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Brownlie's Principles of Public International Law, 8th Edition by Crawford, James R (27th September 2012) [OLD EDITION]

Part IV Law of The Sea, 12 Maritime Delimitation and Associated Questions

From: Brownlie's Principles of Public International Law (8th Edition)

James R Crawford

A newer edition of Brownlie's Principles of Public International Law is available. Latest edition (9 ed.)
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 November 2019

Subject(s):
Delimitation — UNCLOS (UN Convention on the Law of the Sea) — Continental shelf — Exclusive economic zone — Equitable principles

(p. 281) 12  Maritime Delimitation and Associated Questions

Coram et judice in alto mare sumus in manu Dei.

1.  Introduction1

The rules of entitlement to maritime zones are set out in chapter 11. But a coastal state may be so located vis-à-vis its neighbours that its potential zones overlap con-siderably—what may be termed ‘overlapping potential entitlement’. In fact there is no coastal state in the world that does not have an overlapping maritime zone with at least one other state (see Figure 12.1). There is also a question of entitlement vis-à-vis the high seas and its seabed, an effective delimitation between the coastal states severally and the international public domain or ‘global commons’, a commons until recently in sharp retreat.

Most maritime boundaries are determined by agreement and recorded in a treaty.2 Many remain undelimited. A significant number are disputed.3 Resolving such disputes has become an important task for the International Court and, to a lesser extent, other tribunals.4 A great variety of geographical situations is encompassed, from (p. 282)

Figure 12.1  Global Maritime Zones

Source: Dr Robin Cleverly, Head, Law of the Sea, UK Hydrographic Office, Taunton

(p. 283) long-coastline adjacent states crowded together on a concave coastline5 to small islands facing out into the open ocean.6 Yet courts and tribunals are expected to decide on maritime delimitation in a principled way, without recasting geography yet still achieving an equitable result. The consequence has been a considerable test of judicial technique—or according to some, a demonstration of its failure.

2.  Territorial Sea Delimitation Between Opposite or Adjacent States7

Delimitation of territorial seas between states opposite or adjacent to each other is primarily governed by Article 15 of the UN Convention on the Law of the Sea (UNCLOS),8 which is virtually identical to Article 12(1) of the Geneva Convention on the Territorial Sea (GCTS)9 and is considered reflective of customary international law.10 Article 15 provides:

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

Article 15 stipulates primacy of agreement, and failing that, application of the principle of equidistance. Departure from the equidistance principle is possible only where necessary by reason of historic title or other ‘special circumstances’.11 Thus a presumption of equidistance exists in the case of the territorial sea, justified by the comparatively small distances involved.

(p. 284) Given the institutional age of the territorial sea, many of the disputes surrounding its application have been resolved. Major cases have included Qatar v Bahrain,12 Caribbean Sea,13 Guyana v Suriname,14 Eritrea v Yemen,15 and Bangladesh/Myanmar16 but several decisions were handed down pre-UNCLOS, notably the Banks of Grisbadarna between Norway and Sweden17 and the St Pierre and Miquelon arbitration between France and Canada.18 Following the Qatar v Bahrain and Caribbean Sea maritime delimitations, a methodology19 has developed; in Caribbean Sea the Court considered the application of the following process in the context of an UNCLOS Article 15 territorial sea boundary delimitation:

  1. (1)  Consideration should first be given to the drawing of a provisional line of equidistance.20

  2. (2)  But the provisional equidistance line may be abandoned due to special circumstances.21

  3. (3)  The tribunal in question may then consider its own means of delimitation, or adopt those proposed by the parties.22

  4. (4)  At all stages, the tribunal will need to take into account relevant coasts, including the geography of the immediate coastline, the delimitation of the territorial sea of adjacent states and geomorphological features of the area adjacent to the endpoint of a land boundary.23

(p. 285) Whether or not there is a formal presumption of equidistance in territorial sea delimitation may be debated, but it is certainly the norm.

3.  Continental Shelf Delimitation Between Opposite or Adjacent States24

(A)  Sources

The continental shelf has its immediate origins in the Truman Proclamation of 28 September 1945. In a remarkable exercise in prescience, the Proclamation addressed delimitation in the following terms:

In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles.25

At this time there was almost no delimitation practice: the 1942 Gulf of Paria Treaty, the first seabed delimitation treaty, represented an attempt by Venezuela and the UK to delimit the Gulf, a shallow inland sea between the British colony of Trinidad and the Venezuelan coast.26 At its core, the treaty simply described three lines according to longitude and latitude, allocating to the UK those areas east and north of these lines.27

Practice was not much further advanced upon consideration by the ILC beginning in 1953.28 On cartographical advice, the ILC proposed and the Geneva Conference adopted GCCS Article 6.29 Article 6 applies to those cases where the ‘same continental shelf ’ extends between opposite or adjacent states. In separate provisions, it stipulates that the boundary is determined by agreement but ‘in the absence of agreement, and unless another boundary line is justified by special circumstances’, the boundary shall be determined by a median line, that is, a line equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured.

