la distance des 200 milles, titre qui peut aller (dans une vision très simplificatrice) jusqu’à 350 milles ou à 100 milles au delà de l’isobathe des 2500 mètres.49 On connaît également l’existence de la Commission des limites du plateau continental, organe scientifique et technique prévu par le paragraphe 8 de l’article 76 et par l’Annexe II de la Convention de 1982.50 Sa tâche est de formuler des recommandations sur les demandes présentées par les Etats au titre du plateau continental excédant les 200 milles. Si l’Etat a seul compétence pour procéder à la fixation définitive des limites de son plateau continental étendu, il doit, en revanche, le faire sur la base des recommandations émises par la Commission.51 Jusqu’à présent, trois demandes ont été présentées à la Commission: celles de la Russie, du Brésil et de l’Australie.

48 L’article 76 stipule dans son paragraphe 1: “le plateau continental d’un Etat côtier comprend les fonds marins et leur sous-sol au delà de sa mer territoriale sur toute l’étendue du prolongement naturel du territoire terrestre de cet Etat jusqu’au rebord externe de la marge continentale, ou jusqu’à 200 mille marins des lignes de base à partir desquelles est mesurée la mer territoriale, lorsque le rebord externe de la marge continentale se trouve à une distance inférieure”. Voir à ce sujet: L. Lucchini, “L’article 76 de la Convention des Nations Unies du 10 décembre 1982 sur le droit de la mer”, in: Le plateau continental étendu aux termes de la Convention des Nations Unies sur le droit de la mer du 10 décembre 1982. Optimisation de la demande, INDEMER (Paris, A. Pedone, 2004), pp. 9–29. 49 Le paragraphe 5 de l’article 76 précise que “Les points fixes qui définissent la ligne marquant sur les fonds marins, la limite extérieure du plateau continental, tracée conformément au paragraphe 4, lettre a), i) et ii), sont situés soit à une distance n’excédant pas 350 milles marins des lignes de base à partir desquelles est mesurée la largeur de la mer territoriale, soit à une distance n’excédant pas 100 milles marins de l’isobathe de 2500 mètres, qui est la ligne reliant les points de 2500 mètres de profondeur”, cf. J.S. Ponroy, “La construction des lignes de formules et de contraintes in Le plateau continental étendu”, in: op. cit., note précédente, pp. 47–55. 50 E. Beigzadeh, “La Commission des limites du plateau continental”, Annuaire du droit de la mer 2000, Tome V (Paris, A. Pedone, 2000), pp. 71–92; A. de MarffyMantuano, “Les travaux de la Commission des limites du plateau continental in Le plateau continental étendu”, in: op. cit., supra note 48, pp. 31–44. 51 Cf. le paragraphe 8 in fine de l’article 76 qui stipule: “La Commission adresse aux Etats côtiers des recommandations sur les questions concernant la fixation des limites extérieures de leur plateau continental. Les limites fixées par un Etat côtier sur la base de ces recommandations sont définitives et de caractère obligatoire.”

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Mais il existe un élément de complication qu’il est important de signaler. Lors de l’examen qu’elle fait des demandes des Etats, la Commission paraîtrait devoir demeurer indifférente aux litiges éventuels de délimitation et se prononcer uniquement au plan scientifique sur le bien-fondé des limites extérieures du plateau continental étendu soumises par les Etats. Ce n’est pourtant pas exactement la position qu’elle a adoptée, puisqu’à l’article 5 de l’Annexe I à son Règlement intérieur, elle indique que: Dans le cas où il existe un différend terrestre ou maritime, la Commission n’examine pas la demande présentée par un Etat partie à ce différend et ne se prononce pas sur cette demande.52

Elle ne se reconnaît le droit de le faire “qu’avec l’accord préalable de tous les Etats parties à ce différend . . .”53 ou que si l’Etat présente une “demande partielle” “portant sur la partie qui n’est pas visée par un différend maritime ou terrestre non réglé avec d’autres Etats.”54 Une question fondamentale doit alors être posée: la jurisprudence internationale, dont les grandes lignes ont été ci-dessus rappelées, est-elle adaptée à une délimitation impliquant un plateau continental élargi?55 Sans doute l’est-elle dans certaines situations géographiques. Elle ne l’est sûrement pas dans tous les cas de figure, notamment dans l’hypothèse suivante: Deux Etats ont des façades maritimes qui se font face. L’un d’eux n’est pas en mesure d’étendre son plateau continental au delà de 200 milles. L’autre, en revanche, dispose d’un titre à un plateau se prolongeant au delà. Et il existe un chevauchement entre ces deux titres.56 Les deux Etats en cause pourront peut-être trouver, dans le cadre des négociations qu’ils mèneront, un accord qui leur convienne et qui leur paraisse à

52

CLCS/L/3 Annexe 1. Ibid. 54 Position prise par la Commission à l’occasion de la demande russe présentée en 2001. Voir R. Meese, “La délimitation du plateau continental au delà des 200 milles”, in: Le plateau continental étendu aux termes de la Convention des Nations Unies sur le droit de la mer du 10 décembre 1982. Optimisation de la demande, INDEMER (Paris, A. Pedone, 2004), pp. 181–229, notamment pp. 198 et suiv. 55 Si aucune décision internationale n’a été rendue sur un cas de délimitation mettant en cause un plateau continental dépassant les 200 milles, en revanche, une sentence du 26 mars 2002 a été prononcée par un Tribunal arbitral canadien à propos d’un litige opposant deux Provinces canadiennes: celle de Terre-Neuve et du Labrador et celle de la Nouvelle-Ecosse. 56 On peut remarquer qu’en cas de délimitation entre deux Etats dont les côtes se font face, la pratique bien répandue du tracé d’une ligne unique valant tant pour le plateau que pour la zone économique exclusive ne pourra être mise en œuvre, si l’un au moins des plateaux dépasse les 200 milles. 53


17

tous deux équitable. Ainsi sept accords de délimitation ont d’ores et déjà été conclus.57 Mais, à supposer l’entente directe impossible, quelles règles pourraient-elles être mises en œuvre par la juridiction saisie. Dans le cas envisagé, l’appui si commode du tracé d’une ligne provisoire d’équidistance ne peut, à l’évidence, recevoir application. Dans ces conditions, on fait face à toute une série d’interrogations: • Doit-on – à la recherche d’une ligne-frontière – pénaliser, dans un souci d’équité, l’Etat au plateau continental élargi et privilégier, au contraire, celui au plateau continental insusceptible de dépasser les 200 milles. Doit-on considérer, par exemple, que les droits des Etats perdent de leur intensité au fur et à mesure que l’on s’éloigne des côtes et que l’on touche à ce qui serait – à défaut d’emprise étatique – le patrimoine commun de l’humanité? Mais alors, que dire d’une telle conception qui tend à introduire une discrimination entre les deux titres retenus par l’article 76 paragraphe 1, celui de la distance et celui du prolongement naturel, alors que le texte même de cette disposition ainsi que la jurisprudence semblent bien les placer sur un pied d’égalité.58 • Peut-on, si l’on ne dispose pas de base plus solide, s’en tenir uniquement à la prise en considération des circonstances pertinentes de l’espèce en vue de parvenir à une frontière équitablement tracée? De plus, ces circonstances pertinentes sont-elles celles habituellement rencontrées, ou bien d’autres viendront-elle s’ajouter? Devrait-on assister à un enrichissement de la catégorie de ces circonstances? Par exemple, certaines d’entre elles pourraient-elles être en relation avec la structure géologique ou géomorphologique des fonds, notamment en tenant compte de la configuration du pied du talus? On peut craindre, cependant, qu’une telle solution centrée sur la prise en considération des seules circonstances pertinentes, ne fasse de nouveau surgir le spectre de la subjectivité du juge, de ce que le juge Gros disait être “l’équivalent d’un pouvoir discrétionnaire”.59

57

Sur six de ces accords, voir R. Meese, op. cit., supra note 54, pp. 186–192. Dans son arrêt du 3 juin 1985, la Cour internationale de Justice déclare: “. . . Les notions de prolongement naturel et de distance ne sont pas des notions opposées mais complémentaires, qui demeurent l’une et l’autre des éléments essentiels de la conception juridique du plateau continental”, CIJ Rec. 1985, para. 34, p. 33. 59 Et le juge Gros ajoute: “Je doute que la justice internationale résiste à une équité ayant pour mesure l’œil du juge”, CIJ Rec. 1984, opinion dissidente du juge Gros, para. 41, p. 386. 58

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Laurent Lucchini

• Doit-on partager par moitié la zone de chevauchement? Mais alors, quels sont les principes juridiques propres à étayer cette solution? N’est-on pas là en présence d’un partage commode, mais peu fondé en droit? Autant de questions qui, pour l’instant, demeurent sans réponse. Soyons sûrs que le juge trouvera le moment venu la solution. Deux considérations de nature différente peuvent être formulées au terme de cette intervention. (1) Incontestablement, le juge est parvenu à donner une cohérence d’ensemble à un processus de délimitation plus lisible, mieux balisé. Il paraît hautement souhaitable qu’emporté par son énergie cinétique, il parvienne à éliminer progressivement de sa jurisprudence actuelle les zones grises qui y demeurent encore. Evidemment, une marge de manœuvre appréciable est nécessaire au juge dans sa recherche d’une solution, notamment celle requise pour la détermination des circonstances pertinentes propres au cas et leur impact. En revanche, certains concepts gagneraient dans l’intérêt des Etats à être plus précisément définis. On pense spécialement à celui de côtes pertinentes. (2) Un mot, enfin, sur la relation entre le Tribunal international du droit de la mer et la délimitation maritime. Inexistante à l’heure actuelle, on ne peut qu’espérer qu’elle se développe dans un avenir aussi proche que possible. Est parfois exprimée l’idée selon laquelle le Tribunal de Hambourg a, en ce domaine, des années de retard sur la Cour internationale de Justice et on ajoute que, s’il était saisi d’une affaire de ce genre, il risquerait d’élaborer une jurisprudence différente de celle existant actuellement, facteur qui serait de nature à ranimer la confusion. De telles idées paraissent dépourvues de pertinence. Comment imaginer, en effet, que le Tribunal entende bouleverser – lui qui remplit une fonction pacifiante au profit des Etats – la jurisprudence actuelle? En revanche, de par sa spécialisation, de par son expertise en droit de la mer, de par son regard nouveau et compétent, son apport pourrait être capital à la fois en affinant la jurisprudence classique des délimitations sur les points où elle en a besoin, et en dessinant certaines perspectives pour les délimitations des plateaux continentaux au delà des 200 milles. Confiance peut donc être faite à son discernement, confiance également à son imagination, puisque – si l’on en croit Giraudoux – l’imagination des juristes dépasse celle des poètes.

The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf Rüdiger Wolfrum* I. INTRODUCTION Assessing the role of international dispute settlement institutions in the delimitation of the outer continental shelf makes it necessary to distinguish between three different scenarios namely: First, the establishment by a coastal state of the outer limits of its continental shelf on the basis of the recommendations of the Commission on the Limits of the Continental Shelf (Commission), second, the establishment of these limits not being based upon a respective recommendation of the Commission and third, those limits having been established without the coastal State concerned having consulted the Commission at all. It is the first scenario which is discussed controversially in literature,1 the

* President of the International Tribunal for the Law of the Sea. 1 E.D. Brown, Sea-bed Energy and Mineral Resources and the Law of the Sea: The Areas Within National Jurisdiction (London, Graham & Trotman, 1984), 1.4.15–16, argues that it was impossible to reach a consensus at the Third UN Law of the Sea Conference on how Art. 76 of the Convention and the dispute settlement provisions were to interrelate. R.W. Smith, G. Taft, “Legal Aspects of the Continental Shelf”, in:


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legislative history of the respective provisions of the Convention on the Law of the Sea being inconclusive whether in this case there is still room for judicial dispute settlement. The provision causing such divergence of views stems from the wording of the last sentence of Article 76, paragraph 8, of the Convention on the Law of the Sea (Convention) according to which “The limits of the shelf established by a coastal State on the basis of these recommendations [of the Commission] shall be final and binding.” To establish whether the recommendations of the Commission or decisions of a State based thereupon may be challenged before a dispute settlement institution under Part XV of the Convention makes it necessary to deal with several issues. First, it is necessary to assess the functions the Commission exercises in respect to a coastal State having submitted its data concerning the outer limits of its continental shelf as well as in respect to other States which, in one way or the other may be affected by the establishment of the limits of this particular outer continental shelf. To be more concrete, it is necessary to establish whether the Commission exercises judicial or quasi-judicial functions which may exclude third party dispute settlement. A second issue is as to whether Articles 297 and 298 of the Convention contain limitations or exceptions concerning the jurisdiction of a judicial dispute settlement institution under Part XV of the Convention. A third issue which has to be answered on the basis of international law in general rather than on the basis of the Convention on the Law of the Sea is whether a State, an international organization or another entity may have standing concerning the establishment of the outer limits of a particular continental shelf. As far as the two other scenarios referred to above are concerned only the two latter issues are of relevance. The three issues will be dealt with in the order as indicated.

P.J. Cook, C.M. Carleton (eds.), Continental Shelf Limits: Scientific and Legal Interface (Oxford/New York, Oxford University Press, 2000), pp. 17–24, at p. 20, argue instead that “the Conference negotiators opted . . . to exclude establishment of the outer limit of the continental shelf from compulsory and binding third-party dispute settlement procedures . . .”. On the whole issue see also A.G. Oude Elferink, “The Continental Shelf Beyond 200 Nautical Miles: The Relationship Between the CLCS and Third Party Dispute Settlement”, in: A.G. Oude Elferink, D.R. Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Leiden/ Boston, Martinus Nijhoff Publishers, 2004), pp. 107–123; on the first application submitted to the Commission, namely the one of Russia, see A. de Marffy Mantuano, “La fixation des dernières limites maritimes: Le rôle de la Commission des Limites du Plateau Continental“, in: La Mer et son Droit: Mélanges Offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Paris, A. Pedone, 2003), pp. 399–419.

The Role of International Dispute Settlement Institutions

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II. THE ROLE OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF The purpose of the Commission is to facilitate the provisions of the Convention on the Law of the Sea in respect of the establishment of the outer limits of the continental shelf.2 Its establishment was a necessary element of bridging the gap between the aspirations of those States which considered the establishment of the outer limits of their continental shelves as part of their sovereignty and of those which wanted to limit a further seaward extension of national claims to the detriment of an internationally administered seabed area.3 The latter view prevailed, at least in principle, although it may be difficult to establish the exact outer limits of the continental shelf under national jurisdiction.4 The role of dispute settlement mechanisms concerning the delimitation of the outer continental shelf are less limited as occasionally suggested. Although neither the Commission on the Limits of the Continental Shelf nor the International Seabed Authority may initiate proceedings against a delimitation established by a coastal State nor a coastal State may challenge recommendations of the Commission before judicial dispute settlement mechanisms under Part XV of the Convention, the role of third States in this respect is less limited than originally felt. States may in respect of a delimitation decision taken by a coastal State claim that the rights or interests as a State with an adjacent or opposite coast have been infringed. Further, States may invoke, thus acting also on behalf of the international community that a particular delimitation was either not based upon a recommendation of the Commission on the Limits of the Continental Shelf or was an unjustified encroachment upon the Area. Article 76, paragraph 8, last sentence, of the Convention does not constitute an absolute bar against initiating respective proceedings before the judicial dispute settlement mechanisms under Part XV of the Convention. One issue which may be subject of judicial interpretation is the formula for the determination of the outer limits of the continental shelf under national jurisdiction. This formula combines findings and the terminology of geography, geology and geomorphology. This provision faces a dilemma which is not uncommon in modern national and international legal texts. It contains to the extent it, for example, refers to “the plateaux, rises, caps banks and spurs” a non-legal terminology 2

The functions of the Commission are set out in Art. 3 of Annex II to the Convention; see on this the Report of the ILA Berlin Conference (2004), Legal Issues of the Outer Continental Shelf, available at: http://www.ila-hq.org/pdf/Outer%20Con%20 Shelf/Berlin%20Report%202004.pdf (at pp. 2–4). 3 See A. de Marffy Mantuano on the genesis of the Commission, op. cit., supra note 1, at pp. 400–403. 4 T.L. McDorman, “The Role of the Commission on the Limits on the Continental Self: A Technical Body in a Political World”, 17 The International Journal of Marine and Coastal Law, 2002, pp. 301–324.

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which by having been included in a legal text changes its nature accordingly. In fact, the same words may, at least in theory, become the subject of an interpretation5 provided by an institution for judicial settlement and, accordingly, the interpretation rendered by the Commission may compete with the one of such judicial settlement institution. This interrelation of non-legal terms with a meaning of their own and which may change in accordance with further scientific findings is dealt with in depth by the contribution of Doliver Nelson to the Liber Amicorum of Judge Shigeru Oda.6 The Commission is an organ which has been assigned specific functions. Its main function is to make an independent evaluation of the submissions of coastal States in respect of the outer limits of a continental shelf. According to Article 76, paragraph 8, of the Convention coastal States are under the obligation “. . . to submit information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breath of the territorial sea is measured to the Commission.”7 Which data and other material the Commission considers to be of relevance has been specified in its Modus Operandi for the consideration of a submission made to the Commission on the Limits of the Continental Shelf since 2004 attached to the Rules of Procedure.8 The examination of the date and information provided by the coastal State concerned by the Commission proceeds from the fact that the establishment of the outer limit of the continental shelf rests – within the limits of Article 76 of the Convention – in the competence of the coastal State concerned. Accordingly the methodology and the data employed by the State to determine either the location of the foot of the continental slope or the formula line at a distance of 60 nautical miles from the foot of the continental slope or the data and methodology to determine the formula line delineated by reference to the outermost fixed points at each of which the thickness of rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope are evalu-

5 The Permanent Court of International Justice has stated in the Chorzów Factory Case (PCIJ, Series A, Judgments No. 11, p. 10) that interpretation must be understood as meaning ‘to give a precise definition of the meaning and scope’ of a legal instrument. 6 See L.D.M. Nelson, “The Continental Shelf: Interplay of Law and Science”, in: N. Ando, E. McWhinney, R. Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda (The Hague/London/Boston, Kluwer Law International, 2002), pp. 1235–1253. 7 Annex II to the Convention provides that a State has to make its submission as soon as possible but in any case within 10 years of the entry into force of the Convention for that State (Art. 4, Annex II, Convention). The 10-year limit has been relaxed by a decision of the Meeting of States Parties to the Convention of 29 May 2001. The decision provides that for States for which the Convention entered into force before 13 May 1999, the 10-year period shall be taken to have commenced on that date. It was further decided to keep the general ability of States to fulfil the requirements of Art. 4 of Annex II under review, (SPLOS/72 of 29 May 200, paras. (a) and (b)). 8 UN Doc. CLCS/40, 2 July 2004.


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ated. Equally the methodology and formula used by the coastal State to satisfy the other requirements for establishing the outer limits of the continental shelf are scrutinized. The Commission mainly seems to assess how the coastal State concerned established the outer limits of its continental shelf. Although the Commission may seek external advice it is not meant to replace the judgment of the coastal State by its own. It instead tries, without infringing upon the sovereign rights of a State in this respect, to direct the State to come to a delimitation of the outer continental shelf which conforms to Article 76 of the Convention. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of the continental shelf beyond 200 nautical miles. This wording has been chosen carefully. It means that the Commission should comment upon the process which the coastal State concerned has applied to establish the outer limits rather than on the limit itself in an isolated fashion. The recommendations of the Commission shall not prejudice matters relating to the delimitation of boundaries between States with opposite or adjacent coasts. The Rules of Procedure of the Commission9 provide for the possibility of the coastal State concerned only to establish the outer limits of a portion of its continental shelf or for a joint or separate submissions of several states. If the conflict cannot be overcome trough one of such procedure the Commission will refrain from making recommendations; the conflicting claims have to be solved by the parties first. According to Article 76, paragraph 8, of the Convention, a coastal State shall establish the outer limits of its continental shelf where it extends beyond 200 nautical miles on the basis of the recommendations of the Commission. Where a submitting State is in “disagreement” with the recommendations of the Commission, the State is to make a revised or new submission to the Commission. In theory this process may continue indefinitely.10 According to Article 76, paragraph 8, of the Convention, the limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding. Besides making recommendations to coastal States on the establishment of the outer limits of their continental shelf the Commission may provide

9

See Annex I (Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes) of the Rules of Procedure of the Commission on the Limits of the Continental Shelf, CLCS/40, 2 July 2004, which are (with further Documents of the Commission) available on the website http://www.un.org/Depts/los/clcs_new/clcs_home.htm (last updated 25 May 2005). 10 R.W. Smith, op. cit., supra note 1, at p. 20; T.L. McDorman, op. cit., supra note 4, at p. 306; A.G. Oude Elferink, op. cit., supra note 1, at p. 113, expects that even after the first revision a stalemate will emerge between the Commission and the coastal State concerned.

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scientific and technical advice, if requested by the coastal State concerned during the preparation of the relevant data.11 A competence not referred to in the Convention on the Law of the Sea which, nevertheless, is being fulfilled by the Commission is the interpretation, or at least giving guidance, to the interpretation of Article 76 of the Convention.12 The Commission is composed of an elected group of 21 technical specialists in the field of geology, geophysics or hydrography. They are elected by the States Parties to the Convention from among their nationals having due regard to the need to ensure equitable geographical representation. In spite of the possibility that the Commission may disagree with the findings of the coastal State with regard to the outer limits of its continental shelf it transpires from the Rules of Procedure of the Commission that its working method is non-adversarial.13 The Commission carries out its ‘consideration’ of the data of a submitting State in a collaborative manner; the respective State may be represented at that meeting although without the right to vote. In particular the potential counterpart to any national claim which unavoidably decreases the scope of the international seabed area, the International Seabed Authority, has no role in the deliberations of the Commission. This is, considering that the International Seabed Authority acts on behalf of mankind as a whole, hardly convincing. The whole procedure employed by the Commission and in particular the fact that its findings are of a recommendatory nature speak against any attempt to qualify the Commission as a judicial or quasi-judicial body. Those who, nevertheless, argue that against the establishment of the outer limits of a continental shelf on the basis of the recommendations of the Commission there is no recourse to judicial settlement under Part XV of the Convention base their arguments upon the wording of the last sentence of paragraph 8 of Article 76 of the Convention already referred to according to which such limits shall be final and binding. If the words ‘final and bind’ are understood as being final and binding for all States Parties to the Convention this would, so it has been argued, exclude any judicial challenge including recourse to judicial dispute settlement against such delimitation.14 Although this interpretation is the only one which reflects fully the wording of Article 76, paragraph 8, last sentence, of the Convention and equally conforms to object and purpose of the procedure established under Article 76 of the Convention, it cannot be construed so as to

11

Annex II, Art. 3, para. 1 (b). Referred to by L.D.M. Nelson, op. cit., supra note 6, at p. 1240. 13 Rules of Procedure, op. cit., supra note 8, Rule 52; Modus operandi, para. 15. 14 This seems to be the position of the United States, see T.L. McDorman, op. cit., supra note 4, at p. 314; United Nations Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea: Definition of the Continental Shelf, 1993, p. 29. 12


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already exclude recourse to a judicial dispute settlement procedure. It remains possible to challenge that the actual delimitation is based upon the recommendation of the Commission.15 The Commission, though, – and this is definitely a flaw in the procedure – cannot challenge such a delimitation nor can it initiate a legal action against such delimitation under Part XV of the Convention. The compulsory dispute settlement mechanisms of the Convention are not open to the Commission. These procedures are open for States and for other entities specifically provided for in the Convention. No provision is made for the Commission in this respect.16 For the same reason it is impossible for a coastal State to challenge a recommendation of the Commission by having recourse to a dispute settlement procedure under Part XV of the Convention. The only option a coastal State has in case it disagrees with a recommendation of the Commission is to make a revised submission or to disregard the recommendation of the Commission. In the latter case the delimitation cannot be considered final and binding, though. The Secretary General of the United Nations who acts as a “depositary” concerning the charts on the outer limit of the continental shelf would be unable to accept them and to give them the publicity as provided for under Article 76, paragraph 9, of the Convention. This seems to be the only remedy against coastal States attempting to establish the outer limits of their continental shelves against the respective recommendation of the Commission. This remedy should not be underrated, though. The fact that the Secretary General refuses to publicize the charts and other information on the outer limits of a particular continental shelf flag to the community of States that such limits were established contrary to the procedure provided for in the Convention on the Law of the Sea. This will certainly diminish the acceptability of such limits; they may be challenged in practice and to undertake or license economic activities on such part of the shelf may be difficult in practice.

III. RESTRICTIONS AND EXCEPTIONS UNDER ARTICLES 297 AND 298 OF THE CONVENTION Part XV of the Convention on the Law of the Sea provides that any dispute concerning the interpretation and application of the Convention can be submitted at the request of any party to the dispute to compulsory dispute settlement.

15 T.A. Clingan (ed.), The Law of the Sea: What Lies Ahead? Proceedings of the 20th Annual Conference of the Law of the Sea Institute 21–24 July 1986, Miami, Florida (Honolulu, Law of the Sea Institute, 1988), at p. 497. 16 See L.D.M. Nelson, op. cit., supra note 6, at p. 1239; A.G. Oude Elferink, op. cit., supra note 1, at p. 116.

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Articles 297 and 298 of the Convention establish certain limitations on and exceptions to the applicability of compulsory dispute settlement procedures, the ones under Article 298 of the Convention being of an optional nature. Disputes concerning the interpretation or application of Articles 15, 74 and 83 of the Convention relating to sea boundary delimitation are covered by Article 298, paragraph 1 (a), of the Convention. According to that provision, States may declare that they do not accept the compulsory dispute settlement procedures as set out in section 2 of Part XV of the Convention in respect to such disputes. Only few States have, so far, made use of this possibility. For the purpose of the presentation it is worth noting that neither Article 297 nor Article 298 of the Convention make a reference to Article 76 of the Convention, or, for that matter, any other provision of the Convention on the outer limits of maritime zones.17 Thus the limits and exceptions which are an integral part of the dispute settlement system of the Convention on the Law of the Sea do not exclude having judicial recourse against the delimitation of the outer limit of a continental shelf even if such delimitation was established following the procedure as set out by Article 76 of the Convention. Given the restrictions referred to it is to be concluded from the lack of reference to Article 76 of the Convention that the drafters of the Convention did not intend to exclude a priori disputes arising from such delimitation from the compulsory dispute settlement system. Since the action of the Commission is only of a recommendatory nature and only addressed to a specific coastal State, such recommendation cannot be the subject of a legal dispute initiated by a plaintiff other than the coastal Sate concerned. It has already been pointed out that the coastal State to whom the recommendation is addressed equally has no possibility to challenge such recommendation since the Commission has not been given standing before the dispute settlement mechanisms under Part XV of the Convention.18 This leaves only the delimitation of the outer continental shelf as established by the coastal State as an issue for a legal dispute. It may be argued that such delimitation was not based upon the recommendation of the Commission. This would clearly constitute a legal dispute – namely ‘a disagreement on a point of law or fact, a conflict of legal views or interests between parties’.19 17

This argument has been highlighted by the ILA Report, op. cit., supra note 2, at

p. 8. 18

The ILA Report discusses the possibility of an agreement between the Commission and a State Party to confer jurisdiction on the Tribunal for the Law of the Sea under Art. 20 of Annex IV to the Convention, op. cit., supra note 2, at p. 9. The reasoning does not seem fully convincing. The decisive issue is that the decisions of the Commission are of a recommendatory nature. 19 See the definition which is well established in international jurisprudence in: Case concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, I.C.J. Reports 1995, pp. 99–100, para. 22.


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However, the respective dispute settlement mechanism would in this case have to deal with the assessment of the Commission concerning the methodology used by the coastal State concerned. It would be an act of prudential jurisprudence not to duplicate the assessment made by the Commission but to restrict its findings on the one central question, namely as to whether the actual delimitation was in conformity with the recommendations of the Commission. The question remains which entity could possibly initiate the respective proceedings. In case the delimitation of the outer continental shelf was established by the coastal State against the recommendation of the Commission or without consulting it the question whether legal action may be brought against such delimitation is an identical one. The question is who has standing in this respect; it has already been indicated that the Commission has not.

IV. WHO HAS STANDING TO INITIATE PROCEEDINGS AGAINST THE DELIMITATION OF THE OUTER CONTINENTAL SHELF BY A COASTAL STATE? The majority of authors seem to argue that no entity would have standing to initiate judicial proceedings against the delimitation of the outer continental shelf by a coastal State.20 The most recent writings on that issue indicate that such a step would serve to protect the collective interest in the Area and would amount to an actio popularis not yet accepted under public international law.21 It is questionable whether this argument can prevail concerning every legal dispute which may arise out of the delimitation of the outer continental shelf. A differentiation is called for. As envisaged even by the Rules of Procedure of the Commission, a delimitation of the outer continental shelf may, in fact, infringe upon the rights or claims of States with adjacent or opposite coasts. In such a case these States undoubtedly may initiate legal action against the establishment of the outer limits of a continental shelf whether or not the outer limits were based upon a recommendation of the Commission or not. Such States with adjacent or opposite coasts and claiming the infringements of their rights would have standing – at least to the extent they are claiming the violation of their rights – before the dispute mechanisms under Part XV of the Convention if they are Parties to the Convention or have agreed with the coastal State concerned to submit the

20

S. Karagiannis, “Observations sur la Commission des Limites du Plateau Continental”, 8 Espaces et Ressources Maritimes, 1994, pp. 163–194, at p. 189; E.D. Brown, op. cit., supra note 1; R.W. Smith, op. cit., supra note 1. 21 L.D.M. Nelson, op. cit., supra note 6, at pp. 1251–1252.

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respective claim to compulsory dispute settlement in accordance with Part XV of the Convention. The wording of Article 76, paragraph 8, of the Convention does not exclude such possibility even if the delimitation established by the coastal State is based upon the recommendation of the Commission. It has already been stated that the delimitation of the outer continental shelf which has to be considered as being final and binding cannot mean to exclude legal actions that the delimitation is in fact not based upon the respective recommendation of the Commission. Equally it cannot exclude any legal action of a State on the basis that such delimitation infringes upon the rights of States with adjacent or opposite coasts. The procedure applied by the Commission in particular in comparison with the rules on intervention in legal proceedings is indicative in this respect. The procedure applied by the Commission does not give States with adjacent or opposite coasts sufficient procedural guarantees to defend their position which could possibly justify any exemption of such disputes from the compulsory dispute settlement mechanisms under Part XV of the Convention. Apart from the fact that the Commission is not a judicial body and does not have the power to take binding decisions vis-à-vis the applicant coastal State, let alone other States, the whole procedure before the Commission lacks the equivalent of Annex VI, Article 31 of the Convention – the right to intervene. To read Article 76, paragraph 8, last sentence, of the Convention to exclude such legal action would give the coastal State together with the Commission the same power as the Law of the Sea Tribunal having granted to another State to intervene into the proceedings in accordance with Annex VI Article 31, paragraph 2, of the Convention. This leaves the question who may bring action against the establishment of the outer limits of a continental shelf claiming that such delimitation unjustifiably curtails the scope of the international deep seabed area. The drafter of the Convention did not give the International Seabed Authority any competence in this respect22 although this would have been the logical choice. It is the function of the International Seabed Authority to organize and control activities in the Area; this does not encompass the competence to mount a legal action with respect to any dispute pertaining to the outer limits of a national continental shelf or the outer limits of the Area. On the same reasons it is even questionable whether the International Seabed Authority may request an advisory opinion to that extent from the Seabed Disputes Chamber.23 Since, however, the jurisdiction of the Seabed Disputes Chamber is confined to

22 L.D.M. Nelson, op. cit., supra note 6, at p. 1251; ILA Report, op. cit., supra note 2, at p. 9. 23 See Arts. 191 and 151, para. 10, of the Convention.


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disputes with respect to activities in the Area – thus reflecting the competencies of the International Seabed Authority – it will be most likely beyond the competence of that body to give an advisory opinion on the establishment of the limits of an outer continental shelf. The only question remaining is whether States without being able to argue that their rights and claims as neighbors have been infringed may bring a case against a particular delimitation of an outer continental shelf claiming an unjustified infringement upon the Area. So far existing jurisprudence seems to speak against such actio popularis. The International Court of Justice in 1966 has clearly expressed its reluctance to accept such approach.24 In the Case concerning the Delimitation of Maritime Areas between Canada and France, the Court of Arbitration in its Judgment o 10 June 199225 declined to address the delimitation of the continental shelf beyond 200 nautical miles. As one of the reasons to do so it observed that such pronouncement would have not only concerned the parties to the dispute but also international organs entrusted with the administration and protection of the Area which was not represented in the proceedings.26 In essence the Court of Arbitration considered that it was not competent to establish a delimitation which affected the rights of an entity which was not before it.27 In this context the Court referred to the Commission on the Limits of the Continental Shelf and the procedure set out in Article 76 of the Convention and stated that “. . . only ‘the limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding’ . . .”. This seems to indicate that according to the view of this judgment the outer limits of the continental shelf can only be established under the procedure of Article 76 of the Convention. This judgment is open for criticism since it does not take into consideration that the International Seabed Authority does not have a mandate concerning the delimitation of the Area and for that reason is not represented at the deliberations of the Commission. Apart from that it would be doubtful why the respective coastal State, if the establishment of the delimitation is made on the basis of the recommendation of the Commission, may pronounce an decision which is final and binding whereas a Court or Tribunal may not. As far as the issue under consideration is concerned it has to be noted that the Court gives no indication whether such delimitation decision of a coastal State may be challenged before a dispute settlement mechanism.

24

I.C.J. Reports 1966, para. 88 at p. 47. 31 International Legal Materials, 1992, p. 1149 et seq. 26 On this aspect of the arbitration see L.D.M. Nelson, “Claims to the Continental Shelf Beyond the 200-mile Limit”, in: V. Götz, P. Selmer, R. Wolfrum (eds.), Liber amicorum Günther Jaenicke – Zum 85. Geburtstag (Berlin, Springer, 1998), pp. 573–588, at pp. 573–574. 27 31 International Legal Materials, 1992, p. 1772, at paras. 78 and 79. 25

30

Rüdiger Wolfrum

In this context it is, finally, worth mentioning that an Arbitration Tribunal between Newfoundland and Labrador and Nova Scotia concerning Portions of the Limits of their Offshore Areas took a different position and provided for delimitation beyond 200 nautical miles from the coast.28 However, one should not overemphasize the relevance of this judgment for the question at hand since this Tribunal had a particular mandate.29 Since the International Seabed Authority has neither the competence nor the standing to defend the interests of the international community concerning the scope of the Area it seems difficult to avoid taking a position whether individual States may act on behalf of the international community in this respect. International law has undergone significant changes as far as the recognition of community interests are concerned. That the common heritage principle qualifies as such and that there is an established interest of the international community in the Area and its utilization for mankind as a whole is beyond question. It is not but a logical step that States may take action to protect established interests of the international community otherwise such community interests would be – legally speaking – nothing but empty shells. The articles developed by the International Law Commission and adopted by the UN General Assembly on State Responsibility point into this direction. According to Article 48, paragraph 1 (b) of the Articles on State Responsibility, a State may invoke the responsibility of another State if “. . . (b) the obligation breached is owed to the international community as a whole . . .”. If such words are not meaningless this includes the initiation of proceedings for a judicial settlement.30 It is beyond doubt that the delimitation of the outer limits of the continental shelf is a sovereign right of the respective State. Nevertheless, delimitation faces restrictions as enshrined in Article 76 of the Convention. To strife for an excessive extension, which means an extension disregarding the procedure as well as the standards of Article 76 would not only be in violation of this provi-

28 For a brief summary of the Arbitral Award of the Tribunal from 26 March 2002 in the Second Phase of the Case Concerning the Delimitation of Portions of the Offshore Areas between the Province of Nova Scotia and the Province of Newfoundland and Labrador see International Law in Brief, 3 July 2003, Developments in international law, prepared by the Editorial Staff of International Legal Materials, The American Society of International Law, available at: http://www.asil.org/ilib/ilib0612.htm. 29 For further details see A.G. Oude Elferink, op. cit., supra note 1, at pp. 117–118. 30 J. Crawford states on this provision: “Under paragraph (1) (b), States other than injured States may invoke responsibility if the obligation was owed ‘to the international community as a whole’. The provision intends to give effect to the International Court’s statement in the Barcelona Traction case, where the Court drew ‘an essential distinction’ between obligations owed to particular States and those ‘towards the international community as a whole’.” See J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002).


31

sion but, at the same time, infringe upon the established interests of the international community. Apart from that individual States or entities sponsored by them may, in accordance with Part XI of the Convention, engage in deep seabed mining activities. Limiting the scope of the Area inevitably means limiting the potential economic use by States. Thus, States, in defending the scope of the Area in the interest of the international community, may also act in their own interest. This aspect should ameliorate the concerns of those which hesitate to open the international dispute settlement system to what is considered the equivalent of an actio popularis. Whether the respective Courts and Tribunals will be faced with a respective case and whether they will follow such an approach remains to be seen.

V. CONCLUSIONS The role of dispute settlement mechanisms concerning the delimitation of the outer continental shelf is less limited as occasionally suggested. Although neither the Commission on the Limits of the Continental Shelf nor the International Seabed Authority may initiate proceedings against a delimitation established by a coastal State nor a coastal State may challenge recommendations of the Commission before judicial dispute settlement mechanisms under Part XV of the Convention, the role of third States in this respect is less limited than originally felt. States may in respect of a delimitation decision taken by a coastal State claim that the rights or interests as a State with an adjacent or opposite coast have been infringed. Further, States may invoke, thus acting also on behalf of the international community, that a particular delimitation was either not based upon a recommendation of the Commission on the Limits of the Continental Shelf or was an unjustified encroachment upon the Area. Article 76, paragraph 8, last sentence, of the Convention does not constitute an absolute bar against initiating respective proceedings before the judicial dispute settlement mechanisms under Part XV of the Convention. Faced with such a case the institutions for the settlement of disputes will, however, have to exercise restraint not to infringe upon the functions of the Commission which is based upon a technical expertise which these institutions do not have at their disposal. Apart from that and perhaps even more prominently, the Commission in assessing the scientific and technical data submitted by the coastal State concerned exercises some discretion which must not be replaced by the Court or Tribunal seized with a dispute concerning the interpretation or application of Article 76 of the Convention.31

31 This argument has been emphasized by the ILA Report, op. cit., supra note 2, at p. 11 et seq.

Provisional Measures and Interventions in Maritime Delimitation Disputes Santiago Torres Bernárdez* 1. INTRODUCTION 1. During the second part of the XX century, the law of the sea underwent a series of successive changes enshrined, first, in the 1958 Geneva Conventions on the law of the Sea and, then, in the single 1982 United Nations Convention on the Law of the Sea (LOS Convention). As a result, the traditional legal dual régime of the seas, characterised by the distinction between territorial sea and high seas, was replaced by a plural system which, inter alia, encompasses, together with an extension of the traditional breadth of the territorial sea, the recognition of new coastal States’ jurisdictions in marine and/or submarine spaces formerly belonging to the high seas. 2. This development explains why maritime delimitation has acquired in contemporary international relations a dimension that it has lacked in the past, as revealed by a mere comparison of the case law of the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) respectively. Between 1920 and 1946, a single maritime delimitation case was submitted to the PCIJ, namely the Delimitation of the Territorial Waters between the Island of Castellorizo and the Coast of Anatolia which, besides,

* Member of the Institute of International Law.


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Santiago Torres Bernárdez

was discontinued promptly.1 In contrast, since the 1959 Geneva Conventions, no less than thirteen maritime delimitation disputes have been submitted, before and after the entry into force of the LOS Convention, to the ICJ and several others to ad hoc arbitration. 3. This development of judicial and arbitration jurisprudence reveals also that the delimitation between States with opposite or adjacent coasts of the various maritime spaces susceptible of being subject to some kind of national jurisdiction may give rise to maritime delimitation disputes which are not always possible to overcome by negotiations followed by the conclusion of delimitation agreements. In such situations, the recourse to a third in order to settle peacefully the conflict resulting from the overlapping of rights or claims of the parties is not only the logic alternative but also the procedural solution provided for by the material law of the sea (see, for example, Articles 74 and 83 of the LOS Convention).

2. THE SETTLEMENT OF MARITIME DELIMITATION DISPUTES BY A THIRD 4. Maritime delimitation disputes between States do not involve generally the definition of the confines or outer-limits of the space or spaces concerned, a matter decided by the objective law. Their object relates rather to the allocation, within those confines or outer-limits, of a given disputed marine and/or submarine area to one or another of the States parties to the dispute. The solution may be the allocation of the entire disputed area to one of the parties or, as it is more frequent, the division of the disputed area as between the parties, but in the first as well as in the second hypothesis it would be necessary in order to settle the dispute either to draw lines of delimitation or to define the legal principles and practical methods according to which the delimitation lines will be drawn by the parties themselves. 5. The task of every maritime delimitation undertaking, as a legal operation, consists ultimately in the drawing on the basis of international law of lines defining, within the area in dispute, the area falling under the jurisdiction of a party from the area or areas falling under the jurisdiction of the other party or parties, namely in the establishment of maritime boundaries or of a single maritime boundary, as the case may be, between the States parties to the dispute. Where the attempt to establish such a boundary by agreement failed, that task is assumed by the third empowered by the parties of the necessary competence to

1 The case was introduced by the notification in November 1931 of a Special Agreement concluded between Turkey and Italy and discontinued in January 1933 (PCIJ Series A/B no 51, p. 4).

Provisional Measures and Interventions

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do so through a given peaceful means of settlement, like conciliation, arbitration or judicial settlement, with a view to achieve an equitable solution having regard to the geographical configuration of the area and other relevant or special circumstances. 6. This underlying principle inspires the delimitation provisions contained in Articles 15, 74 and 83 of the LOS Convention and is shared by the “fundamental norm” in maritime delimitation of general international law as identified by the ICJ in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area.2

3. THE ROLE OF PROVISIONAL MEASURES AND INTERVENTION IN ARBITRATION AND JUDICIAL SETTLEMENT OF MARITIME DELIMITATION DISPUTES 7. Although no peaceful means of settlement by a third is to be excluded a priori, practice shows that in delimitation disputes, either land or maritime, States favour by far the means of settlement ending with a decision legally binding for the parties, namely judicial settlement or arbitration. This choice is due to the fact that the overall objective sought by States through delimitation by a third is the establishment of a final and permanent boundary line. It is, therefore, within these two kinds of peaceful settlement procedures that provisional measures and intervention seem to play a significant role in maritime delimitation disputes. 8. So far as judicial settlement is concerned, the 1920 PCIJ Statute and the 1945 ICJ Statute incorporate provisional measures and two forms of intervention in its provisions on procedure. In 1982, States incorporated also provisional measures and the same two forms of intervention in the Statute of the International Tribunal for the Law of the Sea (ITLOS), Annex VI to the LOS Convention. Thus, States continue to consider that such institutions of adjective law are useful in inter-States litigation, including in maritime delimitation disputes which by no means are excluded from the eventual operation of those institutions neither in the ICJ nor in ITLOS. 9. In arbitration proceedings the situation presents itself somewhat differently. It is true that international instruments codifying general rules on arbitration procedure have incorporate therein, at different moments of time, provisions, initially, on intervention by States parties to a convention at issue other than those parties to the case (Articles 56 and 84 of the Hague Conventions of 1899 and 1907 respectively) and, later, on provisional measures and on the two forms of intervention allowed in judicial settlement (Articles 33, 36 and 37 of the General Act of 1928, revised in 1948), although the Model 2

I.C.J. Reports 1984, p. 299, para. 112.

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Rules on Arbitral Procedure adopted in 1958 by the International Law Commission incorporates provisional measures only (Article 20). Thus, provisional measures and interventions are not as such incompatible with arbitration proceedings. 10. However, most of the inter-States arbitration are not institutional in character but adopt the form of ad hoc arbitration and in these latter kind of arbitration the consent of the parties as reflected in the corresponding undertaking to arbitrate, or in the special agreement (compromis) concluded to that effect, is paramount with respect, inter alia, to the rules of procedure to be applied by the tribunal. In other words, unless agreed otherwise in ad hoc arbitration the parties may modify or derogate at will any codified procedural rule on arbitration including of course those concerning provisional measures and intervention. 11. This is confirmed by the arbitration on maritime delimitation hold during the last decades which adopted the form of ad hoc arbitration. A preliminary perusal of the corresponding undertakings and compromis, as well as of the practice of the arbitral tribunals concerned, shows in effect, quite clearly, that provisional measures and interventions did not play any significant role. No provisional measures were requested, granted or admitted although some special agreements empowered the arbitral tribunal to indicate that kind of measures to the parties. Moreover, the special agreements contain no provisions allowing eventual interventions by third States under any form and, apparently, no applications for permission to or declarations of intervention have been in fact filed by third States or entities in those arbitration cases.3 12. This general conclusion on the recent maritime delimitation by arbitration faces up to the role played by provisional measures and, in particular, by interventions in cases involving maritime delimitation disputes submitted during the same period to judicial settlement by the ICJ. The ICJ case law of the period records parties’ requests for the indication of provisional measures in three relevant cases (Aegean Sea Continental Shelf; Arbitral Award of 31 July 1989; and Land and Maritime Boundary between Cameroon and Nigeria) and the Court indicated provisional measures in the case between Cameroon and Nigeria.4 In the same period, four applications by third States for permission to intervene in maritime delimitation disputes were filed as follows: Malta in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya); Italy in the Continental Shelf (Libyan Arab Jamahiriya/Malta); Nicaragua in the Land, Island and

3 S. Torres Bernárdez, “L’arbitrage interétatique (avec des références particulières à la Convention européenne pour le règlement des différends du 29 avril 1957)”, in: D. Bardonnet (Ed.), The Peaceful Settlement of International Disputes in Europe: Future Prospects, Hague Academy of International Law, Workshop, The Hague, 6–8 September 1990 (Dordrecht, Martinus Nijhoff Publishers, 1991), pp. 205–267, at pp. 250–251. 4 I.C.J. Reports 1996, p. 13.


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Maritime Frontier Dispute (El Salvador/Honduras); and Equatorial Guinea in the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria). Nicaragua and Equatorial Guinea were authorised to intervene with respect to the legal régime of the waters of the Gulf of Fonseca and the maritime boundary between Cameroon and Nigeria respectively, becoming therefore intervening States in the cases concerned.5 13. The considerations above suggest that – in so far as the settlement of maritime delimitation disputes is concerned – provisional measures and intervention are procedural means which play a significant role in international judicial settlement proceedings rather than in international arbitration proceedings, without prejudice that they might also be operative in a particular arbitration.

4. THE STATUTORY NATURE OF THE POWERS OF THE ICJ AND ITLOS IN PROVISIONAL MEASURES AND INTERVENTION MATTERS 14. The ICJ and ITLOS are empowered to indicate or prescribe provisional measures and to grant or admit interventions by their respective Statutes. The relevant provisions are: in the Statute of the ICJ, Article 41 (provisional measures) and Articles 62 and 63 (intervention); and in the Statute of ITLOS, Article 25 (provisional measures) and Articles 31 and 32 (intervention). Thus, the competence of the Court or of the Tribunal in these matters does not derive from the consent of the parties to the case to hear and determine the dispute, but from the consent given by them, in becoming parties to the Statute, to the exercise by the Court, or by the Tribunal, the powers conferred upon it by the Statute.6 15. The first consequence of the statutory nature of the rules on provisional measures and intervention is that they cannot be the object of reservations by States when becoming parties to the Statute or be derogated by agreement between the parties to a particular case, because neither the ICJ Statute nor the Statute of ITLOS allow such reservations or derogation. A second consequence of the statutory nature of the jurisdictions exercised by the ICJ and ITLOS in provisional measures and intervention matters is that they do not exist but to the extent, in the manner and for the purposes set out in their respective Statutes. When through the filing of a document entitled request for the indication of provisional measures, application for permission to intervene or declaration of intervention, the author of the document asks the ICJ or ITLOS to go further, or otherwise, than allowed by the provision of the Statute invoked is actually placing itself outside the scope of the jurisdiction of the ICJ or ITLOS 5 6

I.C.J. Reports 1990, p. 92 and I.C.J. Reports 1999, p. 1029. See, for example, with respect to intervention: I.C.J. Reports 1990, p. 133, para. 96.

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in the matter and, consequently, such kind of requests, applications or declarations cannot but be rejected by the Court or the Tribunal. 16. The control corresponds to the ICJ or ITLOS, as the case may be, and is to be exercised by the Court or by the Tribunal in the course of proceedings open by the filing of the request, application or declaration concerned. These proceedings are regulated in the Rules of Procedure adopted by the ICJ and ITLOS pursuant to the authorisation given to that effect in Article 30 and Article 16 of their respective Statutes. The relevant provisions in the ICJ Rules of Procedure are Articles 73–78 (provisional measures) and Articles 81–86 (intervention) and in the ITLOS Rules of Procedure Articles 89–95 (provisional measures) and Articles 99–104 (intervention).

5. INCIDENTAL CHARACTER OF PROVISIONAL MEASURES AND INTERVENTION IN THE ICJ AND ITLOS PROCEDURES 17. Provisional measures are a procedural device open to the parties to preserve their rights in the case, while interventions are a procedural device open to thirds for the protection of their own legal interests in a case between others, namely the parties to the case. It follows that these devices cannot be activated but by reference to a given principal case. Consequently, in the ICJ, as well as in ITLOS, provisional measures and interventions are treated, procedurally, as incidents in the framework of the proceedings on the related principal case. They do not have an autonomous procedural life. If the principal case is discontinued or terminates, provisional measures and/or interventions lapse. 18. In fact, the Rules of the ICJ and ITLOS place the proceedings open by the filing of a request for provisional measures and of an application or declaration of intervention in the section dealing with “incidental proceedings” distinguishing thereby those proceedings from the main proceedings in the case. It should be added that the incidental proceedings on provisional measures or on intervention of the ICJ and ITLOS Statutes and Rules are of general application to all kind of disputes and, therefore, to maritime delimitation disputes as well.

6. THE ICJ AND ITLOS RESPECTIVE GENERAL COMPETENCE AND THE EXERCISE OF JURISDICTION ON PROVISIONAL MEASURES AND INTERVENTION: THE ISSUE OF MIXED TERRITORIAL/MARITIME DISPUTES 19. The jurisdiction of the ICJ and ITLOS to entertain a principal case is defined by reference to their respective Statutes (general competence) and to the additional jurisdictional titles invoked by the parties or a party (special competence). Both competence elements are needed in order to comply in a given principal case with the consensual jurisdiction fundamental requirement


39

as organised in both systems. So far as the special competence is concerned, the situation in the ICJ and ITLOS is quite similar. But, it is not necessarily so with respect to the general competence component of jurisdiction on principal cases. 20. There can be no doubt that both the ICJ and ITLOS possess general competence in maritime delimitation disputes.7 The ICJ enjoys universal general competence in disputes between States whatever its subject-matter may be. ITLOS is a specialised Tribunal on the law of the sea having general competence in disputes concerning the interpretation or application of: (1) the 1982 United Nations Convention on the Law of the Sea; (2) agreements related to the purpose of that Convention; and (3) agreements concerning the subject-matter covered by the Convention (see Articles 21 and 22 of the ITLOS Statute and Articles 287 and 288 of the LOS Convention). Then, Articles 15, 74 and 83 of the LOS Convention relate to the delimitation of marine spaces and the Convention contains also provisions on historic bays and titles. The same conclusion as to the general competence of ITLOS in maritime delimitation disputes may be reached by an interpretation a contrario of paragraph 1 (a) of Article 298 of the LOS Convention concerning the allowed optional exceptions to applicability of the compulsory procedures entailing binding decisions of Section 2 Part XV of the LOS Convention. 21. No problem arises therefore for ITLOS in the case of a dispute whose subject-matter would be the delimitation of one or more maritime spaces, including territorial sea, archipelagic waters or historic waters or bays. In this kind of disputes both the ICJ and ITLOS enjoy general competence, and if the special competence requirement is also met, they would have jurisdiction to entertain the principal case concerned and may, consequently, indicate or prescribe in that case provisional measures to the parties or grant or admit interventions of thirds. But, international practice shows that States submit also to judicial settlement disputes having a mixed subject-matter which encompasses a maritime delimitation as well as land delimitation or territorial questions. There are several examples in the ICJ of this kind of cases: the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening); the case concerning Maritime Delimitation and Territorial Questions (Qatar v. Bahrain); the case entitled the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening); and the current Territorial and Maritime Dispute (Nicaragua v. Colombia). 22. May it be affirmed on the basis of the ITLOS Statute and the LOS Convention that ITLOS has also general competence to deal with those mixed territorial/maritime disputes? The economy as a whole of the Statute and the

7

T. Treves, “Conflictos entre la Corte Internacional de Justicia y el Tribunal Internacional del Derecho del Mar”, in: Tres Estudios sobre la Corte Internacional de Justicia (Universidad Carlos III-Boletin Oficial del Estado, Instituto de Estudios Internacionales y Europeos “Francisco de Vitoria”, Madrid, 1999), p. 47.

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Convention (see, for example, certain passages of paragraph 1 (a) of Article 298) does not appear to support such a proposition. But, the matter goes quite beyond the topic of the present article and it is not intended to be answered here. For the present article the only thing that matters is to point out that to the extent that ITLOS would be without general competence to entertain a given mixed territorial/maritime delimitation dispute it would also be deprived from the possibility to prescribe provisional measures, or to grant or admit interventions, in the mixed dispute concerned, because of the incidental character of provisional measures and intervention. 23. Finally, it should be underlined that the mixed territorial/maritime disputes we have in mind are disputes involving the determination of sovereignty or other territorial rights over continental or insular territory or the delimitation of continental or insular territory in addition to the maritime delimitation.8 The mere determination of baselines for the purpose of a maritime delimitation does not deprive a dispute of its exclusive maritime character. The same conclusion applies to disputes in which to effect the maritime delimitation concerned account must be taken of the land frontier as existing between the parties.9

7. PROVISIONAL MEASURES IN THE ICJ AND ITLOS 24. Because judicial proceedings unfold during a certain period of time, the law needs to provide for remedial means intended to protect during the interim the rights at issue in the case so as to avoid that the future judicial decision could become meaningless, in toto or in part, at the time of its rendering. The provisional measures of the Statute of the ICJ and of ITLOS are such a remedial means. The causes prompting the request and/or the granting of provisional measures are not to be looked for in the nature of the dispute or in its elements of fact or law, but rather in existing or emerging events external to the proceedings. These events, and in the first place the state of the relations between the

8

For example, in the dispute between Cameroon and Nigeria the determination of the maritime boundary line required a prior decision on the issue of the sovereignty over the Bakassi Peninsula, namely a decision on a land territorial aspect of the case. It is because the Court decided that sovereignty over that Peninsula lies with Cameroon that the maritime boundary defined by the Judgment starts from the point of intersection of the center of the navigable channel of the Akwayafe River with the straight line joining Bakassi Point (Cameroon) and King Point (Nigeria). 9 C. Jiménez Piernas, “La relevancia de la frontera terrestre en la jurisprudencia sobre delimitación de los espacios marinos entre Estados adyacentes”, in: F.M. Mariño Menéndez (ed.), El Derecho internacional en los albores del siglo XXI. Homenaje al profesor Juan Manuel Castro-Rial Canosa (Madrid, Ed. Trotta, 2003), pp. 393–422, p. 393.


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parties in general or with respect to the subject-matter of the dispute, might be creative of circumstances which would advise the urgent indication or prescription of provisional measures by the ICJ or ITLOS for the preservation of the rights at issue in the case of either party and, eventually, the prevention of the aggravation or extension of the dispute.10

a) The Power to Indicate or Prescribe Provisional Measures and Its Scope 25. Article 41 of the Statute of the ICJ provides that the Court shall have the power to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. In the case of ITLOS Article 25, paragraph 1, the Statute states that in accordance with Article 290 of the LOS Convention, the Tribunal and its Sea-Bed Disputes Chamber shall have the power to prescribe provisional measures. Thus – as provided for in Article 290, paragraph 1, of the LOS Convention – ITLOS may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. 26. Both the ICJ and ITLOS are therefore empowered by their respective Statutes to indicate or prescribe the provisional measures (mesures conservatoires) that they consider necessary or appropriate to preserve pendente litis the parties’ rights at issue in the case. It is inherent to any interim protection that the indication or prescription of the measures concerned be discretionary because of its dependence on circumstances that cannot be assessed by the Court or the Tribunal but on an ad hoc basis. However, this discretionary power should not be understood as being an arbitrary one. The jurisprudence has elaborated progressively some criteria which circumscribe the exercise of the power in question by reference to certain broad parameters. It also underlined that in inter-State litigation the power to indicate provisional measures should rather be used with restraint and prudence. 27. In any case, the main object and purpose of provisional measures is to preserve the rights alleged by either party when in the light of the circumstances the non-indication of those measures might seriously impair the rights to be determined later on in the decision that the court or tribunal will render in the case. Generally speaking, the indication or prescription of provisional measures would be justified when the circumstances of the case as appreciated by the court or tribunal reveal a serious risk of irreparable prejudice to the specific 10 J. Sztucki, Interim Measures in the Hague Court: an attempt at a scrutiny (Deventer, Kluwer Law and Taxation, 1983).

