rainer lagoni, daniel vignes maritime delimitation publications on ocean development, 53 2006.pdf

MARITIME DELIMITATION

Publications on Ocean Development

Volume 53

A Series of Studies onthe International, Legal, Institutional and Policy Aspectsof Ocean Development

General Editor: Vaughan LoweChichele 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 PUBLISHERSLEIDEN/BOSTON

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISSN 0924-1922ISBN-13: 978-90-04-15033-1ISBN-10: 90-04-15033-1

© 2006 Koninklijke Brill NV, Leiden, The NetherlandsKoninklijke Brill NV incorporates the imprints Brill Academic Publishers,Martinus Nijhoff Publishers and VSP.

<http://www.brill.nl>

All Rights Reserved. No part of this publication may be reproduced, stored in a retrievalsystem, or transmitted in any form or by any means, electronic, mechanical, photocopying,microfilming, recording or otherwise, without written permission from the Publisher.

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Printed and bound in The Netherlands.

Contents

Preface ...................................................................................................... viiRainer Lagoni and Daniel Vignes

La Délimitation des Frontières Maritimes dans la Jurisprudence Internationale: Vue d’Ensemble .............................................................. 1Laurent Lucchini

The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf ............................................ 19Rüdiger Wolfrum

Provisional Measures and Interventions in Maritime Delimitation Disputes .................................................................................................... 33Santiago Torres Bernárdez

What have the United Nations Convention and the International Tribunal for the Law of the Sea to offer as regards Maritime Delimitation Disputes? ............................................................................ 63Tullio Treves

The Role of the Technical Expert in Maritime Delimitation Cases ........ 79Martin Pratt

Preparing for a Delimitation Case: The Practitioner’s View .................... 95Rodman R. Bundy

Negotiating Maritime Boundary Agreements: A Personal View .............. 121David Anderson

Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation ........................................ 143Thomas A. Mensah

Maritime Delimitation in Complex Island Situations: A Case Study on the Caribbean Sea ................................................................................ 153Chris Carleton

vi Contents

Recent Developments as regards Maritime Delimitation in the Adriatic Sea .............................................................................................. 189Tullio Scovazzi

Maritime Delimitation in a Semi-enclosed Sea: The Case of the Adriatic Sea .............................................................................................. 205Budislav Vukas

Some Thoughts on the Extension of Existing Boundaries for the Delimitation of New Maritime Zones ...................................................... 223Irini Papanicolopulu

Index ........................................................................................................ 237

Preface

The delimitation of maritime zones is an important requirement for peacefulrelations between neighbouring States. In many situations it is a necessary pre-condition not only for the exploration and exploitation of the natural resourcesof the continental shelf and the exclusive economic zone but also for the pro-tection and preservation of the marine environment. There are numerous exam-ples of areas between States with opposite or adjacent coasts where sovereigntyover an island or territory may not be contested but the delimitation of the con-tinental shelf and exclusive economic zone is still pending. Under the Law ofthe Sea Convention, the delimitation of these zones shall be effected by agree-ment on the basis of international law. The Convention does not, however, offera definitive answer as to the methods that should be applied: should the bound-ary line be determined by geographical methods, as is provided for the delimi-tation of the territorial sea, on the basis of geology, or rather by way ofequitable principles? States with opposite or adjacent coasts planning to delimittheir continental shelf or exclusive economic zone, must take all relevantaspects 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 ofthe Sea, eminent scholars and experienced practitioners at the Symposium onMaritime Delimitation, which are published hereafter, deal with various aspectsof delimitation: the jurisprudence of international courts and tribunals and theirrelevance for delimitation, the impact of the Law of the Sea Convention ondelimitation, the role of legal practitioners and diplomatic negotiators withregard to delimitation, and delimitation under particular geological circum-stances and in geographically complex regional situations.

The Symposium was held at the International Tribunal for the Law of theSea on 25 and 26 September 2004. It was organized by the InternationalFoundation for the Law of the Sea, in co-operation with the AssociationInternationale 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 ofHamburg, the Federal Maritime and Hydrographic Agency, and the BuceriusLaw School, Hamburg. The Symposium was generously sponsored by theEdmund Siemers-Stiftung, the ZEIT-Stiftung Ebelin und Gerd Bucerius andthe Stiftung für das Seerechtsinstitut. The editors wish to express their pro-found gratitude to all of them for their valuable contributions to the success ofthe Symposium. They are particularly grateful to the President of the

International Tribunal for the Law of the Sea for the opportunity to use themagnificent premises of the Tribunal for this event, and to the speakers fortheir outstanding presentations.

Hamburg 2005

Rainer Lagoni and Daniel Vignes

viii Preface

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

Laurent Lucchini*

Traiter de la délimitation maritime à travers la jurisprudence internationalerisque d’aboutir à des vues bien réductrices, compte tenu de l’ampleur du sujetet de la complexité d’une question sur laquelle les tribunaux internationaux onthésité durant des années avant de fixer un processus clair et des règles satis-faisantes. Aussi devrait-on pardonner à l’auteur de ces lignes une approche tropbrutale 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 constitueun des problèmes territoriaux majeurs de notre époque. Or, pendant une longuepériode, les délimitations maritimes ont été rares,1 voire exceptionnelles,

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

1

* Professeur émérite à l’Université Panthéon-Sorbonne (Paris I), Président duConseil 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 positionadoptée par le gouvernement néerlandais, déclinant une offre belge de délimitationlatérale entre les deux pays. Le Ministre des Affaires Etrangères des Pays-Bas expliquaitainsi la décision prise: “il n’est guère usité d’étendre la description des limites entredeux Etats au delà du territoire et jusqu’en mer”.

2 Laurent Lucchini

n’intervenant le plus souvent que pour tracer des frontières dans des passagesresserrés.2 Mais, en quelques décennies, elles se sont multipliées, à telleenseigne qu’elles donnent lieu aujourd’hui à un bloc avoisinant les 200accords.

Comment est-on passé de cette phase d’indifférence prolongée à ce mouve-ment puissant d’établissement de frontières maritimes et quelles sont lesraisons – du moins les principales d’entre elles – qui en sont à la source?

• D’abord, des raisons classiques et évidentes de sécurité juridique – valantaussi bien pour les Etats eux-mêmes que pour les différents opérateurs (navi-gateurs, pêcheurs, pétroliers etc.) qui mènent leurs activités en mer – militenten 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 fortementl’intérêt de la délimitation. Ce facteur explicatif tient à la diversification ainsiqu’à l’extension sans précédent des zones relevant de la souveraineté ou de lajuridiction de l’Etat côtier; il a pour effet de transformer radicalement lanotion de “voisinage” en mer et, du même coup, d’accroître largement lenombre des hypothèses dans lesquelles les délimitations se révèlent néces-saires. 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 enressources biologiques et (ou) minérales et en mobilité des flottes.

On connaît les voies à utiliser en vue de procéder à une délimitation maritimeentre deux Etats côtiers voisins. La voie normale, naturelle, est celle de l’ac-cord, dont les Conventions de Genève sur le droit de la mer de 1958 et celle deMontego Bay du 10 décembre 1982 soulignent le caractère premier et primor-dial.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, Leseaux territoriales dans les détroits peu larges, Memorandum présenté à l’InternationalLaw Association (Conférence de Stockholm 1923); Song-Myon-Rhee, “Sea BoundaryDelimitation 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 continentalde la mer Egée (Grèce-Turquie): “Qu’il s’agisse d’une frontière terrestre ou d’une lim-ite de plateau continental, l’opération est essentiellement la même; elle comporte lemême 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 sonarticle 1er paragraphes 1 et 2 que “Dans le cas où un même plateau continental est adja-cent aux territoires de deux ou plusieurs Etats . . . la délimitation du plateau continen-tal entre ces Etats est déterminée par accord entre ces Etats.” De son côté, laConvention des Nations Unies sur le droit de la mer de 1982 dans les paragraphes 1 deses 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 oucertains tribunaux ad hoc. La création assez récente du Tribunal internationaldu droit de la mer n’a pas encore donné l’occasion à celui-ci d’apporter sa con-tribution à ce contentieux, mais il a pleine vocation pour le faire.

Dans l’hypothèse d’un contentieux judiciaire toutefois, il ne faut pas se mas-quer 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 uneaffaire qui revêt une grande importance pour l’Etat: “opération juridico-politique” précise la Cour internationale de Justice.5 En effet, la dimensionpolitique est essentielle, dans la mesure où elle renvoie à la déterminationd’une composante capitale de l’Etat: son aire territoriale et ses ultimes lim-ites de compétence en mer. La situation du juge est peut-être d’autant plusdélicate d’ailleurs qu’il est le plus souvent appelé à connaître des cas lesplus complexes et sensibles, ceux dans lesquels les Parties en présence nesont pas parvenues à s’entendre directement.

2. Ces difficultés découlent, en second lieu, du fait que le juge doit uniquementtrancher sur la base du droit. Son intervention n’est pas, en effet, régie par leprincipe de liberté contractuelle qui s’applique aux Etats dans le cadre de lanégociation d’un accord. De surcroît, au cours des dernières années, le jugen’a guère pu prendre appui sur les dispositions conventionnelles pertinentesde 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 – durésultat équitable à atteindre.

Le juge a ainsi été amené à connaître d’un bataillon compact d’affaires dedélimitation maritime, un nombre d’affaires d’ailleurs sensiblement plus élevéque dans les autres secteurs du droit international et dont les premières sontarrivées à point nommé pour alimenter, dans une période critique, le rôle de laCour internationale de Justice.

La jurisprudence qui en est résultée et les règles que celle-ci a fixées ne sesont pas développées de façon lisse et continue. Néanmoins, on a pu affirmerqu’à l’heure actuelle,

délimitation de la zone économique exclusive (plateau continental) entre Etats dont lescôtes 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-poli-tique” précise la Chambre de la Cour dans son arrêt rendu le 12 octobre 1984 enl’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 merterritoriale – qui reprennent mutatis mutandis celles de l’article 12 de la Convention deGenève de 1958 sur la mer territoriale et la zone contiguë – sont plus explicites.

4 Laurent Lucchini

la jurisprudence(était) parvenue à un degré nouveau d’unité et de certitude en con-servant la souplesse nécessaire.7

Si l’on ne peut qu’être d’accord avec les propos tenus par un parfait connais-seur de ces questions, on pourrait cependant les infléchir quelque peu pourestimer que si le juge a mené à bien une œuvre importante d’élaboration nor-mative, de clarification et d’unification (I), cette œuvre n’est cependant paspleinement achevée (II).

I. ŒUVRE NORMATIVE ET DE CLARIFICATION

Par son arrêt du 20 février 1969 (premier arrêt sur les aspects “modernes” de ladélimitation) rendu dans les Affaires de délimitation du plateau continental dela mer du Nord, appelée à indiquer les principes et règles de droit internationalapplicables à la délimitation maritime,8 la Cour internationale de Justice adéveloppé une théorie quasi inédite, selon laquelle les droits de l’Etat côtier surle plateau continental reposaient sur le fait que celui-ci constituait le prolonge-ment naturel du territoire terrestre sous la mer et étaient encadrés, en mêmetemps 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 zonerelevant 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’équationqu’elle souhaite établir entre configuration physique des fonds et règles de droitapplicables, même s’il est difficile de comprendre dans la logique de cette con-ception que les prolongements naturels de deux Etats puissent alors sechevaucher. Mais, en tout état de cause, cette jurisprudence de la Cour a exercépendant longtemps une sorte d’effet de glaciation, tant sur les juges que sur lesEtats.

A la vérité, malgré les réticences antérieures observées dans la doctrine et lajurisprudence, 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 2001devant la 6ème Commission de l’Assemblée Générale des Nations Unies.

8 Les deux compromis conclus le 2 février 1967 entre, d’une part, la Républiquefédérale d’Allemagne et le Danemark, d’autre part entre la République fédéraled’Allemagne et les Pays-Bas ne sollicitaient pas de la CIJ le tracé de lignes de délimita-tion. La question posée était la suivante: “Quels sont les principes et les règles du droitinternational applicables à la délimitation entre les Parties des zones de plateau conti-nental 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).


pour que cette théorie soit abandonnée – au moins à l’intérieur des 200 millesmarins11 – au profit du seul titre de la distance, tel qu’il figure à l’article 76paragraphe 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 dujuge. De ce point de vue, il semble que trois caractéristiques principales puis-sent être décelées.

1. L’établissement d’un Processus de Délimitation Simple

Finie “la croisade contre l’équidistance” dont parlait à juste titre Prosper Weilpour qualifier l’attitude adoptée pendant de longues années par le juge.12

Désormais, la première étape empruntée par celui-ci consiste à tracer une ligneprovisoire d’équidistance (“équidistance de premier pas”13). Puis, le jugeexamine – deuxième étape – si la ligne ainsi tracée produit un résultatéquitable. Si celui-ci est atteint, la ligne “provisoire” d’équidistance devientdéfinitive.14 Au contraire, si la ligne provisoire ne satisfait pas les exigences du résultat équitable, le juge – troisième étape – doit procéder à son “ajuste-ment” ou à son “déplacement” en fonction des circonstances pertinentes del’espèce.15

11 La Cour précise, en effet: “du moment que l’évolution du droit permet à un Etat deprétendre que le plateau continental relevant de lui s’étend jusqu’à 200 milles de sescôtes, quelles que soient les caractéristiques géologiques du sol et du sous-sol corre-spondants, il n’existe aucune raison de faire jouer un rôle aux facteurs géologiques ougéophysiques jusqu’à cette distance, que ce soit au stade de la vérification du titrejuridique des Etats intéressés ou à celui de la délimitation de leurs prétentions”, CIJRec. 1985, para. 39, p. 35. Elle refuse même sèchement tout rôle aux considérationsphysiques des fonds en tant que circonstance pertinente: “Quant à faire jouer un rôlecomme circonstance pertinente aux fins de la délimitation à un facteur qui n’en joueaucun 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 équatorialeintervenant: “La Cour décide . . . que la ligne d’équidistance aboutit à un résultatéquitable aux fins de la délimitation du secteur dans lequel la Cour a compétence pourse prononcer”, para. 306 de l’arrêt.

15 Depuis 1985 et l’arrêt rendu dans le différend entre Malte et la Libye, les décisionsfont état d’ajustement ou de déplacement à effectuer au cas où la ligne provisoired’équidistance n’aboutirait pas à un résultat équitable. Mais n’est plus évoqué lechangement possible de méthode. Or, dans l’Affaire de la délimitation de la frontière

6 Laurent Lucchini

Ce mode opératoire a été appliqué de façon constante dans les différentesdécisions rendues, y compris dans les arrêts les plus récents, aussi bien entreQatar et Bahrein en 2001 qu’entre le Cameroun et le Nigéria en 2002. Lesarrêts 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 laplace tenue par l’équidistance dans l’opération de délimitation. On ne revientpas – bien entendu – sur les oppositions irréductibles du “groupe des 22”(partisans de l’équidistance) et du “groupe des 29” (partisans de l’équité) aucours des travaux de la 3ème Conférence des Nations Unies sur le droit de lamer et les piètres résultats conventionnels auxquels elles ont conduit.17 Maisle juge lui même s’est livré pendant longtemps à une critique sévère del’équidistance en en soulignant les effets pervers18 et en lui déniant touteplace prioritaire ou même particulière dans l’opération de délimitation.19

L’arrêt du 3 juin 1985 lui même, qui marque pourtant une profonde évolu-tion, sinon un revirement, quelques paragraphes avant de faire recours àl’équidistance provisoire se montre très précautionneux à son égard:

La Cour ne saurait admettre, même comme étape préliminaire et provisoire dutracé d’une ligne de délimitation, la méthode de l’équidistance doive forcémentêtre utilisée.20

Or, désormais, l’attitude du juge a profondément changé. Du fait de sa com-modité 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 laCIJ insistait sur cette possibilité dans les termes suivants: “Il n’y a pas . . . une méthodedont on puisse dire absolument qu’elle doit être prise en considération en priorité, uneméthode par l’application de laquelle toute opération de délimitation devrait pouvoircommencer, quitte à en corriger les effets ou même à l’écarter ensuite en faveur d’uneautre si lesdits effets se révélaient carrément insatisfaisants par rapport à la situationexistant en l’espèce. Dans chaque cas concret, les circonstances peuvent au départ faireapparaître une certaine méthode comme mieux appropriée; mais il faut toujours seréserver la possibilité d’y renoncer en faveur d’une autre méthode si cela se justifiaitpar 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 méth-

ode peut dans certains cas aboutir à des résultats de prime abord extraordinaires, anor-maux 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 arbi-trale du 14 février 1985, para. 102.

20 CIJ Rec. 1985, para. 43, p. 37.


tion. En procédant ainsi, le juge rejoint largement la pratique des Etats, tellequ’elle se dégage des accords de délimitation dans lesquels l’équidistanceoccupe une place de choix.21 Il rejoint également les pratiques nationalesinternes; en effet, chaque Etat, confronté à une opération de délimitation, tracenaturellement au départ, une ligne d’équidistance afin d’avoir – avant mêmed’engager toute négociation – une première vue d’ensemble.

• La seconde observation porte sur les circonstances pertinentes. Ainsi qu’il aété vu, le processus de délimitation est fondé sur un schéma général unique,mais ce schéma général se concilie cependant avec l’idée selon laquellechaque cas constitue un unicum22 qui nécessite la prise en considération descirconstances pertinentes (ou spéciales) propres à l’espèce.

Dans ces conditions, ces circonstances ne peuvent en toute bonne logique don-ner lieu à l’établissement d’une liste complète. Le juge l’a affirmé dans les ter-mes clairs suivants:

Il n’y a pas de limites juridiques aux considérations que les Etats peuvent examinerafin de s’assurer qu’ils vont appliquer des procédés équitables.23

On sait cependant, au regard des décisions rendues, que la plupart de ces cir-constances pertinentes sont de nature géographique.24

Ces circonstances sont diverses:

– disproportion flagrante entre les longueurs respectives des côtes des deuxEtats en présence, pour la partie des côtes – bien sûr – s’ouvrant sur la zonedans laquelle la délimitation doit avoir lieu;

– plus généralement, configuration côtière: concavité, convexité, nombreuseset profondes indentations;

– présence d’îles relevant de l’un ou l’autre des Etats dans la zone où la délim-itation doit avoir lieu, leur plus ou moins grande dimension, leur position (dubon ou du mauvais côté de la ligne médiane) etc.

Mais d’autres considérations peuvent éventuellement avoir une certaine perti-nence: facteurs économiques, facteurs de défense et de sécurité25 etc.

21 Cf. J. Beer-Gabel, “Les accords conclus en matière de délimitation”, in: Le proces-sus 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”, TheGeographical 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 maritimesentre le Canada et la France, para. 24.

25 Ces intérêts de défense et de sécurité ont été particulièrement pris en considération

8 Laurent Lucchini

Toutefois, il n’existe pas de relation précise, mathématique entre les facteursretenus par le juge et la mesure corrélative du déplacement de la ligned’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 peuà part dans la jurisprudence internationale, dans la mesure notamment où ellelaisse apparaître – plus que dans d’autres domaines – l’accomplissement par lejuge d’une fonction qui déborde sensiblement celle qui lui est normalementdévolue.

En effet, le rôle assigné au juge en droit international est d’interpréter la règlede 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 interna-tionale de Justice a pour mission de trancher les litiges juridiques qui lui sontsoumis “conformément au droit international”? Parfois, la Cour s’est expressé-ment refusée d’ailleurs à se reconnaître un rôle créateur.26

Et pourtant, il semble bien qu’en matière de délimitation maritime, le juge aitentendu 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 Cours’est refusée à voir dans l’article 6 de la Convention de Genève de 1958 sur leplateau 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 laFrance au Royaume Uni. Le Tribunal reconnaît que “Parmi les . . . éléments du régimejuridique entrant en ligne de compte figurent les diverses considérations d’équité invo-quées par les Parties au sujet de leurs intérêts respectifs en matière de navigation, dedéfense et de sécurité”, para. 188.

26 “(La Cour) . . . dit le droit existant et ne légifère point. Cela est vrai même si laCour, 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 lalicéité de la menace ou de l’emploi d’armes nucléaires, CIJ Rec. 1996, para. 18, in finep. 237.

27 Rappelons les termes du paragraphe 1er de l’article 6 qui règle de la question de ladélimitation entre Etats dont les côtes se font face: “Dans le cas où un même plateaucontinental est adjacent aux territoires de deux ou plusieurs Etats dont les côtes se fontface, la délimitation du plateau continental entre ces Etats est déterminée par accordentre ces Etats. A défaut d’accord, et à moins que des circonstances spéciales nejustifient une autre délimitation, celle-ci est constituée par la ligne médiane dont tousles points sont équidistants des points les plus proches des lignes de base à partirdesquelles est mesurée la largeur de la mer territoriale de chacun de ces Etats.”


trainte de définir les principes juridiques régissant la délimitation du plateauentre deux Etats. Mais, sans doute peu désireuse de susciter de trop vives réac-tions des Etats, elle présente ces principes comme étant le produit d’un proces-sus coutumier qui s’est développé hors de son action. En revanche, en 1993, àl’occasion de l’Affaire de la délimitation maritime dans la région située entre leGroenland et Jan Mayen (Danemark c. Norvège), elle se montre plus sûred’elle et reconnaît en ces termes le rôle que le juge a tenu dans la mise en placedes ces règles coutumières:

Ainsi pour la délimitation du plateau continental . . . même s’il convenait d’appli-quer, non l’article 6 de la Convention de 1958, mais le droit coutumier du plateaucontinental 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 économiqueexclusive, au plateau continental et qui s’exprime par la formule: “principeséquitables-circonstances pertinentes”.31

Or, ces deux systèmes de règles sont proches l’un de l’autre et s’il y a un grandmérite à reconnaître à la jurisprudence, c’est sans doute – après des tergi-versations de départ – d’avoir souligné leur profonde unité, sinon même leuridentité.

Cette proximité a été tôt remarquée. De façon timide mais clairvoyante, leTribunal arbitral appelé à se prononcer sur la délimitation du plateau continen-tal entre la République française et le Royaume-Uni de Grande Bretagne et

28 Arrêt du 14 juin 1993, CIJ Rec. 1993, para. 51, p. 61.29 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’applica-tion 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.

10 Laurent Lucchini

d’Irlande du Nord notait déjà, dans sa Décision du 30 juin 1977, la parentéexistant entre les dispositions de l’article 6 de la Convention de 1958 sur leplateau continental et les principes équitables hérités de la jurisprudence:

Les différentes façons dont les exigences des principes équitables ou les effets descirconstances spéciales sont présentées reflètent des différences d’approche et determinologie plutôt que des différences de fond.32

L’arrêt rendu par la Haute juridiction de La Haye le 14 juin 1993 dans le dif-férend 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 ainévitablement une tendance à l’assimilation des circonstances spéciales de l’arti-cle 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 résultatéquitable.33

Cette même idée est reprise de façon récurrente. On la retrouve exprimée dansles arrêts de 2001 dans le différend maritime entre Qatar et Bahrein et de 2002 àpropos 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 principeséquitables-circonstances pertinentes telle qu’elle s’est développée dans la jurispru-dence 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. Ellene concerne pas seulement les dispositions de l’article 6 de la Convention de1958 sur le plateau continental et les règles venues de la jurisprudence relativesau plateau, mais elle concerne plus généralement toutes les délimitations mar-itimes 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 dela zone économique exclusive, de la zone de pêche ou du plateau continental.

Ainsi, le recul dont nous disposons désormais permet de constater la verdeuret la modernité de l’article 6 de la Convention de 1958. Elle permet égalementde saluer la sagesse des rédacteurs des Conventions de 1958, puisque, après desdétours, ce sont des règles similaires à celles qu’ils avaient forgées qui aujour-d’hui prévalent, bien que la définition du plateau continental ait profondémentchangé entre temps.

Cette évolution jurisprudentielle est d’autant plus positive qu’il en est résultéclarté et visibilité pour les plaideurs éventuels.

32 Para. 148.33 CIJ Rec. 1993, para. 56, p. 62.34 CIJ, Arrêt du 16 mars 2001, para. 231.


Malgré tout, quels que soient les progrès réalisés par la jurisprudence et laqualité de celle-ci, l’œuvre entreprise en matière de délimitation n’est pasencore 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 autredomaine, puisqu’il n’existe pas en la matière de jurisprudence internationale,celui des délimitations maritimes futures qui seront soumises au juge et quiimpliqueront des plateaux continentaux s’étendant au delà des 200 millesmarins.

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 com-

plet, 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 pertinentepour la délimitation.35 Les obscurités relatives à cette notion sont de deuxordres:

(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’estexprimée dans le compromis;36

Parfois, il tient compte de la volonté convergente des Etats en litige, tellequ’elle découle de leurs plaidoiries;37

35 Avec des variations de vocabulaire qui semblent traduire un certain embarras dujuge. 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 dedélimitation” (CIJ Rec. 1984, para. 41, p. 272), de “région concernée” (S.A. du 30 juin1977, para. 2) etc.

36 Ainsi en est-il dans l’Affaire de la délimitation de la frontière maritime dans larégion 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 laSentence du 10 juin 1992: “Dans la présente affaire, les deux Parties ont déterminé,

12 Laurent Lucchini

Mais le juge peut aussi prendre lui même l’initiative de fixer les limites dela 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 hypothèsed’interférence des droits ou revendications éventuels d’Etats tiers dans lazone) quelle est l’utilité profonde de la fixation de la zone dans laquelle ladélimitation doit avoir lieu, notamment à raison de l’existence de la notionvoisine, mais plus opératoire, de “côtes pertinentes”.

– La deuxième notion pour laquelle le flou prévaut est, en effet, celle de “côtespertinentes”.

A l’évidence, les seules côtes à retenir pour l’opération de délimitation sontcelles par le biais desquelles un chevauchement des titres existe. Néanmoins, laréalité de chaque cas rend les choses plus complexes.

Il est vrai que le choix des segments de côtes pertinentes est un problèmedélicat. Il est cependant mal résolu. La jurisprudence y apporte une attentionparfois distraite;39 surtout, elle manque de constance dans les quelques indica-tions qu’elle fournit. Il arrive même que l’identification des côtes pertinenteslui apparaisse impossible, comme cela s’est produit dans le différend opposantla Libye et Malte, où le juge est acculé à un constat d’impuissance:

Le contexte géographique rend la marge de détermination des côtes pertinentes etdes zones pertinentes si large que pratiquement n’importe quelle variante pourraitêtre retenue.40

En définitive, on peut se demander cependant si – compte tenu de la placedésormais occupée par la pratique de la “ligne d’équidistance provisoire” etdans la logique de cette pratique – ne devraient pas être retenus comme seulspertinents les segments de côtes joignant les points de base sur lesquels s’ap-puie la construction de la ligne d’équidistance entre deux Etats voisins.41

comme région concernée, la concavité géographique formée par Terre-Neuve et laNouvelle 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 lescôtes qui devraient être considérées comme faisant partie de la zone en litige” (para. 27de la Sentence du 10 juin 1992), l’attention du Tribunal d’arbitrage s’est longuementattachée 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 leCameroun et le Nigéria; Guinée équatoriale intervenant? La Cour considère, en effet,qu’elle doit “déterminer quelles sont les côtes pertinentes des Parties à partir


• 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 harmonieusementdans la logique d’application de la notion d’un plateau continental considérécomme le prolongement naturel du territoire terrestre. En d’autres termes, laligne de séparation entre les plateaux continentaux des deux parties devait êtretracée de telle sorte qu’elle n’empiète pas sur le prolongement naturel du terri-toire terrestre de l’une d’elles. A cet égard, le passage suivant du dispositif del’arrêt de la Cour internationale de Justice du 20 février 1969 se révélait partic-ulièrement éclairant:

La délimitation doit s’opérer . . . de manière à attribuer, dans toute la mesure dupossible, à chaque Partie la totalité des zones du plateau continental qui con-stituent le prolongement naturel de son territoire sous la mer et n’empiètent pas surle prolongement naturel du territoire de l’autre.42

Mais, hors l’application de la théorie du prolongement naturel, abandonné parla jurisprudence pour un plateau ne s’étendant pas au delà des 200 milles, quedevient le principe?

Il est évident, tout d’abord, que toute projection des côtes pertinentes d’unEtat empiète sur la projection des côtes pertinentes de l’autre Etat et entraîne uneffet d’amputation. Le phénomène est inhérent à toute délimitation et vaut pourla projection des deux Etats en présence.

Cette observation étant faite, le principe signifierait-il que si le titre sur leplateau 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 sou-veraineté), 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’orig-ine 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 lelitige l’opposant à la Libye.44 C’est également une considération à laquelle leTribunal, 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 ligned’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).

14 Laurent Lucchini

Pour faire reposer une délimitation sur une base équitable et objective, il fautautant que possible chercher à assurer à chaque Etat le contrôle des territoiresmaritimes 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 dela délimitation de la frontière maritime dans la région du golfe du Maine faitpreuve de clarté en classant par mi les principes équitables celui . . .

recommandant dans la mesure du possible, le non empiétement de la projection enmer 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 grisesest-elle le signe indiquant que des progrès sont encore à faire dans l’affinementsur certains points de la jurisprudence ou bien est-elle la rançon de la nécessairesouplesse dont doit pouvoir disposer le juge dans son appréciation d’ensemblede la situation d’espèce?

Si cette seconde interprétation n’a pas à être retenue, le juge serait alors bieninspiré d’augmenter la visibilité en apportant plus de lumière sur les points ci-dessus évoqués, comme sur d’autres d’ailleurs, notamment sur les facteurs decaractère 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 oule déplacement de la ligne provisoire d’équidistance? Autrement dit, lajurisprudence 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’unregistre nouveau, est la question de la délimitation par la voie juridictionnelleinternationale de plateaux continentaux se prolongeant au delà des 200 millesmarins.

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 renduen 1984 dans le litige opposant les Etats Unis au Canada, la Chambre de la Cour interna-tionale de Justice s’était montrée peu favorable à la prise en considération de ces fac-teurs économiques en tant que circonstance pertinente, sauf à vérifier que la ligne deséparation adoptée n’était pas “susceptible d’entraîner des répercussions cata-strophiques pour la subsistance et le développement économique des populations despays 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 juin1993 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. Voirnotamment CIJ Rec. 1993, paras. 73–76.


On connaît les dispositions de l’article 76 paragraphe 1 de la Convention surle droit de la mer de 198248 qui s’appuient sur deux titres à la possession dedroits 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 trèssimplificatrice) jusqu’à 350 milles ou à 100 milles au delà de l’isobathe des2500 mètres.49

On connaît également l’existence de la Commission des limites du plateau con-tinental, organe scientifique et technique prévu par le paragraphe 8 de l’article76 et par l’Annexe II de la Convention de 1982.50 Sa tâche est de formuler desrecommandations sur les demandes présentées par les Etats au titre du plateaucontinental excédant les 200 milles. Si l’Etat a seul compétence pour procéderà la fixation définitive des limites de son plateau continental étendu, il doit, enrevanche, le faire sur la base des recommandations émises par la Commission.51

Jusqu’à présent, trois demandes ont été présentées à la Commission: cellesde la Russie, du Brésil et de l’Australie.

48 L’article 76 stipule dans son paragraphe 1: “le plateau continental d’un Etat côtiercomprend 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 rebordexterne 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 margecontinentale se trouve à une distance inférieure”. Voir à ce sujet: L. Lucchini, “L’article76 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 ledroit 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 lignemarquant sur les fonds marins, la limite extérieure du plateau continental, tracée con-formément au paragraphe 4, lettre a), i) et ii), sont situés soit à une distance n’excédantpas 350 milles marins des lignes de base à partir desquelles est mesurée la largeur de lamer territoriale, soit à une distance n’excédant pas 100 milles marins de l’isobathe de2500 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 conti-nental 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 Marffy-Mantuano, “Les travaux de la Commission des limites du plateau continental in Leplateau 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 auxEtats côtiers des recommandations sur les questions concernant la fixation des limitesextérieures de leur plateau continental. Les limites fixées par un Etat côtier sur la basede ces recommandations sont définitives et de caractère obligatoire.”

16 Laurent Lucchini

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 paraîtraitdevoir demeurer indifférente aux litiges éventuels de délimitation et se pronon-cer uniquement au plan scientifique sur le bien-fondé des limites extérieures duplateau continental étendu soumises par les Etats.

Ce n’est pourtant pas exactement la position qu’elle a adoptée, puisqu’à l’ar-ticle 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’exam-ine pas la demande présentée par un Etat partie à ce différend et ne se prononcepas sur cette demande.52

Elle ne se reconnaît le droit de le faire “qu’avec l’accord préalable de tous lesEtats parties à ce différend . . .”53 ou que si l’Etat présente une “demande par-tielle” “portant sur la partie qui n’est pas visée par un différend maritime outerrestre non réglé avec d’autres Etats.”54

Une question fondamentale doit alors être posée: la jurisprudence interna-tionale, dont les grandes lignes ont été ci-dessus rappelées, est-elle adaptée àune 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’hypo-

thèse 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, enrevanche, dispose d’un titre à un plateau se prolongeant au delà. Et il existe unchevauchement entre ces deux titres.56

Les deux Etats en cause pourront peut-être trouver, dans le cadre des négoci-ations qu’ils mèneront, un accord qui leur convienne et qui leur paraisse à

52 CLCS/L/3 Annexe 1.53 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 ledroit 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 mettanten cause un plateau continental dépassant les 200 milles, en revanche, une sentence du26 mars 2002 a été prononcée par un Tribunal arbitral canadien à propos d’un litigeopposant deux Provinces canadiennes: celle de Terre-Neuve et du Labrador et celle de laNouvelle-Ecosse.

56 On peut remarquer qu’en cas de délimitation entre deux Etats dont les côtes se fontface, la pratique bien répandue du tracé d’une ligne unique valant tant pour le plateauque pour la zone économique exclusive ne pourra être mise en œuvre, si l’un au moinsdes plateaux dépasse les 200 milles.


tous deux équitable. Ainsi sept accords de délimitation ont d’ores et déjà étéconclus.57

Mais, à supposer l’entente directe impossible, quelles règles pourraient-ellesêtre mises en œuvre par la juridiction saisie. Dans le cas envisagé, l’appui sicommode 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 soucid’équité, l’Etat au plateau continental élargi et privilégier, au contraire, celuiau plateau continental insusceptible de dépasser les 200 milles. Doit-on con-sidérer, par exemple, que les droits des Etats perdent de leur intensité au furet à mesure que l’on s’éloigne des côtes et que l’on touche à ce qui serait – àdéfaut d’emprise étatique – le patrimoine commun de l’humanité?

Mais alors, que dire d’une telle conception qui tend à introduire une discrimi-nation entre les deux titres retenus par l’article 76 paragraphe 1, celui de la dis-tance et celui du prolongement naturel, alors que le texte même de cettedisposition 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 laprise en considération des circonstances pertinentes de l’espèce en vue deparvenir à une frontière équitablement tracée?

De plus, ces circonstances pertinentes sont-elles celles habituellement rencon-trées, ou bien d’autres viendront-elle s’ajouter? Devrait-on assister à unenrichissement de la catégorie de ces circonstances? Par exemple, certainesd’entre elles pourraient-elles être en relation avec la structure géologique ougéomorphologique des fonds, notamment en tenant compte de la configurationdu pied du talus?

On peut craindre, cependant, qu’une telle solution centrée sur la prise enconsidération des seules circonstances pertinentes, ne fasse de nouveau surgirle spectre de la subjectivité du juge, de ce que le juge Gros disait être “l’équiv-alent d’un pouvoir discrétionnaire”.59

57 Sur six de ces accords, voir R. Meese, op. cit., supra note 54, pp. 186–192.58 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 maiscomplémentaires, qui demeurent l’une et l’autre des éléments essentiels de la concep-tion 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 équitéayant pour mesure l’œil du juge”, CIJ Rec. 1984, opinion dissidente du juge Gros, para.41, p. 386.

18 Laurent Lucchini

• Doit-on partager par moitié la zone de chevauchement? Mais alors, quelssont les principes juridiques propres à étayer cette solution? N’est-on pas làen présence d’un partage commode, mais peu fondé en droit?

Autant de questions qui, pour l’instant, demeurent sans réponse. Soyons sûrsque le juge trouvera le moment venu la solution.

Deux considérations de nature différente peuvent être formulées au terme decette intervention.

(1) Incontestablement, le juge est parvenu à donner une cohérence d’ensembleà un processus de délimitation plus lisible, mieux balisé. Il paraît haute-ment souhaitable qu’emporté par son énergie cinétique, il parvienne à éliminer progressivement de sa jurisprudence actuelle les zones grises qui ydemeurent encore. Evidemment, une marge de manœuvre appréciable estnécessaire au juge dans sa recherche d’une solution, notamment celle req-uise pour la détermination des circonstances pertinentes propres au cas etleur impact. En revanche, certains concepts gagneraient dans l’intérêt desEtats à être plus précisément définis. On pense spécialement à celui decôtes pertinentes.

(2) Un mot, enfin, sur la relation entre le Tribunal international du droit de lamer et la délimitation maritime. Inexistante à l’heure actuelle, on ne peutqu’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 cedomaine, des années de retard sur la Cour internationale de Justice et on ajouteque, s’il était saisi d’une affaire de ce genre, il risquerait d’élaborer unejurisprudence différente de celle existant actuellement, facteur qui serait denature 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 lafois en affinant la jurisprudence classique des délimitations sur les points oùelle en a besoin, et en dessinant certaines perspectives pour les délimitationsdes plateaux continentaux au delà des 200 milles.

Confiance peut donc être faite à son discernement, confiance également à sonimagination, puisque – si l’on en croit Giraudoux – l’imagination des juristesdépasse celle des poètes.

The Role of International Dispute SettlementInstitutions in the Delimitation of the OuterContinental Shelf

Rüdiger Wolfrum*

I. INTRODUCTION

Assessing the role of international dispute settlement institutions in the delimi-tation of the outer continental shelf makes it necessary to distinguish betweenthree different scenarios namely: First, the establishment by a coastal state ofthe outer limits of its continental shelf on the basis of the recommendations of the Commission on the Limits of the Continental Shelf (Commission), sec-ond, the establishment of these limits not being based upon a respective recom-mendation of the Commission and third, those limits having been establishedwithout the coastal State concerned having consulted the Commission at all. It is the first scenario which is discussed controversially in literature,1 the


19

* 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 SeaConference on how Art. 76 of the Convention and the dispute settlement provisionswere to interrelate. R.W. Smith, G. Taft, “Legal Aspects of the Continental Shelf”, in:

20 Rüdiger Wolfrum

legislative history of the respective provisions of the Convention on the Law ofthe Sea being inconclusive whether in this case there is still room for judicialdispute settlement. The provision causing such divergence of views stems fromthe wording of the last sentence of Article 76, paragraph 8, of the Conventionon the Law of the Sea (Convention) according to which “The limits of the shelfestablished by a coastal State on the basis of these recommendations [of theCommission] shall be final and binding.”

To establish whether the recommendations of the Commission or decisionsof a State based thereupon may be challenged before a dispute settlement insti-tution under Part XV of the Convention makes it necessary to deal with severalissues. First, it is necessary to assess the functions the Commission exercises inrespect to a coastal State having submitted its data concerning the outer limitsof its continental shelf as well as in respect to other States which, in one way orthe other may be affected by the establishment of the limits of this particularouter continental shelf. To be more concrete, it is necessary to establishwhether the Commission exercises judicial or quasi-judicial functions whichmay exclude third party dispute settlement. A second issue is as to whetherArticles 297 and 298 of the Convention contain limitations or exceptions con-cerning the jurisdiction of a judicial dispute settlement institution under PartXV of the Convention. A third issue which has to be answered on the basis ofinternational law in general rather than on the basis of the Convention on theLaw of the Sea is whether a State, an international organization or anotherentity may have standing concerning the establishment of the outer limits of aparticular continental shelf.

As far as the two other scenarios referred to above are concerned only thetwo latter issues are of relevance. The three issues will be dealt with in theorder 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 insteadthat “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 ContinentalShelf Beyond 200 Nautical Miles: The Relationship Between the CLCS and Third Party Dispute Settlement”, in: A.G. Oude Elferink, D.R. Rothwell (eds.), OceansManagement in the 21st Century: Institutional Frameworks and Responses (Leiden/Boston, Martinus Nijhoff Publishers, 2004), pp. 107–123; on the first application sub-mitted to the Commission, namely the one of Russia, see A. de Marffy Mantuano, “Lafixation des dernières limites maritimes: Le rôle de la Commission des Limites duPlateau Continental“, in: La Mer et son Droit: Mélanges Offerts à Laurent Lucchini etJean-Pierre Quéneudec (Paris, A. Pedone, 2003), pp. 399–419.

The Role of International Dispute Settlement Institutions 21

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 Conventionon the Law of the Sea in respect of the establishment of the outer limits of thecontinental shelf.2 Its establishment was a necessary element of bridging thegap between the aspirations of those States which considered the establishmentof the outer limits of their continental shelves as part of their sovereignty and ofthose which wanted to limit a further seaward extension of national claims tothe detriment of an internationally administered seabed area.3 The latter viewprevailed, at least in principle, although it may be difficult to establish the exactouter limits of the continental shelf under national jurisdiction.4 The role of dis-pute settlement mechanisms concerning the delimitation of the outer continen-tal shelf are less limited as occasionally suggested. Although neither theCommission on the Limits of the Continental Shelf nor the InternationalSeabed Authority may initiate proceedings against a delimitation established bya coastal State nor a coastal State may challenge recommendations of theCommission before judicial dispute settlement mechanisms under Part XVof the Convention, the role of third States in this respect is less limited thanoriginally felt. States may in respect of a delimitation decision taken by acoastal State claim that the rights or interests as a State with an adjacent oropposite coast have been infringed. Further, States may invoke, thus acting alsoon behalf of the international community that a particular delimitation waseither not based upon a recommendation of the Commission on the Limits ofthe Continental Shelf or was an unjustified encroachment upon the Area.Article 76, paragraph 8, last sentence, of the Convention does not constitute anabsolute bar against initiating respective proceedings before the judicial disputesettlement mechanisms under Part XV of the Convention. One issue which maybe subject of judicial interpretation is the formula for the determination of theouter limits of the continental shelf under national jurisdiction. This formulacombines findings and the terminology of geography, geology and geomor-phology. This provision faces a dilemma which is not uncommon in modernnational 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 theConvention; see on this the Report of the ILA Berlin Conference (2004), Legal Issues ofthe Outer Continental Shelf, available at: http://www.ila-hq.org/pdf/Outer%20Con%20Shelf/Berlin%20Report%202004.pdf (at pp. 2–4).

3 See A. de Marffy Mantuano on the genesis of the Commission, op. cit., supranote 1, at pp. 400–403.

4 T.L. McDorman, “The Role of the Commission on the Limits on the ContinentalSelf: A Technical Body in a Political World”, 17 The International Journal of Marineand Coastal Law, 2002, pp. 301–324.

22 Rüdiger Wolfrum

which by having been included in a legal text changes its nature accordingly. Infact, the same words may, at least in theory, become the subject of an interpre-tation5 provided by an institution for judicial settlement and, accordingly, theinterpretation rendered by the Commission may compete with the one of suchjudicial settlement institution. This interrelation of non-legal terms with ameaning of their own and which may change in accordance with further sci-entific findings is dealt with in depth by the contribution of Doliver Nelson tothe Liber Amicorum of Judge Shigeru Oda.6

The Commission is an organ which has been assigned specific functions. Itsmain function is to make an independent evaluation of the submissions ofcoastal States in respect of the outer limits of a continental shelf. According toArticle 76, paragraph 8, of the Convention coastal States are under the obliga-tion “. . . to submit information on the limits of the continental shelf beyond200 nautical miles from the baselines from which the breath of the territorialsea is measured to the Commission.”7 Which data and other material theCommission considers to be of relevance has been specified in its ModusOperandi for the consideration of a submission made to the Commission on theLimits 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 con-cerned by the Commission proceeds from the fact that the establishment of theouter limit of the continental shelf rests – within the limits of Article 76 of theConvention – in the competence of the coastal State concerned. Accordinglythe methodology and the data employed by the State to determine either thelocation of the foot of the continental slope or the formula line at a distance of60 nautical miles from the foot of the continental slope or the data and method-ology to determine the formula line delineated by reference to the outermostfixed points at each of which the thickness of rocks is at least 1 per cent of theshortest 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 FactoryCase (PCIJ, Series A, Judgments No. 11, p. 10) that interpretation must be understood asmeaning ‘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 (TheHague/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 soonas possible but in any case within 10 years of the entry into force of the Convention forthat State (Art. 4, Annex II, Convention). The 10-year limit has been relaxed by a deci-sion of the Meeting of States Parties to the Convention of 29 May 2001. The decisionprovides that for States for which the Convention entered into force before 13 May1999, the 10-year period shall be taken to have commenced on that date. It was furtherdecided to keep the general ability of States to fulfil the requirements of Art. 4 of AnnexII under review, (SPLOS/72 of 29 May 200, paras. (a) and (b)).

8 UN Doc. CLCS/40, 2 July 2004.


ated. Equally the methodology and formula used by the coastal State to satisfythe other requirements for establishing the outer limits of the continental shelfare scrutinized. The Commission mainly seems to assess how the coastal Stateconcerned established the outer limits of its continental shelf. Although theCommission may seek external advice it is not meant to replace the judgmentof the coastal State by its own. It instead tries, without infringing upon the sov-ereign rights of a State in this respect, to direct the State to come to a delimita-tion of the outer continental shelf which conforms to Article 76 of theConvention.

The Commission shall make recommendations to coastal States on mattersrelated to the establishment of the outer limits of the continental shelf beyond200 nautical miles. This wording has been chosen carefully. It means that theCommission should comment upon the process which the coastal State con-cerned has applied to establish the outer limits rather than on the limit itself inan isolated fashion. The recommendations of the Commission shall not preju-dice matters relating to the delimitation of boundaries between States withopposite or adjacent coasts. The Rules of Procedure of the Commission9 pro-vide for the possibility of the coastal State concerned only to establish the outerlimits of a portion of its continental shelf or for a joint or separate submissionsof several states. If the conflict cannot be overcome trough one of such proce-dure the Commission will refrain from making recommendations; the conflict-ing claims have to be solved by the parties first.

According to Article 76, paragraph 8, of the Convention, a coastal State shallestablish 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 ofthe Commission, the State is to make a revised or new submission to theCommission. In theory this process may continue indefinitely.10 According to Article 76, paragraph 8, of the Convention, the limits of the shelf establishedby a coastal State on the basis of these recommendations shall be final andbinding.

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 oradjacent coasts or in other cases of unresolved land or maritime disputes) of the Rules ofProcedure of the Commission on the Limits of the Continental Shelf, CLCS/40, 2 July2004, which are (with further Documents of the Commission) available on the websitehttp://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 thefirst revision a stalemate will emerge between the Commission and the coastal Stateconcerned.

24 Rüdiger Wolfrum

scientific and technical advice, if requested by the coastal State concerned dur-ing the preparation of the relevant data.11 A competence not referred to in theConvention on the Law of the Sea which, nevertheless, is being fulfilled by theCommission is the interpretation, or at least giving guidance, to the interpreta-tion of Article 76 of the Convention.12

The Commission is composed of an elected group of 21 technical specialistsin the field of geology, geophysics or hydrography. They are elected by theStates Parties to the Convention from among their nationals having due regardto the need to ensure equitable geographical representation.

In spite of the possibility that the Commission may disagree with thefindings of the coastal State with regard to the outer limits of its continentalshelf it transpires from the Rules of Procedure of the Commission that its work-ing method is non-adversarial.13 The Commission carries out its ‘consideration’of the data of a submitting State in a collaborative manner; the respective Statemay be represented at that meeting although without the right to vote. In partic-ular the potential counterpart to any national claim which unavoidablydecreases the scope of the international seabed area, the International SeabedAuthority, has no role in the deliberations of the Commission. This is, consider-ing that the International Seabed Authority acts on behalf of mankind as awhole, hardly convincing.

The whole procedure employed by the Commission and in particular the factthat its findings are of a recommendatory nature speak against any attempt toqualify the Commission as a judicial or quasi-judicial body. Those who, never-theless, argue that against the establishment of the outer limits of a continentalshelf on the basis of the recommendations of the Commission there is norecourse to judicial settlement under Part XV of the Convention base theirarguments upon the wording of the last sentence of paragraph 8 of Article 76 ofthe Convention already referred to according to which such limits shall be finaland binding. If the words ‘final and bind’ are understood as being final andbinding for all States Parties to the Convention this would, so it has beenargued, exclude any judicial challenge including recourse to judicial disputesettlement against such delimitation.14 Although this interpretation is the onlyone which reflects fully the wording of Article 76, paragraph 8, last sentence, ofthe Convention and equally conforms to object and purpose of the procedureestablished under Article 76 of the Convention, it cannot be construed so as to

11 Annex II, Art. 3, para. 1 (b).12 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 theSea, Office of Legal Affairs, The Law of the Sea: Definition of the Continental Shelf,1993, p. 29.


already exclude recourse to a judicial dispute settlement procedure. It remainspossible to challenge that the actual delimitation is based upon the recommen-dation 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 againstsuch delimitation under Part XV of the Convention. The compulsory disputesettlement mechanisms of the Convention are not open to the Commission.These procedures are open for States and for other entities specifically providedfor in the Convention. No provision is made for the Commission in thisrespect.16

For the same reason it is impossible for a coastal State to challenge a recom-mendation of the Commission by having recourse to a dispute settlement pro-cedure under Part XV of the Convention. The only option a coastal State has incase it disagrees with a recommendation of the Commission is to make arevised submission or to disregard the recommendation of the Commission. Inthe latter case the delimitation cannot be considered final and binding, though.The Secretary General of the United Nations who acts as a “depositary” con-cerning the charts on the outer limit of the continental shelf would be unable toaccept 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 againstcoastal States attempting to establish the outer limits of their continentalshelves against the respective recommendation of the Commission. This rem-edy should not be underrated, though. The fact that the Secretary Generalrefuses to publicize the charts and other information on the outer limits of aparticular continental shelf flag to the community of States that such limitswere established contrary to the procedure provided for in the Convention onthe 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 activi-ties 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 disputeconcerning the interpretation and application of the Convention can be submit-ted 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 20thAnnual 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.