(p. 286) In 1969 the International Court rejected the equidistance/special circumstances rule articulated in Article 6 as a matter of custom,30 and after many vicissitudes in the cases and doctrine and in the negotiations, this position was apparently upheld in 1982.31 UNCLOS Article 83(1) provides:

The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

Article 83(1) appears as an elaborated version of the Truman Proclamation provision concerned with delimitation. To that extent UNCLOS Part VI had returned to its customary law origins.32

(B)  The Established Approach

In the meantime, practice and case-law had moved on. In Libya/Malta,33 the Court was called upon to delimit the continental shelf boundary between the two states. The parties were in agreement that their dispute was governed by customary international law, with the Court discerning its reflection in UNCLOS (notably Article 83(1)).34 The Court went on to emphasize the preference in Article 83(1) for an ‘equitable’ solution to delimitation problems concerning the continental shelf, and further noted that:

The Convention sets a goal to be achieved, but is silent as to the method to be followed to achieve it. It restricts itself to setting a standard, and it is left to the States themselves, or the courts, to endow this standard with specific content.35

The Court held:

Thus the justice of which equity is an emanation, is not abstract justice but justice according to the rule of law; which is to say that its application should display consistency and a degree of predictability; even though it looks with particularity to the peculiar circumstances of an instant case, it also looks beyond it to principles of more general application.36

Taking account of the differences in coastal length, the Court adopted a proportionality test to justify deviation from the median line,37 while stressing that it was not required to achieve a predetermined ratio between the relevant coasts and the respective continental shelf areas.38

(p. 287) As a result of this and subsequent decisions, a ‘received approach’ has emerged, though it is not invariable.39 This is first to draw provisionally an equidistance line.40 If this proves inappropriate, the court or tribunal may use a different method of delimitation, such as the bisector method, according to which the line is formed by bisecting the angle created by a linear approximation of coastlines.41 The court may then move to consider whether the line so created must be adjusted in the light of ‘relevant circumstances’, such as small islands, maritime features or coastal geography. An equidistance line is usually seen as the most equitable starting point for any delimitation. The ‘relevant circumstances’ that have been produced by custom are similar to the ‘special circumstances’ seen in GCCS Article 6.42

Accordingly, delimitation of the continental shelf is usually done in three stages. First, the relevant tribunal establishes a provisional delimitation line based on ‘methods that are geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place’.43 This provisional delimitation line is an equidistance line in case of two adjacent coasts, and a median line when two opposite coasts are concerned.44 Secondly, the tribunal considers whether there are ‘relevant circumstances’ calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result.45 Thirdly, the tribunal verifies that the delimitation line as it stands does not lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each state.46

(C)  The Equitable Principles

The notion that an equidistance line is the ordinary starting point for continental shelf delimitation is only one of the equitable principles governing the solution under UNCLOS Article 83(1) and customary international law. The ‘equitable principles’, as defined judicially since North Sea Continental Shelf, have a normative character as a part of general international law, and their application is to be distinguished (p. 288) from decision-making ex aequo et bono.47 Nonetheless the ‘principles’ are general in character. As was noted in Libya/Malta, the term ‘equitable’ in Article 83(1) sets an amorphous standard.48 Nonetheless, specific criteria or indicia have emerged. These may be formulated as follows:

  1. (1)  Delimitation is to be effected by agreement on the basis of international law.49

  2. (2)  As far as possible neither party should encroach on the natural prolongation of the other (the principle of non-encroachment).50

  3. (3)  As far as possible, there should be no undue cut-off of the seaward projection of the coast of either of the states concerned.51

  4. (4)  Delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographical configuration of the area and other relevant circumstances, an equitable result.52

  5. (5)  There is a mild presumption that the equitable solution is an equal division of the areas of overlap of the continental shelves of the states in dispute.53

(D)  Relevant Circumstances

The application of equitable principles involves (variously) reference to the ‘relevant circumstances’, or ‘factors to be taken into account’, or ‘auxiliary criteria’.54 Relevant circumstances recognized by international tribunals include the following:

  1. (1)  the general configuration of the coasts of the parties;55

  2. (2)  disregarding or giving less than full effect to incidental features (e.g. minor offshore islands) which would otherwise have a disproportionate effect on the delimitation;

  3. (p. 289) (3)  disparity of coastal lengths in the relevant area;56

  4. (4)  the general geographical framework or context;57

  5. (5)  the principle of equitable access to the natural resources of the disputed area.58

Factors sometimes referred to, but not as well accepted, include:

  1. (6)  the geological structure of the sea-bed and its geomorphology (or surface features);59

  2. (7)  the conduct of the parties, such as the de facto line produced by the pattern of grants of petroleum concessions in the disputed area;60 such concessions need to be, however, premised on express or tacit agreement between the parties;61

  3. (8)  the incidence of natural resources in the disputed area;62

  4. (9)  defence and security interests of the states in dispute;63

  5. (10)  navigational interests of the states in dispute;64

  6. (11)  consistency with the general direction of the land boundary;65

  7. (12)  maritime delimitations already effected in the region.66

Some comment is called for on several of these.