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rights at issue and an urgent need to remedy such a risk. Risk, prejudice, gravity, irreparability, urgency and necessity are considerations very much present in the appreciation by international courts and tribunals of the need for the indication in a given case of provisional measures. For example, it was as a result of an appraisal of the circumstances of the case in the light of considerations of such a kind that the request for the indication of provisional measures of Greece in the Aegean Sea Continental Shelf case was rejected,11 while the request of Cameroon in the Land and Maritime Boundary between Cameroon and Nigeria case prompted the indication of provisional measures by the ICJ.12 28. The jurisprudence of the ICJ underlines the relationship between the parties’ rights at issue in the case and the power of the Court to indicate provisional measures. One may find in that jurisprudence a statement to the effect that the Court cannot indicate measures for the protection of any disputed rights other than those which are the subject of dispute in the judicial proceedings before the Court on the merits of the case.13 For example, the request for provisional measures of Guinea-Bissau in the case concerning the Arbitral Award of 31 July 1989 was rejected by the Court for that very reason. In effect, the application of Guinea-Bissau introducing the case asked the Court to pass upon the existence and validity of the Arbitral Award, while the rights sought by GuineaBissau to be preserved by its request for provisional measures did not concern the existence and validity of the Award. They concern alleged rights in an underlying maritime delimitation dispute which then was not even before the Court. Thus, the rights sought to be preserved by Guinea-Bissau’s request were not rights susceptible of forming the basis of the Court’s Judgment in the Arbitral Award of 31 July 1989 case. In these circumstances, the Court declined by fourteen votes to one the indication of provisional measures.14 Subsequently, Guinea-Bissau introduced a new case entitled “Maritime Delimitation between Guinea-Bissau and Senegal” which was later on discontinued. 29. However, there is established jurisprudence of the ICJ, and there is nor reason to believe that the situation in that respect might be different in ITLOS, that the power to indicate provisional measures encompasses the power to indicate measures aiming at the prevention of the aggravation or extension of the dispute. Practice shows that measures intended to preserve the rights of the parties in the case and measures intended to prevent the aggravation or extension of the dispute are frequently combined in a same provisional measures order. As the ICJ has stated, independently of the requests for the indication of provisional measures submitted by parties to preserve specific rights, the Court possesses by virtue of Article 41 of the Statute the power to indicate provisional

11 12 13 14

I.C.J. Reports 1976, p. 3. I.C.J. Reports 1996, p. 13. I.C.J. Reports 1979, p. 19, para. 36. I.C.J. Reports 1990, p. 70, para. 26.


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measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require.15 30. Furthermore, ITLOS is specifically empowered to prescribe provisional measures in order to prevent serious harm to the marine environment, namely to protect a general interest which may go beyond parties’ rights at issue strictly understood. Moreover, environmental issues could be invoked in the framework of a maritime delimitation dispute. For example, in the case concerning Maritime Delimitation in the Area between Greenland and Jean Mayen the effect of ice was argued in support of parties’ delimitation claims.16 31. Doubtless, the ICJ may indicate provisional measures concerning environmental matters when they relate to specific party rights at issue in the case. But, is the Court empowered on the sole basis of its Statute and Rules to do so with a view to protect a general interest as ITLOS may do with respect to the prevention of serious harm to the marine environment? The answer requires interpretation and in that operation the power of the Court to indicate measures with a view to prevent an extension or aggravation of the dispute may help. The non-indication of measures to protect the marine environment from serious harm might imply in certain circumstances an aggravation or extension of the dispute as between the parties. In any case, the notion of “aggravation or extension of the dispute” is wider than the notion of “specific party rights at issue” and subject only to the appreciation of the circumstances of the case as a whole by the Court. 32. Finally, Article 290, paragraph 5, of the LOS Convention provides that pending the constitution of an arbitral tribunal to which a dispute is being submitted under Section 2 of Part XV of the Convention, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, ITLOS (or, with respect to the activities in the Area, the Sea-Bed Disputes Chamber) may prescribe, modify or revoke provisional measures in accordance with Article 290 of the LOS Convention. This residual power of ITLOS to prescribe provisional measures has already been exercised by the Tribunal. See, for example, The Mox Plant Case (Ireland v. United Kingdom).17 33. As worded, Article 290, paragraph 5, of the LOS Convention does not exclude that, pending the constitution of the arbitral tribunal, the parties could agree that they sought the provisional measure be indicated by the ICJ. But, it is difficult to visualise how a request to that effect can thrive in the Court when the main case is not before it but before the arbitral tribunal whose constitution

15

I.C.J. Reports 1986, p. 9, para. 18, and 1996 (I), p. 22, para. 41. More recently, the Order of 17 June 2003 in the Case concerning certain criminal proceedings in France (Republic of the Congo v. France), para. 39. 16 I.C.J. Reports 1993, p. 38. 17 ITLOS Yearbook 2002, pp. 137–138.

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is pending. The power of the ICJ to indicate provisional measures is construed in the Statute and Rules of the ICJ on the assumption that the measures requested or indicated relate to a principal case before the Court. In any case, the residual power lies with ITLOS exclusively.

b) Conditions to Which the Indication or Prescription of Provisional Measures is Subject 34. The indication or prescription of provisional measures in a given case is subject to the two following conditions: 1) that the dispute has been duly submitted to the court or tribunal concerned; and 2) that the court or tribunal considers that it has at least prima facie jurisdiction in the case. The basic texts of both the ICJ and of ITLOS and the relevant jurisprudence reflect these general conditions which are, furthermore, spelled out in Article 290, paragraph 1, of the LOS Convention. 35. As to the first condition, a dispute or case is considered to have been duly submitted when a party or the parties have complied with the prescriptions of the Statute and Rules concerning the institution of proceedings. Assuming so, when may provisional measures be indicated or prescribed? Article 73, paragraph 1, of the ICJ Rules and Article 89, paragraph 1, of the ITLOS Rules give the same answer. Provisional measures may be requested and, therefore, indicated or prescribed at any time during the proceedings in the case, namely from the very moment of the institution of the proceedings until the final decision or the discontinuance or removal of the case. In other words, provisional measures may be indicated or prescribed by the ICJ or ITLOS so long as the proceedings in the case concerned are in course. 36. Thus, it may well happen that when the indication or prescription of provisional measures is requested or needed the Court or the Tribunal has not yet determined the existence of jurisdiction in merito. This possibility is at the origin of a historical doctrinal debate on the relationship between provisional measures and jurisdiction. In the context of such a debate it was even said in the past that decisions on interim protection do not require the conduct even of a preliminary inquiry into jurisdictional matters. But this debate is over since the post-war jurisprudence of the ICJ. This jurisprudence has elaborated progressively the so-called prima facie jurisdiction requirement in order for an international court or tribunal to be in a position allowing it to indicate or prescribe provisional measures. This requirement is shared by the ICJ and ITLOS. 37. It corresponds to the ICJ or ITLOS, as the case may be, to determine the existence of the said prima facie jurisdiction in any given case, such a determination prejudging in no way the question of the jurisdiction in merito and leaving unaffected the right of the other party to submit arguments against such


45

jurisdiction.18 The prima facie jurisdiction requirement must be fulfilled so long as jurisdiction in merito has not been definitively established. It follows that such a requirement operates in connection with in limine or early requests for provisional measures only. But if the Court finds that it does not have prima facie jurisdiction to indicate provisional measures, the request will be rejected.19 38. Doctrine has discussed the meaning of prima facie jurisdiction in the present context, for example, whether it should be defined by reference to the “possibility” or “probability” of jurisdiction in merito. It is true that the ICJ jurisprudence has used different formula to express the concept, but nevertheless it is quite clear what the Court means by prima facie jurisdiction. It means that the Court does not need, before indicating provisional measures, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court on merits might be founded.20 39. The existence of prima facie jurisdiction is indeed a condition sine qua non for the indication of provisional measures so long as jurisdiction in merito has not yet been determined. But, it does not mean that the Court must indicate necessarily provisional measures because the existence of prima facie jurisdiction or jurisdiction in merito. Jurisdiction, prima facie or in merito, may exist and nevertheless the Court might find that the circumstances as presented themselves are not such as to require the exercise of its powers under Article 41 of its Statute. 40. When considering the prima facie jurisdiction requirement in connection with an in limine or early request, the ICJ might conclude at the existence of a manifest lack of jurisdiction in merito. If so, it will refrain from indicating any provisional measures and will order the removal of the case from the General List. But, it may also happen that that the provisions invoked by the applicant do not appear to the Court, prima facie, to afford a basis on which its jurisdiction might be established without nevertheless finding that the lack of jurisdiction is manifest. In these situations, it will not indicate either provisional measures, but the case will be maintained in the General List pending the determination of jurisdiction in merito. 41. The considerations above are applicable to the general power of the ICJ and ITLOS to indicate or prescribe provisional measures. They need, however,

18

See, for example: I.C.J. Reports 1993, p. 19, para. 35, and 2002, p. 249, para. 90. I.C.J. Reports 2002, p. 249, para. 89. 20 See, for example: I.C.J. Reports 1973, p. 101, para. 13, and p. 137, para. 14, and 1979, p. 13, para. 15. 19

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to be somewhat qualified with respect to the residual provisional measure power of ITLOS under Article 290, paragraph 5, of the LOS Convention. In this particular case, the first condition for the prescription of provisional measures by ITLOS is the filing by a party of a request to that effect as provided for in Article 89, paragraph 2, of the ITLOS Rules. This request may be submitted (a) at any time if the parties have so agreed or (b) at any time after two weeks from the notification to the other party of a request for provisional measures if the parties have not agreed that such measures be prescribed by another court or tribunal. As to the second condition Article 290, paragraph 5, of the LOS Convention provides that ITLOS may prescribe the provisional measures concerned if it considers that prima facie the arbitral tribunal which is to be constituted would have jurisdiction, and adds, as a further condition, that the Tribunal considers that the urgency of the situation so requires.

c) Incidental Proceedings on Provisional Measures 42. The incidental proceedings on provisional measures are opened by the filing by a party of a written request to that effect (Article 73, paragraph 1, of the IJC Rules and Article 89, paragraph 1 and 2, of the ITLOS Rules). The request shall specify, in both Rules, the measures requested, the reasons therefore and the possible consequences, if it is not granted, for the preservation of the respective rights of the parties, the ITLOS Rules adding “or for the prevention of serious harm to the marine environment” (Article 73, paragraph 2 of the ICJ Rules and Article 89, paragraph 3, of the ITLOS Rules). Regarding the prescription of provisional measures under Article 290, paragraph 5, of the LOS Convention, ITLOS Rules provide inter alia that the request shall also indicate the legal grounds upon which the arbitral tribunal which is to be constituted would have jurisdiction and the urgency of the situation (Article 89, paragraph 4, of the ITLOS Rules). 43. According to the general economy of the ITLOS Rules, only when a request for provisional measures has been made by a party the Tribunal may prescribe such measures. In the ICJ, provisional measures are also indicated in the generality of cases following the filing of a party request (see above). However, the ICJ Rules leave open an alternative which may be useful in particular circumstances, including in connection with the prevention of the aggravation or extension of the dispute. In effect, the Court may decide at any time to examine propio motu whether the circumstances of the case require the indication of provisional measures (Article 75, paragraph 1, of the ICJ Rules). Thus, in the ICJ system incidental proceedings on provisional measures could eventually result from an initiative of the Court. This is possible because Article 41 of the ICJ Statute does not make of party’s requests a condition sine qua non for the holding of incidental proceedings on provisional measures, as, by the way, paragraph 1 of Article 290 of the LOS Convention does. The matter is left to


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the Rules. According to the ITLOS Rules, however, the Tribunal may only decide propio motu to review or revise the provisional measures prescribed by its Chamber of Summary Procedure pursuant to Article 25, paragraph 2, of the ITLOS Statute which is quite another matter. 44. In effect, according to Article 25, paragraph 2, of the ITLOS Statute and Article 91 of the ITLOS Rules if the Tribunal is not in session, or a sufficient number of members is not available to constitute a quorum, the provisional measures shall be prescribed by the Chamber of Summary Procedure subject to review or revision by the Tribunal. Article 25, paragraph 2, of the ITLOS Statute contains also an express derogation of the rule in its Article 15, paragraph 4, so as to allow that the Chamber of Summary Procedure to adopt the provisional measures at the request of any party to the dispute. 45. This aspect of the ITLOS system is also without comparison in the ICJ Statute and Rules. In the Court, the exercise of main and incidental jurisdictions relating thereto belongs either to the full Court or to the chamber to which the case has been referred, in accordance with the adagio that le juge du principal est le juge de l’accessoire.21 This is why the ICJ Rules provide that the Court, if it is not sitting when the request for the indication of provisional measures is made, shall be convened forthwith for the purpose of proceedings to a decision on the request as a matter of urgency (Article 74, paragraph 2, of the ICJ Rules), a provision which applies mutatis mutandis to chambers. 46. The requests for the indication or prescription of provisional measures have priority over all other cases or proceedings, but in ITLOS such a priority is subject, as it should be, to Article 112, paragraph 1, of the Rules concerning the prompt release of vessels and crews. Other procedural rules are essentially similar in the ICJ and ITLOS Rules, although not necessarily worded in identical terms, for example, the rules on the fixing of the date for a hearing, the taking into account of observations submitted by a party before the closure of the hearings and the President’s powers pending the meeting of the Court or Tribunal. 47. The Court and the Tribunal may indicate or prescribe measures other or different, in whole or in part, from those requested as well as measures to be taken or comply with by the requesting party. The rejection of a request shall not prevent the party which made it from making a fresh request in the same case based on new facts. The provisions on parties’ requests for modification or revocation of provisional measures are also quite similar in both systems. 48. In both the ICJ and ITLOS notice of the indicated or prescribed provisional measures shall be given forthwith to the parties. In addition, in the case of the ICJ notification is also given to the United Nations Security Council and in ITLOS to “States Parties” as the Tribunal considers appropriate in each case, the term “States Parties” being defined in Article 1 of the LOS Convention as

21

I.C.J. Reports 1990, p. 4.

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meaning States which have consented to be bound by the Convention and for which the Convention is in force.

d) The Binding Effect of the Orders Indicating or Prescribing Provisional Measures 49. The decisions of the ICJ and ITLOS on provisional measures adopt the form of an order. They cannot adopt the form of a judgment because by their very object and purposes decisions on provisional measures are not supposed to have the res judicata force inherent to the ICJ or ITLOS judgments. The decisions on provisional measures are by definition of an interim nature and duration. They may be revoked or modified and their effects never go beyond the duration of the proceedings on the related principal case. But, as the judgments, the orders are “decisions of the Court” or “of the Tribunal” which, as such, have binding effect for the parties to the cases while in force. 50. Article 290, paragraph 6, of the LOS Convention provides that the parties to the dispute shall comply promptly with any provisional measures prescribed under that article. Therefore, there can be no doubt that the provisional measures adopted by ITLOS pursuant to Article 25 of its Statute have binding effect for the parties. The text of the Statute of the ICJ remains however silent on the binding effect of the Court’s orders on provisional measures, notwithstanding the fact that already in 1928 Article 33 of the General Act expressly provided for that the parties to a dispute shall be bound to accept the provisional measures indicated by the PCIJ or by an arbitral tribunal. This situation gave rise in the past to a much too long doctrinal controversy as to the binding effect of the Court’s orders on provisional measures. 51. Fortunately, this debate is now over. The doubts entertained by some in the past have been dispelled finally, in 2001, by the Court’s interpretation of Article 41 of its Statute contained in the Judgment in the LaGrand Case.22 This interpretation confirms that the provisional measures orders of the ICJ have binding effect for the parties to the case, as the provisional measures orders of ITLOS. It has been suggested that there might have been a certain relationship between the said Court’s interpretation and Article 290, paragraph 6, of the LOS Convention.23 In fact, the binding effect of those orders for the parties has been uphold by several authors long before the conclusion of the LOS Convention. In any case, the interpretation by the Court of Article 41 of its

22

I.C.J. Reports 2001, pp. 501–506, paras. 98–109. See, for example: E. Decaux, “Les eaux mélées de l’arbitage et de la justice (droit de la mer et règlement des différends)”, in: V.C. Coustère, Y. Daudet, P.-M. Dupuy, P.M. Eisemann, M. Voelckel (eds.), La mer et son droit: Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Paris, A. Pedone, 2003), pp. 159–176, at p. 175. 23


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Statute has been done in accordance with the rules on interpretation of treaties codified in the Vienna Convention of the Law of Treaties which are considered by the jurisprudence of the Court to be declaratory of general international law. 52. The orders on provisional measures have therefore binding effect for the parties to a case decided by ITLOS as well as for the parties to a case dealt with by the ICJ. But, the two systems differ from each other with respect to the supervision of the implementation by the parties of the provisional measures indicated. The ITLOS system is much more developed in that respect. In effect, Article 78 of the ICJ Rules limits itself to provide that the Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated. In contrast, Article 95 of the ITLOS Rules imposes on each party the positive obligation of informing the Tribunal as soon as possible as to its compliance with any prescribed provisional measures, going even further by providing also that each party shall submit to the Tribunal an initial report upon the steps it has taken, or propose to take, in order to ensure prompt compliance with the measures prescribed. It is an advanced supervision system which finds support, ultimately, in Article 290, paragraph 6, of the LOS Convention.

8. INTERVENTION IN THE ICJ AND ITLOS 53. The general pattern of international judicial settlement is that two or more States agree that a given international court or tribunal shall hear and determine a particular dispute. Such an agreement may be given ad hoc or may result from the invocation, in relation to the dispute, of a compromissory clause of a treaty or of another mechanism. Those States are the “parties” to the proceedings, and they are bound by the eventual decision of the court or tribunal because they have agreed to confer jurisdiction on the court or tribunal concerned to decide the case. Normally, no other State or entity may involve itself in the proceedings without the consent of the original parties.24 Nevertheless, procedures allowing the intervention of a “third” in the case between the parties may be provided for as in Articles 62 and 63 of the ICJ Statute and Articles 31 and 32 of the ITLOS Statute. These provisions empower the Court and the Tribunal to permit a third to intervene even in the case that this is opposed by one or both of the parties to the case.25 54. Certain categories of international disputes are more akin than others to attract interventions. These are, in the first place, the maritime delimitation disputes. This is so because in those categories the possibility that the safeguard of legal interest of thirds could not be sufficiently assured by the principle of the 24 25

I.C.J. Reports 1990, p. 133, paras. 95–96. I.C.J. Reports 1984, p. 28, para. 46.

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autorité relative de la chose jugée has a higher degree of probability than in some other categories of disputes.26 For example, in the Land and Maritime Boundary between Cameroon and Nigeria case, the ICJ has recognised expressly that, in particular in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient.27 55. Practice confirms also that States consider intervention particularly useful as a means for the protection of their legal interests in maritime delimitation disputes between other States. In fact, four applications for permission to intervene filed pursuant to Article 62 of the ICJ Statute relate to maritime delimitation disputes (see paragraph 12 above). So far, there are no examples in the ICJ jurisprudence of declarations of intervention under Article 63 in maritime delimitation disputes. But, this has an easy explanation. The law applicable to the maritime delimitation disputes submitted during the last decades to the Court was not conventional law but general international law, the only exception being the 1958 Continental Shelf Convention in the Jan Mayen case.28

a) General Features of Intervention in the Two Statutes 56. The general features of intervention are, in my opinion, the same in the Statutes of the ICJ and ITLOS. There are essentially three: 1) intervention is voluntary; 2) intervention is an incident; and 3) intervention is a procedural means of self-protection of legal interests. 57. Neither the ICJ nor ITLOS have a system of compulsory intervention. The Court and Tribunal do not possess the power to direct that a third be made an intervening State or entity. Under both Statutes intervention originates in a voluntary act of the third. As stated by the ICJ In the Phosphate Lands in Nauru case: “National courts, for their part, have more often than not the necessary power to order propio motu the joinder of third parties which may be affected by the decision to be rendered; that solution makes it possible to settle a dispute in the presence of all the parties concerned. But on the international plane the Court has not such power. Its jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before it, even by way of intervention” (italics added).29 26

S. Torres Bernárdez, “L’intervention dans la procédure de la Cour internationale de Justice”, Académie de Droit International, Recueil des cours, Volume 256, 1995, pp. 193–457, at p. 197. 27 Judgment of 10 October 2002 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), para. 238. 28 I.C.J. Reports 1993, p. 58, paras. 45–46. 29 I.C.J. Reports 1992, p. 260, para. 53.


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58. One of the consequences of the voluntary nature of intervention is that the non-intervention of the third does not constitute as such an obstacle for the ICJ or ITLOS to the consideration of and decision of the case concerned. In the absence of the third and the procedural impossibility to cite it to join the proceedings, it must be open to the Court or the Tribunal to give the fullest decision as between the parties in the circumstances of each case. This is the underlying principle of both Statutes. Thirds have no veto on the judicial settlement by the parties of their disputes. The theory of the indispensable party, in fact of the indispensable third, has been rejected by the ICJ in the Nicaragua and Nauru cases and rightly so.30 59. But, these general conclusion needs to be somewhat qualified by two considerations. In the first place, to give a fullest decision in the case as between the parties might impinge on rights or claims of a third. When this is the case, the ICJ refrains normally from exercising the whole of the competence conferred upon it by the parties, in particular when the rights or claims of the third are in rem rights or claims as in maritime delimitations. This applies even when the third participates in the proceedings as an intervening State, because an intervener on the sole basis of Article 62 or Article 63 of the Statute is a non-party intervener and an international court or tribunal cannot decide upon rights or claims of non-parties.31 60. The second qualification concerns situations in which the legal interests, rights or claims of the third would not only be affected by the decision in the dispute between the parties but would form “the very subject-matter of the decision”, as this expression is understood in the ICJ Judgments in the Monetary Gold and the East Timor cases.32 In these situations, the Court has to decline the exercise of jurisdiction because the Court cannot adjudicate on legal interests, rights or claims of a third without the consent of the latter. In fact, this kind of situations may conceal an existing underlying multipartite dispute but these disputes, as the bilateral ones, have to comply with the fundamental consensual jurisdiction principle in order to be adjudicated by an international court or tribunal.33

30 S. Torres Bernárdez, “The new theory of ‘indispensable parties’ under the Statute of the International Court of Justice”, in: International Law: Theory and Practice. Essays in Honour of Eric Suy (The Hague, Martinus Nijhoff Publishers, 1998), pp. 737–750. 31 See, for example, para. 238 of the Judgment of 10 October 2002 in the Cameroon v. Nigeria case. 32 I.C.J. Reports 1954, p. 19, and 1995, p. 90. 33 S. Torres Bernárdez, “Bilateral, Plural and Multipartite Elements in International Judicial Settlement”, in: N. Ando, E. McWhinney, R. Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda (The Hague/London/Boston, Kluwer Law International, 2002), pp. 995–1007.

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61. A further consequence of the voluntary nature of the intervention is that the Court, as the Tribunal, cannot grant or admit an intervention wider in scope than the one applied for or declared by the third. But, the intervention granted or admitted could eventually be narrower than the one originally sought by the third. For example, in the Land, Island and Frontier Dispute (El Salvador/ Honduras), the Nicaraguan Application for permission to intervene related to the legal régime of the waters of the Gulf of Fonseca, the delimitation of those waters, the legal situation of the maritime spaces outside the Gulf and the legal situation of the islands in the Gulf, but the Chamber of the Court decided that Nicaragua was permitted to intervene in the maritime aspect of the case concerning the legal régime of the waters of the Gulf of Fonseca exclusively.34 62. As provisional measures, interventions are incidental in nature. As such, they presuppose the existence of a principal case to which they relate. Articles 62 and 63 of the ICJ Statute and Articles 31 and 32 of the ITLOS Statute, as well as their corresponding rules of procedure, confirm the incidental nature of any intervention. In 1951, the Court observed, in the Haya de la Torre case, that every intervention is incidental to the proceedings in a case and that, consequently, a declaration filed as an intervention only acquires that character, in law, if it actually relates to the subject-matter of the pending proceedings.35 63. This is why the Rules of Procedure of the ICJ and ITLOS provide that an application for permission to intervene, or a declaration of intervention, shall specify the case in course to which it relates. Without such a relationship the procedural act of the third will not be a genuine intervention (véritable intervention).36 However, the absence of practice prevents to see clearly during many years the consequences of this feature in the definition of the kind of interventions provided for in the Statute. The issue began to be clarified in the course of the consideration of the Maltese and Italian Applications for permission to intervene in the respective Continental Shelf cases in the 1980s and was settled by the Court in 1990 on the occasion of its consideration of the preliminary questions raised by the Nicaraguan Application in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) in the following terms: “. . . the rule of law that ‘every intervention is incidental to the proceedings in a case’ (Haya de la Torre, ICJ, Reports 1951, p. 76), applies equally whether intervention is based upon Article 62 or Article 63 of the Statute.”37 64. Thus, in the ICJ and ITLOS systems intervention is not a means to introduce a new case, such as a dispute between the State seeking to intervene and the parties or a party to the case. In fact, whether or not such a dispute exists is indifferent for granting or admitting the intervention sought by the third. It fol-

34 35 36 37

I.C.J. Reports 1990, p. 137, para. 105. I.C.J. Reports 1951, p. 76. Ibid., p. 77. I.C.J. Reports 1990, p. 4 (in fine).


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lows, as recalled, according to the ICJ, that it would be inappropriate to require, as a condition of intervention, the existence of such a dispute, defined by prior negotiations.38 Intervention is not either a means to file a preliminary objection to the case between the parties as was intended by El Salvador with its declaration of intervention in the Nicaragua case. The filing of preliminary objections is reserved by the rules of procedure to the parties to the case. 65. Finally, it remains the third general feature of the statutory intervention regarding the ICJ and ITLOS, namely that intervention is a means of selfprotection of a legal interest of the third seeking to intervene or declaring its intervention. The interest must be “legal” in nature because the authors of the Statutes wish to exclude “political” interventions from international judicial proceedings. On the other hand, in practice the term “legal interest” is understood in a rather wide meaning which includes also alleged rights and claims. The legal interest may be presumed by the law as in Article 63 of the ICJ Statute and in Article 32 of the ITLOS Statute, otherwise it must be proved by the third seeking to intervene. Furthermore, the third must prove to the satisfaction of the Court or the Tribunal that its legal interest is specific enough as to be susceptible of being affected by the decision in the case.39 Whether or not it would be so in a particular case is a matter for judicial determination, or verification, in the course of the incidental proceedings on the application for permission to intervene or on the declaration of intervention. 66. The protection of the legal interest of the third through its direct and active participation, as an intervener, in the main proceedings is the very object and purpose of a genuine intervention in the ICJ and ITLOS systems. The Statutes do not define intervention as a means to make a novation of the case to which it relates or to join two cases. As a Chamber of the Court has declared, with reference to Article 62 of the ICJ Statute (Article 31 of the ITLOS Statute), intervention “is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court. A case with a new party, and new issues to be decided, would be a new case. The difference between intervention under Article 62, and the joining of a new party to the case, is not only a difference of degree; it is a different of kind.”40 67. The very wording of Article 63 of the ICJ Statute and Article 32 of the ITLOS Statute leads to the same conclusion with respect to this form of

38

Ibid., p. 114, para. 51. For example, the Application for permission to intervene of Philippines in the Sovereignty over Pulau Ligitan and Pulau Sipadan case was not granted because the Applicant did not discharge its obligation to convince the Court that specified legal interests may be affected in the particular circumstances of the case (I.C.J. Reports 2001, p. 607, para. 93). 40 I.C.J. Reports 1990, p. 133, para. 97. 39

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intervention. Thus, the purpose of any intervention in both Statutes is, as indicated, the protection of the legal interest of the third which may be affected by the decision, but by the means allowed by the institution of intervention in the judicial system concerned and not otherwise. In the ICJ and ITLOS systems those means do not include, for example, the adjudication by the Court, or by the Tribunal, of alleged rights or claims of the intervener vis-à-vis the parties to the case. However, the ICJ jurisprudence admits as a proper object of an intervention under Article 62 for the intervener to inform the Court of the nature and extent of its legal interest or alleged rights which may be affected by the decision in the case;41 and in an intervention under Article 63 for the intervener to provide the Court with its own construction of the provisions of the multilateral treaty at issue in the case. 68. It follows from the above that in the ICJ and ITLOS systems intervention is essentially a defensive procedural means at the disposal of the intervening third. By allowing its participation in the main proceedings, the intervening third is in effect in the position of making the Court or the Tribunal aware with all the required details of the legal interests, rights or claims of its own which, in its view, may be affected by the decision, or of its construction of the multilateral treaty at issue, before the adoption of the decision and, therefore, to have in that way an influence thereon. It is possible that the position defended by the intervening third might coincide with the arguments or claims of one of the parties to the case, but this is not the statutory finality of the intervention in the ICJ and ITLOS systems. That finality is the protection of the legal interests of the intervening third.

b) The Forms of Intervention Allowed 69. In order for an intervention to be granted or admitted in international litigation, the third seeking to intervene or declaring its intervention must follow the prescriptions established by the judicial system concerned. There is not such a thing as free hand intervention. The intervention sought or declared must adjust itself to the forms of intervention allowed respectively by the system, and it corresponds to the court or tribunal to control if that is actually the case. The Statutes of the ICJ and ITLOS allow two forms of intervention. The first is an intervention by authorisation of the Court or the Tribunal (ICJ Statute Article 62 and ITLOS Statute Article 31) and the second is an intervention as of right (ICJ Statute Article 63 and ITLOS Statute Article 32). 70. The intervention by authorisation is wider in scope than the intervention as of right. Article 62 of the ICJ Statute and Article 31 of the ITLOS Statute provide for that should a third party consider that it has an interest of a legal 41

See, for example: I.C.J. Reports 2001, p. 606, para. 88.


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nature which may be affected by the decision in the case or dispute it may submit an application for permission to intervene to the Court or to the Tribunal. The condition sine qua non to which this form of intervention is subject in both systems is, therefore, the very existence in casu of a legal interest of the third which “may” be affected by the decision in the case, independently of whether or not such interest would be actually affected. The possibility of being affected is enough to grant permission to intervene. 71. Under both Statutes this form of intervention is open to States only. However, while Article 62, paragraph 1, of the ICJ Statute does not qualify the term “State”, Article 31, paragraph 1, of the ITLOS Statute refers to a “State Party” (defined in Article 1, paragraph 2, of the LOS Convention) as a State which has consented to be bound by the Convention and for which the Convention is in force. 72. It shall be for the Court or the Tribunal to decide whether or not to grant the requested permission to intervene. The applicant must convince the Court or the Tribunal of the reality of the legal interest alleged and that it may be affected by the decision, as well as that the object and purpose of its application correspond to the form of intervention allowed by the said Article 62 and Article 31. In paragraph 67 (above), it has been described what the Court considers to be a proper object and purpose of this form of intervention. Permission to intervene was not granted by the ICJ to Malta and Italy on grounds relating mainly to the object and purpose of their respective applications as understood by the majority of the Court. The ICJ jurisprudence contains also statements excluding as a proper object and purpose of this form of intervention applications pursuing a simple interest in pronouncements on the principles of international law applicable, or to prejudge or adjudicate applicant’s claims in eventual future or existing disputes with either of the parties to the case, or the prevention of conflict.42 73. The intervention as of right – which is exercised through the filing of a declaration of intervention – concerns the intervention by a third party to a multilateral convention or agreement at issue in the case. According to Article 63 of the ICJ Statute, whenever the construction of a convention to which States other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith and every State so notified has the right to intervene in the proceedings. In Article 32 of the ITLOS Statute, the term “construction” has been replaced by the expression “interpretation or application” which is more specific and precise and appears in fact to correspond to the understanding by the ICJ of the term “construction” in the present context. A second improvement in the drafting of Article 32 of the ITLOS Statute is that it avoids giving the wrong impression that the right of the third to

42 I.C.J. Reports 1981, p. 17, para. 30, 1984, p. 25, para. 21, and 2001, p. 597, para. 53, p. 604, para. 64 and p. 606, para. 90.

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intervene depends on the notification of the Registrar. The ICJ Rules have however made plain that the Registrar’s notification has not such constitutive effects. 74. Other differences between the texts of Article 63 of the ICJ Statute and Article 32 of the ITLOS Statute are more substantive in nature without modifying however the form of intervention considered which is similar in both Statutes. First, in the ICJ Statute the “third” must be a “State”, as in the form of intervention of Article 62, while in the ITLOS Statute the “third” may be a “State Party” to the LOS Convention or, in certain hypothesis, a “State” or “an entity other than a State” parties to one of the international agreements referred to in Articles 21 and 22 of the ITLOS Statute. Secondly, the conventional instruments giving rise to the right of the third to intervene are limited in the ITLOS Statute to the LOS Convention and the international agreements mentioned in the said Articles 21 and 22, while in the ICJ Statute any convention in question in the case gives rise to the right of the third to intervene. 75. The form of intervention as of right is also placed under the control of the ICJ and ITLOS. It is up to the Court or the Tribunal to decide whether or not a given declaration of intervention corresponds to this form of intervention by verifying the elements of fact conditioning the existence of the right. For example, the reality of the convention or agreement concerned, la qualité of party thereto of the third, or whether the interpretation or application of the convention or agreement is actually at issue in the case. In other words, this form of intervention does not free the Court or the Tribunal of their duty to verify whether or not a given declaration of intervention is a genuine intervention under Article 63 of the ICJ Statute or Article 32 of the ITLOS Statute as the case may be.

c) Incidental Proceedings on Intervention 76. The incidental proceedings on intervention are open by the filing by a third of an application for permission to intervene or of a declaration of intervention as the case may be. In the ICJ system, an application under Article 62 shall be filed as soon as possible, and not later than the closure of the written proceedings in the case, and a declaration of intervention under Article 63 as soon as possible, and not later than the date fixed for the opening of the oral main proceedings (Articles 81 and 82 of the ICJ Rules). The ITLOS Rules make no distinction in this respect and are more precise. Applications and declarations shall be filed not later than 30 days after the counter-memorial in the case becomes available (Articles 99 and 100 of the ITLOS Rules). But, both Rules of Procedure provide that in exceptional circumstances an application or declaration submitted at a later stage may be admitted. Applications and declarations shall, also in both systems, be signed and state the name of the agent (ITLOS


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Rules add the address). They shall contain a list of documents in support, copies of which documents shall be annexed. 77. As to the contents, an application for permission to intervene shall, in the ICJ and ITLOS systems, specify the case to which it relates and set out: 1) the interest of a legal nature which the third applying for permission to intervene considers that may be affected by the decision in the case; and 2) the precise object of the intervention sought by the applicant (Article 81, paragraph 2 (a) and (b), of the ICJ Rules and Article 99, paragraph 2 (a) and (b), of the ITLOS Rules). The Court and the Tribunal are bound to consider the reality of the alleged legal interest and whether the object of the application corresponds to what is contemplated by the Statute. As indicated above, the ICJ practice shows the important role played by the object of the application for the granting of the permission to intervene, the reason being that the nature of the competence created by Article 62 of the Statute is definable by reference to the object and purpose of intervention. In sum, to authorise the intervention, the Court or the Tribunal must satisfy itself that the interest alleged and the object of the application correspond to what is envisaged by the Statute. 78. Article 81, paragraph 2 (c), of the ICJ Rules adds a third element to the contents of an application for permission to intervene, namely to indicate “any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case”. This provision, inserted for the first time in the 1978 Rules of Court, has not been incorporated in Article 99, paragraph 2, of the ITLOS Rules and rightly so. It gave rise to misinterpretations in the practice of the ICJ and, in any case, has lost its former raison d’être, as from the moment that the function of intervention and the nature of the Court’s competence under Article 62 of the ICJ Statute has been unveiled. 79. For historical reasons, and up to the time of the Italian Application for permission to intervene in the Continental Shelf (Libya/Malta) case, the said function and competence was the object of debate. The resulting uncertainties gave rise to the so-called “jurisdictional link” theory and its defenders found comfort in a provision as Article 81, paragraph 2 (c), of the ICJ Rules, notwithstanding that the words “any basis” used therein excluded that a valid link of jurisdiction external to the Statute could be a condition sine qua non for the statutory intervention of Article 62. The theory of the jurisdictional link fulfilled however an important role by helping the unveiling by the Court of the genuine intervention of Article 62. Actually, the understanding finally reached as to the nature of the competence under Article 62 was the clue for identifying definitively the function of this form of intervention and, therefore, its statutory object and purpose. 80. The origin of the jurisdictional link theory was in effect linked to the existence at that time of uncertainties on matters such as intervention as a “party” and as a “non-party” and on the possibility of having recourse by a third to the Article 62 intervention as a means to introduce a new case or enlarging the scope of the subject-matter of a case before the Court by submitting

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claims against the parties or a party thereto. This debate ended when in 1990 the Chamber in the Land, Island and Maritime Dispute (El Salvador/Honduras) found that “the absence of a jurisdictional link between Nicaragua and the Parties to this case is no bar for permission being given for intervention.”43 Subsequently, the full Court has endorsed this finding. Then, if a jurisdictional link external to the Statute is not a bar, an intervening third cannot, on the exclusive basis of Article 62, be a “party” in the proceedings because that Article does not contain any derogation from the consensual jurisdiction principle governing the jurisdiction of the Court on merits.44 81. The second main difference between the ICJ and ITLOS Rules concerns Article 99, paragraph 3, of the ITLOS Rules according to which permission to intervene under Article 31 of the ITLOS Statute may be granted irrespective of the choice of procedure made by the applicant under Article 287 of the LOS Convention. It is a provision fully justified in the ITLOS system, but unnecessary for a system as the ICJ system. No such provision exists therefore in Article 81 of the ICJ Rules. 82. A declaration of intervention shall, in both the ICJ and ITLOS systems, specify also the case to which it relates and contain: 1) an identification of the particular provisions of the convention (or of the international agreement), the construction (the interpretation or application) of which it considers to be in question; 2) a statement of the construction (set out the interpretation or application) of those provisions for which it contends (Article 82, paragraph 2 (b) and (c), of the ICJ Rules and Article 100, paragraph 2 (b) and (c), of the ITLOS Rules). 83. Article 82, paragraph 2 (a), of the ICJ Rules adds a further element, namely that the declaration of intervention shall contain particulars about the basis on which the declaring State considers itself a party to the convention. This element has been dropped from Article 100, paragraph 2, of the ITLOS Rules. A possible explanation for this omission is the restricted number and the kind of the conventional instruments giving rise to the right of thirds to intervene under Article 32 of the ITLOS Statute, as well as the development reached by the United Nations system for the registration of treaties. 84. In the ICJ and ITLOS systems, the Registrar shall communicate forthwith to the parties to the case certified copies of the application for permission to intervene or the declarations of intervention as the case may be. Copies are also transmitted in both systems to the Secretary-General of the United Nations. Also, in the case of the ICJ, to the Members of the United Nations, and other States entitled to appear before the Court, as well as to any other States which have been notified under Article 63 of the Statute of the Court; and, in the case of ITLOS, to the States Parties to the LOS Convention and to any 43 44

I.C.J. Reports 1990, p. 135, para. 101. Ibid., p. 134, para. 99.


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other parties which have to be notified under Article 32, paragraph 2, of the ITLOS Statute, as well as to the Secretary-General of the Authority when the proceedings are before the Sea-Bed Disputes Chamber (Article 83 of the ICJ Rules and Article 101 of the ITLOS Rules). 85. The organisation of the incidental proceedings on applications for permission or declarations of intervention is similar in the ICJ and ITLOS systems. The parties to the case are invited to furnish written observations within fixed time-limits and if an objection is filed, the Court or the Tribunal shall hear the third seeking to intervene and the parties before deciding. There is therefore always a simplified written phase followed, eventually, by an oral phase which is obligatory in case of party’s objection only. The Court or the Tribunal shall decide the incident as a matter of priority unless in view of the circumstances of the case they determine otherwise (Articles 83, paragraph 1, and 84 of the ICJ Rules, and Articles 101, paragraph 1, and 102 of the ITLOS Rules). 86. The ICJ and ITLOS Rules are silent on the possibility of combining in a single document an application for permission to intervene and a declaration of intervention. However, in the Request for an examination of the situation in accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 case (introduced in 1995 by New Zealand versus France), Samoa and Solomon Islands, and Marshall Islands and the Federated States of Micronesia did so, through the filing of documents entitled “Application for permission to intervene under Article 62/Declaration of intervention under Article 63”. They were dismissed because the related principal case was dismissed, not as a result of the combined form of presentation adopted by the said Applicant/Declaring States.45

d) The Decision Granting or Admitting the Intervention and Its Effects 87. Intervention incidental proceedings are closed by a decision of the court or tribunal concerned. The decision – which is jurisdictional in character – may either reject or grant or admit the intervention and will put an end to the incident open by the filing of the corresponding application or declaration. The present Rules of Procedure of the ICJ and ITLOS are silent as to the “form” to be adopted by the decision. It could well be a “judgment”, an “order” or any other form. In the practice of the ICJ, the decisions relating to Article 62 have adopted the form of either a judgment or an order. The judgment form has been followed in every case where there was a party’s objection to the grating of the permission to intervene. Otherwise the decision has adopted the form of an

45

I.C.J. Reports 1995, p.292, para. 11, and p. 307, para. 68.

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order. The decisions concerning Article 63 by the ICJ have always adopted the form of an order, except in the case of the Cuban Declaration of intervention in the Haya de la Torre case in which the decision was read out in open Court. 88. Whatever the form may be, these decisions have in any case binding effects for the third and the parties to the case. If an application for permission to intervene is granted, or a declaration of intervention is admitted, the State seeking to intervene in the first case, or the State (or “entity” in the case of ITLOS) having declared its intervention in the second, will become an “intervening State” or an “intervening entity” as the case may be. In other words, the third ceases to be such, becoming an “intervener” or “intervenor” entitled to participate in such a condition in the main proceedings in the case. 89. Articles 85 and 86 of the ICJ Rules and Articles 103 and 104 of the ITLOS Rules define the procedural rights of the “intervening State” (or, eventually, in ITLOS “intervening entity”) in the main proceedings by reference to the form of intervention concerned. An intervening State under Article 62 of the ICJ Statute and under Article 31 of the ITLOS Statute shall be supplied with copies of the pleadings of the parties to the case and documents annexed, and shall be entitled to submit a written statement within fixed time-limits. A further time-limit shall be fixed within which the parties to the case may, if they so desire, furnish in turn written observations on the intervener’s statement prior to the oral proceedings. The time-limits should, so far as possible, coincide with those already fixed for the pleadings in the case (Article 85, paragraphs 1 and 2, of the ICJ Rules and Article 103, paragraph 1 and 2, of the ITLOS Rules). Furthermore, the intervening State is entitled to submit at the hearings its observations with respect to the subject-matter of the intervention (Article 85, paragraph 3, of the ICJ Rules and Article 103, paragraph 3, of the ITLOS Rules). 90. The procedural rights of an intervener under Article 63 of the ICJ Statute, or under Article 32 of the ITLOS Statute, are quite similar to those just described, except for one particular point. The entitlement to submit a “written statement” during the written phase is more limited, becoming an entitlement to submit “written observations on the subject-matter of the intervention”. Moreover, these written observations are communicated not only to the parties to the case but also to “any other State (or entity in the case of ITLOS) admitted to intervene” (Article 86, paragraph 1 and 2, of the ICJ Rules and Article 104, paragraph 1 and 2 of the ITLOS Rules). 91. Finally, Articles 103, paragraph 4, and 104, paragraph 3, of the ITLOS Rules provide that the intervening State or entity, as the case may be, is not entitled to choose a judge ad hoc or to object to a parties’ agreement to discontinue the proceedings in the case. The practice of the ICJ is fully in accordance with these procedural principles which confirm, beyond any reasonable doubt, that a statutory intervener or intervenor is not a party to the case.


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e) The Question of the Legal Effects for the Intervening State or Entity of the Decision in the Principal Case 92. The question remains which legal effects the decision of the Court, or the Tribunal, on the merits of the case has for an intervener. In an intervention as of right, pursuant to Article 63 of the ICJ Statute or Article 31 of the ITLOS Statute, those legal effects are quite clear in both systems. As stated in those Articles, the construction or interpretation of the convention or agreement concerned given by the judgment will be equally binding on the intervener or intervenor. No problem therefore with respect to this form of intervention in the two systems. 93. The matter presents itself differently, as to the texts, in the case of the intervention by authorisation of Article 62 of the ICJ Statute and Article 31 of the ITLOS Statute. In the case of ITLOS, paragraph 3 of Article 31 settles expressly the question by providing that: “If a request to intervene is granted, the decision of the Tribunal in respect to the dispute shall be binding upon the intervening State Party in so far as it relates to matters in respect to which that State Party intervened”. This provision is quite useful as it reflects rightly basic principles of the institution of intervention in the droit commun, and balances intervener’s rights with its obligations as it should be. 94. The ICJ Statute is silent on this important question. It is clear that the effect of the decision for an Article 62 intervening State cannot be a res judicata effect since it is not a party to the case. But binding effects should not be confused with res judicata effects as recognised in Article 63. The circumstances of the elaboration of the 1920 Statute and the uncertainties existing on the then new form of intervention of Article 62 are at the cause of a wording lacuna which, unfortunately, was not reviewed in 1945 – probably because of the lack of practice at that time in the application of the provision. However, since the seventies, States have activated Article 62 and the matter is indeed in need of an interpretation or clarification by the Court. It is the only important pending question in an otherwise quite complete and coherent ICJ jurisprudence on Article 62 interventions. 95. As explained on other occasions, my personal opinion is that a provision similar to Article 31, paragraph 3, of the ITLOS Statute should be considered to be implied in Article 62 of the ICJ Statute because it is inherent to the institution of intervention.46 The recent Land and Maritime Boundary between Cameroon and Nigeria case is particularly illustrative in this respect. Both Equatorial Guinea and Sao Tome and Principe were originally thirds with

46 See: I.C.J. Reports 1992, p. 730, para. 208; and my article “L’intervention dans la procédure de la Cour internationale de Justice”, op. cit., supra note 26, at pp. 426–437.

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respect to the case. But one of them, Equatorial Guinea, became later on an intervening State in the case. In my opinion it cannot be said that both States are in the same position with respect to the eventual legal effects of the contents of Court’s Judgment (merits) of 10 October 2002 for them. The contents of the Judgment are indeed res inter alios acta for Sao Tome and Principe, but the contents of the Judgment on the maritime delimitation aspects of the case are not alien for Equatorial Guinea. 96. As an intervening State, Equatorial Guinea informed the Court that its legal interests or rights went as far as to the median line between it and each of the parties but not beyond47 and, in effect, the last point (point G) of the maritime delimitation line between Cameroon and Nigeria defined by the Judgment appears as not going beyond the median line between Equatorial Guinea and each of the parties. In my opinion, this aspect of contents of the Judgment has binding effects for Equatorial Guinea in its future maritime delimitations with Cameroon or with Nigeria. In those delimitations, Equatorial Guinea would not be entitled to make claims in areas beyond the median line with those countries or, in any case, to the north of point G of the maritime delimitation line between Cameroon and Nigeria defined by the Judgment. However, Sao Tome and Principe would not be subject to the same legal limitation in future maritime delimitations with Cameroon or with Nigeria because of its condition of non-intervening third in the case between Cameroon and Nigeria.

47

I.C.J. Reports 1999 (II), p. 1031, para. 3.

What have the United Nations Convention and the International Tribunal for the Law of the Sea to offer as regards Maritime Delimitation Disputes? Tullio Treves* 1. INTRODUCTION: SUBSTANTIVE AND PROCEDURAL RULES States Parties to the United Nations Convention (UNCLOS) on the Law of the Sea that are involved in a maritime boundary delimitation dispute are bound by the relevant substantive and jurisdictional-procedural provisions of the Convention. As far as substantive provisions are concerned, brief indications are sufficient. While the rule on territorial sea boundaries (Article 151) repeats the equidistance/special circumstances rule of the Geneva conventions concerning the territorial sea as well as continental shelf delimitations, the separate, but identical rules concerning the exclusive economic zone and the continental shelf depart from that rule. Articles 74 and 83 omit stating a substantive principle. The principle of achieving “an equitable solution” is mentioned only as the

* Judge of the International Tribunal for the Law of the Sea. 1 Articles without further reference refer to the United Nations Convention on the Law of the Sea (UNCLOS).


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purpose of delimitation agreements. Only indirectly, in light especially of the North Sea Continental Shelf judgments,2 can this principle be indicated as the contents of the substantive – although imprecise – rule to be followed by adjudicating bodies. This rule does not add anything to customary law. It does not, however, preclude the judge from utilizing further refinements of customary law, such as the developments emerging from recent judgements of the ICJ according to which something very similar to the equidistance/special circumstances rule of the Geneva conventions on the territorial sea and on the continental shelf is the correct way to achieve an equitable result.3 Nor is the judge precluded form applying the rules that may be in the process of emerging as regards “single line” delimitations, a subject not mentioned by the Convention.4 As regards the jurisdictional-procedural rules, the most relevant consequence of being parties to the Convention is that disputes concerning delimitation of maritime areas are normally comprised within the compulsory jurisdiction of an adjudicating body, judicial or arbitral, whose decision is binding for the parties. In other words, States Parties to the Convention may institute proceedings for adjudication concerning the delimitation of maritime areas against another State Party without having to secure the agreement of that party. Delimitation disputes are included (with the optional exception we will mention) in the general rule of Article 286 that provides that compulsory procedures entailing binding decisions shall apply to disputes concerning the interpretation or application of the Convention. This is a very powerful tool at the disposal of a State Party. In light of the number of States Parties to which it applies, it broadens almost threefold the possibilities that exist as between States that have made the optional declaration of Article 36, paragraph 2, of the ICJ Statute. In the early years since entry into force of the Convention, States Parties did not seem to have fully realized the potential of this tool. Since 2003, however, things seem to have radically changed. In July 2003, Malaysia instituted proceedings against Singapore

2

Federal Republic of Germany/Denmark, Federal Republic of Germany/The Netherlands, I.C.J. Reports 1969, p. 3. 3 Cameroon v. Nigeria, case concerning the inland and maritime boundary, Judgment of 10 October 2002, available in www.cij-cij.org. In para. 288, the ICJ, confirming previous judgments, states that the criteria, principles and rules of delimitation “are expressed in the so-called equitable principle/relevant circumstances method. This method, which is very similar to the equidistance/special circumstancesa method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result’”. 4 See I. Papanicolopulu, “Some Thoughts on the Extension of Existing Boundaries for the Delimitation of New Maritime Zones”, in the present volume.

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under the Convention inter alia for the delimitation of a portion of the territorial sea boundary between the two States;5 in February 2004, Barbados started proceedings, also invoking the compulsory jurisdiction clauses of the Convention, against Trinidad and Tobago for the delimitation of the exclusive economic zone and continental shelf between them;6 again, in February 2004, Guyana started proceedings against Suriname for delimitation of the maritime boundary.7 It must be recalled that this tool can be used only when certain conditions are satisfied. Firstly, no agreement must be in force between the parties that permits to reach an equivalent result, in other words: the parties must not be otherwise bound to submit “at the request of any party to the dispute” their disputes concerning the interpretation or application of the Convention “to a procedure that entails a binding decision” (Article 282). Secondly, views must be exchanged regarding the settlement by negotiation or other peaceful means (Article 283). The impact of this clause must not, however, be exaggerated. The International Tribunal for the Law of the Sea (ITLOS) has decided more than once, in responding to claims that the conditions set out in Article 283 had not been satisfied, that “a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted”.8 Lastly, recourse to the procedures set out in part XV of the Convention, including compulsory procedures, must not be excluded by an agreement in force between the parties (Article 281, a provision which was given a

5 The Notification and Statement of claim, including the request to constitute the arbitral tribunal under Annex VII, was introduced by Malaysia on 4 July 2003: see the ITLOS Order of 8 October 2003 in the Case concerning land reclamation by Singapore in and around the Straits of Johor (provisional measures), in: ITLOS Reports 2003, p. 10, para. 22. 6 The Notification and Statement of claim, including the request to constitute the arbitral tribunal under Annex VII, was introduced by Barbados on 16 February 2004: see www.pca-cpa.org for the press release of 23 August 2004, the Rules of Procedure and the Order No. 2 adopted on the same date. 7 The Notification and Statement of claim, including the request to constitute the arbitral tribunal under Annex VII, was introduced by Guyana on 24 February 2004: see the information available at www.pca-cpa.org. 8 Southern Bluefin Tuna Cases, Order of 27 August 1999, ITLOS Reports 1999, p. 280, para. 60. In The MOX Plant Case, Order of 3 December 2001, ITLOS Reports 2001, p. 95, para. 60, the Tribunal stated in the same vein that “a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted”. In the Order of 8 October 2003 in the Case concerning land reclamation by Singapore in and around the Straits of Johor, op. cit., supra note 5, para. 47, the Tribunal quotes and confirms these statements.

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much-criticised broad interpretation in the Southern bluefin tuna case, a nondelimitation case, by an arbitration tribunal set up under the Convention).9 Two aspects of the compulsory jurisdiction principle relating more specifically to delimitation disputes require policy choices by States Parties and careful assessment by counsel. These aspects concern the adjudicating body that exercises compulsory jurisdiction under the Convention and the scope of such jurisdiction.

2. COMPULSORY JURISDICTION: FLEXIBILITY AS TO THE ADJUDICATING BODY. THE PROS AND CONS OF ARBITRATION AND OF THE PERMANENT JUDICIAL BODIES (THE ICJ AND ITLOS) a) The Choice-of-Procedure Mechanism As is well known, the Third United Nations Conference on the Law of the Sea could not agree on a single adjudicating body to exercise compulsory jurisdiction. It adopted the so-called “Montreux formula” set out in Article 287 of the Convention.10 According to this provision, the parties that so wish may indicate, through a specific declaration, as the preferred adjudicating bodies one or more of the following: the new International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), an arbitration tribunal of general competence (an Annex VII Tribunal), and specialised arbitration tribunals (Annex VIII Tribunals). Whenever the parties to the dispute have made the same choice, that choice designates the adjudicating body that will exercise compulsory jurisdiction (Article 287, para. 4). When the parties have not made the same choice, an arbitration tribunal of general competence shall be the adjudicating body (Article 287, para. 5). The impact of the rule is strengthened by a further provision stating that a State Party to a dispute not covered by a choice of procedure declaration is deemed to have accepted arbitration (Article 287, para. 3). The fewer the States that exercise their right to make a declaration under Article 287

9

Southern Bluefin Tuna Case, Australia and New Zealand v. Japan. Award on Jurisdiction and Admissibility, 4 August 2004, 39 International Legal Materials, 2000, p. 1359 ff. 10 S. Rosenne, “UNCLOS III – The Montreux (Riphagen) Compromise”, in: A. Bos, H. Siblesz (eds.), Realism in Law-Making: Essays in Honor of Willem Riphagen (Dordrecht, Martinus Nijhoff Publishers, 1986), pp. 169–178; J.-P. Quéneudec, “Le choix des procédures de règlement des différends selon la Convention des Nations Unies sur le droit de la mer”, in: Mélanges Michel Virally: Le droit international au service de la paix, de la justice et du développement (Paris, A. Pédone, 1991), pp. 383–387.


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the stronger becomes the position of arbitration. Indeed, in the three above mentioned delimitation cases started in 2003 and 2004, none of the six States involved had made the declaration under Article 287, so that the plaintiffs had no other choice than to institute proceedings before an arbitral tribunal. So the Convention provides for a flexible mechanism to determine the adjudicating body to exercise compulsory jurisdiction. The mechanism is, nevertheless, tilted in favour of arbitration.

b) The Practice of States under Article 287 Ten years after the entry into force of the Convention it is possible to indicate how States Parties have used the right given to them by Article 287 and to assess the policy choices that article poses to States and the devices used to make such choices effective. When we look at the table setting out the declarations made under Article 287 we remark at first sight that this table is much shorter than the table setting out the ratifications and accessions to the Convention.11 About three-quarters of the 149 parties to the Convention have abstained from making the choice-ofprocedure declaration. When we examine the content of the table, we see that 3512 out of 148 States have made the declaration. Among these, eleven have expressed a clear preference for the International Tribunal for the Law of the Sea,13 a smaller group of seven has indicated a preference for the International Court of Justice,14 and a growing group of nine States has made its choice for both the Hamburg Tribunal and the Hague Court, indicating clearly that they give no priority to either of the two adjudicating bodies.15 Just a very small group has made the unnecessary declaration of preference for arbitration. A

11 References at http://www.un.org/Depts/los/settlement_of_disputes/choice_procedure.htm (updated 09 September 2005) and http://www.un.org/Depts/los/convention_ agreements/convention_agreements.htm (updated 28 July 2005). 12 Not counting Algeria, Cuba and Guinea-Bissau that have only (unnecessarily) indicated that they reject the jurisdiction of the ICJ. 13 Argentina, Austria, Cape Verde, Chile, Croatia, Germany, Greece, Hungary, Tunisia, Tanzania, Uruguay. 14 Denmark, Honduras, Netherlands, Nicaragua, Norway, Sweden, United Kingdom. 15 Australia, Belgium, Estonia, Finland, Italy, Latvia, Lithuania, Oman, Spain (reversing an earlier indication for the ICJ alone). Very close to this group is Mexico that has indicated equal preference for ITLOS, the ICJ and Annex VIII specialized arbitration, and Canada that has indicated equal preference for ITLOS and for specialized arbitration under Annex VIII. Portugal has indicated its preference for all the four methods indicated in Art. 287.