26 Rüdiger Wolfrum

Articles 297 and 298 of the Convention establish certain limitations on andexceptions 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 83of the Convention relating to sea boundary delimitation are covered by Article298, paragraph 1 (a), of the Convention. According to that provision, Statesmay declare that they do not accept the compulsory dispute settlement proce-dures as set out in section 2 of Part XV of the Convention in respect to suchdisputes. Only few States have, so far, made use of this possibility. For the pur-pose of the presentation it is worth noting that neither Article 297 nor Article298 of the Convention make a reference to Article 76 of the Convention, or, forthat matter, any other provision of the Convention on the outer limits of mari-time zones.17 Thus the limits and exceptions which are an integral part of thedispute settlement system of the Convention on the Law of the Sea do notexclude having judicial recourse against the delimitation of the outer limit of acontinental shelf even if such delimitation was established following the proce-dure as set out by Article 76 of the Convention. Given the restrictions referredto it is to be concluded from the lack of reference to Article 76 of theConvention 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 andonly addressed to a specific coastal State, such recommendation cannot be thesubject of a legal dispute initiated by a plaintiff other than the coastal Sate con-cerned. It has already been pointed out that the coastal State to whom the rec-ommendation is addressed equally has no possibility to challenge suchrecommendation since the Commission has not been given standing before thedispute settlement mechanisms under Part XV of the Convention.18

This leaves only the delimitation of the outer continental shelf as establishedby the coastal State as an issue for a legal dispute. It may be argued that suchdelimitation was not based upon the recommendation of the Commission. Thiswould clearly constitute a legal dispute – namely ‘a disagreement on a point oflaw 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 Commissionand 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 notseem fully convincing. The decisive issue is that the decisions of the Commission are ofa recommendatory nature.

19 See the definition which is well established in international jurisprudence in: Caseconcerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, I.C.J. Reports1995, pp. 99–100, para. 22.


However, the respective dispute settlement mechanism would in this casehave to deal with the assessment of the Commission concerning the methodol-ogy used by the coastal State concerned. It would be an act of prudentialjurisprudence 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 theCommission. The question remains which entity could possibly initiate therespective proceedings.

In case the delimitation of the outer continental shelf was established by thecoastal State against the recommendation of the Commission or without con-sulting it the question whether legal action may be brought against such delimi-tation is an identical one. The question is who has standing in this respect; ithas 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 ini-tiate judicial proceedings against the delimitation of the outer continental shelfby a coastal State.20 The most recent writings on that issue indicate that such astep would serve to protect the collective interest in the Area and would amountto an actio popularis not yet accepted under public international law.21

It is questionable whether this argument can prevail concerning every legaldispute 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 delimita-tion of the outer continental shelf may, in fact, infringe upon the rights orclaims of States with adjacent or opposite coasts. In such a case these Statesundoubtedly may initiate legal action against the establishment of the outerlimits of a continental shelf whether or not the outer limits were based upon arecommendation of the Commission or not. Such States with adjacent or oppo-site 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 thedispute 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 PlateauContinental”, 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.

28 Rüdiger Wolfrum

respective claim to compulsory dispute settlement in accordance with Part XVof the Convention.

The wording of Article 76, paragraph 8, of the Convention does not excludesuch possibility even if the delimitation established by the coastal State is basedupon the recommendation of the Commission. It has already been stated thatthe delimitation of the outer continental shelf which has to be considered asbeing final and binding cannot mean to exclude legal actions that the delimita-tion is in fact not based upon the respective recommendation of theCommission. Equally it cannot exclude any legal action of a State on the basisthat such delimitation infringes upon the rights of States with adjacent or oppo-site coasts. The procedure applied by the Commission in particular in compari-son with the rules on intervention in legal proceedings is indicative in thisrespect.

The procedure applied by the Commission does not give States with adjacentor opposite coasts sufficient procedural guarantees to defend their positionwhich could possibly justify any exemption of such disputes from the compul-sory dispute settlement mechanisms under Part XV of the Convention. Apartfrom the fact that the Commission is not a judicial body and does not have thepower to take binding decisions vis-à-vis the applicant coastal State, let aloneother States, the whole procedure before the Commission lacks the equivalentof Annex VI, Article 31 of the Convention – the right to intervene. To readArticle 76, paragraph 8, last sentence, of the Convention to exclude such legalaction would give the coastal State together with the Commission the samepower as the Law of the Sea Tribunal having granted to another State to inter-vene 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 ofthe outer limits of a continental shelf claiming that such delimitationunjustifiably curtails the scope of the international deep seabed area.

The drafter of the Convention did not give the International SeabedAuthority any competence in this respect22 although this would have been thelogical choice. It is the function of the International Seabed Authority to orga-nize and control activities in the Area; this does not encompass the competenceto mount a legal action with respect to any dispute pertaining to the outer limitsof a national continental shelf or the outer limits of the Area. On the same rea-sons it is even questionable whether the International Seabed Authority mayrequest 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.


disputes with respect to activities in the Area – thus reflecting the competenciesof the International Seabed Authority – it will be most likely beyond the com-petence of that body to give an advisory opinion on the establishment of thelimits of an outer continental shelf.

The only question remaining is whether States without being able to arguethat their rights and claims as neighbors have been infringed may bring a caseagainst a particular delimitation of an outer continental shelf claiming anunjustified infringement upon the Area. So far existing jurisprudence seems tospeak against such actio popularis. The International Court of Justice in 1966has clearly expressed its reluctance to accept such approach.24 In the Case con-cerning the Delimitation of Maritime Areas between Canada and France, theCourt of Arbitration in its Judgment o 10 June 199225 declined to address the delimitation of the continental shelf beyond 200 nautical miles. As one ofthe reasons to do so it observed that such pronouncement would have not onlyconcerned the parties to the dispute but also international organs entrusted withthe administration and protection of the Area which was not represented in theproceedings.26 In essence the Court of Arbitration considered that it was notcompetent to establish a delimitation which affected the rights of an entitywhich was not before it.27 In this context the Court referred to the Commissionon the Limits of the Continental Shelf and the procedure set out in Article 76 ofthe Convention and stated that “. . . only ‘the limits of the shelf established by acoastal State on the basis of these recommendations shall be final and bind-ing’ . . .”. This seems to indicate that according to the view of this judgment theouter limits of the continental shelf can only be established under the procedureof Article 76 of the Convention. This judgment is open for criticism since itdoes not take into consideration that the International Seabed Authority doesnot have a mandate concerning the delimitation of the Area and for that reasonis not represented at the deliberations of the Commission. Apart from that itwould be doubtful why the respective coastal State, if the establishment of the delimitation is made on the basis of the recommendation of the Com-mission, may pronounce an decision which is final and binding whereas a Court or Tribunal may not. As far as the issue under consideration is con-cerned it has to be noted that the Court gives no indication whether such delim-itation decision of a coastal State may be challenged before a dispute settlementmechanism.

24 I.C.J. Reports 1966, para. 88 at p. 47.25 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 ami-corum Günther Jaenicke – Zum 85. Geburtstag (Berlin, Springer, 1998), pp. 573–588, atpp. 573–574.

27 31 International Legal Materials, 1992, p. 1772, at paras. 78 and 79.

30 Rüdiger Wolfrum

In this context it is, finally, worth mentioning that an Arbitration Tribunalbetween Newfoundland and Labrador and Nova Scotia concerning Portions ofthe Limits of their Offshore Areas took a different position and provided fordelimitation beyond 200 nautical miles from the coast.28 However, one shouldnot overemphasize the relevance of this judgment for the question at hand sincethis Tribunal had a particular mandate.29

Since the International Seabed Authority has neither the competence nor thestanding to defend the interests of the international community concerning thescope of the Area it seems difficult to avoid taking a position whether individ-ual States may act on behalf of the international community in this respect.International law has undergone significant changes as far as the recognition ofcommunity interests are concerned. That the common heritage principle quali-fies as such and that there is an established interest of the international commu-nity in the Area and its utilization for mankind as a whole is beyond question. Itis not but a logical step that States may take action to protect established inter-ests of the international community otherwise such community interests wouldbe – legally speaking – nothing but empty shells. The articles developed by theInternational Law Commission and adopted by the UN General Assembly onState Responsibility point into this direction. According to Article 48, para-graph 1 (b) of the Articles on State Responsibility, a State may invoke theresponsibility of another State if “. . . (b) the obligation breached is owed to theinternational community as a whole . . .”. If such words are not meaninglessthis includes the initiation of proceedings for a judicial settlement.30

It is beyond doubt that the delimitation of the outer limits of the continentalshelf is a sovereign right of the respective State. Nevertheless, delimitationfaces restrictions as enshrined in Article 76 of the Convention. To strife for anexcessive extension, which means an extension disregarding the procedure aswell 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 inthe Second Phase of the Case Concerning the Delimitation of Portions of the OffshoreAreas between the Province of Nova Scotia and the Province of Newfoundland andLabrador see International Law in Brief, 3 July 2003, Developments in internationallaw, prepared by the Editorial Staff of International Legal Materials, The AmericanSociety 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 internationalcommunity as a whole’. The provision intends to give effect to the International Court’sstatement in the Barcelona Traction case, where the Court drew ‘an essential distinction’between obligations owed to particular States and those ‘towards the international com-munity as a whole’.” See J. Crawford, The International Law Commission’s Articles onState Responsibility: Introduction, Text and Commentaries (Cambridge, CambridgeUniversity Press, 2002).


sion but, at the same time, infringe upon the established interests of the interna-tional community. Apart from that individual States or entities sponsored bythem may, in accordance with Part XI of the Convention, engage in deepseabed mining activities. Limiting the scope of the Area inevitably means limit-ing the potential economic use by States. Thus, States, in defending the scopeof the Area in the interest of the international community, may also act in theirown interest. This aspect should ameliorate the concerns of those which hesi-tate to open the international dispute settlement system to what is consideredthe equivalent of an actio popularis. Whether the respective Courts andTribunals will be faced with a respective case and whether they will followsuch an approach remains to be seen.

V. CONCLUSIONS

The role of dispute settlement mechanisms concerning the delimitation of theouter continental shelf is less limited as occasionally suggested. Although nei-ther the Commission on the Limits of the Continental Shelf nor theInternational Seabed Authority may initiate proceedings against a delimitationestablished by a coastal State nor a coastal State may challenge recommenda-tions of the Commission before judicial dispute settlement mechanisms underPart XV of the Convention, the role of third States in this respect is less limitedthan originally felt. States may in respect of a delimitation decision taken by acoastal State claim that the rights or interests as a State with an adjacent oropposite coast have been infringed. Further, States may invoke, thus acting alsoon behalf of the international community, that a particular delimitation waseither not based upon a recommendation of the Commission on the Limits ofthe Continental Shelf or was an unjustified encroachment upon the Area.Article 76, paragraph 8, last sentence, of the Convention does not constitute anabsolute bar against initiating respective proceedings before the judicial disputesettlement mechanisms under Part XV of the Convention. Faced with such acase the institutions for the settlement of disputes will, however, have to exer-cise restraint not to infringe upon the functions of the Commission which isbased upon a technical expertise which these institutions do not have at theirdisposal. Apart from that and perhaps even more prominently, the Commissionin assessing the scientific and technical data submitted by the coastal State con-cerned exercises some discretion which must not be replaced by the Court orTribunal seized with a dispute concerning the interpretation or application ofArticle 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 inMaritime Delimitation Disputes

Santiago Torres Bernárdez*

1. INTRODUCTION

1. During the second part of the XX century, the law of the sea underwent aseries of successive changes enshrined, first, in the 1958 Geneva Conventionson the law of the Sea and, then, in the single 1982 United Nations Conventionon the Law of the Sea (LOS Convention). As a result, the traditional legal dualrégime of the seas, characterised by the distinction between territorial sea andhigh seas, was replaced by a plural system which, inter alia, encompasses,together with an extension of the traditional breadth of the territorial sea, therecognition of new coastal States’ jurisdictions in marine and/or submarinespaces formerly belonging to the high seas.

2. This development explains why maritime delimitation has acquired incontemporary 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 wassubmitted to the PCIJ, namely the Delimitation of the Territorial Watersbetween the Island of Castellorizo and the Coast of Anatolia which, besides,


33

* Member of the Institute of International Law.

34 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 sev-eral others to ad hoc arbitration.

3. This development of judicial and arbitration jurisprudence reveals alsothat the delimitation between States with opposite or adjacent coasts of the var-ious maritime spaces susceptible of being subject to some kind of nationaljurisdiction may give rise to maritime delimitation disputes which are notalways possible to overcome by negotiations followed by the conclusion ofdelimitation agreements. In such situations, the recourse to a third in order tosettle peacefully the conflict resulting from the overlapping of rights or claimsof the parties is not only the logic alternative but also the procedural solutionprovided for by the material law of the sea (see, for example, Articles 74 and 83of the LOS Convention).

2. THE SETTLEMENT OF MARITIME DELIMITATION DISPUTES

BY A THIRD

4. Maritime delimitation disputes between States do not involve generally thedefinition of the confines or outer-limits of the space or spaces concerned, amatter 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 subma-rine area to one or another of the States parties to the dispute. The solution maybe the allocation of the entire disputed area to one of the parties or, as it is morefrequent, the division of the disputed area as between the parties, but in the firstas well as in the second hypothesis it would be necessary in order to settle thedispute either to draw lines of delimitation or to define the legal principles andpractical methods according to which the delimitation lines will be drawn bythe 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 linesdefining, within the area in dispute, the area falling under the jurisdiction of aparty from the area or areas falling under the jurisdiction of the other party orparties, namely in the establishment of maritime boundaries or of a single mar-itime 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 isassumed 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 SpecialAgreement concluded between Turkey and Italy and discontinued in January 1933 (PCIJSeries A/B no 51, p. 4).

Provisional Measures and Interventions 35

do so through a given peaceful means of settlement, like conciliation, arbitra-tion or judicial settlement, with a view to achieve an equitable solution havingregard to the geographical configuration of the area and other relevant or spe-cial circumstances.

6. This underlying principle inspires the delimitation provisions contained inArticles 15, 74 and 83 of the LOS Convention and is shared by the “fundamen-tal norm” in maritime delimitation of general international law as identified bythe ICJ in the case concerning Delimitation of the Maritime Boundary in theGulf 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 legallybinding for the parties, namely judicial settlement or arbitration. This choice is due to the fact that the overall objective sought by States through delimita-tion 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 pro-visional measures and intervention seem to play a significant role in maritimedelimitation disputes.

8. So far as judicial settlement is concerned, the 1920 PCIJ Statute and the1945 ICJ Statute incorporate provisional measures and two forms of interven-tion in its provisions on procedure. In 1982, States incorporated also provi-sional measures and the same two forms of intervention in the Statute of theInternational Tribunal for the Law of the Sea (ITLOS), Annex VI to the LOSConvention. Thus, States continue to consider that such institutions of adjectivelaw are useful in inter-States litigation, including in maritime delimitation dis-putes which by no means are excluded from the eventual operation of thoseinstitutions neither in the ICJ nor in ITLOS.

9. In arbitration proceedings the situation presents itself somewhat differ-ently. It is true that international instruments codifying general rules on arbi-tration procedure have incorporate therein, at different moments of time,provisions, initially, on intervention by States parties to a convention at issueother than those parties to the case (Articles 56 and 84 of the HagueConventions of 1899 and 1907 respectively) and, later, on provisional measuresand on the two forms of intervention allowed in judicial settlement (Articles33, 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.


Rules on Arbitral Procedure adopted in 1958 by the International LawCommission incorporates provisional measures only (Article 20). Thus, provi-sional measures and interventions are not as such incompatible with arbitrationproceedings.

10. However, most of the inter-States arbitration are not institutional in char-acter but adopt the form of ad hoc arbitration and in these latter kind of arbitra-tion the consent of the parties as reflected in the corresponding undertaking toarbitrate, or in the special agreement (compromis) concluded to that effect, isparamount with respect, inter alia, to the rules of procedure to be applied by thetribunal. In other words, unless agreed otherwise in ad hoc arbitration the par-ties may modify or derogate at will any codified procedural rule on arbitrationincluding of course those concerning provisional measures and intervention.

11. This is confirmed by the arbitration on maritime delimitation hold duringthe last decades which adopted the form of ad hoc arbitration. A preliminaryperusal of the corresponding undertakings and compromis, as well as of thepractice of the arbitral tribunals concerned, shows in effect, quite clearly, thatprovisional measures and interventions did not play any significant role. Noprovisional measures were requested, granted or admitted although some spe-cial agreements empowered the arbitral tribunal to indicate that kind of mea-sures to the parties. Moreover, the special agreements contain no provisionsallowing eventual interventions by third States under any form and, apparently,no applications for permission to or declarations of intervention have been infact filed by third States or entities in those arbitration cases.3

12. This general conclusion on the recent maritime delimitation by arbitra-tion faces up to the role played by provisional measures and, in particular, byinterventions in cases involving maritime delimitation disputes submitted dur-ing the same period to judicial settlement by the ICJ. The ICJ case law of theperiod records parties’ requests for the indication of provisional measures inthree relevant cases (Aegean Sea Continental Shelf; Arbitral Award of 31 July1989; and Land and Maritime Boundary between Cameroon and Nigeria) andthe Court indicated provisional measures in the case between Cameroon andNigeria.4 In the same period, four applications by third States for permission tointervene in maritime delimitation disputes were filed as follows: Malta in theContinental Shelf (Tunisia/Libyan Arab Jamahiriya); Italy in the ContinentalShelf (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, 6–8September 1990 (Dordrecht, Martinus Nijhoff Publishers, 1991), pp. 205–267, at pp.250–251.

4 I.C.J. Reports 1996, p. 13.


Maritime Frontier Dispute (El Salvador/Honduras); and Equatorial Guinea inthe Land and Maritime Boundary between Cameroon and Nigeria (Cameroonv. Nigeria). Nicaragua and Equatorial Guinea were authorised to intervene withrespect to the legal régime of the waters of the Gulf of Fonseca and the mar-itime boundary between Cameroon and Nigeria respectively, becoming there-fore intervening States in the cases concerned.5

13. The considerations above suggest that – in so far as the settlement ofmaritime delimitation disputes is concerned – provisional measures and inter-vention are procedural means which play a significant role in internationaljudicial settlement proceedings rather than in international arbitration pro-ceedings, without prejudice that they might also be operative in a particulararbitration.

4. THE STATUTORY NATURE OF THE POWERS OF THE ICJ AND ITLOSIN PROVISIONAL MEASURES AND INTERVENTION MATTERS

14. The ICJ and ITLOS are empowered to indicate or prescribe provisionalmeasures and to grant or admit interventions by their respective Statutes. Therelevant provisions are: in the Statute of the ICJ, Article 41 (provisional mea-sures) 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 derivefrom the consent of the parties to the case to hear and determine the dispute, butfrom the consent given by them, in becoming parties to the Statute, to the exer-cise by the Court, or by the Tribunal, the powers conferred upon it by theStatute.6

15. The first consequence of the statutory nature of the rules on provisionalmeasures and intervention is that they cannot be the object of reservations byStates when becoming parties to the Statute or be derogated by agreementbetween the parties to a particular case, because neither the ICJ Statute nor theStatute of ITLOS allow such reservations or derogation. A second consequenceof the statutory nature of the jurisdictions exercised by the ICJ and ITLOS inprovisional measures and intervention matters is that they do not exist but tothe extent, in the manner and for the purposes set out in their respectiveStatutes. When through the filing of a document entitled request for the indica-tion of provisional measures, application for permission to intervene or declara-tion of intervention, the author of the document asks the ICJ or ITLOS to gofurther, or otherwise, than allowed by the provision of the Statute invoked isactually placing itself outside the scope of the jurisdiction of the ICJ or ITLOS

5 I.C.J. Reports 1990, p. 92 and I.C.J. Reports 1999, p. 1029.6 See, for example, with respect to intervention: I.C.J. Reports 1990, p. 133, para. 96.


in the matter and, consequently, such kind of requests, applications or declara-tions 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 isto be exercised by the Court or by the Tribunal in the course of proceedingsopen by the filing of the request, application or declaration concerned. Theseproceedings are regulated in the Rules of Procedure adopted by the ICJ andITLOS pursuant to the authorisation given to that effect in Article 30 andArticle 16 of their respective Statutes. The relevant provisions in the ICJ Rulesof Procedure are Articles 73–78 (provisional measures) and Articles 81–86(intervention) and in the ITLOS Rules of Procedure Articles 89–95 (provisionalmeasures) 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 preservetheir rights in the case, while interventions are a procedural device open tothirds 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 activatedbut by reference to a given principal case. Consequently, in the ICJ, as well asin ITLOS, provisional measures and interventions are treated, procedurally, asincidents in the framework of the proceedings on the related principal case.They do not have an autonomous procedural life. If the principal case is discon-tinued or terminates, provisional measures and/or interventions lapse.

18. In fact, the Rules of the ICJ and ITLOS place the proceedings open bythe filing of a request for provisional measures and of an application or declara-tion of intervention in the section dealing with “incidental proceedings” distin-guishing thereby those proceedings from the main proceedings in the case. Itshould be added that the incidental proceedings on provisional measures or onintervention of the ICJ and ITLOS Statutes and Rules are of general applicationto 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 INTER-

VENTION: THE ISSUE OF MIXED TERRITORIAL/MARITIME DISPUTES

19. The jurisdiction of the ICJ and ITLOS to entertain a principal case isdefined by reference to their respective Statutes (general competence) and tothe additional jurisdictional titles invoked by the parties or a party (specialcompetence). Both competence elements are needed in order to comply in agiven principal case with the consensual jurisdiction fundamental requirement


as organised in both systems. So far as the special competence is concerned, thesituation in the ICJ and ITLOS is quite similar. But, it is not necessarily so withrespect to the general competence component of jurisdiction on principal cases.

20. There can be no doubt that both the ICJ and ITLOS possess general com-petence in maritime delimitation disputes.7 The ICJ enjoys universal generalcompetence in disputes between States whatever its subject-matter may be.ITLOS is a specialised Tribunal on the law of the sea having general compe-tence in disputes concerning the interpretation or application of: (1) the 1982United Nations Convention on the Law of the Sea; (2) agreements related to thepurpose of that Convention; and (3) agreements concerning the subject-mattercovered by the Convention (see Articles 21 and 22 of the ITLOS Statute andArticles 287 and 288 of the LOS Convention). Then, Articles 15, 74 and 83 ofthe LOS Convention relate to the delimitation of marine spaces and theConvention contains also provisions on historic bays and titles. The same con-clusion as to the general competence of ITLOS in maritime delimitation dis-putes may be reached by an interpretation a contrario of paragraph 1 (a) ofArticle 298 of the LOS Convention concerning the allowed optional exceptionsto applicability of the compulsory procedures entailing binding decisions ofSection 2 Part XV of the LOS Convention.

21. No problem arises therefore for ITLOS in the case of a dispute whosesubject-matter would be the delimitation of one or more maritime spaces,including territorial sea, archipelagic waters or historic waters or bays. In thiskind of disputes both the ICJ and ITLOS enjoy general competence, and if thespecial competence requirement is also met, they would have jurisdiction toentertain the principal case concerned and may, consequently, indicate or pre-scribe in that case provisional measures to the parties or grant or admit inter-ventions of thirds. But, international practice shows that States submit also tojudicial settlement disputes having a mixed subject-matter which encompassesa maritime delimitation as well as land delimitation or territorial questions.There are several examples in the ICJ of this kind of cases: the Land, Islandand Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua interven-ing); the case concerning Maritime Delimitation and Territorial Questions(Qatar v. Bahrain); the case entitled the Land and Maritime Boundary betweenCameroon 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 LOSConvention that ITLOS has also general competence to deal with those mixedterritorial/maritime disputes? The economy as a whole of the Statute and the

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


Convention (see, for example, certain passages of paragraph 1 (a) of Article298) does not appear to support such a proposition. But, the matter goes quitebeyond the topic of the present article and it is not intended to be answeredhere. For the present article the only thing that matters is to point out that to theextent that ITLOS would be without general competence to entertain a givenmixed territorial/maritime delimitation dispute it would also be deprived fromthe possibility to prescribe provisional measures, or to grant or admit interven-tions, in the mixed dispute concerned, because of the incidental character ofprovisional measures and intervention.

23. Finally, it should be underlined that the mixed territorial/maritime dis-putes we have in mind are disputes involving the determination of sovereigntyor other territorial rights over continental or insular territory or the delimitationof continental or insular territory in addition to the maritime delimitation.8 Themere determination of baselines for the purpose of a maritime delimitation doesnot deprive a dispute of its exclusive maritime character. The same conclusionapplies to disputes in which to effect the maritime delimitation concernedaccount 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 lawneeds to provide for remedial means intended to protect during the interim therights at issue in the case so as to avoid that the future judicial decision couldbecome meaningless, in toto or in part, at the time of its rendering. The provi-sional measures of the Statute of the ICJ and of ITLOS are such a remedialmeans. The causes prompting the request and/or the granting of provisionalmeasures are not to be looked for in the nature of the dispute or in its elementsof fact or law, but rather in existing or emerging events external to the proceed-ings. 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 themaritime boundary line required a prior decision on the issue of the sovereignty over theBakassi Peninsula, namely a decision on a land territorial aspect of the case. It isbecause the Court decided that sovereignty over that Peninsula lies with Cameroon thatthe maritime boundary defined by the Judgment starts from the point of intersection ofthe center of the navigable channel of the Akwayafe River with the straight line joiningBakassi Point (Cameroon) and King Point (Nigeria).

9 C. Jiménez Piernas, “La relevancia de la frontera terrestre en la jurisprudencia sobredelimitación de los espacios marinos entre Estados adyacentes”, in: F.M. MariñoMenéndez (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.


parties in general or with respect to the subject-matter of the dispute, might becreative of circumstances which would advise the urgent indication or prescrip-tion of provisional measures by the ICJ or ITLOS for the preservation of therights at issue in the case of either party and, eventually, the prevention of theaggravation 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 thepower to indicate, if it considers that the circumstances so require, any provi-sional measures which ought to be taken to preserve the respective rights ofeither party. In the case of ITLOS Article 25, paragraph 1, the Statute states thatin accordance with Article 290 of the LOS Convention, the Tribunal and itsSea-Bed Disputes Chamber shall have the power to prescribe provisional mea-sures. Thus – as provided for in Article 290, paragraph 1, of the LOSConvention – ITLOS may prescribe any provisional measures which it consid-ers appropriate under the circumstances to preserve the rights of the parties tothe dispute or to prevent serious harm to the marine environment, pending thefinal decision.

26. Both the ICJ and ITLOS are therefore empowered by their respectiveStatutes to indicate or prescribe the provisional measures (mesures conserva-toires) that they consider necessary or appropriate to preserve pendente litis theparties’ rights at issue in the case. It is inherent to any interim protection thatthe indication or prescription of the measures concerned be discretionarybecause of its dependence on circumstances that cannot be assessed by theCourt or the Tribunal but on an ad hoc basis. However, this discretionary powershould not be understood as being an arbitrary one. The jurisprudence has elab-orated progressively some criteria which circumscribe the exercise of thepower in question by reference to certain broad parameters. It also underlinedthat in inter-State litigation the power to indicate provisional measures shouldrather be used with restraint and prudence.

27. In any case, the main object and purpose of provisional measures is topreserve the rights alleged by either party when in the light of the circum-stances the non-indication of those measures might seriously impair the rightsto be determined later on in the decision that the court or tribunal will render inthe case. Generally speaking, the indication or prescription of provisional mea-sures would be justified when the circumstances of the case as appreciated bythe 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).


rights at issue and an urgent need to remedy such a risk. Risk, prejudice, grav-ity, irreparability, urgency and necessity are considerations very much presentin the appreciation by international courts and tribunals of the need for the indi-cation in a given case of provisional measures. For example, it was as a resultof an appraisal of the circumstances of the case in the light of considerations ofsuch a kind that the request for the indication of provisional measures ofGreece in the Aegean Sea Continental Shelf case was rejected,11 while therequest of Cameroon in the Land and Maritime Boundary between Cameroonand Nigeria case prompted the indication of provisional measures by the ICJ.12

28. The jurisprudence of the ICJ underlines the relationship between the par-ties’ rights at issue in the case and the power of the Court to indicate provi-sional measures. One may find in that jurisprudence a statement to the effectthat the Court cannot indicate measures for the protection of any disputed rightsother than those which are the subject of dispute in the judicial proceedingsbefore the Court on the merits of the case.13 For example, the request for provi-sional measures of Guinea-Bissau in the case concerning the Arbitral Award of31 July 1989 was rejected by the Court for that very reason. In effect, the appli-cation of Guinea-Bissau introducing the case asked the Court to pass upon theexistence and validity of the Arbitral Award, while the rights sought by Guinea-Bissau to be preserved by its request for provisional measures did not concernthe existence and validity of the Award. They concern alleged rights in anunderlying maritime delimitation dispute which then was not even before theCourt. Thus, the rights sought to be preserved by Guinea-Bissau’s request werenot rights susceptible of forming the basis of the Court’s Judgment in theArbitral Award of 31 July 1989 case. In these circumstances, the Court declinedby fourteen votes to one the indication of provisional measures.14 Subsequently,Guinea-Bissau introduced a new case entitled “Maritime Delimitation betweenGuinea-Bissau and Senegal” which was later on discontinued.

29. However, there is established jurisprudence of the ICJ, and there is norreason to believe that the situation in that respect might be different in ITLOS,that the power to indicate provisional measures encompasses the power to indi-cate measures aiming at the prevention of the aggravation or extension of thedispute. Practice shows that measures intended to preserve the rights of the par-ties in the case and measures intended to prevent the aggravation or extensionof the dispute are frequently combined in a same provisional measures order.As the ICJ has stated, independently of the requests for the indication of provi-sional measures submitted by parties to preserve specific rights, the Court pos-sesses by virtue of Article 41 of the Statute the power to indicate provisional

11 I.C.J. Reports 1976, p. 3.12 I.C.J. Reports 1996, p. 13.13 I.C.J. Reports 1979, p. 19, para. 36.14 I.C.J. Reports 1990, p. 70, para. 26.


measures with a view to preventing the aggravation or extension of the disputewhenever it considers that the circumstances so require.15

30. Furthermore, ITLOS is specifically empowered to prescribe provisionalmeasures in order to prevent serious harm to the marine environment, namelyto protect a general interest which may go beyond parties’ rights at issue strictlyunderstood. Moreover, environmental issues could be invoked in the frame-work of a maritime delimitation dispute. For example, in the case concerningMaritime Delimitation in the Area between Greenland and Jean Mayen theeffect of ice was argued in support of parties’ delimitation claims.16

31. Doubtless, the ICJ may indicate provisional measures concerning envi-ronmental 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 sowith a view to protect a general interest as ITLOS may do with respect to theprevention of serious harm to the marine environment? The answer requiresinterpretation and in that operation the power of the Court to indicate measureswith a view to prevent an extension or aggravation of the dispute may help. Thenon-indication of measures to protect the marine environment from seriousharm might imply in certain circumstances an aggravation or extension of thedispute as between the parties. In any case, the notion of “aggravation or exten-sion 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 wholeby the Court.

32. Finally, Article 290, paragraph 5, of the LOS Convention provides thatpending the constitution of an arbitral tribunal to which a dispute is being sub-mitted under Section 2 of Part XV of the Convention, any court or tribunalagreed upon by the parties or, failing such agreement within two weeks fromthe date of the request for provisional measures, ITLOS (or, with respect to theactivities in the Area, the Sea-Bed Disputes Chamber) may prescribe, modifyor revoke provisional measures in accordance with Article 290 of the LOSConvention. This residual power of ITLOS to prescribe provisional measureshas already been exercised by the Tribunal. See, for example, The Mox PlantCase (Ireland v. United Kingdom).17

33. As worded, Article 290, paragraph 5, of the LOS Convention does notexclude that, pending the constitution of the arbitral tribunal, the parties couldagree that they sought the provisional measure be indicated by the ICJ. But, itis difficult to visualise how a request to that effect can thrive in the Court whenthe 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, theOrder 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.


is pending. The power of the ICJ to indicate provisional measures is construedin the Statute and Rules of the ICJ on the assumption that the measuresrequested 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 ProvisionalMeasures is Subject

34. The indication or prescription of provisional measures in a given case issubject to the two following conditions: 1) that the dispute has been duly sub-mitted to the court or tribunal concerned; and 2) that the court or tribunal con-siders that it has at least prima facie jurisdiction in the case. The basic texts ofboth the ICJ and of ITLOS and the relevant jurisprudence reflect these generalconditions which are, furthermore, spelled out in Article 290, paragraph 1, ofthe LOS Convention.

35. As to the first condition, a dispute or case is considered to have been dulysubmitted when a party or the parties have complied with the prescriptions ofthe Statute and Rules concerning the institution of proceedings. Assuming so,when may provisional measures be indicated or prescribed? Article 73, para-graph 1, of the ICJ Rules and Article 89, paragraph 1, of the ITLOS Rules givethe same answer. Provisional measures may be requested and, therefore, indi-cated or prescribed at any time during the proceedings in the case, namely fromthe very moment of the institution of the proceedings until the final decision orthe discontinuance or removal of the case. In other words, provisional measuresmay be indicated or prescribed by the ICJ or ITLOS so long as the proceedingsin the case concerned are in course.

36. Thus, it may well happen that when the indication or prescription of pro-visional measures is requested or needed the Court or the Tribunal has not yetdetermined the existence of jurisdiction in merito. This possibility is at the ori-gin of a historical doctrinal debate on the relationship between provisionalmeasures and jurisdiction. In the context of such a debate it was even said inthe past that decisions on interim protection do not require the conduct even ofa preliminary inquiry into jurisdictional matters. But this debate is over sincethe post-war jurisprudence of the ICJ. This jurisprudence has elaborated pro-gressively the so-called prima facie jurisdiction requirement in order for aninternational court or tribunal to be in a position allowing it to indicate or pre-scribe 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 theexistence of the said prima facie jurisdiction in any given case, such a determi-nation prejudging in no way the question of the jurisdiction in merito and leav-ing unaffected the right of the other party to submit arguments against such


jurisdiction.18 The prima facie jurisdiction requirement must be fulfilled so longas jurisdiction in merito has not been definitively established. It follows thatsuch a requirement operates in connection with in limine or early requests forprovisional measures only. But if the Court finds that it does not have primafacie jurisdiction to indicate provisional measures, the request will berejected.19

38. Doctrine has discussed the meaning of prima facie jurisdiction in the pre-sent context, for example, whether it should be defined by reference to the“possibility” or “probability” of jurisdiction in merito. It is true that the ICJjurisprudence has used different formula to express the concept, but neverthe-less it is quite clear what the Court means by prima facie jurisdiction. It meansthat the Court does not need, before indicating provisional measures, finallysatisfy itself that it has jurisdiction on the merits of the case, yet it ought not toindicate such measures unless the provisions invoked by the applicant appear,prima facie, to afford a basis on which the jurisdiction of the Court on meritsmight be founded.20

39. The existence of prima facie jurisdiction is indeed a condition sine quanon for the indication of provisional measures so long as jurisdiction in meritohas not yet been determined. But, it does not mean that the Court must indicatenecessarily provisional measures because the existence of prima facie jurisdic-tion or jurisdiction in merito. Jurisdiction, prima facie or in merito, may existand nevertheless the Court might find that the circumstances as presented them-selves are not such as to require the exercise of its powers under Article 41 ofits Statute.

40. When considering the prima facie jurisdiction requirement in connectionwith an in limine or early request, the ICJ might conclude at the existence of amanifest lack of jurisdiction in merito. If so, it will refrain from indicating anyprovisional measures and will order the removal of the case from the GeneralList. But, it may also happen that that the provisions invoked by the applicantdo not appear to the Court, prima facie, to afford a basis on which its jurisdic-tion might be established without nevertheless finding that the lack of jurisdic-tion is manifest. In these situations, it will not indicate either provisionalmeasures, but the case will be maintained in the General List pending the deter-mination of jurisdiction in merito.

41. The considerations above are applicable to the general power of the ICJand 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. 90.19 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.


to be somewhat qualified with respect to the residual provisional measurepower of ITLOS under Article 290, paragraph 5, of the LOS Convention. Inthis particular case, the first condition for the prescription of provisional mea-sures by ITLOS is the filing by a party of a request to that effect as provided forin 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 weeksfrom the notification to the other party of a request for provisional measures ifthe parties have not agreed that such measures be prescribed by another courtor tribunal. As to the second condition Article 290, paragraph 5, of the LOSConvention provides that ITLOS may prescribe the provisional measures con-cerned if it considers that prima facie the arbitral tribunal which is to be con-stituted would have jurisdiction, and adds, as a further condition, that theTribunal 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 thefiling by a party of a written request to that effect (Article 73, paragraph 1, ofthe IJC Rules and Article 89, paragraph 1 and 2, of the ITLOS Rules). Therequest shall specify, in both Rules, the measures requested, the reasons there-fore and the possible consequences, if it is not granted, for the preservation ofthe respective rights of the parties, the ITLOS Rules adding “or for the preven-tion of serious harm to the marine environment” (Article 73, paragraph 2 of theICJ Rules and Article 89, paragraph 3, of the ITLOS Rules). Regarding the pre-scription of provisional measures under Article 290, paragraph 5, of the LOSConvention, ITLOS Rules provide inter alia that the request shall also indicatethe legal grounds upon which the arbitral tribunal which is to be constitutedwould have jurisdiction and the urgency of the situation (Article 89, paragraph4, of the ITLOS Rules).

43. According to the general economy of the ITLOS Rules, only when arequest for provisional measures has been made by a party the Tribunal mayprescribe such measures. In the ICJ, provisional measures are also indicated inthe 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 par-ticular circumstances, including in connection with the prevention of the aggra-vation or extension of the dispute. In effect, the Court may decide at any time toexamine propio motu whether the circumstances of the case require the indica-tion of provisional measures (Article 75, paragraph 1, of the ICJ Rules). Thus,in the ICJ system incidental proceedings on provisional measures could eventu-ally result from an initiative of the Court. This is possible because Article 41 ofthe ICJ Statute does not make of party’s requests a condition sine qua non forthe 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


the Rules. According to the ITLOS Rules, however, the Tribunal may onlydecide propio motu to review or revise the provisional measures prescribed byits Chamber of Summary Procedure pursuant to Article 25, paragraph 2, of theITLOS Statute which is quite another matter.

44. In effect, according to Article 25, paragraph 2, of the ITLOS Statute andArticle 91 of the ITLOS Rules if the Tribunal is not in session, or a sufficientnumber of members is not available to constitute a quorum, the provisionalmeasures shall be prescribed by the Chamber of Summary Procedure subject toreview or revision by the Tribunal. Article 25, paragraph 2, of the ITLOSStatute contains also an express derogation of the rule in its Article 15, para-graph 4, so as to allow that the Chamber of Summary Procedure to adopt theprovisional measures at the request of any party to the dispute.

45. This aspect of the ITLOS system is also without comparison in the ICJStatute and Rules. In the Court, the exercise of main and incidental jurisdic-tions relating thereto belongs either to the full Court or to the chamber to whichthe case has been referred, in accordance with the adagio that le juge du princi-pal est le juge de l’accessoire.21 This is why the ICJ Rules provide that theCourt, if it is not sitting when the request for the indication of provisional mea-sures is made, shall be convened forthwith for the purpose of proceedings to adecision on the request as a matter of urgency (Article 74, paragraph 2, of theICJ Rules), a provision which applies mutatis mutandis to chambers.

46. The requests for the indication or prescription of provisional measureshave priority over all other cases or proceedings, but in ITLOS such a priorityis subject, as it should be, to Article 112, paragraph 1, of the Rules concerningthe prompt release of vessels and crews. Other procedural rules are essentiallysimilar in the ICJ and ITLOS Rules, although not necessarily worded in identi-cal terms, for example, the rules on the fixing of the date for a hearing, the tak-ing into account of observations submitted by a party before the closure of thehearings and the President’s powers pending the meeting of the Court orTribunal.

47. The Court and the Tribunal may indicate or prescribe measures other ordifferent, in whole or in part, from those requested as well as measures to betaken or comply with by the requesting party. The rejection of a request shallnot prevent the party which made it from making a fresh request in the samecase based on new facts. The provisions on parties’ requests for modification orrevocation of provisional measures are also quite similar in both systems.

48. In both the ICJ and ITLOS notice of the indicated or prescribed provi-sional measures shall be given forthwith to the parties. In addition, in the caseof the ICJ notification is also given to the United Nations Security Council andin 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.


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

d) The Binding Effect of the Orders Indicating or PrescribingProvisional Measures

49. The decisions of the ICJ and ITLOS on provisional measures adopt theform of an order. They cannot adopt the form of a judgment because by theirvery object and purposes decisions on provisional measures are not supposed tohave the res judicata force inherent to the ICJ or ITLOS judgments. The deci-sions on provisional measures are by definition of an interim nature and dura-tion. They may be revoked or modified and their effects never go beyond theduration 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 partiesto the dispute shall comply promptly with any provisional measures prescribedunder that article. Therefore, there can be no doubt that the provisional mea-sures adopted by ITLOS pursuant to Article 25 of its Statute have binding effectfor the parties. The text of the Statute of the ICJ remains however silent on thebinding effect of the Court’s orders on provisional measures, notwithstandingthe fact that already in 1928 Article 33 of the General Act expressly providedfor that the parties to a dispute shall be bound to accept the provisional mea-sures indicated by the PCIJ or by an arbitral tribunal. This situation gave rise inthe past to a much too long doctrinal controversy as to the binding effect of theCourt’s orders on provisional measures.

51. Fortunately, this debate is now over. The doubts entertained by some inthe past have been dispelled finally, in 2001, by the Court’s interpretation ofArticle 41 of its Statute contained in the Judgment in the LaGrand Case.22 Thisinterpretation confirms that the provisional measures orders of the ICJ havebinding effect for the parties to the case, as the provisional measures orders ofITLOS. It has been suggested that there might have been a certain relationshipbetween the said Court’s interpretation and Article 290, paragraph 6, of theLOS Convention.23 In fact, the binding effect of those orders for the parties hasbeen uphold by several authors long before the conclusion of the LOSConvention. In any case, the interpretation by the Court of Article 41 of its

22 I.C.J. Reports 2001, pp. 501–506, paras. 98–109.23 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 Lucchiniet Jean-Pierre Quéneudec (Paris, A. Pedone, 2003), pp. 159–176, at p. 175.


Statute has been done in accordance with the rules on interpretation of treatiescodified in the Vienna Convention of the Law of Treaties which are consideredby the jurisprudence of the Court to be declaratory of general international law.

52. The orders on provisional measures have therefore binding effect for theparties to a case decided by ITLOS as well as for the parties to a case dealt withby the ICJ. But, the two systems differ from each other with respect to thesupervision of the implementation by the parties of the provisional measuresindicated. 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 requestinformation from the parties on any matter connected with the implementationof any provisional measures it has indicated. In contrast, Article 95 of theITLOS Rules imposes on each party the positive obligation of informing theTribunal as soon as possible as to its compliance with any prescribed provi-sional measures, going even further by providing also that each party shall sub-mit to the Tribunal an initial report upon the steps it has taken, or propose totake, in order to ensure prompt compliance with the measures prescribed. It isan 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 moreStates agree that a given international court or tribunal shall hear and determinea particular dispute. Such an agreement may be given ad hoc or may resultfrom the invocation, in relation to the dispute, of a compromissory clause of atreaty or of another mechanism. Those States are the “parties” to the proceed-ings, and they are bound by the eventual decision of the court or tribunalbecause they have agreed to confer jurisdiction on the court or tribunal con-cerned to decide the case. Normally, no other State or entity may involve itselfin the proceedings without the consent of the original parties.24 Nevertheless,procedures allowing the intervention of a “third” in the case between the par-ties may be provided for as in Articles 62 and 63 of the ICJ Statute and Articles31 and 32 of the ITLOS Statute. These provisions empower the Court and theTribunal to permit a third to intervene even in the case that this is opposed byone or both of the parties to the case.25

54. Certain categories of international disputes are more akin than others toattract interventions. These are, in the first place, the maritime delimitation dis-putes. This is so because in those categories the possibility that the safeguard oflegal interest of thirds could not be sufficiently assured by the principle of the

24 I.C.J. Reports 1990, p. 133, paras. 95–96.25 I.C.J. Reports 1984, p. 28, para. 46.


autorité relative de la chose jugée has a higher degree of probability than insome other categories of disputes.26 For example, in the Land and MaritimeBoundary between Cameroon and Nigeria case, the ICJ has recognisedexpressly that, in particular in the case of maritime delimitations where themaritime areas of several States are involved, the protection afforded by Article59 of the Statute may not always be sufficient.27

55. Practice confirms also that States consider intervention particularly use-ful as a means for the protection of their legal interests in maritime delimitationdisputes between other States. In fact, four applications for permission to inter-vene filed pursuant to Article 62 of the ICJ Statute relate to maritime delimita-tion disputes (see paragraph 12 above). So far, there are no examples in the ICJjurisprudence of declarations of intervention under Article 63 in maritimedelimitation disputes. But, this has an easy explanation. The law applicable tothe maritime delimitation disputes submitted during the last decades to theCourt was not conventional law but general international law, the only excep-tion 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 theStatutes of the ICJ and ITLOS. There are essentially three: 1) intervention isvoluntary; 2) intervention is an incident; and 3) intervention is a proceduralmeans 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 madean intervening State or entity. Under both Statutes intervention originates in avoluntary act of the third. As stated by the ICJ In the Phosphate Lands inNauru case: “National courts, for their part, have more often than not the neces-sary power to order propio motu the joinder of third parties which may beaffected by the decision to be rendered; that solution makes it possible to settlea dispute in the presence of all the parties concerned. But on the internationalplane the Court has not such power. Its jurisdiction depends on the consent ofStates 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 deJustice”, 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 MaritimeBoundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guineaintervening), para. 238.

28 I.C.J. Reports 1993, p. 58, paras. 45–46.29 I.C.J. Reports 1992, p. 260, para. 53.


58. One of the consequences of the voluntary nature of intervention is thatthe non-intervention of the third does not constitute as such an obstacle for theICJ 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 theproceedings, it must be open to the Court or the Tribunal to give the fullestdecision as between the parties in the circumstances of each case. This is theunderlying principle of both Statutes. Thirds have no veto on the judicial settle-ment by the parties of their disputes. The theory of the indispensable party, infact of the indispensable third, has been rejected by the ICJ in the Nicaraguaand Nauru cases and rightly so.30

59. But, these general conclusion needs to be somewhat qualified by twoconsiderations. In the first place, to give a fullest decision in the case asbetween the parties might impinge on rights or claims of a third. When this isthe case, the ICJ refrains normally from exercising the whole of the compe-tence conferred upon it by the parties, in particular when the rights or claims ofthe third are in rem rights or claims as in maritime delimitations. This applieseven 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 Statuteis a non-party intervener and an international court or tribunal cannot decideupon 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 thedispute between the parties but would form “the very subject-matter of thedecision”, as this expression is understood in the ICJ Judgments in theMonetary Gold and the East Timor cases.32 In these situations, the Court has todecline the exercise of jurisdiction because the Court cannot adjudicate on legalinterests, rights or claims of a third without the consent of the latter. In fact, thiskind of situations may conceal an existing underlying multipartite dispute butthese disputes, as the bilateral ones, have to comply with the fundamental con-sensual jurisdiction principle in order to be adjudicated by an internationalcourt or tribunal.33

30 S. Torres Bernárdez, “The new theory of ‘indispensable parties’ under the Statuteof 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 Cameroonv. 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 AmicorumJudge Shigeru Oda (The Hague/London/Boston, Kluwer Law International, 2002), pp.995–1007.


61. A further consequence of the voluntary nature of the intervention is thatthe Court, as the Tribunal, cannot grant or admit an intervention wider in scopethan the one applied for or declared by the third. But, the intervention grantedor admitted could eventually be narrower than the one originally sought by thethird. For example, in the Land, Island and Frontier Dispute (El Salvador/Honduras), the Nicaraguan Application for permission to intervene related tothe legal régime of the waters of the Gulf of Fonseca, the delimitation of thosewaters, the legal situation of the maritime spaces outside the Gulf and the legalsituation of the islands in the Gulf, but the Chamber of the Court decided thatNicaragua was permitted to intervene in the maritime aspect of the case con-cerning 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. Articles62 and 63 of the ICJ Statute and Articles 31 and 32 of the ITLOS Statute, aswell as their corresponding rules of procedure, confirm the incidental nature ofany 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, con-sequently, a declaration filed as an intervention only acquires that character, inlaw, 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 anapplication for permission to intervene, or a declaration of intervention, shallspecify the case in course to which it relates. Without such a relationship theprocedural act of the third will not be a genuine intervention (véritable inter-vention).36 However, the absence of practice prevents to see clearly duringmany years the consequences of this feature in the definition of the kind ofinterventions provided for in the Statute. The issue began to be clarified in thecourse of the consideration of the Maltese and Italian Applications for permis-sion to intervene in the respective Continental Shelf cases in the 1980s and wassettled by the Court in 1990 on the occasion of its consideration of the prelimi-nary questions raised by the Nicaraguan Application in the Land, Island andMaritime Frontier Dispute (El Salvador/Honduras) in the following terms:“. . . the rule of law that ‘every intervention is incidental to the proceedings in acase’ (Haya de la Torre, ICJ, Reports 1951, p. 76), applies equally whetherintervention 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 intro-duce a new case, such as a dispute between the State seeking to intervene andthe parties or a party to the case. In fact, whether or not such a dispute exists isindifferent for granting or admitting the intervention sought by the third. It fol-

34 I.C.J. Reports 1990, p. 137, para. 105.35 I.C.J. Reports 1951, p. 76.36 Ibid., p. 77.37 I.C.J. Reports 1990, p. 4 (in fine).


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 priornegotiations.38 Intervention is not either a means to file a preliminary objectionto the case between the parties as was intended by El Salvador with its declara-tion of intervention in the Nicaragua case. The filing of preliminary objectionsis reserved by the rules of procedure to the parties to the case.