As to the second factor, given a geographical situation of quasi-equality as between coastal states, it is often necessary to abate the effects of an incidental special feature from which an unjustifiable difference of treatment would result. This principle has been employed to avoid, or at least to diminish, the effects of a concave coast,67 the location of islands of state A near the coast of state B68 and the eccentric alignment of (p. 290) small islands lying off a peninsula.69 On occasion, the effect of a group of islands has been reduced by half when the geography was not markedly eccentric.70

As to existing or reasonably-suspected incidence of resources, resource-related criteria have been treated much more cautiously by international courts and tribunals, which have not generally applied this factor as a relevant circumstance—at least explicitly.71 An exception—concerning delimitation within 200nm—was Jan Mayen,, where a portion of the line was adjusted to a take account of Danish access to an established capelin fishery.72 Thus in the context of a single maritime boundary, considerations relating to the EEZ determined the location of a shelf boundary.

It is to an extent misleading to talk of a recognized canon of relevant circumstances justifying deviation from the provisional line. As with delimitation in the territorial sea, the list of relevant circumstances is not closed. However an outer limit has been imposed by Libya/Malta, where the Court remarked:

[A]lthough there may be no legal limit to the considerations which States may take account of, this can hardly be true for a court applying equitable procedures. For a court, although there is assuredly no closed list of considerations, it is evident that only those that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation, will qualify for inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally changed by the introduction of considerations strange to its nature.73

Irrelevant factors include the population, extent of hinterland or development status of the coastal state.74

(E)  Proportionality75

In North Sea Continental Shelf the Court stated that one of the factors ‘to be taken into account’ in delimitation is ‘the element of a reasonable degree of proportionality, which a delimitation in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of the coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental (p. 291) shelf delimitations between adjacent States in the same region’.76 Proportionality, however, is not an independent principle of delimitation (based on the ratio of the lengths of the respective coasts), but only a test of the equitableness of a result arrived at by other means.77 This process of ex post facto verification of a line arrived at on the basis of other criteria may take two forms. Exceptionally, it may take the form of a ratio loosely based on the lengths of the respective coastlines.78 More generally, it takes the form of vetting the delimitation for evident disproportionality resulting from particular geographical features.79 If coasts are not born equal, delimitations are to achieve proportionality—but not to have it thrust upon them.80

(F)  Application of the Equitable Principles and Relevant Circumstances

The International Court has emphasized that there must be a process of balancing up all pertinent considerations wherein the relative weight to be given to the various principles and factors varies with the circumstances.81 The practical application of the equitable principles normally involves drawing a boundary line and the method chosen will be the method (or combination of methods) which will produce an equitable result. Methods available include a median or equidistance line, a median line subject to a factor of equitable correction, a perpendicular to the general direction of the coast, using a bisector of the angle of the lines expressing the general direction of the relevant coasts82 and the creation of a zone of joint development or joint access to resources.83

(G)  The Concept of Natural Prolongation84

A further factor is that of natural prolongation, but its precise relevance is problematic. Its initial significance, reflected in North Sea Continental Shelf, was that shelf was seen as a physical or geomophological feature appurtenant to the land territory and as a natural prolongation of land territory into and under the sea: states lacking the (p. 292) feature had no shelf entitlement.85 This encouraged the view that geological factors should enjoy qualified pre-eminence in the process of delimitation. In practice, these formulations constitute no more than a simple epitome of the shelf concept and the root of title of the coastal state. Indeed, starting with the Libya/Malta the International Court has stressed the principle of distance as a basis of entitlement and concluded that, within the areas at a distance of under 200nm from either of the coasts in question, there is no role for geological or geophysical factors either in terms of verifying title or as factors in delimitation.86 It has also been established that natural prolongation is not as such a test of equitableness.87 Even when the seabed contains marked discontinuities, these will not play any significant role as an equitable criterion, unless they ‘disrupt the essential unity of the continental shelf ’ (and in practice they rarely do),88 or occur outside areas within 200nm of the coasts in question.89

(H)  Continental Shelf Delimitation Beyond 200nm90

Delimitation of the continental shelf beyond the 200nm line is a complex process legally, geographically, and geologically. The criteria for determining the outer limits of the continental shelf are set out in UNCLOS Article 76. In contrast with continental shelf delimitation within 200nm from the baseline, when a coastal state wants to establish the outer limits of its continental shelf beyond 200nm, it has to submit particulars of such limits to the Commission on the Limits of the Continental Shelf.91 Based on the file, the Commission makes recommendations, and when these are accepted and implemented by the state, the limits of the shelf become final and binding.92