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number of States, having expressed a preference, also expressed other preferences subordinate to the one put on first place.16

c) Reasons for Lack of Choice I do not think that lack of choice indicates necessarily a preference for arbitration, even though this is the consequence it entails because of the provision of Article 287, paragraph 3. When such clear preference exists, States have indicated it expressly, as has done the Soviet Union (now Russian Federation) and as the United States intends to do if and when it accedes.17 Though in some cases States may have considered it expedient to choose arbitration by abstaining from making the declaration, not making a declaration corresponds to a “wait and see” attitude. This is consistent with the normal “bureaucratic prudence” based on the idea that an official is more likely to be accused of making a mistake if she or he does something that is not necessary to do, than if she or he does not do it. Two cases, the Saiga No. 2 case18 and the Swordfish case,19 in which the parties agreed to transfer the proceedings to the International Tribunal for the Law of the Sea, while arbitration was the applicable procedure because of lack of choices of one or both parties, show that, when confronted with a specific dispute, parties may well reconsider the consequences of their lack of choice. Transfer of proceedings from arbitration to the Law of the sea Tribunal may, nonetheless, present difficulties in practical terms. Even when both parties recognize the advantages of such transfer, it is likely that if one party proposes it, the other party will become suspicious of the first party’s motives and oppose the proposal. In the cases mentioned above, the idea of transfer was brought to

16 For some further observations on the practice of declarations under Art. 287, see T. Treves, Le controversie internazionali. Nuove tendenze, nuovi tribunali (Giuffré, Milano, 1999), pp. 111–121. 17 The declaration under Art. 287 was set out in the submission by the Clinton administration of the Convention to the U.S. Senate for its advice and consent (S. Treaty Doc. 103–39) and was repeated in the Executive Report of the Senate’s Foreign Relations Committee of March 11, 2004, (S2712 Congressional Record, reproduced in 35 Ocean Development and International Law, 2004, p. 214). 18 St. Vincent and the Grenadines v. Guinea, Order on provisional measures, 11 March 1998, para. 14, where the agreement of 20 February 1998 for the transfer of the case to ITLOS is reproduced (ITLOS Reports 1998, p. 24). 19 Case concerning the conservation and sustainable exploitation of swordfish stocks in south-eastern Pacific Ocean, Chile/European Community, order of 20 December 2000, ITLOS Reports 2000, p. 148, para. 2, where the exchange of notes of 18–19 December 2000, transferring the case to a Chamber of the Tribunal, is reproduced.


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fruition only through patient exercise of good offices by the President of the Tribunal. When the case is already before the Tribunal for the prescription of provisional measures under Article 290, paragraph 5, of the Convention, to keep it there for judgment on the merits would seem natural. It becomes nonetheless extremely difficult if the discussions are held after the order for provisional measures has been made. One party (or perhaps both parties) will unavoidably, although not necessarily correctly, read between the lines of the decision on provisional measures signs of the orientation of the Tribunal on the merits. In light of these observations, it seems fair to assume that the question of choice of procedure under Article 287 is still an open one for the great majority of States Parties. This is confirmed by the fact that General Assembly resolutions on the Law of the Sea invite States to make such declarations.20 Consequently it seems also fair to reflect on the policy questions States are confronted with when envisaging their choice under Article 287.

d) Arbitration or Permanent Adjudicating Bodies? It would seem that the basic choice to be made under Article 287 is the one between arbitration and a permanent adjudicating body. In favour of arbitration, the following elements are usually mentioned: First, the reason historically given for making arbitration the “default” rule in Article 287. Arbitration, as compared to permanent courts and tribunals, entails a smaller exception to State sovereignty as parties exercise more control on the persons in charge of adjudication.21 In fact, while the arbitration panel requires the agreement of the other party, each party can count on that no person to which it strongly objects will be a member of the panel. Second, it is possible to keep arbitration confidential. Third, arbitration is more expeditious than proceedings before permanent adjudicating bodies. In favour of permanent bodies one can mention the following elements: First, the permanent character of the court or tribunal makes it more predictable as previous decisions can be consulted. Second, a permanent court or tribunal is less expensive for parties. They do not have to pay arbitrators’ fees and subsistence costs, nor those of interpreters, translators and of a registrar and other staff, not to mention the rental of the premises where the proceedings are held.

20 In 2003, Res. 58/240 of 23 December 2003, para. 9; in 2004 Res. 59/24 of 17 November 2004, para. 20. 21 Pastor Rudrejo, “La solución de controversias en la Tercera Conferencia de Naciones Unidas sobre el Derecho del Mar”, Revista española de derecho internacional, 1977, pp. 11–32, at p. 26, recalls the argument by France (the main proponent of making arbitration, and not ITLOS as it had been proposed, the “default” mechanism), that each pre-constituted tribunal is a badly constituted tribunal.

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Moreover, although they undoubtedly have an appeal for some States in certain circumstances, the arguments invoked in favour of arbitration are not beyond criticism, or always valid. As to the control on the composition of the panel, this advantage can be almost completely offset if parties agree on entrusting the case to a special chamber of the Court or Tribunal, especially in light of the fact that the rules on national and ad hoc judges apply to the chambers.22 It must also be considered that, in selecting a panel of three or five arbitrators, to misjudge the attitude of just one member of the panel can be very dangerous for a party, while in a 15 or 21 member body the balance of views is much more likely to be ensured. As regards confidentiality of written and oral pleadings, in permanent bodies it is exceptional, even though not legally impossible, and the publicity of the judgment is the rule. In arbitration normally documents and pleadings are confidential – even though recent practice shows at least a case in which hearings of a delimitation arbitration were held in public.23 However, as said in the Permanent Court of Arbitration’s communiqués concerning the Barbados/ Trinidad and Tobago and the Guyana/Suriname disputes mentioned above, it is to be expected that the Arbitral Awards are made public. In any case confidentiality depends on the agreement of the parties. A far as the duration is concerned, important delimitation cases before arbitral tribunals can be, and have been, quite long. It would, moreover, be unfair to ITLOS to assimilate the duration of cases before it to that of delimitation cases before the ICJ. Finally, another element that can influence the choice – although not necessarily always in the same direction – is that the Statutes of the ICJ and ITLOS admit, under certain conditions, third party intervention, while Annex VII regulating arbitration does not provide for such possibility, even though parties would seem to be entitled to agree on a rule that admits it. States wishing to exclude third parties’ intervention might consider this a reason not to choose a permanent body, while the choice of ITLOS or the ICJ may become attractive for States that do not want to be precluded from the possibility of intervening in a dispute. As Annex VII arbitration would be based on the Convention as would proceedings before ITLOS or the ICJ, provisional measures could be requested under Article 290 in arbitral proceedings as in judicial ones. So the unavailability of provisional measures that has been indicated as an element of difference

22

ITLOS Statute, Art. 17, para 4; ICJ Statute, Art. 31 para. 4. This was the Canada/France arbitration on the maritime border in the area of SaintPierre-et-Miquelon: see paras. 3–5 of the arbitration agreement of 30 March 1989, reproduced in the arbitral award of 10 June 1992, in 31 International Legal Materials, 1992, p. 1145. 23


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between arbitral and judicial proceedings24 does not play a role in the choice under Article 287. While of course the reasons for choosing arbitration may in many cases be respectable, it would seem that in general, as a policy option, to be envisaged as is the case under Article 287, in abstracto for all possible disputes, the arguments invoking predictability and lower costs suggest that the choice in favour of permanent jurisdictions deserves a closer look by States that have made no choice. The fact that States as Oman, Belgium, Finland, Italy, Latvia, Lithuania, Spain, Mexico and Australia have chosen the Hague Court and the Hamburg Tribunal, putting them on the same level, shows that some States, after due reflection (most of these States have not made their choice immediately after ratification)25 became persuaded of the advantages of permanent jurisdiction in comparison with arbitration.

e) ITLOS or ICJ? As regards the choice between the International Tribunal for the Law of the Sea and the International Court of Justice . . . as a member of the Tribunal, I cannot claim to be totally unbiased. I will nonetheless try to be as objective as I can by abstaining from arguments against a choice of the ICJ and limit myself to indicating, first, aspects that States can assess differently according to their tradition and interests and, second, what the Tribunal, in particular, has to offer. The first aspect to be considered is that the Tribunal is a new institution. As its case-law has so far showed respect for the jurisprudence of the ICJ, and no intention of breaking away from it, it is likely that the approach the Tribunal will follow in delimitation issues will be similar to that of the Court.26 On a subject that, as delimitation of maritime areas, belongs to the very core of the law of the sea, it is nonetheless possible that the Tribunal will develop lines of thought different from those the Court has reached after a string of decisions spread over decades and that, though not necessarily inconsistent, certainly show an evolution. Whether this unlikely but possible difference of attitude on

24

R.R. Churchill, “The role of the International Court of Justice in Maritime Boundary Delimitation”, in: A.G. Oude Elferink, D. Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Leiden/Boston, Martinus Nijhoff Publishers, 2004), pp. 125–142, at p. 135. 25 The exceptions being Oman (who was the first to make this choice) and Lithuania, the last. 26 See references in T. Treves, “Advisory Opinions of the International Court of Justice on Questions Raised by Other Tribunals”, 4 Max Planck Yearbook of United Nations Law, 2000, pp. 215–231, at p. 221.

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substance is an attraction or a negative factor in choosing the Tribunal depends on the interests of each State. A second aspect is that the composition of the Tribunal is different from that of the Court. Not only is it a bigger body, 21 compared to 15 judges. The election of its members, although held in New York, is totally detached from the United Nations. Only States Parties participate in it, even though a citizen of a non-member State may be, and once was in fact, elected. Judges from the Third World are in proportion more numerous in the Hamburg Tribunal than in the Hague Court. Permanent members of the Security Council do not enjoy the special position they de facto have in the election of the ICJ because of the rule that ICJ judges must obtain a majority in the General Assembly and in the Security Council. The fact that at present, citizens of the four permanent members that are parties to the Convention are members of the Tribunal shows, however, that there is no bias against permanent members of the Security Council. Again, this is an aspect that must be considered, even though it may bring States to different conclusions. As regards the procedure applicable to the cases, the rules of the Tribunal are not basically different from those of the Court. States can have different views as to those rules that are different, even though none of the differences would seem to be such as to justify, in the abstract, a choice in either direction. This has become particularly true during the last few years, as amendments to the Rules of the ICJ and changes in its practices, as well as the adoption of certain “practice directions”, have narrowed the differences. Very often, the Court has reacted to the rules of ITLOS, which in turn had been adopted in light of criticism directed at the corresponding rules of the ICJ. As the Court, the Tribunal offers to parties so agreeing the possibility of establishing an ad hoc Chamber whose composition the Statute explicitly states must meet the approval of the parties (Art. 15, paragraph 2, ITLOS Statute). This principle is not in the rules of the Court, even though the Court de facto follows it, so that in practice there is no difference. The rules on preliminary objections are different, especially as regards the time-limits, although the recent amendment to the Rules of the ICJ, and the 2004 Practice direction No. V, have made the difference smaller. Different are also the rules on intervention. As regards the Tribunal, the requirement of a jurisdictional link is not indicated and it is not clear whether the difference, developed by the ICJ in its case law, between intervention “as a party” and intervention “not as a party” would apply to proceedings before the Tribunal.27 The LaGrand judgment of the ICJ28 has eliminated a major difference, that between provisional measures based on the

27

See T. Treves, Le controversie internazionali. Nuove tendenze, nuovi tribunali, op. cit., supra note 16, p. 155. 28 Germany v. United States, judgment of 27 June 2001, www.icj-cij.org.


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Convention, which are binding, and those of the Court (but probably not of the Court deciding under the jurisdictional clauses of the Convention) whose effect was the subject of controversy up to the above mentioned judgment. Apart from its magnificent premises, the hospitality extended to the parties and the facilities put at their disposal, the main attractions of the Tribunal, independently of the particular interests of each State, seem to be the following: First, it is composed of specialized judges. While on some matters of the law of the sea experience and capability in international law in general may be as important (and the Tribunal has shown that it does not lack such experience and capability), there is no doubt that delimitation of marine areas falls entirely within the expertise of specialized law of the sea judges, a number of which have been involved, as counsel or as negotiators, in maritime boundary questions. Second, the Tribunal tries to streamline its proceedings keeping contact with the parties and their needs. Third, the Tribunal has shown that is capable of proceeding expeditiously. In this it is helped by its rules and by its judicial style as well as by the fact that its agenda is – for the time being – far from being crowded.

3. COMPULSORY JURISDICTION: ITS SCOPE UNDER THE CONVENTION a) The Rule and the Optional Exception: Article 298, Paragraph 1 (a) Compulsory jurisdiction of a court or tribunal competent according to Article 287 is the rule under the Convention as regards delimitation disputes. It is not, however, a rule without exception. Compulsory jurisdiction is the rule because, once a State has ratified the Convention or has acceded to it, there is no principle in the Convention that automatically excludes delimitation disputes from compulsory jurisdiction. Such disputes are, in fact, not included in the “limitations” to compulsory jurisdiction that automatically apply under Article 297. Exceptions can nonetheless apply, if a State Party so wishes. Article 298 (entitled “optional exceptions”) allows States Parties to make a declaration in order to exclude from the scope of compulsory jurisdiction disputes concerning the interpretation or application of Articles 15, 74 and 83, namely, disputes concerning delimitation of the territorial sea, the exclusive economic zone and the continental shelf between States with opposite or adjacent coasts. There are no deadlines to make these declarations. However, they cannot apply to a dispute already pending before a court or tribunal. When a State Party has made such a declaration, it cannot invoke the compulsory jurisdiction provisions to seize a court or tribunal of a delimitation case against another State Party (see Article 298, paragraph 3). Conversely, other parties to the Convention cannot take advantage of the compulsory jurisdiction rules in order to institute

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delimitation proceedings against it, even though they can start a conciliation procedure (see Article 298, paragraph 4, which is admittedly unclear).29

b) Reasons for Making (or Not Making) the Declaration under Article 298, Paragraph 1 (a) Perhaps confirming the theory of “bureaucratic prudence” put forward above to explain why so few States have made their choice of procedure under Article 287 yet, States Parties that have made the declaration excluding delimitation disputes are also few, in fact even fewer. There are only 18 States Parties (including Iceland, Nicaragua and Norway) whose declarations have a restricted scope. Apart from the last mentioned three, they are: Argentina, Australia, Belarus, Canada, Chile, Equatorial Guinea, France, Italy, Mexico, Portugal, Russia, Slovenia, Spain, Tunisia, Ukraine. The position on the world map of these States has the effect of excluding to a great extent compulsory jurisdiction from delimitation cases in certain areas, such as the southern cone of South America and most of the Mediterranean, as well as North America (the US is not bound not being a party, but, if and when it becomes a party, it intends to make a declaration encompassing all exceptions mentioned in Article 298).30 The low number of declarations made entails, however, that in broad regions as East Asia, Africa and the Caribbean, compulsory jurisdiction will apply in most cases. It would seem reasonable to suppose that when States decide to exclude delimitation disputes from compulsory jurisdiction they do so because they consider that the advantages of excluding the possibility of becoming a defendant in a case started by another State prevail over the disadvantage of being

29

Art. 298, para. 4, is quite puzzling because it is drafted on the basis of a previous version of what is now Art. 298, para. 1 (a). This version mentioned the “declaration” that is referred to in para. 4, and of which there is no trace in the present version of para. 1 (a). Nevertheless, it would seem that the only interpretation that makes sense is to consider the acceptance of compulsory conciliation, mentioned in para. 1 (a), as equivalent to the “declaration” mentioned in para. 4. For the history of the provision see M.H. Nordquist, S. Rosenne, L.B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982 (Virginia Commentary), Vol. V (Dordrecht, Martinus Nijhoff Publishers, 1989), under Art. 298. On p. 116, at para. 16, the Commentary comes to the same conclusion as set out in the text, saying that the other parties are not precluded from “resorting to a conciliation commission”. 30 The declaration under Art. 298 was set out in the submission by the Clinton administration of the Convention to the U.S. Senate for its advice and consent (S. Treaty Doc. 103–39) and was repeated in the Executive Report of the Senate’s Foreign Relations Committee of March 11, 2004 (S2712 Congressional Record, reproduced in 35 Ocean Development and International Law, 2004, p. 214).


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excluded from the right of instituting proceedings against neighbouring States. This assessment may depend on that the declaring State considers it has a bad case (but what about the situation in which it has a bad case against one neighbour and a good one against another?). It may depend on that the State is of the view that in delimitation matters, a special agreement is preferable to unilateral applications and that it has a chance of getting such an agreement from the other party. It may also depend on that a State holds the general view that compulsory jurisdiction is an unwelcome aspect of the Convention and that it is good policy to minimize its effect; in this case such State will exclude all categories of disputes set out in Article 298, and not only, as Australia, Equatorial Guinea, Italy and Spain have done, delimitation disputes.

c) Compulsory Conciliation as a Replacement for Excluded Compulsory Jurisdiction Be it as it may, in deciding whether to make the declaration excluding delimitation disputes, a State Party to the Convention must also consider that, even if it makes the declaration, it will not succeed, at least in many cases, in excluding third party settlement of disputes procedures entirely. As mentioned above, when a State Party to a delimitation dispute makes the declaration excluding this kind of disputes from compulsory jurisdiction, it accepts, under Article 298, paragraph 1 (a), submission of the matter to conciliation at the request of the other party (so-called “compulsory conciliation”).31 So, before making the declaration under Article 298, paragraph 1 (a), a State has to assess the comparative pros and cons of compulsory conciliation and compulsory adjudication. Against what may be perceived as the main advantage of conciliation, the fact that its outcome is not binding, States will have to consider that proceedings before a conciliation commission are technically almost as complex and politically burdensome as those before a court or tribunal and that such proceedings entail, at the end, the further political hurdle of deciding whether to follow the recommendations of the commission. In certain cases States may prefer not to have to make this choice, and rather be bound by the decisions taken by a judge or arbitrator. It seems relevant to underline that, as far as I know, compulsory conciliation has never been invoked either under the Law of the Sea Convention or under any other of the conventions that provide for it.

31

T. Treves, “’Compulsory’ Conciliation in the U.N. Law of the Sea Convention”, in: V. Götz, P. Selmer, R. Wolfrum (eds.), Liber amicorum Günther Jaenicke – Zum 85. Geburtstag (Berlin, Springer, 1998), pp. 611–629; and T. Treves, Le controversie internazionali. Nuove tendenze, nuovi tribunali, op. cit., supra note 16, pp. 171–193.

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Article 298 adds further pressure in paragraph 298 (a-ii). This provision sets out an obligation for parties to negotiate an agreement on the basis of the conciliation commission’s report and, in case of non-agreement, to submit, by mutual consent, the question to a binding procedure. These are obligations de negotiando and de contrahendo and do not make it certain that, at the end, the dispute will be solved. But the pressure on the State that is not ready to follow the recommendations is great. Another element to be considered is that – according to Article 7, paragraph 1, of Annex V to the Convention – the report of the conciliation commission shall set out conclusions “on all questions of fact or law relevant to the matter in dispute”. Apart from its non-binding character, the report is thus very similar to an arbitral award.

d) The Exclusion of Compulsory Conciliation Compulsory conciliation, that, for the reasons just indicated, may be seen as an unattractive alternative to compulsory adjudication, does not, however, become possible in all cases in which the declaration under Article 298, paragraph 1 (a) is made. According to this provision, the declaration will not entail compulsory conciliation when the dispute “arises subsequent to the entry into force of th[e] Convention” or when it “necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory”. If one or both of these requirements is satisfied, there will be no third party settlement procedure applicable without the consent of both parties. Difficult legal problems may arise in determining whether the two requirements are satisfied. As regards the first, it is well known that there are no hard and fast rules for determining the “crucial moment” in a dispute. Moreover, while it may be argued that the time of entry into force of the Convention mentioned in Article 298, paragraph 1 (a) is that of the international entry into force according to Article 308, paragraph 1, it may also be argued that the relevant “entry into force” is that between the parties to the dispute according to Article 308, paragraph 2.32 As regards the second requirement, what is a dispute that “necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory”? A delimitation dispute may involve a number of separate problems, some but not all of which presuppose the solution of a question of sovereignty on land. One could

32

See B. Vukas, “The LOS Convention and sea boundary delimitation” (1985), in B. Vukas, Law of the Sea: Selected Writings (Leiden/Boston, Martinus Nijhoff Publishers, 2004), pp. 83–109, at p. 107 f.


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argue that only those aspects of the maritime delimitation that necessarily involve a decision on rights on land would be excluded from conciliation, while conciliation could apply to the other aspects. Conciliation would, for instance, be excluded as regards the portions of a boundary that depend on determination of sovereignty over an island, but not as regards those aspects that depend on the coast of undisputed land territories. Conciliation would not necessarily be excluded in a dispute concerning a lateral maritime boundary, as regards the determination of the point of departure of the maritime border. Much will depend on the way the submissions are drafted and on the logical structure of the plaintiff’s request.

e) Compulsory Jurisdiction on “Mixed” Land Sovereignty and Maritime Boundary Disputes? Perhaps, the most interesting aspect of the provision just considered is not its effect of excluding compulsory conciliation when the declaration under Article 298, paragraph 1 (a), has been made. It is that the provision, if read a contrario sensu, may be an argument to support the view that, when a declaration excluding delimitation disputes from compulsory jurisdiction has not been made, such disputes are included within the scope of the compulsory jurisdiction of the competent court or tribunal, even when they “necessarily involve” the concurrent consideration of questions of sovereignty. It may be discussed whether this argument is sufficient to support the view that all “mixed” boundary disputes, involving land sovereignty issues as well as maritime boundaries fall – in lack of a declaration under Article 298, paragraph 1 (a) – within compulsory jurisdiction. Whether such jurisdiction can be considered as existing in this case may well depend on the way the case is presented by the plaintiff party, on which aspects are the prevailing ones, and on whether certain aspects can be separated from the others, on whether the dispute, as a whole, can be seen as being about the interpretation or application of the Convention. While all these are legitimate and difficult questions to be discussed, the argument a contrario sensu here considered seems sufficient to discard the view that whenever a case presents a land aspect, compulsory jurisdiction of the courts and tribunals competent under the Convention should automatically be excluded.

4. CONCLUDING REMARKS: JURISDICTION BY AGREEMENT It seems worth stressing that, as regards maritime boundary disputes, while the most innovative aspect of the Convention is compulsory jurisdiction of adjudicating bodies, the Convention does not exclude that procedures entailing binding decisions be set in motion by agreement. All the rules described, in

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particular those in Articles 287 and 298, are conditional on “unless the parties otherwise agree” clauses. The agreement of the parties may give jurisdiction to a court or tribunal different from the one that would be competent under Article 287 (see paragraphs 3 and 4 of Article 287). A declaration under Article 298 does not preclude the State having made it from agreeing to submit a dispute belonging to the excluded category to any of the procedures specified in the Convention (Article 298, paragraph 2). Agreement by the parties might cut short possible discussions about jurisdiction on mixed land and sea disputes. The Law of the Sea Tribunal should not be seen, as it sometimes is, as a compulsory-jurisdiction-only tribunal. It is open to examine cases submitted by agreement. In delimitation disputes, as in other disputes, agreement may mean a better defined dispute, and that preliminary objections will be avoided or reduced to a minimum. This would concentrate the dispute to its law of the sea core, and would permit to the Tribunal to perform to the best of its abilities in its field of specialization.

The Role of the Technical Expert in Maritime Delimitation Cases Martin Pratt* 1. INTRODUCTION A state seeking to persuade a court or tribunal of its title to a certain maritime area will usually deploy a wide range of arguments in support of its case. Issues relating to living and non-living resources, the geology and geomorphology of the seabed, historical rights, national security, economics and environmental protection are all frequently raised, and most states will seek expert assistance in these areas to help prepare and present the most convincing case possible. However, while acknowledging the multidisciplinary nature of the task, this paper will focus on an area of expertise which is crucial to any maritime boundary delimitation, namely geographical expertise. Areas in which a technical expert (as the geographical expert is more commonly described)1 can assist in maritime boundary delimitation include: * Director of Research, International Boundaries Research Unit (IBRU), Department of Geography, University of Durham, DH1 3LE, UK. Tel: +44 191 334 1961 Fax: +44 191 334 1962 Email: [email protected] Web: http://www-ibru.dur.ac.uk 1 The terms ‘technical’ and ‘geographical’ will be used interchangeably in this paper. Traditionally, technical assistance in maritime delimitation has been provided by hydrographers – specialist geographers with particular expertise in surveying and mapping


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• Constructing and defining the boundary and other relevant limits with sufficient technical precision to meet practical needs. • Helping to interpret concepts such as “the relevant area”, “the general direction of the coast” and “reduced effect” within the context of the delimitation in question. • Testing proportionality between coastline lengths and maritime areas. • Interpreting maps, charts and other sources of geographical information such as satellite imagery and aerial photography. This is particularly important in terms of identifying basepoints relevant to the delimitation of the boundary. • Ensuring that clients, counsel and judges understand the significance of geographical and geodetic issues such as datums, map projections and the type of line connecting boundary turning points. Reliable software tools for constructing maritime limits, equidistance lines, etc. are now commercially available, and states are becoming increasingly aware of the need for geodetically precise boundaries, especially where hydrocarbons are located close to the line. Boundary awards by courts and tribunals are coming under closer and closer scrutiny by technically-proficient analysts, and errors or deficiencies in the definition of a maritime boundary are sure to be exposed. For this reason, it is recommended that a) adjudicators ensure that they have adequate technical support themselves, and b) they encourage the parties to the case to agree technical standards for delimitation before the adjudicators begin their deliberations.

2. THE PURPOSE OF MARITIME BOUNDARY DELIMITATION The primary aim of maritime delimitation, at least as far as the EEZ and continental shelf are concerned, is the equitable division of maritime space. This aim is enshrined in Articles 74 and 83 of the 1982 United Nations Convention on the Law of the Sea (hereafter “UNCLOS” or “the Convention”) which begin by stating that: “The delimitation of the exclusive economic zone [Article 74]/ continental shelf [Article 83] 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.” The Convention is silent on what factors need to be considered in order to achieve an equitable outcome, and it is evident from case law and the writings of leading jurists that a range of factors may come into play in different contexts. However, in all cases, one factor stands head and

maritime areas – but it should not be assumed that all hydrographers have expertise in boundary delimitation issues, nor that only hydrographers have the necessary technical skills for boundary work.

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shoulders above the rest, namely coastal geography. Antunes states emphatically that “The key fact in maritime delimitation is coastal geography”;2 and the late Professor Jonathan Charney noted in his introduction to International Maritime Boundaries that when States consider the facts and options available for maritime boundary delimitation, “it is clear that primary attention will be placed upon the geography of the coastline.”3 In this context, it is hard to deny that there is a pressing need for geographical expertise on all sides in a maritime boundary case. A second key aim of boundary delimitation in the opinion of this author is the unambiguous definition of a line that can be located on the ground with sufficient accuracy for practical needs. It is all very well concluding a delimitation agreement that both sides feel is equitable, but if the resulting boundary cannot readily be located by navigators and resource managers, the risk of boundary-related friction will remain high. There are numerous examples around the world of disputes over the interpretation of boundary agreements or awards in which the boundary was defined inadequately from a technical perspective. In most cases the inadequate definition resulted from a lack of appropriate technical input during the delimitation process.

3. PROVISIONS FOR EXPERTS DURING BOUNDARY CASES Both of the standing courts with competence to adjudicate maritime boundary disputes have rules relating to the use of experts in cases submitted to them. The International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) both allow parties to call experts to give evidence during oral proceedings.4 In practice, experts are rarely used in this way, possibly because the rules of both bodies allow the experts to be examined by all parties and questioned by the Judges. Both courts also have powers to arrange for the provision of an expert opinion during the proceedings5 and to call on the parties “to produce such evidence or to give such explanations as the Court/the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose.”6 The Rules of ITLOS allow for the appointment of scientific or technical experts to sit with the Tribunal during its deliberations, although they do not

2 N. Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process (Leiden, Martinus Nijhoff, 2003), p. 290. 3 J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries, Vol. I (Dordrecht, Martinus Nijhoff Publishers, 1993), p. xliv. 4 ICJ Rules of Court, Art. 63 and ITLOS Rules, Art. 78. 5 ICJ Rules of Court, Art. 67 and ITLOS Rules, Art. 77. 6 ICJ Rules of Court, Art. 62 and ITLOS Rules, Art. 77.

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have the right to vote. Such experts may be appointed at the request of a party or proprio motu, and are required to be “independent and enjoy the highest reputation for fairness, competence and integrity”.7 In contrast, the ICJ has no provision for experts to sit with the Court. In cases submitted by special agreement, the parties obviously have scope to ask the Court to appoint an expert to assist it with technical aspects of the case, as happened in the Gulf of Maine case.8 However, where no such agreement exists, the Court’s use of expert technical support is somewhat shrouded in mystery. The nature of most of the ICJ’s Judgments relating to maritime boundaries suggest that at least some technical assistance was provided to the Court in defining the boundary; however, the Judgments give little (if any) indication of the identity of the experts consulted or the nature of the assistance provided. This may be due to the fact that if the Court officially seeks an expert opinion, the Rules of Court require that the opinion shall be communicated to the parties, which shall be given the opportunity to comment upon it9 – thereby potentially undermining the final and binding nature of the Judgment. As long as the boundary determined by the Court is technically sound, it is arguable that it does not greatly matter if the Court sidesteps the question of how it determined the precise alignment of the line.10 However, as will be discussed below, the Court has not always delivered a technically sound boundary. In such instances, the lack of transparency concerning the determination of the line leaves the Court open to criticism for being incompetent and even negligent.

4. KEY TECHNICAL ASPECTS OF MARITIME BOUNDARY DELIMITATION The last few years have seen the publication of a number of very useful guides to the technical aspects of maritime boundary delimitation (see bibliography) and there is no need to discuss them all in depth again here. However, given the fact that maritime boundaries are still occasionally being defined in ways that make them impossible to locate on the ground, it is worth highlighting aspects

7

UNCLOS Art. 289, ITLOS Rules, Art. 15. The technical expert appointed in the Gulf of Maine case was the British hydrographer, Commander Peter Beazley. Commander Beazley also provided technical assistance to the arbitration tribunals in the Canada-France, Guinea-Guinea-Bissau and Guinea-Bissau-Senegal maritime boundary arbitrations. 9 ICJ Rules of Court, Art. 67. 10 The use of undeclared expert advice may be covered under the “or may itself seek other information for this purpose” clause in Art. 62 of the Rules of Court. See T. Daniel, ”Expert Evidence Before the ICJ”, Third Bi-Annual Conference of ABLOS, 2003, for further discussion of this question, available at: http://www.gmat.unsw.edu.au/ ablos/ABLOS03Folder/PAPER1–3.PDF 8


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of maritime delimitation in which technical expertise is essential if the boundary is to be delimited with precision.

a) Median Lines Even though UNCLOS gives no special status to the median line beyond the territorial sea, courts and tribunals almost invariably begin their deliberations by examining the median line – the line along which every point is equidistant from the nearest points on the baselines from which the territorial sea of the States in question is measured – and considering whether it is necessary to depart from that line in order to produce an equitable division of maritime space. Computer software tools are now available which enable the median line between two sets of basepoints to be calculated with a high degree of precision on the relevant reference ellipsoid in a matter of seconds. However, the median line will only be as accurate as the baseline model on which the calculation is based, and creating an accurate baseline model requires an understanding at least of how the low-water line is depicted on charts, and possibly familiarity with satellite imagery, aerial photography, geodetic datums and vertical datums. Although to a casual observer it may look as if median lines can now be generated literally at the push of a button, a significant amount of technical work is required to get to the button-pushing stage. Before such software tools were developed, technical experts had little option but to construct median lines graphically using paper charts. Even in the most skilled hands, a graphically constructed median line is bound to be less accurate than a computed one due to the distortions inherent in depicting the threedimensional surface of the earth in two dimensions. For this reason, it is difficult to justify using graphical methods to define a boundary today. However, for most analytical purposes it is not essential to identify the median line with absolute precision, and a graphically-constructed median line is likely to be perfectly adequate for assessing equity if the appropriate software is not available. Whether a technical expert is needed in order to create a reasonable graphical depiction of the median line will obviously depend on the experience and technical aptitude of other members of the team. Based on observations of lawyers and diplomats attempting to construct median lines at International Boundaries Research Unit training workshops, it is probably a good idea at least to have a technical expert check any median lines constructed during team meetings!

b) Coordinates While many land boundaries are defined with reference to landscape features, this is not really an option at sea, and most maritime boundaries are defined by line segments connecting points with specified coordinates, usually stated in

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terms of latitude and longitude. Most people know that latitude describes the number of degrees (from 0 to 90) north or south of the equator that a particular point on the earth’s surface lies, and longitude describes the number of degrees (0 to 180) east or west of (usually) the Greenwich meridian. What is crucial to remember, however, is that there are many different mathematical models of the earth (known as ellipsoids) on which latitude and longitude can be measured, and that the same pair of coordinates derived from different ellipsoids will relate to different points on the surface of the earth. Although the differences are not vast – generally no greater than 1.5 kilometres and often a lot smaller – they can be very significant in the context of boundary delimitation, especially in areas rich in natural resources. In order for geographical coordinates to be meaningful, they must be referred to a geodetic datum (i.e. the parameters of the ellipsoid on which coordinates are measured). Modern maritime boundaries are generally referred to the WGS84 datum, a global datum that is used by most satellite navigation systems; however, in many ways it does not matter what reference datum is used as long as the chosen datum is specified when coordinates are listed. To define a maritime boundary using geographical coordinates without specifying a reference datum is inexcusable. Yet, according to Lathrop’s analysis of the 147 boundary agreements in the first two volumes of the American Society of International Law’s study International Maritime Boundaries, no fewer than 55% failed to specify a reference datum to which the coordinates of the turning points should be referred. Most maritime boundaries agreed in the last ten years do have a specified reference datum but, as recently as 2003, Indonesia and Vietnam concluded a boundary agreement in the Natuna Sea with no reference datum. Worryingly, when the ICJ defined the maritime boundary between Cameroon and Nigeria in 2002, it neglected to indicate the datum to which the coordinates of the turning point of the boundary should refer. If the local Minna datum is used, the boundary would run approximately 75 metres west of where it would run if the coordinates are referred to WGS84 – a significant distance in an oil-rich area.11 It would be unreasonable to expect judges and legal counsel to become experts in the geodesy that underlies the definition of positions on the surface of the earth. However, anyone involved in boundary delimitation should at the very least be aware of the need to specify a reference datum whenever geographical coordinates are used, and have access to advisors who are aware of the implications of selecting one datum over another. Even if a court or tribunal is faced with a difficult technical problem, as the ICJ was in the Cameroon/

11

This issue and other technical deficiencies in the maritime boundary defined by the ICJ in the Cameroon/Nigeria case are discussed in depth in C.H. Schofield, C. Carleton, “Technical Considerations in Law of the Sea Dispute Resolution”, in: A.G. Oude Elferink, D. Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Leiden, Martinus Nijhoff Publishers, 2004), pp. 231–254.


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Nigeria case (where the Court confirmed the validity of two previous maritime boundary agreements whose coordinates were derived from charts with no known reference datum) it surely owes it to the parties at least to acknowledge the problem and suggest options for overcoming it rather than pretending that no such problem exists. A second important aspect of geographical coordinates is that of significant figures and their impact on the position to which they refer. As a rule of thumb, one second of arc of latitude has a length of just over 30 metres on the ground. Therefore, any latitude quoted to the nearest second (e.g. 55° 10’ 22” N) will only be accurate to ±15 metres on the ground. In remote areas of the open ocean, such accuracy may be sufficient for maritime boundary purposes, but in prospective areas for hydrocarbons and minerals, it would probably be wise to quote coordinates to at least the nearest 0.1 of a second (±1.5 metres on the ground). When computers are used to calculate positions, the software often generates coordinates quoting seconds to eight significant figures, representing 0.015 millimetres on the ground. Such precision is, of course, impossible to achieve in the real world, and there is little point in listing coordinates to so many significant figures, no matter how impressive it may look to nontechnicians.

c) Lines Connecting Turning Points It is important to recognise that there is no such thing as a “straight” line on the surface of the earth. Unless the nature of the lines connecting the turning points of a boundary is specified, the boundary delimitation will be ambiguous. The most commonly used types of connecting line are geodesics – lines tracing the shortest distance between two points on the surface of the earth – and loxodromes (also known as rhumb lines), which are lines of constant bearing and plot as straight lines on charts drawn on the Mercator projection;12 arcs of great circles13 have also been used in maritime boundary delimitations. At low latitudes, the choice of line generally has little impact on the areas of maritime space allocated to the parties, but at high latitudes the effect can be considerable, especially where long line segments are involved. When the USA and

12

Most nautical charts are constructed on the Mercator projection precisely because lines of constant bearing plot as straight lines, thereby aiding route planning and navigation. When maritime boundaries were constructed graphically using navigational charts, it was much easier to define connecting lines as loxodromes. When boundaries are computed, it is generally a straightforward exercise to convert between different types of line. 13 A great circle is a circle on the surface of the earth, the plane of which passes through the centre of the earth. All meridians of longitude and the equator are great circles. Arcs of great circles are generally very similar to geodesics.

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USSR entered into negotiations over their maritime boundary in the Bering Sea in 1977, the two governments agreed that the line defining the western limit of the territory purchased by the USA from Russia in 1867 should be the basis for the maritime boundary. However, the USA interpreted the 1867 line as being an arc of great circle, while the USSR understood it to be a loxodrome. The area between the two proposed lines was almost 21,000 square nautical miles! Less dramatically – but still significantly – in the 1977 decision of the Court of Arbitration appointed to delimit the continental shelf boundary between France and the United Kingdom, the choice of a loxodrome for the long (169 nautical mile) westernmost segment of the boundary gave France around 450 square nautical miles more seabed than if a geodesic had been used.14 Anyone involved in a maritime delimitation case needs to be aware of the effect that different types of line would have on the alignment of the boundary and, even if the parties do not express a preference, the court or tribunal charged with defining the boundary should specify the type of connecting line to be used, or at least indicate that the parties must agree on the type of line at a future date.

d) Other Geographical Issues The jurisprudence relating to maritime delimitation abounds with terms such as “relevant coastlines”, “coastal relationship”, “the general direction of the coast” and “proportionality”, all of which are geographical concepts. Most of these concepts are easily understood in principle, but in practice they are often far less clear-cut than they first appear. In fact, there is rarely a definitive answer to such questions, but a geographical expert will at least be able to evaluate the implications of, for example, using a simplified coastline as a guide to coastline length rather than following every indentation of the mainland coast and offshore islands. It is inevitable that a State seeking to persuade a court or tribunal that its proposed boundary represents an equitable delimitation will present a somewhat biased interpretation of the geographical context, and judges need to be aware of the geographical “tricks” that can be employed to make a case look more convincing than it really is. The same goes for the use of illustrative maps, where the choice of projection, scale and colour can all have a dramatic effect on how the geography of the area to be delimited is perceived.

14

The line in question was described by the Court of Arbitration as line which gave ‘half effect’ to the Scilly Islands. In geodetic terms a true half-effect line can only be a geodesic, and the UK requested the Court to amend its award to this effect. The Court rejected the request, claiming that the use of a loxodrome was not incompatible with the wording of its decision.


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5. CONCLUSIONS States understandably take boundary litigation extremely seriously. They have long been willing to spend millions of dollars securing the services of expert legal advisors, and in recent years most governments involved in maritime boundary cases have also appointed leading technical experts to support the politicians and lawyers in preparing the best possible case. As oil and gas producers become capable of operating in deeper and deeper waters, the need for clearly-defined and geodetically-robust maritime boundaries becomes ever more pressing. In such a context, courts and tribunals surely have a responsibility to ensure that their decisions are as sound technically as they are legally. Some judges are clearly aware of many of the pitfalls discussed above; however, it is one thing to be aware of the need to take care with coordinates, it is quite another to be able to translate a concept such as a median line giving half effect to island X into an unambiguous line that can be located at least to within a few metres on the ground in the real world. One way or another, therefore, courts and tribunals need to ensure that they receive expert technical advice during the deliberation phase of the proceedings. Ideally, a technical report should accompany every decision, so that the parties can understand exactly how the line determined by the court was constructed. In cases brought by special agreement, courts and tribunals could help to minimise the risk of an unsatisfactory technical outcome by encouraging the parties to agree technical parameters for the boundary before the case begins. For example, the parties could ask the court to define the boundary using geographical coordinates referred to WGS84, quoted to the nearest tenth of a second of arc, and using geodesic lines to connect the specified coordinates. If the parties disagree on the technical parameters, they could make the case for their preferred parameters in their pleadings, allowing the court (hopefully through its technical expert) to determine the most appropriate parameters for the case in hand. A further possibility in cases where the parties make reference to the median line in their written pleadings would be to ask the parties’ technical experts to exchange basepoint data relevant to the median line and see if they agree on the location of the entire median line. Since this is a purely technical exercise, it could be undertaken without prejudice to the claims of either party and it would significantly reduce the risk of errors creeping into the final boundary. Ideally, boundary-making is a task that should be undertaken in a spirit of cooperation with input from legal, technical and other relevant experts. When a boundary dispute cannot be settled through negotiation and is submitted for adjudication by a third party, it is inevitable that the process will become competitive and quite possibly acrimonious. However, in general, technical aspects of boundary-making are much less controversial than the legal aspects and, with appropriate expertise on all sides, there is no reason why the technical

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definition of the boundary cannot be completed efficiently, transparently and to a standard which meets the requirements of everyone with an interest in managing the maritime space between the States involved for many years to come.

6. SELECTED BIBLIOGRAPHY Antunes, N., Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process, Leiden: Martinus Nijhoff Publishers, 2003. Antunes, N., “Some Thoughts on the Technical Input in Maritime Delimitation”, in: Colson, D.A., and Smith, R.W. (eds.), International Maritime Boundaries, Vol. V, Leiden: Martinus Nijhoff Publishers, 2005. Beazley, P., “Technical Considerations in Maritime Boundary Delimitation”, in: Charney, J.I., and Alexander, L.M. (eds.), International Maritime Boundaries, Vol. I, Dordrecht: Martinus Nijhoff Publishers, 1993. Carleton, C., and Schofield, C.H., Developments in the Technical Determination of Maritime Space: Delimitation, Dispute Resolution, Geographical Information Systems and the Role of the Technical Expert, IBRU Maritime Briefing 3 (4), 2002. Daniel, T., “Expert Evidence Before the ICJ”, Paper presented at the Third Biennial Conference of the Advisory Board on the Law of the Sea, Monaco, 28–30 October 2003, http://www.gmat.unsw.edu.au/ablos/ABLOS03Folder/PAPER1–3.PDF. International Hydrographic Organization, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, 3rd edition, Monaco: International Hydrographic Bureau, 1993. Lathrop, C., “The Technical Aspects of International Maritime Boundary Delimitation, Depiction and Recovery”, Ocean Development and International Law 28 (1997), pp. 167–197. Schofield, C.H., and Carleton, C., “Technical Considerations in Law of the Sea Dispute Resolution”, in: Oude Elferink, A.G., and Rothwell, D. (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Leiden: Martinus Nijhoff Publishers, 2004, pp. 231–254. Thamsborg, M., “In Search of an Objective Approach to the Identification of Certain Geographical Parameters: The Jan Mayen Case Before the International Court of Justice”, Nordic Journal of International Law 64 (1995), pp. 647–681. White, G., “The Use of Experts by the International Court”, in: Lowe, V., and Fitzmaurice, M. (eds.), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings, Cambridge: Cambridge University Press, 1996.


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APPENDIX 1: MAIN REFERENCES TO EXPERTS IN THE RULES OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA Article 15 1. A request by a party for the selection by the Tribunal of scientific or technical experts under article 28915 of the Convention shall, as a general rule, be made not later than the closure of the written proceedings. The Tribunal may consider a later request made prior to the closure of the oral proceedings, if appropriate in the circumstances of the case. 2. When the Tribunal decides to select experts, at the request of a party or proprio motu, it shall select such experts upon the proposal of the President of the Tribunal who shall consult the parties before making such a proposal. 3. Experts shall be independent and enjoy the highest reputation for fairness, competence and integrity. An expert in a field mentioned in Annex VIII, article 2, to the Convention shall be chosen preferably from the relevant list prepared in accordance with that Annex. 4. This article applies mutatis mutandis to any chamber and its President. 5. Before entering upon their duties, such experts shall make the following solemn declaration at a public sitting: “I solemnly declare that I will perform my duties as an expert honourably, impartially and conscientiously and that I will faithfully observe all the provisions of the Statute and of the Rules of the Tribunal”.

Article 42 1. The deliberations of the Tribunal shall take place in private and remain secret. The Tribunal may, however, at any time decide in respect of its deliberations on other than judicial matters to publish or allow publication of any part of them. 2. Only judges and any experts appointed in accordance with article 289 of the Convention take part in the Tribunal’s judicial deliberations. The Registrar, or 15 UNCLOS Art. 289 states that: “In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII, article 2, to sit with the court or tribunal but without the right to vote.”

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his Deputy, and other members of the staff of the Registry as may be required shall be present. No other person shall be present except by permission of the Tribunal. 3. The records of the Tribunal’s judicial deliberations shall contain only the title or nature of the subjects or matters discussed and the results of any vote taken. They shall not contain any details of the discussions nor the views expressed, provided however that any judge is entitled to require that a statement made by him be inserted in the records.

Article 72 Without prejudice to the provisions of these Rules concerning the production of documents, each party shall communicate to the Registrar, in sufficient time before the opening of the oral proceedings, information regarding any evidence which it intends to produce or which it intends to request the Tribunal to obtain. This communication shall contain a list of the surnames, first names, nationalities, descriptions and places of residence of the witnesses and experts whom the party intends to call, with indications of the point or points to which their evidence will be directed. A certified copy of the communication shall also be furnished for transmission to the other party.

Article 77 1. The Tribunal may at any time call upon the parties to produce such evidence or to give such explanations as the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose. 2. The Tribunal may, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings.

Article 78 1. The parties may call any witnesses or experts appearing on the list communicated to the Tribunal pursuant to article 72. If at any time during the hearing a party wishes to call a witness or expert whose name was not included in that list, it shall make a request therefore to the Tribunal and inform the other party, and shall supply the information required by article 72. The witness or expert may be called either if the other party raises no objection or, in the event of objection, if the Tribunal so authorizes after hearing the other party.


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2. The Tribunal may, at the request of a party or proprio motu, decide that a witness or expert be examined otherwise than before the Tribunal itself. The President of the Tribunal shall take the necessary steps to implement such a decision.

Article 79 Unless on account of special circumstances the Tribunal decides on a different form of words, (a) every witness shall make the following solemn declaration before giving any evidence: “I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth”;

(b) every expert shall make the following solemn declaration before making any statement: “I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth, and that my statement will be in accordance with my sincere belief”.

Article 80 Witnesses and experts shall, under the control of the President of the Tribunal, be examined by the agents, counsel or advocates of the parties starting with the party calling the witness or expert. Questions may be put to them by the President of the Tribunal and by the judges. Before testifying, witnesses and experts other than those appointed under article 289 of the Convention shall remain out of court.

Article 82 1. If the Tribunal considers it necessary to arrange for an inquiry or an expert opinion, it shall, after hearing the parties, issue an order to this effect, defining the subject of the inquiry or expert opinion, stating the number and mode of appointment of the persons to hold the inquiry or of the experts and laying down the procedure to be followed. Where appropriate, the Tribunal shall require persons appointed to carry out an inquiry, or to give an expert opinion, to make a solemn declaration.

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2. Every report or record of an inquiry and every expert opinion shall be communicated to the parties, which shall be given the opportunity of commenting upon it.

Article 83 Witnesses and experts who appear at the instance of the Tribunal under article 77, paragraph 2, and persons appointed by the Tribunal under article 82, paragraph 1, to carry out an inquiry or to give an expert opinion, shall, where appropriate, be paid out of the funds of the Tribunal.

APPENDIX 2: MAIN REFERENCES TO EXPERTS IN THE RULES OF THE INTERNATIONAL COURT OF JUSTICE Article 62 1. The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose. 2. The Court may, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings.

Article 63 1. The parties may call any witnesses or experts appearing on the list communicated to the Court pursuant to Article 57 of these Rules. If at any time during the hearing a party wishes to call a witness or expert whose name was not included in that list, it shall so inform the Court and the other party, and shall supply the information required by Article 57. The witness or expert may be called either if the other party makes no objection or if the Court is satisfied that his evidence seems likely to prove relevant. 2. The Court, or the President if the Court is not sitting, shall, at the request of one of the parties or proprio motu, take the necessary steps for the examination of witnesses otherwise than before the Court itself.


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Article 64 Unless on account of special circumstances the Court decides on a different form of words, (a) every witness shall make the following declaration before giving any evidence: “I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth”;

(b) every expert shall make the following declaration before making any statement: “I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth, and that my statement will be in accordance with my sincere belief.”

Article 65 Witnesses and experts shall be examined by the agents, counsel or advocates of the parties under the control of the President. Questions may be put to them by the President and by the judges. Before testifying, witnesses shall remain out of court.

Article 66 The Court may at any time decide, either proprio motu or at the request of a party, to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates, subject to such conditions as the Court may decide upon after ascertaining the views of the parties. The necessary arrangements shall be made in accordance with Article 44 of the Statute.

Article 67 1. If the Court considers it necessary to arrange for an enquiry or an expert opinion, it shall, after hearing the parties, issue an order to this effect, defining the subject of the enquiry or expert opinion, stating the number and mode of appointment of the persons to hold the enquiry or of the experts, and laying down the procedure to be followed. Where appropriate, the Court shall require persons appointed to carry out an enquiry, or to give an expert opinion, to make a solemn declaration.

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2. Every report or record of an enquiry and every expert opinion shall be communicated to the parties, which shall be given the opportunity of commenting upon it.

Article 68 Witnesses and experts who appear at the instance of the Court under Article 62, paragraph 2, and persons appointed under Article 67, paragraph 1, of these Rules, to carry out an enquiry or to give an expert opinion, shall, where appropriate, be paid out of the funds of the Court.

Preparing for a Delimitation Case: The Practitioner’s View Rodman R. Bundy* 1. INTRODUCTION While the provisions of Articles 15, 74 and 83 of the 1982 Law of the Sea Convention are recognized as reflecting customary international law, they do not – with the exception of Article 15 relating to the delimitation of the territorial sea – provide much guidance as to how an equitable result is to be achieved in any particular delimitation case. For this, reference must be made to the decisions of the International Court of Justice and international arbitral tribunals. Examples of State practice may also have a role to play, but State practice, as will be seen, must be treated with caution. Somewhat ironically, Article 38, paragraph 1 (d), of the Statute of the International Court lists judicial decisions as “subsidiary means for the determination of rules of law”. The experienced practitioner knows, however, that when it comes to identifying the principles and rules of maritime delimitation in their concrete application, the jurisprudence provides the most important source of legal guidelines. Those principles have evolved over the past fifteen years, particularly as they relate to the delimitation of the continental shelf and exclusive economic zone.1 * Partner, Eversheds Frere Cholmeley, Paris. 1 See the paper by Professor Lucchini in this volume.


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Recently, in both the Qatar-Bahrain and Cameroon-Nigeria cases, the International Court of Justice has held that the “equidistance/special circumstances” rule applicable to territorial sea delimitation under Article 6 of the 1958 Geneva Convention and Article 15 of the 1982 Convention is now viewed as virtually synonymous with the “equitable principles/relevant circumstances” rule hitherto applicable to continental shelf and exclusive economic zone delimitation.2 The end result is that the relevant circumstances of any particular case remain paramount. It follows that, while the law may now provide more certainty as to the way an international court or tribunal will approach questions of maritime delimitation, each case remains unique. As the Court stated in the 1982 Tunisia-Libya case: “It is clear that what is reasonable and equitable in any given case must depend on its particular circumstances. There can be no doubt that it is virtually impossible to achieve an equitable solution in any delimitation without taking into account the particular relevant circumstances of the area.”3

The principal role of the practitioner in preparing for a maritime delimitation case is to marshal the relevant facts and circumstances of the case, apply the law to the facts and advocate in written pleadings and oral argument the resulting position of the State whom the practitioner represents. Obviously, the practitioner does not operate in a vacuum. When a delimitation dispute goes to litigation, the legal rights of the State are engaged. It is the practitioner’s task to work closely with the representatives of the State to establish the relevant facts and with fellow counsel and experts to present the case in an effective manner. Once litigation is launched, maritime delimitation is no longer an academic exercise; it involves practical litigation skills, and it culminates in a judgment or award that is final and binding on the parties. Maritime delimitation is also a multi-disciplinary process. In preparing for a case, it is necessary to carry out research derived from a wide array of sources, all or some of which may have an important role to play in the ultimate outcome of the case. Based on the case precedents, it is possible to identify the main categories of relevant circumstances which courts and tribunals have taken into account in effecting an equitable result in the past. This paper will set out some of the more important areas where the practitioner, working with colleagues, needs to devote his or her attention in esta-

2 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judgment, Merits, I.C.J. Reports 2001, at para. 231; Land and Maritime Boundary between Cameroon and Nigeria, Judgment, Merits, I.C.J. Reports 2002, at paras. 288–289. 3 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 60, para. 72. And see also North Sea Continental Shelf Cases, Judgment, I.C.J. Reports 1969, p. 50, para. 93.

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blishing the factual matrix of the dispute and organizing the case. The purpose is not to give an exhaustive account of how the law has treated relevant circumstances in every instance, but rather to give a practical overview of the kinds of issues that a State is likely to confront, and thus needs to be prepared for, in embarking on a delimitation case.

2. THE STARTING POINT: ASSEMBLING A TEAM States vary in their exposure to dealing with maritime delimitation disputes. Some have well-developed internal capabilities and considerable experience in negotiating delimitation agreements and even litigating contentious disputes.4 For others, the process will be new. In either case, there are strong reasons for supplementing whatever internal expertise is available with outside expert assistance. By their very nature, international courts and tribunals are “international”. They comprise a number of judges or arbitrators from different legal traditions and different geographic regions. An arbitral tribunal charged with deciding a delimitation case may have five members. The International Court of Justice has fifteen judges, and this number may run higher if the parties name judges ad hoc in the case. The International Tribunal for the Law of the Sea has twenty-one sitting judges. A State engaged in litigation must present a case that appeals to its audience. Different judges may find significance in different factual circumstances or legal arguments. While the aim is not to over-burden the decision makers, a State party to delimitation proceedings is well advised to present its case in as complete and credible (more on this later) a manner as possible. In most instances, this involves the retention of an international team of counsel well versed in maritime delimitation issues and representing different legal perspectives. But it also entails the need for a comprehensive preparation of the facts of the case based on input from a number of sources. Outside consultants are often needed to assist with the assembly of the file.5 An obvious area where technical input is required concerns the geography of the area in dispute. But expert assistance can also pay dividends in relation to other aspects of the factual background. In the Tunisia-Libya case, for example, the historic fishing practices of the colonial powers in the region were seized upon by the Court as a relevant factor for the delimitation of the first, or landward, sector of the continental shelf

4

See the very informative paper of Judge Anderson in this volume setting out some of his practical experience from years of negotiating delimitation agreements. 5 Martin Pratt’s paper in this volume discusses the role of the expert in maritime delimitation cases.

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boundary.6 This evidence was only brought to light as the result of diligent archival research by professional historians. In the same case, the oil licensing practices of the parties also turned out to be key relevant circumstances influencing the final boundary. These, too, were documented through the use of expert consultants. And in the Denmark-Norway case, evidence concerning the incidence of fish stocks in the relevant area had a material role to play in the Court’s final delimitation.7 At the State level, it is not unusual for the case to be handled by the Ministry of Foreign Affairs. It is the Foreign Ministry which is likely to have led any previous attempts to negotiate an amicable settlement and it is the Ministry which is likely to have been involved in the transmission of any protests or counter-protests relating to the dispute if these have been necessary. Consequently, when it comes to judicial proceedings, it is often the Foreign Ministry that takes the lead in heading up the litigation team. Delimitation disputes are high profile affairs. The sovereign rights of the State are involved, and there may be important political, economic and security interests at stake. In these circumstances, other departments of the State’s government can and do have an important role to play. The problem (and it is frequently a problem) is how to tap into the resources of these other interested parties and engage them in the team while maintaining a co-ordinated approach. This leads to the role of the Agent.

