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Islands and the Delimitation of the Continental Shelf: A Framework for Analysis

Published online by Cambridge University Press:  27 February 2017

Donald E. Karl
Donald E. Karl*
Affiliation:
Of the California Bar
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Extract

This article examines one of the recurring problems in the law of the sea—the treatment of islands in the delimitation of the continental shelf between opposite and adjacent states—in light of developments at the Third UN Conference on the Law of the Sea, in particular, the adoption of “equitable principles” as the standard for delimitation of the continental shelf and exclusive economic zone between adjacent and opposite states. On the assumption that the content of these equitable principles may be derived from contemporary state practice in maritime delimitations, this state practice is used as a basis for the construction of an analytical model of the continental shelf problem of islands. This model relies primarily on an island's relative location and secondarily on its relative size with respect to the delimiting states. It provides a framework for determining how an island should be treated in a given delimitation. Though the model is, out of necessity, based upon state practice in continental shelf delimitations, the premises underlying the model are not so limited and thus the general principles derived from this analysis will have an important bearing on the new problem of the delimitation of the exclusive economic zone.

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 4 , October 1977 , pp. 642 - 673
Copyright
Copyright © American Society of International Law 1977

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References

1 In conformity with the view taken by the International Court of Justice in the North Sea Continental Shelfcases, [1969] ICJ Rep. 3, [hereinafter cited as [1969] ICJ REP.].

2 Informal Composite Negotiating Text, Arts. 74 and 83, UN Doc. A/CONF.62/ WP.10 (1977) [hereinafter cited as Composite Text].

3 For the purposes of this article, “island” refers only to dependentinsular territories, and thus it is assumed that independent insular states should be treated no differently from mainland states. This assumption will sometimes lead to apparently inconsistent treatment for similarly situated islands depending on their political status, but it is felt that the assumption is necessary to reflect the favored position of independent states in the emerging body of the law of the sea. See, e.g.,the Transitional Provision of the Composite Text, supranote 2, at 153; see alsonote 14, infra.The assumption is discussed and reexamined in notes 99, 108, infra.The operative definition of “island” is presently contained in Article 10( 1) of the Convention on the Territorial Sea and Contiguous Zone, doneApril 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205, 52 AJIL 834 (1958) (effective Sept. 10, 1964): An island is a naturally formed area of land, surrounded by water, which is above water at high tide. This definition has been retained verbatimin Article 121, paragraph 1, of the Composite Text, supranote 2.

4 Convention on the Continental Shelf, doneApril 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311, 52 AJIL 858 (1958) (effective June 10, 1964), Art. 1; Composite Text, Art. 121, para. 2, supranote 2.

5 See Lauterpacht, , Sovereignty over Submarine Areas, 27 BRIT. Y.B. INT. L. 376, 410 (1950)Google Scholar; Boggs, , Delimitation of Seaward Areas under National Jurisdiction, 45 AJIL 240, 251-53, 256-59 (1951).CrossRefGoogle Scholar

6 See, e.g.[1951] 1 Y.B. INT. L. COMM. 411, UN Doc.A/CN.4/Ser.A/1951; [1953] 1 Y.B. INT. L. COMM. 126-34, UN Doc.A/CN.4/Ser.A/1953.

7 For example, both Italy and Iran submitted proposals which gave little or no effect to islands in continental shelf delimitations but were designed to protect their continental shelf interests vis-à-vis neighboring states with insular territories. SeeItaly: proposal, UN Doc.A/CONF.13/C.4/L.25/Rev.l, 6 United Nations Conference On The law of the sea, off. Recs., 4th Comm. (Continental Shelf), UN Doc.A/CONF. 13/42 at 133 (1958) [hereinafter cited as 6 LOS LOR]; Iran: proposal, UN Doc.A/ CONF.13/C.4/L.60, id.at 142.

8 Article 6 provides: 1. 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 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. Convention on the Continental Shelf, supranote 4. Most delegates felt that the problem of islands could best be handled by resort to the “special circumstances” exception in Article 6 although there were differences of opinion as to whether a state should always be entitled to invoke that exception when its islands were located on the continental shelf of another state. 6 LOS LOR, supranote 7, at 93-95.

9 Prior to the Conference, in the sessions of Sub-Committee II of the General Assembly's Seabed Committee, most of the proposals were rather blunt and reflected the participants’ fundamental disagreement as to whether or not islands should be accorded full rights under the regime of the continental shelf. CompareUN Doc. A/AC.138/SC.II/L.21, 28 Gaor Supp. (No. 21), Vol. III at 19-21, UN Doc.A/9021 (1973), withUN Doc. A/AC.138/SC.II/L.33, id.at 71. But seeUN Doc.A/AC.138/ SC.II/L. 43, id.at 98.

10 See, e.g.,Turkey: draft articles on the regime of islands, UN Doc.A/CONF. 62/C. 2/L.55 (1974) Art. 3(2). 3 Third United Nations Conference on the law of the sea, off . recs., documents of the conference 230(1975) [hereinafter cited as 3 Los III:Or]. The categorization of islands according to the size of their population is an incredibly complex and politically infeasible task. The maintenance of a dichotomy between inhabited and uninhabited islands would seem to be both manageable and useful. However, even this formulation has its problems because some islands, though “occupied” continuously, are not truly inhabited. Most proposals that addressed the question of population sought to draw the line at permanent population. See, e.g.,Romania: draft articles on definition of and regime applicable to islets and islands similar to islets, UN Doc.A/CONF.62/C.2/L.53 (1974), id.at 228-29. It has been pointed out, and rightly so, that islands which are presently unable to sustain a permanent population may be able to do so in the future if they receive the right to exploit the resources in an economic resource zone and on a continental shelf. UN Doc.A/CONF.62/C.2/SR.40 (1974) (statement of Mr. Dudgeon (United Kingdom)), 2 Third United Nations Conference On the law of the Sea, off. Recs., summary records of meetings 28 (1975) [hereinafter cited as 2 Los III:OR].