The procedure before the Commission is available only for non-contentious delimitation. The Court of Arbitration in St Pierre and Miquelon declared itself not competent to comment upon the arguments regarding French rights to continental shelf areas beyond the 200nm limit because any such decision would have constituted a pronouncement involving a delimitation not ‘between the parties’ but between each one of them and the Commission, representing the international community.93 Conversely, the Arbitration Tribunal in Newfoundland and Labrador v Nova Scotia found itself able to engage in delimitation beyond the 200nm line. It gave two reasons: first, it was a national and not an international tribunal; and second, it was called to specify the offshore areas of the two parties inter se for the purposes of the Accord Acts, which it could do by providing that the line did not extend beyond the point of (p. 293) intersection with the outer limit of the continental margin determined in accordance with international law.94 The second reason is compelling, and the St Pierre and Miquelon decision is in this as in other respects eccentric. However, in Caribbean Sea, the Court indicated that the delimitation line could not extend more than 200nm because claims to outer continental shelf had to be submitted to the Commission.95 The situation is slightly different again with respect to the International Tribunal for the Law of the Sea (ITLOS). In Bangladesh/Myanmar, the Tribunal confirmed that it possessed jurisdiction to delimit the continental shelf beyond 200nm at least as between adjacent states. More controversial was whether the jurisdiction should be exercised.96 The Tribunal eventually decided that it was appropriate to engage in delimitation beyond the 200nm limit, as delimitation would not impede the Commission in carrying out its functions;97 furthermore, it was noted, without ITLOS intervention, the shelf might never been delimited, due to a lack of consent to the Commission’s consideration by the two coastal states.98

4.  Exclusive Economic Zone Delimitation Between Adjacent or Opposite States99

The provisions of UNCLOS Article 74 concerning delimitation of the Exclusive Economic Zone (EEZ) between states with opposite or adjacent coasts are identical with those of Article 83 relating to continental shelf delimitation. Moreover, the basis of entitlement of the coastal state to the EEZ is less differentiated from that of shelf areas since the International Court emphasized the distance principle of 200nm in Libya/Malta.100 The principles of delimitation are strikingly similar, unless the coasts involved are more than 400nm apart. However, some differences may manifest themselves in balancing equitable factors, more especially when the EEZ areas to be delimited are of interest on account of fisheries rather than oil and gas.

In this context, the state practice and decisions of international tribunals relating to single maritime boundaries are significant.101 Such a boundary divides areas of (p. 294) different status, for example, a continental shelf and a fisheries zone of 200nm, as in Gulf of Maine.102 There, the Chamber applied equitable criteria essentially identical with those applicable to shelf delimitation, while emphasizing the need to use criteria suited to a multi-purpose delimitation involving the shelf and the superjacent water column.103

A further issue of interest with respect to delimitation of the continental shelf beyond 200nm is that of the ‘grey zone’ or ‘grey area’. This refers to situations in which the natural prolongation of state A’s continental shelf extends into state B’s EEZ. In Bangladesh/Myanmar, the Tribunal noted that the grey area created in Myanmar’s EEZ by reason of Bangladesh’s continental shelf did not ‘otherwise limit Myanmar’s rights [with respect to the EEZ]’,104 and granted Bangladesh the rights to the continental shelf in the area whilst giving Myanmar the rights to the superjacent water column: each state was required to ‘exercise its rights and perform its duties with due regard to the rights and duties of the other’105 by reference to UNCLOS Articles 56, 58, and 78 to 79.

5.  The Effect of Islands Upon Delimitation106

Islands may constitute a relevant circumstance for the purpose of delimiting areas of continental shelf or exclusive economic zone between opposite or adjacent states and in this context they may be given full effect107 or half-effect.108 Alternatively they may be ignored or enclaved.109

(p. 295) Much will depend on the particular geographical relationships of the island rather than its classification, which can be avoided if it is not central to a particular case. UNCLOS Article 121(2) provides that all islands, as defined, count as land territory,110 but Article 121(3) then formulates an exception. ‘Rocks which cannot sustain human habitation or economic life of their own’ have no EEZ or continental shelf. Consequently, such features need not be taken into account, as between UNCLOS parties, in delimitations beyond 12nm; whereas as a matter of customary international law the question was whether taking such features into account would have a disproportionate effect on the putative delimitation line. Thus, in Libya/Malta, the Court found it equitable to disregard the uninhabited Maltese islet of Filfa when drawing the boundary line.111

Whether an island plays a significant role in maritime delimitation is to a large extent dependent on the stage of the delimitation process at which the island is considered. If the island is taken into consideration at the initial stage of drawing the provisional line, its impact will generally be significant. If the island is assessed only at a later stage as a relevant factor for adjustment or shifting of the provisional equidistance line, its impact will be reduced considerably. The latter was the case of Serpents’ Island, a maritime feature of 0.17km2 located 20nm to the east of the Danube delta, which was not considered as generating base points for drawing the provisional line at the first delimitation stage, and its presence was later not seen as requiring adjustment of the provisional equidistance line.112 In such a case the potential impact of Article 121(3) may be occluded.

