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Published online by Cambridge University Press: 09 March 2016
1 North Sea Continental Shelf cases, [1969] I.C.J. Rep. 3; Anglo-French Continental Shelf Award, (1977) 54 I.L.R. 11; Libya-Tunisia Continental Shelf case, [1982] I.C.J. Rep. 18; Gulf of Maine case (Canada v. United States), [1984] I.C.J. Rep. 246; Guinea/Guinea-Bissau Maritime Boundary Award, Feb. 14, 1985, 25 I.L.M. 252 (1986) Eng. trans.; Libya-Malta Continental Shelf case, [1985] I.C.J. Rep. 13.
2 The dissenting opinion of JudgeOda, in the Tunisia-Libya case supra note 1, at 184–90, paras. 47–55, contains a useful outline of the early evolution of the law.Google Scholar
3 The full text of Art. 6 reads as follows:
I. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary line is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
4 Supra note 1.
5 Ibid., 53, para. 101.
6 Art. 74, para, 1 (definition of the exclusive economic zone) and Art. 83, para, I (definition of the continental shelf) contain identical wording:
The delimitation of [the exclusive economic zone] [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.
7 Libya-Malta case, Joint Separate Opinion of Judges Ruda, Bedjaoui, and Jiménez de Aréchaga (hereinafter referred to as the “Joint Separate Opinion”), supra note 1, at 90, para. 37.
8 Gulf of Maine case, supra note 1, at 290, para. 81.
9 Dissenting opinion of JudgeOda, in the Tunisia-Libya case, supra note 1, at 157, para. 1.Google Scholar
10 Gulf of Maine case, supra note 1, at 385, para. 41.
11 Ibid., 386, para. 41.
12 North Sea Continental Shelf, Judgment, [1969] I.C.J. Rep. 3. Technically there were a separate cases (Denmark v. Federal Republic of Germany and Netherlands v. Federal Republic of Germany) which were heard and decided together.
13 Ibid., 17, para. 8.
14 Ibid., 53, para. 101. The exact method of delimitation was not prescribed by the Court because the parties had requested only a decision on the applicable rules and principles of law, reserving the final delimitation to themselves. Ibid., 13, para. 2.
15 Ibid., 25, para. 26.
16 Ibid., 32–45, paras. 47–81.
17 Ibid., 45, para. 81.
18 Dissenting Opinion of JudgeGros, in the Gulf of Maine case, supra note 1, at 365, para. 8.Google Scholar
19 No doubt the Court was obliged to find as it did if the evidence was strong that Art. 6 is at odds with the customary law. But the evidence was less than compelling. The Court seems to have applied more restrictive standards to the legal status of Art. 6 than it did, for example, to the Truman Proclamation on the continental shelf (supra note 12, at 33, para. 48). It laid particular emphasis on the fact that reservations to Art. 6 are permitted; but it conceded that other clauses that clearly reflect customary law are equally subject to reservation (ibid., 37, para. 65). And it suggested that the primacy of agreement in Art. 6 tended to deprive that provision of a norm-creating character — yet the more recent decisions have not hesitated to reflect this same precept in the “fundamental norm” of delimitation in customary law. (Ibid., 42, para. 72; Gulf of Maine case supra note 1, at 299, para. 112).
20 Libya-Malta case supra note 1, at 39 para. 46. The Court said that the “principle of non-encroachment by one party on the natural prolongation of the other” is “no more than the negative expression of the positive rule that the coastal State enjoys sovereign rights over the continental shelf off its coasts to the full extent authorized by international law in the relevant circumstances.”
21 North Sea cases supra note 12, at 53, para. 101.
22 Ibid., 31, para. 44.
23 Ibid., 5, para. 95.
24 Separate Opinion of JudgeMbaye, , Libya-Malta case supra note 1, at 93.Google Scholar
25 Ibid., 36, para. 40.
26 North Sea cases supra note 12, at 50, para. 93.
27 Ibid., 54, para. 101.
28 54 I.L.R. 11 (1977).
29 Ibid., 57, para. 74.
30 Ibid., 103, para. 203.
31 Ibid., 101, para. 197.
32 Ibid., 98, para. 187; and 102–3, para. 202.
33 Ibid., 117, para. 234.
34 Ibid., 121, para. 244.
35 Ibid., 57, para. 75.
36 Ibid., 55, para. 70.
37 Ibid., 101, para. 196.
38 Ibid., 54, para. 65.
39 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, [1982] I.C.J. Rep. 18.