11 For example, Ireland proposed that: … In determining a median line for the purposes of this article account may be taken of an island only if it is inhabited and if … (ii) It contains at least one tenth of the land area and population of the State concerned. Ireland: draft article on delimitation of areas of the continental shelf between neighboring States, UN Doc.A/CONF.62/C.2/L.43 (1974), 3 LOS III:OR, supranote 10, at 220. The size of an island would also seem to be an important factor. If all islands were accorded full rights in the continental shelf and economic resource zone, very small islands would receive disproportionately large benefits. For example, an island one mile in diameter would receive a continental shelf area of approximately 125,000 square miles. This result may be especially disconcerting when an island is part of a larger coastal state to which most of the benefits accrue. Seenote 14, infra.Nonetheless, as a practical matter, it is very difficult to categorize islands on the basis of size since it is impossible to “draw the lines” between categories without offending some states. But seeR. Hodgson, Islands: Normal And Special Circumstances 17-18 (1973). Further, it should be noted that many insular states and large mainland states receive what might be termed “disproportionate” benefits. See generally Theoretical Areal Allocations of Seabed to Coastal States Based on Certain United Nations Seabed Committee Proposals,Office Of The Geographer, Dept. Of state, International Boundary Study, Series A,Limits In The Sea, No. 46 (Aug. 12, 1972) [series hereinafter cited asLimits In The Sea].

12 See, e.g.Romania: draft articles on definition of and regime applicable to islets and islands similar to islets, UN Doc.A/CONF.62/C.2/L.53 (1974), 3 LOS III:OR, supranote 10, at 228. The economic viability of an island will depend to some degree on the island's size and population. SeeUN Doc.A/CONF.62/C.2/SR,40 (1974) (statement of Mr. Dudgeon (United Kingdom)), 2 LOS IILOR, supranote 10, at 288.

13 See, e.g.,Turkey: draft article on delimitation between States: various aspects involved, UN Doc.A/CONF.62/C.2/L.23 (1974), 3 LOS IILOR, supranote 10, at 201.

14 See, e.g.,Turkey: draft articles on the regime of islands, UN Doc.A/CONF.62/ C.2/L.55 (1974), id.at 230. At the Conference, there was considerable discussion of the political relationships of islands and mainland states. SeeUN Doc.A/CONF.62/C.2/SR.40 (1974), 2 LOS III:OR, supranote 10, at 287-89. Developing countries were concerned that the resources obtained from an island's continental shelf and economic resource zone would be used for the benefit of the mother state. Id.at 288; seeAlgeria, Dahomey, Guinea, Ivory Coast, Liberia, Madagascar, Mali, Mauritania, Morocco, Sierra Leone, Sudan, Tunisia, Upper Volta, and Zambia: draft articles on the r6gime of islands, UN Doc.A/CONF.62/C.2/L.62/Rev.l (1974), 3 LOS III:OR, supranote 10, at 232. Some delegates thought that political status, if at all relevant, should be discussed with respect to all dependent territories and not only islands. See, e.g.,UN Doc.A/ CONF.62/C.2/SR.39 (1974) (statement of Mr. Ballah (Trinidad and Tobago)), 2 LOS IILOR, supranote 10,at 282. Consequently many of the later proposals dealt with the political status of all dependent territorie. See, e.g.,Argentina, Bolivia, Brazil, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Libyan Arab Republic, Mexico, Morocco, Nicaragua, Panama, Paraguay, Peru, and Uruguay: draft article on islands and other territories under colonial domination or foreign occupation, UN Doc.A/CONF.62/C.2/L.58 (1974), 3 LOS III: OR, supranote 10, at 232; Fiji, New Zealand, Tonga, and Western Samoa: draft articles on islands and on territories under foreign domination or control, UN Doc.A/ CONF.62/C.2/L.30 (1974), id.at 210. The latter proposal formed the basis for the Transitional Provision in the Composite Text, which provides that: The rights recognized or established by the present Convention to the resources of a territory whose people have not attained either full independence or some other self-governing status … shall be vested in the inhabitants of that territory, to be exercised by them for their own benefit and in accordance with their own needs and requirements. Composite Text supranote 2, at 153. It should be noted that the Transitional Provision refers only to the exercise of rights in maritime zones, and hence it has no effect on the allocation or delimitation of those zones.

15 Not even the relatively innocuous proposal by France that islands be considered as “special circumstances” in the delimitation of maritime areas was included in the Composite Text. See France: draft article on the delimitation of the continental shelf or of the economic zone, UN Doc./CONF.62/C.2/L.74 (1974), 3 LOS IILOR, supranote 10, at 237.