In other cases, an island may be given varying treatment depending on the act of delimitation in question. In Bangladesh/Myanmar, St Martin’s Island was given a 12nm territorial sea,113 but no additional continental shelf or EEZ so as to avoid undue distortion of the equidistance line:114 it was thus largely irrelevant in the drawing of the single maritime boundary of the continental shelf and EEZ.

Footnotes:

1  Generally: O’Connell, 2 The International Law of the Sea (1984) 684–732; Jagota, Maritime Boundary (1985); Kittichaisaree, The Law of the Sea and Maritime Delimitation in South-East Asia (1987) 57–119; Johnston & Saunders (eds), Ocean Boundary Making (1988); Weil, The Law of Maritime Delimitation (1989); Evans, Relevant Circumstances and Maritime Delimitation (1989); Evans (1991) 40 ICLQ 1; Churchill & Lowe, The Law of the Sea (3rd edn, 1999) ch 10; Antunes, Towards the Conceptualisation of Maritime Delimitation (2003); Lagoni & Vignes (eds), Maritime Delimitation (2006); Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006); Rothwell & Stephens, The International Law of the Sea (2010) ch 16; Scovazzi, ‘Maritime Delimitation Cases before International Courts and Tribunals’ (2008) MPEPIL.

3  Including, perhaps surprisingly, the maritime boundaries between Canada and the US: McDorman, Salt Water Neighbours (2009).

4  Since the first decision in 1969, 18 cases out of 87 on the Court’s docket (including cases later consolidated) have concerned either maritime delimitation or applications for the reconsideration of earlier decisions on maritime delimitation. A further four cases have concerned related questions of sovereignty over islands in overlapping maritime zones or boundaries lying along rivers.

5  E.g. North Sea Continental Shelf (Federal Republic of Germany/Netherlands; Federal Republic of Germany/Denmark), ICJ Reports 1969 p 3; Guyana v Suriname (2007) 139 ILR 566.

6  E.g. Barbados v Trinidad and Tobago (2006) 139 ILR 449.

7  Generally: Arnaut (2002) 8 OCLJ 21; Shi (2010) 9 Chin JIL 271, 279–81.

8  10 December 1982, 1833 UNTS.

9  29 April 1958, 516 UNTS 205.

10  Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), ICJ Reports 2001 p 40, 93–4.

11  As to what may be considered ‘special circumstances’, there is no closed list: Continental Shelf (Libya/ Malta), ICJ Reports 1985 p 13, 40; Guyana v Suriname (2007) 139 ILR 566, 650–1. On occasion, a tribunal may need to have recourse to the ILC commentary to the 1956 draft articles to determine the meaning of the term: e.g. Guyana v Suriname (2007) 139 ILR 566, 650; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), ICJ Reports 2007 p 659, 744. Also: Rothwell & Stephens (2010) 400.

12  ICJ Reports 2001 p 40.

13  ICJ Reports 2007 p 659.

14  (2007) 139 ILR 566.

15  Eritrea v Yemen (Phase Two) (1999) 119 ILR 417.

16  Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS Case No 16. Further; Churchill (2012) 1 CJICL 137.

17  (1909) 11 RIAA 147.

18  Delimitation of Maritime Areas between Canada and the French Republic (St Pierre and Miquelon) (1992) 95 ILR 645 (though in that case, the parties continued to update their positions based on developments occurring at UNCLOS III).

19  In the context of the territorial sea, boundaries are often delimited within the context of a single determination encompassing both the EEZ and related continental shelf areas: e.g. Guyana v Suriname (2007) 139 ILR 566, where an UNCLOS Annex VII tribunal first delimited the territorial sea, followed by the continental shelf and the EEZ.

20  Caribbean Sea, ICJ Reports 2007 p 659, 740.

21  ICJ Reports 2007 p 659, 744–5. Also: Qatar v Bahrain, ICJ Reports 2001 p 40, 179 (‘The most logical and widely practiced approach is first to draw provisionally an equidistance line and then to consider whether the line must be adjusted in light of the existence of special circumstances.’). Cf Bangladesh/Myanmar, ITLOS Case No 16, §§151–2 (holding that St Martin’s Island was not considered a special circumstance requiring abandonment of equidistance).

22  Thus, in Caribbean Sea, the Court found that the presumption of an equidistance line was displaced due to the nature of the coastline and the difficulty in identifying suitable baseline points from which a determination of equidistance could be made. The alternative was a ‘bisector’ line: ICJ Reports 2007 p 659, 741–5.

23  Ibid, 748. This will be especially important where a river mouth forms part of the land boundary: Rothwell & Stephens (2010) 398.

24  Generally: Bowett (1978) 49 BY 1; Pazarci, La Délimitation du plateau continental et les îles (1982); Hutchinson (1984) 55 BY 133; Colson (2003) 97 AJIL 91; Kunoy (2006) 53 NILR 247; Rothwell & Stephens (2010) ch 16.