3. THE ROLE OF THE AGENT Under the Rules of the International Tribunal for the Law of the Sea (Article 53) and the Statute of the International Court of Justice (Article 42), it is obligatory for a party to proceedings to be represented by agents. This is also the customary practice in international arbitration. For institutions such as ITLOS or the ICJ, the role of the agent is straightforward. The agent represents his or her State before that institution. Actions taken by the agent in this capacity, such as signing pleadings, engaging in official correspondence with the registry and procedural meetings with the institution, participating in oral hearings and reading out the formal submissions of the State, are attributed to the State. For the practitioner (as well as for the agent himself), the role of the agent is, or at least should be, more extensive. For those who are interested in the practical views of an individual who has appeared as agent in a number of inter-

6

Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, pp. 70–71, paras. 94–95 and p. 85, para. 120. 7 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, pp. 71–72, paras. 75–76.


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national proceedings, reference may be made to a recent article that Michael Matheson of the United States wrote on the subject.8 There, the author sets out five roles that may be served by the agent: (i) (ii) (iii) (iv)

Official representation of a party to the Court (or tribunal); Direct participation in the argument before the Court (or tribunal); Acting as head of the team that prepares and presents the case; Involvement in the decision-making by the government on matters affecting the case; and (v) Co-ordination and negotiation with other governments and organizations concerning the case.

For present purposes, the focus is on the third and fourth of these roles. As Judge Anderson’s paper included in this compendium suggests, the agent, or team leader, should ideally have a political or legal background. One of his principal tasks is to access the information that is known to his government, but often not to outsiders, relating to the matter in dispute. While different categories of facts will be discussed further in this paper, it is the host government which will have access to important internal documentation such as the diplomatic background to the dispute, legislation on the extent of the State’s maritime entitlements (territorial sea, continental shelf, exclusive economic zone), regulations concerning straight baselines, information regarding petroleum or fishing activities in the disputed area, details of any possible security concerns, and the like. This material must be placed at the disposal of the legal team charged with presenting the case. In an excess of enthusiasm, other organs of the government may want to get involved. This is natural, even necessary, but the contributions of other agencies of the State must be managed to the overall benefit of the case. Even counsel sometimes need to be gently reminded that it is the government’s case which is at stake, not their personal predilections. Any substantive differences amongst members of the legal team need to be resolved. At the end of the day, it is the agent’s decision. The agent’s role also has important implications with respect to the claims advanced by the government and other commitments on the part of the State. At the written pleadings stage, there is usually sufficient time for position papers to be prepared, draft pleadings to be circulated and the claims of the State to be vetted internally. Once the case proceeds to oral argument, however, time can be short. Often, there are urgent procedural or strategic decisions to be taken in response to arguments put forward by the other side, questions asked by the tribunal or last minute procedural applications. For example, in its

8 M. Matheson, “Practical Aspects of the Agent’s Role in Cases before the International Court”, 1 The Law & Practice of International Courts and Tribunals, No. 3, 2002, pp. 467–479.

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closing arguments does the government wish to hint at a “fall-back” position which might not be fully compatible with its claims, but which nonetheless might be acceptable and of interest to the decision makers? What happens if the other side introduces last minute evidence? What does the government do if a State seeks to intervene and advances brand new claims only in oral argument (as actually happened in connection with Italy’s application to intervene in the Libya-Malta continental shelf case)? The agent must have sufficient authority to deal with these matters on the spot. For the practitioner, the agent is the final port of call in the client State. The agent must be prepared to accept this role or, at least, to name co-agents with equal authority who can handle day-to-day matters if the agent, as sometimes happens, has other obligations. Preparing for a delimitation case involves a team approach. Co-ordination of the team is essential.

4. IDENTIFYING AND DOCUMENTING THE RELEVANT CIRCUMSTANCES Even if the starting point for determining an equitable maritime boundary now lies in constructing a provisional equidistance or median line, the identification and proper weighting of the relevant circumstances characterizing the area in dispute remains a critical part of the delimitation process. In the first place, construction of a provisional equidistance line gives rise to the question: equidistance from what? Then there is the issue whether the provisional equidistance line requires “adjustment” in order to take into account the relevant circumstances characterizing the delimitation area. As early as the 1969 North Sea Continental Shelf Cases, the Court made it clear that there was no limit to the kinds of relevant circumstances which might have a role to play in a particular case. The Court stated: “In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that produce this result rather that reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.”9

This remains the case. Nonetheless, based on the judicial precedents, it is possible to identify several broad categories of relevant circumstances which can have a decisive influence on the determination of an equitable delimitation line. These include:

9 North Sea Continental Shelf Cases, Judgment, Merits, I.C.J. Reports 1969, p. 50, para. 93.


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• The geography of the relevant area, the coastal configurations of the parties and the identification of coastal fronts or façades; • Differences in coastal lengths and the role played by the element of proportionality; • The presence of islands, low-tide elevations and geographic anomalies such as promontories in the area to be delimited; • The past conduct of the parties and the question whether that conduct points to a modus vivendi or de facto line; • Economic factors including access to natural resources such as fish or hydrocarbons; • Historic rights; • Geological and geomorphological considerations; • The presence of third States in the area to be delimited. While these categories may not be exhaustive, they do provide a useful checklist for any State engaged in a delimitation case. Each of them requires factual and legal assessment. Moreover, with respect to the facts, each of them gives rise to the need to assemble a suitable body of evidence documenting the facts to the satisfaction of the decision maker. Both the ITLOS Rules (Article 63) and the ICJ Rules of Court (Article 50) stipulate that the parties must annex to their written pleadings copies of the relevant documents adduced in support of the contentions made in their pleadings. Arbitral tribunals expect the same thing. For the practitioner, therefore, the assembly of the file is crucial. Frequently, this can entail the need to retain outside advisers with expertise in different disciplines.

5. THE GEOGRAPHY OF THE RELEVANT AREA Any consideration of the relevant circumstances which may affect the course of an equitable delimitation must necessarily start with the geographic characteristics of the area in dispute. This much is axiomatic. As the International Court of Justice stated in the very first delimitation case brought before it: “the land dominates the sea”.10 The importance of the coastal geography of the States concerned has been a constant element throughout the jurisprudence of the International Court of Justice and arbitral tribunals. If anything, the emphasis on coastal geography has been accentuated by the recent trend in the case law which adopts the approach that it is first necessary to draw a provisional equidistance line (which

10 North Sea Continental Shelf Cases, Judgment, Merits, I.C.J. Reports 1969, p. 51, para. 96.

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obviously depends on the basepoints chosen – a potentially contentious issue by itself), and then to consider whether this line requires adjustment in order to take into account any other relevant circumstances in the area. To quote the Court in the Qatar-Bahrain case: “The Court will therefore first determine the relevant coasts of the Parties, from which will be determined the location of the baselines and the pertinent basepoints which enable the equidistance line to be measured.”11

This formulation, while seemingly straightforward, raises a host of issues. What are the relevant coasts of the parties? Indeed, what is the relevant area within which the delimitation is to be effectuated? When considering baselines, does one use the “normal” baseline corresponding to the low-water mark along a State’s coast or is it permissible to take into account straight baselines or bay closing lines?12 What is the nature and quality of the charts and technical datums on which the identification of baselines and basepoints is calculated and delimitation lines plotted? Do both contesting States use similar datums? A similar consideration which every practitioner learns at an early stage is that there is no such thing as a straight line drawn on a map. Perhaps it is more accurate to say that straight lines can be drawn on a map, but that such lines mean different things and may result in different delimitations. A straight line on a mercator projection is a line of constant bearing or azimuth – also known as a rhumb line or loxodrome. Courts and Tribunals often employ such lines. However, a rhumb line does not represent the shortest distance between two points on the earth’s surface. That is more accurately represented by a geodesic. Such fine distinctions may appear insignificant. But when access to petroleum resources is at stake and the area in dispute is highly prospective from a

11

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judgment, Merits, I.C.J. Reports 2001, para. 178. 12 The issue whether to take into account a State’s system of straight baselines or bay closing lines arose in both the Tunisia-Libya and Libya-Malta cases. In Tunisia-Libya, one of the parties had adopted straight baselines closing a bay and linking up a series of offshore islands. The question confronted by the Court was whether the maritime areas falling within those lines, and thus considered by the State concerned to be internal waters, should be excluded from consideration as part of applying the proportionality test. The Court did not rule on the validity of the baselines in question, but held that no such exclusion should apply for purposes of applying proportionality. (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 76, para. 104). In Libya-Malta, the Court similarly refrained from expressing an opinion on a party’s straight baselines. As the Court stated: “in any event the baselines as determined by coastal States are not per se identical with the points chosen on a coast to make it possible to calculate the area of continental shelf appertaining to that State.” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para. 64).


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natural resource point of view, small differences in boundary lines can have large economic implications. These kinds of questions (and undoubtedly hydrographic experts could identify more) raise both legal and technical issues. Presumably, the legal team will be able to deal with questions of law. But the important point from the perspective of the practitioner charged with advising a State is that it is essential to engage technical experts to advise the lawyers on these matters and to plot hypothetical equidistance and other lines for internal consideration and possible submission in litigation.

6. COASTAL CONFIGURATIONS, DIFFERENCES IN COASTAL LENGTHS AND PROPORTIONALITY AS A TEST OF THE RESULT A further area where the interface between the legal team and the geographic experts is pronounced concerns the treatment of the coasts of the parties. Relevant questions where technical advice may assist include the identification of the general direction of the parties’ coasts, the role played by marked differences in the lengths of the coasts in achieving an equitable delimitation, and how what is commonly referred to as the element of proportionality should be taken into consideration. These matters give rise to important tactical decisions on the part of counsel and depend heavily on legal and geographic assessments. The case precedents suggest that courts and tribunals place greater emphasis on generalized descriptions of the coasts of the parties rather than on a minute analysis of a particular coast with all its sinuousities. One phrase frequently referred to as a relevant factor is “the general direction of the coast”. The construction of a coastal front, or façade, can have implications for determining the actual course of a delimitation line (as was the case with both sectors of the delimitation in the Tunisia-Libya case), and for purposes of applying the criterion of proportionality. The need for both a legal and geographic appreciation of the facts is self-evident in these situations. Then, there is the question of proportionality – a concept which has often engendered confusion in the minds of litigating States. The genesis of the doctrine of “proportionality” can be traced to the 1969 North Sea Continental Shelf Cases. Those cases involved a specific geographic situation in which one State, Germany, found itself geographically disadvantaged vis-à-vis its neighbours, Denmark and Holland, because of the concave nature of its coast when the equidistance method was applied. In one of its more frequently cited passages, the International Court of Justice identified one of the factors to be taken into consideration in the application of equitable principles as follows:

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Rodman R. Bundy “the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of its coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region.”13

It is safe to say that in all delimitation cases that have been submitted to third party adjudication since 1969, proportionality has reared its head in one form or another. There is no reason to believe that this will not continue to be the case. The key questions are whether “proportionality” in and of itself is a method of delimitation and, if not, what is the proper role of material differences in the length of the parties’ coasts for delimitation purposes. As to the first question, the case precedents have made the position tolerably clear. Proportionality, by itself, is not a method of delimitation. At most, it is used as a test of the reasonableness, or lack of disproportion, of a delimitation arrived at by other means. The Chamber of the International Court of Justice in the Gulf of Maine case put the point in the following way: “The Chamber’s views on this subject may be summed up by observing that a maritime delimitation can certainly not be established by a direct division of the area in dispute proportional to the respective lengths of the coasts belonging to the parties in the relevant area . . .”14

This reasoning was echoed by the full Court in the Libya-Malta case. There, the Court observed: “It has been emphasized that this latter operation [application of the element of proportionality] is to be employed solely as a verification of the equitableness of the result arrived at by other means.”15

However, returning for a moment to the Gulf of Maine case, the Chamber went on to note, immediately after the passage cited above, that – “it is equally certain that a substantial disproportion to the lengths of those coasts that resulted from a delimitation effected on a different basis would constitute a circumstance calling for an appropriate correction.”16

13

North Sea Continental Shelf Cases, Judgment, Merits, I.C.J. Reports 1969, p. 54, para. 101 (D) (3). 14 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 323, para. 185. 15 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 49, para. 66. 16 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 323, para. 185.


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This reasoning was taken a step further in the Libya-Malta case where the Court drew a distinction between employing proportionality as an ex post test of the equitableness of a result arrived at by other means, and taking note of a very marked difference in coastal lengths for purposes of determining the actual boundary line itself.17 With respect to the second question, therefore, a marked difference in coastal lengths is a relevant circumstance to be factored into the delimitation process. In the Gulf of Maine, Libya-Malta, and Denmark-Norway cases, marked disparities in the parties’ coastal lengths had a direct influence on the course of the final delimitation line. In the latter two cases, this was achieved by adjusting the provisional median line in favour of the State with the longer coast. The question remains, however, how in practice this adjustment is made and what the magnitude of the adjustment should be. One can read the case precedents closely without gleaning any concrete guidance as to what degree of “adjustment” may be appropriate in a particular case. Practitioners and States alike have to be aware of these issues. As is evident, there is considerable scope for input by expert geographers at the preparation stage of a case. The legal team is likely to benefit from the commissioning of expert studies analysing coastal lengths, coastal façades, proportionality tests and the identification of the “relevant area”. How much of this material is ultimately deployed is another question. But States are well advised to undertake at least the underlying preparatory work.

7. DEALING WITH ISLANDS AND LOW-TIDE ELEVATIONS The presence of islands and, to a lesser extent, low-tide elevations in the area to be delimited is almost always a contentious issue in maritime delimitation cases. One need only read the case precedents to appreciate the frequency with which the International Court of Justice and arbitral tribunals have had to deal with islands in reaching an equitable solution. Consider the following examples where islands were either ignored or given less than full equidistance treatment in the construction of the delimitation line: • In the 1977 Anglo-French arbitration, the Channel Islands were partially enclaved with twelve mile territorial seas while the Scilly islands were accorded a “half-effect” for purposes of delimiting the seaward portion of the boundary; • In the 1981 Dubai-Sharjah arbitration, the island of Abu Musa received a twelve mile territorial sea without further effect on the continental shelf boundary; 17 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 49, para. 66.

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• In the 1982 Tunisia-Libya case, the island of Djerba had no effect on the course of the delimitation line and the Kerkennah islands were given a modified version of “half-effect”; • In the 1984 Gulf of Maine case, Seal island received a reduced effect for purposes of constructing the boundary; • In the 1985 Libya-Malta case, the main island of Malta received less than full equidistance treatment and the small rock, Filfla, was ignored altogether; • In the 1992 Canada-France arbitration concerning delimitation between Newfoundland and the islands of St. Pierre and Miquelon, the islands were accorded twenty-four mile partial enclaves and a strip of continental and EEZ entitlement corresponding to the limited length of their coastal front; • In the 1993 Denmark-Norway case, the island of Jan Mayen received less than full equidistance effect; • In the 1999 Eritrea-Yemen arbitration, the Yemeni islands of Al-Zubayr and Jabal el-Tair had no effect on the final delimitation line; • In the 2001 Qatar-Bahrain case, the tiny island of Qit’at Jaradah had no effect on the delimitation line. To these precedents may be added a number of examples taken from State practice.18 While the reasons for treating an island in a particular manner vary from case to case, there can be no doubt that islands merit close study by the legal and technical team in any delimitation case.19 In considering the role of islands, several factors are likely to be important – the size of the island (or islands), its location and its overall economic, social and political importance being just three. In preparing a case, the practitioner will inevitably seek assistance in compiling a file on these factors. One natural starting point is Article 121 of the Law of the Sea Convention. Islands are defined in paragraph 1 of Article 121 as follows: “An island is a naturally formed area of land, surrounded by water, which is above water at high tide.” The technical expert will immediately ask the question, however: which high tide? While the issue may seem insignificant, it can pose problems.

18

See the paper of Chris Carleton in this publication where the author cites a number of such examples. 19 This leaves aside questions that inevitably arise when sovereignty over an island, which may impact the delimitation, is in dispute. Many such disputes exist, and some have been submitted to international adjudication in connection with delimitation cases. For example, the Qatar-Bahrain case involved issues of disputed sovereignty over a number of islands as well as the question of maritime delimitation. In the El SalvadorHonduras case, ownership over islands was in dispute and the Chamber of the Court was also called upon to decide the legal status of the Gulf of Fonseca. And in the Eritrea-Yemen arbitration, the questions of sovereignty over disputed islands and maritime delimitation were bifurcated with the sovereignty issue decided first followed by separate proceedings, and a separate award, on maritime delimitation.


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In the Qatar-Bahrain case, for example, an issue arose whether a small feature known as Qit’at Jaradah was an island or a low-tide elevation. In 1947, the British Government identified Qit’at Jaradah as a shoal that was above “the spring tide low-water level”. Nautical charts also identified the feature as a low-tide elevation. However, subsequent eyewitness reports, and an expert study filed with the Court by one of the parties, took the position that the feature was actually an island and the experts of the other side filed no evidence rebutting this position. The Court, as a result, ruled that the feature was indeed an island although it accorded the island no weight in the construction of the final delimitation line.20 Article 121, paragraph 2, of the Convention sets out the basic rule that the territorial sea, contiguous zone, exclusive economic zone, and continental shelf of an island are determined in accordance with the provisions of the Convention applicable to other land territory. As to entitlement, therefore, an island enjoys the same rights as a mainland coast. But this begs two questions: what happens if the island is a mere rock, and what is the effect that an island should have in reaching an equitable delimitation? With respect to the first question, paragraph 3 of Article 121 is obviously germane. It provides: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

Much has been written about the meaning and scope of this rather succinct provision. Without entering into that doctrinal debate, what is clear is that a State engaged in delimitation proceedings will have to undertake geographic and other research relating to insular features located within the area in dispute in order to a form a view on the issue. As noted above, the size of an island can be relevant. The practitioner will want evidence on this point. So too is the island’s location. Islands lying close to the mainland may not have a material effect on the drawing of a provisional equidistance line if basepoints on the island are used. An island lying a considerable distance from the mainland coast may produce much different results. As part of preparing a delimitation case, the experts of the parties will probably be called upon to produce hypothetical delimitation scenarios for internal use by their teams giving the island full effect, no effect, or something in between. This is all a central component of the strategic litigation process. Information regarding the social, economic or military uses of an island are likely to have to come from sources both within the host State and from outside consultants. Once again, it is the role of the practitioner, working with the agent and his or her colleagues, to marshal the facts and present this information.

20 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judgment, Merits, I.C.J. Reports 2001, at paras. 191–197 and para. 219.

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Moreover, the information does not always come from conventional sources. In the Eritrea-Yemen case, for example, the fact that an airstrip had been built on one of the islands in dispute only came to light as a result of research undertaken in the archives of an oil company which had concession rights in the neighbouring offshore area. This evidence proved to be crucial at the sovereignty stage of the case; and the disposition of the question of sovereignty had an obvious and equal importance for the subsequent delimitation phase.21

8. THE PREPARATION OF ILLUSTRATIVE MAPS The adage that “a picture tells a thousand words” is certainly true when it comes to maritime delimitation cases. In preparing their written pleadings, the parties will invariably need to produce a number of illustrative maps depicting their claims and other relevant information. Similarly, at the oral hearings, the presentations of counsel benefit from graphic illustrations when it comes to addressing the geography of the area in dispute, delimitation lines, offshore economic activities such as the oil licensing practices of the parties, proportionality tests, key historic or diplomatic documents, and the like. A State involved in litigation needs to have at its disposal a cartographic team that can readily produce such materials and is sensitive to the (sometimes unreasonable) demands of counsel. Particularly at the oral hearings, flexibility and speed are essential. Graphics are often produced overnight in response to arguments presented by the other side. Judges’ folders are generally prepared for distribution to the members of the court or tribunal, the registry and the other party. These can include both documentary materials and maps. Litigants thus need to ensure that production and printing facilities are available so that sufficient copies can be circulated at short notice.

9. ASSEMBLY OF THE DIPLOMATIC FILE AND THE CONDUCT OF THE PARTIES One subject that falls squarely on the shoulders of a litigating State is the assembly and circulation to the team of the diplomatic background to the dispute. Maritime delimitation disputes rarely arise in a vacuum. Usually they are the culmination of a (sometimes lengthy) process of negotiation.

21 Eritrea-Yemen: Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, paras. 419 and 507.


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Counsel clearly need to be apprised of the positions that the contesting States adopted in previous discussions. The review of any diplomatic correspondence in the form of protests or counter-protests over activities relating to the disputed area is also essential. Questions of acquiescence or waiver may be at stake, and the International Court of Justice and arbitral tribunals have paid close attention to these kinds of matters in the past. Lawyers do not like surprises, and international lawyers experienced in maritime delimitation are no exception. A State engaged in a delimitation case can therefore expect demands to be put upon it by its legal team to gather the relevant documentation at an early stage of the proceedings. This leads to a related subject: the conduct of the parties relating to their exercise of authority over portions of the area in dispute. The relevance of such conduct hinges to a large extent on whether there exists evidence pointing to the acceptance by the parties, albeit on an informal basis, of a de facto separation line in the pursuit of their offshore activities. The leading authority where the conduct of the parties played a decisive role is the Tunisia-Libya case. Two elements of the parties’ conduct, or that of their colonial predecessors, were important in that case. The first concerned the past practice of the parties in licensing offshore areas for oil exploration. What was significant from the Court’s point of view was that over a course of some eight years, the parties had issued petroleum licenses which largely aligned with each other without eliciting any protest from either side. In the Court’s words: “The result was the appearance on the map of a de facto line dividing concession areas which were the subject of active claims, in the sense that exploration activities were authorized by one Party, without interference, or (until 1976) protests, by the other.”22

The Court emphasized that it was not making a finding of “tacit agreement” between the parties. Nonetheless, the Court noted that it “must take into account whatever indicia are available of the line or lines which the Parties themselves may have considered equitable or acted upon as such – if only as an interim solution affecting part only of the area to be delimited.”23 The result was that this de facto line was treated as a “highly relevant” circumstance for purposes of tracing the first sector of the delimitation. The second element of conduct relied on by the Court concerned the fishing practices of the parties’ colonial predecessors. Here, the Court also found that the evidence pointed to what it termed a modus vivendi concerning the lateral

22 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 84, para. 117. 23 Ibid., p. 84, para. 118.

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delineation of those practices. The fact that the de facto oil concession line largely coincided with the modus vivendi fishing line had an important bearing on the Court’s approach to delimitation.24 In the light of the Tunisia-Libya precedent, it is not surprising that parties to subsequent delimitation disputes have sought to find support for their arguments in the conduct of the litigating States. This is a legitimate and important area of investigation for any State engaged in a delimitation case. Nonetheless, States should be aware that in the recent Cameroon-Nigeria case, the Court appears to have raised the bar with respect to the relevance of the parties’ conduct. In that case, the oil activities of the parties were once again a focus of debate. However, unlike in Tunisia-Libya, the Court took the position that only if such activities rise to the level of an “express or tacit agreement” will they be taken into account.25 While there may thus be some uncertainty over whether a “tacit agreement” is required for conduct to be relevant, States must still carry out due diligence in this respect. This entails gathering whatever evidence is available of licensing or other activities performed by either side in the area subject to delimitation.

10. ACCESS TO NATURAL RESOURCES AND HISTORIC RIGHTS Litigating States frequently confront the question whether and to what extent they should introduce economic arguments before a judicial body charged with deciding a maritime boundary. Does it matter if a State pleads relative poverty in comparison with its neighbour or argues in favour of a need to have access to the natural resources of the area in dispute? Here, again, the signals are mixed. In the past, the International Court of Justice has emphasized that maritime delimitation is not an exercise in distributive justice.26 Practitioners will also be aware of the Court’s well rehearsed dicta that: “Equity does not necessarily imply equality. There can never be any question of completely refashioning nature . . .”27

By the same token, the Court has held that the relative economic situation of a country is not a factor which should influence its maritime entitlement. As the Court observed in the Tunisia-Libya case,

24

Ibid., pp. 84–85, para. 119. Land and Maritime Boundary between Cameroon and Nigeria, Judgment, Merits, I.C.J. Reports 2002, at para. 304. 26 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 40, para. 46. 27 North Sea Continental Shelf Cases, Judgment, I.C.J. Reports 1969, p. 49, para. 91. 25


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“these economic considerations cannot be taken into account for the delimitation of the continental shelf areas appertaining to each Party. They are virtually extraneous factors since they are variables which unpredictable national fortune or calamity, as the case may be, might at any time cause to tilt the scale one way or the other.”28

Notwithstanding this, there is authority which points in the other direction, including precedents from the same court which issued the pronouncements quoted above. In the Gulf of Maine case, for example, the Chamber of the Court left open the possibility that economic considerations might be pertinent if a particular delimitation gave rise to what the Chamber called “catastrophic repercussions for the livelihood and well-being of the populations of the countries concerned”.29 And in the Denmark-Norway case, the Court relied on an equitable access by both parties to certain fishing resources as justification for its decision regarding part of the maritime boundary.30 With respect to historic rights, the question is not so much one of principle as one of proof. Article 15 of the Law of the Sea Convention expressly refers to “historic title” as a ground for deviating from an equidistance boundary for purposes of territorial sea delimitation. When it comes to the delimitation of the continental shelf (and presumably the exclusive economic zone as well) the Court has upheld the relevance of historic rights subject to their being proved. As the Court stated in the Tunisia-Libya case: “Historic titles must enjoy respect and be preserved as they have always been by long usage.”31

States must take note, however, that if they advance a case based on historic rights or title, they will bear a heavy burden of proof that such rights exist, that they have been exclusive and that they have been maintained for a suitably long period for them to have a material effect on the course of the delimitation line.

28

Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 77, para. 107. 29 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 342, para. 237. 30 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, pp. 71–72, paras. 75–76. Reference may also be made, in this respect, to the Arbitral Tribunal’s Award in the Eritrea-Yemen case where the Tribunal held that the parties’ traditional fishing regime as it had existed in past practice should be respected. Eritrea-Yemen: Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, para. 527 (vi). 31 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 73, para. 100.

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11. GEOLOGY AND GEOMORPHOLOGY Prior to the conclusion of the 1982 Convention, geological and geomorphological evidence figured high in the preparation of pleadings before the ICJ and arbitral tribunals. In the 1969 North Sea continental Shelf Cases, the Court had expressed the following view: “What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, – in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea.”32

From this, the Court went on to say: “. . . it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong.”33

Not surprisingly, these observations prompted subsequent litigants to devote considerable time and expense to adducing expert evidence demonstrating that a particular delimitation line was justified on geological or geomorphological grounds. In its judgment in the 1982 Tunisia-Libya case, the Court concluded that the physical structure of the area in dispute did not contain any element which interrupted the fundamental continuity of that shelf. Nonetheless, the Court left the door open to the possible relevance of geological and geomorphological factors in future disputes. In the Court’s words: “The Court has already alluded to the possibility that certain geomorphological configurations of the sea-bed, which do not amount to an interruption of the natural prolongation of one Party with regard to that of the other, may be taken into account as a circumstance relevant for an equitable delimitation . . .”34

In 1985, however, this door was firmly shut with the Court’s decision in the Libya-Malta case. In the meantime, of course, the Law of the Sea Convention had been concluded, Article 76, paragraph 1, of which provided:

32

North Sea Continental Shelf Cases, Judgment, Merits, I.C.J. Reports 1969, p. 31, para. 43. 33 Ibid., p. 51, para. 95. 34 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 64, para. 80.


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“The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”

It was in the light of this development that the Court in the Libya-Malta case ruled that geology and geomorphology no longer had a role to play, at least with respect to the delimitation of maritime areas lying within 200 miles of the parties’ coasts. The relevant passage of the Court’s judgment was as follows: “the Court however considers that since the development of the law enables a State to claim that the continental shelf appertaining to it extends up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.”35

Does this mean that geological and geomorphological evidence will be completely irrelevant in future cases? Not necessarily. For the important question remains (as yet untested by litigation) whether and to what extent geology and geomorphology will be relevant to continental shelf delimitation beyond 200 nautical miles from the coasts of the parties in situations where the States involved are entitled to claim extended continental shelf rights under Article 76 of the Law of the Sea Convention. Since the right to claim shelf rights beyond 200 nautical miles is dependent on geological and geomorphological factors, an argument can be made that such factors should, in principle, also be taken into account as relevant circumstances in effecting an equitable delimitation.

12. THE PRESENCE OF THIRD STATES The presence of third States in the area to be delimited is unquestionably a circumstance which a litigating State must take into account. However, care must be taken how this is done. The issue arises principally in two contexts. First, depending on the rules under which a delimitation case is being heard, there may be a possibility that third States will apply to intervene in the case. Both the Statute of the International Court of Justice (Article 62) and the Statute of the International Tribunal for the Law of the Sea (Article 31) provide that a State that considers that it has an interest of a legal nature which may be affected by the decision in

35 Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 35, para. 39.

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the case may submit a request for permission to intervene. It is for the Court or Tribunal to decide such a request. Arbitration proceedings, on the other hand, do not give rise to an automatic right for a third party to apply to intervene.36 These issues are discussed in greater detail in the paper by Santiago Torres Bernardez in this compendium. For present purposes, what is important is that a State with a delimitation dispute needs to be apprised of this possibility and be prepared for it. Second, whether or not a third State applies to intervene, its potential rights and interests are likely to be taken into account by the court or tribunal deciding the case. In the Tunisia-Libya case, the Court solved this problem (the potential rights of Malta in the area) by placing an arrow at the end of the second sector of the delimitation line on the illustrative map attached to the judgment without specifying the co-ordinates of the actual terminal point of the boundary. As the Court noted: “How far the delimitation line will extend north-eastwards will, of course, depend on the delimitations ultimately agreed with third States on the other side of the Pelagian Sea. The Court has not been called upon to examine that question.”37

The Court adopted a similar solution in the Cameroon-Nigeria case – a case where a third State (Equatorial Guinea) was permitted to intervene. Rather than determining the end point of the delimitation line, the Court stated that it could do no more than indicate the general direction of the maritime boundary by reference to a loxodrome having a specified azimuth.38 In contrast, the approach utilized by the Court in the Libya-Malta case, in which Italy unsuccessfully applied to intervene, was more extreme. As noted earlier, Italy only made its maritime claims known during the oral proceedings relating to its intervention request. These were perceived by the parties to the dispute as exaggerated claims which had never been advanced previously.

36 In the Second Phase (Maritime Delimitation) of the Eritrea-Yemen arbitration, the parties to the dispute only learned in the Tribunal’s award that a third State, Saudi Arabia, had written to the Tribunal during the proceedings stating its position as to where it considered the Eritrea-Yemen maritime boundary should end so as to avoid trespassing on areas appertaining to it. (Eritrea-Yemen: Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), 17 December 1999, para. 44.) This development was not disclosed to the parties at the time, and the Tribunal did not specifically adhere to the Saudi position in its decision. Nonetheless, the incident illustrates the manner in which even confidential arbitration proceedings may not be totally immune from the actions of third States. 37 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 91, para. 130. 38 Land and Maritime Boundary between Cameroon and Nigeria, Judgment, Merits, I.C.J. Reports 2002, para. 307.


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Nonetheless, the Court fully respected Italy’s claims by restricting the delimitation between Libya and Malta to a modest corridor of continental shelf corresponding to areas where Italy had expressed no interests. Maritime boundaries frequently fall to be decided in areas where third States may have claims. State parties to litigation should be aware of the presence of third States and be prepared to take their potential interests into account in presenting their arguments.

13. RELYING ON EXAMPLES OF STATE PRACTICE There is an understandable tendency by parties to maritime boundary disputes to present analogous examples of State practice in an effort to buttress the legal validity of their position. Certainly, there is no shortage of bilateral and multilateral delimitation agreements on which to draw. How should this material be used and what is its relevance, if any? On the one hand, the case precedents make it clear that State practice taken as a whole does not point to any one method of delimitation as being legally obligatory in all circumstances. This was the position when the International Court of Justice addressed the matter in 1969 and again in 1985, and it remains the position today. In the 1969 North Sea Continental Shelf Cases, the Court stated the following – “. . . the position is simply that in certain cases – not a great number – the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so – especially considering that they might have been motivated by other obvious factors.”39

And in the 1985 Libya-Malta case, the Court observed: “The Court for its part has no doubt about the importance of State practice in this matter. Yet that practice, however interpreted, falls short of proving the existence of a rule prescribing the use of equidistance, or indeed of any method, as obligatory.”40

The Court has laid down two conditions which must be met for State practice to be legally relevant. First, that practice must amount to a “settled practice” in the sense of being virtually uniform. Second, the acts must be such, or carried out in such a way, as to evidence a belief that the practice is rendered obligatory

39

North Sea Continental Shelf Cases, Judgment, Merits, I.C.J. Reports 1969, pp. 44–45, para. 78. 40 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 38, para. 44.

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by a rule of law requiring it.41 It seems apparent, and the jurisprudence supports this conclusion, that there is no “settled” or “uniform” practice when it comes to the use of a particular method of delimitation. There is also little or no evidence suggesting that States consider themselves legally bound to use a particular delimitation method in their actual practice. These factors would seem to militate against the relevance of State practice for delimitation purposes. On the other hand, international courts and tribunals have made recourse to State practice when justifying the treatment of certain geographical features in delimitation cases. As has been seen, a number of cases exist where small islands have been accorded a reduced effect – sometimes a “half-effect” – in the establishment of an equitable boundary. Where did this notion of “half-effect” come from? The first mention of “half-effect” in the jurisprudence was in the 1977 Anglo-French arbitration. In that case, the Scilly Islands belonging to the United Kingdom received a kind of “half-effect” in constructing the seaward portion of the boundary. The Court of Arbitration summed up its justification for employing such a method by referring to State practice. The Court of Arbitration stated: “A number of examples are to be found in State practice of delimitations in which only partial effect has been given to offshore islands situated outside the territorial sea of the mainland . . . in one instance, at least, the method employed was to give half, instead of full, effect to the offshore island in delimiting the equidistance line.”42

In the Tunisia-Libya case the International Court of Justice also referred to State practice as justification for according the Kerkennah Islands “half-effect” in the construction of the second sector of the delimitation. The relevant passage of the Court’s judgment reads as follows: “The Court would recall however that a number of examples are to be found in State practice of delimitations in which only partial effect has been given to islands situated close to the coast; the method adopted has varied in response to the varying geographical and other circumstances of the particular case. One possible technique for this purpose, in the context of a geometrical method of delimitation, is that of the ‘half-effect’ or ‘half-angle’.”43

41

North Sea Continental Shelf Cases, Judgment, Merits, I.C.J. Reports 1969, p. 44, para. 77. 42 Anglo-French Arbitration, Decision of 30 June 1977, para. 251, reprinted in 18 International Legal Materials, 1979, p. 455. The “one instance” referred to by the Court was almost certainly the 1968 Saudi Arabia-Iran agreement where Kharg Island belonging to Iran was reported to have been given half-effect in the delimitation. 43 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 89, para. 129.


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In the light of these precedents, the practitioner is likely to advise his client that research into comparable examples of State practice is worthwhile, although there is always the risk that the opposing party will do the same thing and that, at the end of the day, the tribunal will not feel that the examples cited bring much to the debate.

14. QUESTIONS OF LITIGATION STRATEGY The foregoing discussion has focused on the elements that State parties to delimitation cases need to address in their preparation for litigation. However, there are other issues of strategy which deserve to be briefly mentioned. One of the key issues the litigation team is likely to confront at an early stage is how aggressive the claim should be that is advanced in judicial proceedings. This is a delicate matter which requires a balancing of a number of considerations. Unlike cases of disputed sovereignty over land territory where there is often a “winner” or a “loser” in the sense that the territory in question is awarded to one side or the other, maritime delimitation disputes rarely result in an “all or nothing” decision. The author is not aware of any maritime delimitation case that has been submitted to third party adjudication where the claims of a party have been accepted in their entirety. Inevitably, delimitation decisions give rise to an impression of “splitting the difference” to a greater or lesser degree. What, then, does a State do in these circumstances? Should States attempt to advance highly inflated claims knowing that the decision maker will probably find a solution lying somewhere in between the positions of the two parties? Or is a State better advised to table only “reasonable” claims which are solidly grounded in the law, or claims that are sometimes described as passing the “red face” test in the sense that they can be put forward without undue embarrassment? There is no rule of thumb. But it can be said that a State must be conscious of the need to retain credibility in the claims it submits to a tribunal. The tabling of clearly excessive claims may raise expectations on the part of the State putting them forward – expectations which are likely to be disappointed when the decision is rendered. Similarly, inflated claims run the risk of straining the credibility of the party that submits them with respect to other aspects of the dispute. A balanced and defensible position may carry more weight even if, for purposes of advocacy, it represents a more favourable position than the State would have been able to achieve in negotiations. Another question which sometimes arises concerns situations where there are issues of disputed sovereignty at stake in addition to an unresolved maritime boundary. Are these best addressed simultaneously or in separate proceedings? Does a party always have a choice of forum with respect to such disputes?

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Assuming that the tribunal charged with deciding the matter is competent to deal with both issues (and this may pose problems when proceedings under Annex VII of the Law of the Sea Convention are invoked), the matter can be argued both ways. Logically, it is helpful to know to which party the relevant land territory belongs before embarking on delimitation. This avoids the uncomfortable situation in which States sometimes find themselves where they are reluctant to argue the delimitation question on the assumption that they will lose the sovereignty dispute. In such cases, a State may feel constrained only to put forward a rebuttal delimitation case in response to the positive case advanced by its opponent, while saving its “positive” arguments for the situation where sovereignty is assumed to belong to it. It was primarily for this reason that the parties to the Eritrea-Yemen arbitration elected to bifurcate their proceedings. In the first stage of the arbitration, the Tribunal was charged with deciding the scope of the dispute and settling questions of sovereignty over a number of islands. Immediately after rendering its award on sovereignty, the Tribunal turned to a second stage of the arbitration devoted to maritime delimitation, and rendered a second award on this question. Of course, this was a case brought by mutual agreement pursuant to a bilateral arbitration agreement. Moreover, the parties were able to stipulate tight time-limits in their agreement governing the deadlines for submitting written pleadings and for the Tribunal to render its awards. The sovereignty phase of the case took two years from start to finish and the delimitation proceedings were concluded in fourteen months. In contrast, the Cameroon-Nigeria case, which also concerned questions of sovereignty and maritime delimitation, was submitted to the International Court of Justice by unilateral application. The applicant in the case may have had no other choice of forum. Moreover, the case was affected by a number of ancillary proceedings dealing with jurisdiction, provisional measures and the intervention by a third State. The result was that the entire case took eight and one-half years to complete. In these circumstances, the parties were obliged to argue the sovereignty and delimitation questions simultaneously. In the QatarBahrain case, questions of disputed sovereignty and maritime delimitation were also presented simultaneously. It follows that there are a number of factors a State must consider when contemplating the litigation of disputes which possess both a sovereignty and delimitation component. How the case is structured has an inevitable effect on the manner in which the arguments are presented.


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15. CONCLUSIONS This contribution has tried to highlight a number of considerations from the practitioner’s point of view that a State party to a maritime delimitation case must be prepared to tackle. Generally speaking, delimitation cases are less complex and involve a more modest amount of documentary evidence than cases of disputed sovereignty. Nonetheless, litigation is a complicated and sophisticated process which results in a judgment or award which is final and binding on the State. Proper preparation and organization is indispensable, and the adoption of a team approach essential.

Negotiating Maritime Boundary Agreements: A Personal View David Anderson* This paper contains some personal assessments and conclusions based upon direct involvement over a good number of years with the issue of maritime delimitation. This involvement included the conduct of negotiations for maritime boundary agreements on behalf of the British Government in a variety of geographical and political settings, as well as participation in some of the negotiations concerning the question of delimitation during the Third UN Conference on the Law of the Sea and in some preparations for arbitrations.1

A. POLITICAL, ECONOMIC AND LEGAL FACTORS IN NEGOTIATING BOUNDARIES The significance of maritime boundaries in international relations grew in step with the expansion of national limits during the second half of the Twentieth * Judge of the International Tribunal for the Law of the Sea 1996–2005. 1 For a view of practice from 1942 to 1987, see the present author’s Article “Maritime Delimitation – a View of British Practice”, 12 Marine Policy, 1988, p. 231. For a Norwegian view of negotiation, see R.E. Fife, “La Négotiation de l’Accord de Délimitation Maritime”, in: Le Processus de Délimitation Maritime: Étude d’un cas fictive (Paris, A. Pedone, 2004), pp. 336–342.


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Century. Boundary-making is now a major task facing many coastal States, bearing in mind that relatively few of them have a full set of boundaries. Geographical experts have advised that the theoretical total of actual and potential boundaries is in excess of 400.2 In comparison, the five volumes of International Maritime Boundaries, published between 1993 and 2005, contain reports upon 180 boundary settlements, or less than half of the total.3 The limits of sovereignty and title to resources involve delicate political and security issues. The risks involved in boundary disputes are often high: one need only recall Lord Curzon’s dictum: “frontiers are the razor’s edge on which hang suspended . . . issues of war and peace . . .”4 The existence of overlapping claims may inadvertently lead to disputes, e.g. if fishermen from one side are arrested by the coastguard of the other side or if traces of oil are discovered in an area of overlapping claims. Overlapping claims may be akin to accidents waiting to happen. For this reason alone, establishing maritime boundaries is a worthwhile task for coastal States. Overlapping claims and unresolved boundaries may also chill economic activity, e.g. exploration work by the oil and gas industry. Conversely, the establishment of a boundary brings legal certainty permitting economic activity to start in previously “grey” areas: for instance, the oil industry can be licensed right up to the line and fisheries legislation can be enforced similarly. Established boundaries also bring political advantages: as the poet put it, “good fences make good neighbors.”5 Maritime boundaries are established either by some form of international agreement or by the decision of a court or tribunal. For several reasons, a negotiated agreement is the better means – so long as an equitable result is achievable. The parties retain control over a series of important issues, such as the

2

G.H. Blake (ed.), Maritime Boundaries and Ocean Resources (London, Croom Helm, 1987), and R.W. Smith, “Limits in the Seas”, Maritime Boundaries of the World, International Boundary Studies, No. 108, 30 November 1990, p. 5 (Table 1), http://www.law.fsu.edu/library/collection/LimitsinSeas/ls108rev.pdf 3 J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries, Vols. I–III (Dordrecht, Martinus Nijhoff Publishers, 1993–1998), J.I. Charney, R.W. Smith (eds.), International Maritime Boundaries, Vol. IV (Dordrecht, Martinus Nijhoff Publishers, 2002), D.A. Colson, R.W. Smith (eds.), International Maritime Boundaries, Vol. V (The Hague, Martinus Nijhoff Publishers, 2005). 4 Lord Curzon of Kedleston’s words, uttered in 1908, provided the title for a collection of essays in honour of Professor Gerald Blake of the International Boundaries Research Unit of the University of Durham: see Schofield et al. (eds.), The Razor’s Edge: International Boundaries and Political Geography (London, Kluwer Law International, 2002). 5 Robert Frost, “Mending Wall”, in: L. Untermeyer (ed.), Modern American Poetry (New York, Harcourt, Brace and Howe, 1919), poem No. 64.

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precise results of the negotiations and in particular the course of the boundary lines; the way in which the line is defined; the terms and the timing of the agreement; and its presentation to public opinion. In order to reach a mutually acceptable solution, negotiators can put together “packages” – for example, a combination of boundary sections and a joint area, or a trade-off between two sections of boundary or between different resource interests. Conversely, litigation always carries risks for the parties, and the range of legal findings available to a court or tribunal is more restricted than the options open to negotiators. The negotiation of boundaries is rarely an easy process. Compromising sovereign claims often requires political courage, especially when the explicit approval of the Legislature has to be obtained before an agreement can enter into force. But as Satow put it: “There are few more rewarding things in diplomacy than a successful negotiation . . . from which both parties derive some satisfaction. For mutual satisfaction is the best guarantee of permanence . . .”6 Boundary-making involves conducting what are often complex, structured and face-to-face negotiations against a predominantly legal background. According to Article 74, paragraph 1, of the Convention on the Law of the Sea, delimitation is to be “effected by agreement on the basis of international law . . .” In seeking such an agreement, the normal legal principles of negotiation7 apply, together with some specific principles applicable to delimitation. These two sets of principles of international law together provide the best standards against which to negotiate and to assess the worth of proposals for boundary settlements. International law is the yardstick against which to measure an offer in talks, as well as the worth overall of a proposed boundary settlement. It is advisable to avoid linkages with other on-going negotiations such as trade talks, whether bilateral, regional or multilateral, and to eschew reference to extraneous political factors, all the more so since the latter are often ephemeral. There is a need, therefore, if negotiations are to be facilitated, for settled law – clear legal principles commanding universal support. At different times, the state of the law has facilitated negotiations to different degrees. During the 1960s, the Geneva Conventions, based on the work of the International Law Commission and its group of technical experts, were generally helpful. The rules set out in Article 12 of the Territorial Sea Convention

6 Lord Gore-Booth (ed.), Satow’s Guide to Diplomatic Practice, 5th ed. (London, Longmans, 1979). 7 As to which, see C.-A. Fleischhauer, “Negotiation”, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. III (Amsterdam, Elsevier, 1997), p. 535; “Négociation”, in: J. Salmon (ed.), Dictionnaire de Droit International Public (Bruxelles, Bruylant, 2001), p. 734; R. Jennings and A. Watts (eds.), Oppenheim’s International Law, 9th ed. (London, Longman, 1992), pp. 1181 ff.; and “Negotiation and Dispute Settlement” by the present writer, in: M.D. Evans (ed.), Remedies in International Law: The Institutional Dilemma (Oxford, Hart Publishing, 1998), p. 111.

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appear to have worked satisfactorily in practice8 and some successful negotiations followed the entry into force of the Convention on the Continental Shelf (CCS), notably in parts of the North Sea. However, the alternative formulation of similar concepts contained in Article 6 CCS may have created unnecessary problems for negotiators in particular geographical settings. Article 6 appears to have been cast in terms that tended to be both rigid and vague. For instance, the proposition that in the absence of agreement, etc. “the boundary is the median line” (emphasis added) may have made it more difficult for the many negotiators who wanted to achieve precisely that result to abandon it across the table. When the “default rule” is in your favour, why agree to something worse? The other qualification in Article 6, contained in the phrase “justified by special circumstances,” was not accompanied by any guiding legal principle or non-exhaustive list of agreed examples, although a few examples were cited in debate. Negotiators could easily deny that the circumstances invoked by the other side were sufficient to be dubbed “special” (always a problematic word in legal texts) or to “justify” (according to what principle?) a departure from the median line. The forecast made by the International Law Commission9 that departures from the initial median line would be necessitated (by coastal configurations, presence of islands and navigable channels) “fairly often” was not clearly reflected in the formulation of its draft Article 72 or Article 6 CCS. Finally, the possibility of making reservations to Article 6 may well have complicated negotiations relating to those maritime areas to which reservations applied. In the event, negotiations influenced by the Geneva regime produced only limited successes, for example, in the North Sea, and where negotiations proved unsuccessful the result was litigation. During the 1970s, following the finding by the International Court of Justice in the North Sea Continental Shelf Cases10 that Article 6 of the Convention on the Continental Shelf “did not embody or crystallize any pre-existing or emergent rule of customary law”, a doctrinal split was witnessed throughout much of the Third United Nations Conference on the Law of the Sea. The States Parties to the Convention on the Continental Shelf remained bound by its terms as a treaty in force and their delegations tended to support its approach for that

8 The Article, which lays down a rule of conduct for States in the matter of extending the breadth of the territorial sea in circumstances where no agreement has been reached between them to the contrary, appears not to have generated as many disputes as Art. 6 CCS. 9 Para. 1 of the Commentary on draft Art. 72, in Report of the ILC: II YBILC 1956, at p. 300. 10 I.C.J. Reports 1969, p. 3, at p. 41. The decision of the Court of Arbitration in 1977 in the case between France and the United Kingdom, which neatly combined equitable principles and equidistance, came after delegations’ positions had become entrenched and so had little effect on the further negotiations in the Conference.


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reason, in addition to the substantive ones. Non-Parties to that Convention tended to support the different approach of “agreement in accordance with equitable principles” contained in the Dispositif of the Court’s judgment, as well as the elusive concept of “natural prolongation”. These latter delegations wished to codify the Court’s decision, based on customary law, as the new conventional law, replacing the Convention on the Continental Shelf. The two groups of delegations were about equal in numbers. Indeed, several pairs of States were simultaneously negotiating at two levels: bilaterally for a boundary and multilaterally through membership of rival groups in the Conference.11 (The problem of Governments trying to reach consensus on global rules of law on delimitation whilst negotiations for particular boundaries are underway or remain outstanding may be insoluble.) A neutral formulation for the delimitation of the exclusive economic zone (EEZ) and continental shelf was agreed as Articles 74 and 83 at a late stage of the Conference; but the crucial principle in paragraph 1 of each Article was not specific and for other well-known reasons to do with the regime for deep seabed mining the fate of the Convention on the Law of the Sea remained uncertain during the years immediately after its adoption in 1982. As a result of these factors, from 1970 to the early 1990s, the state of maritime boundary law was unsettled, even controversial. This state of affairs created difficulty for negotiators. If, as was all too often the case, the best legal advice was to the effect that recourse to litigation could result in the award of a wide “envelope” of lines, it became more difficult for all concerned to offer compromises across the table. In prior discussions within a government, for example, it was more difficult to oppose constituencies who sought to insist upon maximalist outcomes if the latter fell just within the “envelope” of conceivable awards. The argument was that to make a concession of any size could amount to “giving away” billions of dollars should an average-sized oil field be subsequently discovered there. The existence of such wide envelopes, reflecting the uncertain state of the substantive law, inevitably made compromise hazardous for both sides. The doctrinal schism at the global level between supporters of the median line approach and supporters of equitable principles was replayed in some bilateral negotiations. During this period, the principles of international law provided a less than satisfactory yardstick for negotiators. 11 Ireland and the UK provide one example. For accounts of these discussions, see E.J. Manner, “Settlement of Sea-Boundary Delimitation Disputes according to the Provisions of the 1982 Law of the Sea Convention”, in: J. Makarczyk (ed.), Essays in International Law in honour of Judge Manfred Lachs (The Hague, Martinus Nijhoff Publishers, 1984), pp. 625–643; J. Symonides, “Delimitation of Maritime Areas”, XIII Polish Yearbook of International Law, 1984, p. 19; and L. Caflisch, “The Delimitation of Marine Spaces between States with Opposite or Adjacent Coasts”, in: R.-J. Dupuy, D. Vignes (eds.), Handbook on the New Law of the Sea, Vol. I (Dordrecht, Martinus Nijhoff Publishers, 1991), pp. 425–499.

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Today, at the start of a new Millennium, maritime boundary law is much more settled, due largely to two factors. The first factor is the entry into force of the Convention on the Law of the Sea and its acceptance by as many as 149 States Parties, including the great majority of coastal states.12 This means that in most situations there are agreed legal provisions applicable between the States concerned, especially the provisions on the limits of national jurisdiction, on baselines, and on the delimitation of the territorial sea, the Exclusive Economic Zone and the continental shelf (Articles 15, 74 and 83). As a result, most basic principles are uncontroversial (although paragraph 1 of Articles 74 and 83 lack specific guidelines) and the former differences between conventional and customary law are gradually disappearing. The second factor is the emergence of a more consistent approach and methodology in the decisions of courts and tribunals between 1992 and the present day.13 These decisions have concerned a variety of legal and geographical settings stretching from Jan Mayen in the North Atlantic via some points in the Middle East to the Gulf of Guinea.14 Together the decisions have tended to complement the guiding principle of the “equitable solution” in the Convention. The remaining controversies over the law governing maritime delimitation have been greatly reduced in scope, as compared with situation in 1980. Today’s negotiators have a better legal basis upon which to seek to reach maritime boundary agreements.

B. THE PRE-NEGOTIATION PHASE Before opening negotiations, it is wise to form a team that works together on the issues. The members of the team should include an international lawyer familiar with both the negotiation of treaties15 and the law of the sea, including delimitation, and a hydrographer familiar with the latest charts and computer programs relating to the area to be delimited. The team should also include experts on the bilateral political relations between the negotiating States and the substantive domestic interests such as hydrocarbons and fishing. The team leader should be either a political or a legal expert. The whole team

12 This total, reached with the ratification by Estonia in August 2005, includes the European Community. 13 See the paper by Professor Lucchini in this volume. 14 Jan Mayen case, I.C.J. Reports 1993, p. 38; Eritrea/Yemen Arbitration, 40 International Legal Materials, 2001, p. 983; Qatar v. Bahrain case, I.C.J. Reports 2001, p. 40; Cameroon v. Nigeria case, I.C.J. Reports 2002, p. 303. 15 A topic reviewed in “The Role of the International Lawyer in the Negotiation of Treaties” by the present writer, in: C. Wickremasinghe (ed.), The International Lawyer as Practitioner (London, British Institute of International and Comparative Law, 2000), p. 21.


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should prepare thoroughly by studying the full background, including the geography of the boundary area and the material interests of both sides. The diplomatic history of the current boundary issue should be documented. The maritime legislation applying to the area to be delimited should be examined, including the legislation on baselines, the limits of the territorial sea, EEZ or other maritime zones, and the continental shelf. It is also a good idea to ensure that the relevant national legislation is up-to-date, including baselines and limits. It is better to negotiate from position founded on specific legislation establishing baselines and a territorial sea of 12 nautical miles, etc., than to advance claims based on notional baselines that could be drawn in the future or limits that have not been proclaimed. The mention of baselines serves to indicate that, at an early stage in preparations, the negotiating team should obtain technical advice from the hydrographer or other cartographic expert.16 The hydrographer is usually asked to draw a median line between all valid basepoints on the two sides as a starting point for further preparatory work. The result of this exercise often surprises the layman because the basepoints are not obvious just from looking at a map. The hydrographer should be consulted throughout the preparations and should attend all meetings between the delegations. A view should be formed on which system of law is applicable: customary or conventional? Are the Geneva Conventions on Territorial Sea and on the Continental Shelf in force between the two parties? Or is Articles 15, 74 or 83 of the Convention on the Law of the Sea the applicable law? Is there a land boundary treaty and, if so, does it make any provision for the division of the territorial sea? Does it define the terminal point of the land boundary in an unambiguous manner? Where there exists a sovereignty dispute, it is best to resolve it either before concluding the boundary agreement or to do so at the same time. For example, the agreement between the United Kingdom and Venezuela of 1942 concerning the delimitation of the Gulf of Paria was accompanied by a second agreement whereby the Island of Patos was ceded.17 It is also wise for a negotiating team to review at the outset all the available options for an agreed boundary. An all-purpose, single boundary is often the best option since it produces a clean-cut, final agreement. Resource activities can be licensed or regulated by each State right up to the line. Whilst it is possible to have different lines for different purposes, that option is unusual and in practice it may require the establishment of a management commission to resolve issues of conflicting uses/jurisdiction. Similarly, a negotiator should consider the question of the scope of the forthcoming talks. In particular, there is the question of whether to seek a comprehensive settlement or simply to

16 17

On the role of the expert, see the chapter by Martin Pratt in this volume. UK Treaty Series No. 10 (1942), Cmd. 6400.

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agree on part of an eventual longer boundary. Where the two States have more than one outstanding boundary between coasts facing different seas or oceans, a negotiator should consider whether to seek to agree upon all the boundaries in the same negotiations or to take them singly (in which case, there is less chance of negotiating “trade-offs” between different boundaries). The negotiating team should also review the major substantive interests involved in the forthcoming negotiations. Often, this entails making contact with the stakeholders, such as representatives of the fishing, oil and gas, dredging, shipping and similar industries, as well as coastal and security interests. These interests may often not coincide: for example, the fishing industry may seek access to one area and the oil industry to another. Since fishermen vote whilst oil wells produce tax revenues, it is sometimes necessary to make an overall assessment of where national interests lie. This eminently political question may have to be finessed. Before talks can be held, it is necessary to secure authority for a negotiating brief, usually including a proposal for an acceptable solution.