40 Ibid., 79, para. 110.
41 Ibid., Dissenting Opinion of Judge Gros, at 149, para. 12.
42 Ibid., Dissenting Opinion of Judge Evensen, at 297.
43 Ibid., 46, para. 44.
44 Ibid., 85, para. 120.
45 Ibid., 70, paras. 93–94. While this development preceded the legal regime of the continental shelf, the Court pointed out that the historic fishery rights claimed by Tunisia as one basis for its continental shelf claim could not “be opposable to Libya east of the modus vivendi line.” Ibid., 71, para. 96.
46 Ibid., 71, para. 96.
47 Ibid., 84, para. 119.
48 See Map 3.
49 Ibid., 88, para. 127.
50 Ibid., 89, para. 128. However, Judge Evensen in dissent pointed out that the Court failed to indicate any specific reasons why a line running parallel to the Kerkennahs would have given excessive weight to those islands. Ibid., 304.
51 Ibid., 89, para. 129.
52 Ibid., Separate Opinion of Judge Jiménez de Aréchaga, at 136, para. 115.
53 Application for Revision and Interpretation of the Judgment of 2 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, [1985] I.C.J. Rep. 192.
54 Ibid., 211, para. 35.
55 Tunisia-Libya case supra note 39, at 46, para. 43; and 58, para. 68.
56 Ibid., 61, para. 73.
57 Ibid., 59, para. 70.
58 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, [1984] I.C.J. Rep. 246. The case was the first decided by a “Chamber” of the International Court of Justice (pursuant to Art. 26, para. 2 of the Statute), as opposed to the full Court.
59 Ibid., 340, para. 231.
60 United States Reply, Chapter V, at 153.
61 Ibid., Chapter III, Section 1, at 105.
62 Supra note 58, at 271, para. 36.
63 Ibid., 333, para. 213. The line in fact started at a “point A” some miles off the coast, in accordance with the Special Agreement. This was because the course of the line landward of that point could have been influenced by Machias Seal Island and North Rock, the sovereignty of which is in dispute. Ibid., 265, para. 20.
64 The Chamber noted that it had “borne constantly in mind the problem of determining the final segment of the delimitation line when applying itself so meticulously to the task of establishing the two previous segments” Ibid., 338, para. 226.
65 Ibid., 335, para. 189.
66 Ibid., 331, para. 206.
67 The Canadian claim in this sector was in fact an adjusted line that disregarded Cape Cod and Nantucket as distorting “special circumstances.” Ibid., 287, para. 77.
68 Ibid., 325, para. 187.
69 Ibid., 334, para. 218.
70 Ibid., 335, para. 218. It may have been described as an “auxiliary criterion,” but it was really more than that. An unadjusted median line running parallel to the Gulf coasts of Massachussets and Nova Scotia would not have intersected the bisector before the closing line of the Gulf. But the whole purpose of the exercise was to interrupt the course of the bisector, and turn the line seaward, well before that point. Ibid., 331, para. 207.
71 Ibid., 337, para. 222. The resulting coastal ratio was 1.32 to 1 in favour of the United States.
72 Ibid., 277, para. 54.
73 Ibid., 341, para. 235.
74 Ibid., 342, para. 237.
75 Ibid., 297, para. 106.
76 Ibid., 290, para. 81; and 313, para. 158; and 319, para. 174.
77 Ibid., 298–99, paras, 110–11.
78 The Chamber was composed of Judges Ago (Italy), (President), Gros (France), Mosler (Germany), Schwebel (United States), and Cohen (Canada).
79 Ibid., 299–300, para. 112.
80 The Chamber characterized judicial or arbitral settlement as “simply an alternative to direct and friendly settlement between the parties.” Ibid., 266, para. 22. The North Sea judgment linked the obligation to negotiate to Art. 33 of the Charter of the United Nations on the peaceful settlement of international disputes. In contrast to the Gulf of Maine decision, it did not suggest the existence of an obligation to submit to third party settlement, noting that “judicial or arbitral settlement is not universally accepted.” Supra note 12, at 47, para. 86.
81 Gulf of Maine case supra note 58, at 327, para. 195.
82 Ibid., 326, para. 193.
83 25 I.L.M. 252 (1986) English trans. The French text is the “only one valid in law.”