25  1945 United States Presidential Proclamation No 2667, reprinted in Lowe & Talmon, The Legal Order of the Oceans (2009) 19.

26  Treaty relating to the Submarine Areas of the Gulf of Paria, 26 February 1942, 205 LNTS 121.

27  Ibid, Art 3.

28  In 1952, Chile, Peru, and Ecuador adopted the Santiago Declaration, 18 August 1952, 1006 UNTS 323, establishing an EEZ-type zone; its effect on delimitation is sub iudice in Maritime Dispute (Peru v Chile) (2008, pending). Further: Colson (2003) 97 AJIL 91.

29  29 April 1958, 499 UNTS 311.

30  North Sea Continental Shelf, ICJ Reports 1969 p 6, 38 and further chapter 2.

31  UNCLOS, Art 83(4) preserves existing delimitation agreements, including those based on different principles.

32  Nordquist (ed), 2 United Nations Convention on the Law of the Sea (1993) 953–4.

33  Libya/Malta, ICJ Reports 1985 p 13.

34  ICJ Reports 1985 p 13, 55.

35  Ibid, 30.

36  Ibid, 39.

37  Ibid, 49–50.

38  Ibid, 55.

39  Further: Scovazzi, ‘Maritime Delimitation Cases before International Courts and Tribunals’ (2008) MPEPIL, §F.

40  E.g. Qatar v Bahrain, ICJ Reports 2001 p 40, 94; Caribbean Sea, ICJ Reports 2007 p 659, 742–5; Bangladesh/Myanmar, ITLOS Case No 16, §§239–40.

41  Caribbean Sea, ICJ Reports 2007 p 659, 746; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/US), ICJ Reports 1984 p 246, 327.

42  Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), ICJ Reports 1993 p 38, 62. Also: Guyana v Suriname (2007) 139 ILR 566, 650–1.

43  Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ Reports 2009 p 61, 101.

44  Libya/Malta, ICJ Reports 1985 p 13, 46–9; Black Sea, ICJ Reports 2009 p 61, 101.

45  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial Guinea intervening), ICJ Reports 2002 p 303, 441; Black Sea, ICJ Reports 2009 p 61, 101–3; Bangladesh/Myanmar, ITLOS Case No 16, §292.

46  Black Sea, ICJ Reports 2009 p 61, 103, 129–30.

47  North Sea Continental Shelf, ICJ Reports 1969 p 3, 46–7; Continental Shelf (Tunisia/Libya), ICJ Reports 1982 p 18, 60; Libya/Malta, ICJ Reports 1985 p 13, 38–9.

48  ICJ Reports 1985 p 13, 30.

49  UNCLOS, Art 83(1); North Sea Continental Shelf, ICJ Reports 1969 p 3, 46–8, 53; Gulf of Maine, ICJ Reports 1984 p 246, 292–3, 299; Libya/Malta, ICJ Reports 1985 p 13, 39.

50  North Sea Continental Shelf, ICJ Reports 1969 p 3, 46–7, 53; Gulf of Maine, ICJ Reports 1984 p 246, 312–13; Libya/Malta, ICJ Reports 1985 p 13, 39; Dubai-Sharjah Border (1981) 91 ILR 543, 659; Barbados v Trinidad and Tobago (2006) 139 ILR 449, 521.

51  North Sea Continental Shelf, ICJ Reports 1969 p 3, 17–88; Gulf of Maine, ICJ Reports 1984 p 246, 298–9, 312–13, 328, 335; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 681; Barbados v Trinidad and Tobago (2006) 139 ILR 449, 521; Bangladesh/Myanmar, ITLOS Case No 16, §331.

52  Gulf of Maine, ICJ Reports 1984 p 246, 299–300; Libya/Malta, ICJ Reports 1985, p 13, 38–9, 57; Barbados v Trinidad and Tobago (2006) 139 ILR 449, 521.

53  North Sea Continental Shelf, ICJ Reports 1969 p 3, 36, 52–3; Gulf of Maine, ICJ Reports 1984 p 246, 300–1, 312–13, 327–32; Libya/Malta, ICJ Reports 1985 p 13, 47.

54  Libya/Malta, ICJ Reports 1985 p 13, 40.

55  North Sea Continental Shelf, ICJ Reports 1969 p 3, 49, 53–4; Tunisia/Libya, ICJ Reports 1982 p 18, 61–3; Gulf of Maine, ICJ Reports 1984 p 246, 327–31; Libya/Malta, ICJ Reports 1985 p 13, 50, 52; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 676–9; Cameroon v Nigeria, ICJ Reports 2002 p 303, 445–6.

56  Gulf of Maine, ICJ Reports 1984 p 246, 323; Libya/Malta, ICJ Reports 1985 p 13, 48–50; Jan Mayen, ICJ Reports 1993 p 38, 65–70; Cameroon v Nigeria, ICJ Reports 2002 p 303, 446–7; Barbados v Trinidad and Tobago (2006) 139 ILR 449, 523; Black Sea, ICJ Reports 2009 p 61, 116–18.