C. THE NEGOTIATING PHASE Negotiations are usually initiated through the exchange of diplomatic communications in some appropriate written form. These are followed, almost invariably, by face-to-face meetings between the respective delegations.18 The first meeting is usually held in the capital of the country that instigated the negotiations, although in some instances meetings have been held in neutral capitals or Permanent Missions to the United Nations in New York or Geneva. The home team is expected to take the initiative in conducting the meeting. The leader of each negotiating team should do most of the talking, assisted by other members who have defined roles. Negotiations for maritime boundaries can, and often do, raise complex political, economic and legal issues. In such cases, the adoption of agreed guidelines for such negotiations, bearing in mind that they may end in litigation, is often helpful. Such guidelines are agreed at the outset and initialled by the two heads of delegation. The content of guidelines may vary according to the circumstances of different sets of talks, but some typical guidelines are the following: 18 In at least one instance, an agreement was concluded by exchanges of fax messages between officials in the Quai d’Orsay and the Foreign and Commonwealth Office without any face-to-face meetings. This was the Convention on Maritime Boundaries of 25 October 1983 establishing the boundary between French Polynesia and the Pitcairn Islands: Report No. 5–7 by the present writer in J.I. Charney, op. cit., supra note 3, Vol. I, pp. 1003–1010. The boundary is an exact median line between EEZs around small islands over 200 nm apart. It was an exceptional, perhaps unique, case.


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(1) The talks are to be conducted without prejudice to legal positions. (2) The talks are confidential to the two Governments and, in particular, offers/concessions made cannot be quoted publicly. (3) Each side may make its own record of everything said in the meetings, but if the issue were at any time to be submitted to a court or other tribunal these records may not be introduced as evidence by either Government. (4) Each side will exercise restraint over activities within, or relating to, the area under discussion. These activities include defining claims in legislation, issuing licenses for resource or research purposes, designating areas for administrative purposes under national legislation, or authorising exploratory fishing or drilling in the area of overlapping claims. (5) Each side will inform the other in advance of authorizing any new initiatives or new activities in that area. (There could even be a need for a moratorium in certain circumstances.) (6) Each side will approach the talks with an open mind and recognise that any agreement would have to be approved by the two Legislatures and Governments before it could enter into force.

Such guidelines may be especially helpful during difficult phases that often arise in complex negotiations. They provide points of reference and a framework for the talks. They provide reassurance that concessions offered across the table will not find an echo in other contexts such as the public media or litigation. They can assist both delegations in making a further joint effort to achieve some progress. The nature of negotiations for the delimitation of boundaries has been the subject of judicial findings. Thus, “(The parties) are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement. The parties are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case if either of them insists upon its own position without contemplating any modification of it.”19 The formulation adopted by the Court has to be understood in the context of the dispute between the parties over the applicability of the well-known median line method of delimitation. Nonetheless, on a broader view this dictum amounts to saying that negotiators should always act in good faith, keeping an open mind and avoiding obvious gambits and ploys that are not sincere. The requirement of good faith reflects a general principle of international relations. It is best for the negotiator to try to gain, and then to retain, the confidence of

19 North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 3, at p. 47, para. 85 (a). The Court cited the dictum of the Permanent Court in its Advisory Opinion in the case of Railway Traffic between Lithuania and Poland to the effect that the obligation to negotiate was “not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements,” whilst not implying an obligation to reach agreement: PCIJ Series A/B, No. 42, 1931, at p. 116.

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other side. Exaggerated or over-stated arguments, sometimes called “red face” arguments,20 may serve merely to dispel confidence. At the same time, as a negotiator, you are trying to persuade the other side to move away from their position and to accept at least parts of your argument. In other words, the negotiator is acting as an advocate for a point of view. There is often no point in concealing positions on your side which are strongly held and legally sound. They should be advanced rationally and firmly, but without any threat or explicit refusal to acknowledge the possibility of any modification. If prior diplomatic exchanges have indicated differences of approach, it is best not to attempt to do too much at the first meeting. When commencing negotiations that are expected to be long and complex, presentations of the two opening positions, followed by questions or requests for clarifications, may be all that can realistically be expected from the first face-to-face encounter. An opening presentation should explain the background to the talks, including such points as the relevant legislation and maritime claims of the State concerned, its key interests and its approach to the question of delimitation. An opening proposal should be made at the right moment, which may not occur at the first meeting. An opening proposal should be formulated precisely. It is good practice to prepare a chart or map showing the proposed line, together with the justification. This should explain the method(s) used to draw up the proposal, such as exact equidistance between all available basepoints on both sides, or simplified equidistance21 or adjusted equidistance to achieve an equitable result,22 or a bisector of an angle between the relevant coasts.23 In introducing the proposal, the spokesperson should mention any treaty provisions which are applicable (e.g. the Geneva Conventions or the Convention on the Law of the Sea), any relevant decisions by international courts and tribunals, and any existing boundary agreements in the immediate vicinity, especially agreements which create a framework for the future boundary.24 It is also

20

See the paper by Rodman Bundy in this volume in regard to such arguments presented to international courts and tribunals. 21 Simplification on an area-compensated basis may be appropriate in order to straighten a line. 22 For instance, by discounting the effect of a minor coastal or distant insular feature in order to avoid disproportion between the size of the feature and the area it would otherwise control. 23 A solution adopted by the Chamber of the Court in the Gulf of Maine case for one sector. The technique of bisecting an angle is akin to the use of simplified equidistance between coastal fronts. 24 In semi-enclosed seas, a semi-complete pattern of existing boundaries may provide a framework for the negotiation of the remaining boundaries. For instance, the existence in the southern North Sea of agreed boundaries between the Netherlands and the United Kingdom (UK) and between France and the UK provided the framework for the negotiation of the boundary between Belgium and the UK. The latter’s negotiating stance was


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a good idea to mention any boundary agreements in analogous geographical settings that followed the approach being proposed. The initial proposal should be based on a sound legal basis, avoiding purely arbitrary lines or ones drawn from doubtful or notional basepoints, etc. All basepoints and baselines relied upon for drawing a line should be justifiable under the Convention on the Law of the Sea, following the approach adopted by the Court in the Qatar v. Bahrain case.25 If any potential basepoints on either side are not used, an explanation for discounting them should be given. In accordance with the dictum in the North Sea Continental Shelf Cases, the negotiator should be prepared to move from the opening position, choosing the time for moving carefully. It is best to move when the other side has already moved or given a signal that a move would be reciprocated. If the differences between the two sides are relatively minor, a small concession may be enough to move the negotiations towards an agreed solution. If differences are great, a small concession may be discounted as derisory. In that situation, a concession which makes a noticeable difference to the course of the line may be needed to keep talks moving forward. Experience shows that once a concession has been offered, it will prove to be nigh impossible to recover it. This is true even if a concession is hinted at on a ‘personal’ level. If you do have to withdraw a personal offer, this is rarely cost-free – both across the table and also within your own government. Always try to exchange your concession for one from the other side. Otherwise, the concession may be digested and then, after a little time, a further morsel may be requested. The timing and size of concessions involve making important judgements. Keep in mind the ‘bottom line’ beyond which you are not prepared to go. In a negotiation in which small concessions are being made by both sides, it is unwise to change the tempo and move too quickly towards your bottom line lest you be forced in the end to go below it in order to reach agreement. The area to be delimited often appears to be sub-divided into natural sections. These can best be taken in turn, rather than attempt to discuss all areas at the same time. If one section is agreed in principle, it may help the atmosphere to put aside for the time being, or “bank”, that section as being, for example, “agreed in principle, but always subject to the satisfactory resolution of the remaining issues,” or some similar formula. It is then possible to concentrate on the remaining points of difference, possibly “banking” further sections of line so as to build up the provisionally agreed mileage. In such circumstances, the negotiators may be encouraged to make greater efforts by the consideration that

based on the consideration that the UK was legally bound by agreements in force with its other two neighbours and the new boundary had somehow to join together the two existing boundaries, thereby filling the “gap”. 25 I.C.J. Reports 2001, p. 40, at p. 103.

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much had already been achieved, albeit provisionally. At the same time, a failure to reach full agreement may still yield a partial agreement, thereby reducing the scope of the remaining dispute. If severe problems are encountered, introducing a discussion of the possibility of litigation may be useful. The mention of this possibility may help to concentrate minds on the need to seek agreement across the table. It is, of course, perfectly possible to continue substantive negotiations when parties have agreed in principle to litigate and even after litigation has begun. When agreement has been reached at the level of delegations, it is prudent to prepare joint note and a map to ensure that both sides have exactly the same understanding. The leaders of the two delegations could initial such a statement or “heads of agreement” as the outcome of the negotiations, always ad referendum to Governments. It is best to leave the drafting of the treaty until a late stage when agreement has been reached on the future boundary. Once a line has been agreed, both sides are anxious to complete the negotiation and this is often enough to ensure that goodwill is displayed over drafting questions.

D. THE DRAFTING OF BOUNDARY AGREEMENTS The Vienna Convention on the Law of Treaties of 1969 applies generally to all aspects of boundary treaties, including their conclusion, application and interpretation. However, boundary treaties are excluded from the rule that a party to a treaty may invoke “a fundamental change in circumstances” as a ground for terminating a treaty on notice.26 Furthermore, in a related instrument, namely the Vienna Convention on Succession of States in Respect of Treaties of 1978, it is provided that a succession of states “does not as such affect a boundary established by a treaty or obligations and rights established by a treaty and relating to the regime of a boundary.”27 In other words, the rules of international law, as set out in these two Vienna Conventions, accord special protection to boundary treaties since they are intended to be of indefinite duration. It would require some unusual reason, implying a temporary situation under Article 74, paragraph 3, of the Convention on the Law of the Sea,28 to prompt the negotiators to include in the terms of a boundary treaty a provision for its

26

This is provided in Art. 62, para. 2 (a), of the Vienna Convention of 1969. This is stated in Art. 11, Boundary Regimes of the Vienna Convention of 1978. 28 A rare example is the Agreement between Algeria and Tunisia of 11 February 2002 establishing a provisional boundary for six years during which the implementation of the agreement would be evaluated: Report No. 8–16 in D.A. Colson, op. cit., supra note 3, Vol. V, pp. 3927–3938; see also the Law of the Sea Bulletin No. 52, published by the UN Secretariat (2003). 27


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denunciation or termination. For the rest, the provisions of the Vienna Convention of 1969 provide the framework for the drafting of maritime boundary treaties. The question of the form of the agreement should be considered at the outset of the drafting work. A boundary treaty sets out the limits of the sovereignty or jurisdiction of two states. It has both international and constitutional significance. It may well be the subject of discussion in national legislatures. It is something which is intended to last. Accordingly, it is best to choose a solemn form of international agreement, such as an instrument in the form of a Treaty or Agreement. With regard to the content of boundary treaties, the main issue is how to establish the line. The history of boundary disputes on land demonstrates that a boundary treaty which uses vague expressions or geographical descriptions is a recipe for future disputes. In the maritime context, an agreement to the effect that the boundary should be “the median line” without further elaboration would be ambiguous because no-one could identify with certainty the points from which it should be drawn. Moreover, it could be ambulatory, for example if baselines changed over the years as a result of natural forces or human intervention in reclaiming land from the sea. If such a provision were to be included in a treaty, there should be some additional definition of the boundary in order to produce a clear result that stands the test of time. Every boundary treaty should be cast in terms which define one single, unambiguous line on the surface of the Earth. The rights of each side under international law, whatever those rights may be in a particular case, then extend in principle all the way up to that line. Geographical certainty means that there should be agreement on the geodetic parameters: notably, the projection of the chart or map, the coordinates of Latitude and Longitude (expressed in degrees, minutes and seconds and referred to a modern geodetic system such as WGS84), and the chart datum. Coordinates should be sufficiently precise so as to establish a line of zero or near-zero thickness, perhaps using two places of decimals for the seconds in case an oil field is discovered that crosses the agreed line.29 If hydrocarbons are known to be absent and the boundary is concerned in practice solely with fishing, then it would not be necessary to use decimals of seconds. All these parameters should be recorded in the text of the treaty and possibly also on the map or chart. Following the best practice, lines between turning points should be straight on the surface of the Earth, rather than straight on the chart. The whole purpose of the negotiations is to delimit some specific areas of the Earth, composed of sea, seabed and subsoil, which are three dimensional. Lines should be chosen in that context. Whilst the successful conclusion of the negotiation may be 29 See the paper “The Role of the Technical Expert in Maritime Delimitation Cases” by Martin Pratt in this volume.

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facilitated by the use of a two-dimensional chart, the exercise of delimitation is not concerned with the chart as such but rather with the part of the world depicted on the chart. A straight line on a Mercator chart is curved on the surface of the Earth. The curvature is especially noticeable in high latitudes, especially where a boundary is a long one (e.g. extending from the baselines as a single line all the way out to the 200 nm limit). There is no logical reason to make such a boundary curved as a result of the use of a particular map projection. It is best to agree on geodetic lines, in the absence of some good reason to the contrary.30 Should the boundary be defined by words and figures or by drawing a line on a map? Which prevails in the event of inconsistency? In regard to terrestrial boundaries, the Eighth Edition of Oppenheim’s International Law, edited by Sir Hersch Lauterpacht in 1958, argued that in the event of a discrepancy between the words and the map, the former should prevail. This doctrine, criticised by Sir Gerald Fitzmaurice in the Temple Case,31 was abandoned in the new Edition by Sir Robert Jennings and Sir Arthur Watts,32 on the ground that there was no general rule. Each case turned on its own evidence and merits.33 Clearly, in defining maritime boundaries, it is best to avoid all risk of inconsistency. The best way to achieve geographical certainty in a boundary treaty is to use in the body of the instrument appropriate defining words and coordinates of Latitude and Longitude on a defined datum or geodetic system. If maps or charts are used to define the boundary, they should be annexed to the treaty and ideally plenty of copies should be made. Even so, maps may turn out to be inaccurate or flawed, or they may lack a datum, or they may be replaced by new editions. If maps or charts are to be used in a treaty, it is the best practice to make clear that they are included merely for the purposes of illustration and are not definitive. Is it necessary to disclose the motivation or methodology used to reach agreement? The motivation or purpose of the parties in concluding a treaty is typically stated, if at all, in the Preamble to the agreement. An example is the

30

For details, see P.B. Beazley, Technical Aspects of Maritime Boundary Delimitation (1994), published as Maritime Briefing No. 2 by the International Boundaries Research Unit (IBRU), a research group of the Department of Geography at the University of Durham; and also C.M. Carleton and C. Schofield, “Technical Considerations in Law of the Sea Dispute Resolution”, in: A.G. Oude Elferink and D.R. Rothwell (eds.), Ocean Management in the 21st Century (Leiden/Boston, Martinus Nijhoff Publishers, 2004), pp. 231–254, at p. 233. 31 I.C.J. Reports 1962, p. 65. 32 R. Jennings and A. Watts (eds.), Oppenheim’s International Law, 9th ed. (London, Longman, 1992), p. 663. 33 The Eritrea-Ethiopia Boundary Commission reviewed map evidence in its decision of 13 April 2002, 41 International Legal Materials, 2002, p. 1057, at paras. 3.17–3.28.


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Franco-British Agreement of 1996 concerning the boundary between Guadeloupe and Montserrat: “Recognising the need to delimit in a precise and equitable manner the maritime boundary between . . .”34 In other cases, there may be an economic motive, such as “to open up further opportunities for their respective off-shore petroleum and related industries” or again “Wishing to delimit . . . (an) area of the continental shelf prior to the construction of a pipeline between . . .”35

Some, but not all, maritime boundary treaties indicate the methodology used by the parties in order to draw the line. Thus, several treaties refer to “equidistance” or the “median line” method, or to a modified median line (in order to straighten the line, for the benefit of fishermen), whilst others refer to “equitable principles” or the “wish to achieve an equitable result”. This type of explanatory language is often included in the preamble to the treaty, but it can also appear in the operative Articles. It is perfectly permissible to maintain total silence in the treaty as to the basis on which the line has been drawn. This is appropriate when political or extra-legal considerations directly affected the outcome of the negotiations or where different methods have been used in different sectors, especially if reciprocal concessions in different areas have been made. The areas being delimited may have the status of territorial sea, contiguous zone, Exclusive Economic Zone or Fishery Zone, or continental shelf. Older treaties related to the territorial sea or continental shelf. More modern treaties concluded since the mid-1970s relate to the EEZ. In some instances, the status is different on the two sides of the boundary. It has become the general practice to specify in a boundary treaty the status of the areas that are being delimited or to make clear that the boundary is for all purposes. Some states have concluded two separate delimitation agreements in respect of first the territorial sea and secondly areas beyond. For example, Belgium and France concluded two agreements on the same day in 1990, one delimiting the territorial sea and the other the continental shelf.36 Belgium and the Netherlands adopted the same solution in 1996.37 Many boundary agreements dating from the 1960s related only to the continental shelf. Some of these agreements have been followed by later agreements when new types of jurisdiction have been claimed later. An example is provided by the Anglo-French Agreement of 1988 which converted a part of the 34 Report No. 2–21 in J.I. Charney, op. cit., supra note 3, Vol. III, pp. 2227–2233, at p. 2232. 35 Report No. 9–5 (2) in ibid., pp. 2487–2496, at p. 2495. 36 J.I. Charney, op. cit., supra note 3, Vol. II, Report No. 9–16, pp. 1891–1900. 37 J.I. Charney, op. cit., supra note 3, Vol. IV, Report No. 9–21, pp. 2921–2939.

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boundary of the continental shelf agreed in 1982 into the boundary of the territorial sea following the extension of the UK territorial sea to a maximum of 12 nm in 1987.38 Later agreements signed from the mid-1970s onwards have related to the EEZ in instances where one or both sides have declared such a zone. The Agreement of 1996 between Belgium and the Netherlands delimiting the continental shelf provided that “If one of the Contracting Parties decides to establish an exclusive economic zone, the coordinates, as indicated in Article 1, shall be used for its lateral delimitation.”39 In the absence of such a provision or a subsequent agreement, it cannot be assumed that a boundary agreed for the continental shelf necessarily applies equally to an EEZ if one has been proclaimed. In boundary negotiations between two States, there are often third States in the same geographical area. Third States can be relevant factors in boundary negotiations in two ways: first, in the establishment of a tripoint; and secondly (much rarer) in the actual determination of the course of the line. The existence of third States should not be overlooked. Looking first at the question of establishing tripoints, whenever an area of sovereignty or jurisdiction of a third State lies in the vicinity of an area under negotiation, there is clearly a need to establish at some stage a tripoint between the two principals and the third State. Different techniques have been followed for establishing such tripoints. First, the two negotiating States have agreed on a possible tripoint, typically one based on equidistance from the nearest points in the three territories, and one of them has then approached the third State and sought its concurrence with the proposed bilateral end-point, e.g. UK-Norway Protocol 1978.40 Secondly, the negotiating States have ended their agreed line two or three miles short of the tripoint they favour and agree that the line will be extended using the same method of delimitation once agreement has been reached with the third State concerned, e.g. UK/France 1982 and 1991 where the respective coasts were between approximately 18 and 30 nautical miles apart.41 Thirdly, in exceptional circumstances, two States may agree to draw a boundary all the way to a tripoint, but to give written notice to the government of the third state well ahead of signature so that the latter has time to object if it is displeased with the implications of the proposed boundary treaty for its interests. Finally, the three States may conclude a treaty agreeing upon the exact location of the tripoint where the three maritime areas meet. An example is the

38 J.I. Charney, op. cit., supra note 3, Vol. II, Report No. 9–3, pp. 1735–1754, at pp. 1752–1754. 39 In the event, both declared an EEZ: see J.I. Charney, op. cit., supra note 3, Vol. IV, Report No. 9–21, pp. 2921–2939, at p. 2933. 40 J.I. Charney, op. cit., supra note 3, Vol. II, Report No. 9–15, pp. 1879–1889, at pp. 1887–1889. 41 J.I. Charney, op. cit., supra note 3, Vol. II, Report No. 9–3, pp. 1735–1754.


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Agreement of 16 July 1971 signed by Indonesia, Malaysia and Thailand.42 In a similar vein, Iceland, Norway and Greenland agreed upon a tripoint and signed a simple record of the talks before proceeding quickly to sign three bilateral treaties, on the same day in the same place in 1997, establishing three boundaries each starting/finishing at the single agreed tripoint. In order to emphasise the linkages, the three agreements entered into force on the same day in 1998.43 Turning to the second aspect, there may arise a need to take account of a third State in establishing the boundary between the two principal negotiators. The ICJ referred to this principle in the North Sea Continental Shelf Cases, which concerned three States that faced a concave coast.44 This principle was also adopted by the arbitral tribunal between Guinea and Guinea-Bissau, which drew a coastal front from a point in Senegal in the north to a point in Sierra Leone in the south and fixed the maritime boundary on a bearing in such a way as to avoid cutting off from the 200 mile limit neighbouring States on the same longer coast of West Africa.45 In state practice, examples of the cut-off factor are found in the agreement between Dominica and France establishing boundaries to the north of Dominica with Guadeloupe and to the south with Martinique, where equidistant lines meet to the east of Dominica on account of the configuration of the three coasts. France agreed to allow Dominica to extend its jurisdiction out to sea in order to reach an equitable solution.46 In negotiations, the better practice is to take account to an appropriate extent of the existence of third States in the maritime area under discussion. The alternative approach of ignoring the existence of a third State and its maritime zones may serve only to create new disputes for both principals. This is especially true if a boundary between two States extends into areas that are nearer to, or publicly claimed by, a third State, or if the line appears to “cut off ” the latter’s maritime jurisdiction. With regard to the possibility of oil or gas fields being found to straddle the boundary, it is general practice to include in a boundary treaty a provision to the effect that if a discovery of oil or gas is made in the future in the vicinity of the agreed line the parties undertake to cooperate and draw up a new agreement for the joint exploitation or apportionment of the find. The normal rule is to “unitise” the discovery so that each government is entitled to whatever resources lie on its own side of the line, no more, no less. (There are sophisticated techniques for measuring the oil or gas in the seabed and subsoil, and

42

Report No. 6–12, in ibid., Vol. II, pp. 1443–1454. Reports Nos. 9–22, 9–4 (2) and 9–19 (2), in ibid., Vol. IV, at pp. 2941–2953, 2903–2911 and 2913–2920, respectively. 44 I.C.J. Reports 1969, p. 3, at p. 53. 45 25 International Legal Materials, 1986, p. 251; J.I. Charney, op. cit., supra note 3, Vol. I, Report No. 4–3, pp. 857–865. 46 Report No. 2–15, in ibid., Vol. I, pp. 705–715. 43

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treaties typically provide for reviews upon the request of either government or its permit-holders.) The UK and Norway have concluded several treaties about oil and gas fields which straddle the previously agreed boundary between them in the North Sea, e.g. Frigg, Murchison, Statfjord field agreements.47 In the situation where negotiators fail to reach agreement on a boundary, Article 74, paragraph 3, LOS Convention calls for efforts to be made to reach some interim arrangements without prejudice to the final agreement.48 Negotiators should keep an open mind in this situation since there are several possibilities. One is a short-term interim agreement, but these are rare.49 More often, joint development has been found to be a good option: as many as ten percent of the agreements reported upon in International Maritime Boundaries provide for some form of joint development in a defined zone. (The British Institute of International and Comparative Law collected the agreements in a two-volume study made in 1990. The study will be updated shortly.)50 Normally, a Joint Commission is constituted by the treaty, composed of delegates from the two sides. Very different regimes are possible within a joint area. The two governments may promote joint ventures between companies incorporated under their respective legal systems. Alternatively, one government may act as the sole operator according to an agreed work plan and subject to supervision by the Joint Commission. More complex, perhaps, is the creation of a special, negotiated regime of exploitation, with international tenders for permits issued by agreement in the Commission. There are also joint areas for fisheries purposes. These may allow fishermen authorised by the two licensing authorities to fish in the entire area, subject to control by the licensing authority which issued a licence to a particular fishing vessel. The recent agreement between Denmark in respect of the Faroe Islands and the UK is an example.51 Negotiators should retain the possibility of creating a joint zone in their options. Existing operations to recover minerals from a boundary zone may create problems for negotiators. Where a state has issued a licence for oil or gas or gravel extraction from a defined area and the State later agrees to a boundary

47 D.A. Colson, op. cit., supra note 3, Vol. V (The Hague, Martinus Nijhoff Publishers, 2005), Report No. 9–15 (2–4), pp. 3944–4004. 48 R. Lagoni, “Interim Measures pending Maritime Delimitation Agreements”, 78 AJIL, 1984, p. 345. 49 The Agreement between Algeria and Tunisia affords an example: 52 Law of the Sea Bulletin, 2003. 50 H. Fox et al., Joint Development of Offshore Oil and Gas, Vol. I and Vol. II (London, British Institute of International and Comparative Law, 1989), and Joint Development Zones, Vol. III (London, British Institute of International and Comparative Law, 2005). 51 J.I. Charney, op. cit., supra note 3, Vol. IV, Report No. 9–23, pp. 2955–2977.


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treaty which means that that area belongs to its neighbour, provision can be made for the notional transfer of the licence to the neighbour. This solution was adopted by Belgium and the Netherlands in 1996. The Netherlands had issued a long-term licence to a company to extract gravel for the construction industry. As part of the overall agreement on the boundary question, Belgium agreed to issue a Belgian licence to the same company on similar terms. This was arranged by means of an exchange of letters between the two Ministers at the time of signature of the boundary agreement, forming part of the “package”.52 Should maritime boundary agreements contain provisions for the settlement of disputes? Since there is much scope for dispute about land boundaries, provisions in boundary treaties for dealing with disputes are not uncommon. In contrast, only a minority of maritime boundary treaties provide for the settlement of disputes about the interpretation or application of their terms. An example of such an exceptional case is the Agreement between Greece and Italy of 24 May 1977, Article IV of which provides for recourse to the ICJ.53 Normally, maritime boundary negotiations precede the emplacement of oil and gas installations. Being intended to settle the issue unambiguously, once and for all, such agreements usually do not create practical problems and are not expected by the negotiators to lead to disputes. Disputes about joint areas should ideally be resolved by the management commission. It is the almost invariable practice to provide that a boundary agreement enters into force not upon signature but rather upon ratification or approval. This is because boundary treaties deal with questions of sovereignty and jurisdiction, important matters of State. Accordingly, they usually require approval by the legislative organs of the States concerned before they become binding. The pattern is to sign the treaty “subject ratification” and then to present it to the Congress, Senate or Parliament for their consideration. Only when it has been approved should the governments proceed to ratify the signature and thereby establish the consent of the State to be bound by the treaty. In line with the trend towards simplified procedures, some recent maritime boundary treaties have provided that “This Agreement shall enter into force on the date on which the two Governments exchange notifications of their acceptance of this Agreement.”

A slightly more revealing formula is “Each Contracting Party shall inform the other of the completion of the constitutional procedures required for the entry into force of this Agreement. The 52

Report No. 9–21, in ibid., Vol. IV, pp. 2921–2939. Report No. 8–4, in J.I. Charney, op. cit., supra note 3, Vol. II, pp. 1591–1600, at p. 1599. 53

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David Anderson Agreement shall enter into force on the date when the last notification is received.” The recipient has to notify the sender of the date of receipt.

Since boundaries, when agreed, are intended to be of indefinite duration, it is not good practice to include any provision for denunciation or termination. Those matters are best left to the general law of treaties: the basic rule is pacta sunt servanda. How may a State seek to protect its interests in future negotiations with a third State? It is not permissible to attach a reservation to a bilateral treaty at the time of ratification. An attempt to do so, for example at the instance of the Legislature during its consideration of a boundary treaty, would amount to trying to reopen the negotiations. However, when a government has a particular interest which it wishes to safeguard, not shared by the negotiating partner, e.g. a forthcoming delimitation with another neighbour, the first government should raise the matter during the talks. For example, the Agreement between Belgium and the UK of 1991 has attached to it a Note from the Foreign Minister to the British Ambassador concerning the northern terminal point of the boundary, which coincided with the southern terminal point of the boundary agreed in 1965 between the Netherlands and the UK. Belgium reserved its position over this terminal point. The Ambassador simply took note of this communication of Belgium’s attitude.54 Belgium later signed an agreement with the Netherlands in 1996, defining a boundary which ran to a point further north, albeit a point on the boundary between the Netherlands and the UK. Given the need for certainty, it is especially important to avoid errors in all types of boundary treaties. The greatest care should be taken. Technical experts should be consulted. If an error is discovered, the Vienna Convention contains Article 80 concerning the correction of errors in texts. There has been at least on instance where a clerical error was made in a maritime boundary agreement. Some years after signature in 1982 of an agreement between France and the UK establishing a continental shelf boundary in the southern North Sea based on the method of equidistance, it came to light that a typing error had been made in listing the coordinates of Latitude and Longitude used for a basepoint known as Banc Breedt. This error had affected the calculation of two sets of coordinates used to define the agreed line. In 1990, the French Government proposed a correction to the coordinates of two points, numbers 13 and 14, on the agreed boundary. The UK consented to the amendment of the agreement in order to effect the correction.55 Article 102 of the UN Charter provides that every treaty entered into by UN Member States shall be registered with the Secretariat and published by it in the 54

J.I. Charney, op. cit., supra note 3, Vol. II, Report No. 9–17, pp. 1901–1912, at pp. 1910–1912. 55 J.I. Charney, op. cit., supra note 3, Vol. III, Report No. 9–3 (4) (corr.), pp. 2465–2470, at pp. 2468–2470.


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UN Treaty Series. This rule applies to land and maritime boundary treaties. The process of deposit is usually carried out by means of Notes Verbales sent by Permanent Missions to the UN in New York to the Treaty Section of the Office of the Legal Counsel in the Secretariat. Articles 16, 47, 75 and 84 of the LOS Convention provide for the deposit with the UN Secretary General of maritime charts depicting baselines, archipelagic baselines, and the outer limits and agreed lines of delimitation of the EEZ and continental shelf. The Division for Oceans Affairs and the Law of the Sea of the UN Secretariat has published collections of maritime boundary agreements.56 Inshore maritime boundaries and those running through navigable channels used by shipping should also be demarcated by buoys if it is safe to do so, as in the case of the agreement between France and Spain concerning the boundary in the mouth of the River Bissadoa.57 However, it is not usual to attempt to demarcate in any way offshore maritime boundaries and in practice it is not feasible or necessary. Modern maritime navigational aids mean that ships, including fishing vessels, can check their positions. Unlicensed fishermen found just inside the EEZ, say at 199 miles, can be given the benefit of the doubt, and be simply warned and told to leave the EEZ.

E. CONCLUDING OBSERVATIONS Some of the former controversies of the 1970s over the rules/principles applicable to maritime delimitation are well on the way to resolution. Differences between customary and conventional law are decreasing. These are clearly positive trends. The modern law should assist negotiators in reaching an agreed solution. It remains true that negotiated settlements are the optimal outcome of negotiations. However, if the negotiators’ best efforts fail to reach an equitable solution, then one course open to the two governments is to draft a compromis submitting the dispute to an impartial, expert body for decision on basis of international law. Article 287 of the Convention on the Law of the Sea gives to the States Parties the choice of forum,58 including the International Tribunal for the Law of the Sea.59 56

Maritime Boundary Agreements 1942–1969; ibid., 1970–1984; ibid., 1985–1991. DOALOS has also published a useful “Handbook on the Delimitation of Maritime Boundaries” (2000), available at http://www.un.org/Depts/los/doalos_publications/ doalos_publications.htm 57 J.I. Charney, op. cit., supra note 3, Vol. II, Report No. 9–2, pp. 1719–1734. 58 See the paper by Professor Treves in this volume. 59 It may be noted in this connection that at the time of writing there is no backlog of pending cases in Hamburg. Members of the Tribunal possess considerable experience of both maritime boundary negotiation and litigation.

Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation Thomas A. Mensah* Ambassador Tommy Koh, one of the eminent personages in the modern history of the Law of the Sea, has suggested that one of the reasons why disputes over boundary delimitation are often difficult to resolve is that “men like animals, seem to be driven by a territorial imperative and partly because such disputes are sometimes the effect, rather than the cause, of the poor political relations between the claimant States”.1 Unfortunately, men will continue to behave like territorially oriented animals, and States and governments do not ever run out of reasons or pretexts for creating poor political relations between themselves. It is, therefore, not unreasonable to assume that disputes concerning boundary delimitation will continue to persist, and possibly increase.

* Judge of the International Tribunal for the Law of the Sea 1996–2005 (President 1996–1999). Edited version of a Dinner Presentation delivered at the Symposium on Maritime Delimitation on 25 September 2004. 1 Tommy T.B. Koh, “Extended Maritime Jurisdiction – A Global Approach”, in: J.P. Craven, J. Schneider, C. Stimson (eds.), The International Implications of Extended Maritime Jurisdiction in the Pacific (Honolulu, Law of the Sea Institute, 1989), pp. 13–17, at p. 15.


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Disputes over maritime boundaries are not a new phenomenon, but they seem to have become more prevalent following the extensions of the maritime areas within national jurisdiction after the entry into force of the 1982 United Nations Convention on the Law of the Sea. In many cases, application of the provisions of the Convention results in actual or potential overlaps between the territorial seas, the exclusive economic zones or the continental shelves of opposite or adjacent States.2 Where this happens it becomes necessary for the States concerned to reach agreement on mutually acceptable limits of their zones, if possible, through negotiation.3 Where the States are not able to reach agreement by negotiation, they generally seek to resolve their differences through a third party settlement mechanism of their choice. Thus, although it is probably the case that many boundary disputes will eventually be settled by agreement between the parties, some States still find it necessary and, sometimes even politically convenient, to resort to third party procedures for the settlement of their maritime boundary disputes, either through standing judicial institutions or through ad hoc arbitration. This is so in spite of the fact that neither side in such a dispute is likely to gain all it wants from the process. As one observer has put it, “in many cases the disputed zone will be divided more or less equally by a series of geodesics based either on some geometric construction”.4 Indeed, this expert has questioned whether there is a clear and fully consistent rationale in the law of maritime delimitation as contained in the Convention or in the decisions of the International Court of Justice and other tribunals. In respect of the concept of “natural prolongation”, which is generally put forward as a basis for determining the limits of the continental shelf, he has put his bewilderment in verse as follows:

2

For example, it has been suggested that “the process of defining the outer limits of the continental shelf beyond 200 nautical miles under Article 76 of the Convention is likely to lead to a heightened interest in the delimitation of this area between neighbouring States”, A.G. Oude Elferink, “The Impact of the Law of the Sea Convention on the Delimitation of Maritime Boundaries”, in: D. Vidas, W. Østreng (eds.), Order of the Oceans at the Turn of the Century (The Hague, Kluwer Law International, 1999), pp. 457–469, at p. 457. 3 One noted academic and practitioner in the field of marine boundary limitation pointed out that “something between six and seven percent of maritime boundary delimitation settlements have been assisted by a tribunal and that States have themselves reached private agreement on 93 to 94 percent”, K. Highet, “Marine Boundary Dispute Settlement – Luncheon Address”, in: M. Kusuma-Atmadja, T.A. Mensah, B.H. Oxman (eds.), Sustainable Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21 (Honolulu, Law of the Sea Institute, 1997), pp. 745–777, at p. 746. 4 V. Prescott, “On the Resolution of Marine Boundary Conflicts – Luncheon Speech”, in: J.P. Craven, J. Schneider, C. Stimson (eds.), op. cit., supra note 1, pp. 33–40, at p. 39.

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Natural prolongations once solved a wrangle But now when nations entangle We find that the Court Doesn’t do what it ought But relies on a dissected angles5

I believe that many States come to the same conclusion when they consider the decisions of the courts and tribunals on maritime delimitation. Be that as it may, it is still the case that many States consider it useful to seek judicial settlement for maritime boundary disputes, although others adopt different methods to deal with their disputes. But whatever the method adopted, governments need to remember not only that they have the obligations under international law to settle their disputes by peaceful means but also that it is in their interest to seek solutions that benefit their countries and their peoples, not only in the short term but also, and especially, in the long-term. Fortunately, and in spite of the potentially emotive nature of some land boundary disputes, a large proportion of maritime boundary disputes are in fact settled by the States concerned with little or no major international repercussions. For many States seem to have recognized that, although differences on maritime boundaries present problems, they also present opportunities. For one thing, the peaceful resolution of a boundary dispute may open up avenues for peaceful co-existence and, in some cases, constructive co-operation in areas which would normally remain closed if relations continued to be poisoned by the dispute over the maritime boundary.6 But even more importantly, the identification of a dispute can provide powerful incentives for the establishment of co-operative arrangements between the States involved in the dispute. Thus, in many cases, disputes over boundary limitation are settled, relatively easily, either because one of the parties agrees to make some concessions or because all the parties involved are willing to make mutual compromises in order to eliminate the differences between them. The indications suggest that this trend will continue in the foreseeable future. In an increasing number of cases, the compromise involves the establishment of a joint development zone or similar arrangement over the disputed area. This is particularly so where identified resources straddle the disputed area. In such cases co-operation can take the form of a joint development zone, covering all

5

Ibid. “Joint development can have a peace-inducing function in a situation where parties to a maritime boundary dispute have remained unable to settle it, if they are prepared to put aside the issue of sovereignty for a certain period of time in favor of possible economic benefits”, M. Miyoshi, “Is Joint Development Possible in the South China Sea?”, in: M. Kusuma-Atmadja, T.A. Mensah, B.H. Oxman (eds.), op. cit., supra note 3, pp. 610–624, at p. 611. 6

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or part of the disputed area. In this zone the States concerned would have rights and responsibilities and enjoy benefits, in accordance with arrangements and criteria agreed among them. The concept of joint development zones for exploration for, and exploitation of, resources in a disputed maritime area emerged during the second half of the 1950s.7 After somewhat hesitant beginnings it has become increasingly accepted as a constructive approach for dealing with the difficult disputes involving overlapping maritime claims. Although the concept of joint development is now well known and widely used by States, there is not full agreement among international lawyers regarding its definition or essential characteristics. For example, some scholars seek to distinguish between, on the one hand, “unitization of shared resources” which they describe as an arrangement under which “a single resource straddling an international boundary is developed subsequent to agreement without reference to such boundary” and, on the other, joint development properly so called which they define as “a regime under which the entire boundary dispute is set aside, thus creating an ambient development atmosphere of political cooperation from the outset”.8 Other commentators take a different view. Thus one writer considers that unitization of resources and joint development zones are two types of the same concept. According to him, there are “two types of joint development schemes: one is the type in which boundary delimitation has been shelved and the other is a régime of joint development with the boundary delimited”.9 This is similar to the approach of Professor Rainer Lagoni who defines joint development as “the cooperation between States with regard to the exploration for and exploitation of certain deposits, fields or accumulations of non-living resources which either extend across a boundary or lie in an area of overlapping claims”.10 A similar all-inclusive definition is to be found in the 7

For a detailed discussion of the concept of Joint Development, see H. Fox (ed.), Joint Development of Offshore Oil and Gas, Vol. I (London, British Institute of International and Comparative Law, 1989). See also Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (Dordrecht, Martinus Nijhoff Publishers, 2004), Chapter Three. 8 L.F.L. Shihata, W. Onorato, Joint Development of International Petroleum Resources in Undefined and Disputed Areas, (Paper delivered at the International Conference of the LAWASIA Energy Section, Kuala Lumpur, Malaysia, 18–22 October 1992), p. 6: quoted in G. Zhiguo, “Legal Aspects of Joint Development in International Law”, in: M. Kusuma-Atmadja, T.A. Mensah, B.H. Oxman (eds.), op. cit., supra note 3, pp. 629–644, at p. 632. 9 M. Miyoshi, “The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf – with special reference to the discussions at the East-West Centre workshops on the South-East Asian Sees”, in: 3 International Journal of Estuarine and Coastal Law, 1988, pp. 1–18, at p. 3. 10 R. Lagoni, Report on Joint Development of Non-living Resources in the Exclusive Economic Zone, Warsaw Conference of the International Committee on the Exclusive


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report of the British Institute of International and Comparative Law which States that joint development is “an agreement between two States to develop so as to share jointly in agreed proportions by inter state cooperation and national measures the offshore oil and gas in a designated zone of seabed and subsoil of the continental shelf to which both or either of the participating States are entitled in international law”.11 I do not intend to attempt to settle the differences concerning the essential characteristics of joint development zones or to describe the procedures by which they are negotiated and administered. And I shall not enter into the controversy on whether “joint development” is properly applicable only to the exploitation of non-living resources or may equally be applied to arrangements for the joint exploitation of living resources. These are no doubt interesting issues but they are outside the purview of my presentation today. My limited purpose is to draw attention to joint development zones as one of the means by which States deal with the difficult problem of maritime delimitation. As already indicated, joint development zones are established either because the parties find it difficult or impossible to agree on a single boundary between them or because the resources straddle the agreed boundary in such a way that it is not feasible for the resources to be exploited effectively and equitably by the individual States acting alone. Paradoxically, contending States are more likely to agree to establish a joint development zone where exploitable resources have actually been identified in the area under dispute. In such cases, it is usually clear to the States concerned that it is in their individual and joint interests that the resources are exploited as quickly as possible. This naturally provides a powerful incentive for them to agree to the creation of a joint zone since the alternative would be a long and costly litigation process during which it would not be safe or advisable for either of them to undertake any measures to exploit the resources. Moreover, the establishment of such a joint zone, and the practical cooperation involved in administering it, can in many cases strengthen existing bonds of friendship between the countries or, at least, help to reduce tensions between them, not just in relation to the specific dispute but possibly in other areas. In fact this special advantage of joint zones was expressly mentioned in the Preamble to the 1979 Joint Zone Agreement between Malaysia and Thailand.12 Economic Zone, ILA 1988 (unpublished), p. 2, quoted in G. Zhiguo, op. cit., supra note 8, at p. 631. 11 H. Fox (ed.), Joint Development of Offshore Oil and Gas, Vol. II (London, British Institute of International and Comparative Law, 1990), at p. 45. 12 The first preamble of the Agreement reads: “Desiring to strengthen the existing historical bonds of friendship between the two countries”. The 1989 Agreement between Australia and Indonesia (note 17 below) also had a paragraph in the preamble stating that the parties were “convinced that this Treaty will contribute to the strengthening of the relations between the two countries”.

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Joint development zones take different forms, and are implemented through a variety of administrative arrangements. For example, the parties may agree that one of the countries should have formal sovereignty over the area while the other country receives a share of the revenue. This was the pattern followed by Bahrain and Saudi Arabia in their agreement of 1958.13 Another approach is to divide the joint zone between the countries involved, as was done in the case of the Iceland-Norway joint zone.14 This zone is divided into northern and southern sectors, with Norwegian regulations applicable in the northern sector and Icelandic regulations applicable in the southern sector. The agreement provides that each country is entitled to 25% of the petroleum production activities that take place in the part of the zone that falls under the regulations of the other party.15 Between these extreme poles, there are several intermediate forms, with administrative arrangements that range from the fairly simple to very complicated. For instance, the agreement of 1976 between Norway and the United Kingdom provided that the two countries would, in consultation with particular licensees operating in their respective areas of jurisdiction, work out an arrangement to exploit hydrocarbon deposits which straddled their continentalshelf boundary which had previously been fixed by an agreement between the two countries in 1965.16 Although, strictly speaking, this particular agreement does not establish a joint development zone, it reflects the basic rationale of the joint development zone concept because it addresses the basic objective behind the establishment of joint development zones, which is to provide a means of exploiting disputed resources in a way that is efficient, fair and mutually advantageous to the concerned States. Other examples of joint development schemes are those established between Australia and Indonesia (1989);17 between Malaysia and Vietnam (1992);18 between France and Spain in the Bay of Biscay

13

Text in J.I. Charney and L.M. Alexander (eds.), International Maritime Boundaries, Vol. II (Dordrecht, Martinus Nijhoff Publishers, 1993), Report 7–3, pp. 1489–1497, at pp. 1495–1497. The Second Clause of the Agreement provides that: “the exploitation of the oil resources of the area (situated within the six defined sites) will be carried out in the way chosen by His Majesty the King of Saudi Arabia on the understanding that he grants to the Government of Bahrain one half of the next revenue accruing to the Government of Saudi Arabia and arising from this exploitation, and on the understanding that this does not infringe on the right of sovereignty of the Government of Saudi Arabia nor the right of administration over the above mentioned area”. 14 Text in: J.I. Charney, op. cit., supra note 13, Vol. II, Report 9–4, pp. 1755–1765, at pp. 1762–1765. 15 Ibid., Vol. II, Report 9–4, see Art. 5 and Art. 6, at pp. 1763–1764. 16 Text in: J.I. Charney, op. cit., supra note 13, Vol. II, Report 9–15, pp. 1879–1889, at pp. 1885–1887 (Art. 4). 17 Text in: J.I. Charney, op. cit., supra note 13, Vol. II, Report 6–2 (5), pp. 1245–1328, at pp. 1256–1328. 18 Text in: J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries,


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(1974);19 between Japan and the Republic of Korea20 and between Senegal and Guinea Bissau (1993).21 It appears from the above that the idea of joint development zones is now fairly established as one of the avenues by which States may resolve differences concerning maritime boundary delimitation. And the concept has much to commend it. For one thing, it has the potential to assist the disputing States, not only to resolve the particular dispute over the boundary but also to improve their relations to the point where they are able to contemplate cooperation and collaboration in areas which might otherwise not be possible because of the boundary dispute. For another, joint development schemes are likely to promote and facilitate synergies by combining the human resources, expertise, insights and influences of the participating States in ways that would not have been possible to each of them individually. In addition, joint development schemes make it more possible for the States concerned to obtain technical and other assistance for the efficient exploitation and management of the resources in question. This is particularly so for developing countries. The suspension or elimination of the dispute over title to the resources is likely to make it easier for the parties to attract investors with the requisite funding and capacity to exploit the resources, and it also improves the possibility of their securing support and assistance from national and international agencies, both in negotiating with foreign investors and also in establishing appropriate mechanisms for exploration for, and exploitation of, the resources in the most efficient and economic manner.22 Finally, joint development zones may be seen as one way by which States can implement the letter and spirit of the provisions of the Convention on the Law of the Sea relating to delimitation of maritime boundaries. Indeed, it can reasonably be asserted that the Convention envisages that States will, in appropriate cases, make use of joint development arrangements, although this is not stated in express terms. Both Article 74, dealing with delimitation in the exclusive economic zone, and Article 83 concerning delimitation for the continental Vol. III (Dordrecht, Martinus Nijhoff Publishers, 1998), Report 5–19, pp. 2335–2344, at pp. 2341–2344 (Art. 2). 19 Text in: J.I. Charney, op. cit., supra note 13, Vol. II, Report 9–2, pp. 1719–1734, at pp. 1728–1734. 20 Text in: J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries, Vol. I (Dordrecht, Martinus Nijhoff Publishers, 1993), Report 5–12, pp. 1057–1089, at p. 1073–1089 (Appendix). 21 Text in: J.I. Charney, op. cit., supra note 18, Vol. III, Report 4–4 (4) & (5), pp. 2251–2278, at pp. 2257–2259. An interesting aspect of this Agreement is that it deals with the management and exploitation of both mineral resources and marine fisheries resources. 22 On this see the Report of the Secretary General of the United Nations on Permanent Sovereignty over Natural Resources, E/C.7/1987/2, pp. 35–38.

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shelf state, in their respective paragraphs 3, stipulate that “pending agreement” (on delimitation on the basis of international law . . . in order to achieve an equitable solution), the States concerned, “in a spirit of understanding and cooperation shall make every effort to enter into provisional arrangements of a practical nature”. During this transitional period, States are enjoined “not to jeopardize or hamper the reaching of the final solution”. Finally, the provision states that such arrangements “shall be without prejudice to the final delimitation”. This is precisely what many States have found desirable to do in those cases where they have not been able to reach agreement on the basis for a final and definitive delimitation.23 Indeed, in some cases, as in the Japan-Republic of Korea agreement, the parties have agreed to operate the joint development zones and to freeze the disagreement regarding delimitation for as long as 50 years, unless the parties agree to a shorter duration.24 In all such cases, the States are availing themselves of this new device in order to gain time and space to resolve differences, but without allowing the inability to agree on a boundary to prevent them from benefiting from the resources in question or to becloud their relations in other areas where there might be opportunities for fruitful and mutually beneficial cooperation. It may, therefore, safely be said that, in establishing and operating joint development zones, States are doing nothing more than making use of an approach which is likely to promote the realization of one of the objectives of the Convention as stated in its Preamble, namely, to establish a legal order for the seas and oceans which will, among others, “promote the peaceful uses of the seas and oceans (and) the equitable and efficient utilization of its resources”. In calling attention to, and emphasizing the merits and usefulness of, joint development zones as an attractive alternative means of resolving disputes on maritime delimitation, I do not by any means seek to diminish the important, indeed crucial, role of the international judicial bodies, and especially the International Tribunal for the Law of the Sea and the other dispute settlement procedures designated in Article 287 of the Convention, in the settlement of such disputes. As I noted earlier, there are some disputes on delimitation which, for one reason or another, cannot be solved by agreement between the States concerned. Where this is the case, it is my fervent hope, and I believe also the hope of all of us here, that the States involved will take due note of the fact that this Tribunal has been established by the Convention just for this very purpose and that it is ready, available and, if I may say so, equipped in terms of facilities, professional competence and institutional attitude, to assist States to

23 In this context, it is pertinent to note that Australia and Indonesia considered it necessary, in the preamble to the 1989 Agreement, to refer specifically to Art. 83, para. 3, of the United Nations Convention on the Law of the Sea as one of the bases for the conclusion of their Agreement. 24 Referred to in note 19 supra (Appendix, Art. XXXI, para. 2).


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resolve their differences. But we must also note and accept that in some cases, the parties may find it possible to resolve their dispute by negotiation or, failing that, by agreement to establish joint development zones as a practical interim agreement, pending a more opportune occasion for a final settlement. Where this happens, we should not feel disappointed that the dispute has not been submitted for judicial settlement. For a tribunal such as ITLOS, what is important is not the proportion of such disputes that will be submitted, although we naturally hope that a high proportion of the cases that need to be settled by third party adjudication will be submitted to ITLOS. What is more important is that ITLOS should be ready, and be seen by many States to be ready, fully equipped and attractive as a forum for the settlement of their disputes. But above all, our ultimate concern should be that any disputes that arise shall be resolved in accordance with the law as set out in the Convention on the Law of the Sea. What should be a source of disappointment and serious concern for us is if disputes are settled either by force or in ways that are not compatible with the provisions and principles contained in the Convention. In other words, the only method of settlement that should give us cause for concern is where the stronger State seeks to impose its will on the weaker State, or where the parties resort to non-peaceful avenues to resolve the dispute. Any other means that enables the parties to reach a fair and equitable solution that is mutually acceptable to them should be welcome by this Tribunal, and we should make it clear that we accept, and indeed encourage, the efforts of States to seek such solutions whenever it is possible to do so.

Maritime Delimitation in Complex Island Situations: A Case Study on the Caribbean Sea Chris Carleton* The opinions expressed are those of the author and do not necessarily represent those of the UK Hydrographic Office or any other Government Department.

1. INTRODUCTION The process of maritime delimitation is a relatively new phenomenon. Prior to the possibility for coastal States to claim extended maritime zones in the late fifties States were only concerned with the delimitation of a relatively narrow territorial sea. This narrow belt was normally three nautical miles (M) in width although the Scandinavian States claimed four M. More often than not this delimitation was achieved by an extension of the land boundary. One notable exception was that between Norway and Sweden, delimited by an arbitral award of 23 October 1909.1 An interesting comparison in the way the Tribunal

* Head, Law of the Sea Division, UK Hydrographic Office. 1 N.M. Antunes, Towards the Conceptualisation of Maritime Delimitation (Dordrecht, Martinus Nijhoff, 2003), pp. 42–45.


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treated the various offshore features, such as the banks, islets and rocks, compared to modern practice can be found in an article by David Anderson.2 The 1958 Geneva Convention on the Continental Shelf 3 provided for States to begin to explore and exploit the natural resources of their continental shelves “. . . to a depth of 200 metres or, beyond that limit to where the depth of the superjacent waters admits the exploitation of the natural resources of the said areas;. . . .” (Article 1). The requirement to know who owned this claimed seabed and subsoil led to the expansion of maritime boundary delimitation covering the entire continental shelf. The 1982 United Nations Convention on the Law of the Sea (UNCLOS)4 reflected an expansion of the sea areas that can be claimed by States. States can now claim an exclusive economic zone (EEZ) out to 200M and in certain circumstances an extended continental shelf that can go beyond 200M to either 350M from the territorial sea baseline or 100M beyond the 2,500 metre isobath, providing the provisions of Article 76 are met. This has led inevitably to an expansion of maritime delimitation requirements. A majority of maritime boundaries have some form of island that has some effect on the delimitation. The question of what forms an island has vexed experts and lawyers for decades. Hodgson, a former Geographer of the US Department of State attempted to define the various types of islands by size5 during the Third UN Conference on the Law of the Sea. Although this was an admirable attempt to define the difference between island, islet and rock it was not accepted by the international community. The final version covering the “Regime of Islands” appears as Article 121 of UNCLOS states: “1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

2

D. Anderson, “Grisbadarna Revisited”, in: Platzöder and Verlaan (eds.), The Baltic Sea: New Developments in National Policies and International Cooperation (Dordrecht, Martinus Nijhoff Publishers, 1996), pp. 158–164. 3 499 UN Treaty Series 311. 4 United Nations Convention on the Law of the Sea, United Nations Publication No.E.97.V.10. 5 Islands: Normal and Special Circumstances (U.S. Department of State Publication, 1973).

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It is therefore quite clear that an island can generate the full suite of maritime zones as provided for in the Convention unless the “island” comes under the provisions of Article 121, paragraph 3. The term “rock” is not defined and the wording of this paragraph implies that it does not necessarily cover all “rocks”. The precise meaning of “human habitation” and “economic life” is unclear. For a fuller study of this problem the work by Jayewardene is recommended.6 He covers the legal regime of islands in some detail. The study of what maritime zones an island or rock can generate is important when studying the effect of islands in maritime delimitation. Rocks that come under the provisions of Article 121, paragraph 3 will probably have less effect than islands that come under Article 121, paragraph 1.

2. THE GENERAL PRINCIPLES IN MARITIME DELIMITATION UNCLOS does not help coastal States to any great extent in the techniques to be used in maritime delimitation. The delimitation of the exclusive economic zone and continental shelf is laid down in Articles 74 and 83. The wording is essentially the same in both. Article 74 states: “1. The delimitation of the exclusive economic zone 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 result. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedure provided for in Part XV. [third party settlement] 3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.”

It will be noted that no mention of an equidistance line is present. This has enabled boundary makers to use any number of possible circumstances that could conceivably have an effect on the position of the boundary. Where the median line solution relied exclusively on geographical considerations and was

6 H.W. Jayewardene, The Regime of Islands in International Law (Dordrecht, Martinus Nijhoff, 1990).

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controlled by the relevant points on the territorial sea baseline, a boundary delimited as an equitable solution could be influenced by any or all of the following: political, strategic and historical considerations; legal regime considerations; economic and environmental considerations; geographic considerations; the use of islands, rocks, reefs and low-tide elevations; baseline considerations; geological and geomorphological considerations; proportionality of the area to be delimited including coastal front considerations; and different technical methods that could be employed.