65. Finally, it remains the third general feature of the statutory interventionregarding the ICJ and ITLOS, namely that intervention is a means of self-protection of a legal interest of the third seeking to intervene or declaring itsintervention. The interest must be “legal” in nature because the authors of theStatutes wish to exclude “political” interventions from international judicialproceedings. On the other hand, in practice the term “legal interest” is under-stood 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 ICJStatute and in Article 32 of the ITLOS Statute, otherwise it must be proved bythe third seeking to intervene. Furthermore, the third must prove to the satisfac-tion of the Court or the Tribunal that its legal interest is specific enough as to besusceptible of being affected by the decision in the case.39 Whether or not itwould be so in a particular case is a matter for judicial determination, orverification, in the course of the incidental proceedings on the application forpermission to intervene or on the declaration of intervention.

66. The protection of the legal interest of the third through its direct andactive participation, as an intervener, in the main proceedings is the very objectand purpose of a genuine intervention in the ICJ and ITLOS systems. TheStatutes do not define intervention as a means to make a novation of the case towhich 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 ITLOSStatute), intervention “is not intended to enable a third State to tack on a newcase, to become a new party, and so have its own claims adjudicated by theCourt. A case with a new party, and new issues to be decided, would be a newcase. 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 ofkind.”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. 51.39 For example, the Application for permission to intervene of Philippines in the

Sovereignty over Pulau Ligitan and Pulau Sipadan case was not granted because theApplicant did not discharge its obligation to convince the Court that specified legalinterests may be affected in the particular circumstances of the case (I.C.J. Reports2001, p. 607, para. 93).



intervention. Thus, the purpose of any intervention in both Statutes is, as indi-cated, the protection of the legal interest of the third which may be affected bythe decision, but by the means allowed by the institution of intervention in thejudicial system concerned and not otherwise. In the ICJ and ITLOS systemsthose means do not include, for example, the adjudication by the Court, or bythe Tribunal, of alleged rights or claims of the intervener vis-à-vis the parties tothe case. However, the ICJ jurisprudence admits as a proper object of an inter-vention under Article 62 for the intervener to inform the Court of the nature andextent of its legal interest or alleged rights which may be affected by the deci-sion in the case;41 and in an intervention under Article 63 for the intervener toprovide the Court with its own construction of the provisions of the multilateraltreaty at issue in the case.

68. It follows from the above that in the ICJ and ITLOS systems interventionis essentially a defensive procedural means at the disposal of the interveningthird. By allowing its participation in the main proceedings, the interveningthird is in effect in the position of making the Court or the Tribunal aware withall 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 multi-lateral treaty at issue, before the adoption of the decision and, therefore, to havein that way an influence thereon. It is possible that the position defended by theintervening third might coincide with the arguments or claims of one of the par-ties to the case, but this is not the statutory finality of the intervention in the ICJand ITLOS systems. That finality is the protection of the legal interests of theintervening third.

b) The Forms of Intervention Allowed

69. In order for an intervention to be granted or admitted in international litiga-tion, the third seeking to intervene or declaring its intervention must follow theprescriptions established by the judicial system concerned. There is not such athing as free hand intervention. The intervention sought or declared must adjustitself to the forms of intervention allowed respectively by the system, and it cor-responds to the court or tribunal to control if that is actually the case. TheStatutes of the ICJ and ITLOS allow two forms of intervention. The first is anintervention by authorisation of the Court or the Tribunal (ICJ Statute Article62 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 interventionas of right. Article 62 of the ICJ Statute and Article 31 of the ITLOS Statuteprovide 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.


nature which may be affected by the decision in the case or dispute it may sub-mit 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 bothsystems is, therefore, the very existence in casu of a legal interest of the thirdwhich “may” be affected by the decision in the case, independently of whetheror not such interest would be actually affected. The possibility of being affectedis 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 theterm “State”, Article 31, paragraph 1, of the ITLOS Statute refers to a “StateParty” (defined in Article 1, paragraph 2, of the LOS Convention) as a Statewhich has consented to be bound by the Convention and for which theConvention is in force.

72. It shall be for the Court or the Tribunal to decide whether or not to grantthe requested permission to intervene. The applicant must convince the Courtor the Tribunal of the reality of the legal interest alleged and that it may beaffected by the decision, as well as that the object and purpose of its applicationcorrespond to the form of intervention allowed by the said Article 62 andArticle 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 ongrounds relating mainly to the object and purpose of their respective applica-tions as understood by the majority of the Court. The ICJ jurisprudence con-tains also statements excluding as a proper object and purpose of this form ofintervention applications pursuing a simple interest in pronouncements on theprinciples of international law applicable, or to prejudge or adjudicate appli-cant’s claims in eventual future or existing disputes with either of the parties tothe case, or the prevention of conflict.42

73. The intervention as of right – which is exercised through the filing of adeclaration of intervention – concerns the intervention by a third party to amultilateral convention or agreement at issue in the case. According to Article63 of the ICJ Statute, whenever the construction of a convention to whichStates other than those concerned in the case are parties is in question, theRegistrar shall notify all such States forthwith and every State so notified hasthe right to intervene in the proceedings. In Article 32 of the ITLOS Statute, theterm “construction” has been replaced by the expression “interpretation orapplication” which is more specific and precise and appears in fact to corre-spond to the understanding by the ICJ of the term “construction” in the presentcontext. A second improvement in the drafting of Article 32 of the ITLOSStatute 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.


intervene depends on the notification of the Registrar. The ICJ Rules have how-ever made plain that the Registrar’s notification has not such constitutiveeffects.

74. Other differences between the texts of Article 63 of the ICJ Statute andArticle 32 of the ITLOS Statute are more substantive in nature without modify-ing however the form of intervention considered which is similar in bothStatutes. First, in the ICJ Statute the “third” must be a “State”, as in the form ofintervention 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 “anentity other than a State” parties to one of the international agreements referredto in Articles 21 and 22 of the ITLOS Statute. Secondly, the conventionalinstruments giving rise to the right of the third to intervene are limited in theITLOS Statute to the LOS Convention and the international agreements men-tioned in the said Articles 21 and 22, while in the ICJ Statute any convention inquestion 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 theICJ and ITLOS. It is up to the Court or the Tribunal to decide whether or not agiven declaration of intervention corresponds to this form of intervention byverifying the elements of fact conditioning the existence of the right. For exam-ple, the reality of the convention or agreement concerned, la qualité of partythereto of the third, or whether the interpretation or application of the conven-tion or agreement is actually at issue in the case. In other words, this form ofintervention does not free the Court or the Tribunal of their duty to verifywhether or not a given declaration of intervention is a genuine interventionunder Article 63 of the ICJ Statute or Article 32 of the ITLOS Statute as thecase may be.

c) Incidental Proceedings on Intervention

76. The incidental proceedings on intervention are open by the filing by a thirdof an application for permission to intervene or of a declaration of interventionas the case may be. In the ICJ system, an application under Article 62 shall befiled as soon as possible, and not later than the closure of the written proceed-ings in the case, and a declaration of intervention under Article 63 as soon aspossible, and not later than the date fixed for the opening of the oral main pro-ceedings (Articles 81 and 82 of the ICJ Rules). The ITLOS Rules make no dis-tinction in this respect and are more precise. Applications and declarations shallbe filed not later than 30 days after the counter-memorial in the case becomesavailable (Articles 99 and 100 of the ITLOS Rules). But, both Rules ofProcedure provide that in exceptional circumstances an application or declara-tion submitted at a later stage may be admitted. Applications and declarationsshall, also in both systems, be signed and state the name of the agent (ITLOS


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 theICJ and ITLOS systems, specify the case to which it relates and set out: 1) theinterest of a legal nature which the third applying for permission to interveneconsiders that may be affected by the decision in the case; and 2) the preciseobject 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 ITLOSRules). The Court and the Tribunal are bound to consider the reality of thealleged legal interest and whether the object of the application corresponds towhat is contemplated by the Statute. As indicated above, the ICJ practice showsthe important role played by the object of the application for the granting of thepermission to intervene, the reason being that the nature of the competence cre-ated by Article 62 of the Statute is definable by reference to the object and pur-pose of intervention. In sum, to authorise the intervention, the Court or theTribunal must satisfy itself that the interest alleged and the object of the appli-cation correspond to what is envisaged by the Statute.

78. Article 81, paragraph 2 (c), of the ICJ Rules adds a third element to thecontents of an application for permission to intervene, namely to indicate “anybasis of jurisdiction which is claimed to exist as between the State applying tointervene and the parties to the case”. This provision, inserted for the first timein the 1978 Rules of Court, has not been incorporated in Article 99, paragraph2, of the ITLOS Rules and rightly so. It gave rise to misinterpretations in thepractice of the ICJ and, in any case, has lost its former raison d’être, as fromthe moment that the function of intervention and the nature of the Court’s com-petence under Article 62 of the ICJ Statute has been unveiled.

79. For historical reasons, and up to the time of the Italian Application forpermission to intervene in the Continental Shelf (Libya/Malta) case, the saidfunction and competence was the object of debate. The resulting uncertaintiesgave rise to the so-called “jurisdictional link” theory and its defenders foundcomfort in a provision as Article 81, paragraph 2 (c), of the ICJ Rules, notwith-standing that the words “any basis” used therein excluded that a valid link ofjurisdiction external to the Statute could be a condition sine qua non for thestatutory intervention of Article 62. The theory of the jurisdictional linkfulfilled however an important role by helping the unveiling by the Court of thegenuine intervention of Article 62. Actually, the understanding finally reachedas to the nature of the competence under Article 62 was the clue for identifyingdefinitively the function of this form of intervention and, therefore, its statutoryobject and purpose.

80. The origin of the jurisdictional link theory was in effect linked to theexistence 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 athird to the Article 62 intervention as a means to introduce a new case or en-larging the scope of the subject-matter of a case before the Court by submitting


claims against the parties or a party thereto. This debate ended when in 1990the Chamber in the Land, Island and Maritime Dispute (El Salvador/Honduras)found that “the absence of a jurisdictional link between Nicaragua and theParties to this case is no bar for permission being given for intervention.”43

Subsequently, the full Court has endorsed this finding. Then, if a jurisdictionallink external to the Statute is not a bar, an intervening third cannot, on theexclusive basis of Article 62, be a “party” in the proceedings because thatArticle does not contain any derogation from the consensual jurisdiction princi-ple governing the jurisdiction of the Court on merits.44

81. The second main difference between the ICJ and ITLOS Rules concernsArticle 99, paragraph 3, of the ITLOS Rules according to which permission tointervene under Article 31 of the ITLOS Statute may be granted irrespective ofthe choice of procedure made by the applicant under Article 287 of the LOSConvention. It is a provision fully justified in the ITLOS system, but unneces-sary for a system as the ICJ system. No such provision exists therefore inArticle 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 theparticular provisions of the convention (or of the international agreement), theconstruction (the interpretation or application) of which it considers to be inquestion; 2) a statement of the construction (set out the interpretation or appli-cation) 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 ITLOSRules).

83. Article 82, paragraph 2 (a), of the ICJ Rules adds a further element,namely that the declaration of intervention shall contain particulars about thebasis on which the declaring State considers itself a party to the convention.This element has been dropped from Article 100, paragraph 2, of the ITLOSRules. A possible explanation for this omission is the restricted number and thekind of the conventional instruments giving rise to the right of thirds to inter-vene under Article 32 of the ITLOS Statute, as well as the development reachedby the United Nations system for the registration of treaties.

84. In the ICJ and ITLOS systems, the Registrar shall communicate forth-with to the parties to the case certified copies of the application for permissionto intervene or the declarations of intervention as the case may be. Copies arealso transmitted in both systems to the Secretary-General of the UnitedNations. Also, in the case of the ICJ, to the Members of the United Nations, andother States entitled to appear before the Court, as well as to any other Stateswhich have been notified under Article 63 of the Statute of the Court; and, inthe case of ITLOS, to the States Parties to the LOS Convention and to any

43 I.C.J. Reports 1990, p. 135, para. 101.44 Ibid., p. 134, para. 99.


other parties which have to be notified under Article 32, paragraph 2, of theITLOS Statute, as well as to the Secretary-General of the Authority when theproceedings are before the Sea-Bed Disputes Chamber (Article 83 of the ICJRules and Article 101 of the ITLOS Rules).

85. The organisation of the incidental proceedings on applications for per-mission or declarations of intervention is similar in the ICJ and ITLOS sys-tems. The parties to the case are invited to furnish written observations withinfixed time-limits and if an objection is filed, the Court or the Tribunal shall hearthe third seeking to intervene and the parties before deciding. There is thereforealways a simplified written phase followed, eventually, by an oral phase whichis obligatory in case of party’s objection only. The Court or the Tribunal shalldecide the incident as a matter of priority unless in view of the circumstancesof the case they determine otherwise (Articles 83, paragraph 1, and 84 of theICJ 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 asingle document an application for permission to intervene and a declaration ofintervention. However, in the Request for an examination of the situation inaccordance with Paragraph 63 of the Court’s Judgment of 20 December 1974case (introduced in 1995 by New Zealand versus France), Samoa and SolomonIslands, and Marshall Islands and the Federated States of Micronesia did so,through the filing of documents entitled “Application for permission to inter-vene under Article 62/Declaration of intervention under Article 63”. They weredismissed because the related principal case was dismissed, not as a result ofthe combined form of presentation adopted by the said Applicant/DeclaringStates.45

d) The Decision Granting or Admitting the Intervention and Its Effects

87. Intervention incidental proceedings are closed by a decision of the court ortribunal concerned. The decision – which is jurisdictional in character – mayeither reject or grant or admit the intervention and will put an end to the inci-dent open by the filing of the corresponding application or declaration. The pre-sent Rules of Procedure of the ICJ and ITLOS are silent as to the “form” to beadopted by the decision. It could well be a “judgment”, an “order” or any otherform. In the practice of the ICJ, the decisions relating to Article 62 haveadopted the form of either a judgment or an order. The judgment form has beenfollowed in every case where there was a party’s objection to the grating of thepermission 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.


order. The decisions concerning Article 63 by the ICJ have always adopted theform of an order, except in the case of the Cuban Declaration of intervention inthe 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 bindingeffects for the third and the parties to the case. If an application for permissionto intervene is granted, or a declaration of intervention is admitted, the Stateseeking to intervene in the first case, or the State (or “entity” in the case ofITLOS) having declared its intervention in the second, will become an “inter-vening State” or an “intervening entity” as the case may be. In other words, thethird ceases to be such, becoming an “intervener” or “intervenor” entitled toparticipate 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 theITLOS Rules define the procedural rights of the “intervening State” (or, even-tually, in ITLOS “intervening entity”) in the main proceedings by reference tothe form of intervention concerned. An intervening State under Article 62 ofthe ICJ Statute and under Article 31 of the ITLOS Statute shall be suppliedwith 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. Afurther time-limit shall be fixed within which the parties to the case may, if theyso desire, furnish in turn written observations on the intervener’s statementprior to the oral proceedings. The time-limits should, so far as possible, coin-cide with those already fixed for the pleadings in the case (Article 85, para-graphs 1 and 2, of the ICJ Rules and Article 103, paragraph 1 and 2, of theITLOS Rules). Furthermore, the intervening State is entitled to submit at thehearings 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 theITLOS 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 justdescribed, except for one particular point. The entitlement to submit a “writtenstatement” during the written phase is more limited, becoming an entitlement tosubmit “written observations on the subject-matter of the intervention”.Moreover, these written observations are communicated not only to the partiesto the case but also to “any other State (or entity in the case of ITLOS) admittedto 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 ITLOSRules provide that the intervening State or entity, as the case may be, is notentitled to choose a judge ad hoc or to object to a parties’ agreement to discon-tinue the proceedings in the case. The practice of the ICJ is fully in accordancewith these procedural principles which confirm, beyond any reasonable doubt,that a statutory intervener or intervenor is not a party to the case.


e) The Question of the Legal Effects for the Intervening State or Entityof the Decision in the Principal Case

92. The question remains which legal effects the decision of the Court, or theTribunal, on the merits of the case has for an intervener. In an intervention as ofright, pursuant to Article 63 of the ICJ Statute or Article 31 of the ITLOSStatute, those legal effects are quite clear in both systems. As stated in thoseArticles, the construction or interpretation of the convention or agreement con-cerned given by the judgment will be equally binding on the intervener orintervenor. No problem therefore with respect to this form of intervention in thetwo systems.

93. The matter presents itself differently, as to the texts, in the case of theintervention by authorisation of Article 62 of the ICJ Statute and Article 31 ofthe ITLOS Statute. In the case of ITLOS, paragraph 3 of Article 31 settlesexpressly 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 theintervening State Party in so far as it relates to matters in respect to which thatState Party intervened”. This provision is quite useful as it reflects rightly basicprinciples of the institution of intervention in the droit commun, and balancesintervener’s rights with its obligations as it should be.

94. The ICJ Statute is silent on this important question. It is clear that theeffect of the decision for an Article 62 intervening State cannot be a res judicataeffect since it is not a party to the case. But binding effects should not be con-fused with res judicata effects as recognised in Article 63. The circumstances ofthe elaboration of the 1920 Statute and the uncertainties existing on the thennew form of intervention of Article 62 are at the cause of a wording lacunawhich, unfortunately, was not reviewed in 1945 – probably because of the lackof practice at that time in the application of the provision. However, since theseventies, States have activated Article 62 and the matter is indeed in need ofan interpretation or clarification by the Court. It is the only important pendingquestion in an otherwise quite complete and coherent ICJ jurisprudence onArticle 62 interventions.

95. As explained on other occasions, my personal opinion is that a provisionsimilar to Article 31, paragraph 3, of the ITLOS Statute should be considered tobe implied in Article 62 of the ICJ Statute because it is inherent to the institu-tion of intervention.46 The recent Land and Maritime Boundary betweenCameroon and Nigeria case is particularly illustrative in this respect. BothEquatorial 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 laprocédure de la Cour internationale de Justice”, op. cit., supra note 26, at pp. 426–437.


respect to the case. But one of them, Equatorial Guinea, became later on anintervening State in the case. In my opinion it cannot be said that both Statesare in the same position with respect to the eventual legal effects of the contentsof Court’s Judgment (merits) of 10 October 2002 for them. The contents of theJudgment are indeed res inter alios acta for Sao Tome and Principe, but thecontents of the Judgment on the maritime delimitation aspects of the case arenot alien for Equatorial Guinea.

96. As an intervening State, Equatorial Guinea informed the Court that itslegal interests or rights went as far as to the median line between it and each ofthe parties but not beyond47 and, in effect, the last point (point G) of the mar-itime delimitation line between Cameroon and Nigeria defined by the Judgmentappears as not going beyond the median line between Equatorial Guinea andeach of the parties. In my opinion, this aspect of contents of the Judgment hasbinding effects for Equatorial Guinea in its future maritime delimitations withCameroon or with Nigeria. In those delimitations, Equatorial Guinea would notbe entitled to make claims in areas beyond the median line with those countriesor, in any case, to the north of point G of the maritime delimitation linebetween Cameroon and Nigeria defined by the Judgment. However, Sao Tomeand Principe would not be subject to the same legal limitation in future mar-itime delimitations with Cameroon or with Nigeria because of its condition ofnon-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 MaritimeDelimitation Disputes?

Tullio Treves*

1. INTRODUCTION: SUBSTANTIVE AND PROCEDURAL RULES

States Parties to the United Nations Convention (UNCLOS) on the Law of theSea that are involved in a maritime boundary delimitation dispute are bound bythe relevant substantive and jurisdictional-procedural provisions of theConvention.

As far as substantive provisions are concerned, brief indications aresufficient. While the rule on territorial sea boundaries (Article 151) repeats theequidistance/special circumstances rule of the Geneva conventions concerningthe territorial sea as well as continental shelf delimitations, the separate, butidentical rules concerning the exclusive economic zone and the continentalshelf depart from that rule. Articles 74 and 83 omit stating a substantive princi-ple. The principle of achieving “an equitable solution” is mentioned only as the


63

* 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).

64 Tullio Treves

purpose of delimitation agreements. Only indirectly, in light especially of theNorth Sea Continental Shelf judgments,2 can this principle be indicated as thecontents of the substantive – although imprecise – rule to be followed by adju-dicating bodies. This rule does not add anything to customary law. It does not,however, preclude the judge from utilizing further refinements of customarylaw, such as the developments emerging from recent judgements of the ICJaccording to which something very similar to the equidistance/special circum-stances rule of the Geneva conventions on the territorial sea and on the conti-nental shelf is the correct way to achieve an equitable result.3 Nor is the judgeprecluded form applying the rules that may be in the process of emerging asregards “single line” delimitations, a subject not mentioned by the Convention.4

As regards the jurisdictional-procedural rules, the most relevant conse-quence of being parties to the Convention is that disputes concerning delimita-tion of maritime areas are normally comprised within the compulsoryjurisdiction of an adjudicating body, judicial or arbitral, whose decision is bind-ing for the parties. In other words, States Parties to the Convention may insti-tute proceedings for adjudication concerning the delimitation of maritime areasagainst another State Party without having to secure the agreement of thatparty. Delimitation disputes are included (with the optional exception we willmention) in the general rule of Article 286 that provides that compulsory proce-dures entailing binding decisions shall apply to disputes concerning the inter-pretation or application of the Convention.

This is a very powerful tool at the disposal of a State Party. In light of thenumber of States Parties to which it applies, it broadens almost threefold thepossibilities that exist as between States that have made the optional declara-tion of Article 36, paragraph 2, of the ICJ Statute. In the early years since entryinto force of the Convention, States Parties did not seem to have fully realizedthe potential of this tool. Since 2003, however, things seem to have radicallychanged. In July 2003, Malaysia instituted proceedings against Singapore

2 Federal Republic of Germany/Denmark, Federal Republic of Germany/TheNetherlands, 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, confir-ming previous judgments, states that the criteria, principles and rules of delimitation“are expressed in the so-called equitable principle/relevant circumstances method. Thismethod, which is very similar to the equidistance/special circumstancesa method applic-able 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 thatline in order to achieve an ‘equitable result’”.

4 See I. Papanicolopulu, “Some Thoughts on the Extension of Existing Boundariesfor the Delimitation of New Maritime Zones”, in the present volume.

International Tribunal for the Law of the Sea 65

under the Convention inter alia for the delimitation of a portion of the territor-ial sea boundary between the two States;5 in February 2004, Barbados startedproceedings, also invoking the compulsory jurisdiction clauses of theConvention, against Trinidad and Tobago for the delimitation of the exclusiveeconomic zone and continental shelf between them;6 again, in February 2004,Guyana started proceedings against Suriname for delimitation of the maritimeboundary.7

It must be recalled that this tool can be used only when certain conditions aresatisfied. Firstly, no agreement must be in force between the parties that permitsto reach an equivalent result, in other words: the parties must not be otherwisebound to submit “at the request of any party to the dispute” their disputes con-cerning the interpretation or application of the Convention “to a procedure thatentails a binding decision” (Article 282). Secondly, views must be exchangedregarding the settlement by negotiation or other peaceful means (Article 283).The impact of this clause must not, however, be exaggerated. The InternationalTribunal for the Law of the Sea (ITLOS) has decided more than once, inresponding to claims that the conditions set out in Article 283 had not beensatisfied, 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 settle-ment 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 thearbitral tribunal under Annex VII, was introduced by Malaysia on 4 July 2003: see theITLOS Order of 8 October 2003 in the Case concerning land reclamation by Singaporein 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 thearbitral 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 Procedureand the Order No. 2 adopted on the same date.

7 The Notification and Statement of claim, including the request to constitute thearbitral tribunal under Annex VII, was introduced by Guyana on 24 February 2004: seethe 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 Reports2001, p. 95, para. 60, the Tribunal stated in the same vein that “a State Party is notobliged to continue with an exchange of views when it concludes that the possibilities ofreaching agreement have been exhausted”. In the Order of 8 October 2003 in the Caseconcerning 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.

66 Tullio Treves

much-criticised broad interpretation in the Southern bluefin tuna case, a non-delimitation case, by an arbitration tribunal set up under the Convention).9

Two aspects of the compulsory jurisdiction principle relating morespecifically to delimitation disputes require policy choices by States Parties andcareful assessment by counsel. These aspects concern the adjudicating bodythat exercises compulsory jurisdiction under the Convention and the scope ofsuch 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 Seacould not agree on a single adjudicating body to exercise compulsory jurisdic-tion. It adopted the so-called “Montreux formula” set out in Article 287 of theConvention.10 According to this provision, the parties that so wish may indicate,through a specific declaration, as the preferred adjudicating bodies one or moreof the following: the new International Tribunal for the Law of the Sea (ITLOS),the International Court of Justice (ICJ), an arbitration tribunal of general compe-tence (an Annex VII Tribunal), and specialised arbitration tribunals (Annex VIIITribunals). Whenever the parties to the dispute have made the same choice, thatchoice designates the adjudicating body that will exercise compulsory jurisdic-tion (Article 287, para. 4). When the parties have not made the same choice, anarbitration tribunal of general competence shall be the adjudicating body(Article 287, para. 5). The impact of the rule is strengthened by a further provi-sion stating that a State Party to a dispute not covered by a choice of proceduredeclaration is deemed to have accepted arbitration (Article 287, para. 3). Thefewer 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 onJurisdiction 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, “Lechoix des procédures de règlement des différends selon la Convention des Nations Uniessur le droit de la mer”, in: Mélanges Michel Virally: Le droit international au service dela paix, de la justice et du développement (Paris, A. Pédone, 1991), pp. 383–387.


the stronger becomes the position of arbitration. Indeed, in the three above men-tioned delimitation cases started in 2003 and 2004, none of the six Statesinvolved had made the declaration under Article 287, so that the plaintiffs had noother choice than to institute proceedings before an arbitral tribunal.

So the Convention provides for a flexible mechanism to determine the adju-dicating body to exercise compulsory jurisdiction. The mechanism is, neverthe-less, 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 indicatehow States Parties have used the right given to them by Article 287 and toassess the policy choices that article poses to States and the devices used tomake such choices effective.

When we look at the table setting out the declarations made under Article287 we remark at first sight that this table is much shorter than the table settingout the ratifications and accessions to the Convention.11 About three-quarters ofthe 149 parties to the Convention have abstained from making the choice-of-procedure declaration. When we examine the content of the table, we see that3512 out of 148 States have made the declaration. Among these, eleven haveexpressed a clear preference for the International Tribunal for the Law of theSea,13 a smaller group of seven has indicated a preference for the InternationalCourt of Justice,14 and a growing group of nine States has made its choice forboth the Hamburg Tribunal and the Hague Court, indicating clearly that theygive no priority to either of the two adjudicating bodies.15 Just a very smallgroup has made the unnecessary declaration of preference for arbitration. A

11 References at http://www.un.org/Depts/los/settlement_of_disputes/choice_proce-dure.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) indi-cated 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 Mexicothat has indicated equal preference for ITLOS, the ICJ and Annex VIII specialized arbi-tration, and Canada that has indicated equal preference for ITLOS and for specializedarbitration under Annex VIII. Portugal has indicated its preference for all the four meth-ods indicated in Art. 287.

68 Tullio Treves

number of States, having expressed a preference, also expressed other prefer-ences 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 arbitra-tion, even though this is the consequence it entails because of the provision ofArticle 287, paragraph 3. When such clear preference exists, States have indi-cated it expressly, as has done the Soviet Union (now Russian Federation) andas the United States intends to do if and when it accedes.17 Though in somecases States may have considered it expedient to choose arbitration by abstain-ing from making the declaration, not making a declaration corresponds to a“wait and see” attitude. This is consistent with the normal “bureaucratic pru-dence” based on the idea that an official is more likely to be accused of makinga mistake if she or he does something that is not necessary to do, than if she orhe does not do it.

Two cases, the Saiga No. 2 case18 and the Swordfish case,19 in which the par-ties agreed to transfer the proceedings to the International Tribunal for the Lawof the Sea, while arbitration was the applicable procedure because of lack ofchoices of one or both parties, show that, when confronted with a specific dis-pute, 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 rec-ognize 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 opposethe 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 admin-istration 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 RelationsCommittee of March 11, 2004, (S2712 Congressional Record, reproduced in 35 OceanDevelopment and International Law, 2004, p. 214).

18 St. Vincent and the Grenadines v. Guinea, Order on provisional measures, 11March 1998, para. 14, where the agreement of 20 February 1998 for the transfer of thecase to ITLOS is reproduced (ITLOS Reports 1998, p. 24).

19 Case concerning the conservation and sustainable exploitation of swordfish stocksin south-eastern Pacific Ocean, Chile/European Community, order of 20 December2000, ITLOS Reports 2000, p. 148, para. 2, where the exchange of notes of 18–19December 2000, transferring the case to a Chamber of the Tribunal, is reproduced.


fruition only through patient exercise of good offices by the President of theTribunal. When the case is already before the Tribunal for the prescription ofprovisional measures under Article 290, paragraph 5, of the Convention, to keepit there for judgment on the merits would seem natural. It becomes nonethelessextremely difficult if the discussions are held after the order for provisional mea-sures has been made. One party (or perhaps both parties) will unavoidably,although not necessarily correctly, read between the lines of the decision on pro-visional measures signs of the orientation of the Tribunal on the merits.

In light of these observations, it seems fair to assume that the question ofchoice of procedure under Article 287 is still an open one for the great majorityof States Parties. This is confirmed by the fact that General Assembly resolu-tions 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 con-fronted 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 onebetween arbitration and a permanent adjudicating body. In favour of arbitration,the following elements are usually mentioned: First, the reason historicallygiven for making arbitration the “default” rule in Article 287. Arbitration, ascompared to permanent courts and tribunals, entails a smaller exception toState sovereignty as parties exercise more control on the persons in charge ofadjudication.21 In fact, while the arbitration panel requires the agreement of theother party, each party can count on that no person to which it strongly objectswill be a member of the panel. Second, it is possible to keep arbitration confi-dential. Third, arbitration is more expeditious than proceedings before perma-nent 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 predictableas previous decisions can be consulted. Second, a permanent court or tribunal isless expensive for parties. They do not have to pay arbitrators’ fees and subsis-tence costs, nor those of interpreters, translators and of a registrar and otherstaff, 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 17November 2004, para. 20.

21 Pastor Rudrejo, “La solución de controversias en la Tercera Conferencia deNaciones Unidas sobre el Derecho del Mar”, Revista española de derecho interna-cional, 1977, pp. 11–32, at p. 26, recalls the argument by France (the main proponent ofmaking 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 cer-tain circumstances, the arguments invoked in favour of arbitration are notbeyond criticism, or always valid. As to the control on the composition of thepanel, this advantage can be almost completely offset if parties agree onentrusting 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 thechambers.22 It must also be considered that, in selecting a panel of three or fivearbitrators, to misjudge the attitude of just one member of the panel can be verydangerous for a party, while in a 15 or 21 member body the balance of views ismuch more likely to be ensured.

As regards confidentiality of written and oral pleadings, in permanent bodiesit is exceptional, even though not legally impossible, and the publicity of thejudgment is the rule. In arbitration normally documents and pleadings areconfidential – even though recent practice shows at least a case in which hear-ings of a delimitation arbitration were held in public.23 However, as said in thePermanent Court of Arbitration’s communiqués concerning the Barbados/Trinidad and Tobago and the Guyana/Suriname disputes mentioned above, it isto be expected that the Arbitral Awards are made public. In any case confiden-tiality depends on the agreement of the parties.

A far as the duration is concerned, important delimitation cases before arbi-tral tribunals can be, and have been, quite long. It would, moreover, be unfair toITLOS to assimilate the duration of cases before it to that of delimitation casesbefore the ICJ.

Finally, another element that can influence the choice – although not neces-sarily always in the same direction – is that the Statutes of the ICJ and ITLOSadmit, under certain conditions, third party intervention, while Annex VII regu-lating arbitration does not provide for such possibility, even though partieswould seem to be entitled to agree on a rule that admits it. States wishing toexclude third parties’ intervention might consider this a reason not to choose apermanent body, while the choice of ITLOS or the ICJ may become attractivefor States that do not want to be precluded from the possibility of intervening ina dispute.

As Annex VII arbitration would be based on the Convention as would pro-ceedings before ITLOS or the ICJ, provisional measures could be requestedunder Article 290 in arbitral proceedings as in judicial ones. So the unavailabil-ity of provisional measures that has been indicated as an element of difference

22 ITLOS Statute, Art. 17, para 4; ICJ Statute, Art. 31 para. 4.23 This was the Canada/France arbitration on the maritime border in the area of Saint-

Pierre-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.


between arbitral and judicial proceedings24 does not play a role in the choiceunder Article 287.

While of course the reasons for choosing arbitration may in many cases berespectable, it would seem that in general, as a policy option, to be envisaged asis the case under Article 287, in abstracto for all possible disputes, the argu-ments invoking predictability and lower costs suggest that the choice in favourof 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 theHamburg Tribunal, putting them on the same level, shows that some States,after due reflection (most of these States have not made their choice immedi-ately after ratification)25 became persuaded of the advantages of permanentjurisdiction in comparison with arbitration.

e) ITLOS or ICJ?

As regards the choice between the International Tribunal for the Law of the Seaand the International Court of Justice . . . as a member of the Tribunal, I cannotclaim to be totally unbiased. I will nonetheless try to be as objective as I can byabstaining from arguments against a choice of the ICJ and limit myself to indi-cating, first, aspects that States can assess differently according to their traditionand 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. Asits case-law has so far showed respect for the jurisprudence of the ICJ, and nointention of breaking away from it, it is likely that the approach the Tribunalwill follow in delimitation issues will be similar to that of the Court.26 On asubject that, as delimitation of maritime areas, belongs to the very core of thelaw of the sea, it is nonetheless possible that the Tribunal will develop lines ofthought different from those the Court has reached after a string of decisionsspread over decades and that, though not necessarily inconsistent, certainlyshow an evolution. Whether this unlikely but possible difference of attitude on

24 R.R. Churchill, “The role of the International Court of Justice in MaritimeBoundary Delimitation”, in: A.G. Oude Elferink, D. Rothwell (eds.), Oceans Manage-ment 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 ofJustice on Questions Raised by Other Tribunals”, 4 Max Planck Yearbook of UnitedNations Law, 2000, pp. 215–231, at p. 221.

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substance is an attraction or a negative factor in choosing the Tribunal dependson the interests of each State.

A second aspect is that the composition of the Tribunal is different from thatof the Court. Not only is it a bigger body, 21 compared to 15 judges. The elec-tion of its members, although held in New York, is totally detached from theUnited Nations. Only States Parties participate in it, even though a citizen of anon-member State may be, and once was in fact, elected. Judges from the ThirdWorld are in proportion more numerous in the Hamburg Tribunal than in theHague Court. Permanent members of the Security Council do not enjoy thespecial position they de facto have in the election of the ICJ because of the rulethat ICJ judges must obtain a majority in the General Assembly and in theSecurity Council. The fact that at present, citizens of the four permanent mem-bers that are parties to the Convention are members of the Tribunal shows,however, that there is no bias against permanent members of the SecurityCouncil. Again, this is an aspect that must be considered, even though it maybring States to different conclusions.

As regards the procedure applicable to the cases, the rules of the Tribunal arenot basically different from those of the Court. States can have different viewsas to those rules that are different, even though none of the differences wouldseem to be such as to justify, in the abstract, a choice in either direction. Thishas become particularly true during the last few years, as amendments to theRules 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 hasreacted to the rules of ITLOS, which in turn had been adopted in light of criti-cism directed at the corresponding rules of the ICJ.

As the Court, the Tribunal offers to parties so agreeing the possibility ofestablishing an ad hoc Chamber whose composition the Statute explicitly statesmust 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 factofollows it, so that in practice there is no difference. The rules on preliminaryobjections are different, especially as regards the time-limits, although therecent 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 indicatedand 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 applyto proceedings before the Tribunal.27 The LaGrand judgment of the ICJ28 haseliminated 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.


Convention, which are binding, and those of the Court (but probably not of theCourt deciding under the jurisdictional clauses of the Convention) whose effectwas the subject of controversy up to the above mentioned judgment.

Apart from its magnificent premises, the hospitality extended to the partiesand the facilities put at their disposal, the main attractions of the Tribunal, inde-pendently 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 ofthe sea experience and capability in international law in general may be asimportant (and the Tribunal has shown that it does not lack such experience andcapability), there is no doubt that delimitation of marine areas falls entirelywithin the expertise of specialized law of the sea judges, a number of whichhave been involved, as counsel or as negotiators, in maritime boundary ques-tions. Second, the Tribunal tries to streamline its proceedings keeping contactwith the parties and their needs. Third, the Tribunal has shown that is capableof proceeding expeditiously. In this it is helped by its rules and by its judicialstyle as well as by the fact that its agenda is – for the time being – far frombeing 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 Article287 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 princi-ple in the Convention that automatically excludes delimitation disputes fromcompulsory jurisdiction. Such disputes are, in fact, not included in the “limita-tions” 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 inorder to exclude from the scope of compulsory jurisdiction disputes concerningthe interpretation or application of Articles 15, 74 and 83, namely, disputesconcerning delimitation of the territorial sea, the exclusive economic zone andthe continental shelf between States with opposite or adjacent coasts. There areno deadlines to make these declarations. However, they cannot apply to a dis-pute already pending before a court or tribunal. When a State Party has madesuch 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 can-not 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 conciliationprocedure (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 toexplain why so few States have made their choice of procedure under Article287 yet, States Parties that have made the declaration excluding delimitationdisputes are also few, in fact even fewer. There are only 18 States Parties(including Iceland, Nicaragua and Norway) whose declarations have arestricted 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 worldmap of these States has the effect of excluding to a great extent compulsoryjurisdiction from delimitation cases in certain areas, such as the southern coneof 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, itintends to make a declaration encompassing all exceptions mentioned in Article298).30 The low number of declarations made entails, however, that in broadregions as East Asia, Africa and the Caribbean, compulsory jurisdiction willapply in most cases.

It would seem reasonable to suppose that when States decide to excludedelimitation disputes from compulsory jurisdiction they do so because theyconsider that the advantages of excluding the possibility of becoming a defen-dant 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 previousversion 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 isto consider the acceptance of compulsory conciliation, mentioned in para. 1 (a), asequivalent to the “declaration” mentioned in para. 4. For the history of the provision seeM.H. Nordquist, S. Rosenne, L.B. Sohn (eds.), United Nations Convention on the Lawof 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 admin-istration 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 RelationsCommittee of March 11, 2004 (S2712 Congressional Record, reproduced in 35 OceanDevelopment and International Law, 2004, p. 214).


excluded from the right of instituting proceedings against neighbouring States.This assessment may depend on that the declaring State considers it has a badcase (but what about the situation in which it has a bad case against one neigh-bour and a good one against another?). It may depend on that the State is of theview that in delimitation matters, a special agreement is preferable to unilateralapplications and that it has a chance of getting such an agreement from theother party. It may also depend on that a State holds the general view that com-pulsory jurisdiction is an unwelcome aspect of the Convention and that it isgood policy to minimize its effect; in this case such State will exclude all cate-gories of disputes set out in Article 298, and not only, as Australia, EquatorialGuinea, Italy and Spain have done, delimitation disputes.

c) Compulsory Conciliation as a Replacement for ExcludedCompulsory Jurisdiction

Be it as it may, in deciding whether to make the declaration excluding delimita-tion disputes, a State Party to the Convention must also consider that, even if itmakes the declaration, it will not succeed, at least in many cases, in excludingthird party settlement of disputes procedures entirely. As mentioned above,when a State Party to a delimitation dispute makes the declaration excludingthis kind of disputes from compulsory jurisdiction, it accepts, under Article298, paragraph 1 (a), submission of the matter to conciliation at the request ofthe other party (so-called “compulsory conciliation”).31

So, before making the declaration under Article 298, paragraph 1 (a), a Statehas to assess the comparative pros and cons of compulsory conciliation andcompulsory adjudication. Against what may be perceived as the main advan-tage of conciliation, the fact that its outcome is not binding, States will have toconsider that proceedings before a conciliation commission are technicallyalmost as complex and politically burdensome as those before a court or tri-bunal and that such proceedings entail, at the end, the further political hurdle ofdeciding whether to follow the recommendations of the commission. In certaincases States may prefer not to have to make this choice, and rather be bound bythe 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 underthe Law of the Sea Convention or under any other of the conventions that pro-vide 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 inter-nazionali. 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 setsout an obligation for parties to negotiate an agreement on the basis of the con-ciliation commission’s report and, in case of non-agreement, to submit, bymutual consent, the question to a binding procedure. These are obligations denegotiando and de contrahendo and do not make it certain that, at the end, thedispute will be solved. But the pressure on the State that is not ready to followthe recommendations is great. Another element to be considered is that –according to Article 7, paragraph 1, of Annex V to the Convention – the reportof the conciliation commission shall set out conclusions “on all questions offact or law relevant to the matter in dispute”. Apart from its non-binding char-acter, 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 anunattractive alternative to compulsory adjudication, does not, however, becomepossible in all cases in which the declaration under Article 298, paragraph 1 (a)is made. According to this provision, the declaration will not entail compulsoryconciliation when the dispute “arises subsequent to the entry into force of th[e]Convention” or when it “necessarily involves the concurrent consideration ofany unsettled dispute concerning sovereignty or other rights over continental orinsular land territory”. If one or both of these requirements is satisfied, therewill be no third party settlement procedure applicable without the consent ofboth parties.

Difficult legal problems may arise in determining whether the two require-ments are satisfied. As regards the first, it is well known that there are no hardand 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 men-tioned in Article 298, paragraph 1 (a) is that of the international entry into forceaccording 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 Article308, paragraph 2.32

As regards the second requirement, what is a dispute that “necessarilyinvolves the concurrent consideration of any unsettled dispute concerning sov-ereignty or other rights over continental or insular land territory”? A delimita-tion dispute may involve a number of separate problems, some but not all ofwhich 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.


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

e) Compulsory Jurisdiction on “Mixed” Land Sovereignty andMaritime Boundary Disputes?

Perhaps, the most interesting aspect of the provision just considered is not itseffect of excluding compulsory conciliation when the declaration under Article298, paragraph 1 (a), has been made. It is that the provision, if read a contrariosensu, may be an argument to support the view that, when a declaration exclud-ing delimitation disputes from compulsory jurisdiction has not been made, suchdisputes are included within the scope of the compulsory jurisdiction of thecompetent court or tribunal, even when they “necessarily involve” the concur-rent consideration of questions of sovereignty. It may be discussed whether thisargument is sufficient to support the view that all “mixed” boundary disputes,involving land sovereignty issues as well as maritime boundaries fall – in lackof a declaration under Article 298, paragraph 1 (a) – within compulsory juris-diction. Whether such jurisdiction can be considered as existing in this casemay well depend on the way the case is presented by the plaintiff party, onwhich aspects are the prevailing ones, and on whether certain aspects can beseparated from the others, on whether the dispute, as a whole, can be seen asbeing about the interpretation or application of the Convention. While all theseare legitimate and difficult questions to be discussed, the argument a contrariosensu here considered seems sufficient to discard the view that whenever a casepresents a land aspect, compulsory jurisdiction of the courts and tribunals com-petent under the Convention should automatically be excluded.

4. CONCLUDING REMARKS: JURISDICTION BY AGREEMENT

It seems worth stressing that, as regards maritime boundary disputes, while themost innovative aspect of the Convention is compulsory jurisdiction of adjudi-cating bodies, the Convention does not exclude that procedures entailing bind-ing 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 partiesotherwise agree” clauses. The agreement of the parties may give jurisdiction toa court or tribunal different from the one that would be competent under Article287 (see paragraphs 3 and 4 of Article 287). A declaration under Article 298does not preclude the State having made it from agreeing to submit a disputebelonging to the excluded category to any of the procedures specified in theConvention (Article 298, paragraph 2). Agreement by the parties might cutshort 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 acompulsory-jurisdiction-only tribunal. It is open to examine cases submitted byagreement. In delimitation disputes, as in other disputes, agreement may meana better defined dispute, and that preliminary objections will be avoided orreduced to a minimum. This would concentrate the dispute to its law of the seacore, and would permit to the Tribunal to perform to the best of its abilities inits 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 maritimearea will usually deploy a wide range of arguments in support of its case. Issuesrelating to living and non-living resources, the geology and geomorphology ofthe seabed, historical rights, national security, economics and environmentalprotection are all frequently raised, and most states will seek expert assistancein these areas to help prepare and present the most convincing case possible.However, while acknowledging the multidisciplinary nature of the task, thispaper will focus on an area of expertise which is crucial to any maritimeboundary delimitation, namely geographical expertise.

Areas in which a technical expert (as the geographical expert is more com-monly described)1 can assist in maritime boundary delimitation include:


79

* Director of Research, International Boundaries Research Unit (IBRU), Departmentof 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 hydro-graphers – specialist geographers with particular expertise in surveying and mapping

80 Martin Pratt

• Constructing and defining the boundary and other relevant limits withsufficient technical precision to meet practical needs.

• Helping to interpret concepts such as “the relevant area”, “the general direc-tion of the coast” and “reduced effect” within the context of the delimitationin 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 interms of identifying basepoints relevant to the delimitation of the boundary.

• Ensuring that clients, counsel and judges understand the significance of geo-graphical and geodetic issues such as datums, map projections and the typeof 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 ofthe need for geodetically precise boundaries, especially where hydrocarbonsare located close to the line. Boundary awards by courts and tribunals are com-ing under closer and closer scrutiny by technically-proficient analysts, anderrors or deficiencies in the definition of a maritime boundary are sure to beexposed. For this reason, it is recommended that a) adjudicators ensure thatthey have adequate technical support themselves, and b) they encourage theparties to the case to agree technical standards for delimitation before the adju-dicators begin their deliberations.

2. THE PURPOSE OF MARITIME BOUNDARY DELIMITATION

The primary aim of maritime delimitation, at least as far as the EEZ and conti-nental shelf are concerned, is the equitable division of maritime space. This aimis enshrined in Articles 74 and 83 of the 1982 United Nations Convention onthe Law of the Sea (hereafter “UNCLOS” or “the Convention”) which begin bystating that: “The delimitation of the exclusive economic zone [Article 74]/continental shelf [Article 83] between States with opposite or adjacent coastsshall be effected by agreement on the basis of international law, as referred to inArticle 38 of the Statute of the International Court of Justice, in order toachieve an equitable solution.” The Convention is silent on what factors need tobe considered in order to achieve an equitable outcome, and it is evident fromcase law and the writings of leading jurists that a range of factors may comeinto 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 inboundary delimitation issues, nor that only hydrographers have the necessary technicalskills for boundary work.

The Role of the Technical Expert in Maritime Delimitation Cases 81

shoulders above the rest, namely coastal geography. Antunes states emphati-cally that “The key fact in maritime delimitation is coastal geography”;2 and thelate Professor Jonathan Charney noted in his introduction to InternationalMaritime Boundaries that when States consider the facts and options availablefor maritime boundary delimitation, “it is clear that primary attention will beplaced upon the geography of the coastline.”3 In this context, it is hard to denythat there is a pressing need for geographical expertise on all sides in a mar-itime boundary case.

A second key aim of boundary delimitation in the opinion of this author isthe unambiguous definition of a line that can be located on the ground withsufficient accuracy for practical needs. It is all very well concluding a delimita-tion agreement that both sides feel is equitable, but if the resulting boundarycannot readily be located by navigators and resource managers, the risk ofboundary-related friction will remain high. There are numerous examplesaround the world of disputes over the interpretation of boundary agreements orawards in which the boundary was defined inadequately from a technical per-spective. In most cases the inadequate definition resulted from a lack of appro-priate technical input during the delimitation process.

3. PROVISIONS FOR EXPERTS DURING BOUNDARY CASES

Both of the standing courts with competence to adjudicate maritime boundarydisputes have rules relating to the use of experts in cases submitted to them.The International Court of Justice (ICJ) and the International Tribunal for theLaw of the Sea (ITLOS) both allow parties to call experts to give evidence dur-ing oral proceedings.4 In practice, experts are rarely used in this way, possiblybecause the rules of both bodies allow the experts to be examined by all partiesand questioned by the Judges. Both courts also have powers to arrange for theprovision 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/theTribunal may consider to be necessary for the elucidation of any aspect of thematters in issue, or may itself seek other information for this purpose.”6

The Rules of ITLOS allow for the appointment of scientific or technicalexperts to sit with the Tribunal during its deliberations, although they do not

2 N. Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal andTechnical 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.

82 Martin Pratt

have the right to vote. Such experts may be appointed at the request of a partyor proprio motu, and are required to be “independent and enjoy the highest rep-utation for fairness, competence and integrity”.7

In contrast, the ICJ has no provision for experts to sit with the Court. In casessubmitted by special agreement, the parties obviously have scope to ask theCourt to appoint an expert to assist it with technical aspects of the case, as hap-pened 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 sug-gest that at least some technical assistance was provided to the Court indefining the boundary; however, the Judgments give little (if any) indication ofthe 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 par-ties, which shall be given the opportunity to comment upon it9 – thereby poten-tially undermining the final and binding nature of the Judgment. As long as theboundary determined by the Court is technically sound, it is arguable that itdoes not greatly matter if the Court sidesteps the question of how it determinedthe precise alignment of the line.10 However, as will be discussed below, theCourt has not always delivered a technically sound boundary. In such instances,the lack of transparency concerning the determination of the line leaves theCourt 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 guidesto the technical aspects of maritime boundary delimitation (see bibliography)and there is no need to discuss them all in depth again here. However, given thefact that maritime boundaries are still occasionally being defined in ways thatmake them impossible to locate on the ground, it is worth highlighting aspects

7 UNCLOS Art. 289, ITLOS Rules, Art. 15.8 The technical expert appointed in the Gulf of Maine case was the British hydrogra-

pher, Commander Peter Beazley. Commander Beazley also provided technical assis-tance to the arbitration tribunals in the Canada-France, Guinea-Guinea-Bissau andGuinea-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


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

a) Median Lines

Even though UNCLOS gives no special status to the median line beyond the ter-ritorial sea, courts and tribunals almost invariably begin their deliberations byexamining the median line – the line along which every point is equidistant fromthe nearest points on the baselines from which the territorial sea of the States inquestion is measured – and considering whether it is necessary to depart fromthat line in order to produce an equitable division of maritime space.