16 See generally,UN Doc.A/CONF.62/C.2/SR.38-40 (1974), 2 LOS IILOR, supranote 10; at 278-89. This is not meant to imply that islands were given only token consideration at the Conference. There were many delimitation formulae contained in the working papers on the regime of islands. See Informal Working Paper No. 13 (Aug. 20, 1974); Informal Working Paper No. 13/Rev. 2 (Aug. 27, 1974). It is also interesting to note that the working papers on the continental shelf contained references to islands in their various delimitation formulae while the working papers on the economic resource zone did not. CompareInformal Working Paper No. 3/Rev. 1 (Aug. 12, 1974), Informal Working Paper No. 3/Rev. 2 (Aug. 23, 1974), withInformal Working Paper No. 4/Rev. 1 (Aug. 27, 1974). This distinction is evident in the first comprehensive working paper of the Conference. SeeThird United Nations Conference on the Law of the Sea, Main Trends (Second Committee), UN Doc.A/CONF.62/C.2/WP 1 at 48, 72-73 (Oct. 15, 1974). The absence of any reference to islands in the proposed articles on delimitation in the Composite Text is perhaps best explained in the report of the U.S. delegation: What principles apply to the delimitation of the economic zone or continental shelf between adjacent and opposite States? Any precise formula will tend to divide the Conference since for each coastal State that supports a particular rule— e.g., equidistance—another naturally reacts in fear that it will lose some area. This problem has in turn given rise to arguments over the weight to be given islands in such delimitations and, even further, to arguments that small or uninhabited islands are not entitled to an economic zone at all. The realization is growing that the Conference could become hopelessly bogged down if it tries to deal definitively with essentially bilateral delimitation problems. “Third United Nations Conference on the Law of the Sea, Caracas, Venezuela, June 20-August 29”, U.S. Delegation Report at 13 (undated).

17 Composite Text, supranote 2.

18 Paragraph 1 is identical to the definition of island contained in the 1958 Convention on the Territorial Sea and Contiguous Zone. Seenote 3, supra.Paragraph 3 is the only remnant of the widespread interest in insular characteristics that prompted many of the proposals discussed in notes 10-14, supra.It is worth noting that “rocks” are left undefined in the Composite Text. It is further worth noting that low-tide elevations, when wholly located within the territorial sea, are not denied continental shelves or exclusive economic zones, although this fact is of little operative significance. SeeComposite Text, Art. 13, supranote 2.

19 The most noteworthy examples of such concepts are (1) straight baselines drawn to and from islands and atolls and (2) the “archipelagic state.” The use of straight baselines, first upheld in the Fisheriescase, [1951] ICJ REP. 116, was codified in Article 4 of the 1958 Convention on the Territorial Sea and Contiguous Zone, supranote 3, and appears in Article 7 of the Composite Text, supranote 2, substantially unchanged. This concept is likely t a have an effect because it is often applied in situations which are quite different from that in the Fisheriescase. For example, Burma has drawn a baseline 222 miles in length. United nations legislative Semes, national legislation and treaties relating to the territorial sea, The Contiguous Zone, The Continental Shelf, The High Seas And To The Fishing And Conservation Of The Living Resources Of The Sea, UN Doc.ST/LEG/SER.B/ 15 at 49 (1970) [hereinafter cited as UNLS/15], See also Straight Baselines: Ecuador,Limits In The Sea, supranote 11, No. 42 (May 23, 1972); see generallyHodgson, supranote 11, at 20-23. The “archipelagic state” is a rather recent development in the law of the sea which appears in Articles 46-54 of the Composite Text, supranote 2. A state qualifying as an archipelagic state is entitled to draw straight baselines between its islands and claim the waters inside as “archipelagic waters” if certain conditions are satisfied. Arts. 47 and 49, para. 1. The measurement of maritime zones from these baselines will obviously give an archipelagic state a considerable advantage in the delimitation of these zones. However, due to the limited number and geographical location of archipelagoes (seeHodgson, supranote 11, at 24-36), there are only a few situations where an archipelagic state will be able to invoke this concept to the detriment of another state. But see Continental Shelf Boundary: India-Indonesia,Limits In The Sea, supranote 11, No. 62 (Aug. 25, 1975).

20 Article 74, which governs the delimitation of the exclusive economic zone, contains identical language.

21 [1969] ICJ Rep. 3.

22 It is worth noting that the Court could have said more about islands since there were islands lying off the coasts of all three parties to the case. Professor Goldie has suggested that these islands, the East, West, and North Frisian Islands, and, in particular, “the islands of Sylt and Borkum had the potentiality of strongly influencing, and possibly distorting continental shelf delimitations” among the three states. Goldie, The International Court of Justice's “Natural Prolongation” and the Continental Shelf Problem of Islands,4 neth. Y.b. Int. L. 237, 245 (1973). While this assertion may be partially true if Sylt and Borkum were the only islands to be given effect, the configuration of the Frisian Islands as a group would dictate that if one island is to be given effect then all should be given effect. If this were done, there would not be any significant change in the boundary line because all of the Frisian Islands follow the general direction of the coast and their inclusion would not alter the macro geography underlying the inequitable delimitation, i.e.,the concavity of the coastline. Similar reasoning applies to the German island of Helgoland, although its use as a base point would have mitigated but not eliminated the adverse effects resulting from Germany's concave coastline. It is further worth noting that none of the parties attempted to make the islands an issue in the case. This is undoubtedly due to the fact that the inclusion of the islands would not have altered the boundary sufficiently to cause a shift in the rights to the valuable North Sea oil deposits—the ultimate and underlying issue in the case.

23 An equidistance line is a line which leaves to each of the states concerned all those portions of the continental shelf that are nearer to a point on its own coast than they are to any point on the coast of the other state. An equidistance line may consist of a “median” line between opposite states or a “lateral” line between adjacent states. For a detailed description of the principle of equidistance, see E. Brown, The Legal Regime Of Hydrospace 71-73 (1971).