Although all these areas are available to the delimitation team, jurisprudence during the last 30 years has tended to continue to treat the geographic parameters as being paramount, when dealing with a maritime boundary out to the 200M limit. Indeed in the ICJ Malta/Libya judgment of 1985,7 the Court made it quite clear that geological and geomorphological arguments had no part to play within the 200M zone. Geology and geomorphology will probably have an important role in the delimitation of continental shelf boundaries beyond 200M. No court has yet been required to make a judgment on this type of boundary, but the very nature of Article 76 on the limits of the continental shelf will dictate this type of argument. Some 150 maritime boundaries have been delimited to date, but there are thought to be approximately 270 yet to be delimited. This does not include the boundaries between the coastal State and the International Sea-bed Authority delimiting the areas under national jurisdiction and the Area. The American Society of International Law has published a study in four volumes of all the maritime boundaries agreed to 2001, entitled “International Maritime Boundaries”.8 A fifth volume will be published in 2005. This work studies each of the boundaries with an analysis of the way the boundary was delimited and a copy of the agreement. The United Kingdom has considerable experience in the delimitation of continental shelf boundaries. The first North Sea boundaries were delimited in the 1960s and were median lines derived graphically. The trend for median lines

7

Malta v. Libya, I.C.J. Reports 1985, p. 13. J.I. Charney and L.M. Alexander (eds.), International Maritime Boundaries, Vols. I–III (Dordrecht, Martinus Nijhoff Publishers, 1993–1998), J.I. Charney and R.W. Smith (eds.), International Maritime Boundaries, Vol. IV (Dordrecht, Martinus Nijhoff Publishers, 2002), D.A. Colson and R.W. Smith (eds.), International Maritime Boundaries, Vol. V (The Hague, Martinus Nijhoff Publishers, 2005). 8


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continued into the 1970s when further North Sea boundaries were delimited, but by this time were calculated. The typical differences between a graphical solution and calculated co-ordinates on the spheroid is illustrated by the difference of position of the northern point of the 1965 UK/Norway boundary9 and the southern point of the UK/Norway boundary delimited in 1978,10 which should have been identical. In fact there is a difference of 331 metres. Delimitations in the 1980s and early 1990s have been variations of the median line, beginning with the UK/France Arbitration of 1978,11 when the Scilly Isles were only awarded half weight. The remainder of this boundary through the western Channel is a simplified median line. The boundary agreement with Ireland, agreed in 1988,12 has been described as a model of the equitable solution. A similar description could be levelled at the much shorter boundary with Belgium.13 This was a pragmatic solution discounting or seriously reducing the effect of several low-tide elevations. One of the last continental shelf boundaries to be delimited around the UK concerned the UK and Denmark (Færoe Islands) agreed in May 199914 and entering into force in July

9

UK Treaty Series No. 71 (1965): Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Delimitation of the Continental Shelf between the two Countries. London, March 1965, London HMSO; and J.I. Charney, op. cit., supra note 8, Vol. II, Report 9–15, pp. 1879–1889, at pp. 1885–1887. 10 UK Treaty Series No. 31 (1980): Protocol Supplementary to the Agreement of 10 March 1965 between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Delimitation of the Continental Shelf between the two Countries, Oslo December 1978, London: HMSO; and J.I. Charney, op. cit., supra note 8, Vol. II, Report 9–15, pp. 1879–1889, at pp. 1887–1889. 11 UK Miscellaneous No. 15 (1978): Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf, London: HMSO; and J.I. Charney, op. cit., supra note 8, Vol. II, Report 9–3, pp. 1735–1754, at pp. 1748–1750. 12 UK Treaty Series No. 20 (1990): Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ireland concerning the Delimitation of Areas of the Continental Shelf between the two Countries, Dublin, 7 November 1988, London: HMSO; and J.I. Charney, op. cit., supra note 8, Vol. II, Report 9–5, pp. 1767–1779. See also C. Symmons, Ireland and the Law of the Sea, 2nd Ed. (Dublin, Round Hall, Sweet & Maxwell, 2000), pp. 321–326. 13 UK Treaty Series No. 20 (1994): Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Belgium relating to the Delimitation of the Continental Shelf between the two Countries, London: HMSO; and J.I. Charney, op. cit., supra note 8, Vol. II, Report 9–17, pp. 1901–1912. 14 UK Treaty Series No. 76 (1999): Agreement between the Government of the

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1999. Again this boundary is not a strict equidistance line, although sections of it in the north east and in the far west are very close to an equidistance solution. The central section of the line is a pragmatic solution and for only the second time a UK boundary defines a fishing boundary as well as a continental shelf line. The first is the fishing boundary Agreement between France and the Bailiwick of Guernsey,15 part of the Channel Islands. The latest maritime boundary to be delimited in the vicinity of the UK concerned the territorial sea boundary between the United Kingdom (Bailiwick of Jersey) and France.16 This again shows a remarkable pragmatism between the Parties when faced with the almost impossible task of assigning sovereignty to many relevant lowtide elevations that would have had an effect on a true median line boundary. In the event it would appear that many of these small rock and sand bank features were ignored in the calculation of the final result. In addition to this impressive portfolio of Agreements the United Kingdom has also successfully negotiated several maritime boundaries on behalf of its Overseas Territories the majority of which are islands and many of which are in the Caribbean region and will be discussed below.

3. STATE PRACTICE AND JURISPRUDENCE OF DELIMITATION BETWEEN MAINLAND AND ISLANDS The overwhelming requirement for an equitable result is geographic parity. Anything that upsets this similarity is likely to cause a requirement for some form of adjustment. Such geographic parameters as length of coasts, headlands,

United Kingdom of Great Britain and Northern Ireland, on the one hand, and the Government of the Kingdom of Denmark together with the Home Government of the Faeroe Islands, on the other hand, relating to the Maritime Delimitation in the area between the United Kingdom and the Faeroe Islands, Tørshavn, 18 May 1999, London: Stationery Office; and J.I. Charney, op. cit., supra note 8, Vol. IV, Report 9–23, pp. 2955–2977. 15 UK Treaty Series No. 66 (1993): Exchange of Notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic concerning the Activities of Fishermen in the Vicinity of the Channel Islands and the French Coast of the Cotentin Peninsula and, in Particular, on the Schole Bank, Paris, 10 July 1992, London: HMSO; and J.I. Charney, op. cit., supra note 8, Vol. III, Report 9–3 (5), pp. 2471–2486. 16 UK Treaty Series No. 8 (2004): Agreement between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the Establishment of a Maritime Boundary between France and Jersey, St. Helier, 4 July 2000, London: Stationery Office; and J.I. Charney, op. cit., supra note 8, Vol. IV, Report 9–24, pp. 2979–2992.


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islands, rocks, low-tide elevations, straight baselines, archipelagic baselines etc. can all cause disparity if their effect is not matched on both sides. In delimitations between a mainland State and an island State, a disparity in the relevant lengths of coastline is common. This disparity has been adjusted in various ways, depending upon the outcome of the whole boundary and the relative position of the island or islands in relation to the longer coast. If a median line is drawn between two mainlands and the islands of one State fall on the wrong side of this mainland-to-mainland line, then those islands are sometimes semi-enclaved. If the islands cause a median line to move too close to the mainland State, then the islands are often given less than full weight. If a group of islands are similar in size to the mainland, then a median line solution is often achieved. Another reason for adjustment is sometimes caused by the known or suspected presence of a particularly valuable resource. In the majority of cases, where this has occurred, the resource concerned has been hydrocarbons, although one or two cases have involved fisheries.

4. A SELECTION OF AGREEMENTS AND JUDGEMENTS CONCERNING ISLANDS a) Saudi Arabia – Bahrain – 195817 Although Bahrain has a slightly smaller coast length than the relevant coast of Saudi Arabia, the delimitation was essentially a median line.

b) Saudi Arabia – Iran – 196818 The trend away from giving full weight to islands against mainland coast began in the bilateral delimitation between Saudi Arabia and Iran, agreed in 1968. Although this is very much a pragmatic boundary, taking account of a producing oilfield belonging to Iran, it is clear that less than full weight was given to the Iranian island of Kharg. Two islands that lay close to the mainland-to-mainland median line, one belonging to each State, were semi-enclaved.

17 18

J.I. Charney, op. cit., supra note 8, Vol. II, Report 7–3, pp. 1489–1497. Ibid., Vol. II, Report 7–7, pp. 1519–1532.

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c) Tunisia – Italy – 197119 This was a bilateral agreement between largely the mainland coast of Tunisia and the Italian islands of Sardinia, Sicily, Lampione, Lampedusa, Linosa and Pantelleria. Leaving aside the islands in the Channel of Sicily, the boundary is a median line calculated between mainland Tunisia and the islands of Sardinia and Sicily, even though the relevant coast of Tunisia is longer than that of the two Italian islands combined. The Italian islands in the Channel of Sicily were semi-enclaved as they lie on the wrong side of the median line.

d) Mexico – Cuba – 197620 This boundary, again delimited bilaterally, is essentially a boundary between the eastern extremity of a mainland coast (Mexico) and the westerly tip of a large island (Cuba). Although the relevant coasts of the two Parties were considerably different in Mexico’s favour, the agreed boundary is an equidistance line.

e) UK – France – 197721 The main part of the boundary between the mainland of France and the United Kingdom was handed down as a simplified median line by the Court of Arbitration. However, the western segment of the boundary, controlled on the French side by the island of Ushant and on the UK side by the Isles of Scilly, was adjusted. The Court considered that the Isles of Scilly, when added to the westerly extension of the UK coast by the Cornwall mainland, constituted an element of distortion that required adjustment and accordingly only gave half weight to the Isles of Scilly. The Channel Islands, because of their close adjacency to the French mainland, were fully enclaved.

f) Venezuela – Netherlands (Antilles) – 197822 This boundary is in two parts. The first lies between the Venezuelan mainland and the Dutch islands of Aruba, Bonaire and Curacao. The second segment lies 19

Ibid., Vol. II, Report 8–6, pp. 1611–1625. J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–8, pp. 565–576. 21 J.I. Charney, op. cit., supra note 8, Vol. II, Report 9–3, pp. 1735–1754, at pp. 1748–1750. 22 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–12, pp. 615–637. 20


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between the Dutch island of Saba and the tiny Venezuelan sand cay of Aves Island. The coastal ratio in the first segment is in the region of 7:3 in Venezuela’s favour. However, the boundary in this first segment between the islands and the mainland is a simplified median line as is the second segment between Aves Island and Saba. It could be argued that in order to secure a median line solution in the second segment, Venezuela was content for a median line solution in the first segment. This is an example of an overall package deal for different segments of a boundary.

g) Malta – Libya – 198523 This International Court of Justice (ICJ) case was the first time that this Court had handed down a ruling that adjusted a median line solution significantly towards the State with the shorter coast. The relevant coastal lengths in this case were 192 miles for Libya and 24 miles for Malta giving a ratio of 8:1 in Libya’s favour. The Court considered this difference to be so great as to justify the adjustment of the median line so as to attribute a larger shelf to Libya. The Court also considered that the distance apart of the two coastal fronts was significant. The coasts are approximately 195M apart and the Court stated that the distance apart of the two coasts was an important consideration when deciding whether or not to adjust the median line and by how much. The further apart the coasts are the greater the freedom to adjust a median line towards the shorter coastal front without bringing other factors into consideration. Even with this marked difference in coastal front lengths and the considerable distance apart of the coasts, the Court only adjusted the median line some 18M towards Malta.

h) Sweden – Soviet Union – 198824 This bilaterally agreed boundary is significant in that the two opposite coasts, when taken overall, are of similar length. However, the presence of two fairly large Swedish islands, Gotland and Gotska Sand,/on, were the decisive factor in the final location of the boundary. Sweden contested that these islands should be afforded full weight, but the Soviet Union considered that the boundary should be calculated from the mainland coast ignoring the two islands, thus giving them nil weight. The final outcome was to give the islands approxi-

23 J.I. Charney, op. cit., supra note 8, Vol. II, Report 8–8, pp. 1649–1662; and Malta v. Libya, I.C.J. Reports 1985, p. 13. 24 J.I. Charney, op. cit., supra note 8, Vol. II, Report 10–9, pp. 2057–2075.

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mately three-quarters weight. This outcome avoided the final boundary line from going too close to either coast.

i) United Kingdom (Guernsey) – France – 199225 This bilaterally agreed fisheries boundary is in two parts between the east coast of the Bailiwick of Guernsey, a Crown Dependency of the United Kingdom consisting of the islands of Guernsey, Alderney, Sark and Herm and the French coasts of the Cotentin Peninsula, and the second segment between the southwest coast of Guernsey and a group of French rocks called the Roches Douvres. This agreement is interesting in that the lines are both median lines giving full weight to all basepoints. This is a case where, although it could be argued that the French mainland coast should have been given more weight than the island coast, because they are relatively close, between 7M and 18M, there was no room to adjust the median line towards the shorter coast.

j) Cape Verde – Senegal – 199326 This bilaterally agreed boundary is a boundary between a mainland coast (Senegal) and a group of islands (Cape Verde). Cape Verde is an independent sovereign State and claims archipelagic status, however, for delimitation purposes this does not make any fundamental difference. The Cape Verde Islands are 315M from the coast of Senegal. This should have allowed the Parties a greater freedom to adjust the median line to provide an equitable result. However, the agreed delimitation, although stating in the Treaty that it is a simplified median line, actually lies between 9M and 20M towards the mainland coast of Senegal, even though the mainland coastal front is longer than that of Cape Verde. The reason is probably the discounting of the Senegalese headland of Cap Vert in some way. The Treaty does not say how this was done, nor is it possible to recreate a possible technical solution with certainty.

k) Denmark (Greenland) – Norway (Jan Mayen) – 199527 This ICJ case was the second that adjusted a median line solution in favour of the longer coastal front. The relevant coast of Greenland was measured as some 504 km and that of Jan Mayen some 55 km giving a ratio of approximately 9:1 25 26 27

J.I. Charney, op. cit., supra note 8, Vol. III, Report 9–3 (5), pp. 2471–2486. J.I. Charney, op. cit., supra note 8, Vol. III, Report 4–8, pp. 2279–2291. Ibid., Vol. III, Report 9–19, pp. 2507–2525; and I.C.J. Reports 1983, p. 38.


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in Greenland’s favour. The court considered that this marked disparity in coastal lengths required it to be taken into consideration during the process of delimitation. The final result was an adjustment of the median line towards the shorter coast of Jan Mayen that averaged some 27M. However, this adjustment was not uniform as it was in the Malta/Libya case. The adjustment ranged from 41M in the south to nil in the north of the boundary. The distance apart of the coasts was also relevant. The closest point on the east coast of Greenland to the west coast of Jan Mayen is some 254M. The Court therefore had a considerable area in which to adjust the median line.

l) United Kingdom – Denmark (Faeroe Islands) – 199928 This bilaterally agreed boundary is between a group of small islands and a larger group of islands, where the difference in coastal fronts was considered to be significant. The Faeroe Islands are a closely knit group of islands that form a roughly triangular formation, whereas the United Kingdom coast comprised the Shetland Islands, the Orkney Islands, the north coast of Scotland and islands to the west. The total length of the relevant United Kingdom coast is considerably longer than the relevant coast of the Faeroe Islands. However, the coasts are complex and the resulting Agreement is in most part an equidistance solution with some basepoints clearly discounted in the central section of the boundary. Again the coasts are fairly far apart, between 155M and 180M, so both Parties had ample room to adjust the boundary towards the shorter coast if this was considered appropriate. It clearly was not and the resultant boundary does not appear to have taken into account the disparity of the coastal lengths to any appreciable extent.

m) Equatorial Guinea – Nigeria – 200029 This bilateral Agreement is between the mainland coast of Nigeria and the Island of Bioko, a part of Equatorial Guinea. The relevant mainland coast of Nigeria is considerably longer that the west facing coast of Bioko giving a ratio of between 2:1 to 4:1, depending upon the way the coasts are measured. However, the Parties decided not to apply any adjustment that relied upon the coastal front difference; rather they applied the use of licensing practice between the Parties to provide an equitable result. The agreed line does in fact lie slightly closer to Equatorial Guinea than to Nigeria. However, this reflects

28 29

J.I. Charney, op. cit., supra note 8, Vol. IV, Report 9–23, pp. 2955–2977. Ibid., Vol. IV, Report 4–9, pp. 2657–2668.

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the licensing concessions of the Parties rather than any adjustment of the median line.

n) Bahrain – Qatar – 200130 This ICJ case concerning the territorial sovereignty of several contested geographical features and the determination of the maritime boundary between the two States was handed down on 16 March 2001. Bahrain is an island State with several smaller island features and low-tide elevations that were relevant to the delimitation of this boundary. The all purpose boundary was both territorial in nature and beyond the territorial sea to a boundary with a third State. The Court gave full weight to the Hawar Islands having assigned their sovereignty to Bahrain, but because of their proximity to the Qatar mainland, it is difficult to see what alternative could have been used. Other small rocks and low-tide elevations between the main island of Bahrain and the Qatar mainland were largely ignored as were the potential effects of other large low-tide elevation features and the small islet of Qitat Jaradah. The Court did however take account of other small island features towards the southern part of the territorial sea boundary, perhaps indicating that these small island features should have a bearing on the course of a boundary within the territorial sea.

o) Cyprus – Egypt – 200331 This bilateral Agreement between Cyprus and Egypt is some 166M long. The relevant Egyptian coast is some 199M in length. The relevant Cyprus coast is approximately 50M in length, giving a ratio of 4:1 in Egypt’s favour. The two opposite coasts are approximately 189M apart. The agreed boundary is however an approximate median line giving no adjustment for the disparity in coastal lengths, even though there is plenty of sea room for an adjustment to be made, should the Parties have considered it necessary to achieve an equitable result.

p) Oman – Yemen – 200432 This is another example of a recently agreed bilateral Agreement where an island had a major role to play in the final outcome of the boundary. The 30 31 32

Ibid., Vol. IV, Report 7–13, pp. 2841–2860, and I.C.J. Reports 2001, p. 40. D.A. Colson, op. cit., supra note 8, Vol. V, Report 8–15, pp. 3917–3926. Ibid., Vol. V, Report 6–21, pp. 3900–3912.


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relatively large Yemeni island of Suqutra controls half the length of this boundary on the Yemen side. It is clear that it has been given less than full weight even though it is some 3.5 thousand sq km in size and has a population of approximately 44,000. However, it lies a long way from the Yemen mainland coast, which was clearly a major factor.

5. THE GENERAL OVERVIEW CONCLUSIONS From this brief global study of the effect of islands on maritime delimitation it is clear that although islands do play a significant role in the way that maritime boundaries are delimited they do not attract any special treatment over and above other geographic features. Articles 74 and 83 of UNCLOS provide that States shall delimit their continental shelves and exclusive economic zones by agreement on the basis of international law in order to achieve an equitable solution. It is quite clear that jurisprudence and State practice recognise the requirement to adjust a median line solution where special circumstances of one kind or another are present in order to reach an equitable result. What triggers the requirement to adjust a median line is open to question and is not laid down by any rules except in so far as the result of the adjustment will achieve an equitable result in the eyes of both Parties to the dispute. Jurisprudence made it clear in the judgment in the North Sea Cases33 that land dominates the sea. The land, through the coastal front land/sea interface gives realisation to the extent of dominance of that land front as it extends seawards. In other words the longer the coastal front the greater the seaward extension of territory that can be expected. However, the reality in actual delimitation, both in jurisprudence and State practice is that unless the disparity of coastal lengths is marked no adjustment will be deemed necessary.

6. THE CARIBBEAN a) General Description The area known as the Caribbean Sea maybe defined as that area enclosed by a line from Cabo Catoche on the north-eastern coast of the Yucatan peninsula in Mexico to the western extremity of Cuba at Cabo San Antonio, thence along the southern coasts of Cuba, Haiti, the Dominican Republic and Puerto Rico.

33

I.C.J. Reports 1969, p. 31, para. 96.

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Thence enclosing the Leeward Islands and Windward Islands, including Barbados to the mainland of Venezuela at Punta Baja. Thence along the northern coasts of South America and the eastern coasts of Central America to Cabo Catoche.34 When the Caribbean is described as a whole, it is normal to include the islands to the north of Cuba, Haiti and the Dominican Republic, namely the Bahamas and the Turks & Caicos Islands as being part of the Caribbean. Geographers have some difficulty in deciding how large an area this sea covers.35 The Times Atlas, 10th Edition, quotes the figure of 2,512,000 sq km. The Caribbean Sea can be described as a semi-enclosed sea partially enclosed by and containing within it some 22 sovereign States and some 17 Overseas Territories belonging to the United Kingdom, France, the United States and The Netherlands. As a semi-enclosed sea it falls within UNCLOS Part IX. Article 123 of that Part states: “States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organisation: (a) to co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article.”

It is interesting to note, that apart from the general exhortation to co-operate, there is no mention of the requirement to delimit their maritime boundaries. During the Third UN Conference on the Law of the Sea several States tried to have language accepted in what became Article 123 that would have included a requirement to delimit maritime boundaries, but these all proved unsuccessful.36 The title of this paper uses the word “complex” as it applies to island situations. Is it reasonable to assume that the Caribbean delimitation requirement is a “complex island situation?” The fact that there are so many States and Territories certainly gives the impression that the area must be complex. 34 International Hydrographic Organization, Names and Limits of Oceans and Seas, Special Publication No. 23, Draft 4th Edition, 2002. 35 C.W. Dundas, “Region II, Middle American and Caribbean Maritime Boundaries”, in: D.A. Colson, op. cit., supra note 8, Vol. V, pp. 3405–3423. 36 S.N. Nandan and S. Rosenne (eds.), United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. III (Center for Oceans Law and Policy, University of Virginia School of Law, 1995), pp. 354–368.


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However, complexity is in the eye of the beholder and can be made up of very many different factors. Are these factors present in the Caribbean area? The fact that there are so many States and Territories does not necessarily make the area complex. As can be seen in Figure 1, the islands in the north and east all have maritime zones extending to the full limit of 200M into the Atlantic. Many of these island States are of similar size and complexity, particularly in the east. The perception of geographical parity between these States should provide for an equitable delimitation based on equidistance, provided there is no other overwhelming disparity caused by something other than geography. The southern Windward Islands made up of St. Lucia, St. Vincent and the Grenadines and Grenada are all restricted to the west by Aves Island and to the east by Barbados and Trinidad & Tobago. The central area of the Caribbean is dominated by the larger islands of Cuba, Hispaniola (Dominican Republic and Haiti), Jamaica and Puerto Rico. They all have boundaries with smaller island groups and apart from the Dominican Republic and the US island of Puerto Rico, they are all shelf locked. In other words their maritime zones do not extend to the 200M limit because of the presence of other States. A similar Figure 1: Caribbean Overview

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observation can be made to the mainland States of northern South America and the Central American States bordering the Caribbean Sea. None of these States can extend their maritime zones to the full 200M in the Caribbean because of the presence of neighbouring States.

b) The Generation of Maritime Space The amount of maritime space that can potentially be generated by the States in the Caribbean region is generally balanced, but there are a few notable exceptions. As illustrated in Figure 1, the mainland States of Venezuela and Colombia potentially control very large areas within the Caribbean Sea. This is caused by the presence of small island features that lie well away from the mainland territory. Aves Island (Figure 2), a very small Venezuelan island, lies some 297M from the mainland of Venezuela and some 233M from the nearest coastal Venezuelan island of La Blanquilla. Figure 2: Aves Island

If this small feature is afforded full weight in maritime delimitations it has the potential of generating some 10,000 square nautical miles for Venezuela. The fact that this island is only some 0.0312 square kilometres in size and has no population or economic life, apart from a few Venezuelan Coastguard personnel housed in a metal cabin (Figure 3) built on stilts sitting off the island’s beach, may be considered inequitable to the neighbouring States. The extent of the Columbian maritime space in the Caribbean Sea is greatly extended by her possession of several offshore islands and smaller reef areas


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Figure 3: Aves Island—the module

including the islands of San Andres, and Providencia. These two islands are approximately 385M from the Colombian mainland coast and generate a considerable extra area of exclusive economic zone for Colombia. The sovereignty of both these islands is under dispute and a case is before the International Court of Justice – Territorial and Maritime Dispute (Nicaragua v. Colombia).37 States and Territories that are severely restricted in their ability to generate maritime space and could be described as geographically disadvantaged include Guatemala, fronting the Gulf of Honduras and hemmed in by Belize, Honduras and Mexico; the French islands of St. Martin & St. Bathélémy, the Dutch islands of Saint Maarten, Saba and St. Eustatius, St. Kitts Nevis and the British island of Montserrat. These islands both interact together and are restricted towards the south by Aves Island and to the north by the British island of Anguilla and Antigua & Barbuda. Guatemala is the only mainland State in this situation in the area under discussion and considerable efforts are being made by the Organisation of American States (OAS) to help settle the boundaries in this area. The island States mentioned above do not have quite the same problem. The only major disparities for which they may seek relief are the effects of Aves Island and the possible effects of territorial sea baselines that are artificial in their nature. The Dutch islands have already relinquished this possibility by agreeing to a median line boundary with Venezuela in the section controlled by Aves Island.38 37

Nicaragua v. Colombia, International Court of Justice Order, 26 February 2002, General List No. 124. 38 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–12, pp. 615–637.

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c) Maritime Boundaries General Of the 78 maritime boundaries in this area only 21 have been delimited and brought into force to date (November 2004). A further 2 have been agreed and signed but are not in force for one reason or another. Two boundary cases are before the International Court of Justice (ICJ); they are the Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)39 and the Territorial and Maritime Dispute (Nicaragua v. Colombia).40 The maritime delimitation case between Barbados and Trinidad & Tobago is before an Arbitral Tribunal brought under the UNCLOS Annex VII arbitration procedures.41 Finally, one delimitation is the subject of a facilitation process put in place by the OAS between Guatemala and Belize, with Honduras assisting.42

d) Delimited Maritime Boundaries (i) Up to 1970 The Caribbean has the distinction of having the first maritime boundary to be delimited beyond the territorial sea. This is the boundary between Venezuela and the United Kingdom in respect of Trinidad and Tobago, signed on 26 February 1942 and coming into force on 22 September 1942.43 This Treaty is significant for many reasons in addition to the ground breaking delimitation of maritime space beyond the territorial sea. The line has been delimited in a pragmatic way and is not a strict median line. The bilateral negotiations included the sovereignty issues of the island of Patos, which were settled in Venezuela’s favour. It was made clear that the description “Submarine Areas” through which the delimitation was effected, only relates to the seabed and not to the water column. Navigational rights were not affected. It was also made clear in the Treaty that neither side was to cause pollution to each other’s territorial waters.

39

Nicaragua v. Honduras, International Court of Justice Order, 21 March 2000, General List No. 120. 40 Nicaragua v. Colombia, ICJ Order, op. cit., supra note 37, p. 13. 41 Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration between Barbados and the Republic of Trinidad & Tobago, Order No. 2, The Permanent Court of Arbitration, The Hague, 2004. 42 Press Release E-138/00 dated 20 July 2000, Organisation of American States. 43 UK Treaty Series No. 10 (1942): Treaty between His Majesty in Respect of the United Kingdom and the President of the United States of Venezuela Relating to the Submarine Areas of the Gulf of Paria, HMSO, London 1942; see J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–13 (1), pp. 639–654.


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Perhaps mention should be made of two earlier Agreements. The 1893 Saint John-Mariscal Treaty between the United Kingdom (British Honduras) and Mexico, not only delimited the land boundary between the two States but also the sea area contained within the large bay known as Bahia Chetumal to the open sea at the north end of Ambergris Cay a distance of some 43M. The second Agreement concerns Nicaragua and Colombia who signed an agreement in 1928 which purported to divide the two territories with the 82°W meridian. This was subsequently denounced by Nicaragua in 1980 and the delimitation of this boundary is before the ICJ.44

(ii) 1970s Over 30 years elapsed before a spate of boundaries was delimited in the mid 1970s. This series of bilateral delimitation agreements were put in place to secure tenure of the extended maritime spaces being negotiated in the Third UN Conference on the Law of the Sea. It will be noted that the rights to a resource, whether living or non-living, could be said to have triggered this flurry of boundary negotiations, just as had the requirement of the United Kingdom and Venezuela to delimit the Gulf of Paria to secure sovereign rights over the hydrocarbon resources within the Gulf at a time of severe shortages during the Second World War. Some nine boundary Agreements were agreed in this decade largely between the mainland States of South and Central America in the region and the islands adjacent to them. The first was the bilateral Agreement between Cuba and Mexico45 signed on 26 July 1976 and brought into force on the same day. The boundary illustrated in Figure 4 is a median line delimiting the exclusive economic zone of Mexico and the potential extended maritime zones of Cuba. Cuba did not declare an exclusive economic zone until the following year.46 The second was a bilateral Agreement between Colombia and Panama signed on 20 November 1976 and brought into force on 30 November 1977.47 This boundary was in two parts, one in the Caribbean and the other one in the Pacific. The Caribbean segment itself is in two distinct sections (Figure 5). The first from the land boundary terminal point is adjacent in aspect and follows an equidistant line as far as the point in which the Colombian claimed insular territories known administratively as “Intendencia de San Andrés y Providencia” take effect. The second, under the influence of the insular territories, is a series of parallels and meridians, intersecting the median line solution in approxi-

44 45 46 47

ICJ Order, op. cit., supra note 37, p. 13. J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–8, pp. 565–576. Decree Law No. 2 dated 24 February 1977. J.I. Charney, op. cit., supra note 8, Vol. 1, Report 2–5, pp. 519–535.

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mately equal amounts, going approximately east-west. This section can thus be described as a pragmatic solution in sympathy with the median line. Two further boundaries were negotiated in 1977. Colombia-Costa Rica was signed on 17 March 197748 (Figure 5) but has yet to be brought into force. This may have something to do with the link between the insular claims of Colombia and the use of the 82°W meridian and the neighbouring Central American States. The boundary could be described as a simplified median line between the mainland of Costa Rica and the claimed insular territory of Colombia. The second boundary agreed in 1977 was between Cuba and Haiti49 (Figure 6). It was signed on 27 October 1977 and brought into force on 6 January 1978. Again this is a median line delimiting the exclusive economic zones of both 48 49

J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–1, pp. 463–476. Ibid., Vol. I, Report 2–7, pp. 551–563.


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Figure 5: The south-western Caribbean 84°

82°

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States. It is interesting to note that the Haitian closing line across the Gulf of Gonave was ignored as was the United States unincorporated territory of Navassa Island. Four boundaries were delimited in 1978. Two further boundaries by Colombia with insular neighbours and two by Venezuela again with insular Figure 7: The south central Caribbean 76°

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neighbours. Colombia reached agreement with the Dominican Republic and Haiti within the space of a month, the Dominican Republic on 13 January 1978 and Haiti on 17 February 1978 (Figure 7). Clearly both negotiations were carried out simultaneously with these neighbouring States. The boundary with the Dominican Republic, brought into force


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on 2 February 197950 is a median line with a joint scientific and fishing zone straddling the central part of the line. The western terminal point of the boundary is a tripoint with Haiti, again re-enforcing the probability that these two boundaries were negotiated concurrently. The Colombia/Haiti boundary came Figure 8: The eastern Caribbean 66°

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into force on 16 February 197951 and is a simplified median line made up of a single segment some 65M in length. The two boundaries negotiated by Venezuela in 1978 were with the United States and The Netherlands (Figures 7 & 8). Again these followed the co-ordinated approach to the delimitation of maritime boundaries and the definition of maritime space being put forward by the States of South America during the Third UN Conference on the Law of the Sea. The Boundary Treaty between Venezuela and the United States in respect of Puerto Rico and the US Virgin Islands52 was signed on 28 March 1978 and entered into force on 24 November 1980. It is a median line between the insular territories of the United States and the insular territories off the mainland of Venezuela and perhaps controversially also giving full weight to the very small Venezuelan Aves Island, described earlier. The boundary with The Netherlands also concerns insular territory but in this case the mainland of Venezuela also played a major role. The Delimitation Treaty was signed on 31 March 1978 and came into force on 15 December 1978.53 The fact that this boundary was signed only three days after the boundary with the United States also suggests that Venezuela conducted these two boundary negotiations concurrently. The boundary is between the Netherlands Antilles, made up of the islands of Curaçao, Bonaire and Aruba off the mainland coast of Venezuela and the small islands of Saba and St. Eustatius in the Windward Islands to the north of the very small Venezuelan island of Aves. The boundary is in two segments, the first concerning the islands off the Venezuelan mainland coast could be described as an adjusted median line. The boundary between the mainland and the south coasts of the islands is a simplified median line, but as the boundary turns towards the north in both the west and the east towards the potential Dutch boundary with the Dominican Republic, the line has been drawn in Venezuela’s favour by moving them both inwards into a north-east and northwest direction. The smaller second segment is a median line giving full weight to all three islands concerned and joins with the United States/Venezuela boundary at a tripoint. It is clear that the whole boundary was agreed as a package, account being taken of the larger mainland coast against the smaller Dutch islands off the mainland and the fact that the United States had agreed to a median line solution vis-à-vis Aves Island, even though both the relevant Dutch islands are very much larger and have well established populations and economies. Only one boundary was delimited in the region in 1979: That between Venezuela and the Dominican Republic54 (Figure 7) signed on 3 March 1979

51 52 53 54

Ibid., Vol. I, Report 2–3, pp. 491–502. J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–14, pp. 691–703. Ibid., Vol. I, Report 2–12, pp. 615–637. J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–9, pp. 577–590.


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and brought into force on 15 January 1982. This boundary is also in two segments separated by the Venezuelan boundary with The Netherlands to which it is joined in both the west and east by tripoints. The boundary is a median line although the preamble to the Treaty describes the line as delimiting the area “justly, accurately and on the basis of equitable principles” thus reflecting the wording that was emerging from the Third UN Conference on the Law of the Sea regarding delimitation of the exclusive economic zone and continental shelf.

(iii) 1980s During the nineteen eighties a further six maritime boundaries were delimited, three in between 1980 and 1981 and a further three between 1986 and 1989. The boundary between Panama and Costa Rica55 (Figure 5) was signed on 11 February 1980 and came into force on 11 February 1982. The Caribbean sector of this boundary completes the maritime delimitation requirements of Panama in the region. The adjacent boundary is essentially a simplified equidistance line joining the land terminal point with the boundary between Colombia and Panama in a single straight line segment. It appears to ignore the islands close offshore Panama even though the preamble to the Treaty states that the delimitation was effected by “the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of each State is measured in accordance with Public International Law.” The second boundary delimited by bilateral agreement in 1980 was that between Venezuela and France on behalf of Guadeloupe and Martinique56 (Figure 8). It was signed on 17 July 1980 and came into force on 28 January 1983. This boundary again featured Aves Island and although Venezuela failed to achieve full weight for this diminutive feature they did achieve almost full weight. The two sector boundary, divided by the maritime areas of Dominica, is a meridian at 62° 48 50 W. This was the first boundary that France delimited by bilateral agreement in the area and was to be followed by several others. One such boundary was the only boundary agreement achieved in 1981, that between France and St. Lucia57 (Figure 8). This boundary was signed on 4 March 1981 and came into force on the same day. The boundary is an all purpose median line covering both the exclusive economic zone and continental shelf of both States. It terminates in the west at a tripoint on the recently agreed boundary between France and Venezuela and close to a tripoint with Barbados in the east. There was then a gap of some five years until the boundary between Honduras and Colombia was signed on 2 August 1986. There is no definitive 55 56 57

Ibid., Vol. I, Report 2–6, pp. 537–549. Ibid., Vol. I, Report 2–11, pp. 603–614. Ibid., Vol. I, Report 2–10, pp. 591–601.

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explanation for this gap other than to comment that perhaps the political will to put maritime boundaries in place before the opening for signature of the United Nations Convention on the Law of the Sea ended on 10 December 1982, when this Convention was opened for signature in Montego Bay, Jamaica. Perhaps States then took stock of the provisions contained within this Convention before proceeding with further boundary agreements. The Honduras-Colombia Agreement58 (Figure 5) was not ratified until 30 November 1999 and whereupon caused much alarm in the Government of Nicaragua.59 The boundary, the first in the region to be agreed following the opening for signature of UNCLOS, has several interesting features. The first two segments of the line follow a parallel of latitude at 14° 59 08 N for approximately 120M, then a meridian of longitude at 82° 00 00 W for 79M before curving around the western perimeter of the cays on the Serranilla Bank. The position and use of the parallel of latitude and the use of the 82° meridian of longitude probably indicates some acceptance by Honduras of Colombia’s position regarding the maritime space appertaining to Colombia and Nicaragua, hence Nicaragua’s protest note. The final two boundaries agreed in the 1980s again concerned France and Venezuela. France signed a bilateral Agreement with Dominica on 7 September 1987 (Figure 8), which came into force on 23 December 1988.60 This was the first boundary agreement in the eastern Caribbean relying upon the rules and principles of international law as they were expressed in the 1982 Convention. The boundary is essentially a median line adjusted to take account of equitable principles. A true median line would have “cut off” the maritime spaces of Dominica as they extended to the east into the Atlantic and the line was adjusted to allow Dominica relief for this aspect and enable her to claim a full 200M in this area. The boundary is in two parts, the northern sector with the French island of Guadeloupe and the southern sector with the French island of Martinique. The eastern limit of both sectors end at tripoints with the agreed boundary between France and Venezuela (Aves Island). The final boundary agreed during this decade was that between Venezuela and Trinidad & Tobago61 (Figure 8). This Agreement was signed on 4 August 1989, but never ratified for reasons that will become clear later. The aim of the Agreement was to update the 1942 Agreement and to extend this boundary both into the Caribbean and eastwards towards the Atlantic. The boundary appears to have been delimited using several parameters to achieve an equitable solution and is an all purpose boundary of some 205M in length.

58

J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–4, pp. 503–518. Nicaraguan Ministry of Foreign Affairs, Note MRE/DM/3578/12/99, dated 1 December 1999. 60 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–15, pp. 705–715. 61 Ibid., Vol. I, Report 2–13 (2), pp. 655–673. 59


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(iv) 1990s The 1990s were again a productive decade for the delimitation of maritime boundaries in the Caribbean region. Some eight boundaries were agreed. One was a consolidation of previous agreements with only an extension being new and a further five concerned the United Kingdom in respect of its Overseas Territories and the United Sates in respect of Puerto Rico and the US Virgin Islands. Little progress was achieved by the independent island States of the region with the notable exception of Jamaica. Venezuela and Trinidad & Tobago completed their bilateral maritime delimitation negotiations with the signature of a Treaty covering all their respective marine and submarine areas62 on 18 April 1990 (Figure 8). This Treaty entered into force on 23 July 1991. The boundary covered areas in the Caribbean Sea, the Gulf of Paria, the Serpent’s Mouth and the Atlantic Ocean. It incorporated the earlier Agreements of 1942 and 1989 and extended the boundary into the Atlantic area beyond 200 nautical miles. It appears to ignore the maritime areas of both Barbados and Guyana, the former issuing a protest note to Trinidad & Tobago in 2001.63 1993 saw three boundaries all agreed in November of that year. The United Kingdom in respect of the British Virgin Islands and the United States of America in respect of Puerto Rico and the United States Virgin Islands signed a bilateral all purpose maritime boundary agreement on 5 November 199364 (Figure 8). The boundary agreement was brought into force on 1 June 1995. This fairly complex boundary is a simplified median line, of some 50 turning points, simplified from 125 points, extending into the Atlantic to the 200 nautical mile limit and terminated at a tripoint between the UK Overseas Territories of the British Virgin Islands and Anguilla and the US Virgin Islands. This tripoint formed the start of a further leg of the boundary between the US Virgin Islands and Anguilla (Figure 8). The negotiations for this short all purpose boundary were carried out concurrently with the British Virgin Islands boundary and the Agreement was signed on the same day.65 It was also ratified at the same time on 1 June 1995. The boundary only has one segment just over one nautical mile in length. The third boundary to be delimited in 1993 was between Colombia and Jamaica66 (Figure 6), signed on 12 November 1993 and brought into force on 14 March 1994. This is an interesting and innovative boundary delimitation between the cays and mainland coast of a continental

62

Ibid., Vol. I, Report 2–13 (3), pp. 675–689. Diplomatic Note No. IR/2001/238 from the Ministry of Foreign Affairs and Foreign Trade of Barbados to the Ministry of Enterprise Development, Foreign Affairs and Tourism of Trinidad and Tobago, dated 23 August 2001. 64 J.I. Charney, op. cit., supra note 8, Vol. III, Report 2–16, pp. 2161–2170. 65 Ibid., Vol. III, Report 2–17, pp. 2171–2178. 66 Ibid., Vol. III, Report 2–18, pp. 2179–2204. 63

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State and an island State that has archipelagic status, although it would appear that the latter had little bearing on the calculation of the delimitation line. The eastern end of the boundary is interesting in that it is designed to link into the boundary agreed between Colombia and Haiti in 1978, but indicating that this cannot be completed until the boundary between Jamaica and Haiti has been agreed. In the west the boundary agreement includes a Joint Regime Area (JRA) whose western boundary links into the maritime boundary agreed between Colombia and Honduras in 1986 and ratified in 1999. It is clear that the Parties either could not or did not wish to assign resource jurisdiction in this area but it would appear that Colombia has reserved its sovereignty over the two cays that lie within the area. The two cays Serranilla and Low Cays (Bajo Nuevo) have been assigned 12 nautical mile enclaves and do not form part of the JRA. The Treaty does not state specifically who has sovereignty over these two cays but does indicate that the 12 nautical mile enclaves are Colombian territorial sea. Only one boundary was successfully delimited in 1994, that between Jamaica and Cuba67 (Figure 6) signed on 18 February 1994 and ratified on 18 July 1995. This all purpose boundary is remarkable in the number of turning points that define this relatively short boundary. It is a strict median line using every relevant territorial sea base point on both coasts which have generated some 106 turning points for a boundary only 175 nautical miles in length. It is clear that no simplification has taken place. Three boundaries were delimited in 1996 all involving metropolitan States. The United Kingdom and France delimited two boundaries in respect of British overseas territories and French overseas departments. The boundary between the British overseas territory of Anguilla and the French overseas department of Saint Martin and Saint Barthélemy68 (Figure 8) was signed on 27 June 1996 and entered into force on 30 January 1997. Again this is an all purpose median line boundary some 83 nautical miles in length. It has been simplified on an equal area basis and has only 8 turning points, terminating in the west close to a tripoint with the Dutch island of Saba and in the east close to a tripoint with Antigua and Barbuda. The second boundary between the United Kingdom and France was between the British overseas territory of Montserrat and the French overseas department of Guadeloupe69 (Figure 8). This agreement was signed and brought into force on the same dates as the previous UK/France agreement described above. This boundary is once again an all purpose simplified median line between the two territories some 74M in length. It terminates close to a tripoint with Antigua and Barbuda in the east and at the northern terminal point of the France – Venezuela boundary agreed in 1980 in the west. The third bound-

67 68 69

Ibid., Vol. III, Report 2–19, pp. 2205–2218. Ibid., Vol. III, Report 2–20, pp. 2219–2225. J.I. Charney, op. cit., supra note 8, Vol. III, Report 2–21, pp. 2227–2233.


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ary to be agreed in 1996 again concerned the United Kingdom. In this instance it was between the United Kingdom Overseas Territory of the Turks & Caicos Islands and the Dominican Republic70 (Figure 9) signed on 2 August 1996 but yet to be brought into force. Figure 9: The north-west Caribbean 78°

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The boundary is a simplified median line some 283M in length with 5 turning points ending in the east at the 200M limit of the Turks & Caicos extended fisheries zone and the Dominican Republic exclusive economic zone. In the west it terminates at a tripoint with Haiti. This was the last boundary to be agreed in the Caribbean area for six years.

(v) 2000s To date (November 2004) only one boundary has been delimited during this decade. Again it involved the United Kingdom and in this instance Honduras. The boundary in question was that between the British overseas territory of the 70

Ibid., Vol. III, Report 2–22, pp. 2235–2243.

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Cayman Islands and Honduras71 (Figure 6). The Agreement was signed on 4 December 2001 and came into force on 1 March 2002. This boundary is also based on the median line principle but has been severely simplified to the extent that there are only 3 points constituting the line which is some 220M in length. The boundary terminates in the west at the tripoint with Cuba and in the east towards a notional tripoint with Jamaica. It is slightly unusual for the area in that it provides for an area of traditional Cayman Islands fisheries rights over the Misteriosa and Rosario Banks both lying in Honduras’ exclusive economic zone. The boundary also takes account of certain Honduran oil concessions let in the 1960s and 1970s.

(vi) Conclusions on Delimited Maritime Boundaries Figure 10: Caribbean overview 85°

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Of the 21 maritime boundaries that are in force in the region some 15 can be described as based on median/equidistance principles some of which have been simplified, while the remainder have either been delimited using a variety 71

D.A. Colson, op. cit., supra note 8, Vol. V, Report 2–23, pp. 3564–3574.


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of methods, some of which are pragmatic, or have been significantly adjusted from a median line solution. It could be argued therefore that the conditions are present in many parts of the Caribbean that have satisfied the equitableness of a median line solution. This would indicate that geographic parity between States is present in many parts of the Caribbean resulting in successful maritime delimitation. In the delimitations that have been achieved using methods other than equidistance, both political will and the requirement for some form of political expediency has been present to enable the desired result to be achieved. Two boundaries that have been delimited and signed have not been brought into force for one reason or another.

e) Undelimited Maritime Boundaries Of the many maritime boundaries to be delimited within the Caribbean region, as has been mentioned above two are before the International Court of Justice, Nicaragua-Honduras and Nicaragua-Colombia, one is before an Arbitral Tribunal, Barbados-Trinidad & Tobago, and one has been the subject of facilitation, Belize-Guatemala. Clearly all these cases have caused considerable difficulty to the Parties after years of attempting bilateral solutions.

f) Mainland States Bilateral maritime boundary negotiations are being carried out by several States in the region with varying degrees of success. The mainland States bordering the region have in the most part been successful in achieving acceptable maritime boundary agreements. Mainland Venezuela only has the boundary with Colombia to complete, although this poses difficulties in the entrance to the Gulf of Venezuela. Apart from this boundary Colombia will have completed all its delimitations once the International Court gives its judgment on the Nicaraguan boundary. Nicaragua has not delimited any of its Caribbean boundaries to date. As has been stated, two are before the ICJ and the boundary with Costa Rica has yet to be delimited. It is presumed that this will only be taken forward once the ICJ has given its judgments. Honduras has only delimited one of its boundaries in the Caribbean, that with the Cayman Islands. The boundary with Nicaragua is before the ICJ and the boundaries with Guatemala, Belize and perhaps Mexico are tied up with the Belize-Guatemala boundary issues. This just leaves the relatively short boundary with Cuba to be delimited, which should not pose too many difficulties. The Guatemala – Belize boundary situation is challenging. Guatemala is a geographically disadvantaged State and together with the significant sovereignty issues involved it will require considerable political will by all Parties to reach agreement. As has been previously

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discussed, the Organisation of American States has been active in this matter setting up a facilitation exercise with the active participation of Honduras and the United Kingdom. Apart from the boundaries with Guatemala and Honduras, Belize also has a maritime boundary with Mexico that was partially agreed in 1893.72 The maritime section of this boundary runs as a series of parallels of latitude and meridians of longitude from the termination point of the land boundary, through the Baya Chetumal to the open ocean at the strait named Boca Bacalar Chica, lying between the Mexican mainland of the Yucatan Peninsula and Ambergris Cay. A further Convention was signed by the two governments on 7 April 1897 in which Article 3 states: “Her Britannic Majesty guarantees to Mexican merchant vessels in perpetuity the absolute liberty, as at present enjoyed, of navigating the Strait opening to the south of Ambergris Cay, otherwise known as the island of San Pedro, between this cay and the mainland, as well as of navigating the territorial waters of British Honduras.”

Modern international law of course ensures a right of innocent passage for all vessels in the territorial sea, but it was a novel and far sighted measure in 1897.

g) Large Island States The large island States in the Caribbean region would include Cuba, Haiti, Dominican Republic, Jamaica and Puerto Rico, although the latter is a Commonwealth of the United States. All these island States have outstanding maritime boundaries to delimit, although it can be observed that several have been fairly successful in achieving delimitation successes to date. Cuba has the short boundary with Honduras to delimit and two far larger boundaries with the Bahamas and the British overseas territory of the Cayman Islands. Haiti has been the least successful in this group with only one boundary delimited to date. Outstanding boundaries remain with the Bahamas, the British overseas territory of the Turks & Caicos Islands, the Dominican Republic and Jamaica. There is also the possibility that a boundary with the United States may be required if it maintains sovereignty over the unincorporated territory of Navassa Island. However, Haiti does not recognise US sovereignty over this island. Once the government of Haiti is in a position to re-engage in boundary delimitation negotiations it is not envisaged that there should be too much difficulty in making progress on the remaining undelimited boundaries. The 72

Treaty between Great Britain and Mexico, respecting the Boundary between Mexico and British Honduras, British and Foreign State Papers, Vol. 85 (1892–1893), pp. 58–60.


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Dominican Republic has successfully completed its boundaries to the south but has not progressed very far with its remaining boundaries. An Agreement was signed with the British overseas territory of the Turks & Caicos Islands, but this Agreement has not been ratified to date. The reason for the delay in bringing this boundary into force is not known but it certainly is not through any problem in either the Turks & Caicos Islands or the United Kingdom. The remaining two boundaries with Haiti and Puerto Rico do not appear to have any particular difficulty. This latter boundary will be the last boundary that the United States will have to delimit in respect of Puerto Rico. Jamaica has been fairly active in maritime boundary delimitation. Following the two successful delimitations with Colombia and Cuba negotiations have been going on intermittently for some time with the United Kingdom in respect of the Cayman Islands. Agreement has not been reached as yet and questions over the validity of using archipelagic baselines in the delimitation process continue to remain a difficulty. The two boundaries in the south concerning Honduras and possibly Nicaragua will have to await the judgment of the ICJ in the HondurasNicaragua case. The final boundary in the east with Haiti also has the problem of the status of Navassa Island. Until this is clarified and until the government of Haiti is in a position to continue the boundary negotiation process, delay will inevitably occur.

h) Small Island States There are some nine small island States within the Caribbean Region and about ten island States that are overseas territories of the United Kingdom, the United States, France or The Netherlands. Of the independent island States only Trinidad & Tobago, Dominica and St. Lucia have successfully completed boundary negotiations to date, although several have begun negotiations. The overseas territories of the metropolitan States have been more successful. This is undoubtedly because of the greater resources of expertise within these States and a political programme of boundary negotiation that has been carried out. The boundary between the British overseas territories’ of Anguilla and the British Virgin Islands has been negotiated and agreed and just awaits announcement by the two Governors (see Figure 8). This is an example of United Kingdom legal and technical expertise being made available to these two small territories to assist them in reaching agreement. Many of these island States are situated within the Windward and Leeward Islands of the eastern Caribbean and form a fairly complex mix of geographic areas. This complexity is exacerbated by the presence of the small Venezuelan island of Aves and the uncertainty of its status regarding the delimitation of boundaries. The United States and the Netherlands both gave full weight to this island in their boundary agreements, possibly as part of a wider overall

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Agreement concerning their boundaries and other political considerations. The two French boundaries have given approximately three-quarter weight to this feature in the boundary Agreements on behalf of Guadeloupe and Martinique. This has left a problem for the remaining Caribbean States and Overseas Territories on how to deal with Venezuela over this diminutive feature. Venezuela is not a Party to the UN Convention on the Law of the Sea, where the question of which maritime zones a small island, that cannot sustain human habitation or have an economic life of its own, can generate is contained in Article 121, paragraph 3. The Organisation of Eastern Caribbean States (OECS) attempted to co-ordinate a common approach to this problem among its member States, but no progress has been achieved. It would appear that Venezuela is not in any rush to enter into negotiations and it would seem that there is no particularly valuable resource in this part of the Caribbean to encourage more rapid progress. The islands of the Windward and Leeward chains generally form a geographic balance between each other and boundaries broadly based on equidistance should provide the required equitable result in most cases. There are questions over the effect, if any, of the use of archipelagic baselines in the determination of maritime boundaries as there are in other parts of the Caribbean, but this should not be an insurmountable problem. They key to progress is the political will to advance the generation of settled maritime boundaries. One of the key difficulties is the provision of legal and technical expertise in this area. Very few small island States and indeed some of the larger States within the region, have this resource. As stated above, the OECS attempted to help in this area in the 1990s and more recently the President of Mexico launched an initiative in the form a series of conferences and the provision of a secretariat on the furtherance of maritime boundary settlement73 in the Caribbean region as a whole. There have been two conferences to date in May 2002 and October 2003. Although this initiative is to be applauded, it is too early to judge whether it will prove to be successful.

7. CONCLUSIONS The Caribbean region is a large complex semi-enclosed sea with a mixture of large continental States, large island States, small island States and overseas territories of large metropolitan States. Maritime boundary delimitation in the area has been sporadic with intense periods of activity in the 1970s, largely 73

Undersecretary for Administrative Affairs, Ministry of Foreign Affairs, Press Release No. 085/02, dated 9 May 2002; Department of Legal Affairs and Services, Office of Inter-American Law and Programs, Organisation of American States, Report AG/RES.1902 (XXX11–O/02).


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concerning the continental States of South and Central America. This may have been due to the concurrent Third United Nations Conference on the Law of the Sea and the desire of States to confirm their maritime space prior to any firm recommendations concerning the delimitation of maritime boundaries that may have been forthcoming on the conclusion of the Conference and the opening for signature of UNCLOS. The 1980s was a quieter period, but again dominated by the mainland States. France was active in the eastern Caribbean with agreements with Venezuela, St. Lucia and Dominica. The 1990s saw a resurgence of Agreements, but once again the metropolitan States were largely responsible. The United Kingdom alone delimited five boundaries during this period. Of the independent States in the region, perhaps Jamaica was the most successful succeeding in reaching agreement with both Colombia and Cuba. Since the 1990s progress has been depressingly slow. It is difficult to pinpoint the reasons, but it would seem clear that all concerned, in particular the smaller nations have more urgent matters on their agendas. Political priorities fundamentally changed in September 2001 and this has affected the nations of the Caribbean as well as the rest of the World. With limited resources and expertise, this has bound to have had an effect on the delimitation programmes. There would appear to be a general lack of sustained political will to achieve maritime boundary solutions, without which no progress can be made. This maybe because without large natural resource potential in the eastern Caribbean in particular, the priorities to settle definitive maritime space is less of a priority than many other pressing requirements. In those areas where considerable difficulties have been experienced in the successful delimitation of maritime space, and where there has been political expediency to settle the disputes, some States have resorted to third Party adjudication. The two cases before the ICJ and the one Arbitration case currently taking place will settle these difficult areas. It is also to be hoped that progress can be made on the difficult issue of the Guatemala – Belize boundary, after the considerable efforts by the Organisation of American States and Honduras. The general trend for a median line based solution for the Caribbean area reflects a general world-wide trend in this direction. Where general geographic parity is apparent, and without any pressing external reason to unbalance the situation, this type of solution would seem to be extremely sensible. Clearly there are certain situations that are found in the Caribbean region that will need to be addressed in order to achieve equitable maritime boundary solutions. The question of Aves Island and its effect on boundary solutions and the status of the use of archipelagic baselines in the negotiation of maritime boundaries are two such areas that will prove a challenge. The use of some form of joint area, where either a sovereignty issue has been put to one side, or difficulty has been experienced in delimiting a single line, has been utilised in two areas within the region under discussion and in one area just beyond the borders of the Caribbean, namely Barbados – Guyana. It can be expected that this temporary solution will probably be used in the future within the region.

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The possibility of the joint management and control of the exclusive economic zones (EEZ) and extended fishery zones in the region has been discussed but very little progress has been achieved. This is disappointing because the sharing of expertise and costly control assets would seem to be a sensible step in both building confidence measures between the neighbouring States and economically sharing these valuable human and material resources. The Caribbean is a complex combination of mainland and island States surrounding a semi-enclosed sea. The progress of delimiting this area during the last three decades during a time of considerable development within international maritime law is impressive, but there is still much to do.

Recent Developments as regards Maritime Delimitation in the Adriatic Sea Tullio Scovazzi* 1. THE PRESENT SITUATION The Adriatic Sea can be considered as a semi-enclosed sea located within a bigger semi-enclosed sea (the Mediterranean).1 It is bordered by Italy along its West coast and by four successor States of the former Yugoslavia (Slovenia, Croatia, Bosnia-Herzegovina and Serbia-Montenegro) and Albania along its East coast. Four maritime boundaries have already been defined in the Adriatic Sea through treaties concluded by the interested States.2 Two delimitations relate to

* Professor of International Law, Faculty of Law, University of Milano-Bicocca, Milan, Italy. 1 See, in general, B. Vukas (ed.), The Legal Regime of Enclosed or Semi-Enclosed Seas (Zagreb, Birotechnika, 1988); M. Sersic, “The Adriatic Sea: A Semi-Enclosed Sea in a Semi-Enclosed Sea”, in: Cataldi (ed.), La Méditerranée et le droit de la mer à l’aube du 21ème siècle (Bruxelles, Bruylant), pp. 329–347. 2 Another delimitation, the 2002 Protocol between Croatia and Serbia-Montenegro on the Interim Regime along the Southern Border, is mentioned in the decision on the extension of the jurisdiction of Croatia in the Adriatic Sea (see infra, para. 3). The author of this study was however unable to consult the text of the Protocol.


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the territorial sea, namely Italy – Yugoslavia (treaty signed in Osimo on 10 November 1975)3 and Bosnia-Herzegovina – Croatia (treaty on the State border signed in Sarajevo on 30 July 1999),4 and two to the continental shelf, namely Italy – Yugoslavia (agreement signed in Rome on 8 January 1968)5 and Albania – Italy (agreement signed in Tirana on 18 December 1992).6 Today a number of legal questions need to be addressed as a consequence of the decision by which in 2003 Croatia established an ecological and fishing zone.

2. THE ECOLOGICAL AND FISHING ZONE ESTABLISHED BY CROATIA IN 2003 The Maritime Code of Croatia, adopted on 27 January 1994,7 includes several provisions on the exclusive economic zone (Articles 33–42). These provisions will become applicable when the Croatian Parliament takes the decision to proclaim such a zone (Art. 1042). Actually, on 3 October 2003, the Parliament 3 The delimitation is substantially based on equidistance, with some adjustments made in the light of the existence of straight baselines on the Italian side. The parties also took into consideration a special circumstance linked to navigation, which is the desire to guarantee that routes of navigation to and from the port of Trieste would be kept within the territorial sea of the State to which the port belonged (Italy). See T. Scovazzi, G. Francalanci, “Italy-Yugoslavia (Territorial Sea)”, in: J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries, Vol. II (Dordrecht, Martinus Nijhoff Publishers, 1993), Report 8–7 (2), pp. 1639–1647. 4 This maritime delimitation is to be understood in the light of the very particular case of the Bosnian coastline which consists in a narrow strip of about 20 km (called the Neum corridor) enclosed between two parts of Croatian territory. The Treaty delimits the territorial sea of Bosnia-Herzegovina and the internal maritime waters of Croatia. The method of delimitation is equidistance. See T. Scovazzi, G. Francalanci, “BosniaHerzegovina – Croatia”, in: J.I. Charney, R.W. Smith (eds.), International Maritime Boundaries, Vol. IV (The Hague, Martinus Nijhoff Publishers, 2002), Report 8–14, pp. 2887–2900. 5 The agreement basically applies the method of equidistance which was however modified to give a reduced effect to three Yugoslav islands and one Italian island located almost in the middle of the area to be delimited. See T. Scovazzi, G. Francalanci, “ItalyYugoslavia (Continental Shelf)”, in: J.I. Charney, op. cit., supra note 3, Vol. II, Report 8–7 (1), pp. 1627–1637. 6 The agreement applies the method of equidistance without adjustments. See T. Scovazzi, G. Francalanci, “Albania – Italy”, in: J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries, Vol. III (Dordrecht, Martinus Nijhoff Publishers, 1998), Report 8–11, pp. 2447–2456. 7 Narodne Novine of 7 March 1994 and, in English translation, U.N., Law of Sea Bulletin, No. 42, 2000, p. 26, and No. 43, 2000, p. 14.