Computer software tools are now available which enable the median linebetween two sets of basepoints to be calculated with a high degree of precisionon the relevant reference ellipsoid in a matter of seconds. However, the medianline will only be as accurate as the baseline model on which the calculation isbased, and creating an accurate baseline model requires an understanding atleast of how the low-water line is depicted on charts, and possibly familiaritywith satellite imagery, aerial photography, geodetic datums and verticaldatums. Although to a casual observer it may look as if median lines can nowbe generated literally at the push of a button, a significant amount of technicalwork is required to get to the button-pushing stage.

Before such software tools were developed, technical experts had little optionbut to construct median lines graphically using paper charts. Even in the mostskilled hands, a graphically constructed median line is bound to be less accuratethan a computed one due to the distortions inherent in depicting the three-dimensional surface of the earth in two dimensions. For this reason, it is difficultto justify using graphical methods to define a boundary today. However, formost analytical purposes it is not essential to identify the median line withabsolute precision, and a graphically-constructed median line is likely to be per-fectly adequate for assessing equity if the appropriate software is not available.Whether a technical expert is needed in order to create a reasonable graphicaldepiction of the median line will obviously depend on the experience and tech-nical aptitude of other members of the team. Based on observations of lawyersand diplomats attempting to construct median lines at International BoundariesResearch Unit training workshops, it is probably a good idea at least to have atechnical 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 byline segments connecting points with specified coordinates, usually stated in

84 Martin Pratt

terms of latitude and longitude. Most people know that latitude describes thenumber of degrees (from 0 to 90) north or south of the equator that a particularpoint 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 toremember, however, is that there are many different mathematical models ofthe earth (known as ellipsoids) on which latitude and longitude can be mea-sured, and that the same pair of coordinates derived from different ellipsoidswill relate to different points on the surface of the earth. Although the differ-ences are not vast – generally no greater than 1.5 kilometres and often a lotsmaller – they can be very significant in the context of boundary delimitation,especially in areas rich in natural resources. In order for geographical coordi-nates to be meaningful, they must be referred to a geodetic datum (i.e. the para-meters of the ellipsoid on which coordinates are measured). Modern maritimeboundaries are generally referred to the WGS84 datum, a global datum that isused by most satellite navigation systems; however, in many ways it does notmatter what reference datum is used as long as the chosen datum is specifiedwhen coordinates are listed. To define a maritime boundary using geographicalcoordinates without specifying a reference datum is inexcusable. Yet, accordingto Lathrop’s analysis of the 147 boundary agreements in the first two volumesof the American Society of International Law’s study International MaritimeBoundaries, no fewer than 55% failed to specify a reference datum to which thecoordinates of the turning points should be referred. Most maritime boundariesagreed in the last ten years do have a specified reference datum but, as recentlyas 2003, Indonesia and Vietnam concluded a boundary agreement in the NatunaSea with no reference datum. Worryingly, when the ICJ defined the maritimeboundary between Cameroon and Nigeria in 2002, it neglected to indicate thedatum to which the coordinates of the turning point of the boundary shouldrefer. If the local Minna datum is used, the boundary would run approxi-mately 75 metres west of where it would run if the coordinates are referred toWGS84 – a significant distance in an oil-rich area.11

It would be unreasonable to expect judges and legal counsel to becomeexperts in the geodesy that underlies the definition of positions on the surfaceof the earth. However, anyone involved in boundary delimitation should at thevery least be aware of the need to specify a reference datum whenever geo-graphical coordinates are used, and have access to advisors who are aware ofthe implications of selecting one datum over another. Even if a court or tribunalis 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 theICJ 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. OudeElferink, D. Rothwell (eds.), Oceans Management in the 21st Century: InstitutionalFrameworks and Responses (Leiden, Martinus Nijhoff Publishers, 2004), pp. 231–254.


Nigeria case (where the Court confirmed the validity of two previous maritimeboundary agreements whose coordinates were derived from charts with noknown reference datum) it surely owes it to the parties at least to acknowledgethe problem and suggest options for overcoming it rather than pretending thatno such problem exists.

A second important aspect of geographical coordinates is that of significantfigures 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) willonly be accurate to ±15 metres on the ground. In remote areas of the openocean, such accuracy may be sufficient for maritime boundary purposes, but inprospective areas for hydrocarbons and minerals, it would probably be wise toquote coordinates to at least the nearest 0.1 of a second (±1.5 metres on theground). When computers are used to calculate positions, the software oftengenerates coordinates quoting seconds to eight significant figures, representing0.015 millimetres on the ground. Such precision is, of course, impossible toachieve 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 non-technicians.

c) Lines Connecting Turning Points

It is important to recognise that there is no such thing as a “straight” line on thesurface of the earth. Unless the nature of the lines connecting the turning pointsof a boundary is specified, the boundary delimitation will be ambiguous. Themost commonly used types of connecting line are geodesics – lines tracing theshortest distance between two points on the surface of the earth – and loxo-dromes (also known as rhumb lines), which are lines of constant bearing andplot as straight lines on charts drawn on the Mercator projection;12 arcs of greatcircles13 have also been used in maritime boundary delimitations. At low lati-tudes, the choice of line generally has little impact on the areas of maritimespace allocated to the parties, but at high latitudes the effect can be consider-able, especially where long line segments are involved. When the USA and

12 Most nautical charts are constructed on the Mercator projection precisely becauselines of constant bearing plot as straight lines, thereby aiding route planning and naviga-tion. When maritime boundaries were constructed graphically using navigational charts,it was much easier to define connecting lines as loxodromes. When boundaries are com-puted, 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 passesthrough the centre of the earth. All meridians of longitude and the equator are great cir-cles. Arcs of great circles are generally very similar to geodesics.

86 Martin Pratt

USSR entered into negotiations over their maritime boundary in the Bering Seain 1977, the two governments agreed that the line defining the western limit ofthe territory purchased by the USA from Russia in 1867 should be the basis forthe maritime boundary. However, the USA interpreted the 1867 line as being anarc of great circle, while the USSR understood it to be a loxodrome. The areabetween the two proposed lines was almost 21,000 square nautical miles! Lessdramatically – but still significantly – in the 1977 decision of the Court ofArbitration appointed to delimit the continental shelf boundary between Franceand the United Kingdom, the choice of a loxodrome for the long (169 nauticalmile) westernmost segment of the boundary gave France around 450 squarenautical miles more seabed than if a geodesic had been used.14 Anyoneinvolved in a maritime delimitation case needs to be aware of the effect that dif-ferent types of line would have on the alignment of the boundary and, even ifthe parties do not express a preference, the court or tribunal charged withdefining the boundary should specify the type of connecting line to be used, orat 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 theseconcepts are easily understood in principle, but in practice they are often farless clear-cut than they first appear. In fact, there is rarely a definitive answer tosuch questions, but a geographical expert will at least be able to evaluate theimplications of, for example, using a simplified coastline as a guide to coastlinelength rather than following every indentation of the mainland coast and off-shore islands. It is inevitable that a State seeking to persuade a court or tribunalthat its proposed boundary represents an equitable delimitation will present asomewhat biased interpretation of the geographical context, and judges need tobe aware of the geographical “tricks” that can be employed to make a case lookmore convincing than it really is. The same goes for the use of illustrativemaps, where the choice of projection, scale and colour can all have a dramaticeffect 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 ageodesic, and the UK requested the Court to amend its award to this effect. The Courtrejected the request, claiming that the use of a loxodrome was not incompatible with thewording of its decision.


5. CONCLUSIONS

States understandably take boundary litigation extremely seriously. They havelong been willing to spend millions of dollars securing the services of expertlegal advisors, and in recent years most governments involved in maritimeboundary cases have also appointed leading technical experts to support thepoliticians and lawyers in preparing the best possible case. As oil and gas pro-ducers become capable of operating in deeper and deeper waters, the need forclearly-defined and geodetically-robust maritime boundaries becomes evermore pressing. In such a context, courts and tribunals surely have a responsibil-ity 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; how-ever, it is one thing to be aware of the need to take care with coordinates, it isquite another to be able to translate a concept such as a median line giving halfeffect to island X into an unambiguous line that can be located at least to withina 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 adviceduring the deliberation phase of the proceedings. Ideally, a technical reportshould accompany every decision, so that the parties can understand exactlyhow the line determined by the court was constructed.

In cases brought by special agreement, courts and tribunals could help tominimise the risk of an unsatisfactory technical outcome by encouraging theparties to agree technical parameters for the boundary before the case begins.For example, the parties could ask the court to define the boundary using geo-graphical coordinates referred to WGS84, quoted to the nearest tenth of a sec-ond of arc, and using geodesic lines to connect the specified coordinates. If theparties disagree on the technical parameters, they could make the case for theirpreferred parameters in their pleadings, allowing the court (hopefully throughits technical expert) to determine the most appropriate parameters for the casein hand. A further possibility in cases where the parties make reference to themedian line in their written pleadings would be to ask the parties’ technicalexperts to exchange basepoint data relevant to the median line and see if theyagree on the location of the entire median line. Since this is a purely technicalexercise, it could be undertaken without prejudice to the claims of either partyand it would significantly reduce the risk of errors creeping into the finalboundary.

Ideally, boundary-making is a task that should be undertaken in a spirit ofcooperation with input from legal, technical and other relevant experts. When aboundary dispute cannot be settled through negotiation and is submitted foradjudication by a third party, it is inevitable that the process will become com-petitive and quite possibly acrimonious. However, in general, technical aspectsof boundary-making are much less controversial than the legal aspects and,with appropriate expertise on all sides, there is no reason why the technical

88 Martin Pratt

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

6. SELECTED BIBLIOGRAPHY

Antunes, N., Towards the Conceptualisation of Maritime Delimitation: Legal andTechnical 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 ofMaritime Space: Delimitation, Dispute Resolution, Geographical InformationSystems 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 BiennialConference of the Advisory Board on the Law of the Sea, Monaco, 28–30 October2003, http://www.gmat.unsw.edu.au/ablos/ABLOS03Folder/PAPER1–3.PDF.

International Hydrographic Organization, A Manual on Technical Aspects of the UnitedNations Convention on the Law of the Sea, 1982, 3rd edition, Monaco: InternationalHydrographic 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 DisputeResolution”, in: Oude Elferink, A.G., and Rothwell, D. (eds.), Oceans Managementin the 21st Century: Institutional Frameworks and Responses, Leiden: MartinusNijhoff Publishers, 2004, pp. 231–254.

Thamsborg, M., “In Search of an Objective Approach to the Identification of CertainGeographical Parameters: The Jan Mayen Case Before the International Court ofJustice”, Nordic Journal of International Law 64 (1995), pp. 647–681.

White, G., “The Use of Experts by the International Court”, in: Lowe, V., andFitzmaurice, M. (eds.), Fifty Years of the International Court of Justice: Essays inHonour of Sir Robert Jennings, Cambridge: Cambridge University Press, 1996.


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 technicalexperts under article 28915 of the Convention shall, as a general rule, be madenot later than the closure of the written proceedings. The Tribunal may considera later request made prior to the closure of the oral proceedings, if appropriatein the circumstances of the case.2. When the Tribunal decides to select experts, at the request of a party or pro-prio motu, it shall select such experts upon the proposal of the President of theTribunal 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, article2, to the Convention shall be chosen preferably from the relevant list preparedin 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 followingsolemn declaration at a public sitting: “I solemnly declare that I will performmy duties as an expert honourably, impartially and conscientiously and that Iwill faithfully observe all the provisions of the Statute and of the Rules of theTribunal”.

Article 42

1. The deliberations of the Tribunal shall take place in private and remainsecret. The Tribunal may, however, at any time decide in respect of its delibera-tions on other than judicial matters to publish or allow publication of any partof them.2. Only judges and any experts appointed in accordance with article 289 of theConvention take part in the Tribunal’s judicial deliberations. The Registrar, or

15 UNCLOS Art. 289 states that: “In any dispute involving scientific or technical mat-ters, a court or tribunal exercising jurisdiction under this section may, at the request of aparty or proprio motu, select in consultation with the parties no fewer than two scientificor technical experts chosen preferably from the relevant list prepared in accordance withAnnex 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 requiredshall be present. No other person shall be present except by permission of theTribunal.3. The records of the Tribunal’s judicial deliberations shall contain only the titleor 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 byhim be inserted in the records.

Article 72

Without prejudice to the provisions of these Rules concerning the production ofdocuments, each party shall communicate to the Registrar, in sufficient timebefore the opening of the oral proceedings, information regarding any evidencewhich 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, nationali-ties, descriptions and places of residence of the witnesses and experts whomthe party intends to call, with indications of the point or points to which theirevidence will be directed. A certified copy of the communication shall also befurnished for transmission to the other party.

Article 77

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

Article 78

1. The parties may call any witnesses or experts appearing on the list communi-cated to the Tribunal pursuant to article 72. If at any time during the hearing aparty wishes to call a witness or expert whose name was not included in thatlist, 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 expertmay be called either if the other party raises no objection or, in the event ofobjection, if the Tribunal so authorizes after hearing the other party.


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

Article 79

Unless on account of special circumstances the Tribunal decides on a differentform of words,(a) every witness shall make the following solemn declaration before givingany evidence:

“I solemnly declare upon my honour and conscience that I will speak the truth, thewhole truth and nothing but the truth”;

(b) every expert shall make the following solemn declaration before makingany statement:

“I solemnly declare upon my honour and conscience that I will speak the truth, thewhole truth and nothing but the truth, and that my statement will be in accordancewith 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 theparty calling the witness or expert. Questions may be put to them by thePresident of the Tribunal and by the judges. Before testifying, witnesses andexperts other than those appointed under article 289 of the Convention shallremain out of court.

Article 82

1. If the Tribunal considers it necessary to arrange for an inquiry or an expertopinion, it shall, after hearing the parties, issue an order to this effect, definingthe subject of the inquiry or expert opinion, stating the number and mode ofappointment of the persons to hold the inquiry or of the experts and layingdown the procedure to be followed. Where appropriate, the Tribunal shallrequire persons appointed to carry out an inquiry, or to give an expert opinion,to make a solemn declaration.

92 Martin Pratt

2. Every report or record of an inquiry and every expert opinion shall be com-municated to the parties, which shall be given the opportunity of commentingupon it.

Article 83

Witnesses and experts who appear at the instance of the Tribunal under article77, paragraph 2, and persons appointed by the Tribunal under article 82, para-graph 1, to carry out an inquiry or to give an expert opinion, shall, whereappropriate, 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 orto give such explanations as the Court may consider to be necessary for the elu-cidation of any aspect of the matters in issue, or may itself seek other informa-tion for this purpose.2. The Court may, if necessary, arrange for the attendance of a witness or expertto give evidence in the proceedings.

Article 63

1. The parties may call any witnesses or experts appearing on the list communi-cated to the Court pursuant to Article 57 of these Rules. If at any time duringthe hearing a party wishes to call a witness or expert whose name was notincluded in that list, it shall so inform the Court and the other party, and shallsupply the information required by Article 57. The witness or expert may becalled either if the other party makes no objection or if the Court is satisfiedthat his evidence seems likely to prove relevant.2. The Court, or the President if the Court is not sitting, shall, at the request ofone of the parties or proprio motu, take the necessary steps for the examinationof witnesses otherwise than before the Court itself.


Article 64

Unless on account of special circumstances the Court decides on a differentform 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, thewhole 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, thewhole truth and nothing but the truth, and that my statement will be in accordancewith my sincere belief.”

Article 65

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

Article 66

The Court may at any time decide, either proprio motu or at the request of aparty, to exercise its functions with regard to the obtaining of evidence at aplace or locality to which the case relates, subject to such conditions as theCourt may decide upon after ascertaining the views of the parties. The neces-sary 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 expertopinion, it shall, after hearing the parties, issue an order to this effect, definingthe subject of the enquiry or expert opinion, stating the number and mode ofappointment of the persons to hold the enquiry or of the experts, and layingdown the procedure to be followed. Where appropriate, the Court shall requirepersons appointed to carry out an enquiry, or to give an expert opinion, to makea solemn declaration.

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2. Every report or record of an enquiry and every expert opinion shall be com-municated to the parties, which shall be given the opportunity of commentingupon 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 theseRules, to carry out an enquiry or to give an expert opinion, shall, where appro-priate, 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 SeaConvention are recognized as reflecting customary international law, they donot – with the exception of Article 15 relating to the delimitation of the territor-ial sea – provide much guidance as to how an equitable result is to be achievedin any particular delimitation case. For this, reference must be made to the deci-sions of the International Court of Justice and international arbitral tribunals.Examples of State practice may also have a role to play, but State practice, aswill be seen, must be treated with caution.

Somewhat ironically, Article 38, paragraph 1 (d), of the Statute of theInternational Court lists judicial decisions as “subsidiary means for the deter-mination of rules of law”. The experienced practitioner knows, however, thatwhen it comes to identifying the principles and rules of maritime delimitationin their concrete application, the jurisprudence provides the most importantsource of legal guidelines.

Those principles have evolved over the past fifteen years, particularly as theyrelate to the delimitation of the continental shelf and exclusive economic zone.1


95

* Partner, Eversheds Frere Cholmeley, Paris.1 See the paper by Professor Lucchini in this volume.

96 Rodman R. Bundy

Recently, in both the Qatar-Bahrain and Cameroon-Nigeria cases, the Inter-national Court of Justice has held that the “equidistance/special circumstances”rule applicable to territorial sea delimitation under Article 6 of the 1958 GenevaConvention and Article 15 of the 1982 Convention is now viewed as virtuallysynonymous with the “equitable principles/relevant circumstances” rule hith-erto applicable to continental shelf and exclusive economic zone delimitation.2

The end result is that the relevant circumstances of any particular case remainparamount.

It follows that, while the law may now provide more certainty as to the wayan international court or tribunal will approach questions of maritime delimita-tion, each case remains unique. As the Court stated in the 1982 Tunisia-Libyacase:

“It is clear that what is reasonable and equitable in any given case must depend onits particular circumstances. There can be no doubt that it is virtually impossible toachieve an equitable solution in any delimitation without taking into account theparticular relevant circumstances of the area.”3

The principal role of the practitioner in preparing for a maritime delimitationcase is to marshal the relevant facts and circumstances of the case, apply thelaw to the facts and advocate in written pleadings and oral argument the result-ing position of the State whom the practitioner represents.

Obviously, the practitioner does not operate in a vacuum. When a delimita-tion dispute goes to litigation, the legal rights of the State are engaged. It is thepractitioner’s task to work closely with the representatives of the State to estab-lish the relevant facts and with fellow counsel and experts to present the case inan effective manner. Once litigation is launched, maritime delimitation is nolonger an academic exercise; it involves practical litigation skills, and it culmi-nates in a judgment or award that is final and binding on the parties.

Maritime delimitation is also a multi-disciplinary process. In preparing for acase, 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 out-come of the case. Based on the case precedents, it is possible to identify themain categories of relevant circumstances which courts and tribunals havetaken into account in effecting an equitable result in the past.

This paper will set out some of the more important areas where the practi-tioner, working with colleagues, needs to devote his or her attention in esta-

2 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judg-ment, Merits, I.C.J. Reports 2001, at para. 231; Land and Maritime Boundary betweenCameroon 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. Reports1969, p. 50, para. 93.

Preparing for a Delimitation Case: The Practitioner’s View 97

blishing the factual matrix of the dispute and organizing the case. The purposeis not to give an exhaustive account of how the law has treated relevant circum-stances in every instance, but rather to give a practical overview of the kinds ofissues that a State is likely to confront, and thus needs to be prepared for, inembarking 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 innegotiating delimitation agreements and even litigating contentious disputes.4

For others, the process will be new. In either case, there are strong reasons forsupplementing whatever internal expertise is available with outside expertassistance.

By their very nature, international courts and tribunals are “international”.They comprise a number of judges or arbitrators from different legal traditionsand different geographic regions. An arbitral tribunal charged with deciding adelimitation case may have five members. The International Court of Justicehas fifteen judges, and this number may run higher if the parties name judgesad hoc in the case. The International Tribunal for the Law of the Sea hastwenty-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 orlegal arguments. While the aim is not to over-burden the decision makers, aState party to delimitation proceedings is well advised to present its case in ascomplete and credible (more on this later) a manner as possible. In mostinstances, this involves the retention of an international team of counsel wellversed in maritime delimitation issues and representing different legal perspec-tives. But it also entails the need for a comprehensive preparation of the facts ofthe 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 ofthe area in dispute. But expert assistance can also pay dividends in relation toother aspects of the factual background.

In the Tunisia-Libya case, for example, the historic fishing practices of thecolonial powers in the region were seized upon by the Court as a relevant factorfor 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 someof his practical experience from years of negotiating delimitation agreements.

5 Martin Pratt’s paper in this volume discusses the role of the expert in maritimedelimitation cases.

98 Rodman R. Bundy

boundary.6 This evidence was only brought to light as the result of diligentarchival research by professional historians. In the same case, the oil licensingpractices of the parties also turned out to be key relevant circumstances influen-cing the final boundary. These, too, were documented through the use of expertconsultants. And in the Denmark-Norway case, evidence concerning the inci-dence of fish stocks in the relevant area had a material role to play in theCourt’s final delimitation.7

At the State level, it is not unusual for the case to be handled by the Ministryof Foreign Affairs. It is the Foreign Ministry which is likely to have led anyprevious attempts to negotiate an amicable settlement and it is the Ministrywhich is likely to have been involved in the transmission of any protests orcounter-protests relating to the dispute if these have been necessary. Conse-quently, when it comes to judicial proceedings, it is often the Foreign Ministrythat takes the lead in heading up the litigation team.

Delimitation disputes are high profile affairs. The sovereign rights of theState are involved, and there may be important political, economic and securityinterests at stake. In these circumstances, other departments of the State’s gov-ernment can and do have an important role to play. The problem (and it is fre-quently a problem) is how to tap into the resources of these other interestedparties and engage them in the team while maintaining a co-ordinatedapproach. 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 (Article53) and the Statute of the International Court of Justice (Article 42), it is oblig-atory for a party to proceedings to be represented by agents. This is also thecustomary practice in international arbitration.

For institutions such as ITLOS or the ICJ, the role of the agent is straightfor-ward. The agent represents his or her State before that institution. Actions takenby 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 theState, 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 practi-cal 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.


national proceedings, reference may be made to a recent article that MichaelMatheson of the United States wrote on the subject.8 There, the author sets outfive roles that may be served by the agent:

(i) Official representation of a party to the Court (or tribunal);(ii) Direct participation in the argument before the Court (or tribunal);(iii) Acting as head of the team that prepares and presents the case;(iv) Involvement in the decision-making by the government on matters affect-

ing 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. AsJudge Anderson’s paper included in this compendium suggests, the agent, orteam leader, should ideally have a political or legal background. One of hisprincipal tasks is to access the information that is known to his government, butoften not to outsiders, relating to the matter in dispute. While different cate-gories of facts will be discussed further in this paper, it is the host governmentwhich will have access to important internal documentation such as the diplo-matic background to the dispute, legislation on the extent of the State’s mar-itime entitlements (territorial sea, continental shelf, exclusive economic zone),regulations concerning straight baselines, information regarding petroleum orfishing 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 teamcharged with presenting the case.

In an excess of enthusiasm, other organs of the government may want to getinvolved. This is natural, even necessary, but the contributions of other agen-cies of the State must be managed to the overall benefit of the case. Even coun-sel sometimes need to be gently reminded that it is the government’s casewhich is at stake, not their personal predilections. Any substantive differencesamongst 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 claimsadvanced by the government and other commitments on the part of the State.At the written pleadings stage, there is usually sufficient time for positionpapers to be prepared, draft pleadings to be circulated and the claims of theState 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, questionsasked 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 Inter-national Court”, 1 The Law & Practice of International Courts and Tribunals, No. 3,2002, pp. 467–479.

100 Rodman R. Bundy

closing arguments does the government wish to hint at a “fall-back” positionwhich might not be fully compatible with its claims, but which nonethelessmight be acceptable and of interest to the decision makers? What happens if theother side introduces last minute evidence? What does the government do if aState seeks to intervene and advances brand new claims only in oral argument(as actually happened in connection with Italy’s application to intervene in theLibya-Malta continental shelf case)? The agent must have sufficient authorityto deal with these matters on the spot.

For the practitioner, the agent is the final port of call in the client State. Theagent must be prepared to accept this role or, at least, to name co-agents withequal authority who can handle day-to-day matters if the agent, as sometimeshappens, has other obligations. Preparing for a delimitation case involves ateam 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 nowlies in constructing a provisional equidistance or median line, the identificationand proper weighting of the relevant circumstances characterizing the area indispute remains a critical part of the delimitation process. In the first place, con-struction of a provisional equidistance line gives rise to the question: equidis-tance from what? Then there is the issue whether the provisional equidistanceline requires “adjustment” in order to take into account the relevant circum-stances characterizing the delimitation area.

As early as the 1969 North Sea Continental Shelf Cases, the Court made itclear that there was no limit to the kinds of relevant circumstances which mighthave 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 accountof for the purpose of making sure that they apply equitable procedures, and moreoften than not it is the balancing-up of all such considerations that produce thisresult rather that reliance on one to the exclusion of all others. The problem of therelative weight to be accorded to different considerations naturally varies with thecircumstances of the case.”9

This remains the case. Nonetheless, based on the judicial precedents, it is possi-ble to identify several broad categories of relevant circumstances which canhave 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.


• The geography of the relevant area, the coastal configurations of the partiesand the identification of coastal fronts or façades;

• Differences in coastal lengths and the role played by the element of propor-tionality;

• The presence of islands, low-tide elevations and geographic anomalies suchas promontories in the area to be delimited;

• The past conduct of the parties and the question whether that conduct pointsto a modus vivendi or de facto line;

• Economic factors including access to natural resources such as fish or hydro-carbons;

• 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 check-list for any State engaged in a delimitation case. Each of them requires factualand legal assessment. Moreover, with respect to the facts, each of them givesrise to the need to assemble a suitable body of evidence documenting the factsto 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 totheir written pleadings copies of the relevant documents adduced in support ofthe contentions made in their pleadings. Arbitral tribunals expect the samething.

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 ofan equitable delimitation must necessarily start with the geographic characteris-tics of the area in dispute. This much is axiomatic. As the International Court ofJustice stated in the very first delimitation case brought before it: “the landdominates 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 ofJustice and arbitral tribunals. If anything, the emphasis on coastal geographyhas been accentuated by the recent trend in the case law which adopts theapproach that it is first necessary to draw a provisional equidistance line (which


102 Rodman R. Bundy

obviously depends on the basepoints chosen – a potentially contentious issueby itself), and then to consider whether this line requires adjustment in order totake into account any other relevant circumstances in the area. To quote theCourt in the Qatar-Bahrain case:

“The Court will therefore first determine the relevant coasts of the Parties, fromwhich will be determined the location of the baselines and the pertinent basepointswhich 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 areawithin which the delimitation is to be effectuated? When considering baselines,does one use the “normal” baseline corresponding to the low-water mark alonga 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 technicaldatums on which the identification of baselines and basepoints is calculated anddelimitation lines plotted? Do both contesting States use similar datums?

A similar consideration which every practitioner learns at an early stage isthat there is no such thing as a straight line drawn on a map. Perhaps it is moreaccurate to say that straight lines can be drawn on a map, but that such linesmean different things and may result in different delimitations. A straight lineon a mercator projection is a line of constant bearing or azimuth – also knownas a rhumb line or loxodrome. Courts and Tribunals often employ such lines.However, a rhumb line does not represent the shortest distance between twopoints on the earth’s surface. That is more accurately represented by a geodesic.

Such fine distinctions may appear insignificant. But when access to petro-leum 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 bayclosing 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 ofoffshore islands. The question confronted by the Court was whether the maritime areasfalling within those lines, and thus considered by the State concerned to be internalwaters, should be excluded from consideration as part of applying the proportionalitytest. The Court did not rule on the validity of the baselines in question, but held that nosuch exclusion should apply for purposes of applying proportionality. (Continental Shelf(Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 76, para. 104). InLibya-Malta, the Court similarly refrained from expressing an opinion on a party’sstraight baselines. As the Court stated: “in any event the baselines as determined bycoastal States are not per se identical with the points chosen on a coast to make it possi-ble to calculate the area of continental shelf appertaining to that State.” (ContinentalShelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para. 64).


natural resource point of view, small differences in boundary lines can havelarge economic implications.

These kinds of questions (and undoubtedly hydrographic experts could iden-tify more) raise both legal and technical issues. Presumably, the legal team willbe able to deal with questions of law. But the important point from the perspec-tive of the practitioner charged with advising a State is that it is essential toengage technical experts to advise the lawyers on these matters and to plothypothetical equidistance and other lines for internal consideration and possiblesubmission 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 geographicexperts is pronounced concerns the treatment of the coasts of the parties.Relevant questions where technical advice may assist include the identificationof the general direction of the parties’ coasts, the role played by marked differ-ences in the lengths of the coasts in achieving an equitable delimitation, andhow what is commonly referred to as the element of proportionality should betaken into consideration. These matters give rise to important tactical decisionson the part of counsel and depend heavily on legal and geographic assessments.

The case precedents suggest that courts and tribunals place greater emphasison generalized descriptions of the coasts of the parties rather than on a minuteanalysis of a particular coast with all its sinuousities. One phrase frequentlyreferred to as a relevant factor is “the general direction of the coast”. The con-struction of a coastal front, or façade, can have implications for determining theactual course of a delimitation line (as was the case with both sectors of thedelimitation in the Tunisia-Libya case), and for purposes of applying the crite-rion of proportionality. The need for both a legal and geographic appreciationof the facts is self-evident in these situations.

Then, there is the question of proportionality – a concept which has oftenengendered confusion in the minds of litigating States.

The genesis of the doctrine of “proportionality” can be traced to the 1969North Sea Continental Shelf Cases. Those cases involved a specific geographicsituation in which one State, Germany, found itself geographically disadvan-taged vis-à-vis its neighbours, Denmark and Holland, because of the concavenature of its coast when the equidistance method was applied. In one of itsmore frequently cited passages, the International Court of Justice identified oneof the factors to be taken into consideration in the application of equitable prin-ciples as follows:

104 Rodman R. Bundy

“the element of a reasonable degree of proportionality, which a delimitation carriedout in accordance with equitable principles ought to bring about between the extentof the continental shelf areas appertaining to the coastal State and the length of itscoast measured in the general direction of its coastline, account being taken for thispurpose of the effects, actual or prospective, of any other continental shelf delimita-tions between adjacent States in the same region.”13

It is safe to say that in all delimitation cases that have been submitted to thirdparty adjudication since 1969, proportionality has reared its head in one formor another. There is no reason to believe that this will not continue to be thecase. The key questions are whether “proportionality” in and of itself is amethod of delimitation and, if not, what is the proper role of material differ-ences in the length of the parties’ coasts for delimitation purposes.

As to the first question, the case precedents have made the position tolerablyclear. Proportionality, by itself, is not a method of delimitation. At most, it isused as a test of the reasonableness, or lack of disproportion, of a delimitationarrived at by other means. The Chamber of the International Court of Justice inthe 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 mar-itime delimitation can certainly not be established by a direct division of the area indispute proportional to the respective lengths of the coasts belonging to the partiesin the relevant area . . .”14

This reasoning was echoed by the full Court in the Libya-Malta case. There, theCourt observed:

“It has been emphasized that this latter operation [application of the element ofproportionality] is to be employed solely as a verification of the equitableness ofthe result arrived at by other means.”15

However, returning for a moment to the Gulf of Maine case, the Chamber wenton to note, immediately after the passage cited above, that –

“it is equally certain that a substantial disproportion to the lengths of those coaststhat resulted from a delimitation effected on a different basis would constitute a cir-cumstance 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.



This reasoning was taken a step further in the Libya-Malta case where theCourt drew a distinction between employing proportionality as an ex post testof the equitableness of a result arrived at by other means, and taking note of avery marked difference in coastal lengths for purposes of determining the actualboundary line itself.17

With respect to the second question, therefore, a marked difference in coastallengths is a relevant circumstance to be factored into the delimitation process.In the Gulf of Maine, Libya-Malta, and Denmark-Norway cases, marked dis-parities in the parties’ coastal lengths had a direct influence on the course of thefinal delimitation line. In the latter two cases, this was achieved by adjustingthe provisional median line in favour of the State with the longer coast. Thequestion remains, however, how in practice this adjustment is made and whatthe magnitude of the adjustment should be. One can read the case precedentsclosely without gleaning any concrete guidance as to what degree of “adjust-ment” 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 preparationstage of a case. The legal team is likely to benefit from the commissioning ofexpert studies analysing coastal lengths, coastal façades, proportionality testsand the identification of the “relevant area”. How much of this material is ulti-mately deployed is another question. But States are well advised to undertakeat 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 tobe delimited is almost always a contentious issue in maritime delimitationcases. One need only read the case precedents to appreciate the frequency withwhich the International Court of Justice and arbitral tribunals have had to dealwith islands in reaching an equitable solution. Consider the following exampleswhere islands were either ignored or given less than full equidistance treatmentin the construction of the delimitation line:

• In the 1977 Anglo-French arbitration, the Channel Islands were partiallyenclaved with twelve mile territorial seas while the Scilly islands wereaccorded a “half-effect” for purposes of delimiting the seaward portion of theboundary;

• In the 1981 Dubai-Sharjah arbitration, the island of Abu Musa received atwelve mile territorial sea without further effect on the continental shelfboundary;


106 Rodman R. Bundy

• In the 1982 Tunisia-Libya case, the island of Djerba had no effect on thecourse of the delimitation line and the Kerkennah islands were given a modi-fied version of “half-effect”;

• In the 1984 Gulf of Maine case, Seal island received a reduced effect for pur-poses of constructing the boundary;

• In the 1985 Libya-Malta case, the main island of Malta received less than fullequidistance treatment and the small rock, Filfla, was ignored altogether;

• In the 1992 Canada-France arbitration concerning delimitation betweenNewfoundland and the islands of St. Pierre and Miquelon, the islands wereaccorded twenty-four mile partial enclaves and a strip of continental and EEZentitlement corresponding to the limited length of their coastal front;

• In the 1993 Denmark-Norway case, the island of Jan Mayen received lessthan full equidistance effect;

• In the 1999 Eritrea-Yemen arbitration, the Yemeni islands of Al-Zubayr andJabal el-Tair had no effect on the final delimitation line;

• In the 2001 Qatar-Bahrain case, the tiny island of Qit’at Jaradah had noeffect on the delimitation line.

To these precedents may be added a number of examples taken from State prac-tice.18 While the reasons for treating an island in a particular manner vary fromcase to case, there can be no doubt that islands merit close study by the legaland 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, socialand political importance being just three. In preparing a case, the practitionerwill 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 nat-urally formed area of land, surrounded by water, which is above water at hightide.” The technical expert will immediately ask the question, however: whichhigh 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 numberof 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 somehave been submitted to international adjudication in connection with delimitation cases.For example, the Qatar-Bahrain case involved issues of disputed sovereignty over anumber of islands as well as the question of maritime delimitation. In the El Salvador-Honduras case, ownership over islands was in dispute and the Chamber of the Courtwas also called upon to decide the legal status of the Gulf of Fonseca. And in theEritrea-Yemen arbitration, the questions of sovereignty over disputed islands and mar-itime delimitation were bifurcated with the sovereignty issue decided first followed byseparate proceedings, and a separate award, on maritime delimitation.


In the Qatar-Bahrain case, for example, an issue arose whether a small fea-ture known as Qit’at Jaradah was an island or a low-tide elevation. In 1947, theBritish Government identified Qit’at Jaradah as a shoal that was above “thespring tide low-water level”. Nautical charts also identified the feature as alow-tide elevation. However, subsequent eyewitness reports, and an expertstudy filed with the Court by one of the parties, took the position that the fea-ture was actually an island and the experts of the other side filed no evidencerebutting this position. The Court, as a result, ruled that the feature was indeedan island although it accorded the island no weight in the construction of thefinal delimitation line.20

Article 121, paragraph 2, of the Convention sets out the basic rule that theterritorial sea, contiguous zone, exclusive economic zone, and continental shelfof an island are determined in accordance with the provisions of theConvention applicable to other land territory. As to entitlement, therefore, anisland 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 islandshould have in reaching an equitable delimitation?

With respect to the first question, paragraph 3 of Article 121 is obviouslygermane. It provides:

“Rocks which cannot sustain human habitation or economic life of their own shallhave no exclusive economic zone or continental shelf.”

Much has been written about the meaning and scope of this rather succinct pro-vision. Without entering into that doctrinal debate, what is clear is that a Stateengaged in delimitation proceedings will have to undertake geographic andother research relating to insular features located within the area in dispute inorder to a form a view on the issue.

As noted above, the size of an island can be relevant. The practitioner willwant evidence on this point. So too is the island’s location. Islands lying closeto the mainland may not have a material effect on the drawing of a provisionalequidistance line if basepoints on the island are used. An island lying a consid-erable distance from the mainland coast may produce much different results. Aspart of preparing a delimitation case, the experts of the parties will probably becalled upon to produce hypothetical delimitation scenarios for internal use bytheir teams giving the island full effect, no effect, or something in between. Thisis all a central component of the strategic litigation process.

Information regarding the social, economic or military uses of an island arelikely to have to come from sources both within the host State and from outsideconsultants. Once again, it is the role of the practitioner, working with the agentand his or her colleagues, to marshal the facts and present this information.

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

108 Rodman R. Bundy

Moreover, the information does not always come from conventional sources. Inthe Eritrea-Yemen case, for example, the fact that an airstrip had been built onone of the islands in dispute only came to light as a result of research under-taken in the archives of an oil company which had concession rights in theneighbouring offshore area. This evidence proved to be crucial at the sover-eignty stage of the case; and the disposition of the question of sovereignty hadan 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 itcomes to maritime delimitation cases. In preparing their written pleadings, theparties will invariably need to produce a number of illustrative maps depictingtheir claims and other relevant information. Similarly, at the oral hearings, thepresentations of counsel benefit from graphic illustrations when it comes toaddressing the geography of the area in dispute, delimitation lines, offshoreeconomic activities such as the oil licensing practices of the parties, proportion-ality tests, key historic or diplomatic documents, and the like.

A State involved in litigation needs to have at its disposal a cartographicteam that can readily produce such materials and is sensitive to the (sometimesunreasonable) demands of counsel. Particularly at the oral hearings, flexibilityand speed are essential. Graphics are often produced overnight in response toarguments presented by the other side. Judges’ folders are generally preparedfor distribution to the members of the court or tribunal, the registry and theother party. These can include both documentary materials and maps. Litigantsthus need to ensure that production and printing facilities are available so thatsufficient 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 theassembly and circulation to the team of the diplomatic background to the dis-pute. Maritime delimitation disputes rarely arise in a vacuum. Usually they arethe culmination of a (sometimes lengthy) process of negotiation.

21 Eritrea-Yemen: Award of the Arbitral Tribunal in the First Stage of the Proceed-ings (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, paras. 419 and507.


Counsel clearly need to be apprised of the positions that the contesting Statesadopted in previous discussions. The review of any diplomatic correspondencein the form of protests or counter-protests over activities relating to the dis-puted area is also essential. Questions of acquiescence or waiver may be atstake, and the International Court of Justice and arbitral tribunals have paidclose attention to these kinds of matters in the past.

Lawyers do not like surprises, and international lawyers experienced in mar-itime delimitation are no exception. A State engaged in a delimitation case cantherefore expect demands to be put upon it by its legal team to gather the rele-vant documentation at an early stage of the proceedings.

This leads to a related subject: the conduct of the parties relating to theirexercise of authority over portions of the area in dispute. The relevance of suchconduct hinges to a large extent on whether there exists evidence pointing tothe acceptance by the parties, albeit on an informal basis, of a de facto separa-tion line in the pursuit of their offshore activities.

The leading authority where the conduct of the parties played a decisive roleis the Tunisia-Libya case. Two elements of the parties’ conduct, or that of theircolonial predecessors, were important in that case.

The first concerned the past practice of the parties in licensing offshore areasfor oil exploration. What was significant from the Court’s point of view wasthat over a course of some eight years, the parties had issued petroleum licenseswhich largely aligned with each other without eliciting any protest from eitherside. In the Court’s words:

“The result was the appearance on the map of a de facto line dividing concessionareas which were the subject of active claims, in the sense that exploration activi-ties were authorized by one Party, without interference, or (until 1976) protests, bythe 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 intoaccount whatever indicia are available of the line or lines which the Partiesthemselves may have considered equitable or acted upon as such – if only as aninterim solution affecting part only of the area to be delimited.”23 The result wasthat this de facto line was treated as a “highly relevant” circumstance for pur-poses of tracing the first sector of the delimitation.

The second element of conduct relied on by the Court concerned the fishingpractices of the parties’ colonial predecessors. Here, the Court also found thatthe evidence pointed to what it termed a modus vivendi concerning the lateral

22 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports1982, p. 84, para. 117.

23 Ibid., p. 84, para. 118.

110 Rodman R. Bundy

delineation of those practices. The fact that the de facto oil concession linelargely coincided with the modus vivendi fishing line had an important bearingon the Court’s approach to delimitation.24

In the light of the Tunisia-Libya precedent, it is not surprising that parties tosubsequent delimitation disputes have sought to find support for their argu-ments in the conduct of the litigating States. This is a legitimate and importantarea of investigation for any State engaged in a delimitation case.

Nonetheless, States should be aware that in the recent Cameroon-Nigeriacase, the Court appears to have raised the bar with respect to the relevance ofthe parties’ conduct. In that case, the oil activities of the parties were once againa focus of debate. However, unlike in Tunisia-Libya, the Court took the posi-tion that only if such activities rise to the level of an “express or tacit agree-ment” will they be taken into account.25

While there may thus be some uncertainty over whether a “tacit agreement” isrequired for conduct to be relevant, States must still carry out due diligence inthis respect. This entails gathering whatever evidence is available of licensing orother 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 extentthey should introduce economic arguments before a judicial body charged withdeciding a maritime boundary. Does it matter if a State pleads relative povertyin comparison with its neighbour or argues in favour of a need to have access tothe natural resources of the area in dispute?

Here, again, the signals are mixed. In the past, the International Court ofJustice has emphasized that maritime delimitation is not an exercise in distribu-tive justice.26 Practitioners will also be aware of the Court’s well rehearseddicta that:

“Equity does not necessarily imply equality. There can never be any question ofcompletely refashioning nature . . .”27

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

24 Ibid., pp. 84–85, para. 119.25 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.


“these economic considerations cannot be taken into account for the delimitation ofthe continental shelf areas appertaining to each Party. They are virtually extraneousfactors since they are variables which unpredictable national fortune or calamity, asthe 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 pronouncementsquoted above. In the Gulf of Maine case, for example, the Chamber of theCourt left open the possibility that economic considerations might be pertinentif a particular delimitation gave rise to what the Chamber called “catastrophicrepercussions for the livelihood and well-being of the populations of the coun-tries concerned”.29 And in the Denmark-Norway case, the Court relied on anequitable access by both parties to certain fishing resources as justification forits decision regarding part of the maritime boundary.30

With respect to historic rights, the question is not so much one of principle asone 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 pur-poses of territorial sea delimitation. When it comes to the delimitation of thecontinental shelf (and presumably the exclusive economic zone as well) theCourt 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 bylong usage.”31

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



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 thisrespect, to the Arbitral Tribunal’s Award in the Eritrea-Yemen case where the Tribunalheld that the parties’ traditional fishing regime as it had existed in past practice shouldbe respected. Eritrea-Yemen: Award of the Arbitral Tribunal in the First Stage of theProceedings (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, para.527 (vi).


112 Rodman R. Bundy

11. GEOLOGY AND GEOMORPHOLOGY

Prior to the conclusion of the 1982 Convention, geological and geomorphologi-cal evidence figured high in the preparation of pleadings before the ICJ andarbitral tribunals. In the 1969 North Sea continental Shelf Cases, the Court hadexpressed the following view:

“What confers the ipso jure title which international law attributes to the coastalState in respect of its continental shelf, is the fact that the submarine areas con-cerned may be deemed to be actually part of the territory over which the coastalState already has dominion, – in the sense that, although covered with water, theyare a prolongation or continuation of that territory, an extension of it under thesea.”32

From this, the Court went on to say:

“. . . it can be useful to consider the geology of that shelf in order to find outwhether the direction taken by certain configurational features should influencedelimitation because, in certain localities, they point-up the whole notion of theappurtenance of the continental shelf to the State whose territory it does in fact prolong.”33

Not surprisingly, these observations prompted subsequent litigants to devoteconsiderable time and expense to adducing expert evidence demonstrating thata particular delimitation line was justified on geological or geomorphologicalgrounds.

In its judgment in the 1982 Tunisia-Libya case, the Court concluded that thephysical structure of the area in dispute did not contain any element whichinterrupted the fundamental continuity of that shelf. Nonetheless, the Court leftthe door open to the possible relevance of geological and geomorphologicalfactors in future disputes. In the Court’s words:

“The Court has already alluded to the possibility that certain geomorphologicalconfigurations of the sea-bed, which do not amount to an interruption of the naturalprolongation of one Party with regard to that of the other, may be taken intoaccount as a circumstance relevant for an equitable delimitation . . .”34

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


33 Ibid., p. 51, para. 95.34 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports

1982, p. 64, para. 80.


“The continental shelf of a coastal State comprises the sea-bed and subsoil of thesubmarine areas that extend beyond its territorial sea throughout the natural prolon-gation of its land territory to the outer edge of the continental margin, or to a dis-tance of 200 nautical miles from the baselines from which the breadth of theterritorial sea is measured where the outer edge of the continental margin does notextend up to that distance.”

It was in the light of this development that the Court in the Libya-Malta caseruled that geology and geomorphology no longer had a role to play, at leastwith respect to the delimitation of maritime areas lying within 200 miles of theparties’ 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 Stateto claim that the continental shelf appertaining to it extends up to as far as 200miles from its coast, whatever the geological characteristics of the correspondingsea-bed and subsoil, there is no reason to ascribe any role to geological or geophys-ical factors within that distance either in verifying the legal title of the States con-cerned or in proceeding to a delimitation as between their claims.”35

Does this mean that geological and geomorphological evidence will be com-pletely irrelevant in future cases? Not necessarily. For the important questionremains (as yet untested by litigation) whether and to what extent geology andgeomorphology will be relevant to continental shelf delimitation beyond 200nautical miles from the coasts of the parties in situations where the Statesinvolved are entitled to claim extended continental shelf rights under Article 76of the Law of the Sea Convention. Since the right to claim shelf rights beyond200 nautical miles is dependent on geological and geomorphological factors, anargument can be made that such factors should, in principle, also be taken intoaccount 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 cir-cumstance which a litigating State must take into account. However, care mustbe taken how this is done.

The issue arises principally in two contexts. First, depending on the rulesunder which a delimitation case is being heard, there may be a possibility thatthird States will apply to intervene in the case. Both the Statute of theInternational Court of Justice (Article 62) and the Statute of the InternationalTribunal for the Law of the Sea (Article 31) provide that a State that considersthat 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.

114 Rodman R. Bundy

the case may submit a request for permission to intervene. It is for the Court orTribunal 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 TorresBernardez in this compendium. For present purposes, what is important is thata State with a delimitation dispute needs to be apprised of this possibility andbe prepared for it.

Second, whether or not a third State applies to intervene, its potential rightsand interests are likely to be taken into account by the court or tribunal decid-ing the case.

In the Tunisia-Libya case, the Court solved this problem (the potential rightsof Malta in the area) by placing an arrow at the end of the second sector of thedelimitation line on the illustrative map attached to the judgment without speci-fying the co-ordinates of the actual terminal point of the boundary. As the Courtnoted:

“How far the delimitation line will extend north-eastwards will, of course, dependon the delimitations ultimately agreed with third States on the other side of thePelagian 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 casewhere a third State (Equatorial Guinea) was permitted to intervene. Rather thandetermining the end point of the delimitation line, the Court stated that it coulddo no more than indicate the general direction of the maritime boundary by ref-erence to a loxodrome having a specified azimuth.38

In contrast, the approach utilized by the Court in the Libya-Malta case, inwhich Italy unsuccessfully applied to intervene, was more extreme. As notedearlier, Italy only made its maritime claims known during the oral proceedingsrelating to its intervention request. These were perceived by the parties to thedispute as exaggerated claims which had never been advanced previously.

36 In the Second Phase (Maritime Delimitation) of the Eritrea-Yemen arbitration, theparties to the dispute only learned in the Tribunal’s award that a third State, SaudiArabia, had written to the Tribunal during the proceedings stating its position as towhere it considered the Eritrea-Yemen maritime boundary should end so as to avoidtrespassing on areas appertaining to it. (Eritrea-Yemen: Award of the Arbitral Tribunalin 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 Tribunaldid not specifically adhere to the Saudi position in its decision. Nonetheless, the incidentillustrates the manner in which even confidential arbitration proceedings may not betotally immune from the actions of third States.


38 Land and Maritime Boundary between Cameroon and Nigeria, Judgment, Merits,I.C.J. Reports 2002, para. 307.


Nonetheless, the Court fully respected Italy’s claims by restricting the delimita-tion between Libya and Malta to a modest corridor of continental shelf corre-sponding to areas where Italy had expressed no interests.

Maritime boundaries frequently fall to be decided in areas where third Statesmay have claims. State parties to litigation should be aware of the presence ofthird States and be prepared to take their potential interests into account in pre-senting their arguments.

13. RELYING ON EXAMPLES OF STATE PRACTICE

There is an understandable tendency by parties to maritime boundary disputesto present analogous examples of State practice in an effort to buttress the legalvalidity of their position. Certainly, there is no shortage of bilateral and multi-lateral delimitation agreements on which to draw. How should this material beused and what is its relevance, if any?

On the one hand, the case precedents make it clear that State practice takenas a whole does not point to any one method of delimitation as being legallyobligatory in all circumstances. This was the position when the InternationalCourt of Justice addressed the matter in 1969 and again in 1985, and it remainsthe position today. In the 1969 North Sea Continental Shelf Cases, the Courtstated the following –

“. . . the position is simply that in certain cases – not a great number – the Statesconcerned agreed to draw or did draw the boundaries concerned according to theprinciple of equidistance. There is no evidence that they so acted because they feltlegally compelled to draw them in this way by reason of a rule of customary lawobliging them to do so – especially considering that they might have been moti-vated 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 thismatter. Yet that practice, however interpreted, falls short of proving the existence ofa 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 practiceto be legally relevant. First, that practice must amount to a “settled practice” inthe sense of being virtually uniform. Second, the acts must be such, or carriedout 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.