84 Judge Lachs (Poland), President, Judge Mbaye (Senegal), and Judge Bedjaoui (Algeria).
85 Supra note 83, para. 42
86 Ibid.
87 Neither state was a party to any of the 1958 Conventions on the Law of the Sea. Ibid., para. 43.
88 Ibid., paras. 46 and 48.
89 Ibid., para. 50.
90 For example, while an early draft had mentioned territorial waters, that reference had been quickly dropped (paras. 78, 79). The map annexed to the treaty used dotted lines to mark other offshore limits in question, in contrast to the manner in which the land boundary had been depicted (para. 54). In 1886, moreover, Portugal had asserted only a six-mile territorial sea, while the treaty line extended over too miles from the coast (para. 80). Finally, in 1958, in a matter concerning an offshore concession straddling the 10° 40′ line, both France and Portugal “ont manifesté leur conviction que la convention n’avait pas établi de frontière maritime entre les deux Guineé” (para. 63).
91 Ibid., para. 88.
92 Ibid., para. 102.
93 Ibid., paras. 99 and 100.
94 Ibid., para. 104.
95 Ibid., para, 101 and sketch map appended to Award.
96 Ibid., para. 106.
97 Ibid.
98 Ibid., para. 111.
99 Ibid., para. 108.
100 Ibid., para. 94.
101 Ibid., para. 93. A dispute between Guinea-Bissau and Senegal over this boundary apparently centred on the applicability of a 1959–60 accord between France and Portugal.
102 Ibid., para. 104.
103 Ibid., para. 103.
104 Ibid., para. 108.
105 The relatively straight northwest-to-southeast façade of which these two states form a part consists of Senegal, Gambia, Guinea-Bissau, Guinea, Sierra Leone, and Liberia.
106 Ibid., para. 111.
107 Continental Shelf (Libyan Arab Jamahiriya/Malta, Judgment, [1985] I.C.J. Rep. 13.
108 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, [1984] I.C.J. Rep. 3.
109 Ibid., 11–13, para. 17.
110 Ibid., 21, para. 33.
111 Ibid., 22, para. 34.
112 Ibid., 25, para. 41.
113 Ibid., 158, paras. 28 and 29.
114 Ibid., 159, para. 31.
115 Supra note 107, at 26, para. 22.
116 Ibid., 137, para. 23.
117 Ibid., 173.
118 Ibid., 175.
119 Ibid., 28, para. 23.
120 Ibid., 47, para. 62.
121 Memorial of Malta, Figure B, at 121. As the Counter-Memorial of Malta said at 153, para. 323, the “figure of a trapezium illustrates the generous proportion of the pertinent shelf areas which fall to Libya when the equidistance method is used and how that method reflects the extensive west-east reach of the Libyan coastline.”
122 Dissenting opinion of Judge Schwebel, supra note 107, at 182. See also the dissenting opinion of Judge Mosler, who also accepted the triangle/trapezium argument. Ibid., 121. One possible objection is that there is no legal rule that confines the seaward extension of the short coast at the apex to the area enclosed by the two sides of the triangle. See Libyan Counter-Memorial, Diagram A (facing 160) and Annex at 4–5. What seems to have given the triangle concept some plausibility in this situation is that the Maltese zone was effectively confined by the seaward extensions of Italy and Greece on the east and Italy and Tunisia on the west.
123 Supra note 107, at 50, para. 68.
124 Ibid., 51, para. 72. And the Court noted that Malta, as an independent state, could not be given less weight than if it formed part of Italy. See also at 42, para. 53.
125 This is the expression used in the Joint Separate Opinion, ibid., 77, para. 3.
126 Ibid., 51, para. 72. In situating the Libya-Malta median, the Court disregarded the Maltese rock of Filfla. Some of the concurring judges questioned the assumption that the Libya-Sicily median could be taken as a given. The Joint Separate Opinion pointed out, inter alia, that this assumption disregarded “the great disproportion” between “the coasts of Libya and Sicily — 3.5 to 1 in Libya’s favour.” (Ibid., 77, para. 3).
127 Ibid., 52, para. 73.
128 Ibid., 41, para. 49. See also Aegean Sea Continental Shelf, Judgment, [1978] LO.J. Rep. 36, para. 86. The Court declined jurisdiction on a unilateral application by Greece respecting the delimitation of the Greece-Turkey continental shelf because the Greek instrument accepting the jurisdiction of the Court excluded disputes related to the “territorial status” of Greece. The Court noted, inter alia, that “continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal State.”