Maritime Delimitation in the Adriatic Sea

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adopted a “decision on the extension of the jurisdiction of the Republic of Croatia in the Adriatic Sea”8 and proclaimed “the content of the exclusive economic zone related to the sovereign rights for the purpose of exploring and exploiting, conserving and managing the living resources beyond the outer limits of the territorial sea, as well as the jurisdiction with regard to marine scientific research and the protection and preservation of the marine environment, whereby the ecological and fisheries protection zone of the Republic of Croatia is established as of today” (Article 1). The Parliament also decided that “the implementation of the legal regime of the ecological and fisheries protection zone shall commence twelve months after its establishment” (Article 3), that is, on 4 October 2004. The Parliament reserved the right to proclaim, when it deemed appropriate, the other elements of the exclusive economic zone regime (Article 2). Yet the Croatian zone can be considered as a quasi-exclusive economic zone (or a de facto exclusive economic zone). The missing elements, namely sovereign rights “with regard to other activities for the economic exploitation and exploration of the zone, such as production of energy from the water, currents and winds” (see Article 56, paragraph 1 (a), of the 1982 United Nations Convention on the Law of the Sea9), seem for the time being devoid of substantial economic importance.10 Among the reasons stated in the preamble of the Croatian decision the following may be quoted: “Concerned by the fact that the living resources in the Adriatic Sea are seriously endangered, Considering the fact that in the past several years the fishing pressure of non-Adriatic and non-Mediterranean States, including the use of the so-called industrial vessels, has been growing, Aware of the fact that excessive exploitation of the living resources of the Adriatic Sea, due to the impossibility of applying the measures for planning, restricting and controlling the fisheries, mostly occurs in the part of the Adriatic under the high seas regime, Convinced that the continuation of such practices endangers the sustainable management of fish stocks and their sustainable exploitation and that it 8 Text in Croatian International Relations Review, No. 32, 2003, p. 48 (English translation). 9 Hereinafter: UNCLOS. 10 “What Croatia has done is to proclaim some segments of an EEZ [= exclusive economic zone], choosing only some of the rights that comprise a full EEZ regime under the UN Law of the Sea Convention. Some have said that this is 95% of the rights under an EEZ regime, others have stated that Croatia has opted for the main EEZ rights. The belief has been swiftly created, especially in certain official Croatian circles, that Croatia has in effect proclaimed an EEZ, though baptised under a different name.” (D. Vidas, “Global Trends in Use of the Seas and the Legitimacy of Croatia’s Extension of Jurisdiction in the Adriatic Sea”, 32 Croatian International Relations Review, 2003, p. 8).

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Tullio Scovazzi encourages illegal, unregulated and unregistered fishing and that it is detrimental to the interests of the Republic of Croatia and all Adriatic States, Bearing in mind that, according to the definition contained in the United Nations Law of the Sea Convention (Article 122), the Adriatic Sea is an enclosed or semienclosed sea, which, because of its small size, is far more vulnerable to pollution than is the case with other seas, Aware that a disaster, like the one involving the tanker ‘Prestige’, would have a devastating effect on the living resources of the Adriatic and would cause serious social and economic consequences to the coastal area of the entire Adriatic, including the Croatian economy in general and the Croatian tourism in particular, (. . .) Believing that the extension of national jurisdiction in the Mediterranean will create conditions for sustainable fisheries, contribute to efficient prevention of illegal, unregistered and unregulated fisheries, and lay foundations for productive bilateral and multilateral co-operation of the Mediterranean States, (. . .) Taking into account the interests of the Republic of Croatia to preserve traditional fisheries in the Adriatic as one of the principal preconditions for the development of tourism and as an incentive for the local population to remain on the islands, (. . .).”11

However, on 3 June 200412 the Croatian Parliament, amending its 2003 decision, decided to postpone the implementation of the ecological and fishing zone with regard to member States of the European Union: “With regard to member States of the European Union the implementation of the legal regime of the ecological and fisheries protection zone of the Republic of Croatia shall commence after the conclusion of the fisheries partnership agreement between the European Community and the Republic of Croatia.”

It follows that Croatia does implement the 2003 Decision as from 4 October 2004 only with regard to ships flying the flag of a State which is not a member of the European Union.13

3. QUESTIONS RAISED BY THE CROATIAN ENACTMENT As regards delimitation with adjacent or opposite States, the 2003 Croatian Decision provides as follows: 11

See also the report of the Croatian Government on the possibilities and effects of the extension of the jurisdiction of Croatia in the Adriatic, in: 32 Croatian International Relations Review, 2003, p. 50. 12 Narodne Novine No. 77/04 of 9 June 2004. 13 Including – it may be supposed – ships flying the flag of convenience of a nonmember State but linked to economic interests located within a member State (these ships should consider the possibility to opt for the flag of convenience of a European Union member State, if any!).


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“The ecological and fisheries protection zone of the Republic of Croatia comprises the maritime area from the outer limit of the territorial sea seaward up to its outer limit allowed under general international law. The outer limit of the ecological and fisheries protection zone of the Republic of Croatia shall be determined through the delimitation agreements with the States whose coasts are opposite or adjacent to the Croatian coast.” (Article 5) “Pending the conclusion of the delimitation agreements, the outer limits of the ecological and fisheries protection zone of the Republic of Croatia shall temporarily follow the delimitation line of the continental shelf established under the 1968 Agreement between the SFRY [= Socialist Federal Republic of Yugoslavia] and the Italian Republic on Delimitation of the Continental Shelf, and, in adjacent delimitation, the line following the direction of and continuing the provisional delimitation line of the territorial sea, as defined in the 2002 Protocol on the Interim Regime along the Southern Border between the Republic of Croatia and Serbia and Montenegro.” (Article 6)14

The 2003 Decision has met with the reactions by Slovenia and Italy, which have put forward a number of reasons that deserve a closer examination.

a) The Establishment of a Zone Prior to its Delimitation In a note sent to Croatia on 3 October 2003, Slovenia strongly protested against the 2003 Decision by Croatia as being “contrary to the general obligation of the Republic of Croatia under international law to refrain from any action that prevents or hinders the final enforcement of an agreed solution concerning the border at sea between the two States. With such a decision the Republic of Croatia has prejudiced the final enforcement of a consensual solution to the issue of the maritime boundary between the two countries and encroached on the area in which the Republic of Slovenia exercises its sovereignty and sovereign rights.”

In a note sent on 8 July 2004 to the UN Secretary-General, Croatia replied as follows: “The Republic of Croatia emphasizes that the said proclamation is without prejudice to the yet to be delimited sea border between the Republic of Croatia and the Republic of Slovenia. (. . .) Concerning the question of the delimitation at sea and failing to reach an agreement on this issue, the Republic of Croatia has on numerous occasions invited the Republic of Slovenia to submit the question of delimitation at sea between the two states to an international judicial body so as to come to a binding decision with

14

For the 2002 Protocol with Serbia-Montenegro, see supra note 2.

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Tullio Scovazzi regard to this issue. Till now the Republic of Slovenia has not accepted the aforementioned Croatian proposal.”

Negotiations for an agreement on the delimitation of the territorial sea have been carried on by the two countries for several years, until 2001 when a treaty on the State border was initialed. However, it was neither signed nor ratified by Croatia. The lack of any applicable agreement confirms that a dispute is pending between Croatia and Slovenia on the boundary of their territorial seas. This dispute, due to the position taken by Slovenia,15 has bearing also on the external limit of the Croatian ecological and fishing zone. However, the fact that a maritime boundary with a neighbouring State cannot be unilaterally delimited does not prevent a coastal State that can do so in its geographical situation to establish an exclusive economic zone (or other sui generis zone). The proclamation of the zone can be unilaterally effected, while the delimitation of its boundary cannot. Until a final agreement or settlement is reached, the limits of the Croatian ecological and fishing zone cannot be opposed to the other States concerned.16 Croatia and the neighbouring States are under an obligation to cooperate to reach an agreement in order to achieve an equitable solution (Article 74, paragraph 1, UNCLOS) or to enter into provisional arrangements of practical nature without prejudice to the final delimitation (Article 74, paragraph 3, UNCLOS). The provisional nature of the limits set forth by Croatia under the 2003 Decision, the one-year period of postponed implementation17 and the readiness to submit the question to an international judicial body are all elements that show the spirit of cooperation of Croatia in order to reach an agreement on its maritime boundary.

15

See infra, sub-para. c). As found many years ago by the International Court of Justice, “the delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law” (Judgment of 18 December 1951 on the Fisheries Case, I.C.J. Reports 1951, p. 132). 17 “(. . .) The said period shall be used for preparing the implementation mechanisms and for possible signing of agreements or making arrangements with interested States and the European Communities” (Art. 3 of the 2003 Decision). The period was further postponed as regards member States of the European Union (see supra para. 2). 16


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b) The Establishment of a Zone in Enclosed or Semi-Enclosed Seas In a note sent on 16 April 2004 to the UN Secretary-General, Italy stated as follows: “If the United Nations Convention on the Law of the Sea of 1982 recognizes to coastal States the right to establish exclusive economic zones or other zones of functional State jurisdiction more limited in scope, in its Part IX it makes reference to various forms of cooperation among coastal States in enclosed or semi-enclosed seas in situations in which the narrowness of marine spaces affects the claims of surrounding States to establish zones of functional jurisdiction beyond their territorial sea. To this end, Article 123 of the 1982 Convention poses on contracting States that are bordering or not bordering enclosed or semi-enclosed seas, the obligation to cooperate in the management, conservation, exploration or exploitation of living resources of the sea, in the protection and preservation of the marine environment and in scientific research, as a solution aimed at guaranteeing the respect of the various interests of the coastal States involved, thus in adherence to the spirit of the Convention. This obligation to cooperate does not cease if a coastal State bordering an enclosed or semi-enclosed basin decides to establish reserved zones of functional jurisdiction. The above mentioned obligation should consist in the specific obligation to cooperate in determining the limits of the zone of functional jurisdiction, i.e. in agreeing on those limits with other interested States, also in compliance with Article 74 of the 1982 Convention. The obligation to cooperate is even more evident in cases regarding enclosed or semi-enclosed basins that are particularly narrow, as is the case for the Adriatic Sea, where the proclamation of zones of functional jurisdiction beyond the territorial sea involves in a direct manner the interest of neighboring States. In those circumstances the coordination in determining the zone of functional jurisdiction is even indispensable.”

The meaning of the Italian note is not fully clear. If it meant that States bordering enclosed or semi-enclosed seas are under a special obligation to cooperate in the fields of fisheries, protection of the environment and marine scientific research, this would be a restatement of Article 123 UNCLOS and would have little relevance with respect to the determination of maritime boundaries.18 If the note meant that a State bordering an enclosed or semi-enclosed sea cannot proceed to establish its exclusive economic zone (or other sui generis zones) without the agreement of its neighbouring States, this would be wrong. It would be contrary to both the spirit and the letter of Article 123 UNCLOS

18 Art. 123 does not provide for a special obligation to cooperate as regards the delimitation of maritime boundaries. But such an obligation comes very clearly from Art. 74 and Art. 83 UNCLOS.

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and the UNCLOS provisions on the exclusive economic zone (Part V), which do not distinguish among different categories of seas. Nor does it appear that the States which have established exclusive economic zones (or other sui generis zones) in enclosed or semi-enclosed seas, such as the Baltic, the Caribbean or the Black Seas and the Mediterranean as well, have acted only after having sought and obtained the permission of their neighbours.19 If the note meant that Croatia did not show enough spirit of cooperation in order to negotiate with the other Adriatic States on the delimitation of its ecological and fishing zone, this would not appear to correspond to the actual facts. As already noticed,20 the limits set forth by Croatia under the 2003 Decision are provisional in nature and their implementation was postponed for a one-year period to enter into arrangements with interested States and the European Community.21

c) The Territorial Sea Boundary between Croatia and Slovenia Slovenia has a narrow coastline of 46.6 km. It borders the Gulf of Trieste which is also shared by Italy and Croatia. The land boundary between Croatia and Slovenia reaches the sea inside the Bay of Piran (a bay within the Gulf of Trieste). In 1975 the Treaty of Osimo set forth the territorial sea boundary between Italy and Yugoslavia, that is the predecessor State of both Croatia and Slovenia. Due to the geographical situation of the area, if the territorial sea between Croatia and Slovenia were delimited on the basis of equidistance Slovenia would be completely enclosed within the Gulf of Trieste. To enable Slovenia to reach the high seas in the Adriatic and be entitled to its own exclusive economic zone (or sui generis zone) a major departure from equidistance is required.22

19

“There are some elements in recent State practice that are giving rise to concern, especially as regards geographically complicated situations. Views have been expressed that in some regions, the proclamation of certain maritime zones foreseen by UNCLOS would be contrary to certain obligations under international law. It is the SecretaryGeneral’s belief that the rights and obligations under UNCLOS should not be regiondependent and that no additional conditions on the enjoyment by States parties of rights provided by UNCLOS should be imposed. Furthermore, States parties are bound to refrain from taking actions that would prevent another State party from enjoying its rights under its provisions. UNCLOS was not negotiated to correct geographical circumstances” (U.N., Oceans and the Law of the Sea – Report of the Secretary-General, Doc. A/59/62 of 4 March 2004, para. 41). 20 See supra sub-para. a). 21 The period was further postponed as regards member States of the European Union (see supra para. 2). 22 A set of relevant maps can be found in K. Turkaly, Piranski zaljev – Razgranicenje teritorijalnog mora izmedu Hrvatske i Slovemije (Zagreb, Organizator, 2001).


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In protesting against the Croatian ecological and fishing zone, Slovenia made the following statements (note of 7 November 2003): “The Republic of Slovenia has a direct territorial exit to the high seas and has the right to declare its own exclusive economic or ecological and fisheries protection zones. Slovenia has already exercised this right as one of the coastal Republics of the former Socialist Federal Republic of Yugoslavia and ever since its dissolution, and consequently has the same right also at present. According to the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, the Republic of Slovenia, as an independent State, assumed the rights and obligations relating to the territorial sea which were until then implemented with other federal units of the former common State. As a result, the Republic of Slovenia has preserved the existing Slovenian jurisdiction over the Bay of Piran and a direct territorial exit to the high seas. The Republic of Slovenia referred the above-mentioned facts and the acquired rights during the negotiations on the state border with the Republic of Croatia, which were conducted for several years and concluded in 2001 by the initialing of the Treaty on the State Border. The above-mentioned facts and positions of the Republic of Slovenia are considered in the Treaty, and the border at sea was defined on the basis of Article 15 of the United Nations Convention on the Law of the Sea, taking into account the historic title and other special circumstances as well as the principle of equity. The Treaty thus confirmed the right of the Republic of Slovenia to a direct territorial exit to the high seas, preserving at the same time the Republic of Croatia’s contact with the Italian Republic. The preservation of a direct territorial exit to the high seas is in the vital interest of the Republic of Slovenia, and it can therefore not accept and does not recognize any unilateral measures of the neighbouring State that would prejudice the final establishment of the border with the Republic of Croatia. Since the border has not yet been finally established, although it has been defined in the initialed Treaty on the Common State Border, the unilateral declaration of an ecological and fisheries protection zone in the Adriatic Sea by the Republic of Croatia represents a violation of the obligations of the Republic of Croatia under international law. Such a decision prejudices the border at sea and encroaches on the area in which the Republic of Slovenia exercises its sovereignty and sovereign rights.”

By excluding the possibility of a boundary with Slovenia, the 2003 Decision by Croatia implicitly also excludes that the waters falling under the Slovenian territorial sea could extend as far as reaching the high seas (or the sui generis zone) in the Adriatic. In particular, as stated in the Croatian note of 8 July 2004, “(. . .) the Republic of Slovenia, neither as a part of the former SFRY nor as a sovereign State, has never had a direct territorial exit to the high seas not has it acquired one since the dissolution of the former SFRY. Consequently, the Republic of Slovenia has never had its own continental shelf nor has acquired the right to declare its own exclusive economic zone. The borders between the republics of the former SFRY existed only on land. (. . .) As borders on the sea between the republics of the former SFRY did not exist, they should be defined in accordance with international law, as codified in the

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Tullio Scovazzi United Nations Convention on the Law of the Sea, to which the Republics of Croatia and Slovenia are both parties. Negotiations on the delimitation of the sea border have been conducted for several years. No mutually accepted agreement has been reached, and no treaty has been signed. The Republic of Slovenia has on numerous occasions clearly stated that it considers itself as a State in a geographically disadvantaged position with reference to its inability to proclaim an exclusive economic zone. In its Memorandum on the Piran Bay of 1993, when considering the delimitation issue with the Republic of Croatia, the Slovenian Parliament confirmed the fact that the Republic of Slovenia belongs to those States which, because of their geographical position, are not entitled to proclaim an exclusive economic zone. In conformity with this position, the Slovenian Maritime Code regulated the legal regime of the internal waters and the territorial sea of the Republic of Slovenia only, while its final provisions stipulated that the Law on the Continental Shelf which had been in force in the former SFRY, cease to have effect with the entry into force of this Code. Contrary to this longstanding position, although the relevant geographical circumstances remain the same, the Government of the Republic of Slovenia has recently changed its position concerning its right to extend jurisdiction and exercise the sovereign rights beyond the outer limit of its territorial sea. At the beginning of this year, it even amended the aforementioned Maritime Code, now stating that the Republic of Slovenia has the right to proclaim its own exclusive economic or ecological and fisheries protection zone. Thirteen years after becoming a sovereign State the Republic of Slovenia has decided to change its position and on that basis has protested against the proclamation of the Ecological and Fisheries Protection Zone of the Republic of Croatia. The actions of the Republic of Slovenia can only be understood as Slovenian pretensions to the areas under the sovereignty or sovereign rights of the Republic of Croatia and are as such contrary to international law and totally unacceptable for the Republic of Croatia. (. . .) The only way in which the Republic of Slovenia can gain territorial access to the high seas is by crossing the territorial sea of the Republic of Croatia in front of the Croatian coast. The United Nations Convention on the Law of the Sea provides adequate remedies to situations where States are at disadvantage, but was not negotiated to correct geographical circumstances. In this respect, the Republic of Croatia has always been and is ready to cooperate with its neighbours in particular accordance with the Article 123 of the United Nations Convention on the Law of the Sea.” 23

d) A Single Boundary for the Seabed and the Superjacent Waters? In the above mentioned note of 16 April 2004, Italy took a position also on the possibility to extend to the superjacent waters a boundary that had been previously agreed upon only for the continental shelf:

23

On this question see also the note of Slovenia of 30 August 2004.


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“(. . .) in any case the determination, in a temporary manner – implementing Article 74 of the 1982 Convention – of the limits of the ecological and fisheries protection zone coinciding with the delimitation contained in the 1968 Agreement concluded between Italy and the Socialist Federal Republic of Yugoslavia, concerning the continental shelf, is against Italian interests in the Adriatic Sea. In fact, the automatic extension of the delimitation of the seabed, agreed in 1968, is not legally well founded because that limit was agreed on the basis of special circumstances that differ from the circumstances to be considered in the determination of superjacent waters. Furthermore, the 1968 delimitation was agreed in a moment in which the notion of the exclusive economic zone was not well defined in the international law of the sea. That automatic extension is against Italian interests because it does not take into account the change of relevant geographical circumstances that took place after the conclusion of the 1968 Agreement, which implies a consequential change of the objective parameter of the median line.” 24

In principle, the Italian position seems to be based on solid legal and logical foundations. Also in the light of the rules on the interpretation of treaties, it cannot be presumed that a delimitation effected for a certain maritime jurisdictional zone can be unilaterally and subsequently extended to another zone which did not even exist at the time of the first delimitation. Even though the wording of Article 74 and Article 83 UNCLOS (relating to the delimitation of, respectively, the exclusive economic zone and the continental shelf) is identical, the substantive content of the two provisions is different. What constitutes an equitable solution with regard to the continental shelf and the circumstances relevant to it might not be such with regard to the exclusive economic zone (or a sui generis zone) and the circumstances relevant to the latter. In dealing with this kind of questions, the chronological factor deserves also to be taken into careful consideration. In 1968, when the agreement between Italy and Yugoslavia was concluded, the notion itself of exclusive economic zone had not yet gained general acceptance in international practice and was supported only by a certain number of developing coastal States. Until 1975,25 the existence of a customary rule of international law allowing coastal States to establish an exclusive economic zone was highly uncertain and subject to fierce intergovernmental discussion. How could States which were in that period negotiating agreements only for a seabed boundary (especially States which, like Italy, were basically against the notion of an exclusive economic zone) be presumed to have settled also the boundary for the superjacent waters? As noted in the Arbitral Award rendered in 1989 in the case between GuineaBissau and Senegal, 24

The last sentence of the passage quoted in the text does not seem clear. What change of relevant geographical circumstances has taken place? 25 When, during the negotiations for the future UNCLOS, also the major maritime powers accepted the exclusive economic zone as an element of a broader “package deal”.

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Tullio Scovazzi “à la lumière de son texte et des principes de droit intertemporel applicables, le Tribunal estime que l’Accord de 1960 ne délimite pas les espaces maritimes qui n’existaient pas à cette date, qu’on les appelle zone économique exclusive, zone de pêche ou autrement.” 26

The considerations above do not exclude that a single maritime boundary, applying to all kinds of maritime jurisdictional zones, is more suitable for evident practical reasons.27 Nor do they deny that, in certain cases, States which have concluded an agreement applying to the seabed have also bound themselves to follow the same boundary if other maritime jurisdiction zones were to be established in the future. The point is simply that, where an agreement refers to a certain zone (and an intention of the parties to the contrary is not explicitly stated), it cannot be automatically and unilaterally extended to other zones. Such an interpretation would be contrary to the intention of the parties and would go against the ordinary meaning to be given to the terms of a treaty in their context and in the light of its object and purpose (see Article 31, paragraph 1, of the 1969 Vienna Convention on the Law of Treaties). Although seldom, in certain cases States have concluded two subsequent treaties which provide for two different boundaries, depending on the nature of the marine jurisdictional zones concerned.28 This said, a number of considerations can be added in the light of the specific circumstances. First, as already pointed out,29 the limits set forth by Croatia under the 2003 Decision are provisional in nature and their implementation has been postponed as regards member States of the European Union. Second, Italy should specify what other limit is more in conformity with the special circumstances related to the water column. Third, unlike what happens in the case of another maritime delimitation concluded in the same period (the 1971 Agreement between Italy and Tunisia),30 the 1968 Agreement between Italy and Yugoslavia provides for a boundary line which is more favourable to Italy with

26

Rivista di Diritto Internazionale, 1991, p. 635 (para. 65 of the award). For instance, in the case of a dual boundary, the State entitled to grant concessions for oil exploitation on the seabed would be different from the State entitled to grant licenses for fishing in the superjacent waters. But the two activities could conflict. 28 The Agreement between Australia and Indonesia signed on 14 March 1997 provides for a boundary of the exclusive economic zone which is different from the boundary established for the continental shelf under the previous Agreements of 8 August 1974 and 14 January 1977. The Agreement between the German Democratic Republic and Poland signed in 1989 provides for a single maritime boundary for both the continental shelf and the fishing zone which is different from the boundary established for the continental shelf under the previous Agreement of 1968. 29 See supra sub-para. b). 30 See T. Scovazzi, G. Francalanci, “Italy – Tunisia”, in: J.I. Charney, op. cit., supra note 3, Vol. II, Report 8–6, pp. 1611–1625. 27


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respect to what would result from the application of a strict equidistance method, as it gives a reduced effect to some Yugoslav (and today Croatian) islands located in area to be delimited.31

e) Delimitations between “Presential” and “Absential” States In the above mentioned note of 8 July 2004 Croatia made the following statement: “The outer limit of the Ecological and Fisheries Protection zone of the Republic of Croatia shall be determined through delimitation agreements with those States whose coasts are opposite or adjacent to the Croatian coast, once they extend their jurisdiction in accordance with the international law, as well. Pending the conclusion of the delimitation agreements, the limits of the Ecological and Fisheries Protection Zone of the Republic of Croatia temporarily follow the delimitation line of the Continental Shelf between the Republic of Croatia and the Italian Republic, and, in adjacent delimitation, the line following the direction and continuing on the provisional delimitation line of the territorial sea between the Republic of Croatia and Serbia and Montenegro.”

In general, the process of unilaterally establishing a provisional delimitation pending a final settlement with the States concerned does not conflict with the obligation to co-operate in the determination of maritime boundaries, provided that the provisional delimitation does not go beyond what is reasonable in the specific circumstances. It is however questionable that, as the note by Croatia seems to imply, the final settlement can take place only after the establishment of a corresponding maritime jurisdictional zone by the adjacent or opposed States (in fact, Italy has not yet established either an exclusive economic zone or a sui generis zone). Neighbouring States, even if they have an “absential” attitude,32 are inevitably affected by questions relating to the legal condition of the waters that are claimed by “presential” States and which might pertain to their potential exclusive economic zone (or fishing zone or ecological zone). They seem thus entitled to negotiate and conclude a final settlement, even before the time they actually proceed to the establishment of their corresponding zone. Nothing prevents the conclusion of a treaty by which the “presential” State engages itself not to go beyond a boundary line agreed upon with an adjacent or opposed “absential” State. 31 For some different considerations see G. Castaldi, “L’Italia e la delimitazione degli spazi marini – Osservazioni sulla prassi recente di estensione della giurisdizione costiera nel Mediterraneo”, Rivista di Diritto Internazionale, 2004, p. 621. 32 The Mediterranean has been called an “absential sea”, as some coastal States, which could be “present” by going beyond the 12-mile limit and establishing their own exclusive economic zones, prefer to remain “absent”.

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4. MOVING TOWARDS CONFUSION? The impression arising from the general picture is that, from the point of view of international law of the sea, the Adriatic is a complex region. But the same can be said as regards the Mediterranean Sea in general. Not only do thorny issues of maritime delimitation remain to be sooner or later addressed by the States concerned, but also the existence along the shores of “presential”, “absential” and “semi-presential” (or, depending on the point of view, “semiabsential”) States, as regards the question of going beyond the 12-mile limit, does not facilitate the determination of the legal regime presently applying to the Mediterranean Sea (or the Adriatic Sea) as a whole. It is easy to remark that the Mediterranean (or the Adriatic Sea) is undergoing an evolutionary phase of transition. But the doubt remains as to where the present evolution can lead. The report prepared in 2004 by the United Nations Secretary-General on “Oceans and the Law of the Sea” contains the following statement: “Regarding implementation at the national level, another disturbing element of State practice was to proclaim a de facto exclusive economic zone under various other denominations. Although the legal regime of such zones may well be identical to the regime of an exclusive economic zone or at least not in contravention of it, the introduction of new denominations is bound to create confusion or uncertainty, especially as to the rights and obligations of other States. Such a potential confusion is entirely avoidable, since there are no legal impediments for any State party that can do so in its geographical situation to proclaim an exclusive economic zone and to use the term established in the Convention. As the entities primarily responsible for the orderly implementation of the law of the sea regime, States parties should make sure that there is no further erosion of rights and obligations, that their actions in UNCLOS implementation are sufficiently transparent and that all their bilateral problems are dealt with on the basis of UNCLOS through means provided by it.”33

It is not clear whether the passage above intends to make an implicit reference to recent practice in the Mediterranean (or the Adriatic). But nothing in the UNCLOS or in customary international law prevents the establishment of special (or sui generis) zones beyond the 12-mile limit of the territorial sea, such as fishing zones or ecological zones, where the coastal States choose to exercise only some of the competences to which they are entitled under a full exclusive economic zone regime. It is difficult to see how this could become an erosion of rights and obligations granted by the UNCLOS (and to take it for granted, like in the passage of the report reproduced above, seems an unwarranted conclusion). Time will tell whether the present Mediterranean (or

33 U.N., Oceans and the Law of the Sea – Report of the Secretary-General, Doc. A/59/62 of 4 March 2004, para. 42.


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Adriatic) trend towards a variety of marine jurisdictional zones will lead to “confusion and uncertainty”. But it cannot be denied that the risk of “confusion and uncertainty” exists, unless the Mediterranean (or Adriatic) States can reach a general understanding on a unitary “presential” scheme based on the general interest of their common sea as a whole.34

34 Be it the exclusive economic zone scheme or the fishing zone scheme or the ecological zone scheme, a return to an “absential” scheme (that is a high seas regime) does not seem practically feasible.

Maritime Delimitation in a Semi-enclosed Sea: The Case of the Adriatic Sea Budislav Vukas* I . INTRODUCTION 1. The definition of “enclosed or semi-enclosed seas”, contained in Article 122 of the United Nations Convention on the Law of the Sea (LOS Convention), is the result of long, mostly informal negotiations and compromises, agreed upon at the Third United Nations Conference on the Law of the Sea (UNCLOS III). The result of those negotiations is a vague text of Article 122, which does not clarify even the question whether it concerns too categories of seas – “enclosed” and “semi-enclosed” seas – or one, for which either of the two terms can be used.1 Be that as it may, the Adriatic Sea possesses all the characteristics of “enclosed or semi-enclosed seas” listed in Article 122: it is surrounded by

* Judge of the International Tribunal for the Law of the Sea 1996–2005 (VicePresident 2002–2005). 1 Definition in Article 122: “For the purposes of this Convention, ‘enclosed or semienclosed sea’ means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.”


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seven States; it is connected to the central part of the Mediterranean by a narrow outlet (the Strait of Otranto); it consists primarily of the territorial seas and exclusive economic zones (for the time being: only one ecological and fisheries protection zone) of the coastal States. Just in order to simplify the terminology used in this article, for the Adriatic Sea we will use the term “semi-enclosed sea”. 2. In discussing the rules on “enclosed or semi-enclosed seas” at UNCLOS III, there were States (Iran, Thailand, Turkey) which insisted in having specific rules on sea boundary delimitation for such seas.2 However, this goal was unrealistic. The general rules on delimitation were one of the hard-core issues at the Conference, and the elaboration of special rules on the delimitation of marine spaces in enclosed or semi-enclosed seas would have been too difficult a task for UNCLOS III. Therefore, the general rules on the delimitation of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf, adopted in the 1958 and 1982 Law of the Sea Conventions, apply to all the seas and oceans, whatever their denomination. 3. Taking into account the fact that there are participants from other Adriatic States in this Symposium, I will limit my contribution to the sea boundary delimitation of Croatia with its neighbors: Italy, Slovenia, Bosnia and Herzegovina, and Serbia and Montenegro.

II. CROATIA – ITALY 1. There are two treaties on sea boundary delimitation concluded between the SFR of Yugoslavia and the Italian Republic, which even today are relevant for the delimitation of the sea areas under the sovereignty/jurisdiction of Italy and Croatia: the 1968 Agreement on the Delimitation of the Continental Shelf,3 and the 1975 (Osimo) Agreement, which delimited the territorial sea of the two States in the Gulf of Trieste.4 Both treaties are in force between Italy and the successor States of the SFR of Yugoslavia on the basis of Article 11 of the 1978 Vienna Convention on the Succession of Treaties, which states that “A succession of States does not as such affect . . . a boundary established by a treaty”. On the basis of this rule,

2 UNCLOS III, Official Records, Vol. III, pp. 273–275. See also: B. Vukas, “Enclosed and Semi-enclosed Seas”, Iranian Review of International Relations, Nos. 11–12, Spring 1998, pp. 171–196, at pp. 192–193. 3 SluÏzbeni list SFRJ, Dodatak: Me¥unarodni ugovori i drugi sporazumi (Official Gazette of the SFRY, Annex: International Treaties and Other Agreements), No. 28/ 1970. 4 Ibid., No. 1/1977.

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and the specific geographical situation of these neighboring States, the 1968 Agreement continues to delimit the continental shelf between Italy and Croatia (and Serbia and Montenegro) throughout the Adriatic Sea. The 1975 Agreement delimits the territorial sea between Italy and Croatia (and Slovenia) in the Gulf of Trieste (see Map 1). 2. The delimitation line between Italy and Yugoslavia was 353 nautical miles long, and it connected 43 points determined from the end of the line delimiting the territorial sea between the two States, to a point opposite to the end of the coast of Montenegro. The delimitation was mostly based on the median line between the basic lines from which the territorial sea of Yugoslavia and Italy were measured. Such a solution was in accordance with the 1958 Convention on the Continental Shelf, according to which the median line was the basic principle for the delimitation of the continental shelf between States with opposite coasts (Article 6). In order to simplify the delimitation line, the effect of the position of the Yugoslav islands was reduced, and as a consequence thereof Italy gained 2.664 km2 with respect to the strict application of the median line.5 3. In the Gulf of Trieste, at the time of the conclusion of the Italo-Yugoslav Agreement on the delimitation of the territorial sea, only Italy had determined straight baselines along its coasts. In determining the delimitation line the two States gave only a semi-effect to these straight baselines, and they tried to enable navigation of each of the two States through its own waters. 4. For the time being neither Italy nor Croatia have proclaimed their contiguous zones. However, in its Legislative Decree No. 41 of 22 January 2004 (Article 94), Italy stated that it protected objects of an archeological and historical nature found on the sea-bed up to 12 nautical miles from the outer limit of its territorial sea.6 Italy bases this extension on the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage and on Article 303, paragraph 2, of the LOS Convention. This right of the coastal States under the LOS Convention is based on the regime of the contiguous zone (Article 33).7 Taking into account this Italian measure, it is logical to expect that in the future Croatia will also proclaim the same rights as Italy, or it will establish its full fledged contiguous zone. But, even before such an extension of the Croatian jurisdiction, Italy cannot extend its jurisdiction concerning the protection of archeological and historical objects everywhere up to 12 nautical miles from the outer limit of its territorial sea. Namely, in some narrow Adriatic areas this would mean coming too close to the Croatian territorial sea, and not permitting the establishment of equal rights of Croatia, or even overlapping with the Croatian territorial sea. 5

D. Rudolf, Me¥unarodno pravo mora (Zagreb, JAZU, 1985), pp. 289–291. Gazetta officiale della Repubblica Italiana, Supplement No. 45 of 24 February 2004. 7 R. Garabello, La convenzione Unesco sulla protezione del patrimonio culturale subaqueo (Milano, Guiffrè Editore, 2004), pp. 163–165. 6

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However, in the LOS Convention there is no rule on the delimitation of the contiguous zone of States with adjacent or opposite coasts. Contrary to the 1958 UN Conference on the Law of the Sea, UNCLOS III neglected this problem and the voices of some delegations requiring a rule on the delimitation of the contiguous zone.8 In such a situation, not having a new rule on the issue, but also no decision that the contiguous zones of two States can overlap, one has to apply the rule on delimitation contained in Article 24, paragraph 3, of the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which both States are parties. According to that rule, failing agreement to the contrary, neither of the two States is entitled “to extend its contiguous zone beyond the median line every point of which is equidistant from nearest point of the baselines from which the breadth of the territorial sea of the two States is measured”. Although Italy and Croatia are parties to the LOS Convention, this does not mean that rules from the 1958 Conventions, which are not contrary to the 1982 Convention, cannot be applied even after the entry into force of this new Convention. Namely, according to Article 311, paragraph 1, of the LOS Convention, this Convention only prevails “as between States Parties, over the Geneva Conventions . . .”, and it does not prevent the application of the 1958 Conventions in respect of issues not dealt with by the 1982 Convention. Moreover, the regime of the contiguous zone is closely connected to the territorial sea, and therefore the application of the same basic principle of the median line to both regimes is logical. In this sense, one of the Italian draft laws preceding the mentioned 2004 Legislative Decree foresaw the median line delimitation in case the Italian archeological zone overlapped with a similar zone or the territorial sea of a neighboring country.9 5. Another delimitation problem to be resolved between Croatia and Italy has been created by the establishment of the Croatian “ecological and fisheries protection zone” (EFPZ). This zone, which includes parts of the coastal States’ rights contained in the regime of the exclusive economic zone (EEZ), was proclaimed by the Croatian Parliament on 3 October 2003.10 In addition to the description of the sovereign rights and jurisdiction Croatia claims in this zone, the 2003 Decision contains a statement concerning the delimitation of this zone with neighboring States: Italy, and Serbia and Montenegro.

8 B. Vukas, “The LOS Convention and Sea Boundary Delimitation”, in: B. Vukas, Essays on the New Law of the Sea, Institute of International Law (Zagreb, Sveucilisna naklada Liber, 1985), pp. 147–185, at pp. 156–166. 9 R. Garabello, op. cit., supra note 7, at p. 164. 10 Decision on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea, File No.: 302–01/03–01/02; translation into English published in: Croatian International Relations Review, Vol. IX, No. 32–2003, Dossier, pp. 48–49.


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In respect of the final delimitation it has been stated that the outer limits of the Croatian zone “shall be determined through the delimitation agreements with the States whose coasts are opposite or adjacent to the Croatian coasts” (point 5 of the Decision). Pending the conclusion of the delimitation agreement, in respect of Italy the outer limit of the Croatian EFPZ “shall temporarily follow the delimitation line of the continental shelf established in the 1968 Agreement between the SFRY and the Italian Republic on the Delimitation of the Continental Shelf ” (point 6). Italy disliked this statement concerning provisional delimitation, and it objected to it in a letter sent to the UN Secretariat. It stated that the use of the 1968 delimitation line “is against Italian interests because it does not take into account the change in relevant geographical circumstances that took place after the conclusion of the 1968 Agreement which implies a consequential change of the objective parameter of the median line” (emphasis added).11 The unclear reference to geography probably refers to political geography, and not to physical geography as, at least for the time being, there have not been catastrophic earthquakes, tsunamis or volcanic eruptions, which would have changed the shape of the Adriatic coasts. Italy probably refers to the political consequences of the dissolution of the SFR of Yugoslavia, but it is difficult to understand how the establishment of new States within the borders of the former Yugoslav Federation influences the delimitation interests of Italy in the middle of the Adriatic Sea. Anyhow, the Italian objection is a confirmation of its intention to seek a delimitation of the EEZ which departs from the 1968 delimitation of the continental shelf. Yet, it has to be seen in how far Italy could advance relevant and convincing arguments in its will to depart from the 1968 delimitation. Be that as it may, having mentioned the provisional delimitation with Italy (and Montenegro) in accordance with Article 74, paragraph 3, of the LOS Convention, Croatia should have mentioned the possibility of concluding provisional arrangements pending the conclusion of the final agreements of delimitation.

III. CROATIA – SLOVENIA 1. Since the proclamation of the independence of Croatia and Slovenia (on 25 June 1991), the two States confirmed not having any mutual territorial pretensions. The basis for the delimitation between them had to be the borders which separated them as federal units of the SFR of Yugoslavia. This position, based on the principle uti possidetis was confirmed also by the so called Badinter 11 Letter No. 1681, sent on 16 April 2004 by the Permanent Mission of Italy to the United Nations to the Secretariat of the United Nations, New York.

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Arbitration Commission, entrusted with giving legal opinions to the Conference on Yugoslavia, organized by the European Community.12 However, the application of the principle uti possidetis to sea boundary delimitation was not possible as, contrary to the border on land, delimitation between the Republics of Yugoslavia at sea had never formally been determined. Yet, the coastal Republics, and particularly their local administrative units/municipalities, were aware of the sea areas in respect of which they were in charge. 2. Already in the early nineties, immediately after the recognition of the independence of the two States by the European Community, Croatia and Slovenia started organizing meetings of experts in order to determine all the details of the land frontier and to establish the sea boundary. In respect of the delimitation line on land there have not been major problems. The land frontier ends on the mouth of the river Dragonja, in the middle of the shore of the Bay of Piran. The two States disagreed with regard to the question whether the channel of St. Odorik or the channel of St. Jeronim represented the border between the two former Yugoslav Republics. Moreover, they disagreed on the belonging of three villages in this area. 3. As far as sea boundary delimitation was concerned, at the beginning of the negotiations between the two States (both parties to the 1958 Convention on the Territorial Sea and the Contiguous Zone and contracting States to the LOS Convention, which at that time was not yet in force), it seemed that there would be no disagreement on the application of Article 12 of the Geneva Convention (Article 15 of the LOS Convention), both in the Bay of Piran as well as beyond the entrance into the Bay, up to the delimitation line of the territorial sea with Italy. After a certain period of time, when the two delegations concentrated their work on sea boundary delimitation, the representatives of Slovenia demonstrated the first signs of hesitation in respect of the application of Article 15 and its basic principle – the median line. That is why the representatives of the two States on several occasions discussed the possibility of establishing their condominium in the Bay of Piran (see Map 2). 4. However, a Slovenian document has drastically changed the nature of the discussions of the two delegations, and has affected the flexibility in their proposals and comments. Namely, on 7 April 1993, the Slovenian Parliament adopted the Memorandum on the Bay of Piran, which indicated the goals of Slovenia in the negotiations with Croatia.13

12

Conference on Yugoslavia, Arbitration Commission, Opinion No. 2, paragraph 1; Opinion No. 3, paragraph 2 (3), 31 International Legal Materials, 1992, p. 1498 and p. 1500. 13 A translation of the Memorandum into Croatian can be found in: V. Ibler, Me¥unarodno pravo mora i Hrvatska (Zagreb, Barbat, 2001), pp. 553–554.


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The Slovenian Parliament stated that the Bay of Piran was a case sui generis to which, on the basis of “a historic title and other special circumstances”, the principle uti possidetis should apply. The application of this principle means the preservation of the “sovereignty and jurisdiction” of Slovenia over the entire waters of the Bay. The application of the median line, in the opinion of the Slovenian Parliament, would be “unjust, unnatural and contrary to the historical and present realities in the Bay of Piran”. Outside the Bay, in delimiting the territorial sea with Croatia, special circumstances should be taken into account, and particularly the fact that Slovenia is a geographically disadvantaged State not having the possibility of claiming an EEZ of its own. The Memorandum also mentioned the necessity of establishing a narrow outlet, which would be a link between the territorial sea of Slovenia and the high seas in the Adriatic Sea, in order to ensure the connection of Slovenia with the rest of the world, and particularly the continuation of the freedom of fishing for the Slovenian fishermen on the Adriatic high seas. Although the idea of that unnecessary corridor has become the stumbling block in the following negotiations with Croatia, in the present brief paper, dedicated exclusively to delimitation, I will neglect this proposal, as well as all the other arguments and documents concerning navigation and fisheries as far as they do not directly influence the problem of delimitation. 5. A formal response of the Croatian Parliament came only in 1999.14 It saw no special circumstances in favor of Slovenia, which would prevent the application of the median line delimitation in the Bay of Piran, and beyond its entrance. Due to the many years wasted in the negotiations and political debates, it suggested to request an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) or some other competent international institution. 6. Instead of trying to find a way for requesting an advisory opinion from the ITLOS, the two States agreed in 1999 to seek the help of the former Secretary of Defense of the USA, Mr. William Perry. As his role was not to propose to the two States his own ideas concerning their delimitation but just to encourage and help with his presence the discussions of the two States, his mission could be qualified as “good services”. However, instead of coming closer, the two neighboring States tried to find new arguments for their positions. Slovenia introduced a new argument, going beyond the limits of the law of the sea. Namely, it insisted in qualifying all the problems it faced in respect of the delimitation of the sea areas, and the uses of the sea, as problems of succession of the SFR of Yugoslavia. As a consequence of such an approach, Slovenia in fact rejected the application of the relevant

14 Declaration on the State of Inter-state Relations between the Republic of Croatia and the Republic of Slovenia, adopted by the House of Representatives of the Croatian Parliament on 26 March 1999; File No.: 018–01/99–01/05.

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provisions of the LOS Convention which determine the relation of coastal States and their territorial sea, and suggested solutions concerning delimitation and navigation which would preserve the rights it enjoyed as a Yugoslav Republic. On the other hand, it continued to consider the entire Bay of Piran as Slovenian internal waters. It advanced a variety of arguments supporting this strange claim: the former cadastral boundaries, the Slovenian nationality of the inhabitants in the coastal areas, its efforts in the protection of the marine environment, etc.15 In defending its rights as a coastal State in the Bay of Piran, Croatia claimed that Article 2 of the LOS Convention, which extends the sovereignty of the coastal State to its territorial sea, possesses the nature of a peremptory norm (ius cogens).16 The sovereignty of the coastal State is not a privilege, but a natural relation in respect of the adjacent waters, as it is only the coastal State that is in the position to regulate and control navigation in the vicinity of its coasts, to protect the marine environment from land-based sources, etc. Croatian authorities have always been engaged in all such activities in the southern half of the Bay of Piran.17 Croatia showed no sympathy for the Slovenian innovative approach to State succession, according to which the Adriatic problems should be resolved as a subject of succession of the former SFR of Yugoslavia.18 On the other hand, Slovenia stated that Article 2 of the LOS Convention was not a peremptory norm, but only a dispositive rule. Moreover, it considered that it could unilaterally depart from its application in the Bay of Piran.19 However, Croatia was ready to depart from the application of the median line in favor of Slovenia in the delimitation of the Bay of Piran or, as an alternative solution, to agree on a condominium of the two States. As the positions of the two States were not coming closer, the meetings under the chairmanship of Mr. Perry came to an end. 7. On 20 July 2001, the misunderstanding between the two States reached a new level, when their representatives initialed a draft treaty on land and sea frontiers. Namely, concerning sea boundary delimitation, the draft contained unusual solutions. As far as the Bay of Piran was concerned, Slovenia had to gain 80% of its surface, and Croatia 20%. For unknown reasons, the line delimiting the waters 15

Republic of Slovenia, Ministry of Foreign Affairs, Positions of the Republic of Slovenia on the Delimitation of the Maritime Boundary between the Republic of Slovenia and the Republic of Croatia, June 1999. 16 Republic of Croatia, Ministry of Foreign Affairs, Positions of the Republic of Croatia on the Delimitation at Sea with the Republic of Slovenia, 7 June 1999. 17 V. Ibler, op. cit., supra note 13, pp. 145–148 and pp. 182–184. 18 Ibid., pp. 173–179. 19 Ibid., pp. 179–182.


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of the two States in the Bay had not to be continued in the direction of the common border with Italy, but for that delimitation a parallel was used. This solution would have given to Slovenia a significant part of the Croatian territorial sea. A specific component of the draft treaty was a corridor, which had to cross the territorial sea of Croatia off the coasts of Western Istria. The surface of the corridor had to be under the regime of the high seas. As I limit my comments to delimitation problems, I will not discuss neither the complicated legal nature foreseen for the various strata of that corridor, nor its scope. Be that as it may, the establishment of that corridor would have separated a small part of the Croatian territorial sea, close to the delimitation line with Italy, from the rest of the Croatian territorial sea! However, the two Governments have not undertaken any further steps in respect of the draft treaty containing such strange provisions on the sea areas between Slovenia and Croatia. When the Croatian experts and the general public were informed about the proposed solutions, the Croatian Government did not dare to continue the process of the conclusion of the treaty; it has never been signed and/or ratified. Nevertheless, some Slovenian commentators consider the 2001 draft treaty as an existing international legal instrument determining the maritime border between the two States. 8. A new disturbing element in respect of the delimitation with Croatia has been felt by Slovenia since the establishment of the Croatian EFPZ. Namely, as we have already seen, the Croatian 2003 Decision on the EFPZ only mentions the delimitation with Italy and Serbia and Montenegro. Slovenia has not been mentioned because it is separated from the area of the Adriatic Sea which has been included in the Croatian EFPZ by the Croatian territorial sea. However, in a letter to the Secretary-General of the United Nations which has to be considered as a misinterpretation of the law of the sea, of international rules on succession and of the law of treaties, Slovenia “protested against the unilateral declaration” of an EFPZ, and added the following: The Republic of Slovenia has a direct territorial exit to the high seas and has the right to declare its own exclusive economic or ecological and fisheries protection zones. Slovenia already exercised this right as one of the coastal republics of the former Socialist Federal Republic of Yugoslavia and ever since its dissolution, and, consequently, has the same right also at present. (emphasis added)20

In addition to the above remarks concerning this strange text, I have to remind the readers of the already quoted 1993 Memorandum adopted by the Slovenian Parliament, where it was said that “Slovenia is a geographically disadvantaged State, not having the possibility of claiming an exclusive economic zone of its

20 Permanent Mission of Slovenia to the United Nations, No.: N-359/03, New York, 7 November 2003.

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own” (emphasis added).21 As in the meantime there have not been dramatic changes in the configuration of the coasts in the Gulf of Trieste, this change of the position concerning the Slovenian EEZ can be explained as a wishful thinking on the basis of the misinterpretation of the law on State succession and the effect of the corridor proposed by Slovenia. 9. As I have already qualified the idea of the sovereignty of only one coastal State over the entire waters of the Bay of Piran as unsound and contrary to a peremptory norm of international law, I must also express my disagreement with the claim that there was no delimitation at all between Slovenia and Croatia during their co-existence in the Yugoslav Federation. Namely, throughout the 45 years of the existence of that Federation, the southern part of the Bay of Piran was controlled by Croatia, and the northern by Slovenia.22 This division has been confirmed by many documents issued by both States, and by a multitude of various events. Thus, the competence of the police of each of the two Republics was limited to the middle of the Bay. In several maritime incidents the Croatian authorities were called by the Slovenian authorities to intervene in the southern part of the Bay. The Croatian and the Slovenian fishermen limited their activities to the sea areas separated by an approximate median/equidistance line. Such a long tradition of a divided use and control of the Bay of Piran in the past in fact means that nowadays, in applying the principle uti possidetis, the two States should use the median line as a provisional delimitation line. Of course, they are free to negotiate another delimitation but, in accordance with Article 15 of the LOS Convention, none of them is entitled unilaterally to depart from the median line. 10. Simultaneously with the negotiations, and particularly after their severance and the beginning of purely political comments, there were also suggestions to submit the delimitation dispute to a settlement of dispute procedure. After the failure of the mission of Mr. William Perry, various international courts and tribunals have been mentioned. However, the procedures entailing binding decisions, listed in section 2 of Part XV of the LOS Convention, cannot be unilaterally initialed. Namely, in selecting arbitration under Annex VII to the Convention for its disputes, in accordance with Article 298, paragraph 1, Slovenia excluded disputes concerning sea boundary delimitation from the application of the procedures listed in section 2. On the contrary, Croatia makes no exception to the application of procedures entailing binding decisions, from which it has selected ITLOS as first and the International Court of Justice as second option. Anyhow, it is to be hoped that the two neighboring States will not permit a

21 22

See supra p. 5. V. Ibler, op. cit., supra note 13, pp. 182–184.


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degradation of their good relations and that in the near future they will resolve their sea boundary delimitation problems – either by negotiations or by a jointly chosen means of disputes settlement.

IV. CROATIA – BOSNIA AND HERZEGOVINA 1. The Republic of Bosnia and Herzegovina has an extremely short coast (10 km), which is situated behind several Croatian islands and the Pelje·ac peninsula, which means landward from the straight baselines, from which the breadth of the Croatian territorial sea is measured. The present outline of the coast of the Republic of Bosnia and Herzegovina is a result of the Peace Treaty concluded in Srijemski Karlovci on 26 January 1699 between the Republic of Venice and Turkey, and the Peace Treaty concluded in PoÏzarevac on 21 July 1718 between Austria, Turkey and the Republic of Venice. However, according to these treaties, Turkey was granted the sovereignty over the area Neum-Klek, but not over the coastal waters!23 Of course, during the existence of Yugoslavia, Bosnia and Herzegovina was considered to have jurisdiction over the waters along its coasts. However, not having a commercial port of its own, Bosnia and Herzegovina has always used the Croatian ports, particularly the port of Ploœe. 2. After the establishment of the independent Republics of Croatia (1991) and Bosnia and Herzegovina (1992), the two States had to delimit their sea areas. On 30 July 1999 they concluded the Treaty on State Frontier between the Republic of Croatia and the Republic of Bosnia and Herzegovina. The Treaty has been provisionally applied since the day of its signature but it will enter into force only when several detailed instruments necessary for its application will be elaborated. Using the method of the median line, Bosnia and Herzegovina has been granted sovereignty in the Bay of Neum and around the Klek peninsula. Although the legal regime of its waters has not been specified in the Treaty, there is no reason why the waters inside the Bay of Neum could not be considered as internal waters of Bosnia and Herzegovina, and the waters along the coasts of Klek as territorial waters of that State (see Map 3). However, the question remains whether the waters of Croatia delimited by the territorial sea of Bosnia and Herzegovina can continue to be considered as having the legal status of internal waters. Tullio Scovazzi and Gianpiero Francalanci accept such a result of the delimitation inside the internal waters of Croatia.24

23

Ibid., p. 189. T. Scovazzi, “Les zones côtières en Méditerranée: évolution et confusion”, VI Annuaire du Droit de la Mer, 2001, pp. 95–108, at p. 102 and note 27. 24

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V. CROATIA – SERBIA AND MONTENEGRO 1. Several years after the war in the area, and after the departure of UN forces, in December 2002 Croatia and the Federal Republic of Yugoslavia (today called: the Community of Serbia and Montenegro) concluded the Protocol on the Interim Regime along the Southern Border between the Two States (see Map 4). For unknown reasons, a demilitarized zone has been designated only along the coasts of Croatia, west of a straight line connecting Konfin (the point where the land frontier between Croatia and Montenegro reaches the sea), and the point three cables from the Cape O·tro to the south. Police and military forces of the two States are excluded from the sea west of that line, and only police vessels with mixed crews of the two states shall protect the security of navigation and monitor the application of the regime established by the Protocol. The Protocol contains also detailed regulations on “sport and/or recreational fishing” (no commercial or part time fishing is permitted), on the co-operation between the two States with regard to the search and rescue efforts at sea, on the protection of the marine environment and on the development of tourism (see Map 5). 2. The two States have also temporarily delimited the territorial sea off the entrance in the Hercegnovski Gulf. The “temporary delineation of the territorial sea shall proceed from the point three cables away from Cape O·tro at the junction Cape O·tro – Cape Veslo in a straight line of 12 nautical miles along the azimuth of 206 degrees to the high seas” (Article 6, paragraph 1). 3. The Protocol has been applied temporarily as of the day of its signature, but it has not yet entered into force. For the time being, I am not aware of any problem in its implementation. It has been stated that the solutions contained in the Protocol, “as well as its implementation, shall not in any way prejudice delimitation between the two States” (Article 2). This is a sound provision as, according to the Croatian expert Mr. ÒZelimir Seissel, in applying Article 15 of the LOS Convention inside the Hercegnovski Gulf, there is no reason for departing from the median line delimitation. According to the same author, the natural entrance points to the Gulf are Cape O·tro and Lastavica Island (ÒZanjica Vela), and the delimitation of the territorial sea and continental shelf (and the EEZ) of Croatia and Montenegro should start from the line joining these two points.25 4. As it has already been said, in the 2003 Decision establishing its EFPZ Croatia stated that the provisional delimitation line between this Croatian zone and the sea beyond the outer limits of Montenegro shall follow the direction of

25 ÒZ. Seissel, “O razgraniœenju morskih prostora Hrvatske i Crne Gore”, Zbornik Pravnog fakulteta u Zagrebu, Vol. 48, No. 4 (Zagreb, 1998), pp. 423–436.


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the temporary delimitation line of the territorial sea between the two States as defined in the 2002 Protocol. Contrary to some other neighboring States (Italy and Slovenia), Serbia and Montenegro has not expressed any irritation either generally in respect of the establishment of the Croatian EFPZ or in respect of the provisional delimitation of that zone provided for in the Croatian 2003 Decision.

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Veliki Molunat Mali Molunat

Town, village

1

Dualica

15°30'

Mokrine

Igalo

Ostri Point

Point Kobilo

Savina

Podi

Lostavica Island

Point Lušilca

Gornila

Kuti

Marići

15°35'

Zambeleći

42°25'

Zabrde

Trajanovici

Denoviči

Kumboi

Mioćovići

Mrkovi

Bay of Zanjic

Vele Arda

Umi

Ozegovići

Zelenika

Klinci Ljumotić

Point Miriśte

Rose

Meljine

15°35'

Sveta Petka

Presjeka

Zlibeji

Koćetanovići

Sasoviči

Hercegnovski Gulf

Herceg-Novi

Topla

Musici

Radoviči

Ploča

Zabrde

The boundaries and names shown and the designations used on this map do not imply official endorsement or acceptance by the United Nations.