116 Rodman R. Bundy

by a rule of law requiring it.41 It seems apparent, and the jurisprudence supportsthis conclusion, that there is no “settled” or “uniform” practice when it comesto the use of a particular method of delimitation. There is also little or no evi-dence suggesting that States consider themselves legally bound to use a partic-ular delimitation method in their actual practice. These factors would seem tomilitate against the relevance of State practice for delimitation purposes.

On the other hand, international courts and tribunals have made recourse toState practice when justifying the treatment of certain geographical features indelimitation cases. As has been seen, a number of cases exist where smallislands have been accorded a reduced effect – sometimes a “half-effect” – in theestablishment 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 1977Anglo-French arbitration. In that case, the Scilly Islands belonging to theUnited Kingdom received a kind of “half-effect” in constructing the seawardportion of the boundary. The Court of Arbitration summed up its justificationfor employing such a method by referring to State practice. The Court ofArbitration stated:

“A number of examples are to be found in State practice of delimitations in whichonly partial effect has been given to offshore islands situated outside the territorialsea of the mainland . . . in one instance, at least, the method employed was to givehalf, instead of full, effect to the offshore island in delimiting the equidistanceline.”42

In the Tunisia-Libya case the International Court of Justice also referred toState practice as justification for according the Kerkennah Islands “half-effect”in the construction of the second sector of the delimitation. The relevant pas-sage of the Court’s judgment reads as follows:

“The Court would recall however that a number of examples are to be found inState practice of delimitations in which only partial effect has been given to islandssituated close to the coast; the method adopted has varied in response to the vary-ing geographical and other circumstances of the particular case. One possible tech-nique for this purpose, in the context of a geometrical method of delimitation, isthat of the ‘half-effect’ or ‘half-angle’.”43


42 Anglo-French Arbitration, Decision of 30 June 1977, para. 251, reprinted in 18International Legal Materials, 1979, p. 455. The “one instance” referred to by the Courtwas almost certainly the 1968 Saudi Arabia-Iran agreement where Kharg Island belong-ing to Iran was reported to have been given half-effect in the delimitation.



In the light of these precedents, the practitioner is likely to advise his client thatresearch into comparable examples of State practice is worthwhile, althoughthere 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 bringmuch to the debate.

14. QUESTIONS OF LITIGATION STRATEGY

The foregoing discussion has focused on the elements that State parties todelimitation 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 pro-ceedings. This is a delicate matter which requires a balancing of a number ofconsiderations.

Unlike cases of disputed sovereignty over land territory where there is oftena “winner” or a “loser” in the sense that the territory in question is awarded toone side or the other, maritime delimitation disputes rarely result in an “all ornothing” decision. The author is not aware of any maritime delimitation casethat has been submitted to third party adjudication where the claims of a partyhave been accepted in their entirety. Inevitably, delimitation decisions give riseto 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 proba-bly find a solution lying somewhere in between the positions of the two par-ties? Or is a State better advised to table only “reasonable” claims which aresolidly grounded in the law, or claims that are sometimes described as passingthe “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 ofthe need to retain credibility in the claims it submits to a tribunal. The tablingof clearly excessive claims may raise expectations on the part of the Stateputting them forward – expectations which are likely to be disappointed whenthe decision is rendered. Similarly, inflated claims run the risk of straining thecredibility of the party that submits them with respect to other aspects of thedispute. A balanced and defensible position may carry more weight even if, forpurposes of advocacy, it represents a more favourable position than the Statewould have been able to achieve in negotiations.

Another question which sometimes arises concerns situations where thereare issues of disputed sovereignty at stake in addition to an unresolved mar-itime boundary. Are these best addressed simultaneously or in separate pro-ceedings? Does a party always have a choice of forum with respect to suchdisputes?

118 Rodman R. Bundy

Assuming that the tribunal charged with deciding the matter is competent todeal with both issues (and this may pose problems when proceedings underAnnex VII of the Law of the Sea Convention are invoked), the matter can beargued both ways.

Logically, it is helpful to know to which party the relevant land territorybelongs before embarking on delimitation. This avoids the uncomfortable situ-ation in which States sometimes find themselves where they are reluctant toargue the delimitation question on the assumption that they will lose the sover-eignty dispute. In such cases, a State may feel constrained only to put forward arebuttal delimitation case in response to the positive case advanced by its oppo-nent, while saving its “positive” arguments for the situation where sovereigntyis assumed to belong to it.

It was primarily for this reason that the parties to the Eritrea-Yemen arbitra-tion elected to bifurcate their proceedings. In the first stage of the arbitration, theTribunal was charged with deciding the scope of the dispute and settling ques-tions of sovereignty over a number of islands. Immediately after rendering itsaward on sovereignty, the Tribunal turned to a second stage of the arbitrationdevoted to maritime delimitation, and rendered a second award on this question.

Of course, this was a case brought by mutual agreement pursuant to a bilat-eral arbitration agreement. Moreover, the parties were able to stipulate tighttime-limits in their agreement governing the deadlines for submitting writtenpleadings and for the Tribunal to render its awards. The sovereignty phase ofthe case took two years from start to finish and the delimitation proceedingswere concluded in fourteen months.

In contrast, the Cameroon-Nigeria case, which also concerned questions ofsovereignty and maritime delimitation, was submitted to the InternationalCourt of Justice by unilateral application. The applicant in the case may havehad no other choice of forum. Moreover, the case was affected by a number ofancillary proceedings dealing with jurisdiction, provisional measures and theintervention by a third State. The result was that the entire case took eight andone-half years to complete. In these circumstances, the parties were obliged toargue the sovereignty and delimitation questions simultaneously. In the Qatar-Bahrain case, questions of disputed sovereignty and maritime delimitationwere also presented simultaneously.

It follows that there are a number of factors a State must consider when con-templating the litigation of disputes which possess both a sovereignty anddelimitation component. How the case is structured has an inevitable effect onthe manner in which the arguments are presented.


15. CONCLUSIONS

This contribution has tried to highlight a number of considerations from thepractitioner’s point of view that a State party to a maritime delimitation casemust be prepared to tackle. Generally speaking, delimitation cases are lesscomplex and involve a more modest amount of documentary evidence thancases of disputed sovereignty. Nonetheless, litigation is a complicated andsophisticated process which results in a judgment or award which is final andbinding 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 upondirect involvement over a good number of years with the issue of maritimedelimitation. This involvement included the conduct of negotiations for mar-itime boundary agreements on behalf of the British Government in a variety of geographical and political settings, as well as participation in some of thenegotiations concerning the question of delimitation during the Third UNConference 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 stepwith the expansion of national limits during the second half of the Twentieth


121

* 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 deDélimitation Maritime”, in: Le Processus de Délimitation Maritime: Étude d’un casfictive (Paris, A. Pedone, 2004), pp. 336–342.

122 David Anderson

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 poten-tial boundaries is in excess of 400.2 In comparison, the five volumes ofInternational Maritime Boundaries, published between 1993 and 2005, containreports upon 180 boundary settlements, or less than half of the total.3

The limits of sovereignty and title to resources involve delicate political andsecurity issues. The risks involved in boundary disputes are often high: oneneed only recall Lord Curzon’s dictum: “frontiers are the razor’s edge on whichhang suspended . . . issues of war and peace . . .”4 The existence of overlappingclaims may inadvertently lead to disputes, e.g. if fishermen from one side arearrested by the coastguard of the other side or if traces of oil are discovered inan area of overlapping claims. Overlapping claims may be akin to accidentswaiting to happen. For this reason alone, establishing maritime boundaries is aworthwhile task for coastal States.

Overlapping claims and unresolved boundaries may also chill economicactivity, e.g. exploration work by the oil and gas industry. Conversely, theestablishment of a boundary brings legal certainty permitting economic activityto start in previously “grey” areas: for instance, the oil industry can be licensedright up to the line and fisheries legislation can be enforced similarly.Established boundaries also bring political advantages: as the poet put it, “goodfences make good neighbors.”5

Maritime boundaries are established either by some form of internationalagreement or by the decision of a court or tribunal. For several reasons, a nego-tiated agreement is the better means – so long as an equitable result is achiev-able. The parties retain control over a series of important issues, such as the

2 G.H. Blake (ed.), Maritime Boundaries and Ocean Resources (London, CroomHelm, 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 (TheHague, Martinus Nijhoff Publishers, 2005).

4 Lord Curzon of Kedleston’s words, uttered in 1908, provided the title for a collec-tion of essays in honour of Professor Gerald Blake of the International BoundariesResearch Unit of the University of Durham: see Schofield et al. (eds.), The Razor’sEdge: International Boundaries and Political Geography (London, Kluwer LawInternational, 2002).

5 Robert Frost, “Mending Wall”, in: L. Untermeyer (ed.), Modern American Poetry(New York, Harcourt, Brace and Howe, 1919), poem No. 64.

Negotiating Maritime Boundary Agreements: A Personal View 123

precise results of the negotiations and in particular the course of the boundarylines; the way in which the line is defined; the terms and the timing of theagreement; and its presentation to public opinion. In order to reach a mutuallyacceptable solution, negotiators can put together “packages” – for example, acombination of boundary sections and a joint area, or a trade-off between twosections of boundary or between different resource interests. Conversely, litiga-tion always carries risks for the parties, and the range of legal findings availableto a court or tribunal is more restricted than the options open to negotiators.

The negotiation of boundaries is rarely an easy process. Compromising sov-ereign claims often requires political courage, especially when the explicitapproval of the Legislature has to be obtained before an agreement can enterinto force. But as Satow put it: “There are few more rewarding things in diplo-macy than a successful negotiation . . . from which both parties derive somesatisfaction. For mutual satisfaction is the best guarantee of permanence . . .”6

Boundary-making involves conducting what are often complex, structuredand 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 internationallaw . . .” In seeking such an agreement, the normal legal principles of negotia-tion7 apply, together with some specific principles applicable to delimitation.These two sets of principles of international law together provide the best stan-dards against which to negotiate and to assess the worth of proposals forboundary settlements. International law is the yardstick against which to mea-sure an offer in talks, as well as the worth overall of a proposed boundary set-tlement. It is advisable to avoid linkages with other on-going negotiations suchas trade talks, whether bilateral, regional or multilateral, and to eschew refer-ence to extraneous political factors, all the more so since the latter are oftenephemeral. There is a need, therefore, if negotiations are to be facilitated, forsettled law – clear legal principles commanding universal support.

At different times, the state of the law has facilitated negotiations to differentdegrees. During the 1960s, the Geneva Conventions, based on the work of theInternational Law Commission and its group of technical experts, were gener-ally 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’sInternational Law, 9th ed. (London, Longman, 1992), pp. 1181 ff.; and “Negotiation andDispute Settlement” by the present writer, in: M.D. Evans (ed.), Remedies inInternational Law: The Institutional Dilemma (Oxford, Hart Publishing, 1998), p. 111.

124 David Anderson

appear to have worked satisfactorily in practice8 and some successful negotia-tions followed the entry into force of the Convention on the Continental Shelf(CCS), notably in parts of the North Sea. However, the alternative formulationof similar concepts contained in Article 6 CCS may have created unnecessaryproblems for negotiators in particular geographical settings. Article 6 appearsto 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 themedian line” (emphasis added) may have made it more difficult for the manynegotiators who wanted to achieve precisely that result to abandon it across thetable. When the “default rule” is in your favour, why agree to somethingworse? The other qualification in Article 6, contained in the phrase “justified byspecial circumstances,” was not accompanied by any guiding legal principle or non-exhaustive list of agreed examples, although a few examples were citedin debate. Negotiators could easily deny that the circumstances invoked by the other side were sufficient to be dubbed “special” (always a problematic wordin 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 coastalconfigurations, presence of islands and navigable channels) “fairly often” wasnot 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 com-plicated negotiations relating to those maritime areas to which reservationsapplied. In the event, negotiations influenced by the Geneva regime producedonly limited successes, for example, in the North Sea, and where negotiationsproved unsuccessful the result was litigation.

During the 1970s, following the finding by the International Court of Justicein the North Sea Continental Shelf Cases10 that Article 6 of the Convention onthe Continental Shelf “did not embody or crystallize any pre-existing or emer-gent rule of customary law”, a doctrinal split was witnessed throughout muchof the Third United Nations Conference on the Law of the Sea. The StatesParties to the Convention on the Continental Shelf remained bound by its termsas 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 extendingthe breadth of the territorial sea in circumstances where no agreement has been reachedbetween them to the contrary, appears not to have generated as many disputes as Art. 6CCS.

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 1977in the case between France and the United Kingdom, which neatly combined equitableprinciples and equidistance, came after delegations’ positions had become entrenchedand so had little effect on the further negotiations in the Conference.


reason, in addition to the substantive ones. Non-Parties to that Conventiontended to support the different approach of “agreement in accordance withequitable principles” contained in the Dispositif of the Court’s judgment, aswell as the elusive concept of “natural prolongation”. These latter delegationswished to codify the Court’s decision, based on customary law, as the new con-ventional law, replacing the Convention on the Continental Shelf. The twogroups of delegations were about equal in numbers. Indeed, several pairs ofStates were simultaneously negotiating at two levels: bilaterally for a boundaryand multilaterally through membership of rival groups in the Conference.11

(The problem of Governments trying to reach consensus on global rules of lawon delimitation whilst negotiations for particular boundaries are underway orremain outstanding may be insoluble.) A neutral formulation for the delimita-tion of the exclusive economic zone (EEZ) and continental shelf was agreed asArticles 74 and 83 at a late stage of the Conference; but the crucial principle inparagraph 1 of each Article was not specific and for other well-known reasonsto do with the regime for deep seabed mining the fate of the Convention on theLaw of the Sea remained uncertain during the years immediately after its adop-tion in 1982.

As a result of these factors, from 1970 to the early 1990s, the state of mar-itime boundary law was unsettled, even controversial. This state of affairs cre-ated difficulty for negotiators. If, as was all too often the case, the best legaladvice was to the effect that recourse to litigation could result in the award of awide “envelope” of lines, it became more difficult for all concerned to offercompromises across the table. In prior discussions within a government, forexample, it was more difficult to oppose constituencies who sought to insistupon maximalist outcomes if the latter fell just within the “envelope” of con-ceivable awards. The argument was that to make a concession of any size couldamount to “giving away” billions of dollars should an average-sized oil field besubsequently discovered there. The existence of such wide envelopes, reflect-ing the uncertain state of the substantive law, inevitably made compromise haz-ardous for both sides. The doctrinal schism at the global level betweensupporters of the median line approach and supporters of equitable principleswas replayed in some bilateral negotiations. During this period, the principlesof international law provided a less than satisfactory yardstick for negotiators.

11 Ireland and the UK provide one example. For accounts of these discussions, seeE.J. Manner, “Settlement of Sea-Boundary Delimitation Disputes according to theProvisions of the 1982 Law of the Sea Convention”, in: J. Makarczyk (ed.), Essays inInternational Law in honour of Judge Manfred Lachs (The Hague, Martinus NijhoffPublishers, 1984), pp. 625–643; J. Symonides, “Delimitation of Maritime Areas”, XIIIPolish Yearbook of International Law, 1984, p. 19; and L. Caflisch, “The Delimitationof 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, MartinusNijhoff Publishers, 1991), pp. 425–499.

126 David Anderson

Today, at the start of a new Millennium, maritime boundary law is muchmore settled, due largely to two factors. The first factor is the entry into force ofthe Convention on the Law of the Sea and its acceptance by as many as 149States Parties, including the great majority of coastal states.12 This means thatin most situations there are agreed legal provisions applicable between theStates concerned, especially the provisions on the limits of national jurisdic-tion, on baselines, and on the delimitation of the territorial sea, the ExclusiveEconomic Zone and the continental shelf (Articles 15, 74 and 83). As a result,most basic principles are uncontroversial (although paragraph 1 of Articles 74and 83 lack specific guidelines) and the former differences between conven-tional and customary law are gradually disappearing. The second factor is theemergence of a more consistent approach and methodology in the decisions ofcourts and tribunals between 1992 and the present day.13 These decisions haveconcerned a variety of legal and geographical settings stretching from JanMayen in the North Atlantic via some points in the Middle East to the Gulf ofGuinea.14 Together the decisions have tended to complement the guiding princi-ple of the “equitable solution” in the Convention. The remaining controversiesover the law governing maritime delimitation have been greatly reduced inscope, as compared with situation in 1980. Today’s negotiators have a betterlegal 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 onthe issues. The members of the team should include an international lawyerfamiliar with both the negotiation of treaties15 and the law of the sea, includingdelimitation, and a hydrographer familiar with the latest charts and computerprograms relating to the area to be delimited. The team should also includeexperts on the bilateral political relations between the negotiating States andthe 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 theEuropean 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 ofTreaties” by the present writer, in: C. Wickremasinghe (ed.), The International Lawyeras Practitioner (London, British Institute of International and Comparative Law, 2000),p. 21.


should prepare thoroughly by studying the full background, including the geog-raphy of the boundary area and the material interests of both sides. The diplo-matic history of the current boundary issue should be documented. Themaritime legislation applying to the area to be delimited should be examined,including the legislation on baselines, the limits of the territorial sea, EEZ orother maritime zones, and the continental shelf. It is also a good idea to ensurethat the relevant national legislation is up-to-date, including baselines and lim-its. It is better to negotiate from position founded on specific legislation estab-lishing baselines and a territorial sea of 12 nautical miles, etc., than to advanceclaims based on notional baselines that could be drawn in the future or limitsthat have not been proclaimed.

The mention of baselines serves to indicate that, at an early stage in prepara-tions, the negotiating team should obtain technical advice from the hydrogra-pher or other cartographic expert.16 The hydrographer is usually asked to drawa median line between all valid basepoints on the two sides as a starting pointfor further preparatory work. The result of this exercise often surprises the lay-man because the basepoints are not obvious just from looking at a map. Thehydrographer should be consulted throughout the preparations and shouldattend all meetings between the delegations.

A view should be formed on which system of law is applicable: customary orconventional? Are the Geneva Conventions on Territorial Sea and on theContinental Shelf in force between the two parties? Or is Articles 15, 74 or 83of the Convention on the Law of the Sea the applicable law? Is there a landboundary treaty and, if so, does it make any provision for the division of theterritorial sea? Does it define the terminal point of the land boundary in anunambiguous manner? Where there exists a sovereignty dispute, it is best toresolve it either before concluding the boundary agreement or to do so at thesame time. For example, the agreement between the United Kingdom andVenezuela of 1942 concerning the delimitation of the Gulf of Paria was accom-panied 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 availableoptions for an agreed boundary. An all-purpose, single boundary is often thebest option since it produces a clean-cut, final agreement. Resource activitiescan be licensed or regulated by each State right up to the line. Whilst it is possi-ble to have different lines for different purposes, that option is unusual and inpractice it may require the establishment of a management commission toresolve issues of conflicting uses/jurisdiction. Similarly, a negotiator shouldconsider the question of the scope of the forthcoming talks. In particular, thereis the question of whether to seek a comprehensive settlement or simply to

16 On the role of the expert, see the chapter by Martin Pratt in this volume.17 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 morethan one outstanding boundary between coasts facing different seas or oceans, anegotiator should consider whether to seek to agree upon all the boundaries inthe same negotiations or to take them singly (in which case, there is less chanceof negotiating “trade-offs” between different boundaries).

The negotiating team should also review the major substantive interestsinvolved in the forthcoming negotiations. Often, this entails making contactwith the stakeholders, such as representatives of the fishing, oil and gas, dredg-ing, shipping and similar industries, as well as coastal and security interests.These interests may often not coincide: for example, the fishing industry mayseek access to one area and the oil industry to another. Since fishermen votewhilst oil wells produce tax revenues, it is sometimes necessary to make anoverall assessment of where national interests lie. This eminently politicalquestion may have to be finessed.

Before talks can be held, it is necessary to secure authority for a negotiatingbrief, usually including a proposal for an acceptable solution.

C. THE NEGOTIATING PHASE

Negotiations are usually initiated through the exchange of diplomatic commu-nications in some appropriate written form. These are followed, almost invari-ably, by face-to-face meetings between the respective delegations.18 The firstmeeting is usually held in the capital of the country that instigated the negotia-tions, although in some instances meetings have been held in neutral capitals orPermanent Missions to the United Nations in New York or Geneva. The hometeam is expected to take the initiative in conducting the meeting. The leader ofeach negotiating team should do most of the talking, assisted by other memberswho have defined roles.

Negotiations for maritime boundaries can, and often do, raise complex polit-ical, economic and legal issues. In such cases, the adoption of agreed guide-lines for such negotiations, bearing in mind that they may end in litigation, isoften helpful. Such guidelines are agreed at the outset and initialled by the twoheads 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 mes-sages between officials in the Quai d’Orsay and the Foreign and Commonwealth Officewithout any face-to-face meetings. This was the Convention on Maritime Boundaries of25 October 1983 establishing the boundary between French Polynesia and the PitcairnIslands: 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 smallislands over 200 nm apart. It was an exceptional, perhaps unique, case.


(1) The talks are to be conducted without prejudice to legal positions. (2) The talksare confidential to the two Governments and, in particular, offers/concessions madecannot be quoted publicly. (3) Each side may make its own record of everythingsaid in the meetings, but if the issue were at any time to be submitted to a court orother tribunal these records may not be introduced as evidence by eitherGovernment. (4) Each side will exercise restraint over activities within, or relatingto, the area under discussion. These activities include defining claims in legislation,issuing licenses for resource or research purposes, designating areas for administra-tive purposes under national legislation, or authorising exploratory fishing ordrilling in the area of overlapping claims. (5) Each side will inform the other inadvance of authorizing any new initiatives or new activities in that area. (Therecould even be a need for a moratorium in certain circumstances.) (6) Each side willapproach the talks with an open mind and recognise that any agreement wouldhave to be approved by the two Legislatures and Governments before it could enterinto force.

Such guidelines may be especially helpful during difficult phases that oftenarise in complex negotiations. They provide points of reference and a frame-work for the talks. They provide reassurance that concessions offered across thetable will not find an echo in other contexts such as the public media or litiga-tion. They can assist both delegations in making a further joint effort to achievesome progress.

The nature of negotiations for the delimitation of boundaries has been thesubject of judicial findings. Thus, “(The parties) are under an obligation toenter into negotiations with a view to arriving at an agreement, and not merelyto go through a formal process of negotiation as a sort of prior condition forthe automatic application of a certain method of delimitation in the absence ofagreement. The parties are under an obligation so to conduct themselves thatthe negotiations are meaningful, which will not be the case if either of theminsists 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 thedispute between the parties over the applicability of the well-known medianline method of delimitation. Nonetheless, on a broader view this dictumamounts to saying that negotiators should always act in good faith, keeping anopen mind and avoiding obvious gambits and ploys that are not sincere. Therequirement 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 caseof Railway Traffic between Lithuania and Poland to the effect that the obligation tonegotiate was “not only to enter into negotiations but also to pursue them as far as possi-ble with a view to concluding agreements,” whilst not implying an obligation to reachagreement: 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 anegotiator, you are trying to persuade the other side to move away from theirposition and to accept at least parts of your argument. In other words, the nego-tiator is acting as an advocate for a point of view. There is often no point inconcealing positions on your side which are strongly held and legally sound.They should be advanced rationally and firmly, but without any threat orexplicit refusal to acknowledge the possibility of any modification.

If prior diplomatic exchanges have indicated differences of approach, it isbest not to attempt to do too much at the first meeting. When commencingnegotiations that are expected to be long and complex, presentations of the twoopening positions, followed by questions or requests for clarifications, may beall that can realistically be expected from the first face-to-face encounter. Anopening presentation should explain the background to the talks, including suchpoints as the relevant legislation and maritime claims of the State concerned, itskey interests and its approach to the question of delimitation.

An opening proposal should be made at the right moment, which may notoccur 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 drawup the proposal, such as exact equidistance between all available basepoints onboth sides, or simplified equidistance21 or adjusted equidistance to achieve anequitable result,22 or a bisector of an angle between the relevant coasts.23 Inintroducing the proposal, the spokesperson should mention any treaty provi-sions which are applicable (e.g. the Geneva Conventions or the Convention onthe Law of the Sea), any relevant decisions by international courts and tri-bunals, and any existing boundary agreements in the immediate vicinity, espe-cially 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 pre-sented to international courts and tribunals.

21 Simplification on an area-compensated basis may be appropriate in order tostraighten a line.

22 For instance, by discounting the effect of a minor coastal or distant insular featurein order to avoid disproportion between the size of the feature and the area it would other-wise control.

23 A solution adopted by the Chamber of the Court in the Gulf of Maine case for onesector. The technique of bisecting an angle is akin to the use of simplified equidistancebetween coastal fronts.

24 In semi-enclosed seas, a semi-complete pattern of existing boundaries may providea framework for the negotiation of the remaining boundaries. For instance, the existencein the southern North Sea of agreed boundaries between the Netherlands and the UnitedKingdom (UK) and between France and the UK provided the framework for the negoti-ation of the boundary between Belgium and the UK. The latter’s negotiating stance was


a good idea to mention any boundary agreements in analogous geographicalsettings that followed the approach being proposed.

The initial proposal should be based on a sound legal basis, avoiding purelyarbitrary lines or ones drawn from doubtful or notional basepoints, etc. Allbasepoints and baselines relied upon for drawing a line should be justifiableunder the Convention on the Law of the Sea, following the approach adoptedby the Court in the Qatar v. Bahrain case.25 If any potential basepoints oneither side are not used, an explanation for discounting them should be given.

In accordance with the dictum in the North Sea Continental Shelf Cases, thenegotiator should be prepared to move from the opening position, choosing thetime for moving carefully. It is best to move when the other side has alreadymoved or given a signal that a move would be reciprocated. If the differencesbetween the two sides are relatively minor, a small concession may be enoughto move the negotiations towards an agreed solution. If differences are great, asmall concession may be discounted as derisory. In that situation, a concessionwhich makes a noticeable difference to the course of the line may be needed tokeep talks moving forward. Experience shows that once a concession has beenoffered, it will prove to be nigh impossible to recover it. This is true even if aconcession is hinted at on a ‘personal’ level. If you do have to withdraw a per-sonal offer, this is rarely cost-free – both across the table and also within yourown government. Always try to exchange your concession for one from theother side. Otherwise, the concession may be digested and then, after a littletime, a further morsel may be requested. The timing and size of concessionsinvolve making important judgements. Keep in mind the ‘bottom line’ beyondwhich you are not prepared to go. In a negotiation in which small concessionsare being made by both sides, it is unwise to change the tempo and move tooquickly towards your bottom line lest you be forced in the end to go below it inorder to reach agreement.

The area to be delimited often appears to be sub-divided into natural sec-tions. These can best be taken in turn, rather than attempt to discuss all areas atthe same time. If one section is agreed in principle, it may help the atmosphereto 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 theremaining issues,” or some similar formula. It is then possible to concentrate onthe remaining points of difference, possibly “banking” further sections of lineso as to build up the provisionally agreed mileage. In such circumstances, thenegotiators 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 withits other two neighbours and the new boundary had somehow to join together the twoexisting 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 fail-ure to reach full agreement may still yield a partial agreement, thereby reducingthe scope of the remaining dispute.

If severe problems are encountered, introducing a discussion of the possibil-ity of litigation may be useful. The mention of this possibility may help to con-centrate minds on the need to seek agreement across the table. It is, of course,perfectly possible to continue substantive negotiations when parties haveagreed in principle to litigate and even after litigation has begun.

When agreement has been reached at the level of delegations, it is prudent toprepare joint note and a map to ensure that both sides have exactly the sameunderstanding. The leaders of the two delegations could initial such a statementor “heads of agreement” as the outcome of the negotiations, always ad referen-dum to Governments.

It is best to leave the drafting of the treaty until a late stage when agreementhas been reached on the future boundary. Once a line has been agreed, bothsides are anxious to complete the negotiation and this is often enough to ensurethat 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 allaspects of boundary treaties, including their conclusion, application and inter-pretation. However, boundary treaties are excluded from the rule that a party toa treaty may invoke “a fundamental change in circumstances” as a ground forterminating a treaty on notice.26 Furthermore, in a related instrument, namelythe Vienna Convention on Succession of States in Respect of Treaties of 1978, itis provided that a succession of states “does not as such affect a boundaryestablished by a treaty or obligations and rights established by a treaty andrelating to the regime of a boundary.”27 In other words, the rules of interna-tional law, as set out in these two Vienna Conventions, accord special protec-tion to boundary treaties since they are intended to be of indefinite duration. Itwould require some unusual reason, implying a temporary situation underArticle 74, paragraph 3, of the Convention on the Law of the Sea,28 to promptthe 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 1969.27 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 ofthe agreement would be evaluated: Report No. 8–16 in D.A. Colson, op. cit., supra note3, Vol. V, pp. 3927–3938; see also the Law of the Sea Bulletin No. 52, published by theUN Secretariat (2003).


denunciation or termination. For the rest, the provisions of the ViennaConvention of 1969 provide the framework for the drafting of maritime bound-ary treaties.

The question of the form of the agreement should be considered at the outsetof the drafting work. A boundary treaty sets out the limits of the sovereignty orjurisdiction of two states. It has both international and constitutionalsignificance. It may well be the subject of discussion in national legislatures. Itis something which is intended to last. Accordingly, it is best to choose asolemn form of international agreement, such as an instrument in the form of aTreaty or Agreement.

With regard to the content of boundary treaties, the main issue is how toestablish the line. The history of boundary disputes on land demonstrates that aboundary treaty which uses vague expressions or geographical descriptions is arecipe for future disputes. In the maritime context, an agreement to the effectthat the boundary should be “the median line” without further elaborationwould be ambiguous because no-one could identify with certainty the pointsfrom which it should be drawn. Moreover, it could be ambulatory, for exampleif baselines changed over the years as a result of natural forces or human inter-vention in reclaiming land from the sea. If such a provision were to be includedin a treaty, there should be some additional definition of the boundary in orderto 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 underinternational law, whatever those rights may be in a particular case, then extendin principle all the way up to that line. Geographical certainty means that thereshould be agreement on the geodetic parameters: notably, the projection of thechart or map, the coordinates of Latitude and Longitude (expressed in degrees,minutes and seconds and referred to a modern geodetic system such asWGS84), and the chart datum. Coordinates should be sufficiently precise so asto establish a line of zero or near-zero thickness, perhaps using two places ofdecimals for the seconds in case an oil field is discovered that crosses theagreed line.29 If hydrocarbons are known to be absent and the boundary is con-cerned in practice solely with fishing, then it would not be necessary to use dec-imals of seconds. All these parameters should be recorded in the text of thetreaty and possibly also on the map or chart.

Following the best practice, lines between turning points should be straighton the surface of the Earth, rather than straight on the chart. The whole purposeof the negotiations is to delimit some specific areas of the Earth, composed ofsea, seabed and subsoil, which are three dimensional. Lines should be chosenin 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 isnot concerned with the chart as such but rather with the part of the worlddepicted on the chart. A straight line on a Mercator chart is curved on the sur-face of the Earth. The curvature is especially noticeable in high latitudes, espe-cially where a boundary is a long one (e.g. extending from the baselines as asingle line all the way out to the 200 nm limit). There is no logical reason tomake such a boundary curved as a result of the use of a particular map projec-tion. It is best to agree on geodetic lines, in the absence of some good reason tothe contrary.30

Should the boundary be defined by words and figures or by drawing a line ona map? Which prevails in the event of inconsistency? In regard to terrestrialboundaries, the Eighth Edition of Oppenheim’s International Law, edited by SirHersch Lauterpacht in 1958, argued that in the event of a discrepancy betweenthe words and the map, the former should prevail. This doctrine, criticised bySir Gerald Fitzmaurice in the Temple Case,31 was abandoned in the new Editionby Sir Robert Jennings and Sir Arthur Watts,32 on the ground that there was nogeneral rule. Each case turned on its own evidence and merits.33

Clearly, in defining maritime boundaries, it is best to avoid all risk of incon-sistency. The best way to achieve geographical certainty in a boundary treaty isto use in the body of the instrument appropriate defining words and coordinatesof Latitude and Longitude on a defined datum or geodetic system. If maps orcharts are used to define the boundary, they should be annexed to the treaty andideally plenty of copies should be made. Even so, maps may turn out to beinaccurate or flawed, or they may lack a datum, or they may be replaced bynew editions. If maps or charts are to be used in a treaty, it is the best practiceto make clear that they are included merely for the purposes of illustration andare not definitive.

Is it necessary to disclose the motivation or methodology used to reachagreement? The motivation or purpose of the parties in concluding a treaty istypically 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 BoundaryDelimitation (1994), published as Maritime Briefing No. 2 by the InternationalBoundaries Research Unit (IBRU), a research group of the Department of Geography atthe University of Durham; and also C.M. Carleton and C. Schofield, “TechnicalConsiderations 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, MartinusNijhoff 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.


Franco-British Agreement of 1996 concerning the boundary betweenGuadeloupe and Montserrat:

“Recognising the need to delimit in a precise and equitable manner the maritimeboundary between . . .”34

In other cases, there may be an economic motive, such as “to open up furtheropportunities for their respective off-shore petroleum and related industries” oragain “Wishing to delimit . . . (an) area of the continental shelf prior to the con-struction of a pipeline between . . .”35

Some, but not all, maritime boundary treaties indicate the methodology used bythe parties in order to draw the line. Thus, several treaties refer to “equidis-tance” or the “median line” method, or to a modified median line (in order tostraighten the line, for the benefit of fishermen), whilst others refer to “equi-table principles” or the “wish to achieve an equitable result”. This type ofexplanatory language is often included in the preamble to the treaty, but it canalso appear in the operative Articles. It is perfectly permissible to maintain totalsilence in the treaty as to the basis on which the line has been drawn. This isappropriate when political or extra-legal considerations directly affected theoutcome of the negotiations or where different methods have been used in dif-ferent sectors, especially if reciprocal concessions in different areas have beenmade.

The areas being delimited may have the status of territorial sea, contiguouszone, Exclusive Economic Zone or Fishery Zone, or continental shelf. Oldertreaties related to the territorial sea or continental shelf. More modern treatiesconcluded since the mid-1970s relate to the EEZ. In some instances, the statusis different on the two sides of the boundary. It has become the general practiceto specify in a boundary treaty the status of the areas that are being delimited orto make clear that the boundary is for all purposes. Some states have concludedtwo separate delimitation agreements in respect of first the territorial sea andsecondly areas beyond. For example, Belgium and France concluded twoagreements on the same day in 1990, one delimiting the territorial sea and theother the continental shelf.36 Belgium and the Netherlands adopted the samesolution in 1996.37

Many boundary agreements dating from the 1960s related only to the conti-nental shelf. Some of these agreements have been followed by later agreementswhen new types of jurisdiction have been claimed later. An example is pro-vided 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, atp. 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 terri-torial sea following the extension of the UK territorial sea to a maximum of 12nm in 1987.38 Later agreements signed from the mid-1970s onwards haverelated to the EEZ in instances where one or both sides have declared such azone. The Agreement of 1996 between Belgium and the Netherlands delimitingthe continental shelf provided that “If one of the Contracting Parties decides toestablish 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 provisionor 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 inthe same geographical area. Third States can be relevant factors in boundarynegotiations 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 existenceof third States should not be overlooked.

Looking first at the question of establishing tripoints, whenever an area ofsovereignty or jurisdiction of a third State lies in the vicinity of an area undernegotiation, there is clearly a need to establish at some stage a tripoint betweenthe two principals and the third State. Different techniques have been followedfor establishing such tripoints. First, the two negotiating States have agreed ona possible tripoint, typically one based on equidistance from the nearest pointsin the three territories, and one of them has then approached the third State andsought its concurrence with the proposed bilateral end-point, e.g. UK-NorwayProtocol 1978.40 Secondly, the negotiating States have ended their agreed linetwo or three miles short of the tripoint they favour and agree that the line willbe extended using the same method of delimitation once agreement has beenreached with the third State concerned, e.g. UK/France 1982 and 1991 wherethe respective coasts were between approximately 18 and 30 nautical milesapart.41 Thirdly, in exceptional circumstances, two States may agree to draw aboundary all the way to a tripoint, but to give written notice to the governmentof the third state well ahead of signature so that the latter has time to object if itis displeased with the implications of the proposed boundary treaty for its inter-ests. Finally, the three States may conclude a treaty agreeing upon the exactlocation 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.


41 J.I. Charney, op. cit., supra note 3, Vol. II, Report No. 9–3, pp. 1735–1754.


Agreement of 16 July 1971 signed by Indonesia, Malaysia and Thailand.42 In asimilar vein, Iceland, Norway and Greenland agreed upon a tripoint and signeda simple record of the talks before proceeding quickly to sign three bilateraltreaties, on the same day in the same place in 1997, establishing three bound-aries each starting/finishing at the single agreed tripoint. In order to emphasisethe 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 athird 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 wasalso adopted by the arbitral tribunal between Guinea and Guinea-Bissau, whichdrew a coastal front from a point in Senegal in the north to a point in SierraLeone in the south and fixed the maritime boundary on a bearing in such a wayas to avoid cutting off from the 200 mile limit neighbouring States on the samelonger coast of West Africa.45 In state practice, examples of the cut-off factorare found in the agreement between Dominica and France establishing bound-aries to the north of Dominica with Guadeloupe and to the south withMartinique, where equidistant lines meet to the east of Dominica on account ofthe configuration of the three coasts. France agreed to allow Dominica toextend 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 extentof the existence of third States in the maritime area under discussion. The alter-native approach of ignoring the existence of a third State and its maritime zonesmay serve only to create new disputes for both principals. This is especiallytrue if a boundary between two States extends into areas that are nearer to, orpublicly claimed by, a third State, or if the line appears to “cut off ” the latter’smaritime jurisdiction.

With regard to the possibility of oil or gas fields being found to straddle theboundary, it is general practice to include in a boundary treaty a provision tothe effect that if a discovery of oil or gas is made in the future in the vicinity ofthe agreed line the parties undertake to cooperate and draw up a new agreementfor the joint exploitation or apportionment of the find. The normal rule is to“unitise” the discovery so that each government is entitled to whateverresources lie on its own side of the line, no more, no less. (There are sophisti-cated techniques for measuring the oil or gas in the seabed and subsoil, and

42 Report No. 6–12, in ibid., Vol. II, pp. 1443–1454.43 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.

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treaties typically provide for reviews upon the request of either government orits permit-holders.) The UK and Norway have concluded several treaties aboutoil and gas fields which straddle the previously agreed boundary between themin 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 reachsome interim arrangements without prejudice to the final agreement.48

Negotiators should keep an open mind in this situation since there are severalpossibilities. One is a short-term interim agreement, but these are rare.49 Moreoften, joint development has been found to be a good option: as many as tenpercent of the agreements reported upon in International Maritime Boundariesprovide for some form of joint development in a defined zone. (The BritishInstitute of International and Comparative Law collected the agreements in atwo-volume study made in 1990. The study will be updated shortly.)50

Normally, a Joint Commission is constituted by the treaty, composed of dele-gates from the two sides. Very different regimes are possible within a joint area.The two governments may promote joint ventures between companies incorpo-rated under their respective legal systems. Alternatively, one government mayact as the sole operator according to an agreed work plan and subject to super-vision by the Joint Commission. More complex, perhaps, is the creation of aspecial, negotiated regime of exploitation, with international tenders for per-mits issued by agreement in the Commission. There are also joint areas forfisheries purposes. These may allow fishermen authorised by the two licensingauthorities to fish in the entire area, subject to control by the licensing authoritywhich issued a licence to a particular fishing vessel. The recent agreementbetween 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 theiroptions.

Existing operations to recover minerals from a boundary zone may createproblems for negotiators. Where a state has issued a licence for oil or gas orgravel 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 NijhoffPublishers, 2005), Report No. 9–15 (2–4), pp. 3944–4004.

48 R. Lagoni, “Interim Measures pending Maritime Delimitation Agreements”, 78AJIL, 1984, p. 345.

49 The Agreement between Algeria and Tunisia affords an example: 52 Law of the SeaBulletin, 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 JointDevelopment Zones, Vol. III (London, British Institute of International and ComparativeLaw, 2005).

51 J.I. Charney, op. cit., supra note 3, Vol. IV, Report No. 9–23, pp. 2955–2977.


treaty which means that that area belongs to its neighbour, provision can bemade for the notional transfer of the licence to the neighbour. This solution wasadopted by Belgium and the Netherlands in 1996. The Netherlands had issued along-term licence to a company to extract gravel for the construction industry.As part of the overall agreement on the boundary question, Belgium agreed toissue a Belgian licence to the same company on similar terms. This wasarranged by means of an exchange of letters between the two Ministers at thetime of signature of the boundary agreement, forming part of the “package”.52

Should maritime boundary agreements contain provisions for the settlementof disputes?

Since there is much scope for dispute about land boundaries, provisions inboundary treaties for dealing with disputes are not uncommon. In contrast, onlya minority of maritime boundary treaties provide for the settlement of disputesabout the interpretation or application of their terms. An example of such anexceptional case is the Agreement between Greece and Italy of 24 May 1977,Article IV of which provides for recourse to the ICJ.53 Normally, maritimeboundary negotiations precede the emplacement of oil and gas installations.Being intended to settle the issue unambiguously, once and for all, such agree-ments usually do not create practical problems and are not expected by thenegotiators to lead to disputes. Disputes about joint areas should ideally beresolved by the management commission.

It is the almost invariable practice to provide that a boundary agreemententers into force not upon signature but rather upon ratification or approval.This is because boundary treaties deal with questions of sovereignty and juris-diction, important matters of State. Accordingly, they usually require approvalby 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 tothe Congress, Senate or Parliament for their consideration. Only when it hasbeen approved should the governments proceed to ratify the signature andthereby establish the consent of the State to be bound by the treaty. In line withthe trend towards simplified procedures, some recent maritime boundarytreaties have provided that

“This Agreement shall enter into force on the date on which the two Governmentsexchange 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 constitu-tional procedures required for the entry into force of this Agreement. The

52 Report No. 9–21, in ibid., Vol. IV, pp. 2921–2939.53 Report No. 8–4, in J.I. Charney, op. cit., supra note 3, Vol. II, pp. 1591–1600, at

p. 1599.

140 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 isnot 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 pactasunt servanda.

How may a State seek to protect its interests in future negotiations with athird State? It is not permissible to attach a reservation to a bilateral treaty atthe time of ratification. An attempt to do so, for example at the instance of theLegislature during its consideration of a boundary treaty, would amount to try-ing to reopen the negotiations. However, when a government has a particularinterest which it wishes to safeguard, not shared by the negotiating partner, e.g.a forthcoming delimitation with another neighbour, the first government shouldraise the matter during the talks. For example, the Agreement between Belgiumand the UK of 1991 has attached to it a Note from the Foreign Minister to theBritish Ambassador concerning the northern terminal point of the boundary,which coincided with the southern terminal point of the boundary agreed in1965 between the Netherlands and the UK. Belgium reserved its position overthis terminal point. The Ambassador simply took note of this communication ofBelgium’s attitude.54 Belgium later signed an agreement with the Netherlandsin 1996, defining a boundary which ran to a point further north, albeit a pointon the boundary between the Netherlands and the UK.

Given the need for certainty, it is especially important to avoid errors in alltypes of boundary treaties. The greatest care should be taken. Technical expertsshould be consulted. If an error is discovered, the Vienna Convention containsArticle 80 concerning the correction of errors in texts. There has been at leaston instance where a clerical error was made in a maritime boundary agreement.Some years after signature in 1982 of an agreement between France and theUK establishing a continental shelf boundary in the southern North Sea basedon the method of equidistance, it came to light that a typing error had beenmade in listing the coordinates of Latitude and Longitude used for a basepointknown as Banc Breedt. This error had affected the calculation of two sets ofcoordinates used to define the agreed line. In 1990, the French Governmentproposed a correction to the coordinates of two points, numbers 13 and 14, onthe agreed boundary. The UK consented to the amendment of the agreement inorder to effect the correction.55

Article 102 of the UN Charter provides that every treaty entered into by UNMember States shall be registered with the Secretariat and published by it in the


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


UN Treaty Series. This rule applies to land and maritime boundary treaties. Theprocess of deposit is usually carried out by means of Notes Verbales sent byPermanent Missions to the UN in New York to the Treaty Section of the Officeof the Legal Counsel in the Secretariat. Articles 16, 47, 75 and 84 of the LOSConvention provide for the deposit with the UN Secretary General of maritimecharts depicting baselines, archipelagic baselines, and the outer limits andagreed lines of delimitation of the EEZ and continental shelf. The Division forOceans Affairs and the Law of the Sea of the UN Secretariat has published col-lections of maritime boundary agreements.56

Inshore maritime boundaries and those running through navigable channelsused by shipping should also be demarcated by buoys if it is safe to do so, as inthe case of the agreement between France and Spain concerning the boundaryin the mouth of the River Bissadoa.57 However, it is not usual to attempt todemarcate in any way offshore maritime boundaries and in practice it is not fea-sible or necessary. Modern maritime navigational aids mean that ships, includ-ing fishing vessels, can check their positions. Unlicensed fishermen found justinside the EEZ, say at 199 miles, can be given the benefit of the doubt, and besimply warned and told to leave the EEZ.

E. CONCLUDING OBSERVATIONS

Some of the former controversies of the 1970s over the rules/principles applic-able to maritime delimitation are well on the way to resolution. Differencesbetween customary and conventional law are decreasing. These are clearly pos-itive trends. The modern law should assist negotiators in reaching an agreedsolution.

It remains true that negotiated settlements are the optimal outcome of negoti-ations. However, if the negotiators’ best efforts fail to reach an equitable solu-tion, then one course open to the two governments is to draft a compromissubmitting the dispute to an impartial, expert body for decision on basis ofinternational law. Article 287 of the Convention on the Law of the Sea gives tothe States Parties the choice of forum,58 including the International Tribunal forthe 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 MaritimeBoundaries” (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 ofboth maritime boundary negotiation and litigation.

Joint Development Zones as an AlternativeDispute Settlement Approach in MaritimeBoundary Delimitation

Thomas A. Mensah*

Ambassador Tommy Koh, one of the eminent personages in the modern historyof the Law of the Sea, has suggested that one of the reasons why disputes overboundary delimitation are often difficult to resolve is that “men like animals,seem to be driven by a territorial imperative and partly because such disputesare sometimes the effect, rather than the cause, of the poor political relationsbetween the claimant States”.1 Unfortunately, men will continue to behave liketerritorially oriented animals, and States and governments do not ever run outof reasons or pretexts for creating poor political relations between themselves.It is, therefore, not unreasonable to assume that disputes concerning boundarydelimitation will continue to persist, and possibly increase.


143

* Judge of the International Tribunal for the Law of the Sea 1996–2005 (President1996–1999). Edited version of a Dinner Presentation delivered at the Symposium onMaritime 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 ExtendedMaritime Jurisdiction in the Pacific (Honolulu, Law of the Sea Institute, 1989), pp.13–17, at p. 15.

144 Thomas A. Mensah

Disputes over maritime boundaries are not a new phenomenon, but theyseem to have become more prevalent following the extensions of the maritimeareas within national jurisdiction after the entry into force of the 1982 UnitedNations Convention on the Law of the Sea. In many cases, application of theprovisions of the Convention results in actual or potential overlaps between theterritorial seas, the exclusive economic zones or the continental shelves ofopposite or adjacent States.2 Where this happens it becomes necessary for theStates concerned to reach agreement on mutually acceptable limits of theirzones, if possible, through negotiation.3 Where the States are not able to reachagreement by negotiation, they generally seek to resolve their differencesthrough a third party settlement mechanism of their choice.

Thus, although it is probably the case that many boundary disputes willeventually be settled by agreement between the parties, some States still find itnecessary and, sometimes even politically convenient, to resort to third partyprocedures for the settlement of their maritime boundary disputes, eitherthrough standing judicial institutions or through ad hoc arbitration. This is so inspite of the fact that neither side in such a dispute is likely to gain all it wantsfrom the process.

As one observer has put it, “in many cases the disputed zone will be dividedmore or less equally by a series of geodesics based either on some geometricconstruction”.4 Indeed, this expert has questioned whether there is a clear andfully consistent rationale in the law of maritime delimitation as contained in theConvention or in the decisions of the International Court of Justice and othertribunals. In respect of the concept of “natural prolongation”, which is gener-ally put forward as a basis for determining the limits of the continental shelf, hehas put his bewilderment in verse as follows:

2 For example, it has been suggested that “the process of defining the outer limits ofthe continental shelf beyond 200 nautical miles under Article 76 of the Convention islikely to lead to a heightened interest in the delimitation of this area between neighbour-ing States”, A.G. Oude Elferink, “The Impact of the Law of the Sea Convention on theDelimitation of Maritime Boundaries”, in: D. Vidas, W. Østreng (eds.), Order of theOceans 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 limitationpointed out that “something between six and seven percent of maritime boundary delim-itation settlements have been assisted by a tribunal and that States have themselvesreached private agreement on 93 to 94 percent”, K. Highet, “Marine Boundary DisputeSettlement – 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 – LuncheonSpeech”, in: J.P. Craven, J. Schneider, C. Stimson (eds.), op. cit., supra note 1, pp.33–40, at p. 39.

Joint Development Zones as an Alternative Dispute Settlement 145

Natural prolongations once solved a wrangleBut now when nations entangleWe find that the CourtDoesn’t do what it oughtBut relies on a dissected angles5

I believe that many States come to the same conclusion when they consider thedecisions of the courts and tribunals on maritime delimitation. Be that as itmay, it is still the case that many States consider it useful to seek judicial settle-ment for maritime boundary disputes, although others adopt different methodsto deal with their disputes. But whatever the method adopted, governmentsneed to remember not only that they have the obligations under internationallaw to settle their disputes by peaceful means but also that it is in their interestto seek solutions that benefit their countries and their peoples, not only in theshort term but also, and especially, in the long-term.