57  Anglo-French Continental Shelf (1977) 54 ILR 6, 95–8; Libya/Malta, ICJ Reports 1985 p 13, 42, 50–3; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 683–5.

58  Jan Mayen, ICJ Reports 1993 p 38, 70–3 (fisheries).

59  North Sea Continental Shelf, ICJ Reports 1969 p 3, 53–4; Tunisia/Libya, ICJ Reports 1982 p 18, 58, 64.

60  Tunisia/Libya, ICJ Reports 1982 p 18, 83–4; Gulf of Maine, ICJ Reports 1984 p 246, 310–11; Jan Mayen, ICJ Reports 1993 p 38, 75–7.

61  Cameroon v Nigeria, ICJ Reports 2002 p 303, 447–8.

62  North Sea Continental Shelf, ICJ Reports 1969 p 3, 54; Tunisia/Libya, ICJ Reports p 18, 77–8; Libya/ Malta, ICJ Reports 1985 p 13, 41.

63  Anglo-French Continental Shelf (1977) 54 ILR 6, 98; Libya/Malta, ICJ Reports 1985 p 13, 42; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 689; Maritime Delimitation in the Area between Greenland and Jan Mayen, ICJ Reports 1993 p 38, 74–5; Black Sea, ICJ Reports 2009 p 61, 127–8.

64  Anglo-French Continental Shelf (1977) 54 ILR 6, 98.

65  Tunisia/Libya, ICJ Reports 1982 p 18, 64–6; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 682–3.

66  Black Sea, ICJ Reports 2009 p 61, 118–20.

67  North Sea Continental Shelf, ICJ Reports 1969 p 3, 36, 49–50.

68  Anglo-French Continental Shelf (1977) 54 ILR 6, 100–2 (Channel Islands enclaved).

69  Ibid, 123–4 (Scilly Isles given half-effect).

70  Tunisia/Libya, ICJ Reports 1982 p 18, 88–9. For criticism of this approach: ibid, 149–56 (Judge Gros, diss). Also: Dubai-Sharjah Border (1981) 91 ILR 543, 673–7.

71  Barbados v Trinidad and Tobago (2006) 139 ILR 449, 523; Black Sea, ICJ Reports 2009 p 61, 125–6.

72  Maritime Delimitation in the Area between Greenland and Jan Mayen, ICJ Reports 1993 p 38, 70–2. Cf Cameroon v Nigeria, ICJ Reports 2002 p 303, 447–8 (irrelevance of oil practice).

73  ICJ Reports 1985 p 13, 40. The use of the term ‘equitable principles’ here is reflective of a mild conflation in the case-law, under which ‘relevant circumstances’ represent another, more situationally responsive, equitable principle: e.g. Jan Mayen, ICJ Reports 1993 p 38, 62. Also: Guyana v Suriname (2007) 139 ILR 566, 650–1.

74  Tunisia/Libya, ICJ Reports 1982 p 18, 77–8; Libya/Malta, ICJ Reports 1985 p 13, 41; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 688–9.

75  Jaenicke, in Bos & Siblesz (eds), Realism in Law-Making (1986) 51.

76  ICJ Reports 1969 p 3, 52–4. In Bangladesh/Myanmar, the test was referred to as the ‘disproportionality test’: ITLOS Case No 16, §§477–99.

77  Libya/Malta, ICJ Reports 1985 p 13, 45–6.

78  Tunisia/Libya, ICJ Reports 1982 p 18, 75–6, 78, 91, 93.

79  Anglo-French Continental Shelf (1977) 54 ILR 6, 67–8; Gulf of Maine, ICJ Reports 1984 p 246, 323; Libya/Malta, ICJ Reports 1985 p 13, 53–5.

80  Shakespeare, Twelft h Night, Act II sc 4.

81  North Sea Continental Shelf, ICJ Reports 1969 p 3, 50–1; Tunisia/Libya, ICJ Reports 1982 p 18, 59–61; Libya/Malta, ICJ Reports 1985 p 13, 40.

82  Cf the Judgment of the Chamber in Gulf of Maine, ICJ Reports 1984 p 246, 313–14; and the Judgment of the Full Court in Caribbean Sea, ICJ Reports 2007 p 659, 745–9, 759–60.

83  North Sea Continental Shelf, ICJ Reports 1969 p 3, 53; Jan Mayen Continental Shelf (1981) 62 ILR 108.

84  Generally: Hutchinson (1984) 55 BY 133; Highet, in Dallmeyer & De Vorsey (eds), Rights to Oceanic Resources (1989) 87; Colson (2003) 97 AJIL 91, 102–7; Kaye (2008) 14 OCLJ 73, 74–9.

