Part C Future Challenges, 1 The Creeping Subjectivity of Base-Point Selection: A Lurch toward a ‘Four-Stage Approach’ (or a Return to Equitable Principles)?
Stephen Fietta, Robin Cleverly
- Coastal states — Continental shelf — Delimitation — Straits — Territorial sea — UNCLOS (UN Convention on the Law of the Sea)
This chapter examines the noticeable move of international courts and tribunals, starting with the Black Sea case, toward the subjective selection of base points for the construction of a provisional equidistance line. These cases have moved away from the ‘geometrically objective’ exercise identified by those same courts and tribunals as being central to the first stage of the so-called three-stage approach. Pursuant to that approach, subjectivity should only enter into the delimitation process at the second (relevant circumstances) and third (disproportionality) stages. The chapter questions whether courts and tribunals are being faithful to the three-stage process and its underlying rationale. Or has there been a lurch toward a four-stage process, whereby the court or tribunal considers what are the ‘appropriate’ base points for construction of a provisional equidistance line, before proceeding to construct that line? Could it be said that the level of subjectivity employed by some recent courts and tribunals augurs a decisive move away from equidistance and a return to delimitation through the application of equitable principles?