Fortunately, and in spite of the potentially emotive nature of some landboundary disputes, a large proportion of maritime boundary disputes are in factsettled by the States concerned with little or no major international repercus-sions. For many States seem to have recognized that, although differences onmaritime boundaries present problems, they also present opportunities. For onething, the peaceful resolution of a boundary dispute may open up avenues forpeaceful co-existence and, in some cases, constructive co-operation in areaswhich would normally remain closed if relations continued to be poisoned bythe dispute over the maritime boundary.6

But even more importantly, the identification of a dispute can provide power-ful incentives for the establishment of co-operative arrangements between theStates involved in the dispute. Thus, in many cases, disputes over boundarylimitation are settled, relatively easily, either because one of the parties agreesto make some concessions or because all the parties involved are willing tomake 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 establishmentof a joint development zone or similar arrangement over the disputed area. Thisis particularly so where identified resources straddle the disputed area. In suchcases co-operation can take the form of a joint development zone, covering all

5 Ibid. 6 “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 toput aside the issue of sovereignty for a certain period of time in favor of possible eco-nomic 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.


or part of the disputed area. In this zone the States concerned would have rightsand responsibilities and enjoy benefits, in accordance with arrangements andcriteria agreed among them.

The concept of joint development zones for exploration for, and exploitationof, resources in a disputed maritime area emerged during the second half of the1950s.7 After somewhat hesitant beginnings it has become increasinglyaccepted as a constructive approach for dealing with the difficult disputesinvolving overlapping maritime claims.

Although the concept of joint development is now well known and widelyused by States, there is not full agreement among international lawyers regard-ing its definition or essential characteristics. For example, some scholars seekto distinguish between, on the one hand, “unitization of shared resources”which they describe as an arrangement under which “a single resource strad-dling an international boundary is developed subsequent to agreement withoutreference to such boundary” and, on the other, joint development properly socalled which they define as “a regime under which the entire boundary disputeis set aside, thus creating an ambient development atmosphere of politicalcooperation from the outset”.8 Other commentators take a different view. Thusone writer considers that unitization of resources and joint development zonesare two types of the same concept. According to him, there are “two types ofjoint development schemes: one is the type in which boundary delimitation hasbeen shelved and the other is a régime of joint development with the boundarydelimited”.9 This is similar to the approach of Professor Rainer Lagoni whodefines joint development as “the cooperation between States with regard to theexploration for and exploitation of certain deposits, fields or accumulations ofnon-living resources which either extend across a boundary or lie in an area ofoverlapping 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 ofInternational and Comparative Law, 1989). See also Sun Pyo Kim, MaritimeDelimitation and Interim Arrangements in North East Asia (Dordrecht, Martinus NijhoffPublishers, 2004), Chapter Three.

8 L.F.L. Shihata, W. Onorato, Joint Development of International PetroleumResources in Undefined and Disputed Areas, (Paper delivered at the InternationalConference of the LAWASIA Energy Section, Kuala Lumpur, Malaysia, 18–22 October1992), p. 6: quoted in G. Zhiguo, “Legal Aspects of Joint Development in InternationalLaw”, 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 Resourceson the Continental Shelf – with special reference to the discussions at the East-WestCentre workshops on the South-East Asian Sees”, in: 3 International Journal ofEstuarine and Coastal Law, 1988, pp. 1–18, at p. 3.

10 R. Lagoni, Report on Joint Development of Non-living Resources in the ExclusiveEconomic Zone, Warsaw Conference of the International Committee on the Exclusive


report of the British Institute of International and Comparative Law whichStates that joint development is “an agreement between two States to developso as to share jointly in agreed proportions by inter state cooperation andnational measures the offshore oil and gas in a designated zone of seabed andsubsoil of the continental shelf to which both or either of the participatingStates are entitled in international law”.11

I do not intend to attempt to settle the differences concerning the essentialcharacteristics of joint development zones or to describe the procedures bywhich they are negotiated and administered. And I shall not enter into the con-troversy on whether “joint development” is properly applicable only to theexploitation of non-living resources or may equally be applied to arrangementsfor the joint exploitation of living resources. These are no doubt interestingissues but they are outside the purview of my presentation today. My limitedpurpose is to draw attention to joint development zones as one of the means bywhich States deal with the difficult problem of maritime delimitation.

As already indicated, joint development zones are established either becausethe parties find it difficult or impossible to agree on a single boundary betweenthem or because the resources straddle the agreed boundary in such a way thatit is not feasible for the resources to be exploited effectively and equitably bythe individual States acting alone. Paradoxically, contending States are morelikely to agree to establish a joint development zone where exploitableresources 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 jointinterests that the resources are exploited as quickly as possible. This naturallyprovides a powerful incentive for them to agree to the creation of a joint zonesince the alternative would be a long and costly litigation process during whichit would not be safe or advisable for either of them to undertake any measuresto exploit the resources. Moreover, the establishment of such a joint zone, andthe practical cooperation involved in administering it, can in many casesstrengthen existing bonds of friendship between the countries or, at least, helpto reduce tensions between them, not just in relation to the specific dispute butpossibly in other areas. In fact this special advantage of joint zones wasexpressly mentioned in the Preamble to the 1979 Joint Zone Agreementbetween Malaysia and Thailand.12

Economic Zone, ILA 1988 (unpublished), p. 2, quoted in G. Zhiguo, op. cit., supra note8, at p. 631.

11 H. Fox (ed.), Joint Development of Offshore Oil and Gas, Vol. II (London, BritishInstitute of International and Comparative Law, 1990), at p. 45.

12 The first preamble of the Agreement reads: “Desiring to strengthen the existinghistorical bonds of friendship between the two countries”. The 1989 Agreement betweenAustralia and Indonesia (note 17 below) also had a paragraph in the preamble statingthat the parties were “convinced that this Treaty will contribute to the strengthening ofthe relations between the two countries”.


Joint development zones take different forms, and are implemented througha variety of administrative arrangements. For example, the parties may agreethat one of the countries should have formal sovereignty over the area while theother country receives a share of the revenue. This was the pattern followed byBahrain and Saudi Arabia in their agreement of 1958.13 Another approach is todivide the joint zone between the countries involved, as was done in the case ofthe Iceland-Norway joint zone.14 This zone is divided into northern and south-ern sectors, with Norwegian regulations applicable in the northern sector andIcelandic regulations applicable in the southern sector. The agreement providesthat each country is entitled to 25% of the petroleum production activities thattake place in the part of the zone that falls under the regulations of the otherparty.15 Between these extreme poles, there are several intermediate forms, withadministrative arrangements that range from the fairly simple to very compli-cated. For instance, the agreement of 1976 between Norway and the UnitedKingdom provided that the two countries would, in consultation with particularlicensees operating in their respective areas of jurisdiction, work out anarrangement to exploit hydrocarbon deposits which straddled their continental-shelf boundary which had previously been fixed by an agreement between thetwo countries in 1965.16 Although, strictly speaking, this particular agreementdoes not establish a joint development zone, it reflects the basic rationale of thejoint development zone concept because it addresses the basic objective behindthe establishment of joint development zones, which is to provide a means ofexploiting disputed resources in a way that is efficient, fair and mutually advan-tageous to the concerned States. Other examples of joint development schemesare those established between Australia and Indonesia (1989);17 betweenMalaysia 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 MaritimeBoundaries, 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: “theexploitation of the oil resources of the area (situated within the six defined sites) will becarried out in the way chosen by His Majesty the King of Saudi Arabia on the under-standing that he grants to the Government of Bahrain one half of the next revenue accru-ing to the Government of Saudi Arabia and arising from this exploitation, and on theunderstanding that this does not infringe on the right of sovereignty of the Governmentof 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,


(1974);19 between Japan and the Republic of Korea20 and between Senegal andGuinea Bissau (1993).21

It appears from the above that the idea of joint development zones is nowfairly established as one of the avenues by which States may resolve differ-ences concerning maritime boundary delimitation. And the concept has muchto 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 improvetheir relations to the point where they are able to contemplate cooperation andcollaboration in areas which might otherwise not be possible because of theboundary dispute. For another, joint development schemes are likely to pro-mote and facilitate synergies by combining the human resources, expertise,insights and influences of the participating States in ways that would not havebeen possible to each of them individually. In addition, joint developmentschemes make it more possible for the States concerned to obtain technical andother assistance for the efficient exploitation and management of the resourcesin question. This is particularly so for developing countries. The suspension orelimination of the dispute over title to the resources is likely to make it easierfor the parties to attract investors with the requisite funding and capacity toexploit the resources, and it also improves the possibility of their securing sup-port and assistance from national and international agencies, both in negotiat-ing with foreign investors and also in establishing appropriate mechanisms forexploration for, and exploitation of, the resources in the most efficient and eco-nomic manner.22

Finally, joint development zones may be seen as one way by which Statescan implement the letter and spirit of the provisions of the Convention on theLaw of the Sea relating to delimitation of maritime boundaries. Indeed, it canreasonably be asserted that the Convention envisages that States will, in appro-priate cases, make use of joint development arrangements, although this is notstated in express terms. Both Article 74, dealing with delimitation in the exclu-sive economic zone, and Article 83 concerning delimitation for the continental

Vol. III (Dordrecht, Martinus Nijhoff Publishers, 1998), Report 5–19, pp. 2335–2344, atpp. 2341–2344 (Art. 2).

19 Text in: J.I. Charney, op. cit., supra note 13, Vol. II, Report 9–2, pp. 1719–1734, atpp. 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 dealswith the management and exploitation of both mineral resources and marine fisheriesresources.

22 On this see the Report of the Secretary General of the United Nations onPermanent Sovereignty over Natural Resources, E/C.7/1987/2, pp. 35–38.


shelf state, in their respective paragraphs 3, stipulate that “pending agreement”(on delimitation on the basis of international law . . . in order to achieve anequitable solution), the States concerned, “in a spirit of understanding andcooperation shall make every effort to enter into provisional arrangements of apractical nature”. During this transitional period, States are enjoined “not tojeopardize or hamper the reaching of the final solution”. Finally, the provisionstates that such arrangements “shall be without prejudice to the final delimita-tion”. This is precisely what many States have found desirable to do in thosecases where they have not been able to reach agreement on the basis for a finaland definitive delimitation.23 Indeed, in some cases, as in the Japan-Republic ofKorea agreement, the parties have agreed to operate the joint developmentzones 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 inorder to gain time and space to resolve differences, but without allowing theinability to agree on a boundary to prevent them from benefiting from theresources in question or to becloud their relations in other areas where theremight be opportunities for fruitful and mutually beneficial cooperation. It may,therefore, safely be said that, in establishing and operating joint developmentzones, States are doing nothing more than making use of an approach which islikely to promote the realization of one of the objectives of the Convention asstated in its Preamble, namely, to establish a legal order for the seas and oceanswhich 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, jointdevelopment zones as an attractive alternative means of resolving disputes onmaritime delimitation, I do not by any means seek to diminish the important,indeed crucial, role of the international judicial bodies, and especially theInternational Tribunal for the Law of the Sea and the other dispute settlementprocedures designated in Article 287 of the Convention, in the settlement ofsuch disputes. As I noted earlier, there are some disputes on delimitation which,for one reason or another, cannot be solved by agreement between the Statesconcerned. Where this is the case, it is my fervent hope, and I believe also thehope of all of us here, that the States involved will take due note of the fact thatthis Tribunal has been established by the Convention just for this very purposeand that it is ready, available and, if I may say so, equipped in terms of facili-ties, professional competence and institutional attitude, to assist States to

23 In this context, it is pertinent to note that Australia and Indonesia considered it nec-essary, in the preamble to the 1989 Agreement, to refer specifically to Art. 83, para. 3, ofthe United Nations Convention on the Law of the Sea as one of the bases for the conclu-sion of their Agreement.

24 Referred to in note 19 supra (Appendix, Art. XXXI, para. 2).


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, failingthat, by agreement to establish joint development zones as a practical interimagreement, pending a more opportune occasion for a final settlement. Wherethis happens, we should not feel disappointed that the dispute has not been sub-mitted for judicial settlement. For a tribunal such as ITLOS, what is importantis not the proportion of such disputes that will be submitted, although we natu-rally hope that a high proportion of the cases that need to be settled by thirdparty adjudication will be submitted to ITLOS. What is more important is thatITLOS should be ready, and be seen by many States to be ready, fully equippedand attractive as a forum for the settlement of their disputes. But above all, ourultimate concern should be that any disputes that arise shall be resolved inaccordance 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 dis-putes are settled either by force or in ways that are not compatible with the pro-visions and principles contained in the Convention. In other words, the onlymethod of settlement that should give us cause for concern is where thestronger State seeks to impose its will on the weaker State, or where the partiesresort to non-peaceful avenues to resolve the dispute. Any other means thatenables the parties to reach a fair and equitable solution that is mutually accept-able to them should be welcome by this Tribunal, and we should make it clearthat we accept, and indeed encourage, the efforts of States to seek such solu-tions whenever it is possible to do so.

Maritime Delimitation in Complex IslandSituations: A Case Study on the Caribbean Sea

Chris Carleton*

The opinions expressed are those of the author and do not necessarily representthose of the UK Hydrographic Office or any other Government Department.

1. INTRODUCTION

The process of maritime delimitation is a relatively new phenomenon. Prior tothe possibility for coastal States to claim extended maritime zones in the latefifties States were only concerned with the delimitation of a relatively narrowterritorial sea. This narrow belt was normally three nautical miles (M) in widthalthough the Scandinavian States claimed four M. More often than not thisdelimitation was achieved by an extension of the land boundary. One notableexception was that between Norway and Sweden, delimited by an arbitralaward of 23 October 1909.1 An interesting comparison in the way the Tribunal


153

* 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.

154 Chris Carleton

treated the various offshore features, such as the banks, islets and rocks, com-pared to modern practice can be found in an article by David Anderson.2

The 1958 Geneva Convention on the Continental Shelf 3 provided for Statesto 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 thesuperjacent waters admits the exploitation of the natural resources of the saidareas;. . . .” (Article 1). The requirement to know who owned this claimedseabed and subsoil led to the expansion of maritime boundary delimitation cov-ering 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 cannow claim an exclusive economic zone (EEZ) out to 200M and in certain cir-cumstances an extended continental shelf that can go beyond 200M to either350M 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 anexpansion of maritime delimitation requirements.

A majority of maritime boundaries have some form of island that has someeffect on the delimitation. The question of what forms an island has vexedexperts and lawyers for decades. Hodgson, a former Geographer of the USDepartment 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 anadmirable attempt to define the difference between island, islet and rock it wasnot 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 isabove water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguouszone, the exclusive economic zone and the continental shelf of an island aredetermined in accordance with the provisions of this Convention applicable toother land territory.

3. Rocks which cannot sustain human habitation or economic life of their ownshall have no exclusive economic zone or continental shelf.”

2 D. Anderson, “Grisbadarna Revisited”, in: Platzöder and Verlaan (eds.), The BalticSea: 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).

Maritime Delimitation in Complex Island Situations 155

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

2. THE GENERAL PRINCIPLES IN MARITIME DELIMITATION

UNCLOS does not help coastal States to any great extent in the techniques tobe used in maritime delimitation.

The delimitation of the exclusive economic zone and continental shelf is laiddown in Articles 74 and 83. The wording is essentially the same in both. Article74 states:

“1. The delimitation of the exclusive economic zone between States with oppositeor adjacent coasts shall be effected by agreement on the basis of internationallaw, as referred to in Article 38 of the Statute of the International Court ofJustice, in order to achieve an equitable result.

2. If no agreement can be reached within a reasonable period of time, the Statesconcerned shall resort to the procedure provided for in Part XV. [third partysettlement]

3. Pending agreement as provided for in paragraph 1, the States concerned, in aspirit of understanding and co-operation, shall make every effort to enter intoprovisional arrangements of a practical nature and, during this transitionalperiod, not to jeopardize or hamper the reaching of the final agreement. Sucharrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questionsrelating to the delimitation of the exclusive economic zone shall be determinedin accordance with the provisions of that agreement.”

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

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

156 Chris Carleton

controlled by the relevant points on the territorial sea baseline, a boundarydelimited 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, jurisprudenceduring the last 30 years has tended to continue to treat the geographic para-meters as being paramount, when dealing with a maritime boundary out to the200M limit. Indeed in the ICJ Malta/Libya judgment of 1985,7 the Court madeit quite clear that geological and geomorphological arguments had no part toplay within the 200M zone.

Geology and geomorphology will probably have an important role in thedelimitation of continental shelf boundaries beyond 200M. No court has yetbeen required to make a judgment on this type of boundary, but the very natureof 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 arethought to be approximately 270 yet to be delimited. This does not include theboundaries between the coastal State and the International Sea-bed Authoritydelimiting the areas under national jurisdiction and the Area. The AmericanSociety of International Law has published a study in four volumes of all themaritime boundaries agreed to 2001, entitled “International MaritimeBoundaries”.8 A fifth volume will be published in 2005. This work studies eachof the boundaries with an analysis of the way the boundary was delimited and acopy of the agreement.

The United Kingdom has considerable experience in the delimitation of con-tinental shelf boundaries. The first North Sea boundaries were delimited in the1960s and were median lines derived graphically. The trend for median lines

7 Malta v. Libya, I.C.J. Reports 1985, p. 13.8 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 NijhoffPublishers, 2002), D.A. Colson and R.W. Smith (eds.), International MaritimeBoundaries, Vol. V (The Hague, Martinus Nijhoff Publishers, 2005).


continued into the 1970s when further North Sea boundaries were delimited,but by this time were calculated. The typical differences between a graphicalsolution and calculated co-ordinates on the spheroid is illustrated by the differ-ence of position of the northern point of the 1965 UK/Norway boundary9 andthe southern point of the UK/Norway boundary delimited in 1978,10 whichshould have been identical. In fact there is a difference of 331 metres.

Delimitations in the 1980s and early 1990s have been variations of themedian line, beginning with the UK/France Arbitration of 1978,11 when theScilly Isles were only awarded half weight. The remainder of this boundarythrough the western Channel is a simplified median line. The boundary agree-ment with Ireland, agreed in 1988,12 has been described as a model of the equi-table solution. A similar description could be levelled at the much shorterboundary with Belgium.13 This was a pragmatic solution discounting or seri-ously reducing the effect of several low-tide elevations. One of the last conti-nental shelf boundaries to be delimited around the UK concerned the UK andDenmark (Færoe Islands) agreed in May 199914 and entering into force in July

9 UK Treaty Series No. 71 (1965): Agreement between the Government of theUnited Kingdom of Great Britain and Northern Ireland and the Government of theKingdom 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 10March 1965 between the Government of the United Kingdom of Great Britain andNorthern Ireland and the Government of the Kingdom of Norway relating to theDelimitation 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 ofGreat Britain and Northern Ireland and the French Republic on the Delimitation of theContinental 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 theUnited Kingdom of Great Britain and Northern Ireland and the Government of theRepublic of Ireland concerning the Delimitation of Areas of the Continental Shelfbetween 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 theUnited Kingdom of Great Britain and Northern Ireland and the Government of theKingdom 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 ofit 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 secondtime a UK boundary defines a fishing boundary as well as a continental shelfline. The first is the fishing boundary Agreement between France and theBailiwick of Guernsey,15 part of the Channel Islands. The latest maritimeboundary to be delimited in the vicinity of the UK concerned the territorial seaboundary between the United Kingdom (Bailiwick of Jersey) and France.16

This again shows a remarkable pragmatism between the Parties when facedwith the almost impossible task of assigning sovereignty to many relevant low-tide elevations that would have had an effect on a true median line boundary. Inthe event it would appear that many of these small rock and sand bank featureswere ignored in the calculation of the final result.

In addition to this impressive portfolio of Agreements the United Kingdomhas also successfully negotiated several maritime boundaries on behalf of itsOverseas Territories the majority of which are islands and many of which are inthe 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 someform of adjustment. Such geographic parameters as length of coasts, headlands,

United Kingdom of Great Britain and Northern Ireland, on the one hand, and theGovernment of the Kingdom of Denmark together with the Home Government of theFaeroe Islands, on the other hand, relating to the Maritime Delimitation in the areabetween 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 ofthe United Kingdom of Great Britain and Northern Ireland and the Government of theFrench Republic concerning the Activities of Fishermen in the Vicinity of the ChannelIslands and the French Coast of the Cotentin Peninsula and, in Particular, on the ScholeBank, 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 GreatBritain and Northern Ireland and the French Republic concerning the Establishment of aMaritime 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.


islands, rocks, low-tide elevations, straight baselines, archipelagic baselinesetc. 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 inthe relevant lengths of coastline is common. This disparity has been adjusted invarious ways, depending upon the outcome of the whole boundary and the rela-tive position of the island or islands in relation to the longer coast. If a medianline is drawn between two mainlands and the islands of one State fall on thewrong side of this mainland-to-mainland line, then those islands are sometimessemi-enclaved. If the islands cause a median line to move too close to the main-land State, then the islands are often given less than full weight. If a group ofislands are similar in size to the mainland, then a median line solution is oftenachieved.

Another reason for adjustment is sometimes caused by the known or sus-pected 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 ofSaudi 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 beganin the bilateral delimitation between Saudi Arabia and Iran, agreed in 1968.Although this is very much a pragmatic boundary, taking account of a produc-ing oilfield belonging to Iran, it is clear that less than full weight was given tothe Iranian island of Kharg. Two islands that lay close to the mainland-to-main-land median line, one belonging to each State, were semi-enclaved.

17 J.I. Charney, op. cit., supra note 8, Vol. II, Report 7–3, pp. 1489–1497.18 Ibid., Vol. II, Report 7–7, pp. 1519–1532.

160 Chris Carleton

c) Tunisia – Italy – 197119

This was a bilateral agreement between largely the mainland coast of Tunisiaand the Italian islands of Sardinia, Sicily, Lampione, Lampedusa, Linosa andPantelleria. Leaving aside the islands in the Channel of Sicily, the boundary is amedian line calculated between mainland Tunisia and the islands of Sardiniaand Sicily, even though the relevant coast of Tunisia is longer than that of thetwo Italian islands combined. The Italian islands in the Channel of Sicily weresemi-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 betweenthe eastern extremity of a mainland coast (Mexico) and the westerly tip of alarge island (Cuba). Although the relevant coasts of the two Parties were con-siderably different in Mexico’s favour, the agreed boundary is an equidistanceline.

e) UK – France – 197721

The main part of the boundary between the mainland of France and the UnitedKingdom was handed down as a simplified median line by the Court ofArbitration. However, the western segment of the boundary, controlled on theFrench 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 thewesterly extension of the UK coast by the Cornwall mainland, constituted anelement of distortion that required adjustment and accordingly only gave halfweight to the Isles of Scilly. The Channel Islands, because of their close adja-cency to the French mainland, were fully enclaved.

f) Venezuela – Netherlands (Antilles) – 197822

This boundary is in two parts. The first lies between the Venezuelan mainlandand the Dutch islands of Aruba, Bonaire and Curacao. The second segment lies

19 Ibid., Vol. II, Report 8–6, pp. 1611–1625.20 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.


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

g) Malta – Libya – 198523

This International Court of Justice (ICJ) case was the first time that this Courthad handed down a ruling that adjusted a median line solution significantlytowards the State with the shorter coast. The relevant coastal lengths in thiscase were 192 miles for Libya and 24 miles for Malta giving a ratio of 8:1 inLibya’s favour. The Court considered this difference to be so great as to justifythe adjustment of the median line so as to attribute a larger shelf to Libya. TheCourt also considered that the distance apart of the two coastal fronts wassignificant. The coasts are approximately 195M apart and the Court stated thatthe distance apart of the two coasts was an important consideration when decid-ing whether or not to adjust the median line and by how much. The furtherapart the coasts are the greater the freedom to adjust a median line towards theshorter coastal front without bringing other factors into consideration. Evenwith this marked difference in coastal front lengths and the considerable dis-tance apart of the coasts, the Court only adjusted the median line some 18Mtowards 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 fairlylarge Swedish islands, Gotland and Gotska Sand ,/on, were the decisive factor inthe final location of the boundary. Sweden contested that these islands shouldbe afforded full weight, but the Soviet Union considered that the boundaryshould be calculated from the mainland coast ignoring the two islands, thusgiving 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 Maltav. 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.

162 Chris Carleton

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

i) United Kingdom (Guernsey) – France – 199225

This bilaterally agreed fisheries boundary is in two parts between the east coastof the Bailiwick of Guernsey, a Crown Dependency of the United Kingdomconsisting of the islands of Guernsey, Alderney, Sark and Herm and the Frenchcoasts of the Cotentin Peninsula, and the second segment between the south-west coast of Guernsey and a group of French rocks called the RochesDouvres. This agreement is interesting in that the lines are both median linesgiving full weight to all basepoints. This is a case where, although it could beargued that the French mainland coast should have been given more weightthan 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 independentsovereign State and claims archipelagic status, however, for delimitation pur-poses this does not make any fundamental difference. The Cape Verde Islandsare 315M from the coast of Senegal. This should have allowed the Parties agreater freedom to adjust the median line to provide an equitable result.However, the agreed delimitation, although stating in the Treaty that it is a sim-plified median line, actually lies between 9M and 20M towards the mainlandcoast of Senegal, even though the mainland coastal front is longer than that ofCape Verde. The reason is probably the discounting of the Senegalese headlandof Cap Vert in some way. The Treaty does not say how this was done, nor is itpossible 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 ofthe longer coastal front. The relevant coast of Greenland was measured as some504 km and that of Jan Mayen some 55 km giving a ratio of approximately 9:1

25 J.I. Charney, op. cit., supra note 8, Vol. III, Report 9–3 (5), pp. 2471–2486.26 J.I. Charney, op. cit., supra note 8, Vol. III, Report 4–8, pp. 2279–2291.27 Ibid., Vol. III, Report 9–19, pp. 2507–2525; and I.C.J. Reports 1983, p. 38.


in Greenland’s favour. The court considered that this marked disparity incoastal lengths required it to be taken into consideration during the process ofdelimitation. The final result was an adjustment of the median line towards theshorter coast of Jan Mayen that averaged some 27M. However, this adjustmentwas not uniform as it was in the Malta/Libya case. The adjustment ranged from41M in the south to nil in the north of the boundary. The distance apart of thecoasts was also relevant. The closest point on the east coast of Greenland to thewest coast of Jan Mayen is some 254M. The Court therefore had a considerablearea 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 alarger group of islands, where the difference in coastal fronts was considered tobe significant. The Faeroe Islands are a closely knit group of islands that form aroughly triangular formation, whereas the United Kingdom coast comprised theShetland Islands, the Orkney Islands, the north coast of Scotland and islands tothe west. The total length of the relevant United Kingdom coast is considerablylonger than the relevant coast of the Faeroe Islands. However, the coasts arecomplex and the resulting Agreement is in most part an equidistance solutionwith some basepoints clearly discounted in the central section of the boundary.Again the coasts are fairly far apart, between 155M and 180M, so both Partieshad ample room to adjust the boundary towards the shorter coast if this wasconsidered appropriate. It clearly was not and the resultant boundary does notappear to have taken into account the disparity of the coastal lengths to anyappreciable extent.

m) Equatorial Guinea – Nigeria – 200029

This bilateral Agreement is between the mainland coast of Nigeria and theIsland of Bioko, a part of Equatorial Guinea. The relevant mainland coast ofNigeria is considerably longer that the west facing coast of Bioko giving a ratioof 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 thecoastal front difference; rather they applied the use of licensing practicebetween the Parties to provide an equitable result. The agreed line does in factlie slightly closer to Equatorial Guinea than to Nigeria. However, this reflects

28 J.I. Charney, op. cit., supra note 8, Vol. IV, Report 9–23, pp. 2955–2977.29 Ibid., Vol. IV, Report 4–9, pp. 2657–2668.

164 Chris Carleton

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

n) Bahrain – Qatar – 200130

This ICJ case concerning the territorial sovereignty of several contested geo-graphical features and the determination of the maritime boundary between thetwo States was handed down on 16 March 2001. Bahrain is an island State withseveral smaller island features and low-tide elevations that were relevant to thedelimitation of this boundary. The all purpose boundary was both territorial innature and beyond the territorial sea to a boundary with a third State. The Courtgave full weight to the Hawar Islands having assigned their sovereignty toBahrain, but because of their proximity to the Qatar mainland, it is difficult tosee what alternative could have been used. Other small rocks and low-tide ele-vations between the main island of Bahrain and the Qatar mainland werelargely ignored as were the potential effects of other large low-tide elevationfeatures and the small islet of Qitat Jaradah. The Court did however takeaccount of other small island features towards the southern part of the territorialsea boundary, perhaps indicating that these small island features should have abearing 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. Therelevant Egyptian coast is some 199M in length. The relevant Cyprus coast isapproximately 50M in length, giving a ratio of 4:1 in Egypt’s favour. The twoopposite coasts are approximately 189M apart. The agreed boundary is how-ever an approximate median line giving no adjustment for the disparity incoastal lengths, even though there is plenty of sea room for an adjustment to bemade, should the Parties have considered it necessary to achieve an equitableresult.

p) Oman – Yemen – 200432

This is another example of a recently agreed bilateral Agreement where anisland had a major role to play in the final outcome of the boundary. The

30 Ibid., Vol. IV, Report 7–13, pp. 2841–2860, and I.C.J. Reports 2001, p. 40.31 D.A. Colson, op. cit., supra note 8, Vol. V, Report 8–15, pp. 3917–3926.32 Ibid., Vol. V, Report 6–21, pp. 3900–3912.


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

5. THE GENERAL OVERVIEW CONCLUSIONS

From this brief global study of the effect of islands on maritime delimitation itis clear that although islands do play a significant role in the way that maritimeboundaries are delimited they do not attract any special treatment over andabove other geographic features.

Articles 74 and 83 of UNCLOS provide that States shall delimit their conti-nental shelves and exclusive economic zones by agreement on the basis ofinternational law in order to achieve an equitable solution. It is quite clear thatjurisprudence and State practice recognise the requirement to adjust a medianline solution where special circumstances of one kind or another are present inorder to reach an equitable result. What triggers the requirement to adjust amedian line is open to question and is not laid down by any rules except in sofar as the result of the adjustment will achieve an equitable result in the eyes ofboth Parties to the dispute.

Jurisprudence made it clear in the judgment in the North Sea Cases33 thatland dominates the sea. The land, through the coastal front land/sea interfacegives realisation to the extent of dominance of that land front as it extends sea-wards. In other words the longer the coastal front the greater the seaward exten-sion of territory that can be expected. However, the reality in actualdelimitation, both in jurisprudence and State practice is that unless the disparityof 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 aline from Cabo Catoche on the north-eastern coast of the Yucatan peninsula inMexico to the western extremity of Cuba at Cabo San Antonio, thence alongthe southern coasts of Cuba, Haiti, the Dominican Republic and Puerto Rico.


166 Chris Carleton

Thence enclosing the Leeward Islands and Windward Islands, includingBarbados to the mainland of Venezuela at Punta Baja. Thence along the north-ern coasts of South America and the eastern coasts of Central America to CaboCatoche.34 When the Caribbean is described as a whole, it is normal to includethe islands to the north of Cuba, Haiti and the Dominican Republic, namely theBahamas and the Turks & Caicos Islands as being part of the Caribbean.Geographers have some difficulty in deciding how large an area this seacovers.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 partiallyenclosed by and containing within it some 22 sovereign States and some 17Overseas Territories belonging to the United Kingdom, France, the UnitedStates and The Netherlands. As a semi-enclosed sea it falls within UNCLOSPart IX. Article 123 of that Part states:

“States bordering an enclosed or semi-enclosed sea should co-operate with eachother in the exercise of their rights and in the performance of their duties underthis Convention. To this end they shall endeavour, directly or through an appropri-ate regional organisation:

(a) to co-ordinate the management, conservation, exploration and exploitationof the living resources of the sea;

(b) to co-ordinate the implementation of their rights and duties with respect tothe protection and preservation of the marine environment;

(c) to co-ordinate their scientific research policies and undertake where appro-priate joint programmes of scientific research in the area;

(d) to invite, as appropriate, other interested States or international organiza-tions 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 tohave language accepted in what became Article 123 that would have included arequirement to delimit maritime boundaries, but these all proved unsuccessful.36

The title of this paper uses the word “complex” as it applies to island situa-tions. Is it reasonable to assume that the Caribbean delimitation requirement isa “complex island situation?” The fact that there are so many States andTerritories 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 theSea 1982, A Commentary, Vol. III (Center for Oceans Law and Policy, University ofVirginia School of Law, 1995), pp. 354–368.


However, complexity is in the eye of the beholder and can be made up of verymany different factors. Are these factors present in the Caribbean area?

The fact that there are so many States and Territories does not necessarilymake the area complex. As can be seen in Figure 1, the islands in the north andeast all have maritime zones extending to the full limit of 200M into theAtlantic. Many of these island States are of similar size and complexity, partic-ularly in the east. The perception of geographical parity between these Statesshould provide for an equitable delimitation based on equidistance, providedthere is no other overwhelming disparity caused by something other than geo-graphy. The southern Windward Islands made up of St. Lucia, St. Vincent andthe Grenadines and Grenada are all restricted to the west by Aves Island and tothe east by Barbados and Trinidad & Tobago. The central area of the Caribbeanis dominated by the larger islands of Cuba, Hispaniola (Dominican Republicand Haiti), Jamaica and Puerto Rico. They all have boundaries with smallerisland groups and apart from the Dominican Republic and the US island ofPuerto Rico, they are all shelf locked. In other words their maritime zones donot extend to the 200M limit because of the presence of other States. A similar

Figure 1: Caribbean Overview

168 Chris Carleton

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

b) The Generation of Maritime Space

The amount of maritime space that can potentially be generated by the States inthe Caribbean region is generally balanced, but there are a few notable excep-tions. As illustrated in Figure 1, the mainland States of Venezuela andColombia potentially control very large areas within the Caribbean Sea. This iscaused by the presence of small island features that lie well away from themainland territory. Aves Island (Figure 2), a very small Venezuelan island, liessome 297M from the mainland of Venezuela and some 233M from the nearestcoastal Venezuelan island of La Blanquilla.

If this small feature is afforded full weight in maritime delimitations it has thepotential of generating some 10,000 square nautical miles for Venezuela. Thefact that this island is only some 0.0312 square kilometres in size and has nopopulation or economic life, apart from a few Venezuelan Coastguard person-nel housed in a metal cabin (Figure 3) built on stilts sitting off the island’sbeach, may be considered inequitable to the neighbouring States.

The extent of the Columbian maritime space in the Caribbean Sea is greatlyextended by her possession of several offshore islands and smaller reef areas

Figure 2: Aves Island


including the islands of San Andres, and Providencia. These two islands areapproximately 385M from the Colombian mainland coast and generate a con-siderable extra area of exclusive economic zone for Colombia. The sovereigntyof both these islands is under dispute and a case is before the InternationalCourt of Justice – Territorial and Maritime Dispute (Nicaragua v. Colombia).37

States and Territories that are severely restricted in their ability to generate mar-itime space and could be described as geographically disadvantaged includeGuatemala, fronting the Gulf of Honduras and hemmed in by Belize, Hondurasand Mexico; the French islands of St. Martin & St. Bathélémy, the Dutchislands of Saint Maarten, Saba and St. Eustatius, St. Kitts Nevis and the Britishisland of Montserrat. These islands both interact together and are restrictedtowards the south by Aves Island and to the north by the British island ofAnguilla and Antigua & Barbuda. Guatemala is the only mainland State in this sit-uation in the area under discussion and considerable efforts are being made by theOrganisation 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 onlymajor disparities for which they may seek relief are the effects of Aves Island andthe possible effects of territorial sea baselines that are artificial in their nature. TheDutch islands have already relinquished this possibility by agreeing to a medianline 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.

Figure 3: Aves Island—the module

170 Chris Carleton

c) Maritime Boundaries General

Of the 78 maritime boundaries in this area only 21 have been delimited andbrought into force to date (November 2004). A further 2 have been agreed andsigned but are not in force for one reason or another. Two boundary cases arebefore the International Court of Justice (ICJ); they are the Maritime Delimitationbetween 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 isbefore an Arbitral Tribunal brought under the UNCLOS Annex VII arbitrationprocedures.41 Finally, one delimitation is the subject of a facilitation process putin place by the OAS between Guatemala and Belize, with Honduras assisting.42

d) Delimited Maritime Boundaries

(i) Up to 1970The Caribbean has the distinction of having the first maritime boundary to bedelimited beyond the territorial sea. This is the boundary between Venezuelaand the United Kingdom in respect of Trinidad and Tobago, signed on 26February 1942 and coming into force on 22 September 1942.43 This Treaty issignificant for many reasons in addition to the ground breaking delimitation ofmaritime space beyond the territorial sea. The line has been delimited in a prag-matic way and is not a strict median line. The bilateral negotiations includedthe sovereignty issues of the island of Patos, which were settled in Venezuela’sfavour. It was made clear that the description “Submarine Areas” throughwhich the delimitation was effected, only relates to the seabed and not to thewater column. Navigational rights were not affected. It was also made clear inthe Treaty that neither side was to cause pollution to each other’s territorialwaters.

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 anArbitration between Barbados and the Republic of Trinidad & Tobago, Order No. 2, ThePermanent 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 theSubmarine 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.


Perhaps mention should be made of two earlier Agreements. The 1893 SaintJohn-Mariscal Treaty between the United Kingdom (British Honduras) andMexico, not only delimited the land boundary between the two States but alsothe sea area contained within the large bay known as Bahia Chetumal to theopen sea at the north end of Ambergris Cay a distance of some 43M. The sec-ond Agreement concerns Nicaragua and Colombia who signed an agreement in1928 which purported to divide the two territories with the 82°W meridian.This was subsequently denounced by Nicaragua in 1980 and the delimitation ofthis boundary is before the ICJ.44

(ii) 1970sOver 30 years elapsed before a spate of boundaries was delimited in the mid1970s. This series of bilateral delimitation agreements were put in place tosecure tenure of the extended maritime spaces being negotiated in the ThirdUN Conference on the Law of the Sea. It will be noted that the rights to aresource, whether living or non-living, could be said to have triggered thisflurry of boundary negotiations, just as had the requirement of the UnitedKingdom and Venezuela to delimit the Gulf of Paria to secure sovereign rightsover the hydrocarbon resources within the Gulf at a time of severe shortagesduring the Second World War.

Some nine boundary Agreements were agreed in this decade largely betweenthe mainland States of South and Central America in the region and the islandsadjacent to them. The first was the bilateral Agreement between Cuba andMexico45 signed on 26 July 1976 and brought into force on the same day. Theboundary illustrated in Figure 4 is a median line delimiting the exclusive eco-nomic 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 Panamasigned 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 thePacific.

The Caribbean segment itself is in two distinct sections (Figure 5). The firstfrom the land boundary terminal point is adjacent in aspect and follows anequidistant line as far as the point in which the Colombian claimed insular terri-tories known administratively as “Intendencia de San Andrés y Providencia”take effect. The second, under the influence of the insular territories, is a seriesof parallels and meridians, intersecting the median line solution in approxi-

44 ICJ Order, op. cit., supra note 37, p. 13.45 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–8, pp. 565–576.46 Decree Law No. 2 dated 24 February 1977.47 J.I. Charney, op. cit., supra note 8, Vol. 1, Report 2–5, pp. 519–535.

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48 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–1, pp. 463–476.49 Ibid., Vol. I, Report 2–7, pp. 551–563.

mately equal amounts, going approximately east-west. This section can thus bedescribed as a pragmatic solution in sympathy with the median line.

Two further boundaries were negotiated in 1977. Colombia-Costa Rica wassigned on 17 March 197748 (Figure 5) but has yet to be brought into force. Thismay have something to do with the link between the insular claims ofColombia and the use of the 82°W meridian and the neighbouring CentralAmerican States. The boundary could be described as a simplified median linebetween the mainland of Costa Rica and the claimed insular territory ofColombia. 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

Figure 4: The western Caribbean


Figure 5: The south-western Caribbean

Figure 6: The central Caribbean

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States. It is interesting to note that the Haitian closing line across the Gulf ofGonave was ignored as was the United States unincorporated territory ofNavassa Island.

Four boundaries were delimited in 1978. Two further boundaries byColombia with insular neighbours and two by Venezuela again with insular

neighbours. Colombia reached agreement with the Dominican Republic andHaiti within the space of a month, the Dominican Republic on 13 January 1978and Haiti on 17 February 1978 (Figure 7).

Clearly both negotiations were carried out simultaneously with these neigh-bouring States. The boundary with the Dominican Republic, brought into force

Figure 7: The south central Caribbean

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on 2 February 197950 is a median line with a joint scientific and fishing zonestraddling the central part of the line. The western terminal point of the bound-ary is a tripoint with Haiti, again re-enforcing the probability that these twoboundaries were negotiated concurrently. The Colombia/Haiti boundary came

50 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–2, pp. 477–490.

Figure 8: The eastern Caribbean

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176 Chris Carleton

into force on 16 February 197951 and is a simplified median line made up of asingle segment some 65M in length.

The two boundaries negotiated by Venezuela in 1978 were with the UnitedStates and The Netherlands (Figures 7 & 8).

Again these followed the co-ordinated approach to the delimitation of mar-itime boundaries and the definition of maritime space being put forward by theStates of South America during the Third UN Conference on the Law of theSea. The Boundary Treaty between Venezuela and the United States in respectof Puerto Rico and the US Virgin Islands52 was signed on 28 March 1978 andentered into force on 24 November 1980. It is a median line between the insularterritories of the United States and the insular territories off the mainland ofVenezuela and perhaps controversially also giving full weight to the very smallVenezuelan Aves Island, described earlier. The boundary with The Netherlandsalso concerns insular territory but in this case the mainland of Venezuela alsoplayed a major role. The Delimitation Treaty was signed on 31 March 1978 andcame into force on 15 December 1978.53 The fact that this boundary was signedonly three days after the boundary with the United States also suggests thatVenezuela conducted these two boundary negotiations concurrently. Theboundary is between the Netherlands Antilles, made up of the islands ofCuraçao, Bonaire and Aruba off the mainland coast of Venezuela and the smallislands of Saba and St. Eustatius in the Windward Islands to the north of thevery small Venezuelan island of Aves. The boundary is in two segments, thefirst concerning the islands off the Venezuelan mainland coast could bedescribed as an adjusted median line. The boundary between the mainland andthe south coasts of the islands is a simplified median line, but as the boundaryturns towards the north in both the west and the east towards the potentialDutch boundary with the Dominican Republic, the line has been drawn inVenezuela’s favour by moving them both inwards into a north-east and north-west direction. The smaller second segment is a median line giving full weightto all three islands concerned and joins with the United States/Venezuelaboundary at a tripoint. It is clear that the whole boundary was agreed as a pack-age, account being taken of the larger mainland coast against the smaller Dutchislands off the mainland and the fact that the United States had agreed to amedian line solution vis-à-vis Aves Island, even though both the relevant Dutchislands are very much larger and have well established populations andeconomies.

Only one boundary was delimited in the region in 1979: That betweenVenezuela and the Dominican Republic54 (Figure 7) signed on 3 March 1979

51 Ibid., Vol. I, Report 2–3, pp. 491–502.52 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–14, pp. 691–703.53 Ibid., Vol. I, Report 2–12, pp. 615–637.54 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–9, pp. 577–590.


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

(iii) 1980sDuring 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 11February 1980 and came into force on 11 February 1982. The Caribbean sectorof this boundary completes the maritime delimitation requirements of Panamain the region. The adjacent boundary is essentially a simplified equidistanceline joining the land terminal point with the boundary between Colombia andPanama in a single straight line segment. It appears to ignore the islands closeoffshore Panama even though the preamble to the Treaty states that the delimi-tation was effected by “the median line every point of which is equidistant fromthe nearest points on the baselines from which the breadth of the territorial seaof each State is measured in accordance with Public International Law.”

The second boundary delimited by bilateral agreement in 1980 was thatbetween Venezuela and France on behalf of Guadeloupe and Martinique56

(Figure 8). It was signed on 17 July 1980 and came into force on 28 January1983. This boundary again featured Aves Island and although Venezuela failedto achieve full weight for this diminutive feature they did achieve almost fullweight. The two sector boundary, divided by the maritime areas of Dominica, isa meridian at 62° 48 50 W. This was the first boundary that France delimited bybilateral agreement in the area and was to be followed by several others.

One such boundary was the only boundary agreement achieved in 1981, thatbetween France and St. Lucia57 (Figure 8). This boundary was signed on 4March 1981 and came into force on the same day. The boundary is an all pur-pose median line covering both the exclusive economic zone and continentalshelf of both States. It terminates in the west at a tripoint on the recently agreedboundary between France and Venezuela and close to a tripoint with Barbadosin the east.

There was then a gap of some five years until the boundary betweenHonduras and Colombia was signed on 2 August 1986. There is no definitive

55 Ibid., Vol. I, Report 2–6, pp. 537–549.56 Ibid., Vol. I, Report 2–11, pp. 603–614.57 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 toput maritime boundaries in place before the opening for signature of the UnitedNations Convention on the Law of the Sea ended on 10 December 1982, whenthis Convention was opened for signature in Montego Bay, Jamaica. PerhapsStates then took stock of the provisions contained within this Conventionbefore proceeding with further boundary agreements. The Honduras-ColombiaAgreement58 (Figure 5) was not ratified until 30 November 1999 and where-upon caused much alarm in the Government of Nicaragua.59 The boundary, thefirst in the region to be agreed following the opening for signature of UNC-LOS, has several interesting features. The first two segments of the line followa parallel of latitude at 14° 59 08 N for approximately 120M, then a meridianof longitude at 82° 00 00 W for 79M before curving around the westernperimeter of the cays on the Serranilla Bank. The position and use of the paral-lel of latitude and the use of the 82° meridian of longitude probably indicatessome acceptance by Honduras of Colombia’s position regarding the maritimespace appertaining to Colombia and Nicaragua, hence Nicaragua’s protest note.

The final two boundaries agreed in the 1980s again concerned France andVenezuela. France signed a bilateral Agreement with Dominica on 7 September1987 (Figure 8), which came into force on 23 December 1988.60 This was thefirst boundary agreement in the eastern Caribbean relying upon the rules andprinciples of international law as they were expressed in the 1982 Convention.The boundary is essentially a median line adjusted to take account of equitableprinciples. A true median line would have “cut off” the maritime spaces ofDominica as they extended to the east into the Atlantic and the line wasadjusted to allow Dominica relief for this aspect and enable her to claim a full200M in this area. The boundary is in two parts, the northern sector with theFrench island of Guadeloupe and the southern sector with the French island ofMartinique. The eastern limit of both sectors end at tripoints with the agreedboundary between France and Venezuela (Aves Island). The final boundaryagreed during this decade was that between Venezuela and Trinidad & Tobago61

(Figure 8). This Agreement was signed on 4 August 1989, but never ratified forreasons that will become clear later. The aim of the Agreement was to updatethe 1942 Agreement and to extend this boundary both into the Caribbean andeastwards towards the Atlantic. The boundary appears to have been delimitedusing several parameters to achieve an equitable solution and is an all purposeboundary of some 205M in length.

58 J.I. Charney, op. cit., supra note 8, Vol. I, Report 2–4, pp. 503–518.59 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.


(iv) 1990sThe 1990s were again a productive decade for the delimitation of maritimeboundaries in the Caribbean region. Some eight boundaries were agreed. Onewas a consolidation of previous agreements with only an extension being newand a further five concerned the United Kingdom in respect of its OverseasTerritories and the United Sates in respect of Puerto Rico and the US VirginIslands. Little progress was achieved by the independent island States of theregion with the notable exception of Jamaica.

Venezuela and Trinidad & Tobago completed their bilateral maritime delimi-tation negotiations with the signature of a Treaty covering all their respectivemarine and submarine areas62 on 18 April 1990 (Figure 8). This Treaty enteredinto 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 incorporatedthe earlier Agreements of 1942 and 1989 and extended the boundary into theAtlantic area beyond 200 nautical miles. It appears to ignore the maritime areasof 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 UnitedKingdom in respect of the British Virgin Islands and the United States ofAmerica in respect of Puerto Rico and the United States Virgin Islands signed abilateral 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 turningpoints, simplified from 125 points, extending into the Atlantic to the 200 nauti-cal mile limit and terminated at a tripoint between the UK Overseas Territoriesof the British Virgin Islands and Anguilla and the US Virgin Islands. This tri-point formed the start of a further leg of the boundary between the US VirginIslands and Anguilla (Figure 8). The negotiations for this short all purposeboundary were carried out concurrently with the British Virgin Islands bound-ary and the Agreement was signed on the same day.65 It was also ratified at thesame time on 1 June 1995. The boundary only has one segment just over onenautical mile in length. The third boundary to be delimited in 1993 wasbetween Colombia and Jamaica66 (Figure 6), signed on 12 November 1993 andbrought into force on 14 March 1994. This is an interesting and innovativeboundary delimitation between the cays and mainland coast of a continental

62 Ibid., Vol. I, Report 2–13 (3), pp. 675–689.63 Diplomatic Note No. IR/2001/238 from the Ministry of Foreign Affairs and

Foreign Trade of Barbados to the Ministry of Enterprise Development, Foreign Affairsand 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.

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State and an island State that has archipelagic status, although it would appearthat the latter had little bearing on the calculation of the delimitation line. Theeastern end of the boundary is interesting in that it is designed to link into theboundary agreed between Colombia and Haiti in 1978, but indicating that thiscannot be completed until the boundary between Jamaica and Haiti has beenagreed. In the west the boundary agreement includes a Joint Regime Area(JRA) whose western boundary links into the maritime boundary agreedbetween Colombia and Honduras in 1986 and ratified in 1999. It is clear thatthe Parties either could not or did not wish to assign resource jurisdiction in thisarea but it would appear that Colombia has reserved its sovereignty over thetwo cays that lie within the area. The two cays Serranilla and Low Cays (BajoNuevo) have been assigned 12 nautical mile enclaves and do not form part ofthe JRA. The Treaty does not state specifically who has sovereignty over thesetwo cays but does indicate that the 12 nautical mile enclaves are Colombian ter-ritorial sea.