24 The Court held that: (1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other; (2) if, in the application of the preceding subparagraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, use, or exploitation for the zones of overlap or any part of them. [1969] ICJ REP. 3, 53. The Court went on to specify the “relevant circumstances” that were to be taken into account in effecting a delimitation according to equitable I principles. (1) the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; (2) so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved; (3) the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region. Id.at 54.

25 Supranote 4.

26 See[1953] 1 Y.B. Int. L. Comm. 128-32, UN Doc. A/CN.4/SER.A/1953; 2 id.at 216. Most commentators also thought that islands were to be dealt with under the “special circumstances” rubric. See, e.g., Gutteridge, , The 1958 Geneva Convention on the Continental Shelf, 35 Brit. Y.B. Int. L. 102, 120 (1959)Google Scholar (“One clear example of ‘special circumstances’ is … the presence of islands“); Padwa, Submarine Boundaries,9 Int.&Comp. L.Q. 628, 647 (1960) (“If allislands were included for purposes of measurement, it might lead to extremely inequitable and implausible results in determining the boundary.“)

27 Early in its opinion, the Court did restate the contention of the Netherlands and Denmark that special circumstances did not include a concave coastline, such as that of the parties on the North Sea, but referred only to situations such as the presence of islands. [1969] ICJ rep. 3, 20. The Court did not comment upon the validity of this statement.

28 Id.at 36.

29 Id.at 49-50.

30 Id.at 50.

31 Id.

32 Id.

33 Seenote 24, supra.

34 In an interesting and original article, Northcutt Ely surveyed state practice up to 1971 and found that the presence of small islands (islets in his terminology) has generally been ignored for the purpose of delimitation though these islets have often been conceded a maritime zone not exceeding twelve miles in width which he equated with the contiguous zone. Ely, Seabed Boundaries Between Coastal States: The Effect to be Given Islets as “Special Circumstances,”6 Int. Lawyer 219, 235-36 (1972). He concluded that: … an islet which is denied effect as a base point for the calculation of a median line as against an opposite coast, or the calculation of an equidistance line between adjacent States on the same coast, for demarcation of continental shelf boundaries, is, nevertheless, to be accorded continental shelf rights in an area of the seabed and subsoil co-extensive with its 12-mile contiguous zone. Id.at 236.

35 It is necessary to state two caveatson the use and interpretation of state practice. First, and most important, agreements on delimitation do not always disclose the method employed to arrive at a boundary line, if indeed a “method” was used. In such cases there is obviously considerable latitude for speculation as to how the agreed boundary was located. Consequently, in my use of this state practice in support of the model, I am only saying that my proposed framework for the treatment of islands would lead to a similar delimitation and notthat the principles advanced herein were in fact used to fix that line. Second, the very existence of an agreement implies that disincentives to agreement, such as the presence of islands, either were regarded as insignificant by the parties or were overcome by independently operating incentives such as the desire to exploit resources. In either case, care must be taken in the generalization of principles contained or exemplified in these agreements to alldelimitation disputes.

36 The application of the principle of equidistance rarely takes the pure form where all points on the median or lateral line are equidistant from the nearest points on the baselines. Seenote 23, supra.Rather, the boundary lines are drawn by connecting equidistant or nearly equidistant points with straight line segments. See, e.g., Continental Shelf Boundary: Finland-Sweden,Limits In The Sea, supra “note 11, No. 71 (June 16, 1976). This is a choice of convenience and not a disavowal of the principle of equidistance. If everypoint on an equidistance line were required to be an equal distance from the coasts of the delimiting states, it would be difficult to make an at-sea determination of the line when the states involved have even slightly irregular coastlines. However, under the modified application of the principle, the chosen equidistant or reference points can be marked with a buoy. The number of reference points that are used will depend on the geographical configuration of the coasts, the size of the area to be delimited, and the states’ desire for an exact delimitation. Most boundaries between opposite states are composed of only 10-20 reference points. See, e.g., Agreement between Sweden and Norway concerning the delimitation of the continntal shelf,United Nations Legislative Series, National Legislation And Treaties Relating To The Law Of The Sea, UN Doc. ST/LEG/SER.B/16 at 413 (1974) [hereinafter cited as UNLS/16], Continental Shelf Boundary: Norway-Sweden,Limits In The Sea, supranote 11, No. 2 (Jan. 22, 1970). Boundaries between adjacent states have been composed of a single line segment joining two points. See, e.g., Maritime Boundary: Brazilr-Uruguay, id.No. 73 (Sept. 30. 1976). However, the delimitation of the continental shelf between Canada and Greenland (Denmark) required 127 reference points due to the size of the area, the irregular coastlines, and the need for precise boundaries in light of the possible resources involved. Agreement between Canada and Denmark relating to the delimitation of the continental shelf between Greenland and Canada,United Nations Legislative Series, National Legislation And Treaties Relating To The Law Of The Sea, UN Doc. ST/LEG/SER.B/18 at 447 (1976) [hereinafter cited as UNLS/18].