129 Supra note 107, at 30, para. 27.
130 Ibid., 46, para. 61.
131 Ibid., 56, para. 77. See also at 37, para 42; and 47, para. 63.
132 Ibid., 40–41, para. 49.
133 Ibid., 83–84, para. 21.
134 Ibid., 48, para. 64.
135 Ibid., Joint Separate Opinion, at 85, para. 26.
136 Ibid., 43, para. 55.
137 Ibid., 45, para. 58.
138 Ibid., 49, para. 66.
139 Ibid., 36, para. 41.
140 Ibid., 35, para. 40.
141 Ibid., 33, para. 34.
142 Friedmann, , “The North Sea Continental Shelf Cases: A Critique” (1970) 64 A.J.I.L. 229, 239.CrossRefGoogle Scholar
143 Ibid., 238.
144 North Sea cases supra note 12, at 51, para. 96.
145 Ibid., 53, para. 101.
146 Ibid., 22, para. 18.
147 Collins, and Rogoff, , “The Gulf of Maine Case and the Future of Ocean Boundary Delimitation” (1986) 38 Maine L. Rev. 1,CrossRefGoogle Scholar 35 demonstrate with cogency that the “legal theory of entitlement to ocean areas” is a major factor supporting the primacy accorded to geography in the Gulf of Maine case.
148 Ibid., 31, para. 43.
149 Ibid., 31–32, paras. 43 and 44.
150 Tunisia-Libya case supra note 39, at 88, para. 126.
151 Canadian Counter-Memorial, at 233–37, paras. 564–68; Reply of Malta, at 47–50, paras. 87–95.
152 The Chamber did not endorse the United States argument that the “primary” coast of Maine should be entitled to an unlimited frontal extension into the outer area, and the method it adopted does not reflect that argument.
153 GuLf of Maine case supra note 58, at 272, para. 41 and 337, para. 224. Similarly, in the Tunisia-Libya case the Court excluded from consideration those coasts whose seaward extensions “cannot overlap” with those of the other party because they face in the wrong direction. Supra note 39, at 61, para. 75.
154 Supra note 107, at 40, para. 49.
155 Supra note 12, at 36, para. 57.
156 Ibid., 53, para. 101; and 36, para. 57.
157 Supra note 58, at 327, para. 195.
158 Ibid., 339, para. 227.
159 Tunisia-Libya case supra note 39, at 61, para. 75; Gulf of Maine case supra note 58, at 272, para. 41, and 337, para. 224.
160 Supra note 107, at 83, para. 21.
161 Anglo-French Continental Shelf Award supra note 28, at 66–67, para. 101.
162 Libya-Malta case supra note 107, at 49, para. 66. The Tunisia-Libya case provides an example of proportionality as an ex post facto test of the equity of a line. Supra note 39, at 91, paras. 130–31.
163 As the Joint Separate Opinion in the Malta case put it, “the comparison in the length of the pertinent coasts has always been a part of the intellectual process leading to an equitable delimitation, and not something which comes into play after a line has been established.” Ibid., 82, para. 20.
164 Dissenting Opinion of Judge Oda in the Tunisia-Libya case supra note 39, at 258, para. 162.
165 Gulf of Maine case supra note 58, at 334, para. 218; Libya-Malta case supra note 107, at 45, para. 58 and Joint Separate Opinion, at 88, para. 29.
166 Thus the recent cases have spoken in terms of a two-stage operation, the first being a “provisional delimitation,” followed by a “correction.” Gulf of Maine case ibid., 333, para. 215; Libya-Malta, ibid., 46, para. 60.
167 Ibid., 49, paras. 66 and 67.
168 Anglo-French Continental Shelf Award supra note 28, at 100, para. 195; Libya-Malta case supra note 107, at 42, para. 54.
169 Ibid., 83, para. 21.
170 Supra note 12, at 50, para. 91.
171 Libya-Malta case supra note 107, at 37, para. 43; the North Sea cases supra note 12, at 30, para. 42.
172 Ibid., 31, para. 43.
173 Supra note 58, at 297, para. 106.
174 Gulf of Maine case, ibid., 313, para. 157.
175 Supra note 12, at 18, para. 8. This is because a lateral equidistance line outside a concavity is controlled by only two basepoints, which govern its course both close to shore and at great distances out to sea. The result is that any distortion created by the placement of the basepoints becomes progressively magnified. In the case of opposite coastlines, no such distortion is likely to occur because a succession of basepoints controls the line as it moves between the coasts, reflecting their changing configuration.