Prevlaka

Cipavica Bay Dacvica Bay

Kubita

Njivico

To p i j a nsk i Gulf

Bronca

Matkovici Tusupe

Zupkovići Trebesin

Plociće

Kameno

Ratkovići

Suićopan

Glavica

Prevlaka Bay

Map 4

Donji Kraj

Milrovici

Gornji Kraj

Zrinje

Misevici

Śpulje

Barboge

Marići

Nadosoviči

15°30'

Miokosovići

Y U GO S L AV I A (Montenegro)

Vinogradina

AD RIAT IC S EA

Straznik

Visnijiči

Lučići

Čonici

Studeno

Suturina

Han Begovo Scepošvići

Rustovo

Gornji Durinići

C ROAT I A

Donji Durinići

Resnica

Bukovina

Vicinity of Prevlaka Peninsula

0

Point Lokvica

To Dubrovnik Airport: 15 km City Centre: 30

Maritime Delimitation in a Semi-enclosed Sea 221

N

A

216

Rt. Ziganat

Mitrovici

t

Vodice 454

Rt. Ostro

Rt. Kontin

Rt. Kobila

Map 5

Mamula

215

Mrkovi

Rt. Durov Kom Klinci

Rose

Rakite

Tici

L

Zanjica

U

Zabrue Mitrovici

i vic no e B

Š

Rt. Veslo

218

Radovanici

Bali

T

585

Obosonik

Eraci

Pristao

Kumbor

222 Budislav Vukas

Some Thoughts on the Extension of Existing Boundaries for the Delimitation of New Maritime Zones Irini Papanicolopulu* 1. ORIGINS OF THE PROBLEM The first attempts of States to claim jurisdiction over, respectively, the resources of the seabed and subsoil and those of the water column outside the outer limit of the territorial sea, date back to the same period. The Truman proclamation concerning the continental shelf was adopted in 1945 and the Lima Declaration on the maritime zone was adopted in 1952. Continental shelf rights, however, were recognised some time before the rights over the living resources situated in the superjacent waters. The notion of the continental shelf was in fact accepted, and the relevant rights attributed to the coastal State, during the First United Nations Conference on the Law of the Sea, held in Geneva in 1958, and were consequently inserted in the Convention on the Continental Shelf adopted there.1 Eleven years later, in 1969, the International Court of Justice seemed to recognise

* Researcher, University of Milano-Bicocca, Italy. E-mail address: [email protected] 1 Convention on the Continental Shelf, UNTS, vol. 499, p. 311.


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Irini Papanicolopulu

that provisions regarding the rights of a coastal state over its continental shelf were part of customary international law.2 On the other hand, in 1974 the same Court did not consider that coastal State rights over fisheries off its coasts were part of customary international law yet.3 It was only with the Third United Nations Conference on the Law of the Sea that these rights were recognised and became part of the regime of the exclusive economic zone, as contained in Part V of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This explains why States have generally begun delimiting their continental shelves before delimiting their exclusive economic zones (or fisheries zones) and explains the existence of areas where only the seabed is delimited. Exclusive economic zone delimitation has generally been taking place only with the acceptance of this latter zone, and especially after the effective creation of such zones. The dilemma has therefore arisen, concerning the applicability of a boundary relating to the seabed to the delimitation of the superjacent waters, once the coastal States asserts jurisdiction over them. The aim of this paper is to consider if there are any rules of international law on the issue and what their content is. Since the UNCLOS does not address this issue at all, it is to international practice (as embodied in treaties and international decisions) that the examination has to turn now.

2. STATE PRACTICE Coastal States have dealt with this issue in different manners. In some cases, the problem was indeed solved even before it arose, by inserting special provisions in a continental shelf delimitation agreement. This may happen if one of the parties or both are already planning to establish an exclusive economic zone. An example of this solution is provided by the delimitation between Burma (the former Myanmar) and Thailand. The delimitation agreement entered into force in 19804 delimits the territorial sea and the continental shelf of the two Parties. In addition, it contains a clause to this effect:

2

North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 23 (para. 19). Fisheries Jurisdiction case (United Kingdom of Great Britain and Northern Ireland v. Iceland), I.C.J. Reports 1974. 4 Agreement between the Government of the Socialist Republic of the Union of Burma (Myanmar) and the Government of the Kingdom of Thailand on the Delimitation of the Maritime Boundary between the Countries in the Andaman Sea, of 25 July 1980. The agreement entered into force on 12 April 1982. The text of the agreement with a commentary by V. Prescott may be found in J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries, Vol. II (Dordrecht, Martinus Nijhoff Publishers, 3

Some Thoughts on the Extension of Existing Boundaries

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“That segment of the maritime boundary specified in paragraph 1 of this Article extending from Point No. 5 through Points Nos. 6, 7 and 8 to Point No. 9 shall constitute the boundary between the continental shelf of Burma and the continental shelf of Thailand and, in the event that Thailand establishes her exclusive economic zone, this same line shall also constitute the boundary between the exclusive economic zone of Burma and the exclusive economic zone of Thailand.”5

The year following the adoption of this agreement, and before its entry into force, Thailand proclaimed its own exclusive economic zone and successively confirmed that the boundary for this zone coincided with that of the continental shelf provided for in the 1980 agreement.6 The same solution was adopted by Belgium and the Netherlands in their 1996 agreement concerning the delimitation of the continental shelf.7 After describing the course of the continental shelf boundary, the agreement provides that: “In the event that one of the Contracting Parties decides to create an exclusive economic zone, the coordinates given in article 1 [for the delimitation of the continental shelf] shall be used for the lateral delimitation of such a zone.”8

Both Belgium and the Netherlands proclaimed an exclusive economic zone in 1999. The lateral limits of the two zones, which are indicated by the respective internal laws, coincide with the 1996 boundary of the continental shelf. In both cases examined above it is probable that the application of the seabed boundary to the delimitation of the superjacent waters was rendered easier by the fact that the boundary was an equidistance line (and not a line drawn with regard to the conformation of the seabed) and that there where no special circumstances concerning the water column (such as might be the presence of a fishery bank).

1993), Report 6–4, pp. 1341–1352. The agreement refers only to the future zone of Thailand because Burma had already declared an exclusive economic zone in 1977. 5 Art. 1, para. 3. 6 See V. Prescott, in J.I. Charney, op. cit., supra note 4, Vol. II, Report 6–4, pp. 1341–1352, at p. 1341. 7 Agreement between the Kingdom of Belgium and the Kingdom of the Netherlands Relating to the Delimitation of the Continental Shelf, signed on 18 December 1996 and entered into force on 1 January 1999. An English translation of the agreement with a commentary by D.H. Anderson may be found in J.I. Charney, R.W. Smith (eds.), International Maritime Boundaries, Vol. IV (The Hague, Martinus Nijhoff Publishers, 2002), Report 9–21, pp. 2921–2939. This agreement, together with an agreement on the delimitation of the territorial sea adopted the same day, establishes the whole maritime boundary between the two States. 8 Art. 2.

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A different solution, but having the same aim of avoiding disputes over the delimitation of future exclusive economic zones, was adopted by India and Indonesia. The two States, which had already delimited their seabed boundaries with two agreements, adopted in 19749 and 1977,10 decided to apply the continental shelf boundary also for the delimitation of the exclusive economic zone,11 without however formalising this decision by inserting it into a treaty. In many cases, however, States have delimited the continental shelf either without any reference to the possible application of such a boundary to the delimitation of other zones or by providing expressly that the delimitation of the continental shelf does not prejudge the status of the superjacent waters.12 Therefore, the need to delimit its boundaries arises at the moment when an exclusive economic zone (or similar zone) is proclaimed. In this case, States usually adopt an agreement that extends the seabed boundary to the delimitation of the economic zones. This is the solution adopted by Turkey and the Soviet Union for the delimitation of their maritime boundaries in the Black Sea. Having already adopted an agreement for the delimitation of the continental shelf in 1978,13 they have successively agreed, by an exchange of notes,14 to extend the seabed boundary to cover also the delimitation of their exclusive economic zones. 9

Agreement between the Government of the Republic of India and the Government of the Republic of Indonesia Relating to the Delimitation of the Continental Shelf Boundary between the two Countries, signed on 8 August 1974 and entered into force on 17 December 1974. For the text of the Agreement and a commentary by V. Prescott, see J.I. Charney, op. cit., supra note 4, Vol. II, Report 6–6 (1), pp. 1363–1370. 10 Agreement between the Government of the Republic of India and the Government of the Republic of Indonesia on the Extension of the 1974 Continental Shelf Boundary between the Two Countries in the Andaman Sea and the Indian Ocean, signed on 14 January 1977 and entered into force on 15 August 1977. This agreement extends the 1974 boundary in both directions. The delimitation between the two States is completed by the triple point agreement with Thailand of 1978. 11 See V. Prescott, in J.I. Charney, op. cit., supra note 4, Vol. II, Report 6–6 (1), pp. 1363–1370, at p. 1364; S.P. Jagota, Maritime Boundary (Dordrecht, Martinus Nijhoff Publishers, 1985), p. 82. 12 An example is given by the delimitation between Iran and Qatar. The agreement of 1969 provides, in Art. 4, that “Nothing in this Agreement shall affect the status of the superjacent waters or airspace above any part of the continental shelf”. 13 Agreement between the Government of the Republic of Turkey and the Government of the Union of Soviet Socialist Republics on the Delimitation of the Continental Shelf between the Republic of Turkey and the Union of Soviet Socialist Republics in the Black Sea, of 23 June 1978, in J.I. Charney, op. cit., supra note 4, Vol. II, Report 8–10 (2), pp. 1693–1700. 14 Exchange of Notes on the Delimitation of the Exclusive Economic Zones in the Black Sea, of 23 December 1986 and 6 February 1987, in J.I. Charney, op. cit., supra note 4, Vol. II, Report 8–10 (3), pp. 1701–1707.


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There are a few cases in which the Parties to an agreement delimiting the continental shelf have renegotiated the boundary after the proclamation of an exclusive economic zone. This is the case of the delimitation between the Democratic Republic of Germany (today Germany) and Poland. The two countries had delimited their continental shelf in the Baltic Sea in 1968.15 In 1989, however, after the institution of fisheries zones, they negotiated a new boundary for the delimitation of the continental shelf and of the fisheries zone. According to the 1989 Agreement, a new boundary has been adopted, which applies to the delimitation of both the fisheries zones and the continental shelves. The most remarkable point is that the 1968 line was an equidistance line; it was not considered applicable, however, to the delimitation of the superjacent waters because it would attribute to the German part of the area the two main navigational channels that lead to the Polish ports of Szczecin and Swinoujscie. In this case, therefore, a seabed boundary was not considered applicable, and a new boundary was determined in order to take account of circumstances relating to the water column (in this specific case, navigational circumstances). Another case of non-application of a seabed boundary concerns the delimitation between Australia and Indonesia. The continental shelf boundary, adopted in 1972,16 was based on geological criteria, attributing to Australia a greater share of the seabed area between the two States. It is therefore understandable that, at the moment of negotiating the fisheries zones boundary, the two States agreed on a different fisheries boundary, measured mainly on the basis of equidistance.17 This provisional line, with some slight modification, was further confirmed in 199718 as the boundary of the exclusive economic zone, while at

15

Treaty between the Polish People’s Republic and the German Democratic Republic Concerning the Delimitation of the Continental Shelf in the Baltic Sea of 29 October 1968, entered into force on 16 April 1969. An English translation of the agreement with a comment by E. Franckx may be found in J.I. Charney, op. cit., supra note 4, Vol. II, Report 10–6 (1), pp. 2005–2022. 16 Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of Timor and Arafura Seas, Supplementary to the Agreement of 18 May 1971, of 9 October 1972, entered into force on 8 November 1973. 17 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia Concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement of 29 October 1981, entered into force on 1 February 1982. 18 Treaty between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries of 14 March 1997. The treaty has not yet entered into force as it needs some modifications following the independence of Timor-Leste.

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the same time the 1972 boundary was confirmed as the line dividing the continental shelf. As a result, there are two maritime boundaries in the sea area between Australia and Indonesia, delimiting respectively the seabed and the superjacent waters.19 In other cases, and probably in order to avoid any delimitation problems with neighbours, some States do not extend their maritime zones up to the widest extent, but fix the outer limit short of the area where there are claims by other States. This is the case of Algeria, who, on establishing its fisheries zone in the Mediterranean, has limited its outer limit to 52 nautical miles from the baselines, further reduced to 32 miles on the western part of the zone.20 In the same way, in creating its fisheries zone in the Mediterranean, Spain has not extended it along the southern part of its coast, where there exist sovereignty and delimitation problems with Morocco.21 In most cases, however, States do not show such self-restraint and extend their maritime zones fixing unilaterally their outer limit vis-à-vis their neighbours, at least provisionally.22 In this case, the outer limit of the zone may be determined with reference to geographical coordinates, to a line provided for in a previous treaty or by a more general reference to equidistance. The recent decision of the Parliament of Croatia instituting a fisheries and ecological protection zone23 refers to the treaties already concluded for the determination of the provisional outer limit of the zone. According to paragraph 6 of the Decision: “Pending the conclusion of delimitation agreements, the outer limits of the ecological and fisheries protection zone of the Republic of Croatia shall temporarily follow the delimitation line of the continental shelf established under the 1968 Agreement between the SFRY and the Italian Republic on Delimitation of the Continental Shelf, and, in adjacent delimitation, the line following the direction of 19

This complex situation is dealt with in Art. 7 of the 1997 Agreement, which provides for the rights of each State in the area of overlapping zones and for the means to carry them out. This Agreement, however, has not entered into force yet. 20 See Legislative Decree No. 94–13 of 17 Dhu’lhijjah 1414, corresponding to 28 May 1994, establishing the general rules relating to fisheries, and in particular Art. 6. The limit so described does not extend up to the equidistance with other States. 21 On the other hand, Spain has established the external limit of its fisheries zone with regard to equidistance, vis-à-vis Algeria, France and Italy. 22 In most cases, in fact, laws providing for the creation of new zones provide that, in the case of overlapping with the zones of other States, the definitive delimitation shall be effected by agreement. The outer limit is therefore determined only provisionally, until the final boundary is negotiated with the other States. 23 Decision on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea of 3 October 2003. Text in the database maintained by the DOALOS, available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ HRV_2003_Decision.pdf


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and continuing the provisional delimitation line of the territorial seas as defined in the 2002 Protocol on the Interim Regime along the Southern Border between the Republic of Croatia and Serbia and Montenegro.”

One of the neighbouring States, Italy, has protested against this provisional delimitation, considering, among other arguments, that the continental shelf boundary is not applicable, as it was adopted when the concept of the exclusive economic zone had not been established yet under international law, and because the seabed boundary does not take account of new special circumstances.24

3. THE GUINEA-BISSAU/SENEGAL DECISION International judges have dealt only once with the issue of the applicability of a seabed boundary to new zones, that is in the maritime delimitation dispute between Guinea-Bissau and Senegal, decided in 1989 by an arbitral tribunal.25 The Tribunal found out that a treaty concluded in 1960 by France and Portugal and concerning the delimitation of the territorial sea, the contiguous zone and the continental self was applicable also to the newly independent States of Guinea-Bissau and Senegal as far as these three zones were concerned. The Tribunal, however, maintained that this treaty was not applicable to the delimitation of the exclusive economic zone, as this zone was not mentioned in the delimitation agreement. The Tribunal, furthermore, rejected the position of Senegal, according to which the 1960 treaty had to be interpreted in the light of the successive evolution of the law of the sea, which had allowed for the creation of exclusive economic zones. The Tribunal observed, in this regard, that a treaty has to be interpreted in the light of the law existing when it is concluded, and that consequently the 1960 treaty had to be interpreted in the light of international law of the sea existing at the moment of its conclusion. As the Tribunal notes: “le Tribunal estime que l’Accord de 1960 ne délimite pas les espaces maritimes qui n’existaient pas à cette date, qu’on les appelle zone économique exclusive, zone de pêche ou autrement.”26

24

See the “Advance and unedited reporting material to be issued as addendum to the Report of the Secretary-General” (Document A/59/62/Add.1). 25 The award of the Tribunal was annexed to the application of Guinea-Bissau to the International Court of Justice of 1989. Guinea-Bissau, in fact, had not accepted the award and had requested the International Court of Justice to declare that it was not valid. The Court, however, confirmed the validity of the award (see Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Merits). 26 Guinea-Bissau v. Senegal Award, para. 85.

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4. OTHER CASES OF POTENTIAL EXTENSION OF MARITIME BOUNDARIES The issue considered in this paper has generally been presented as the possibility to extend the continental shelf boundary to the delimitation of the superjacent waters. There are, however, some other cases where a similar problem might be posed. In 1980, Iceland and Norway entered into an agreement for the delimitation of their fisheries zones between Iceland and the Norwegian island of Jan Mayen,27 which are less than 400 miles apart. According to the agreement, Iceland had the right to a full fisheries zone, measuring 200 nautical miles, while the fisheries zone of Norway would consist of the remaining part of the area. Not being able to solve the issues concerning the delimitation of the continental shelf, the two States, through the same agreement, created a Conciliation Commission, whose task was to make proposals concerning the delimitation of the continental shelf. The Commission had to take account of “Iceland’s strong economic interests in these sea areas, the existing geographical and geological factors and other special circumstances”.28 In its final report, the Commission preferred not to indicate a different boundary for the delimitation of the continental shelf, but to propose the creation of a joint zone: “the Commission concluded that an approach should be used which takes into account both the fact that agreement by Iceland and Norway on Iceland’s 200-mile economic zone has already given Iceland a considerable area beyond the median line and the fact that the uncertainties with respect to the resource potential of the area create a need for further research and exploration. Rather, therefore, than proposing a demarcation line for the continental shelf different from the economic zone line, the Commission recommends adoption of a joint development agreement covering substantially all of the area offering any significant prospect of hydrocarbon production.”29

Iceland and Norway decided to adopt the Commission’s proposals: they accepted that the fisheries boundary applied also to the delimitation of the continental shelf and they created a joint development zone, which covers that part of the contested area where there seem to be mineral resources in the seabed.30 In this case, therefore, a fisheries zone boundary was considered appropriate

27

Agreement on Fishery and Continental Shelf Questions of 28 May 1980. Art. 9, para. 3, of the Agreement. 29 Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Self Area Between Iceland and Jan Mayen, 20 International Legal Materials, 1981, p. 797, at pp. 825–826. 30 Agreement on the Continental Shelf between Iceland and Jan Mayen, of 22 October 1981. 28


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also for the delimitation of the continental shelf, provided that a joint zone is established. The need to decide on the applicability of a boundary might arise in some more cases. One should consider, in the first place, those treaties which do not delimit specific zones, indicated by name, but which draw a so called all-purpose maritime boundary, which is intended to delimit all maritime areas of the Parties, already existing and (in most cases) such that may be proclaimed in the future.31 In this case, there should be no problem in applying the boundary also for the delimitation of new zones, as the scope of the delimitation treaty or of the decision is to delimit all zones. This is even more so when the delimitation agreement expressly provides that the boundary shall apply also to future zones.32 But even in the absence of such a clause, it would seem in accordance with the object and scope of the treaty (to settle permanently all maritime boundary issues between the Parties) to apply the all-purpose boundary to new zones as well. The same problem, furthermore, could be posed for the applicability of a continental shelf boundary, or an exclusive economic zone boundary, to the delimitation of the contiguous zone or of the contiguous-archaeological zone of 24 nautical miles.33

31

See, for example, the treaties between Mexico and the United States of America of 4 May 1978 in J.I. Charney, L.M. Alexander (eds.), International Maritime Boundaries, Vol. I (Dordrecht, Martinus Nijhoff Publishers, 1993), Report 1–5, pp. 427–445, and between Trinidad and Tobago and Venezuela of 18 April 1990 (entered into force on 23 July 1991) in ibid., Vol. I, Report 2–13 (3), pp. 675–689. An all-purpose maritime boundary has also been requested by the Parties and has been provided by the judgments in the St. Pierre and Miquelon, Eritrea v. Yemen, Qatar v. Bahrain and Cameroon v. Nigeria cases. A request or an all-purpose boundary has been proposed in two of the three maritime delimitation cases actually pending before the International Court of Justice (Nicaragua v. Honduras and Nicaragua v. Colombia). See the applications of Nicaragua, posted on the web site of the Court <www.icj-cij.org>. 32 See, for example, Art. 1 of the Trinidad and Tobago and Venezuela Treaty, according to which “The maritime boundary between the Republic of Trinidad and Tobago and the Republic of Venezuela referred to in this treaty is the maritime boundary with respect to the territorial seas, the Continental Shelves and the Exclusive Economic Zones and to any other marine and submarine areas which have been or might be established by the Contracting Parties in accordance with International Law” (emphasis added). 33 On the archaeological zone see R. Garabello, La Convenzione UNESCO sulla protezione del patrimonio culturale subacqueo (Milano, Giuffrè Editore, 2004), pp. 151–179. On the applicability of existing boundaries to the delimitation of the archaeological zone see I. Papanicolopulu, “La zona contigua archeologica e la sua delimitazione”, in: T. Scovazzi (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo (Milano, Giuffrè Editore, 2004), pp. 43–70.

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5. SOME TENTATIVE CONCLUSIONS The initial question could therefore be reframed in the following terms: given a sea area over which two neighbouring States have sovereignty or jurisdiction and which has already been delimited with a boundary, in case one or both States create in it new maritime zones, does the existing boundary also apply to these new zones? There is no rule on this issue in international conventions. As the UNCLOS does not address this issue at all, it is to international practice that one has to turn in order to find some useful elements. There is not only one solution to this problem, but the solution may vary according to the terms of the delimitation agreement and the nature of the areas to be delimited. In case a new zone is created in an area where the seabed boundary has already been delimited, a distinction should be made between zones comprising only the water column (such as the fisheries zones or an environmental protection zone, as the recently established French ecological zone)34 and those zones which comprise both the water column and the seabed and subsoil. In the first case, the new zone is completely distinct from the continental shelf, since both the physical space occupied by the two zones and the rights attributed to the coastal State are different. Being thus two independent maritime zones, each has to be delimited independently, and in no case is the seabed boundary automatically applicable. This, of course, does not exclude that the continental shelf and the fisheries zone may be delimited together by means of one single-line boundary, as the International Court of Justice has admitted since the Gulf of Maine case.35

34

Created by Law 2003–246 of 15 April 2003 (Journal officiel de la République Française, n° 90 du 16 avril 2003, p. 6726). Its external limits have been fixed by Decree 2004–33 of 8 January 2004 (Journal officiel de la République Française, n° 8 du 10 Janvier 2004, p. 844). 35 See Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine, Judgment, para. 27. On the contrary, it could be argued that a rule is being crystallising according to which, in case the water column and the seabed and subsoil beyond the territorial sea have to be delimited, they should be delimited by a single-line boundary. This rule, however, should apply only in the case of an ex novo delimitation, that is, when there is no boundary in place and not when the area is partially delimited. The reason is that a delimitation of the continental shelf may not, and generally does not, take account of fisheries or ecological circumstances, while in a delimitation ex novo of both zones all circumstances, relating to all areas, may be taken account of and the result will depend on balancing all of them. On this last point, see G. Cataldi, “‘La ligne unique de délimitation’? Application en Méditerranée”, VII Annuaire du Droit de la Mer, 2002, pp. 227–238, at pp. 230–231, who notes that “[o]n ne peut pas penser que la délimitation d’une seule des zones puisse être étendue automatiquement à une autre zone maritime


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On the other hand, the situation is partially different as far as the exclusive economic zone is concerned. The exclusive economic zone, in fact, in part coincides with the continental shelf (as far as the seabed and subsoil are concerned) and in part overlaps with it (in its part comprising the water column). The conclusions reached in the previous paragraph apply also to the water column of the exclusive economic zone, for the same reason indicated above. It remains to establish what happens with the seabed boundary. The exclusive economic zone is a new zone, distinct from the other maritime zones that may already exist, including the continental shelf; it should therefore be delimited independently, on the basis of its own rules. On the other hand, the continental shelf boundary is indeed a boundary, and as such should be subject to the principle of the stability of boundaries, according to which once a boundary is established it becomes independent from the treaty establishing it and has its own life. It therefore does not depend, for its existence, on the existence of the delimitation treaty.36 sans aucune autre négociation. La fixation de la ligne de délimitation unique doit être effectuée dans le même temps, dans le contexte des espaces maritimes à délimiter” (emphasis added). 36 This principle is codified in the Vienna Convention on the Law of Treaties, according to which: “A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary[.]”. This Article refers generally to a “boundary”, without precising whether it concerns land or maritime boundaries. It could therefore be inferred that it applies to all types of boundaries. On the other hand, it could be argued that the principle of the stability of boundaries was developed in order to guarantee the certainty of the area of State sovereignty, and as such applies only to boundaries delimiting zones of sovereignty, such as the land territory of a State and its territorial sea, and not to zones of jurisdiction. As the continental shelf is a zone of jurisdiction, the principle would not be applicable. It would therefore be possible to consider that the creation of an exclusive economic zone is indeed a fundamental change of circumstances, comporting the termination of the continental shelf delimitation treaty and requiring a new delimitation for the newly established zone. This conclusion, though legally sound, leads nonetheless to an unsatisfactory result from a practical point of view. In the first place, maintaining that the continental shelf boundary is applicable would mean that, until the boundary of the exclusive economic zone is fixed, the area remains wholly not delimited. This situation would be particularly grave in case the coastal States have already accorded licenses for the exploitation of the resources and commercial activities are already taking place. But even if there are no such activities, the need to delimit always carries with it risks and potential controversies; therefore, it would not seem to be advisable to renounce the certainty of an established boundary for the uncertainty of a boundary still to be delimited. Furthermore, it should not be forgotten that the continental shelf, unlike the exclusive economic zone, is an area existing ipso iure. Once it is delimited, consequently, its boundary should not be altered unless both parties agree. What is in fact going to happen in the hypothetical case that a coastal State revokes the exclusive economic zone? Should the seabed beyond the territorial sea be delimited again (and for the third time)?

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It is neither appropriate, nor in conformity with the need for certainty that leads States to adopt international boundaries, to consider that a continental shelf boundary does not apply to the delimitation of the seabed and subsoil of the exclusive economic zone, once such a zone is created in that same area. In this respect, it seems better to consider that, in delimiting the continental shelf, the objective of States was not so much to delimit a certain maritime zone, but rather to delimit the seabed and subsoil of a certain area, once for all and without regard to the status that it may acquire in the future. This conclusion is supported also by the terms used in many continental shelf delimitation agreements, which refer to the “delimitation of the seabed and subsoil”, rather than to the delimitation of the continental shelf. This conclusion is not weakened by the fact that there are cases in which continental shelf boundaries where renegotiated (and modified) following the proclamation of an exclusive economic zone. In this regard it should be remembered that States are always free to modify their boundaries, as long as they do not do so unilaterally, but on the basis of an agreement. One could further mention the fourth paragraphs of Articles 74 and 83 of UNCLOS, which are framed in the same terms and which provide that: “Where there is an agreement in force between the States concerned, questions relating to the delimitation of the [exclusive economic zone] [continental shelf] shall be determined in accordance with the provisions of that agreement.”

This provision confirms, once more, the principle of the stability of boundaries, according to which if a boundary between two States is already in place, it continues to be applicable also after the adoption and entry into force of UNCLOS. But this provision could also be interpreted in an extensive manner (though always according to its scope, which is to reaffirm the importance of the stability of boundaries) by considering that the boundary of the continental shelf remains in place also when the seabed thus delimited becomes part of a new zone (the exclusive economic zone). Once it is established that the continental shelf boundary applies also to the delimitation of the seabed and subsoil of the exclusive economic zone, it still remains to be considered how the superjacent waters are to be delimited. As has already been noticed, there is no obligation to apply the same boundary. In practice, however, except for a few cases, States facing this issue have generally agreed to extend the seabed boundary also for the delimitation of the water column of the exclusive economic zone. This does not mean, however, that States have an obligation to do so. In the first place, this “vertical extension” of the seabed boundary has generally been effected on a case-by-case basis, following negotiations and (as it would seem) after the evaluation of its applicability for the delimitation of the superjacent waters. In the second place, there are cases in which States have used a different boundary, either by modifying the whole boundary (as in the


235

GDR/Poland case) or by delimiting separately the superjacent waters, by means of a separate boundary (as in the case of Australia and Indonesia). Thirdly, coastal States have never admitted the existence of a general principle of automatic extension of seabed boundaries, even though they have adopted such extension in specific cases. In the absence of a uniform State practice and of sufficient elements for proving the creation of a new customary rule, one has to conclude that such a rule does not exist and that States are free to determine the boundaries for the water column of the exclusive economic zone. Notwithstanding this conclusion, the fact remains that State practice is almost uniform in extending the seabed boundary to the superjacent waters. This uniform practice could be explained on the ground of the simplicity of this operation and its good convenient results. It is much easier to adopt a boundary already in place rather than having to draw a new one. In addition, even though the case of the delimitation between Australia and Indonesia proves that a multiple line boundary can indeed be managed, it is surely easier to manage an area where the jurisdiction over the water column, the seabed and the subsoil belongs to one and the same State. It should furthermore be considered that the existence of a seabed boundary constitutes a special circumstance which should be taken account of in delimiting the superjacent waters. In this regard, it would not be going too far to consider that there is an obligation for those States delimiting their water column (not to apply the seabed boundary, but) to justify their eventual rejection of such a boundary and to indicate the circumstances that render it inapplicable to the water column. This inapplicability might be due either to the fact that the seabed boundary was drawn on the basis of circumstances pertaining only to the seabed (and therefore not applicable to the delimitation of the water column), or to the presence of special circumstances pertaining to the waters which have to be taken account of. It seems therefore more probable that there will be a revision of those boundaries that have been drawn on the basis of geological circumstances. It is, on the other hand, more difficult to justify the inapplicability of a boundary drawn on the basis of neutral criteria, such as geographical ones, and especially if the boundary consists in an equidistance line. Even in this case, however, a new boundary could be justified on the basis of circumstances relating to the water column, as even the equidistance line is not conform to equity if there are special circumstances justifying a modification or another line. In conclusion, one has to keep in mind that the principal problem of the extension of boundaries for the delimitation of new zones relates to the balance to be kept between the need for permanent and well-defined maritime boundaries and the necessity that these boundaries be really agreed upon, and not just be imposed on States. If seabed boundaries were automatically extended, without the possibility of their revision, States could find themselves with a

236


boundary they have not agreed upon. And this would not just create uncomfortable feelings, but would also be contrary to Articles 74 and 83 of UNCLOS, according to which the delimitation of maritime zones “shall be effected by agreement”.

INDEX Adjacent coast, 21, 23, 27–28, 31, 34, 73, 80, 144, 155, 171, 177, 192–193, 201, 208–209, 212 Adriatic Sea, 189–203, 204–217 Affaires de délimitation du plateau continental de la mer du Nord see North Sea Continental Shelf Cases Affaire de la délimitation maritime entre Qatar et Bahrein see Case Concerning Marine Delimitation and Territorial Questions (Qatar v. Bahrain) Affaire de la frontière terrestre et maritime entre Cameroun et le Nigéria see Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria Affaire de la délimitation maritime dans la région située entre le Groenland et Jan Mayen (Danemark c. Norvège) see Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) Affaire de la délimitation du plateau continental entre Libye et Malte see Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta) Affaire de la délimitation de la frontière maritime dans la région du golfe du Maine see Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area Agent, 56, 91–93, 98–100 Albania, 189–190 Algeria, 228 Anglo-French Arbitration, 86, 105, 116, 135, 157, 160 Antilles (The Netherlands), 160, 176 Archeological zone, 207–208 see also Contiguous zone Archipelago – archipelagic baseline, 141, 159, 185–187 – archipelagic status, 39, 162, 180 Argentina, 74 Article 6 of the Geneva Convention on the Continental Shelf, 8–10, 96, 124, 207

Article 15 of the Law of the Sea Convention, 10, 26, 35, 39, 47, 73, 95–96, 111, 126–127, 197, 210, 214, 216 Article 74 of the Law of the Sea Convention, 26, 34–35, 39, 47, 63, 73, 80, 95, 123, 125–127, 132, 138, 149, 155, 165, 194–195, 199, 209, 234, 236 Article 76 of the Law of the Sea Convention, 5, 15–17, 20–31, 112–113, 154, 156 Article 83 of the Law of the Sea Convention, 26, 34–35, 39, 63, 73, 80, 95, 125–127, 149–150, 155, 199, 234, 236 Article 287 of the Law of the Sea Convention, 39, 58, 66–78, 141, 150 Article 297 of the Law of the Sea Convention, 20, 25–26, 73 Article 298 of the Law of the Sea Convention, 20, 25–26, 39–40, 73–78, 214 Atlantic Ocean, 126, 167, 178–179 Australia, 15, 71, 74–75, 148, 227–228, 235 Bahrain, 6, 10, 39, 96, 102, 106, 107, 118, 131, 148, 159, 164 Baltic Sea, 196, 227 Bank, 21, 154, 158, 178, 182, 225 Barbados, 65, 70, 166, 167, 170, 177, 183, 187 Baseline, 22, 40, 83, 102, 113, 126–127, 133, 141, 154, 156, 159, 169, 177, 185, 186, 187, 208 – straight baselines, 99, 102, 159, 207, 215 Basepoint, 80, 83, 87, 102, 107, 127, 130–131, 140, 162 Bay of Biscay, 148 Bay of Piran, 196–198, 210–214 Bays, 39, 148, 171, 196–198, 210–215 – bay closing line, 102 Belarus, 74 Belgium, 71, 135–136, 139–140, 157, 225 Belize, 169–170, 183–184, 187 Black Sea, 196, 226

238

Index

Bosnia-Herzegovina, 189–190, 206, 215 Burma, 224–225 Cameroon, 6, 10, 36–37, 39–40, 42, 50, 61–62, 84, 96, 110, 114, 118 Canada, 29, 74, 106 Cape Verde, 162 Caribbean Sea, 74, 152–188, 196 Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), 64 Case Concerning Marine Delimitation and Territorial Questions (Qatar v. Bahrain), 6, 10, 39, 96, 102, 107, 118, 131, 164 Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), 9, 43, 50, 98, 105, 106, 111, 126, 162–163, 226 Case Concerning the Aegean Sea Continental Shelf, 36, 42 Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), 36, 57, 100, 104–106, 112–115, 156, 161 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 12, 13, 36, 96–97, 103, 106, 109–111, 112, 114, 116 Case Concerning the Delimitation of Maritime Areas between Canada and France, 29, 106 Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area, 14, 35, 82, 104–106, 111, 232 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, 6, 10, 36–37, 39, 42, 50, 61–62, 84, 96, 114, 118 Chamber of Summary Procedure see International Tribunal for the Law of the Sea Channel of Sicily, 160 Chile, 74 Choice-of-procedure declaration, 58, 66–67, 69, 74 see also International Tribunal for the Law of the Sea Coastal geography, 81, 101 Coastal state, 19–29, 31, 33, 104, 112, 113, 122, 126, 153, 155, 156, 194, 195, 199, 202, 206, 207, 208, 212, 214, 223–224, 233, 235 Colombia, 39, 168–187

Colonial matters, 97, 109 Commission on the Limits of the Continental Shelf, 19–31 – rules of procedure, 22, 23, 24, 27 Common zones see Joint zones Conciliation, 35, 74, 230 – compulsory, 75–77 Conférences des Nations Unies sur le droit de la mer, 6 see also United Nations Conferences on the Law of the Sea Contiguous zone, 107, 135, 154, 206–208, 210, 229, 231 Continental margin, 113 Continental shelf, 19–31, 52, 63, 64, 65, 73, 80, 86, 95–97, 99, 100, 104, 105, 107, 111–116, 125, 127, 135–136, 141, 144, 147, 154, 155, 156, 157, 158, 177, 193, 197–199, 201, 206–207, 209, 216, 223–227, 229–230 see also Plateau continental Convention sur le droit de la mer (1982), 3, 5, 10, 15 see also United Nations Convention on the Law of the Sea Conventions de Genève sur le droit de la mer (1958), 2, 8–10 see also Geneva Conventions on the Law of the Sea Costa Rica, 172, 177, 183 ‘Côtes pertinentes’, 12–13, 18 Croatia, 189–203, 204–217, 228–229 Cuba, 60, 160, 165–167, 171, 172, 180, 182, 183, 184–185 Customary law, 64, 115, 124–126 Cyprus, 164 Deep seabed mining, 31, 125 Denmark, 9, 10, 64, 67, 98, 103, 105, 106, 111, 126, 138, 157, 162, 163, 226 Dispute settlement, 19–31, 143–151 Dominica, 137, 178, 185, 187 Dominican Republic, 165, 166, 167, 174, 176, 181, 184 Ecological and fishing zone see Ecological zone; Fishery zone Ecological zone, 201, 202, 232 see also Exclusive economic zone; Fishery zone EEZ see Exclusive economic zone Egypt, 164 Enclosed seas, 166, 189, 195–196, 205 see also semi-enclosed seas English Channel, 105, 157–158, 160

Index Equatorial Guinea, 37, 39, 61–62, 74, 114, 163 Equidistance lines, 80, 100, 101–103, 105, 107, 111, 116, 155, 158, 160, 163, 167, 177, 182, 196, 201, 214, 225, 227–228, 235 see also Lignes d’équidistance Equidistance/special circumstances rule, 63–64, 96, 115–116, 130, 135–136, 140, 186 see also Règle de l’équidistance Equitable principles/relevant circumstances method, 35, 63–64, 80–81, 83, 86, 95–96, 100, 101, 103–105, 107, 109, 111–113, 116, 125–126, 130, 135, 150–151, 155–157, 165 see also Méthode des principes équitables-circonstances pertinentes Eritrea, 106, 108, 118 Eritrea-Yemen Arbitration, 106, 108, 118 European Community see European Union European Union, 192, 196, 200, 210 Exclusive economic zone, 63, 65, 73, 80, 95–96, 99, 106, 107, 111, 125–126, 127, 135–136, 141, 144, 149, 154–155, 165, 169, 171–175, 177, 181–182, 188, 190–201, 206–217, 224–232 see also Zone économique exclusive Expertise – technical (geographic/hydrographic), 31, 93–94, 102, 103, 105, 106, 107, 112, 122, 123, 127, 140, 185–186, 187–188, 210 – legal, 76, 95–119, 126, 141 Finland, 71 Fishery zone, 135, 175, 181, 188, 190–194, 196, 197, 201, 224–225, 227–228 see also Zone de pêche Fishing activities, 97, 99, 109, 111, 127, 191–192, 212 Foot of the continental slope, 22 Formula line, 22 France, 29, 74, 86, 106, 124, 135, 136, 137, 140, 141, 148, 157–158, 160, 162, 166, 177, 178, 180, 185, 187, 228 Geneva Conventions on the Law of the Sea (1958), 33–34, 63–64, 123, 124, 127, 208 – Convention on the Territorial Sea and the Contiguous Zone, 96, 208, 210

239

– Convention on the Continental Shelf, 50, 124–125, 154, 207, 223 see also Conventions de Genève Germany, 103, 227 Greece, 42, 139 Greenland (Denmark), 9, 43, 50, 98, 105, 106, 111, 126, 137, 162–163, 226 ‘Groupe des 22’/‘Groupe des 29’, 6 see also Conférences des Nations Unies sur le droit de la mer Guadeloupe, 135, 137, 177, 178, 180, 186 Guatemala, 169, 170, 183–184, 187 Guinea, 13, 75, 137 Guinea-Bissau, 13, 42, 137, 229 Gulf of Gonave, 174 Gulf of Guinea, 126 Gulf of Honduras, 169 Gulf of Maine, 35, 82, 104–106, 111, 232 Gulf of Paria, 127, 171, 179 Gulf of Trieste, 196, 206–207, 214 Guyana, 65, 70, 179, 187 Haiti, 165, 166, 167, 172, 174, 175, 180, 181, 184, 185 ‘Half-effect’, 105–106, 116 Hercegnovski Gulf, 216 High seas, 33, 191, 196–198, 211, 213, 216 Historic waters, 39 Historic rights/title, 79, 101, 111, 197, 211 Honduras, 37, 39, 52, 58, 169–171, 177, 178, 180–185, 187 Hydrocarbons see Offshore Exploitation Iceland, 74, 137, 148, 230 India, 226 Indonesia, 84, 137, 148, 226–228, 235 Internal waters, 198, 212, 215 International deep seabed area, 28 International dispute settlement see Dispute settlement International Law Commission, 30, 36, 123, 124 International Seabed Authority, 21, 24, 28–30, 31 International Tribunal for the Law of the Sea, 35, 63, 65–68, 71, 81, 97–98, 113, 141, 150, 211 – Chamber of Summary Procedure, 47 – Competence, 34, 37–40, 51, 57 – Rules of Procedure, 38, 52–53, 56–59 – Sea-Bed Disputes Chamber, 41, 43, 59

240

Index

– Statute, 35, 37–41, 47–61, 72, 98, 113 see also Tribunal international du droit de la mer Intervention, 32–62, 70, 72, 114, 118 see also Third states Iran, 159, 206 Ireland, 43, 157 Island States, 158–188 Islands, 86, 101, 105–108, 116, 152–188 Italy, 36, 55, 71, 74, 75, 100, 114–115, 139, 160, 189–190, 193, 195, 196, 198–201, 206–209, 210, 213, 217 Jamaica, 167, 178–180, 182, 184–185, 187 Japan, 149–150 Joint regime area see joint zones Joint zones, 138, 147–148, 230–231 Jurisdiction – of adjudicating bodies, 20, 28, 37, 38–40, 44–47, 49–51, 57–58 – of states, 21, 33–34, 126, 127, 133, 135–137, 139, 144, 148, 156, 180, 191, 192, 195–203 Korea (Republic of), 149–150 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), 36–37, 39, 52, 58 Latvia, 71 Libya, 36, 57, 96, 97, 100, 103–106, 109–116, 156, 161, 163 Ligne d’équidistance, 5, 7–8, 12, 13 Lithuania, 71 Litigation, 35, 41, 54, 87, 96–98, 103, 107, 108, 113, 115, 117–119, 123, 124, 125, 128, 129, 132, 147 Low-water line, 83, 102, 107 Malaysia, 64, 137, 147, 148 Malta, 36, 55, 57, 100, 104–106, 112–115, 156, 161 Martinique, 137, 177, 178, 186 Median lines, 62, 83, 87, 100, 105, 124, 125, 127, 129, 133, 135, 155–159, 160–165, 169–183, 187, 207–216 Mediterranean Sea, 202 Méthode des principes équitablescirconstances pertinentes, 9–10, 14 see also Equitable principles/relevant circumstances method Mexico, 71, 74, 160, 165, 169, 171, 183–184, 186

‘Montreux Formula’, 66 Morocco, 228 Nicaragua, 36–37, 39, 51, 52, 53, 58, 74, 169–171, 178, 183, 185 Nigeria, 36–37, 39, 42, 50, 61, 62, 84–85, 96, 110, 114, 118, 163 North Sea, 64, 100, 103, 112, 115, 124, 131, 137, 138, 140, 156–157, 165 North Sea Continental Shelf Cases, 64, 100, 103, 112, 115, 124, 131, 137 Norway, 74, 98, 105, 106, 111, 136, 137, 138, 148, 153, 157, 162, 230 Offshore areas, 30, 109 Offshore exploitation – deep seabed mining, 31, 125 – gas, 87, 122, 128, 137–138, 139, 147 – hydrocarbons, 80, 85, 101, 126, 133, 148, 159, 171, 230 – petroleum/oil, 87, 99, 102, 108, 109–110, 122, 125, 128, 133, 135, 138, 148 Oil drilling see Offshore exploitation Oman, 71, 164 Opposite coasts, 21, 27, 28, 31, 161, 164, 207, 208 Outer continental shelf see Continental shelf Panama, 171, 177 Part XV of the Law of the Sea Convention, 20–21, 24–28, 31, 39, 43, 65, 155, 214 Plateau continental, 4, 8–10, 13, 15–17 see also Continental shelf Poland, 227, 235 Portugal, 74, 229 Proportionality, 80, 86, 101, 103–105, 108, 156 Provisional measures, 33–62, 69, 70, 72, 118 Qatar, 6, 10, 39, 96, 102, 106, 107, 118, 131, 164 Reference datum, 84–85 Règle de l’équidistance, 5–8, 9, 10, 12, 14, 17 see also Equidistance rule Russia, 20, 68, 74, 86 Sao Tomé and Principe, 61–62

Index Saudi Arabia, 148, 159 Scilly Isles see English Channel Sea-bed, 112–113 Sea-Bed Disputes Chamber see International Tribunal for the Law of the Sea Semi-enclosed seas, 166, 186, 188, 189, 195–196, 205–217 see also enclosed seas Senegal, 42, 137, 149, 162, 199, 229 Serbia and Montenegro, 193, 201, 206, 207, 208, 213, 216–217, 229 Sierra Leone, 137 Singapore, 64 ‘Single line’ delimitations, 64, 228 Slovenia, 74, 189–203, 209–215 Soviet Union see Russia Spain, 71, 74, 75, 141, 148, 228 Special circumstances rule see Equidistance/special circumstances rule St. Lucia, 167, 177, 185, 187 State practice, 115–117, 137, 158–159, 165, 224–229, 235 Statute of the International Tribunal for the Law of the Sea see International Tribunal for the Law of the Sea Strait of Otranto, 206 Subsoil, 133, 223–236 Suriname, 65, 70 Sweden, 153, 161 Tacit agreement, 109–110 Territorial and Maritime Dispute (Nicaragua v. Colombia), 38, 39, 40, 169, 170 Territorial sea, 33, 63–65, 95, 127, 135, 136, 158, 164, 180, 184, 190, 194, 196–198, 201, 206, 211, 212–213, 215, 216, 223 Thailand, 137, 147, 206, 224–225 The Netherlands, 135, 136, 139, 140, 166, 176, 177, 185, 225 Third states, 21, 31, 36, 101, 113–115, 136–137 see also Intervention

241

Trinidad and Tobago, 65, 70, 167, 170, 178, 179, 183, 185 Tripoints, 136, 177–178 Tunisia, 36, 74, 96, 97, 103, 106, 109, 110, 111, 112, 114, 116, 160, 200 Turkey, 206, 215, 226 Tribunal international du droit de la mer, 3, 18 see also International Tribunal for the Law of the Sea Ukraine, 74 United Kingdom, 43, 86, 116, 127, 130, 148, 156–158, 160, 162, 163, 166, 170, 171, 179, 180, 181, 184, 185, 187 United Nations Conferences on the Law of the Sea – First and Second, 223 – Third, 66, 124, 154, 166, 171, 176, 177, 187, 205–206, 208, 224 see also Conférences des Nations Unies sur le droit de la mer United Nations Convention on the Law of the Sea (1982) UNCLOS, LOS Convention, 33, 39, 80, 144, 154, 178, 195, 208, 224 United States, 68, 166, 174, 176, 179, 184, 185 Venezuela, 127, 160–161, 166, 168, 169, 170, 171, 174, 176, 177, 178, 179, 180, 183, 185, 186, 187 Vietnam, 84, 148 World Geodetic System 1984 (WGS84), 84, 87, 133 Yemen, 106, 108, 118, 164–165 Yugoslavia, 189–190, 193, 196, 197, 199, 200, 206–207, 209, 210, 211, 212, 213, 215, 216 Zone de pêche, 10, 200, 229 see also Fishery zone Zone économique exclusive, 9, 10, 13, 200, 229 see also Exclusive economic zone

Publications on Ocean Development 1.

R.P. Anand: Legal Regime of the Sea-Bed and the Developing Countries. 1976 ISBN 90-286-0616-5

2.

N. Papadakis: The International Legal Regime of Artificial Islands. 1977 ISBN 90-286-0127-9

3.

S. Oda: The Law of the Sea in Our Time. Volume I: New Developments, 1966-1975. 1977 ISBN 90-286-0277-1

4.

S. Oda: The Law of the Sea in Our Time. Volume II: The UN Seabed Committee, 19681973. 1977 ISBN 90-286-0287-9

5.

C.O. Okidi: Regional Control of Ocean Pollution. Legal and Institutional Problems and Prospects. 1978 ISBN 90-286-0367-0

6.

N.S. Rembe: Africa and the International Law of the Sea. A Study of the Contribution of the African States to the 3rd UN Conference on the Law of the Sea. 1980 ISBN 90-286-0639-4

7.

R.P. Anand: Origin and Development of the Law of the Sea. History of International Law Revisited. 1983 ISBN 90-247-2617-4

8.

A.M. Post: Deepsea Mining and the Law of the Sea. 1983

ISBN 90-247-3049-X

9.

S.P. Jagota: Maritime Boundary. 1985

ISBN 90-247-3133-X

10. A.O. Adede: The System for Settlement of Disputes under the UN Convention on the Law of the Sea. A Drafting History and a Commentary. 1987 ISBN 90-247-3324-3 11. M. Dahmani: The Fisheries Regime of the Exclusive Economic Zone. 1987 ISBN 90-247-3374-X 12. S. Oda: International Control of Sea Resources. Reprint with a New Introduction. 1989 ISBN 90-247-3800-8 13. D.G. Dallmeyer and L. DeVorsey, Jr. (eds.): Rights to Oceanic Resources. Deciding and Drawing Maritime Boundaries. 1989 ISBN 0-7923-0019-X 14. B. Kwiatkowska: The 200 Mile Exclusive Economic Zone in the New Law of the Sea. 1989 ISBN 0-7923-0074-2 15. H.W. Jayewardene: The Regime of Islands in International Law. 1990 ISBN 0-7923-0130-7 16. D.M. Johnston and M.J. Valencia: Pacific Ocean Boundary Problems. Status and Solutions. 1990 ISBN 0-7923-0862-X 17. J.A. de Yturriaga: Straits Used for International Navigation. A Spanish Perspective. 1991 ISBN 0-7923-1141-8 18. C.C. Joyner: Antarctica and the Law of the Sea. 1992

ISBN 0-7923-1823-4

Publications on Ocean Development 19. D. Pharand and U. Leanza (eds.): The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime/Le Plateau continental et la Zone économique exclusive: Délimitation et régime juridique. 1993 ISBN 0-7923-2056-5 20. F. Laursen: Small Powers at Sea. Scandinavia and the New International Marine Order. 1993 ISBN 0-7923-2341-6 21. J. Crawford and D.R. Rothwell (eds.): The Law of the Sea in the Asian Pacific Region. 1995 ISBN 0-7923-2742-X 22. M. Munavvar: Ocean States. Archipelagic Regimes in the Law of the Sea. 1995 ISBN 0-7923-2882-5 23. A. Strati: The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea. 1995 ISBN 0-7923-3052-8 24. A.G. Oude Elferink: The Law of Maritime Boundary Delimitation. A Case Study of the Russian Federation. 1994 ISBN 0-7923-3082-X 25. Y. Li: Transfer of Technology for Deep Sea-Bed Mining. The 1982 Law of the Sea Convention and Beyond. 1994 ISBN 0-7923-3212-1 26. T.O. Akintoba: African States and Contemporary International Law. A Case Study of the 1982 Law of the Sea Convention and the Exclusive Economic Zone. 1996. ISBN 90-411-0144-6 27. J.A. Roach and R.W. Smith: United States Responses to Excessive Maritime Claims. Second Edition. 1996 ISBN 90-411-0225-6 28. T. Treves (ed.): The Law of the Sea. The European Union and its Member States. 1997 ISBN 90-411-0326-0 29. A. Razavi: Continental Shelf Delimitation and Related Maritime Issues in the Persian Gulf. 1997 ISBN 90-411-0333-3 30. J.A. de Yturriaga: The International Regime of Fisheries. From UNCLOS 1982 to the Presential Sea. 1997 ISBN 90-411-0365-1 31. M.J. Valencia, J.M. Van Dyke and N.A. Ludwig: Sharing the Resources of the South China Sea. 1997 ISBN 90-411-0411-9 32. E.C. Farrell: The Socialist Republic of Vietnam and the Law of the Sea. An Analysis of Vietnamese Behavior within the Emerging International Oceans Regime. 1997 ISBN 90-411-0473-9 33. P.B. Payoyo: Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. 1997 ISBN 90-411-0504-2 34. H.N. Scheiber (ed.): Law of the Sea. The Common Heritage and Emerging Challenges. 2000 ISBN 90-411-1401-7 35. D.R. Rothwell and S. Bateman (eds.): Navigational Rights and Freedoms and the New Law of the Sea. 2000 ISBN 90-411-1499-8

Publications on Ocean Development 36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevance for Northeast Asia. 2001 ISBN 90-411-1580-3 37. A.G. Oude Elferink and D.R. Rothwell (eds.): The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. 2001 ISBN 90-411-1648-6 38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur les délimitations maritimes selon l’équité: Digest and Commentaries/Répertoire et commentaires. 2002 ISBN 90-411-1976-0 39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law. 2002 ISBN 90-411-2015-7 40. Sun Pyo Kim: Maritime Delimitation and Interim Arrangements in North East Asia. 2003 ISBN 90-04-13669-X 41. Roberta Garabello and Tullio Scovazzi (eds.): The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention. 2003 ISBN 90-411-2203-6 42. Nuno Marques Antunes: Towards the Conceptualisation of Maritime Delimitation. Legal and Technical Aspects of a Political Process. 2003 ISBN 90-04-13617-7 43. Geir Hønneland: Russian Fisheries Management. The Precautionary Approach in Theory and Practice. 2004 ISBN 90-04-13618-5 44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21st Century. 2004 ISBN 90-04-13852-8 45. Budislav Vukas: The Law of the Sea. 2004

ISBN 90-04-13863-3

46. Rosemary G. Rayfuse: Non-Flag State Enforcement in High Seas Fisheries. 2004 ISBN 90-04-13889-7 47. David. D. Caron and Harry N. Scheiber (eds.): Bringing New Law to Ocean Waters. 2004 ISBN 90-04-14088-3 48. Zou Keyuan: China’s Marine Legal System and the Law of the Sea. 2005 ISBN 90-04-14423-4 49. Florian H.Th. Wegelein: Marine Scientific Research. The Operation and Status of Research Vessels an Other Platforms in International Law. 2005 ISBN 90-04-14521-4 50. Guifang Xue: China and International Fisheries Law and Policy. 2005 ISBN 90-04-14814-0 51. Aldo Chircop and Olof Linden (eds.): Places of Refuge for Ships. Emerging Environmental Concerns of a Maritime Custom. 2006 ISBN 90-04-14952-X 52. Tore Henriksen, Geir Hønneland and Are Sydnes: Law and Politics in Ocean Governance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes. 2006 ISBN 90-04-14968-6

Publications on Ocean Development 53. Rainer Lagoni and Daniel Vignes (eds.): Maritime Delimitation. 2006 ISBN 90-04-15033-1 54. Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (eds.): Unresolved Issues and New Challenges to the Law of the Sea. Time Before and Time After. 2006 ISBN 90-04-15191-5 55. Sarah Dromgoole (ed.): The Protection of the Underwater Cultural Heritage. National Perspectives in Light of the UNESCO Convention 2001. 2006 ISBN 10: 90 04 15273 3 ISBN 13: 978 90 04 15273 1

Maritime Delimitation (Publications on Ocean Development, 53)

Maritime Delimitation and Interim Arrangements in North East Asia (Publications on Ocean Development)

Bringing New Law To Ocean Waters (Publications on Ocean Development)

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Mexico and the Law of the Sea (Publications on Ocean Development)

Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Publications on Ocean Development)

Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes (Publications on Ocean Development)

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Maritime Delimitation and Interim Arrangements in North East Asia (Publications on Ocean Development)

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Unresolved Issues And New Challenges to the Law of the Sea: Time Before And Time After (Publications on Ocean Development) (Publications on Ocean Development)

Russian Fisheries Management: The Precautionary Approach in Theory and Practice (Publications on Ocean Development, V. 43)

Mexico and the Law of the Sea (Publications on Ocean Development)

Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Publications on Ocean Development)

Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes (Publications on Ocean Development)

International Law and the Genetic Resources of the Deep Sea (Publications on Ocean Development)

Functional Jurisdiction in the Law of the Sea (Publications on Ocean Development)

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Predictability And Flexibility in the Law of Maritime Delimitation (Studies in International Law)

In The Ocean On Night

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Random Seas and Design of Maritime Structures (Advanced Series on Ocean Engineering, Volume 15)

On Development

Marine Scientific Research: The Operation And Status of Research Vessels And Other Platforms in International Law (Publications on Ocean Development)

The European Community and Marine Environmental Protection in the International Law of the Sea (Publications on Ocean Development)

Random Seas and Design of Maritime Structures, Second Edition (Advanced Series on Ocean Engineering 15)

Law and Politics in Ocean Governance: The Fish Stocks Agreement of 1995 and Regional Fisheries Management Regimes (Publications on Ocean Development, 52)

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