Only one boundary was successfully delimited in 1994, that betweenJamaica and Cuba67 (Figure 6) signed on 18 February 1994 and ratified on 18July 1995. This all purpose boundary is remarkable in the number of turningpoints that define this relatively short boundary. It is a strict median line usingevery relevant territorial sea base point on both coasts which have generatedsome 106 turning points for a boundary only 175 nautical miles in length. It isclear 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 Britishoverseas territories and French overseas departments. The boundary betweenthe British overseas territory of Anguilla and the French overseas department ofSaint Martin and Saint Barthélemy68 (Figure 8) was signed on 27 June 1996and entered into force on 30 January 1997. Again this is an all purpose medianline boundary some 83 nautical miles in length. It has been simplified on anequal area basis and has only 8 turning points, terminating in the west close to atripoint with the Dutch island of Saba and in the east close to a tripoint withAntigua and Barbuda. The second boundary between the United Kingdom andFrance was between the British overseas territory of Montserrat and the Frenchoverseas department of Guadeloupe69 (Figure 8). This agreement was signedand brought into force on the same dates as the previous UK/France agreementdescribed above. This boundary is once again an all purpose simplified medianline between the two territories some 74M in length. It terminates close to a tri-point with Antigua and Barbuda in the east and at the northern terminal point ofthe France – Venezuela boundary agreed in 1980 in the west. The third bound-

67 Ibid., Vol. III, Report 2–19, pp. 2205–2218.68 Ibid., Vol. III, Report 2–20, pp. 2219–2225.69 J.I. Charney, op. cit., supra note 8, Vol. III, Report 2–21, pp. 2227–2233.


ary to be agreed in 1996 again concerned the United Kingdom. In this instanceit was between the United Kingdom Overseas Territory of the Turks & CaicosIslands and the Dominican Republic70 (Figure 9) signed on 2 August 1996 butyet to be brought into force.

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

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

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

Figure 9: The north-west Caribbean

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182 Chris Carleton

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

(vi) Conclusions on Delimited Maritime Boundaries

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

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

Figure 10: Caribbean overview

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of methods, some of which are pragmatic, or have been significantly adjustedfrom a median line solution. It could be argued therefore that the conditions arepresent in many parts of the Caribbean that have satisfied the equitableness of amedian line solution. This would indicate that geographic parity between Statesis present in many parts of the Caribbean resulting in successful maritimedelimitation. In the delimitations that have been achieved using methods otherthan equidistance, both political will and the requirement for some form ofpolitical expediency has been present to enable the desired result to beachieved. Two boundaries that have been delimited and signed have not beenbrought 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 ArbitralTribunal, Barbados-Trinidad & Tobago, and one has been the subject of facili-tation, Belize-Guatemala. Clearly all these cases have caused considerabledifficulty to the Parties after years of attempting bilateral solutions.

f) Mainland States

Bilateral maritime boundary negotiations are being carried out by severalStates in the region with varying degrees of success. The mainland States bor-dering the region have in the most part been successful in achieving acceptablemaritime boundary agreements. Mainland Venezuela only has the boundarywith Colombia to complete, although this poses difficulties in the entrance tothe Gulf of Venezuela. Apart from this boundary Colombia will have completedall its delimitations once the International Court gives its judgment on theNicaraguan boundary. Nicaragua has not delimited any of its Caribbean bound-aries to date. As has been stated, two are before the ICJ and the boundary withCosta Rica has yet to be delimited. It is presumed that this will only be takenforward once the ICJ has given its judgments. Honduras has only delimited oneof its boundaries in the Caribbean, that with the Cayman Islands. The boundarywith Nicaragua is before the ICJ and the boundaries with Guatemala, Belizeand perhaps Mexico are tied up with the Belize-Guatemala boundary issues.This just leaves the relatively short boundary with Cuba to be delimited, whichshould not pose too many difficulties. The Guatemala – Belize boundary situa-tion is challenging. Guatemala is a geographically disadvantaged State andtogether with the significant sovereignty issues involved it will require consid-erable political will by all Parties to reach agreement. As has been previously

184 Chris Carleton

discussed, the Organisation of American States has been active in this mattersetting up a facilitation exercise with the active participation of Honduras andthe United Kingdom. Apart from the boundaries with Guatemala andHonduras, Belize also has a maritime boundary with Mexico that was partiallyagreed in 1893.72 The maritime section of this boundary runs as a series of par-allels of latitude and meridians of longitude from the termination point of theland boundary, through the Baya Chetumal to the open ocean at the straitnamed Boca Bacalar Chica, lying between the Mexican mainland of theYucatan Peninsula and Ambergris Cay. A further Convention was signed by thetwo governments on 7 April 1897 in which Article 3 states:

“Her Britannic Majesty guarantees to Mexican merchant vessels in perpetuity theabsolute liberty, as at present enjoyed, of navigating the Strait opening to the southof Ambergris Cay, otherwise known as the island of San Pedro, between this cayand the mainland, as well as of navigating the territorial waters of BritishHonduras.”

Modern international law of course ensures a right of innocent passage for allvessels 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 aCommonwealth of the United States. All these island States have outstandingmaritime boundaries to delimit, although it can be observed that several havebeen fairly successful in achieving delimitation successes to date. Cuba has theshort boundary with Honduras to delimit and two far larger boundaries with theBahamas and the British overseas territory of the Cayman Islands. Haiti hasbeen the least successful in this group with only one boundary delimited todate. Outstanding boundaries remain with the Bahamas, the British overseasterritory of the Turks & Caicos Islands, the Dominican Republic and Jamaica.There is also the possibility that a boundary with the United States may berequired if it maintains sovereignty over the unincorporated territory ofNavassa Island. However, Haiti does not recognise US sovereignty over thisisland. Once the government of Haiti is in a position to re-engage in boundarydelimitation negotiations it is not envisaged that there should be too muchdifficulty in making progress on the remaining undelimited boundaries. The

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


Dominican Republic has successfully completed its boundaries to the south buthas not progressed very far with its remaining boundaries. An Agreement wassigned with the British overseas territory of the Turks & Caicos Islands, but thisAgreement has not been ratified to date. The reason for the delay in bringingthis boundary into force is not known but it certainly is not through any prob-lem in either the Turks & Caicos Islands or the United Kingdom. The remain-ing two boundaries with Haiti and Puerto Rico do not appear to have anyparticular difficulty. This latter boundary will be the last boundary that theUnited States will have to delimit in respect of Puerto Rico. Jamaica has beenfairly active in maritime boundary delimitation. Following the two successfuldelimitations with Colombia and Cuba negotiations have been going on inter-mittently for some time with the United Kingdom in respect of the CaymanIslands. Agreement has not been reached as yet and questions over the validityof using archipelagic baselines in the delimitation process continue to remain adifficulty. The two boundaries in the south concerning Honduras and possiblyNicaragua will have to await the judgment of the ICJ in the Honduras-Nicaragua case. The final boundary in the east with Haiti also has the problemof the status of Navassa Island. Until this is clarified and until the governmentof Haiti is in a position to continue the boundary negotiation process, delay willinevitably occur.

h) Small Island States

There are some nine small island States within the Caribbean Region and aboutten island States that are overseas territories of the United Kingdom, the UnitedStates, France or The Netherlands. Of the independent island States onlyTrinidad & Tobago, Dominica and St. Lucia have successfully completedboundary negotiations to date, although several have begun negotiations. Theoverseas territories of the metropolitan States have been more successful. Thisis undoubtedly because of the greater resources of expertise within these Statesand a political programme of boundary negotiation that has been carried out.The boundary between the British overseas territories’ of Anguilla and theBritish Virgin Islands has been negotiated and agreed and just awaits announce-ment by the two Governors (see Figure 8). This is an example of UnitedKingdom legal and technical expertise being made available to these two smallterritories to assist them in reaching agreement.

Many of these island States are situated within the Windward and LeewardIslands of the eastern Caribbean and form a fairly complex mix of geographicareas. This complexity is exacerbated by the presence of the small Venezuelanisland of Aves and the uncertainty of its status regarding the delimitation ofboundaries. The United States and the Netherlands both gave full weight to thisisland in their boundary agreements, possibly as part of a wider overall

186 Chris Carleton

Agreement concerning their boundaries and other political considerations. Thetwo French boundaries have given approximately three-quarter weight to thisfeature in the boundary Agreements on behalf of Guadeloupe and Martinique.This has left a problem for the remaining Caribbean States and OverseasTerritories 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, wherethe question of which maritime zones a small island, that cannot sustain humanhabitation or have an economic life of its own, can generate is contained inArticle 121, paragraph 3. The Organisation of Eastern Caribbean States(OECS) attempted to co-ordinate a common approach to this problem amongits member States, but no progress has been achieved. It would appear thatVenezuela is not in any rush to enter into negotiations and it would seem thatthere is no particularly valuable resource in this part of the Caribbean toencourage more rapid progress.

The islands of the Windward and Leeward chains generally form a geo-graphic balance between each other and boundaries broadly based on equidis-tance should provide the required equitable result in most cases. There arequestions over the effect, if any, of the use of archipelagic baselines in thedetermination of maritime boundaries as there are in other parts of theCaribbean, but this should not be an insurmountable problem. They key toprogress is the political will to advance the generation of settled maritimeboundaries.

One of the key difficulties is the provision of legal and technical expertise inthis area. Very few small island States and indeed some of the larger Stateswithin the region, have this resource. As stated above, the OECS attempted tohelp in this area in the 1990s and more recently the President of Mexicolaunched an initiative in the form a series of conferences and the provision of asecretariat on the furtherance of maritime boundary settlement73 in theCaribbean region as a whole. There have been two conferences to date in May2002 and October 2003. Although this initiative is to be applauded, it is tooearly to judge whether it will prove to be successful.

7. CONCLUSIONS

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

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


concerning the continental States of South and Central America. This may havebeen due to the concurrent Third United Nations Conference on the Law of theSea and the desire of States to confirm their maritime space prior to any firmrecommendations concerning the delimitation of maritime boundaries that mayhave been forthcoming on the conclusion of the Conference and the openingfor signature of UNCLOS. The 1980s was a quieter period, but again domi-nated by the mainland States. France was active in the eastern Caribbean withagreements with Venezuela, St. Lucia and Dominica. The 1990s saw a resur-gence of Agreements, but once again the metropolitan States were largelyresponsible. The United Kingdom alone delimited five boundaries during thisperiod. Of the independent States in the region, perhaps Jamaica was the mostsuccessful succeeding in reaching agreement with both Colombia and Cuba.Since the 1990s progress has been depressingly slow. It is difficult to pinpointthe reasons, but it would seem clear that all concerned, in particular the smallernations have more urgent matters on their agendas. Political priorities funda-mentally changed in September 2001 and this has affected the nations of theCaribbean as well as the rest of the World. With limited resources and exper-tise, 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 achievemaritime boundary solutions, without which no progress can be made. Thismaybe because without large natural resource potential in the easternCaribbean in particular, the priorities to settle definitive maritime space is lessof a priority than many other pressing requirements.

In those areas where considerable difficulties have been experienced in thesuccessful delimitation of maritime space, and where there has been politicalexpediency to settle the disputes, some States have resorted to third Party adju-dication. The two cases before the ICJ and the one Arbitration case currentlytaking place will settle these difficult areas. It is also to be hoped that progresscan be made on the difficult issue of the Guatemala – Belize boundary, after theconsiderable efforts by the Organisation of American States and Honduras.

The general trend for a median line based solution for the Caribbean areareflects a general world-wide trend in this direction. Where general geographicparity is apparent, and without any pressing external reason to unbalance thesituation, this type of solution would seem to be extremely sensible. Clearlythere are certain situations that are found in the Caribbean region that will needto be addressed in order to achieve equitable maritime boundary solutions. Thequestion of Aves Island and its effect on boundary solutions and the status ofthe use of archipelagic baselines in the negotiation of maritime boundaries aretwo 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 beenexperienced in delimiting a single line, has been utilised in two areas within theregion under discussion and in one area just beyond the borders of theCaribbean, namely Barbados – Guyana. It can be expected that this temporarysolution will probably be used in the future within the region.

188 Chris Carleton

The possibility of the joint management and control of the exclusive eco-nomic zones (EEZ) and extended fishery zones in the region has been discussedbut very little progress has been achieved. This is disappointing because thesharing of expertise and costly control assets would seem to be a sensible stepin both building confidence measures between the neighbouring States and eco-nomically sharing these valuable human and material resources.

The Caribbean is a complex combination of mainland and island States sur-rounding a semi-enclosed sea. The progress of delimiting this area during thelast three decades during a time of considerable development within inter-national maritime law is impressive, but there is still much to do.

Recent Developments as regards MaritimeDelimitation in the Adriatic Sea

Tullio Scovazzi*

1. THE PRESENT SITUATION

The Adriatic Sea can be considered as a semi-enclosed sea located within a big-ger semi-enclosed sea (the Mediterranean).1 It is bordered by Italy along itsWest coast and by four successor States of the former Yugoslavia (Slovenia,Croatia, Bosnia-Herzegovina and Serbia-Montenegro) and Albania along itsEast coast.

Four maritime boundaries have already been defined in the Adriatic Seathrough treaties concluded by the interested States.2 Two delimitations relate to


189

* 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-EnclosedSeas (Zagreb, Birotechnika, 1988); M. Sersic, “The Adriatic Sea: A Semi-Enclosed Seain a Semi-Enclosed Sea”, in: Cataldi (ed.), La Méditerranée et le droit de la mer àl’aube du 21ème siècle (Bruxelles, Bruylant), pp. 329–347.

2 Another delimitation, the 2002 Protocol between Croatia and Serbia-Montenegroon the Interim Regime along the Southern Border, is mentioned in the decision on theextension of the jurisdiction of Croatia in the Adriatic Sea (see infra, para. 3). Theauthor of this study was however unable to consult the text of the Protocol.

190 Tullio Scovazzi

the territorial sea, namely Italy – Yugoslavia (treaty signed in Osimo on 10November 1975)3 and Bosnia-Herzegovina – Croatia (treaty on the State bordersigned in Sarajevo on 30 July 1999),4 and two to the continental shelf, namelyItaly – 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 ofthe decision by which in 2003 Croatia established an ecological and fishingzone.

2. THE ECOLOGICAL AND FISHING ZONE ESTABLISHED

BY CROATIA IN 2003

The Maritime Code of Croatia, adopted on 27 January 1994,7 includes severalprovisions on the exclusive economic zone (Articles 33–42). These provisionswill become applicable when the Croatian Parliament takes the decision to pro-claim such a zone (Art. 1042). Actually, on 3 October 2003, the Parliament

3 The delimitation is substantially based on equidistance, with some adjustmentsmade in the light of the existence of straight baselines on the Italian side. The partiesalso took into consideration a special circumstance linked to navigation, which is thedesire to guarantee that routes of navigation to and from the port of Trieste would bekept 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, MartinusNijhoff Publishers, 1993), Report 8–7 (2), pp. 1639–1647.

4 This maritime delimitation is to be understood in the light of the very particularcase of the Bosnian coastline which consists in a narrow strip of about 20 km (called theNeum corridor) enclosed between two parts of Croatian territory. The Treaty delimitsthe territorial sea of Bosnia-Herzegovina and the internal maritime waters of Croatia.The method of delimitation is equidistance. See T. Scovazzi, G. Francalanci, “Bosnia-Herzegovina – Croatia”, in: J.I. Charney, R.W. Smith (eds.), International MaritimeBoundaries, 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 howevermodified to give a reduced effect to three Yugoslav islands and one Italian island locatedalmost in the middle of the area to be delimited. See T. Scovazzi, G. Francalanci, “Italy-Yugoslavia (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 SeaBulletin, No. 42, 2000, p. 26, and No. 43, 2000, p. 14.

Maritime Delimitation in the Adriatic Sea 191

adopted a “decision on the extension of the jurisdiction of the Republic ofCroatia in the Adriatic Sea”8 and proclaimed “the content of the exclusive eco-nomic zone related to the sovereign rights for the purpose of exploring andexploiting, conserving and managing the living resources beyond the outer lim-its of the territorial sea, as well as the jurisdiction with regard to marine sci-entific research and the protection and preservation of the marine environment,whereby the ecological and fisheries protection zone of the Republic of Croatiais established as of today” (Article 1). The Parliament also decided that “theimplementation of the legal regime of the ecological and fisheries protectionzone 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 theCroatian zone can be considered as a quasi-exclusive economic zone (or a defacto exclusive economic zone). The missing elements, namely sovereignrights “with regard to other activities for the economic exploitation and explo-ration of the zone, such as production of energy from the water, currents andwinds” (see Article 56, paragraph 1 (a), of the 1982 United Nations Conventionon the Law of the Sea9), seem for the time being devoid of substantial eco-nomic importance.10

Among the reasons stated in the preamble of the Croatian decision the fol-lowing may be quoted:

“Concerned by the fact that the living resources in the Adriatic Sea are seriouslyendangered, Considering the fact that in the past several years the fishing pressureof non-Adriatic and non-Mediterranean States, including the use of the so-calledindustrial vessels, has been growing,

Aware of the fact that excessive exploitation of the living resources of theAdriatic Sea, due to the impossibility of applying the measures for planning,restricting and controlling the fisheries, mostly occurs in the part of the Adriaticunder the high seas regime,

Convinced that the continuation of such practices endangers the sus-tainable management of fish stocks and their sustainable exploitation and that it

8 Text in Croatian International Relations Review, No. 32, 2003, p. 48 (Englishtranslation).

9 Hereinafter: UNCLOS.10 “What Croatia has done is to proclaim some segments of an EEZ [= exclusive eco-

nomic zone], choosing only some of the rights that comprise a full EEZ regime underthe UN Law of the Sea Convention. Some have said that this is 95% of the rights underan EEZ regime, others have stated that Croatia has opted for the main EEZ rights. Thebelief has been swiftly created, especially in certain official Croatian circles, that Croatiahas 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 ofJurisdiction in the Adriatic Sea”, 32 Croatian International Relations Review, 2003, p. 8).

192 Tullio Scovazzi

encourages illegal, unregulated and unregistered fishing and that it is detrimentalto the interests of the Republic of Croatia and all Adriatic States,

Bearing in mind that, according to the definition contained in the United NationsLaw of the Sea Convention (Article 122), the Adriatic Sea is an enclosed or semi-enclosed sea, which, because of its small size, is far more vulnerable to pollutionthan is the case with other seas,

Aware that a disaster, like the one involving the tanker ‘Prestige’, would have adevastating effect on the living resources of the Adriatic and would cause serioussocial 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 willcreate conditions for sustainable fisheries, contribute to efficient prevention of ille-gal, unregistered and unregulated fisheries, and lay foundations for productivebilateral and multilateral co-operation of the Mediterranean States, (. . .)

Taking into account the interests of the Republic of Croatia to preserve traditionalfisheries in the Adriatic as one of the principal preconditions for the development oftourism 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 deci-sion, decided to postpone the implementation of the ecological and fishing zonewith regard to member States of the European Union:

“With regard to member States of the European Union the implementation of thelegal regime of the ecological and fisheries protection zone of the Republic ofCroatia shall commence after the conclusion of the fisheries partnership agreementbetween the European Community and the Republic of Croatia.”

It follows that Croatia does implement the 2003 Decision as from 4 October2004 only with regard to ships flying the flag of a State which is not a memberof the European Union.13

3. QUESTIONS RAISED BY THE CROATIAN ENACTMENT

As regards delimitation with adjacent or opposite States, the 2003 CroatianDecision provides as follows:

11 See also the report of the Croatian Government on the possibilities and effects ofthe extension of the jurisdiction of Croatia in the Adriatic, in: 32 Croatian InternationalRelations 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 non-

member State but linked to economic interests located within a member State (theseships should consider the possibility to opt for the flag of convenience of a EuropeanUnion member State, if any!).


“The ecological and fisheries protection zone of the Republic of Croatia comprisesthe maritime area from the outer limit of the territorial sea seaward up to its outerlimit allowed under general international law. The outer limit of the ecological andfisheries protection zone of the Republic of Croatia shall be determined through thedelimitation agreements with the States whose coasts are opposite or adjacent tothe Croatian coast.” (Article 5)

“Pending the conclusion of the delimitation agreements, the outer limits of theecological and fisheries protection zone of the Republic of Croatia shall temporar-ily follow the delimitation line of the continental shelf established under the 1968Agreement between the SFRY [= Socialist Federal Republic of Yugoslavia] and theItalian Republic on Delimitation of the Continental Shelf, and, in adjacent delimi-tation, the line following the direction of and continuing the provisional delimita-tion line of the territorial sea, as defined in the 2002 Protocol on the InterimRegime along the Southern Border between the Republic of Croatia and Serbia andMontenegro.” (Article 6)14

The 2003 Decision has met with the reactions by Slovenia and Italy, whichhave 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 againstthe 2003 Decision by Croatia as being

“contrary to the general obligation of the Republic of Croatia under internationallaw to refrain from any action that prevents or hinders the final enforcement of anagreed solution concerning the border at sea between the two States. With such adecision the Republic of Croatia has prejudiced the final enforcement of a consen-sual solution to the issue of the maritime boundary between the two countries andencroached on the area in which the Republic of Slovenia exercises its sovereigntyand sovereign rights.”

In a note sent on 8 July 2004 to the UN Secretary-General, Croatia replied asfollows:

“The Republic of Croatia emphasizes that the said proclamation is without preju-dice to the yet to be delimited sea border between the Republic of Croatia and theRepublic of Slovenia. (. . .)

Concerning the question of the delimitation at sea and failing to reach an agree-ment on this issue, the Republic of Croatia has on numerous occasions invited theRepublic of Slovenia to submit the question of delimitation at sea between the twostates 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.

194 Tullio Scovazzi

regard to this issue. Till now the Republic of Slovenia has not accepted the afore-mentioned Croatian proposal.”

Negotiations for an agreement on the delimitation of the territorial sea havebeen carried on by the two countries for several years, until 2001 when a treatyon the State border was initialed. However, it was neither signed nor ratified byCroatia. The lack of any applicable agreement confirms that a dispute is pend-ing between Croatia and Slovenia on the boundary of their territorial seas. Thisdispute, due to the position taken by Slovenia,15 has bearing also on the externallimit of the Croatian ecological and fishing zone.

However, the fact that a maritime boundary with a neighbouring State cannotbe unilaterally delimited does not prevent a coastal State that can do so in itsgeographical situation to establish an exclusive economic zone (or other suigeneris zone). The proclamation of the zone can be unilaterally effected, whilethe delimitation of its boundary cannot.

Until a final agreement or settlement is reached, the limits of the Croatianecological and fishing zone cannot be opposed to the other States concerned.16

Croatia and the neighbouring States are under an obligation to cooperate toreach an agreement in order to achieve an equitable solution (Article 74, para-graph 1, UNCLOS) or to enter into provisional arrangements of practical naturewithout prejudice to the final delimitation (Article 74, paragraph 3, UNCLOS).The provisional nature of the limits set forth by Croatia under the 2003Decision, the one-year period of postponed implementation17 and the readinessto submit the question to an international judicial body are all elements thatshow the spirit of cooperation of Croatia in order to reach an agreement on itsmaritime boundary.

15 See infra, sub-para. c).16 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 thewill of the coastal State as expressed in its municipal law. Although it is true that the actof delimitation is necessarily a unilateral act, because only the coastal State is competentto undertake it, the validity of the delimitation with regard to other States depends uponinternational 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 mechanismsand for possible signing of agreements or making arrangements with interested Statesand the European Communities” (Art. 3 of the 2003 Decision). The period was furtherpostponed as regards member States of the European Union (see supra para. 2).


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 tocoastal States the right to establish exclusive economic zones or other zones offunctional State jurisdiction more limited in scope, in its Part IX it makes referenceto various forms of cooperation among coastal States in enclosed or semi-enclosedseas in situations in which the narrowness of marine spaces affects the claims ofsurrounding States to establish zones of functional jurisdiction beyond their terri-torial sea.

To this end, Article 123 of the 1982 Convention poses on contracting States thatare bordering or not bordering enclosed or semi-enclosed seas, the obligation tocooperate in the management, conservation, exploration or exploitation of livingresources of the sea, in the protection and preservation of the marine environmentand in scientific research, as a solution aimed at guaranteeing the respect of thevarious interests of the coastal States involved, thus in adherence to the spirit of theConvention.

This obligation to cooperate does not cease if a coastal State bordering anenclosed or semi-enclosed basin decides to establish reserved zones of functionaljurisdiction. The above mentioned obligation should consist in the specific obliga-tion 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 withArticle 74 of the 1982 Convention.

The obligation to cooperate is even more evident in cases regarding enclosed orsemi-enclosed basins that are particularly narrow, as is the case for the AdriaticSea, where the proclamation of zones of functional jurisdiction beyond the territor-ial sea involves in a direct manner the interest of neighboring States. In those cir-cumstances the coordination in determining the zone of functional jurisdiction iseven indispensable.”

The meaning of the Italian note is not fully clear. If it meant that States border-ing enclosed or semi-enclosed seas are under a special obligation to cooperatein the fields of fisheries, protection of the environment and marine scientificresearch, this would be a restatement of Article 123 UNCLOS and would havelittle relevance with respect to the determination of maritime boundaries.18

If the note meant that a State bordering an enclosed or semi-enclosed seacannot proceed to establish its exclusive economic zone (or other sui generiszones) 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 thedelimitation of maritime boundaries. But such an obligation comes very clearly fromArt. 74 and Art. 83 UNCLOS.

196 Tullio Scovazzi

and the UNCLOS provisions on the exclusive economic zone (Part V), whichdo not distinguish among different categories of seas. Nor does it appear thatthe States which have established exclusive economic zones (or other suigeneris zones) in enclosed or semi-enclosed seas, such as the Baltic, theCaribbean or the Black Seas and the Mediterranean as well, have acted onlyafter having sought and obtained the permission of their neighbours.19

If the note meant that Croatia did not show enough spirit of cooperation inorder to negotiate with the other Adriatic States on the delimitation of its eco-logical 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 areprovisional in nature and their implementation was postponed for a one-yearperiod to enter into arrangements with interested States and the EuropeanCommunity.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 whichis also shared by Italy and Croatia. The land boundary between Croatia andSlovenia reaches the sea inside the Bay of Piran (a bay within the Gulf ofTrieste). In 1975 the Treaty of Osimo set forth the territorial sea boundarybetween Italy and Yugoslavia, that is the predecessor State of both Croatia andSlovenia.

Due to the geographical situation of the area, if the territorial sea betweenCroatia and Slovenia were delimited on the basis of equidistance Sloveniawould be completely enclosed within the Gulf of Trieste. To enable Slovenia toreach the high seas in the Adriatic and be entitled to its own exclusive economiczone (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 expressedthat in some regions, the proclamation of certain maritime zones foreseen by UNCLOSwould be contrary to certain obligations under international law. It is the Secretary-General’s belief that the rights and obligations under UNCLOS should not be region-dependent and that no additional conditions on the enjoyment by States parties of rightsprovided by UNCLOS should be imposed. Furthermore, States parties are bound torefrain from taking actions that would prevent another State party from enjoying itsrights under its provisions. UNCLOS was not negotiated to correct geographical cir-cumstances” (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).


In protesting against the Croatian ecological and fishing zone, Slovenia madethe following statements (note of 7 November 2003):

“The Republic of Slovenia has a direct territorial exit to the high seas and has theright to declare its own exclusive economic or ecological and fisheries protectionzones. Slovenia has already exercised this right as one of the coastal Republics ofthe former Socialist Federal Republic of Yugoslavia and ever since its dissolution,and consequently has the same right also at present. According to the BasicConstitutional Charter on the Independence and Sovereignty of the Republic ofSlovenia, the Republic of Slovenia, as an independent State, assumed the rights andobligations relating to the territorial sea which were until then implemented withother federal units of the former common State. As a result, the Republic ofSlovenia has preserved the existing Slovenian jurisdiction over the Bay of Piranand a direct territorial exit to the high seas.

The Republic of Slovenia referred the above-mentioned facts and the acquiredrights 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 ofthe Treaty on the State Border. The above-mentioned facts and positions of theRepublic of Slovenia are considered in the Treaty, and the border at sea wasdefined on the basis of Article 15 of the United Nations Convention on the Law ofthe Sea, taking into account the historic title and other special circumstances aswell as the principle of equity. The Treaty thus confirmed the right of the Republicof Slovenia to a direct territorial exit to the high seas, preserving at the same timethe Republic of Croatia’s contact with the Italian Republic.

The preservation of a direct territorial exit to the high seas is in the vital interestof the Republic of Slovenia, and it can therefore not accept and does not recognizeany unilateral measures of the neighbouring State that would prejudice the finalestablishment of the border with the Republic of Croatia. Since the border has notyet been finally established, although it has been defined in the initialed Treaty onthe Common State Border, the unilateral declaration of an ecological and fisheriesprotection zone in the Adriatic Sea by the Republic of Croatia represents a viola-tion of the obligations of the Republic of Croatia under international law. Such adecision prejudices the border at sea and encroaches on the area in which theRepublic of Slovenia exercises its sovereignty and sovereign rights.”

By excluding the possibility of a boundary with Slovenia, the 2003 Decision byCroatia implicitly also excludes that the waters falling under the Slovenian ter-ritorial sea could extend as far as reaching the high seas (or the sui generiszone) 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 sov-ereign State, has never had a direct territorial exit to the high seas not has itacquired one since the dissolution of the former SFRY. Consequently, the Republicof Slovenia has never had its own continental shelf nor has acquired the right todeclare its own exclusive economic zone. The borders between the republics of theformer 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

198 Tullio Scovazzi

United Nations Convention on the Law of the Sea, to which the Republics ofCroatia and Slovenia are both parties. Negotiations on the delimitation of the seaborder have been conducted for several years. No mutually accepted agreementhas been reached, and no treaty has been signed.

The Republic of Slovenia has on numerous occasions clearly stated that it con-siders itself as a State in a geographically disadvantaged position with reference toits inability to proclaim an exclusive economic zone. In its Memorandum on thePiran Bay of 1993, when considering the delimitation issue with the Republic ofCroatia, the Slovenian Parliament confirmed the fact that the Republic of Sloveniabelongs to those States which, because of their geographical position, are not enti-tled to proclaim an exclusive economic zone. In conformity with this position, theSlovenian Maritime Code regulated the legal regime of the internal waters and theterritorial sea of the Republic of Slovenia only, while its final provisions stipulatedthat 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 cir-cumstances remain the same, the Government of the Republic of Slovenia hasrecently changed its position concerning its right to extend jurisdiction and exer-cise the sovereign rights beyond the outer limit of its territorial sea. At the begin-ning of this year, it even amended the aforementioned Maritime Code, now statingthat the Republic of Slovenia has the right to proclaim its own exclusive economicor ecological and fisheries protection zone.

Thirteen years after becoming a sovereign State the Republic of Slovenia hasdecided to change its position and on that basis has protested against the procla-mation 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 pre-tensions to the areas under the sovereignty or sovereign rights of the Republic ofCroatia and are as such contrary to international law and totally unacceptable forthe Republic of Croatia. (. . .) The only way in which the Republic of Slovenia cangain territorial access to the high seas is by crossing the territorial sea of theRepublic of Croatia in front of the Croatian coast.

The United Nations Convention on the Law of the Sea provides adequate reme-dies to situations where States are at disadvantage, but was not negotiated to cor-rect geographical circumstances. In this respect, the Republic of Croatia hasalways been and is ready to cooperate with its neighbours in particular accordancewith 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 thepossibility to extend to the superjacent waters a boundary that had been previ-ously agreed upon only for the continental shelf:

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


“(. . .) in any case the determination, in a temporary manner – implementingArticle 74 of the 1982 Convention – of the limits of the ecological and fisheries pro-tection zone coinciding with the delimitation contained in the 1968 Agreement con-cluded between Italy and the Socialist Federal Republic of Yugoslavia, concerningthe continental shelf, is against Italian interests in the Adriatic Sea. In fact, theautomatic extension of the delimitation of the seabed, agreed in 1968, is not legallywell founded because that limit was agreed on the basis of special circumstancesthat differ from the circumstances to be considered in the determination of superja-cent waters. Furthermore, the 1968 delimitation was agreed in a moment in whichthe notion of the exclusive economic zone was not well defined in the internationallaw of the sea. That automatic extension is against Italian interests because it doesnot take into account the change of relevant geographical circumstances that tookplace after the conclusion of the 1968 Agreement, which implies a consequentialchange of the objective parameter of the median line.”24

In principle, the Italian position seems to be based on solid legal and logicalfoundations. Also in the light of the rules on the interpretation of treaties, itcannot be presumed that a delimitation effected for a certain maritime jurisdic-tional zone can be unilaterally and subsequently extended to another zonewhich did not even exist at the time of the first delimitation. Even though thewording of Article 74 and Article 83 UNCLOS (relating to the delimitation of,respectively, the exclusive economic zone and the continental shelf) is identi-cal, the substantive content of the two provisions is different. What constitutesan equitable solution with regard to the continental shelf and the circumstancesrelevant to it might not be such with regard to the exclusive economic zone (ora sui generis zone) and the circumstances relevant to the latter.

In dealing with this kind of questions, the chronological factor deserves alsoto be taken into careful consideration. In 1968, when the agreement betweenItaly and Yugoslavia was concluded, the notion itself of exclusive economiczone had not yet gained general acceptance in international practice and wassupported only by a certain number of developing coastal States. Until 1975,25

the existence of a customary rule of international law allowing coastal States toestablish an exclusive economic zone was highly uncertain and subject to fierceintergovernmental discussion. How could States which were in that periodnegotiating agreements only for a seabed boundary (especially States which,like Italy, were basically against the notion of an exclusive economic zone) bepresumed to have settled also the boundary for the superjacent waters? Asnoted in the Arbitral Award rendered in 1989 in the case between Guinea-Bissau and Senegal,

24 The last sentence of the passage quoted in the text does not seem clear. Whatchange of relevant geographical circumstances has taken place?

25 When, during the negotiations for the future UNCLOS, also the major maritimepowers accepted the exclusive economic zone as an element of a broader “packagedeal”.

200 Tullio Scovazzi

“à la lumière de son texte et des principes de droit intertemporel applicables, leTribunal estime que l’Accord de 1960 ne délimite pas les espaces maritimes quin’existaient pas à cette date, qu’on les appelle zone économique exclusive, zone depêche 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 evi-dent practical reasons.27 Nor do they deny that, in certain cases, States whichhave concluded an agreement applying to the seabed have also bound them-selves to follow the same boundary if other maritime jurisdiction zones were tobe established in the future. The point is simply that, where an agreement refersto a certain zone (and an intention of the parties to the contrary is not explicitlystated), it cannot be automatically and unilaterally extended to other zones.Such an interpretation would be contrary to the intention of the parties andwould go against the ordinary meaning to be given to the terms of a treaty intheir context and in the light of its object and purpose (see Article 31, paragraph1, of the 1969 Vienna Convention on the Law of Treaties). Although seldom, incertain cases States have concluded two subsequent treaties which provide fortwo different boundaries, depending on the nature of the marine jurisdictionalzones concerned.28

This said, a number of considerations can be added in the light of the specificcircumstances. First, as already pointed out,29 the limits set forth by Croatiaunder the 2003 Decision are provisional in nature and their implementation hasbeen postponed as regards member States of the European Union. Second, Italyshould specify what other limit is more in conformity with the special circum-stances related to the water column. Third, unlike what happens in the case ofanother maritime delimitation concluded in the same period (the 1971Agreement between Italy and Tunisia),30 the 1968 Agreement between Italy andYugoslavia 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).27 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 grantlicenses for fishing in the superjacent waters. But the two activities could conflict.

28 The Agreement between Australia and Indonesia signed on 14 March 1997 pro-vides for a boundary of the exclusive economic zone which is different from the bound-ary established for the continental shelf under the previous Agreements of 8 August1974 and 14 January 1977. The Agreement between the German Democratic Republicand Poland signed in 1989 provides for a single maritime boundary for both the conti-nental shelf and the fishing zone which is different from the boundary established for thecontinental 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.


respect to what would result from the application of a strict equidistancemethod, 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 ofCroatia shall be determined through delimitation agreements with those Stateswhose coasts are opposite or adjacent to the Croatian coast, once they extend theirjurisdiction in accordance with the international law, as well. Pending the conclu-sion of the delimitation agreements, the limits of the Ecological and FisheriesProtection Zone of the Republic of Croatia temporarily follow the delimitation lineof the Continental Shelf between the Republic of Croatia and the Italian Republic,and, in adjacent delimitation, the line following the direction and continuing on theprovisional delimitation line of the territorial sea between the Republic of Croatiaand Serbia and Montenegro.”

In general, the process of unilaterally establishing a provisional delimitationpending a final settlement with the States concerned does not conflict with theobligation to co-operate in the determination of maritime boundaries, providedthat the provisional delimitation does not go beyond what is reasonable in thespecific circumstances. It is however questionable that, as the note by Croatiaseems to imply, the final settlement can take place only after the establishmentof a corresponding maritime jurisdictional zone by the adjacent or opposedStates (in fact, Italy has not yet established either an exclusive economic zoneor a sui generis zone). Neighbouring States, even if they have an “absential”attitude,32 are inevitably affected by questions relating to the legal condition ofthe waters that are claimed by “presential” States and which might pertain totheir potential exclusive economic zone (or fishing zone or ecological zone).They seem thus entitled to negotiate and conclude a final settlement, evenbefore the time they actually proceed to the establishment of their correspond-ing 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 adja-cent or opposed “absential” State.

31 For some different considerations see G. Castaldi, “L’Italia e la delimitazione deglispazi marini – Osservazioni sulla prassi recente di estensione della giurisdizione costieranel 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 ownexclusive economic zones, prefer to remain “absent”.

202 Tullio Scovazzi

4. MOVING TOWARDS CONFUSION?

The impression arising from the general picture is that, from the point of viewof international law of the sea, the Adriatic is a complex region. But the samecan be said as regards the Mediterranean Sea in general. Not only do thornyissues of maritime delimitation remain to be sooner or later addressed by theStates concerned, but also the existence along the shores of “presential”,“absential” and “semi-presential” (or, depending on the point of view, “semi-absential”) States, as regards the question of going beyond the 12-mile limit,does not facilitate the determination of the legal regime presently applying tothe Mediterranean Sea (or the Adriatic Sea) as a whole. It is easy to remark thatthe Mediterranean (or the Adriatic Sea) is undergoing an evolutionary phase oftransition. 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 ofState practice was to proclaim a de facto exclusive economic zone under variousother denominations. Although the legal regime of such zones may well be identicalto 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 confu-sion is entirely avoidable, since there are no legal impediments for any State partythat can do so in its geographical situation to proclaim an exclusive economic zoneand to use the term established in the Convention. As the entities primarily respon-sible for the orderly implementation of the law of the sea regime, States partiesshould make sure that there is no further erosion of rights and obligations, thattheir actions in UNCLOS implementation are sufficiently transparent and that alltheir bilateral problems are dealt with on the basis of UNCLOS through meansprovided by it.”33

It is not clear whether the passage above intends to make an implicit referenceto recent practice in the Mediterranean (or the Adriatic). But nothing in theUNCLOS or in customary international law prevents the establishment of spe-cial (or sui generis) zones beyond the 12-mile limit of the territorial sea, suchas fishing zones or ecological zones, where the coastal States choose to exer-cise only some of the competences to which they are entitled under a full exclu-sive economic zone regime. It is difficult to see how this could become anerosion of rights and obligations granted by the UNCLOS (and to take it forgranted, like in the passage of the report reproduced above, seems an unwar-ranted 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.


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

34 Be it the exclusive economic zone scheme or the fishing zone scheme or the eco-logical zone scheme, a return to an “absential” scheme (that is a high seas regime) doesnot 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 122of the United Nations Convention on the Law of the Sea (LOS Convention), isthe result of long, mostly informal negotiations and compromises, agreed uponat 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 notclarify even the question whether it concerns too categories of seas –“enclosed” and “semi-enclosed” seas – or one, for which either of the twoterms 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


205

* Judge of the International Tribunal for the Law of the Sea 1996–2005 (Vice-President 2002–2005).

1 Definition in Article 122: “For the purposes of this Convention, ‘enclosed or semi-enclosed sea’ means a gulf, basin or sea surrounded by two or more States and con-nected to another sea or the ocean by a narrow outlet or consisting entirely or primarilyof the territorial seas and exclusive economic zones of two or more coastal States.”

206 Budislav Vukas

seven States; it is connected to the central part of the Mediterranean by a nar-row outlet (the Strait of Otranto); it consists primarily of the territorial seas andexclusive economic zones (for the time being: only one ecological and fisheriesprotection zone) of the coastal States. Just in order to simplify the terminologyused in this article, for the Adriatic Sea we will use the term “semi-enclosedsea”.

2. In discussing the rules on “enclosed or semi-enclosed seas” at UNCLOSIII, there were States (Iran, Thailand, Turkey) which insisted in having specificrules on sea boundary delimitation for such seas.2 However, this goal was unre-alistic. The general rules on delimitation were one of the hard-core issues at theConference, and the elaboration of special rules on the delimitation of marinespaces in enclosed or semi-enclosed seas would have been too difficult a taskfor UNCLOS III.

Therefore, the general rules on the delimitation of the territorial sea, the con-tiguous zone, the exclusive economic zone and the continental shelf, adopted inthe 1958 and 1982 Law of the Sea Conventions, apply to all the seas andoceans, whatever their denomination.

3. Taking into account the fact that there are participants from other AdriaticStates in this Symposium, I will limit my contribution to the sea boundarydelimitation of Croatia with its neighbors: Italy, Slovenia, Bosnia andHerzegovina, and Serbia and Montenegro.

II. CROATIA – ITALY

1. There are two treaties on sea boundary delimitation concluded between theSFR of Yugoslavia and the Italian Republic, which even today are relevant forthe delimitation of the sea areas under the sovereignty/jurisdiction of Italy andCroatia: the 1968 Agreement on the Delimitation of the Continental Shelf,3 andthe 1975 (Osimo) Agreement, which delimited the territorial sea of the twoStates in the Gulf of Trieste.4

Both treaties are in force between Italy and the successor States of the SFRof Yugoslavia on the basis of Article 11 of the 1978 Vienna Convention on theSuccession of Treaties, which states that “A succession of States does not assuch 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, “Enclosedand 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 (OfficialGazette of the SFRY, Annex: International Treaties and Other Agreements), No. 28/1970.

4 Ibid., No. 1/1977.

Maritime Delimitation in a Semi-enclosed Sea 207

and the specific geographical situation of these neighboring States, the 1968Agreement continues to delimit the continental shelf between Italy and Croatia(and Serbia and Montenegro) throughout the Adriatic Sea. The 1975 Agree-ment 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 mileslong, and it connected 43 points determined from the end of the line delimitingthe territorial sea between the two States, to a point opposite to the end of thecoast of Montenegro. The delimitation was mostly based on the median linebetween the basic lines from which the territorial sea of Yugoslavia and Italywere measured. Such a solution was in accordance with the 1958 Conventionon the Continental Shelf, according to which the median line was the basicprinciple for the delimitation of the continental shelf between States with oppo-site coasts (Article 6). In order to simplify the delimitation line, the effect of theposition of the Yugoslav islands was reduced, and as a consequence thereofItaly 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-YugoslavAgreement on the delimitation of the territorial sea, only Italy had determinedstraight baselines along its coasts. In determining the delimitation line the twoStates gave only a semi-effect to these straight baselines, and they tried toenable navigation of each of the two States through its own waters.

4. For the time being neither Italy nor Croatia have proclaimed their contigu-ous zones. However, in its Legislative Decree No. 41 of 22 January 2004(Article 94), Italy stated that it protected objects of an archeological and histor-ical nature found on the sea-bed up to 12 nautical miles from the outer limit ofits territorial sea.6 Italy bases this extension on the 2001 UNESCO Conventionon the Protection of the Underwater Cultural Heritage and on Article 303, para-graph 2, of the LOS Convention. This right of the coastal States under the LOSConvention 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 thefuture 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 theCroatian jurisdiction, Italy cannot extend its jurisdiction concerning the protec-tion of archeological and historical objects everywhere up to 12 nautical milesfrom the outer limit of its territorial sea. Namely, in some narrow Adriatic areasthis would mean coming too close to the Croatian territorial sea, and not per-mitting the establishment of equal rights of Croatia, or even overlapping withthe Croatian territorial sea.

5 D. Rudolf, Me¥unarodno pravo mora (Zagreb, JAZU, 1985), pp. 289–291.6 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.

208 Budislav Vukas

However, in the LOS Convention there is no rule on the delimitation of thecontiguous zone of States with adjacent or opposite coasts. Contrary to the1958 UN Conference on the Law of the Sea, UNCLOS III neglected this prob-lem and the voices of some delegations requiring a rule on the delimitation ofthe 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, onehas to apply the rule on delimitation contained in Article 24, paragraph 3, of the1958 Convention on the Territorial Sea and the Contiguous Zone, to which bothStates 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 notmean 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 newConvention. Namely, according to Article 311, paragraph 1, of the LOSConvention, this Convention only prevails “as between States Parties, over theGeneva Conventions . . .”, and it does not prevent the application of the 1958Conventions in respect of issues not dealt with by the 1982 Convention.

Moreover, the regime of the contiguous zone is closely connected to the ter-ritorial sea, and therefore the application of the same basic principle of themedian line to both regimes is logical. In this sense, one of the Italian draftlaws preceding the mentioned 2004 Legislative Decree foresaw the median linedelimitation in case the Italian archeological zone overlapped with a similarzone or the territorial sea of a neighboring country.9

5. Another delimitation problem to be resolved between Croatia and Italy hasbeen created by the establishment of the Croatian “ecological and fisheries pro-tection zone” (EFPZ). This zone, which includes parts of the coastal States’rights contained in the regime of the exclusive economic zone (EEZ), was pro-claimed by the Croatian Parliament on 3 October 2003.10

In addition to the description of the sovereign rights and jurisdiction Croatiaclaims in this zone, the 2003 Decision contains a statement concerning thedelimitation of this zone with neighboring States: Italy, and Serbia andMontenegro.

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, Sveucilisnanaklada 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.


In respect of the final delimitation it has been stated that the outer limits ofthe Croatian zone “shall be determined through the delimitation agreementswith 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 theouter limit of the Croatian EFPZ “shall temporarily follow the delimitation lineof the continental shelf established in the 1968 Agreement between the SFRYand the Italian Republic on the Delimitation of the Continental Shelf ” (point 6).

Italy disliked this statement concerning provisional delimitation, and itobjected to it in a letter sent to the UN Secretariat. It stated that the use of the1968 delimitation line “is against Italian interests because it does not take intoaccount the change in relevant geographical circumstances that took place afterthe conclusion of the 1968 Agreement which implies a consequential change ofthe 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 notbeen catastrophic earthquakes, tsunamis or volcanic eruptions, which wouldhave changed the shape of the Adriatic coasts. Italy probably refers to the polit-ical consequences of the dissolution of the SFR of Yugoslavia, but it is difficultto understand how the establishment of new States within the borders of theformer Yugoslav Federation influences the delimitation interests of Italy in themiddle of the Adriatic Sea.

Anyhow, the Italian objection is a confirmation of its intention to seek adelimitation of the EEZ which departs from the 1968 delimitation of the conti-nental shelf. Yet, it has to be seen in how far Italy could advance relevant andconvincing 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 LOSConvention, Croatia should have mentioned the possibility of concluding provisional arrangements pending the conclusion of the final agreements ofdelimitation.

III. CROATIA – SLOVENIA

1. Since the proclamation of the independence of Croatia and Slovenia (on 25June 1991), the two States confirmed not having any mutual territorial preten-sions. The basis for the delimitation between them had to be the borders whichseparated them as federal units of the SFR of Yugoslavia. This position, basedon 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 theUnited Nations to the Secretariat of the United Nations, New York.

210 Budislav Vukas

Arbitration Commission, entrusted with giving legal opinions to the Con-ference on Yugoslavia, organized by the European Community.12

However, the application of the principle uti possidetis to sea boundarydelimitation was not possible as, contrary to the border on land, delimitationbetween the Republics of Yugoslavia at sea had never formally been deter-mined. Yet, the coastal Republics, and particularly their local administrativeunits/municipalities, were aware of the sea areas in respect of which they werein charge.

2. Already in the early nineties, immediately after the recognition of theindependence of the two States by the European Community, Croatia andSlovenia started organizing meetings of experts in order to determine all thedetails of the land frontier and to establish the sea boundary.

In respect of the delimitation line on land there have not been major prob-lems. The land frontier ends on the mouth of the river Dragonja, in the middleof the shore of the Bay of Piran. The two States disagreed with regard to thequestion whether the channel of St. Odorik or the channel of St. Jeronim repre-sented the border between the two former Yugoslav Republics. Moreover, theydisagreed on the belonging of three villages in this area.

3. As far as sea boundary delimitation was concerned, at the beginning of thenegotiations between the two States (both parties to the 1958 Convention onthe Territorial Sea and the Contiguous Zone and contracting States to the LOSConvention, which at that time was not yet in force), it seemed that there wouldbe 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 beyondthe entrance into the Bay, up to the delimitation line of the territorial sea withItaly.

After a certain period of time, when the two delegations concentrated theirwork on sea boundary delimitation, the representatives of Slovenia demon-strated the first signs of hesitation in respect of the application of Article 15 andits basic principle – the median line. That is why the representatives of the twoStates on several occasions discussed the possibility of establishing their con-dominium in the Bay of Piran (see Map 2).

4. However, a Slovenian document has drastically changed the nature of thediscussions of the two delegations, and has affected the flexibility in their pro-posals and comments. Namely, on 7 April 1993, the Slovenian Parliamentadopted the Memorandum on the Bay of Piran, which indicated the goals ofSlovenia 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¥u-narodno pravo mora i Hrvatska (Zagreb, Barbat, 2001), pp. 553–554.


The Slovenian Parliament stated that the Bay of Piran was a case sui generisto which, on the basis of “a historic title and other special circumstances”, theprinciple uti possidetis should apply. The application of this principle meansthe preservation of the “sovereignty and jurisdiction” of Slovenia over theentire waters of the Bay. The application of the median line, in the opinion ofthe Slovenian Parliament, would be “unjust, unnatural and contrary to the his-torical and present realities in the Bay of Piran”. Outside the Bay, in delimitingthe territorial sea with Croatia, special circumstances should be taken intoaccount, and particularly the fact that Slovenia is a geographically disadvan-taged State not having the possibility of claiming an EEZ of its own.