37 The state practice in territorial seadelimitations must be scrutinized thoroughly before drawing generalizations about all delimitations. The formula for delimitation of the territorial sea is similar to that for the continental shelf. CompareArticle 12 of the Convention on the Territorial Sea and Contiguous Zone, supranote 3, withArticle 6 of the Convention on the Continental Shelf, supranote 4. This may not be so in the future if the proposed articles in the Composite Text are adopted. CompareComposite Text, Article 15 withArticle 83. In any event, many territorial sea delimitations do not employ the equidistance method (and ignore the presence of islands) due to the necessity of dividing the territorial sea along the mid-channel line or thalweg. See Declaration between the Danish and Swedish Governments concerning the boundaries of the Sund,united nations Legislative series, Laws And Regulations On The Regime Of The Territorial Sea, UN Doc.ST/LEG/SER.B/6 at 792 (1957); Territorial Sea Boundary: Denmark-Sweden,Limits In The Sea, supranote 11, No. 26 (July 16, 1970) (note that the island of Ven is ignored); Argentina-Uruguay: Treaty concerning the La Plata River,13 ILM 251 (1974); Continental Shelf Boundary: Argentina-Uruguay,Limits In The Sea, supra,No. 64 (Oct. 24, 1975) (note points 9-18 on the agreed boundary line); Maritime Boundary: Federal Republic of Germany-German DemocraticRepublic, id.No. 74 (Oct. 5, 1976); Continental Shelf Boundary: Finland-Sweden, supranote 36 (the treatment of the Aland Islands was partially dictated by two earlier treaties which were regarded by the states as “special circumstances within the meaning of the Geneva Convention“).

38 But see Continental Shelf Boundary: Trinidad b- Tobago-Venezuela,Limits In The Sea, supranote 11, No. 11 (Mar. 6, 1970). The radical departure from the equidistance method was required by an earlier treaty dividing the Gulf of Paria which was still in effect. See Treaty relating to the submarine areas of the Gulf of Paria,United Nations Legislative Series, laws and regulations on the regime of The high seas, UN Doc.ST/LEG/SER.B/1 at 44 (1951). See also Maritime Boundary: Colombia-Ecuador,Limits In The Sea, supraNo. 69. (April 1, 1976).

39 For convenience, it is initially assumed that there are no geographic abnormalities, such as the concave coastline of the North Seacase, that must be considered other than the presence of islands on the continental shelf. However, this assumption is not critical and the application of the model in a situation where both the presence of an island and a concave coastline interact to complicate a delimitation will be discussed later. Seenotes 101-10, infra,and accompanying text.

40 [1969] ICJ REP. 3, 54.

41 One possible objective .approach to the problem of measuring insular coastlines is developed in notes 80-89, infra,and accompanying text.

42 See[1969] ICJ REP. 3, 54.

43 Ely chose to employ the contiguous zone as the measure of the minimum area to which an island is entitled. Ely, supranote 34, at 235-36. He based this choice on a statement in the North Seacases that the nature of the contiguous zone was very similar to that of the continental shelf in that they were both relatively recent incursions on the once free high seas. Id.at 235. See[1969] ICJ REP. 3, 51. This fine of reasoning is rather unconvincing. His choice of the contiguous zone may have been a choice of convenience in that the breadth of that zone was set at twelve miles while the breadth of the territorial sea was unspecified under the 1958 Convention on the Territorial Sea and Contiguous Zone, supranote 3 (Arts. 6 and 24).

44 This is only likely to occur when an island is located in a strait or other narrow body of water. See, e.g., Bahrain-Saudi Arabia boundary agreement,UNLS/16, supranote 36, at 409; Continental Shelf Boundary: Bahrain-Saudi Arabia,limits in the Sea, supranote 11, No. 12 (Mar. 10, 1970). Seenotes 67-69, infra,and accompanying text.

45 The territorial sea has a maximum width of twelve miles under Article 3 of the Composite Text, supranote 2, which may lead to some uniformity in the state practice. It should be noted that the model developed in the following pages will decrease in usefulness as the widths of the territorial seas claimed by states significantly increase beyond twelve miles (e.g., thirty miles) though the model will still be applicable in principle.

46 Convention on the Continental Shelf, supranote 4, Art. 1.

47 This phrase, as was “equitable principles,” was adopted from the North Seajudgment. See[1969] ICJ REP. 29-31, 36-37, 39-40, 43-44, 47, 51.

48 Article 76 states: The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. If the continental margin is defined in terms of the 200-metre isobath, only five states will benefit from this provision—Argentina, Australia, Canada, the United States, and the Soviet Union. See Theoretical Areal Allocations of Seabed to Coastal States Based on Certain United Nations Seabed Committee Proposals, supranote 11.

49 The definition in Article 76 in essence classifies the area within the 200-mile limit as the “natural prolongation” of the land territories of the states involved.

50 See[1969] ICJ REP. 3, 52-54.

51 There are three assumptions inherent in the diagrams. First, the width of the territorial sea (TS) is assumed to be twelve miles or less. Seenote 45, supra.Second, the territorial seas of States 1 and 2 are assumed to be equal in width though this will not always be the case. The existence of territorial seas of differing widths would complicate the diagrammatic presentation but would not affect the analysis or the basic conclusions drawn from that analysis. Third, the distance between States 1 and 2 in Diagram II is assumed to be 400 miles or less and thus does not cover the “distant island” situation, i.e.,a delimitation involving only the island and not the mainland territory of the state to which the island belongs (e.g., a delimitation between France and Canada involving the islands of St. Pierre and Miquelon). The extension of the model to the distant island problem is discussed in notes 76, 108, infra.

52 [1951] ICJ REP. 116. Seenote 19, supra.

53 Continental Shelf Boundary: Italy-Yugoslavia,Limits In The Sea, supranote 11, No. 9 (Feb. 20, 1970), 7 ILM 547 (1968). The islands located along the Italian coast, not nearly as numerous nor as easily characterized as fringing that coast, were not accorded similar treatment.