85  ICJ Reports 1969 p 3, 22, 32, 37, 46–7, 51, 53; Jan Mayen Continental Shelf (1981) 62 ILR 108, 119, 124.

86  Libya/Malta, ICJ Reports 1985 p 13, 32–7, esp 35.

87  Tunisia/Libya, ICJ Reports 1982 p 18, 46–7.

88  Anglo-French Continental Shelf (1977) 54 ILR 6, 68–70. Also: North Sea Continental Shelf, ICJ Reports 1969 p 3, 32; Tunisia/Libya, ICJ Reports 1982 p 18, 57–8, 64.

89  Libya/Malta, ICJ Reports 1985 p 13, 35–6.

90  Generally: Kunoy (2006) 53 NILR 247; McDorman (2009) 18 J Trans LP 155.

91  UNCLOS, Annex II, esp Art 4.

92  UNCLOS, Art 76(8).

93  St Pierre and Miquelon (1992) 95 ILR 645, 648, 673–5.

94  Arbitration between Newfoundland and Labrador and Nova Scotia concerning Portions of the Limits of their Off shore Areas (2002) 128 ILR 425, 537–9.

95  Caribbean Sea, ICJ Reports 2007 p 659, 759.

96  Bangladesh/Myanmar, ITLOS Case No 16, §§360–3.

97  Ibid, §§378–90, 393.

98  Ibid, §§390–2.

99  Generally: Evensen, in Rozakis & Stephanou (eds), The New Law of the Sea (1983) 107; 2 O’Connell (1984) 727–32; Attard, The Exclusive Economic Zone in International Law (1987) 221–76; Weil (1989); Evans (1989) 39–62; 2 Nordquist (1993) 796–817; Rothwell & Stephens (2010) 401–7.

100  ICJ Reports 1985 p 35. Cf Tunisia/Libya, ICJ Reports 1982 p 18, 48–9, 114–15 (Judge Jiménez de Aréchaga), 222 (Judge Oda).

101  Generally: Oda, 2 International Law at the Time of its Codification (1987) 349; Evans (1993) 64 BY 283; Rothwell & Stephens (2010) 407–8.

102  ICJ Reports 1984 p 246. For comment: Rhee (1981) 75 AJIL 590; Legault & McRae (1984) 22 CYIL 267; Legault & Hankey (1985) 79 AJIL 961; Schneider (1985) 79 AJIL 539; Oda (1987) 349; Kaye (2008) 14 OCLJ 73.

103  ICJ Reports 1984 p 246, 326–7. Also: the Court of Arbitration decision in the Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 658–9, 685–7; Dubai-Sharjah Border (1981) 91 ILR 543; St Pierre and Miquelon (1992) 95 ILR 645, 663–4; Eritrea v Yemen (Phase Two) (1999) 119 ILR 417, 457–8; Qatar v Bahrain, ICJ Reports 2001 p 40, 91–3; Cameroon v Nigeria, ICJ Reports 2002 p 303, 440–2; Caribbean Sea, ICJ Reports 2007 p 659, 738–40.

104  Bangladesh/Myanmar, ITLOS Case No 16, §§471, 474.

105  Ibid, §475.

106  Generally: Bowett, The Legal Regime of Islands in International Law (1979); Dipla, Le Régime jurid ique des îles dans le droit international de la mer (1984); 2 O’Connell (1984) 714–23, 731–2; Symmons (1986) 35 ICLQ 344; Jayewardene, The Regime of Islands in International Law (1990); Rothwell & Stephens (2010) 404–6; Scovazzi, ‘Maritime Delimitation Cases before International Courts and Tribunals’ (2008) MPEPIL, §D2. On artificial islands: Johnson (1951) 4 ILQ 203; Papadakis, The International Legal Regime of Artificial Islands (1977); 1 O’Connell (1982) 196–7. On the Rockall issue: Symmons (1986) 35 ICLQ 344.

107  Anglo-French Continental Shelf (1977) 54 ILR 6, 123 (Island of Ushant); Bangladesh/Myanmar, ITLOS Case No 16, §§151–2 (St Martin’s Island given a full 12nm territorial sea).

108  Tunisia/Libya, ICJ Reports 1982 p 18, 88–9 (Kerkennah Islands); Anglo-French Continental Shelf (1977) 54 ILR 6, 121–4 (Scilly Isles); Gulf of Maine, ICJ Reports 1984 p 246, 336–7 (Seal Island).

109  Anglo-French Continental Shelf (1977) 54 ILR 6, 98–104 (Channel Islands); Bangladesh/Myanmar, ITLOS Case No 16, §§318–19 (St Martin’s Island given no effect with respect to the EEZ and continental shelf).

110  Also: GCTS Art 10.

111  Libya/Malta, ICJ Reports 1985 p 13, 48. Also: Qatar v Bahrain, ICJ Reports p 40, 104; Caribbean Sea, ICJ Reports 2007 p 659, 751–2; Black Sea, ICJ Reports 2009 p 61, 122.

112  Black Sea, ICJ Reports 2009 p 61, 68–70, 110–12, 122–3.

113  Bangladesh/Myanmar, ITLOS Case No 16, §§151–2.

114  Ibid, §§317–19.