The Memorandum also mentioned the necessity of establishing a narrowoutlet, which would be a link between the territorial sea of Slovenia and thehigh seas in the Adriatic Sea, in order to ensure the connection of Slovenia withthe rest of the world, and particularly the continuation of the freedom of fishingfor the Slovenian fishermen on the Adriatic high seas.

Although the idea of that unnecessary corridor has become the stumblingblock in the following negotiations with Croatia, in the present brief paper, ded-icated exclusively to delimitation, I will neglect this proposal, as well as all theother arguments and documents concerning navigation and fisheries as far asthey do not directly influence the problem of delimitation.

5. A formal response of the Croatian Parliament came only in 1999.14 It sawno special circumstances in favor of Slovenia, which would prevent the appli-cation of the median line delimitation in the Bay of Piran, and beyond itsentrance. Due to the many years wasted in the negotiations and politicaldebates, it suggested to request an advisory opinion from the InternationalTribunal for the Law of the Sea (ITLOS) or some other competent internationalinstitution.

6. Instead of trying to find a way for requesting an advisory opinion from theITLOS, the two States agreed in 1999 to seek the help of the former Secretaryof Defense of the USA, Mr. William Perry. As his role was not to propose to thetwo States his own ideas concerning their delimitation but just to encourageand help with his presence the discussions of the two States, his mission couldbe qualified as “good services”.

However, instead of coming closer, the two neighboring States tried to findnew arguments for their positions. Slovenia introduced a new argument, goingbeyond the limits of the law of the sea. Namely, it insisted in qualifying all theproblems it faced in respect of the delimitation of the sea areas, and the uses ofthe sea, as problems of succession of the SFR of Yugoslavia. As a consequenceof 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 Croatiaand the Republic of Slovenia, adopted by the House of Representatives of the CroatianParliament 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 coastalStates and their territorial sea, and suggested solutions concerning delimitationand navigation which would preserve the rights it enjoyed as a YugoslavRepublic.

On the other hand, it continued to consider the entire Bay of Piran asSlovenian internal waters. It advanced a variety of arguments supporting thisstrange claim: the former cadastral boundaries, the Slovenian nationality of theinhabitants in the coastal areas, its efforts in the protection of the marine envi-ronment, etc.15

In defending its rights as a coastal State in the Bay of Piran, Croatia claimedthat Article 2 of the LOS Convention, which extends the sovereignty of thecoastal 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 nat-ural relation in respect of the adjacent waters, as it is only the coastal State thatis in the position to regulate and control navigation in the vicinity of its coasts,to protect the marine environment from land-based sources, etc. Croatianauthorities have always been engaged in all such activities in the southern halfof the Bay of Piran.17

Croatia showed no sympathy for the Slovenian innovative approach to Statesuccession, according to which the Adriatic problems should be resolved as asubject 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 peremptorynorm, but only a dispositive rule. Moreover, it considered that it could unilater-ally depart from its application in the Bay of Piran.19

However, Croatia was ready to depart from the application of the medianline in favor of Slovenia in the delimitation of the Bay of Piran or, as an alter-native solution, to agree on a condominium of the two States.

As the positions of the two States were not coming closer, the meetingsunder the chairmanship of Mr. Perry came to an end.

7. On 20 July 2001, the misunderstanding between the two States reached anew level, when their representatives initialed a draft treaty on land and seafrontiers. Namely, concerning sea boundary delimitation, the draft containedunusual solutions.

As far as the Bay of Piran was concerned, Slovenia had to gain 80% of itssurface, and Croatia 20%. For unknown reasons, the line delimiting the waters

15 Republic of Slovenia, Ministry of Foreign Affairs, Positions of the Republic ofSlovenia on the Delimitation of the Maritime Boundary between the Republic ofSlovenia and the Republic of Croatia, June 1999.

16 Republic of Croatia, Ministry of Foreign Affairs, Positions of the Republic ofCroatia 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.


of the two States in the Bay had not to be continued in the direction of the com-mon border with Italy, but for that delimitation a parallel was used. This solu-tion would have given to Slovenia a significant part of the Croatian territorialsea.

A specific component of the draft treaty was a corridor, which had to crossthe territorial sea of Croatia off the coasts of Western Istria. The surface of thecorridor had to be under the regime of the high seas. As I limit my comments todelimitation problems, I will not discuss neither the complicated legal natureforeseen 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 theCroatian territorial sea, close to the delimitation line with Italy, from the rest ofthe Croatian territorial sea!

However, the two Governments have not undertaken any further steps inrespect of the draft treaty containing such strange provisions on the sea areasbetween Slovenia and Croatia. When the Croatian experts and the general pub-lic were informed about the proposed solutions, the Croatian Government didnot dare to continue the process of the conclusion of the treaty; it has neverbeen signed and/or ratified. Nevertheless, some Slovenian commentators con-sider the 2001 draft treaty as an existing international legal instrument deter-mining the maritime border between the two States.

8. A new disturbing element in respect of the delimitation with Croatia hasbeen felt by Slovenia since the establishment of the Croatian EFPZ. Namely, aswe have already seen, the Croatian 2003 Decision on the EFPZ only mentionsthe delimitation with Italy and Serbia and Montenegro. Slovenia has not beenmentioned because it is separated from the area of the Adriatic Sea which hasbeen included in the Croatian EFPZ by the Croatian territorial sea. However, ina letter to the Secretary-General of the United Nations which has to be consid-ered as a misinterpretation of the law of the sea, of international rules on suc-cession and of the law of treaties, Slovenia “protested against the unilateraldeclaration” of an EFPZ, and added the following:

The Republic of Slovenia has a direct territorial exit to the high seas and has theright to declare its own exclusive economic or ecological and fisheries protectionzones. Slovenia already exercised this right as one of the coastal republics of theformer 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 remindthe readers of the already quoted 1993 Memorandum adopted by the SlovenianParliament, where it was said that “Slovenia is a geographically disadvantagedState, 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.

214 Budislav Vukas

own” (emphasis added).21 As in the meantime there have not been dramaticchanges in the configuration of the coasts in the Gulf of Trieste, this change ofthe position concerning the Slovenian EEZ can be explained as a wishful think-ing on the basis of the misinterpretation of the law on State succession and theeffect of the corridor proposed by Slovenia.

9. As I have already qualified the idea of the sovereignty of only one coastalState over the entire waters of the Bay of Piran as unsound and contrary to aperemptory norm of international law, I must also express my disagreementwith the claim that there was no delimitation at all between Slovenia andCroatia during their co-existence in the Yugoslav Federation. Namely, through-out the 45 years of the existence of that Federation, the southern part of the Bayof Piran was controlled by Croatia, and the northern by Slovenia.22 This divi-sion has been confirmed by many documents issued by both States, and by amultitude 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 maritimeincidents the Croatian authorities were called by the Slovenian authorities tointervene in the southern part of the Bay. The Croatian and the Slovenian fisher-men limited their activities to the sea areas separated by an approximatemedian/equidistance line.

Such a long tradition of a divided use and control of the Bay of Piran in thepast in fact means that nowadays, in applying the principle uti possidetis, thetwo States should use the median line as a provisional delimitation line. Ofcourse, they are free to negotiate another delimitation but, in accordance withArticle 15 of the LOS Convention, none of them is entitled unilaterally todepart from the median line.

10. Simultaneously with the negotiations, and particularly after their sever-ance and the beginning of purely political comments, there were also sugges-tions to submit the delimitation dispute to a settlement of dispute procedure.After the failure of the mission of Mr. William Perry, various internationalcourts and tribunals have been mentioned. However, the procedures entailingbinding decisions, listed in section 2 of Part XV of the LOS Convention, cannotbe unilaterally initialed. Namely, in selecting arbitration under Annex VII to theConvention for its disputes, in accordance with Article 298, paragraph 1,Slovenia excluded disputes concerning sea boundary delimitation from theapplication of the procedures listed in section 2. On the contrary, Croatia makesno exception to the application of procedures entailing binding decisions, fromwhich it has selected ITLOS as first and the International Court of Justice assecond option.

Anyhow, it is to be hoped that the two neighboring States will not permit a

21 See supra p. 5.22 V. Ibler, op. cit., supra note 13, pp. 182–184.


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

IV. CROATIA – BOSNIA AND HERZEGOVINA

1. The Republic of Bosnia and Herzegovina has an extremely short coast (10km), which is situated behind several Croatian islands and the Pelje·ac penin-sula, which means landward from the straight baselines, from which thebreadth of the Croatian territorial sea is measured.

The present outline of the coast of the Republic of Bosnia and Herzegovinais a result of the Peace Treaty concluded in Srijemski Karlovci on 26 January1699 between the Republic of Venice and Turkey, and the Peace Treaty con-cluded in PoÏzarevac on 21 July 1718 between Austria, Turkey and the Republicof Venice. However, according to these treaties, Turkey was granted the sover-eignty over the area Neum-Klek, but not over the coastal waters!23 Of course,during the existence of Yugoslavia, Bosnia and Herzegovina was considered tohave jurisdiction over the waters along its coasts. However, not having a com-mercial port of its own, Bosnia and Herzegovina has always used the Croatianports, 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 seaareas. On 30 July 1999 they concluded the Treaty on State Frontier between theRepublic of Croatia and the Republic of Bosnia and Herzegovina. The Treatyhas been provisionally applied since the day of its signature but it will enterinto force only when several detailed instruments necessary for its applicationwill be elaborated.

Using the method of the median line, Bosnia and Herzegovina has beengranted 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 consid-ered as internal waters of Bosnia and Herzegovina, and the waters along thecoasts of Klek as territorial waters of that State (see Map 3).

However, the question remains whether the waters of Croatia delimited by theterritorial sea of Bosnia and Herzegovina can continue to be considered as hav-ing the legal status of internal waters. Tullio Scovazzi and Gianpiero Francalanciaccept such a result of the delimitation inside the internal waters of Croatia.24

23 Ibid., p. 189.24 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.

216 Budislav Vukas

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 (todaycalled: the Community of Serbia and Montenegro) concluded the Protocol onthe Interim Regime along the Southern Border between the Two States (seeMap 4).

For unknown reasons, a demilitarized zone has been designated only alongthe coasts of Croatia, west of a straight line connecting Konfin (the point wherethe land frontier between Croatia and Montenegro reaches the sea), and thepoint three cables from the Cape O·tro to the south. Police and military forcesof the two States are excluded from the sea west of that line, and only policevessels with mixed crews of the two states shall protect the security of naviga-tion and monitor the application of the regime established by the Protocol. TheProtocol contains also detailed regulations on “sport and/or recreationalfishing” (no commercial or part time fishing is permitted), on the co-operationbetween the two States with regard to the search and rescue efforts at sea, onthe 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 theentrance in the Hercegnovski Gulf. The “temporary delineation of the territorialsea shall proceed from the point three cables away from Cape O·tro at the junc-tion Cape O·tro – Cape Veslo in a straight line of 12 nautical miles along theazimuth 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 anyproblem in its implementation.

It has been stated that the solutions contained in the Protocol, “as well as itsimplementation, shall not in any way prejudice delimitation between the twoStates” (Article 2). This is a sound provision as, according to the Croatianexpert Mr. ÒZelimir Seissel, in applying Article 15 of the LOS Convention insidethe Hercegnovski Gulf, there is no reason for departing from the median linedelimitation. According to the same author, the natural entrance points to theGulf are Cape O·tro and Lastavica Island (ÒZanjica Vela), and the delimitationof the territorial sea and continental shelf (and the EEZ) of Croatia andMontenegro should start from the line joining these two points.25

4. As it has already been said, in the 2003 Decision establishing its EFPZCroatia stated that the provisional delimitation line between this Croatian zoneand the sea beyond the outer limits of Montenegro shall follow the direction of

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


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

218 Budislav Vukas

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Some Thoughts on the Extension of ExistingBoundaries for the Delimitation of NewMaritime Zones

Irini Papanicolopulu*

1. ORIGINS OF THE PROBLEM

The first attempts of States to claim jurisdiction over, respectively, theresources of the seabed and subsoil and those of the water column outside theouter limit of the territorial sea, date back to the same period. The Trumanproclamation concerning the continental shelf was adopted in 1945 and theLima Declaration on the maritime zone was adopted in 1952. Continental shelfrights, however, were recognised some time before the rights over the livingresources situated in the superjacent waters.

The notion of the continental shelf was in fact accepted, and the relevantrights attributed to the coastal State, during the First United NationsConference on the Law of the Sea, held in Geneva in 1958, and were conse-quently inserted in the Convention on the Continental Shelf adopted there.1

Eleven years later, in 1969, the International Court of Justice seemed to recognise


223

* Researcher, University of Milano-Bicocca, Italy. E-mail address: [email protected]

1 Convention on the Continental Shelf, UNTS, vol. 499, p. 311.

224 Irini Papanicolopulu

that provisions regarding the rights of a coastal state over its continental shelfwere part of customary international law.2

On the other hand, in 1974 the same Court did not consider that coastal Staterights 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 Seathat these rights were recognised and became part of the regime of the exclu-sive economic zone, as contained in Part V of the 1982 United NationsConvention on the Law of the Sea (UNCLOS).

This explains why States have generally begun delimiting their continentalshelves 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 onlywith the acceptance of this latter zone, and especially after the effective cre-ation of such zones.

The dilemma has therefore arisen, concerning the applicability of a boundaryrelating to the seabed to the delimitation of the superjacent waters, once thecoastal States asserts jurisdiction over them. The aim of this paper is to con-sider if there are any rules of international law on the issue and what their con-tent is. Since the UNCLOS does not address this issue at all, it is tointernational practice (as embodied in treaties and international decisions) thatthe 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 provi-sions in a continental shelf delimitation agreement. This may happen if one ofthe parties or both are already planning to establish an exclusive economiczone. An example of this solution is provided by the delimitation betweenBurma (the former Myanmar) and Thailand. The delimitation agreemententered into force in 19804 delimits the territorial sea and the continental shelfof 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).3 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 Delimitationof 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,

Some Thoughts on the Extension of Existing Boundaries 225

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

The year following the adoption of this agreement, and before its entry intoforce, Thailand proclaimed its own exclusive economic zone and successivelyconfirmed that the boundary for this zone coincided with that of the continentalshelf provided for in the 1980 agreement.6

The same solution was adopted by Belgium and the Netherlands in their1996 agreement concerning the delimitation of the continental shelf.7 Afterdescribing the course of the continental shelf boundary, the agreement providesthat:

“In the event that one of the Contracting Parties decides to create an exclusiveeconomic zone, the coordinates given in article 1 [for the delimitation of the conti-nental shelf] shall be used for the lateral delimitation of such a zone.”8

Both Belgium and the Netherlands proclaimed an exclusive economic zone in1999. The lateral limits of the two zones, which are indicated by the respectiveinternal laws, coincide with the 1996 boundary of the continental shelf.

In both cases examined above it is probable that the application of the seabedboundary to the delimitation of the superjacent waters was rendered easier bythe fact that the boundary was an equidistance line (and not a line drawn withregard to the conformation of the seabed) and that there where no special cir-cumstances concerning the water column (such as might be the presence of afishery bank).

1993), Report 6–4, pp. 1341–1352. The agreement refers only to the future zone ofThailand 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 andentered into force on 1 January 1999. An English translation of the agreement with acommentary 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 thedelimitation of the territorial sea adopted the same day, establishes the whole maritimeboundary between the two States.

8 Art. 2.


A different solution, but having the same aim of avoiding disputes over thedelimitation of future exclusive economic zones, was adopted by India andIndonesia. The two States, which had already delimited their seabed boundarieswith two agreements, adopted in 19749 and 1977,10 decided to apply the conti-nental shelf boundary also for the delimitation of the exclusive economiczone,11 without however formalising this decision by inserting it into a treaty.

In many cases, however, States have delimited the continental shelf eitherwithout any reference to the possible application of such a boundary to thedelimitation of other zones or by providing expressly that the delimitation ofthe continental shelf does not prejudge the status of the superjacent waters.12

Therefore, the need to delimit its boundaries arises at the moment when anexclusive economic zone (or similar zone) is proclaimed.

In this case, States usually adopt an agreement that extends the seabedboundary to the delimitation of the economic zones. This is the solutionadopted by Turkey and the Soviet Union for the delimitation of their maritimeboundaries in the Black Sea. Having already adopted an agreement for thedelimitation 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 thedelimitation 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 ShelfBoundary between the two Countries, signed on 8 August 1974 and entered into forceon 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 Governmentof the Republic of Indonesia on the Extension of the 1974 Continental Shelf Boundarybetween the Two Countries in the Andaman Sea and the Indian Ocean, signed on 14January 1977 and entered into force on 15 August 1977. This agreement extends the1974 boundary in both directions. The delimitation between the two States is completedby 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 NijhoffPublishers, 1985), p. 82.

12 An example is given by the delimitation between Iran and Qatar. The agreement of1969 provides, in Art. 4, that “Nothing in this Agreement shall affect the status of thesuperjacent waters or airspace above any part of the continental shelf”.

13 Agreement between the Government of the Republic of Turkey and the Governmentof the Union of Soviet Socialist Republics on the Delimitation of the Continental Shelfbetween the Republic of Turkey and the Union of Soviet Socialist Republics in the BlackSea, 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 theBlack Sea, of 23 December 1986 and 6 February 1987, in J.I. Charney, op. cit., supranote 4, Vol. II, Report 8–10 (3), pp. 1701–1707.


There are a few cases in which the Parties to an agreement delimiting thecontinental shelf have renegotiated the boundary after the proclamation of anexclusive economic zone. This is the case of the delimitation between theDemocratic Republic of Germany (today Germany) and Poland. The two coun-tries 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 bound-ary for the delimitation of the continental shelf and of the fisheries zone.According to the 1989 Agreement, a new boundary has been adopted, whichapplies to the delimitation of both the fisheries zones and the continentalshelves. The most remarkable point is that the 1968 line was an equidistanceline; it was not considered applicable, however, to the delimitation of the super-jacent waters because it would attribute to the German part of the area the twomain navigational channels that lead to the Polish ports of Szczecin andSwinoujscie. In this case, therefore, a seabed boundary was not consideredapplicable, and a new boundary was determined in order to take account of circumstances relating to the water column (in this specific case, navigationalcircumstances).

Another case of non-application of a seabed boundary concerns the delimita-tion between Australia and Indonesia. The continental shelf boundary, adoptedin 1972,16 was based on geological criteria, attributing to Australia a greatershare of the seabed area between the two States. It is therefore understandablethat, at the moment of negotiating the fisheries zones boundary, the two Statesagreed on a different fisheries boundary, measured mainly on the basis ofequidistance.17 This provisional line, with some slight modification, was furtherconfirmed in 199718 as the boundary of the exclusive economic zone, while at

15 Treaty between the Polish People’s Republic and the German Democratic RepublicConcerning the Delimitation of the Continental Shelf in the Baltic Sea of 29 October1968, entered into force on 16 April 1969. An English translation of the agreement witha 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 theGovernment of the Republic of Indonesia Establishing Certain Seabed Boundaries inthe 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 ofIndonesia and the Government of Australia Concerning the Implementation of aProvisional 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 Republicof Indonesia Establishing an Exclusive Economic Zone Boundary and Certain SeabedBoundaries of 14 March 1997. The treaty has not yet entered into force as it needs somemodifications following the independence of Timor-Leste.


the same time the 1972 boundary was confirmed as the line dividing the conti-nental shelf. As a result, there are two maritime boundaries in the sea areabetween Australia and Indonesia, delimiting respectively the seabed and thesuperjacent waters.19

In other cases, and probably in order to avoid any delimitation problems withneighbours, some States do not extend their maritime zones up to the widestextent, but fix the outer limit short of the area where there are claims by otherStates. This is the case of Algeria, who, on establishing its fisheries zone in theMediterranean, has limited its outer limit to 52 nautical miles from the base-lines, further reduced to 32 miles on the western part of the zone.20 In the sameway, in creating its fisheries zone in the Mediterranean, Spain has not extendedit along the southern part of its coast, where there exist sovereignty and delimi-tation problems with Morocco.21

In most cases, however, States do not show such self-restraint and extendtheir maritime zones fixing unilaterally their outer limit vis-à-vis their neigh-bours, at least provisionally.22 In this case, the outer limit of the zone may bedetermined with reference to geographical coordinates, to a line provided for ina previous treaty or by a more general reference to equidistance.

The recent decision of the Parliament of Croatia instituting a fisheries andecological protection zone23 refers to the treaties already concluded for thedetermination of the provisional outer limit of the zone. According to paragraph6 of the Decision:

“Pending the conclusion of delimitation agreements, the outer limits of the ecologi-cal and fisheries protection zone of the Republic of Croatia shall temporarily fol-low the delimitation line of the continental shelf established under the 1968Agreement between the SFRY and the Italian Republic on Delimitation of theContinental 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 pro-vides for the rights of each State in the area of overlapping zones and for the means tocarry 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 28May 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 withregard 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, inthe case of overlapping with the zones of other States, the definitive delimitation shallbe 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 theAdriatic 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


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

One of the neighbouring States, Italy, has protested against this provisionaldelimitation, considering, among other arguments, that the continental shelfboundary is not applicable, as it was adopted when the concept of the exclusiveeconomic zone had not been established yet under international law, andbecause the seabed boundary does not take account of new special circum-stances.24

3. THE GUINEA-BISSAU/SENEGAL DECISION

International judges have dealt only once with the issue of the applicability of aseabed boundary to new zones, that is in the maritime delimitation disputebetween 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 Portugaland concerning the delimitation of the territorial sea, the contiguous zone andthe continental self was applicable also to the newly independent States ofGuinea-Bissau and Senegal as far as these three zones were concerned. TheTribunal, however, maintained that this treaty was not applicable to the delimi-tation of the exclusive economic zone, as this zone was not mentioned in thedelimitation agreement.

The Tribunal, furthermore, rejected the position of Senegal, according towhich the 1960 treaty had to be interpreted in the light of the successive evolu-tion of the law of the sea, which had allowed for the creation of exclusive eco-nomic zones. The Tribunal observed, in this regard, that a treaty has to beinterpreted in the light of the law existing when it is concluded, and that conse-quently the 1960 treaty had to be interpreted in the light of international law ofthe 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 quin’existaient pas à cette date, qu’on les appelle zone économique exclusive, zone depêche ou autrement.”26

24 See the “Advance and unedited reporting material to be issued as addendum to theReport 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 theInternational Court of Justice of 1989. Guinea-Bissau, in fact, had not accepted theaward and had requested the International Court of Justice to declare that it was notvalid. The Court, however, confirmed the validity of the award (see Arbitral Award of 31July 1989 (Guinea-Bissau v. Senegal), Merits).

26 Guinea-Bissau v. Senegal Award, para. 85.


4. OTHER CASES OF POTENTIAL EXTENSION OF MARITIME BOUNDARIES

The issue considered in this paper has generally been presented as the possibil-ity to extend the continental shelf boundary to the delimitation of the super-jacent waters. There are, however, some other cases where a similar problemmight be posed.

In 1980, Iceland and Norway entered into an agreement for the delimitationof their fisheries zones between Iceland and the Norwegian island of JanMayen,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 thearea.

Not being able to solve the issues concerning the delimitation of the conti-nental shelf, the two States, through the same agreement, created a ConciliationCommission, whose task was to make proposals concerning the delimitation ofthe continental shelf. The Commission had to take account of “Iceland’s strongeconomic interests in these sea areas, the existing geographical and geologicalfactors and other special circumstances”.28 In its final report, the Commissionpreferred not to indicate a different boundary for the delimitation of the conti-nental shelf, but to propose the creation of a joint zone:

“the Commission concluded that an approach should be used which takes intoaccount both the fact that agreement by Iceland and Norway on Iceland’s 200-mileeconomic zone has already given Iceland a considerable area beyond the medianline and the fact that the uncertainties with respect to the resource potential of thearea create a need for further research and exploration. Rather, therefore, thanproposing a demarcation line for the continental shelf different from the economiczone line, the Commission recommends adoption of a joint development agreementcovering substantially all of the area offering any significant prospect of hydro-carbon production.”29

Iceland and Norway decided to adopt the Commission’s proposals: theyaccepted that the fisheries boundary applied also to the delimitation of the con-tinental shelf and they created a joint development zone, which covers that partof 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 1980.28 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 22October 1981.


also for the delimitation of the continental shelf, provided that a joint zone isestablished.

The need to decide on the applicability of a boundary might arise in somemore cases. One should consider, in the first place, those treaties which do notdelimit specific zones, indicated by name, but which draw a so called all-pur-pose maritime boundary, which is intended to delimit all maritime areas of theParties, already existing and (in most cases) such that may be proclaimed in thefuture.31 In this case, there should be no problem in applying the boundary alsofor the delimitation of new zones, as the scope of the delimitation treaty or ofthe decision is to delimit all zones. This is even more so when the delimitationagreement expressly provides that the boundary shall apply also to futurezones.32 But even in the absence of such a clause, it would seem in accordancewith the object and scope of the treaty (to settle permanently all maritimeboundary issues between the Parties) to apply the all-purpose boundary to newzones as well.

The same problem, furthermore, could be posed for the applicability of acontinental shelf boundary, or an exclusive economic zone boundary, to thedelimitation of the contiguous zone or of the contiguous-archaeological zone of24 nautical miles.33

31 See, for example, the treaties between Mexico and the United States of America of4 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, andbetween 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 maritimeboundary has also been requested by the Parties and has been provided by the judgmentsin 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 thethree maritime delimitation cases actually pending before the International Court ofJustice (Nicaragua v. Honduras and Nicaragua v. Colombia). See the applications ofNicaragua, 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, accord-ing to which “The maritime boundary between the Republic of Trinidad and Tobago andthe Republic of Venezuela referred to in this treaty is the maritime boundary withrespect to the territorial seas, the Continental Shelves and the Exclusive EconomicZones and to any other marine and submarine areas which have been or might be estab-lished by the Contracting Parties in accordance with International Law” (emphasisadded).

33 On the archaeological zone see R. Garabello, La Convenzione UNESCO sulla pro-tezione del patrimonio culturale subacqueo (Milano, Giuffrè Editore, 2004), pp.151–179. On the applicability of existing boundaries to the delimitation of the archaeo-logical zone see I. Papanicolopulu, “La zona contigua archeologica e la sua delimi-tazione”, in: T. Scovazzi (ed.), La protezione del patrimonio culturale sottomarino nelMare Mediterraneo (Milano, Giuffrè Editore, 2004), pp. 43–70.


5. SOME TENTATIVE CONCLUSIONS

The initial question could therefore be reframed in the following terms: given asea area over which two neighbouring States have sovereignty or jurisdictionand which has already been delimited with a boundary, in case one or bothStates create in it new maritime zones, does the existing boundary also apply tothese new zones?

There is no rule on this issue in international conventions. As the UNCLOSdoes not address this issue at all, it is to international practice that one has toturn in order to find some useful elements.

There is not only one solution to this problem, but the solution may varyaccording to the terms of the delimitation agreement and the nature of the areasto be delimited. In case a new zone is created in an area where the seabedboundary has already been delimited, a distinction should be made betweenzones comprising only the water column (such as the fisheries zones or an envi-ronmental 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 continentalshelf, since both the physical space occupied by the two zones and the rightsattributed to the coastal State are different. Being thus two independent mar-itime zones, each has to be delimited independently, and in no case is theseabed boundary automatically applicable. This, of course, does not excludethat the continental shelf and the fisheries zone may be delimited together bymeans of one single-line boundary, as the International Court of Justice hasadmitted since the Gulf of Maine case.35

34 Created by Law 2003–246 of 15 April 2003 (Journal officiel de la RépubliqueFrançaise, n° 90 du 16 avril 2003, p. 6726). Its external limits have been fixed byDecree 2004–33 of 8 January 2004 (Journal officiel de la République Française, n° 8 du10 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 crystallisingaccording to which, in case the water column and the seabed and subsoil beyond the ter-ritorial 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 rea-son is that a delimitation of the continental shelf may not, and generally does not, takeaccount of fisheries or ecological circumstances, while in a delimitation ex novo of bothzones all circumstances, relating to all areas, may be taken account of and the result willdepend on balancing all of them. On this last point, see G. Cataldi, “‘La ligne unique dedélimitation’? 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 délimitationd’une seule des zones puisse être étendue automatiquement à une autre zone maritime


On the other hand, the situation is partially different as far as the exclusiveeconomic zone is concerned. The exclusive economic zone, in fact, in partcoincides with the continental shelf (as far as the seabed and subsoil are con-cerned) 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 col-umn of the exclusive economic zone, for the same reason indicated above. Itremains to establish what happens with the seabed boundary.

The exclusive economic zone is a new zone, distinct from the other maritimezones that may already exist, including the continental shelf; it should thereforebe delimited independently, on the basis of its own rules. On the other hand, thecontinental shelf boundary is indeed a boundary, and as such should be subjectto the principle of the stability of boundaries, according to which once a bound-ary is established it becomes independent from the treaty establishing it and hasits own life. It therefore does not depend, for its existence, on the existence ofthe delimitation treaty.36

sans aucune autre négociation. La fixation de la ligne de délimitation unique doit êtreeffectuée 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, accord-ing to which: “A fundamental change of circumstances may not be invoked as a groundfor terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary[.]”.

This Article refers generally to a “boundary”, without precising whether it concernsland or maritime boundaries. It could therefore be inferred that it applies to all types ofboundaries. On the other hand, it could be argued that the principle of the stability ofboundaries was developed in order to guarantee the certainty of the area of State sover-eignty, and as such applies only to boundaries delimiting zones of sovereignty, such asthe land territory of a State and its territorial sea, and not to zones of jurisdiction. As thecontinental shelf is a zone of jurisdiction, the principle would not be applicable. It wouldtherefore be possible to consider that the creation of an exclusive economic zone is indeed a fundamental change of circumstances, comporting the termination of thecontinental shelf delimitation treaty and requiring a new delimitation for the newlyestablished zone. This conclusion, though legally sound, leads nonetheless to an unsatis-factory result from a practical point of view. In the first place, maintaining that the conti-nental shelf boundary is applicable would mean that, until the boundary of the exclusiveeconomic zone is fixed, the area remains wholly not delimited. This situation would beparticularly grave in case the coastal States have already accorded licenses for theexploitation of the resources and commercial activities are already taking place. Buteven if there are no such activities, the need to delimit always carries with it risks andpotential controversies; therefore, it would not seem to be advisable to renounce the cer-tainty 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 exclusiveeconomic zone, is an area existing ipso iure. Once it is delimited, consequently, itsboundary should not be altered unless both parties agree. What is in fact going to hap-pen 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)?


It is neither appropriate, nor in conformity with the need for certainty thatleads States to adopt international boundaries, to consider that a continentalshelf boundary does not apply to the delimitation of the seabed and subsoil ofthe exclusive economic zone, once such a zone is created in that same area. Inthis 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, butrather to delimit the seabed and subsoil of a certain area, once for all and with-out 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 agree-ments, which refer to the “delimitation of the seabed and subsoil”, rather thanto the delimitation of the continental shelf.

This conclusion is not weakened by the fact that there are cases in whichcontinental shelf boundaries where renegotiated (and modified) following theproclamation of an exclusive economic zone. In this regard it should beremembered that States are always free to modify their boundaries, as long asthey do not do so unilaterally, but on the basis of an agreement.

One could further mention the fourth paragraphs of Articles 74 and 83 ofUNCLOS, which are framed in the same terms and which provide that:

“Where there is an agreement in force between the States concerned, questionsrelating 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 con-tinues to be applicable also after the adoption and entry into force of UNCLOS.But this provision could also be interpreted in an extensive manner (thoughalways according to its scope, which is to reaffirm the importance of the stabil-ity of boundaries) by considering that the boundary of the continental shelfremains in place also when the seabed thus delimited becomes part of a newzone (the exclusive economic zone).

Once it is established that the continental shelf boundary applies also to thedelimitation of the seabed and subsoil of the exclusive economic zone, it stillremains to be considered how the superjacent waters are to be delimited.

As has already been noticed, there is no obligation to apply the same bound-ary. In practice, however, except for a few cases, States facing this issue havegenerally agreed to extend the seabed boundary also for the delimitation of thewater 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 gener-ally been effected on a case-by-case basis, following negotiations and (as itwould seem) after the evaluation of its applicability for the delimitation of thesuperjacent waters. In the second place, there are cases in which States haveused a different boundary, either by modifying the whole boundary (as in the


GDR/Poland case) or by delimiting separately the superjacent waters, by meansof a separate boundary (as in the case of Australia and Indonesia). Thirdly,coastal States have never admitted the existence of a general principle of auto-matic extension of seabed boundaries, even though they have adopted suchextension in specific cases. In the absence of a uniform State practice and ofsufficient elements for proving the creation of a new customary rule, one has toconclude that such a rule does not exist and that States are free to determine theboundaries for the water column of the exclusive economic zone.

Notwithstanding this conclusion, the fact remains that State practice isalmost uniform in extending the seabed boundary to the superjacent waters.This uniform practice could be explained on the ground of the simplicity of thisoperation and its good convenient results. It is much easier to adopt a boundaryalready in place rather than having to draw a new one. In addition, even thoughthe case of the delimitation between Australia and Indonesia proves that a mul-tiple line boundary can indeed be managed, it is surely easier to manage an areawhere the jurisdiction over the water column, the seabed and the subsoilbelongs to one and the same State.

It should furthermore be considered that the existence of a seabed boundaryconstitutes a special circumstance which should be taken account of in delimit-ing the superjacent waters. In this regard, it would not be going too far to con-sider that there is an obligation for those States delimiting their water column(not to apply the seabed boundary, but) to justify their eventual rejection ofsuch a boundary and to indicate the circumstances that render it inapplicable tothe water column.

This inapplicability might be due either to the fact that the seabed boundarywas drawn on the basis of circumstances pertaining only to the seabed (andtherefore not applicable to the delimitation of the water column), or to the pres-ence of special circumstances pertaining to the waters which have to be takenaccount of.

It seems therefore more probable that there will be a revision of those bound-aries that have been drawn on the basis of geological circumstances. It is, onthe other hand, more difficult to justify the inapplicability of a boundary drawnon the basis of neutral criteria, such as geographical ones, and especially if theboundary consists in an equidistance line. Even in this case, however, a newboundary could be justified on the basis of circumstances relating to the watercolumn, as even the equidistance line is not conform to equity if there are spe-cial circumstances justifying a modification or another line.

In conclusion, one has to keep in mind that the principal problem of theextension of boundaries for the delimitation of new zones relates to the balanceto be kept between the need for permanent and well-defined maritime bound-aries 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


boundary they have not agreed upon. And this would not just create uncom-fortable 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”.

Article 15 of the Law of the SeaConvention, 10, 26, 35, 39, 47, 73,95–96, 111, 126–127, 197, 210, 214,216

Article 74 of the Law of the SeaConvention, 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 SeaConvention, 5, 15–17, 20–31, 112–113,154, 156

Article 83 of the Law of the SeaConvention, 26, 34–35, 39, 63, 73, 80,95, 125–127, 149–150, 155, 199, 234,236

Article 287 of the Law of the SeaConvention, 39, 58, 66–78, 141, 150

Article 297 of the Law of the SeaConvention, 20, 25–26, 73

Article 298 of the Law of the SeaConvention, 20, 25–26, 39–40, 73–78,214

Atlantic Ocean, 126, 167, 178–179Australia, 15, 71, 74–75, 148, 227–228,

235

Bahrain, 6, 10, 39, 96, 102, 106, 107, 118,131, 148, 159, 164

Baltic Sea, 196, 227Bank, 21, 154, 158, 178, 182, 225Barbados, 65, 70, 166, 167, 170, 177,

183, 187Baseline, 22, 40, 83, 102, 113, 126–127,

133, 141, 154, 156, 159, 169, 177, 185,186, 187, 208– straight baselines, 99, 102, 159, 207,

215Basepoint, 80, 83, 87, 102, 107, 127,

130–131, 140, 162Bay of Biscay, 148Bay of Piran, 196–198, 210–214Bays, 39, 148, 171, 196–198, 210–215

– bay closing line, 102Belarus, 74Belgium, 71, 135–136, 139–140, 157,

225Belize, 169–170, 183–184, 187Black Sea, 196, 226

Adjacent coast, 21, 23, 27–28, 31, 34, 73,80, 144, 155, 171, 177, 192–193, 201,208–209, 212

Adriatic Sea, 189–203, 204–217Affaires de délimitation du plateau

continental de la mer du Nord seeNorth Sea Continental Shelf Cases

Affaire de la délimitation maritime entreQatar et Bahrein see Case ConcerningMarine Delimitation and TerritorialQuestions (Qatar v. Bahrain)

Affaire de la frontière terrestre etmaritime entre Cameroun et le Nigériasee Case Concerning the Land andMaritime Boundary between Cameroonand Nigeria

Affaire de la délimitation maritime dansla région située entre le Groenland etJan Mayen (Danemark c. Norvège)see Case Concerning MaritimeDelimitation in the Area betweenGreenland and Jan Mayen (Denmark v.Norway)

Affaire de la délimitation du plateaucontinental entre Libye et Malte seeCase Concerning the Continental Shelf(Libyan Arab Jamahiriya/Malta)

Affaire de la délimitation de la frontièremaritime dans la région du golfe duMaine see Case Concerning theDelimitation of the Maritime Boundaryin the Gulf of Maine Area

Agent, 56, 91–93, 98–100Albania, 189–190Algeria, 228Anglo-French Arbitration, 86, 105, 116,

135, 157, 160Antilles (The Netherlands), 160, 176Archeological zone, 207–208

see also Contiguous zoneArchipelago

– archipelagic baseline, 141, 159,185–187

– archipelagic status, 39, 162, 180Argentina, 74Article 6 of the Geneva Convention on

the Continental Shelf, 8–10, 96, 124,207

INDEX

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, 106Cape Verde, 162Caribbean Sea, 74, 152–188, 196Case Concerning Land Reclamation by

Singapore in and around the Straits ofJohor (Malaysia v. Singapore), 64

Case Concerning Marine Delimitationand Territorial Questions (Qatar v.Bahrain), 6, 10, 39, 96, 102, 107, 118,131, 164

Case Concerning Maritime Delimitationin the Area between Greenland and JanMayen (Denmark v. Norway), 9, 43, 50,98, 105, 106, 111, 126, 162–163, 226

Case Concerning the Aegean SeaContinental 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 ofMaritime Areas between Canada andFrance, 29, 106

Case Concerning the Delimitation of theMaritime Boundary in the Gulf ofMaine Area, 14, 35, 82, 104–106, 111,232

Case Concerning the Land and MaritimeBoundary between Cameroon andNigeria, 6, 10, 36–37, 39, 42, 50,61–62, 84, 96, 114, 118

Chamber of Summary Procedure seeInternational Tribunal for the Law ofthe Sea

Channel of Sicily, 160Chile, 74Choice-of-procedure declaration, 58,

66–67, 69, 74see also International Tribunal for the

Law of the SeaCoastal geography, 81, 101Coastal 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, 109Commission on the Limits of the

Continental Shelf, 19–31– rules of procedure, 22, 23, 24, 27

Common zones see Joint zonesConciliation, 35, 74, 230

– compulsory, 75–77Conférences des Nations Unies sur le

droit de la mer, 6see also United Nations Conferences

on the Law of the SeaContiguous zone, 107, 135, 154, 206–208,

210, 229, 231Continental margin, 113Continental 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, 229–230see also Plateau continental

Convention sur le droit de la mer (1982),3, 5, 10, 15see also United Nations Convention on

the Law of the SeaConventions de Genève sur le droit de la

mer (1958), 2, 8–10see also Geneva Conventions on the

Law of the SeaCosta Rica, 172, 177, 183‘Côtes pertinentes’, 12–13, 18Croatia, 189–203, 204–217, 228–229Cuba, 60, 160, 165–167, 171, 172, 180,

182, 183, 184–185Customary law, 64, 115, 124–126Cyprus, 164

Deep seabed mining, 31, 125Denmark, 9, 10, 64, 67, 98, 103, 105, 106,

111, 126, 138, 157, 162, 163, 226Dispute settlement, 19–31, 143–151Dominica, 137, 178, 185, 187Dominican Republic, 165, 166, 167, 174,

176, 181, 184

Ecological and fishing zone seeEcological zone; Fishery zone

Ecological zone, 201, 202, 232see also Exclusive economic zone;

Fishery zoneEEZ see Exclusive economic zoneEgypt, 164Enclosed seas, 166, 189, 195–196, 205

see also semi-enclosed seasEnglish Channel, 105, 157–158, 160

Index 239

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, 235see also Lignes d’équidistance

Equidistance/special circumstances rule,63–64, 96, 115–116, 130, 135–136,140, 186see also Règle de l’équidistance

Equitable principles/relevantcircumstances 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, 155–157,165see also Méthode des principes

équitables-circonstances pertinentesEritrea, 106, 108, 118Eritrea-Yemen Arbitration, 106, 108, 118European Community see European

UnionEuropean Union, 192, 196, 200, 210Exclusive 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, 224–232see 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, 71Fishery zone, 135, 175, 181, 188,

190–194, 196, 197, 201, 224–225,227–228

see also Zone de pêcheFishing activities, 97, 99, 109, 111, 127,

191–192, 212Foot of the continental slope, 22Formula line, 22France, 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 theSea (1958), 33–34, 63–64, 123, 124,127, 208– Convention on the Territorial Sea and

the Contiguous Zone, 96, 208, 210

– Convention on the Continental Shelf,50, 124–125, 154, 207, 223

see also Conventions de GenèveGermany, 103, 227Greece, 42, 139Greenland (Denmark), 9, 43, 50, 98, 105,

106, 111, 126, 137, 162–163, 226‘Groupe des 22’/‘Groupe des 29’, 6

see also Conférences des NationsUnies sur le droit de la mer

Guadeloupe, 135, 137, 177, 178, 180, 186Guatemala, 169, 170, 183–184, 187Guinea, 13, 75, 137Guinea-Bissau, 13, 42, 137, 229Gulf of Gonave, 174Gulf of Guinea, 126Gulf of Honduras, 169Gulf of Maine, 35, 82, 104–106, 111, 232Gulf of Paria, 127, 171, 179Gulf of Trieste, 196, 206–207, 214Guyana, 65, 70, 179, 187

Haiti, 165, 166, 167, 172, 174, 175, 180,181, 184, 185

‘Half-effect’, 105–106, 116Hercegnovski Gulf, 216High seas, 33, 191, 196–198, 211, 213,

216Historic waters, 39Historic rights/title, 79, 101, 111, 197,

211Honduras, 37, 39, 52, 58, 169–171, 177,

178, 180–185, 187Hydrocarbons see Offshore Exploitation

Iceland, 74, 137, 148, 230India, 226Indonesia, 84, 137, 148, 226–228, 235Internal waters, 198, 212, 215International deep seabed area, 28International dispute settlement see

Dispute settlementInternational Law Commission, 30, 36,

123, 124International Seabed Authority, 21, 24,

28–30, 31International 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, 113see also Tribunal international du droit

de la merIntervention, 32–62, 70, 72, 114, 118

see also Third statesIran, 159, 206Ireland, 43, 157Island States, 158–188Islands, 86, 101, 105–108, 116, 152–188Italy, 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, 149–150Joint regime area see joint zonesJoint zones, 138, 147–148, 230–231Jurisdiction

– 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 FrontierDispute (El Salvador/Honduras),36–37, 39, 52, 58

Latvia, 71Libya, 36, 57, 96, 97, 100, 103–106,

109–116, 156, 161, 163Ligne d’équidistance, 5, 7–8, 12, 13Lithuania, 71Litigation, 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, 148Malta, 36, 55, 57, 100, 104–106, 112–115,

156, 161Martinique, 137, 177, 178, 186Median lines, 62, 83, 87, 100, 105, 124,

125, 127, 129, 133, 135, 155–159,160–165, 169–183, 187, 207–216

Mediterranean Sea, 202Méthode des principes équitables-

circonstances pertinentes, 9–10, 14see also Equitable principles/relevant

circumstances methodMexico, 71, 74, 160, 165, 169, 171,

183–184, 186

‘Montreux Formula’, 66Morocco, 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, 109Offshore 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 drillingsee Offshore exploitation

Oman, 71, 164Opposite coasts, 21, 27, 28, 31, 161, 164,

207, 208Outer continental shelf see Continental

shelf

Panama, 171, 177Part XV of the Law of the Sea

Convention, 20–21, 24–28, 31, 39, 43,65, 155, 214

Plateau continental, 4, 8–10, 13, 15–17see also Continental shelf

Poland, 227, 235Portugal, 74, 229Proportionality, 80, 86, 101, 103–105,

108, 156Provisional measures, 33–62, 69, 70, 72,

118

Qatar, 6, 10, 39, 96, 102, 106, 107, 118,131, 164

Reference datum, 84–85Règle de l’équidistance, 5–8, 9, 10, 12,

14, 17see also Equidistance rule

Russia, 20, 68, 74, 86

Sao Tomé and Principe, 61–62

Index 241

Saudi Arabia, 148, 159Scilly Isles see English ChannelSea-bed, 112–113Sea-Bed Disputes Chamber see

International Tribunal for the Law ofthe Sea

Semi-enclosed seas, 166, 186, 188, 189,195–196, 205–217see also enclosed seas

Senegal, 42, 137, 149, 162, 199, 229Serbia and Montenegro, 193, 201, 206,

207, 208, 213, 216–217, 229Sierra Leone, 137Singapore, 64‘Single line’ delimitations, 64, 228Slovenia, 74, 189–203, 209–215Soviet Union see RussiaSpain, 71, 74, 75, 141, 148, 228Special circumstances rule

see Equidistance/special circumstancesrule

St. Lucia, 167, 177, 185, 187State practice, 115–117, 137, 158–159,

165, 224–229, 235Statute of the International Tribunal for

the Law of the Sea see InternationalTribunal for the Law of the Sea

Strait of Otranto, 206Subsoil, 133, 223–236Suriname, 65, 70Sweden, 153, 161

Tacit agreement, 109–110Territorial 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, 224–225The Netherlands, 135, 136, 139, 140,

166, 176, 177, 185, 225Third states, 21, 31, 36, 101, 113–115,

136–137see also Intervention

Trinidad and Tobago, 65, 70, 167, 170,178, 179, 183, 185

Tripoints, 136, 177–178Tunisia, 36, 74, 96, 97, 103, 106, 109,

110, 111, 112, 114, 116, 160, 200Turkey, 206, 215, 226Tribunal international du droit de la mer,

3, 18see also International Tribunal for the

Law of the Sea

Ukraine, 74United 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 Lawof the Sea– First and Second, 223– Third, 66, 124, 154, 166, 171, 176,

177, 187, 205–206, 208, 224see also Conférences des Nations

Unies sur le droit de la merUnited Nations Convention on the Law of

the Sea (1982) UNCLOS, LOSConvention, 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, 164–165Yugoslavia, 189–190, 193, 196, 197, 199,

200, 206–207, 209, 210, 211, 212, 213,215, 216

Zone de pêche, 10, 200, 229see also Fishery zone

Zone économique exclusive, 9, 10, 13,200, 229see also Exclusive economic zone

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

2. N. Papadakis: The International Legal Regime of Artificial Islands. 1977ISBN 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, 1968-1973. 1977 ISBN 90-286-0287-9

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

6. N.S. Rembe: Africa and the International Law of the Sea. A Study of the Contributionof 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 InternationalLaw 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 theLaw 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. 1987ISBN 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. Decidingand 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. 1990ISBN 0-7923-0130-7

16. D.M. Johnston and M.J. Valencia: Pacific Ocean Boundary Problems. Status and Solu-tions. 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


19. D. Pharand and U. Leanza (eds.): The Continental Shelf and the Exclusive EconomicZone: Delimitation and Legal Regime/Le Plateau continental et la Zone économiqueexclusive: 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. 1995ISBN 0-7923-2882-5

23. A. Strati: The Protection of the Underwater Cultural Heritage: An Emerging Objec-tive 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 theRussian Federation. 1994 ISBN 0-7923-3082-X

25. Y. Li: Transfer of Technology for Deep Sea-Bed Mining. The 1982 Law of the Sea Con-vention and Beyond. 1994 ISBN 0-7923-3212-1

26. T.O. Akintoba: African States and Contemporary International Law. A Case Study ofthe 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. 1997ISBN 90-411-0326-0

29. A. Razavi: Continental Shelf Delimitation and Related Maritime Issues in the PersianGulf. 1997 ISBN 90-411-0333-3

30. J.A. de Yturriaga: The International Regime of Fisheries. From UNCLOS 1982 to thePresential Sea. 1997 ISBN 90-411-0365-1

31. M.J. Valencia, J.M. Van Dyke and N.A. Ludwig: Sharing the Resources of the SouthChina Sea. 1997 ISBN 90-411-0411-9

32. E.C. Farrell: The Socialist Republic of Vietnam and the Law of the Sea. An Analysis ofVietnamese 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 theCommon 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 NewLaw of the Sea. 2000 ISBN 90-411-1499-8


36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevancefor 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 MaritimeDelimitation and Jurisdiction. 2001 ISBN 90-411-1648-6

38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur lesdélimitations maritimes selon l’équité: Digest and Commentaries/Répertoire et com-mentaires. 2002 ISBN 90-411-1976-0

39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern DecisionMaking 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 Cul-tural 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 The-ory and Practice. 2004 ISBN 90-04-13618-5

44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21stCentury. 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. 2004ISBN 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. 2005ISBN 90-04-14423-4

49. Florian H.Th. Wegelein: Marine Scientific Research. The Operation and Status ofResearch 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 Environ-mental Concerns of a Maritime Custom. 2006 ISBN 90-04-14952-X

52. Tore Henriksen, Geir Hønneland and Are Sydnes: Law and Politics in Ocean Gover-nance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes.2006 ISBN 90-04-14968-6


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 Issuesand New Challenges to the Law of the Sea. Time Before and Time After. 2006

ISBN 90-04-15191-555. Sarah Dromgoole (ed.): The Protection of the Underwater Cultural Heritage. National

Perspectives in Light of the UNESCO Convention 2001. 2006ISBN 10: 90 04 15273 3ISBN 13: 978 90 04 15273 1


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