54 Agreement between the Government of the Republic of Finland and the Government of the Union of Soviet Socialist Republics concerning the boundaries of sea areas and of the continental shelf in the Gulf of Finland,Unls/15, supranote 19, at 758, Continental Shelf Boundary: Finland-Soviet Union,Limits In The Sea, supranote 11, No. 16 (May 25, 1970).

55 Continental Shelf Boundary: Oman-Iran, id.No. 67 (Jan. 1, 1976), 14 ILM 1478 (1975). Oman had previously declared its intention to use straight baselines between its offshore islands. Straight Baselines: Oman',Limits In The Sea, supranote 11, No. 61 (June 4, 1975), Unls/16, supranote 36, at 23.

56 See, e.g., Agreement concerning the boundary line dividing the continental shelf between Iran and Qatar,Unls/16, supranote 36, at 416; Continental Shelf Boundary: Iran-Qatar,Limits In The Sea, supranote 11, No. 25 (July 9, 1970); Agreement between Sweden and Norway concerning the delimitation of the continental shelf, supranote 36.

57 See, e.g., Continental Shelf Boundary: Bahrain-Iran,Limits In The Sea, supranote 11, No. 58 (Sept. 13, 1974).

58 Id.

59 Continental Shelf Boundary: Italy-Yugoslavia, supranote 53. See also Continental Shelf Boundary: Iran-United Arab Emirates (Dubai),Limits In The Sea, supranote 11, No. 63 (Sept. 30, 1975) (note that four islands whose territorial seas did not cross the median line were not given any effect (Forūr, Banī Forūr, Banī Tanb, and Tanb-e Bozorg)). However, there is always the possibility that a median line may be adjusted to reflect a mutual judgment as to the historic or economic significance of an island. Thus, the Iranian island of Kharg, located just outside of Iran's territorial sea, was given partial effect in the delimitation of the western Persian Gulf between Saudi Arabia and Iran. Continental Shelf Boundary: Saudi Arabia-Iran,Limits In The Sea, supraNo. 24 (undated), 696 UNTS 189 (1968). This unusual treatment would seem to be attributable to Kharg proximity to the coast, its importance to the development of Iran's offshore oil industry, and the historical patterns of oil exploration and recovery in the Persian Gulf.

60 Agreement between the Government of the Republic of Finland and the Government of the Union of Soviet Socialist Republics concerning the boundary of the continental shelf in the Northeastern part of the Baltic Sea,UNTS/15, supranote 19, at 784; Continental Shelf Boundary (Northeastern Baltic Sea): Finland-Soviet Union,Limits In The Sea, supranote 11, No. 56 (Oct. 19, 1973).

61 The islet was one of many Finnish islands located beyond the Finnish territorial sea.

62 See also Continental Shelf Boundary: India-Indonesia,Limits In The Sea, supranote 11, No. 62 (Aug. 25, 1975).

63 Continental Shelf Boundary: Saudi Arabia-Iran, supranote 59.

64 Id.

65 Continental Shelf Boundary: Italy-Yugoslavia, supranote 53.

66 Continental Shelf Boundary: Iran-United Arab Emirates (Dubai), supranote 59. See also Bahrain-Saudi Arabia boundary agreement, supranote 44 (note the treatment of the island of Kaskus (Saudi Arabia) and Khor Fasht (Bahrain) at point 10 of the boundary line and the treatment of Kaskus and Fasht al Jarīm (Bahrain) at point 11).

67 Bahrain-Saudi Arabia boundary agreement, supranote 44 (the boundary line, though not truly equidistant, does effect an approximately equal division of the maritime area between the states). This treatment is not nearly so radical as one respected commentator's suggestion that the median line cut through islands in its path. See Boggs, , Delimitation of Seaward Areas under National Jurisdiction, 45 AJIL 240, 257-59 (1951)CrossRefGoogle Scholar.

68 See, e.g., Territorial Sea Boundary: Canada-St. Pierre and Miquelon,limits in The sea, supranote 11, No. 57 (Sept. 12, 1974).

69 Seenote 37, supra. See also Historic Water Boundary: India-Sri Lanka,limits in the sea, supranote 11, No. 66 (Dec. 12, 1975), 13 Ilm 1442 (1974), 16 Indian J. INT. L. 126 (1976) (note the treatment of the island of Kachchativu whose ownership was previously in dispute).

70 The state practice in delimitations between adjacent states is sparse and hence the predominance of the equidistance method as the preferred mode of delimitation is not so clearly established as in the case of opposite states. Seenotes 36-39, supra,and accompanying text. Further, delimitations between adjacent states present different and often more difficult problems. See[1969] Icj Rep. 3, 36-37.

71 Continental Shelf Boundary: Norway-Soviet Union,Limits In The Sea, supranote 11, No. 17 (May 27, 1970) (the boundary is not truly equidistant and apparently ignores a Norwegian straight baseline drawn across a local fiord). It is unclear whether two larger Soviet islands (Ostrov Kheynya-Saari and O Piena-Kneynya-Saari) were given any effect although their inclusion would not have appreciably affected the ultimate boundary since both islands were in a position comparable to the dividing line between Zones Aand Bin Diagram III. See also Agreement between Sweden and Norway concerning the delimitation of the continental shelf, supranote 36.

72 Continental Shelf Boundary: German Democratic Republic-Poland,limits in the sea, supra note 11, No. 65 (Nov. 28, 1975).