176 Ibid., 36, para. 57.
177 Ibid.
178 Supra note 107, at 47, para. 63.
179 Supra note 83, para. 98.
180 The Court held that the law “does not involve any imperative rule,” provided a “reasonable result is arrived at.” Supra note 12, at 49, para. 90.
181 Supra note 58, at 327, para. 195.
182 Ibid., 329, para. 199.
183 Ibid.
184 Tunisia-Libya case supra note 39, at 88, para. 126.
185 In a sense, this is why the diagonal equidistance line through the Gulf of Maine failed to reflect the change in direction of the Massachussets coast. Supra note 58, at 325, para. 189. An equidistance line is controlled by the most salient points on the coast. Ibid., 329, para. 201. The change in direction in the United States coast occurred in a recessive or concave portion of that coast and was therefore not reflected by a basepoint.
186 Supra note 39, at 79, para. 109.
187 Supra note 58, at 329–30, para. 201.
188 Ibid., 332, para. 210.
189 Supra note 12, at 34–35, paras. 51–53.
190 Separate Opinion of Judge Valticos in the Libya-Malta case supra note 107, at 106, para. 7.
191 Supra note 58, at 330, para. 202.
192 Ibid., 332, para. 212.
193 Supra note 107, at 83, para. 20.
194 Supra note 58, at 320, para. 176.
195 Supra note 83, para. 107.
196 See North Sea cases supra note 12, at 34, para. 51.
197 This was the course adopted with respect to the island of Filfla in the Malta case. Supra note 107, at 48, para. 64.
198 Op. cit. supra note 147, at 39.
198 Gulf of Maine case supra note 58, at 327, para. 195.
200 Ibid., 329, para. 199.
201 Collins and Rogoff, op. cit. supra note 147, at 36, expressed the point very forcefully: “It is inconceivable that, standing alone, nongeographical factors such as usage, economic dependency, or resource management could confer sovereign rights to ocean areas.”
202 Supra note 53, at 211, para. 35.
203 Supra note 12, at 51, para. 95.
204 Supra note 107, at 40, para. 48.
205 Canadian Counter-Memorial, at 246–47, paras. 588–93.
206 Supra note 28, at 82, para. 143, and 97, para. 187.
207 Supra note 39, at 84, para. 118.
208 Supra note 58, at 277, para. 54.
209 Supra note 107, at 36, para. 41.
210 Ibid., 36, para. 40; Separate Opinion of Judge Valticos, ibid., 105.
211 Supra note 39, at 77, para. 107.
212 Supra note 58, at 342, para. 237.
213 The “unity of deposits” (i.e., oil and gas fields) was mentioned in the North Sea cases (supra note 12, at 52, para. 97) as a “factual element” that could be taken into account, at least in negotiations. It was not, however, implied that this line should necessarily be drawn to preserve this unity. See Separate Opinion of Judge Jessup, at 67 ff. Security considerations were cited in the original Truman Proclamation of 1945 as one justification for the proposed continental shelf regime.
214 Supra note 12, at 50, para. 93. See also the decision on the Tunisian Application for Revision and Interpretation. Supra note 53, at 211, para. 35.
215 The geographical stage of the analysis may itself be subdivided into two steps — first a “provisional delimitation” and then a “correction” on the basis of an “auxiliary criterion.” Gulf of Maine case supra note 58, at 278, para. 59; Libya-Malta case supra note 107, at 46, para. 59.
2l6 Supra note 58, at 339–44, paras. 230–46.
217 Supra note 83, paras. 112–25.
218 Supra note 107, at 39, para. 45.
219 Ibid., 114.
220 Ibid.
221 See the Separate Opinion of Judge Valticos in the Malta case, ibid., 108, para. 13.
222 Art. 38, para. 2 of the Statute of the International Court of Justice. See, e.g., Gulf of Maine case supra note 58, at 278, para. 59; Tunisia-Libya case supra note 39, at 60, para. 71; Libya-Malta case supra note 107, at 39, para. 46.
223 Supra note 107, at 39, para. 45.
224 Ibid., 38, para. 45; Tunisia-Libya case supra note 39, at 59, para. 70.
225 Dissenting Opinion of Judge Gros in the Gulf of Maine case supra note 58, at 386, para. 41.