73 Such treatment is evident in the delimitation between the United States and Mexico, Treaty to resolve pending boundary differences and maintain the Rio Grande and Colorado River as the international boundary between the United States of America and the United Mexican States, doneNov. 23, 1970, 23 UST 371, TIAS No. 7313 (effective April 18, 1972), Maritime Boundary: Mexico-United States,limits in the Sea, supranote 11, No. 45 (Aug. 11, 1972).

74 Agreement on settlement of maritime boundary lines and sovereign rights over islands between Qatar and Abu Dhabi,UNLS/16, supranote 36, at 403, Continental Shelf Boundary: Abu Dhabi-Qatar,Limits In The Sea, supranote 11, No. 18 (May 29,1970).

75 Id.Qatar received no areal compensation for the area displaced by the allocation of the territorial sea. This result may be due to the fact that Daiyana had been the subject of a territorial dispute between the two states and also to the fact that Abu Dhabi claimed only a three-mile territorial sea.

76 It must be remembered that the model deals only with the case where delimitations between states are affected by the presence of islands belonging to one or moreof the states, a situation distinguishable from the “distant island” case where a state's involvement in a delimitation is due solely tothe presence of one or more of its islands in a continental shelf area sought to be delimited by one or more other states. Seenote 51, supra.The distant island presents some difficult problems and for both theoretical and practical reasons, it is best treated under the refined version or secondary phase of the model. Seenote 108, infra.

77 This will not be the case where the island or islands (e.g.,Aleutians) lie in Zone Dand one or more other zones.

78 Seeodgson, supranote 11, at 43 (suggested treatment for rocks).

79 The relative unimportance of an island to the state to which it belongs coupled with the delimiting states’ desire to reach an agreement, seenote 35, supra,have produced some rather interesting delimitations in the Zone D situation. It is not uncommon for a state to relinquish control over small uninhabited islands which would he in the maritime territory of another state as determined by the principle of equidistance. See, e.g., Agreement on settlement of maritime boundary lines and sovereign rights between Qatar and Abu Dhabi, supranote 74. Indeed, the desire to delimit a given area may provide an incentive for the settlement of disputes over the ownership of islands. See Historic Water Boundary: India—Sri Lanka, supranote 69. In the continental shelf delimitation between Argentina and Uruguay, the Argentinian island of Martin Garcia was located on the Uruguayan side of the agreed boundary line. Continental Shelf Boundary: Argentina-Uruguay, supranote 37. The island was not accorded a territorial sea and instead, it was agreed that Martin Garcia would remain Argentinian territory to be used onlyas a wildlife refuge. Id.(Arts. 44 and 45).

80 SeeDiagram I, supra.

81 [1969] ICJ REP. 3, 54.

82 Absolute size will be relevant in determining whether a very large island (e.g., New Guinea, Ireland) should be initially regarded as an island or as mainland for the purpose of delimitation.

83 See[1969] ICJ REP. 3, 54; compareEly, supranote 34, “at 233-35.

84 [1969] ICJ REP. 3, 54.

85 That is, the distance between the two points on an island's coastline which are farthest from each other. In the case of a regularly shaped (roughly circular) island, this distance would be equivalent to the island's maximum diameter.

86 The choice is functionally justifiable in that it constitutes an approximate measure of the amount of coastline which would be of operative significance in a seaward delimitation, i.e.,the amount of coastline that borders the area to be delimited. If the mainland coastlines were very regular, such as those depicted in Diagrams II and III, supra,a more exact measure would be the maximum length of the island parallel to the coasts of opposite states or perpendicular to the coasts of adjacent states.

87 Normally, the determination as to whether the islands belonging to a state are substantial should be made with respect to each island individually. In rare instances where there is a close geographical relation among a number of islands, it may be appropriate to aggregate the islands for the purpose of determining whether the group as a whole is substantial. However, in that situation, it is more appropriate to use the maximum length of the group as a whole rather than adding the lengths of the individual islands.

88 The “insular coastline” is composed of the maximum lengths of all the islands which have been determined to be substantial. Seenote 87, supra.Normally, there should only be one or two such islands but this of course depends on the percent chosen as the “substantiality” cutoff.

89 An important attribute of this test is that it is, to a degree, self-correcting. In other words, the actual political choice of a cutoff percent, above which all islands would be deemed substantial, is not critical. I have chosen 25% only as an example, though a choice below 5% would, in my estimation, be well within the realm of insubstantiality. For example, assume that State X,which is comprised of an island with a coastline of length Xi and mainland territory with a coastline of length X2, is involved in a delimitation with State Ywhich has a total coastline of Yi. The ratio X1/X2 will be compared to the cutoff percent to determine whether Xi is to be regarded as substantial. However, if State Xshould take the position that the cutoff percent should be less than X1/X2, in effect classifying Xi as substantial, the utility of the test is not destroyed. This is so because State X'sproportional share of the area to be delimited will be equal to the ratio:

As the cutoff percent is lowered to include Xi, X1/X2 becomes smaller and the limit of the above ratio tends to:

and the so-called “substantial” islands are given very little effect in the overall allocation of continental shelf areas.

90 This assumes, for the sake of argument, that it is indeed possible to acquire historic rights in the areas located beyond the territorial sea, an admittedly controversial proposition. The concept of historic rights was originally confined to bays. Seem. Mcdougal&w. Burke, The Public Order Of The Oceans 358-68 (1962). However, it recently has been the subject of expansive interpretations by both the International Law Commission and some states. See Juridical Regime of Historic Waters, including Historic Bays,[1962] 2 y. B. Int. L. Comm. 1, UN Doc A/CN. 41/Ser. A/1962; Harben, Soviet Attitudes and Practices Concerning Maritime Waters: A Recent Historical Survey,15 JAG J. 149 (1961). For the remainder of this article, a reference to historic rights will include all rights, historic or otherwise, which are recognized by the states delimiting the maritime area in question.

91 See, e.g., Bahrain-Saudi Arabia boundary agreement, supranote 44 (Fashtu bu Saafu Hexagon); Agreement on settlement of maritime boundary lines and sovereign rights over islands between Qatar and Abu Dhabi^ supranote 74; Agreement between Sudan and Saudi Arabia relating to the joint exploitation of the natural resources of the sea-bed and sub-soil of the Red Sea in the Common Zone,UNLS/18, supranote 36, at 452.

92 [1969] Icj Rep. 3, 53.

93 Only the application of the primary and secondary phases of the model are discussed in this section.

94 Italy and Tunisia have signed an agreement delimiting this area which is very similar in some respects to the solution proposed by this article. The agreement has been ratified by Tunisia and awaits ratification by Italy.

95 Lampedusa and Lampione actually lie on the Tunisian continental shelf as defined by the 200-metre isobath.

96 Due primarily to its large absolute size, seenote 82, supra,and secondarily to its proximity to the Italian mainland and obvious macro geographical relation to that mainland, Sicily will be treated as mainland.

97 [1969] Icj Rep. 3, 36.

98 This treatment is similar to that accorded the middle Yugoslav islands in the delimitation of the Adriatic Sea between Italy and Yugoslavia. See Continental Shelf Boundary: Italy-Yugoslavia, supranote 53.

99 It must be remembered that independent insular states are treated the same as mainland states. Seenote 3, supra.Thus, under the primaryphase of the model, the treatment of Malta in this fashion does result in the allocation of a continental shelf area to Malta that is disproportionately large in relation to the island's relative size. The appropriateness of treating independent insular states under the primary phase of the model and the apparent inconsistencies resulting from that treatment are discussed in note 108, infra.

100 The choice of solutions will depend on the individual preferences of the states involved since some states will presumably be more interested in maximizing their maritime area while other states will be more interested in maintaining continuity in that area.

101 [1969] Icj Rep. 3. SeeDiagram I, supra.

102 With the exception of Annobón, these islands, though of critical importance to territorial sea delimitations between the two states, would not have any significant effect on the continental shelf or exclusive economic zone boundaries and are thus ignored for the purposes of this exercise.

103 A state might decline to participate in a delimitation such as this for political reasons or because the number or identity of the other states involved will place it at a disadvantage under the proportional allocation framework of the secondary phase of the model.

104 No state will be allocated any maritime territory that is located more than 200 miles from its land territory.

105 Seenote 86, supra,and accompanying text.

106 Seenotes 87-89, supra,and accompanying text. Annobón is not substantial under this test and thus is entitled to no effect in the proportional allocation. However, due to its location, Annobón will be able to claim maritime space beyond the 200-mile limits of the other delimiting states. Seenote 109, infra.

107 The total length of the coastlines is 1355 miles. The ratio of each state's coastline to this total coastline will determine that state's proportional share of the area to be divided. Thus, the shares are as follows:

If not all of the states participated in the delimitation, see note 103, supra, the secondary phase of the model could still be used. However, its application in such a case would involve the allocation of a smaller area and also require that the possible claims of the nonparticipating states be considered and preserved. See [1969] ICJ REP. 3, 54.

108 It should be noted again that independent insular states are treated the same as mainland states. Seenote 3, supra.Under the secondaryphase of the model, it thus turns out that independent insular states (e.g.,Sao Tome and Principe) are treated the same as dependent islands of substantial size, i.e.,they are given an effect proportional to their relative size. The question which remains is whether or not the presence of an independent insular state, in the absence of any other factors justifying the application of the secondary phase of the model (e.g.,concave coastline or a substantial dependent island), should nonetheless be treated under that phase. Such an approach would indeed seem to be equitable in most instances though it would diminish the importance of political status as a factor in delimitation. The fact of independence would insure that anisland would be included in a proportional allocation while a dependent island of the same size would still have to be “substantial” relative to the state to which it belongs before it could be included in such an allocation. This difference may be of little practical significance if an independent insular state is relatively small with respect to the other delimiting states and hence, in that situation, political status would tend to be immaterial. The secondary phase of the model may also provide an appropriate framework for treating the “distant island” problem. Seenote 51, supra.The extension of the primary phase of the model to this situation would dictate that the distant island should be allocated only a territorial sea, a not wholly satisfactory result in most instances. However, the application of the primary phase assumes that the island's coastline is quite small or insignificant relative to the coastline of the state to which it belongs, one of the basic premises underlying that phase of the model. Seenotes 40-42, supra,and accompanying text. Since the mainland territory of the state to which the distant island belongs is, by definition, seenote 51, supra,not involved in the delimitation, the extent of the mainland coastline of that state would seem to be irrelevant. Rather, the extent of the islands coastline relative to the coastlines of the other delimiting states would seem to provide a more appropriate and equitable measure of the effect to be given a distant island. Thus, there are two situations where die secondary phase of the model could be equitably applied without the necessity of first determining whether the island's coastline constitutes a “substantial” portion of the total coastline of the state to which it belongs. First, the case of the independent insular state for the obvious reason that there is no other coastline with which it could be compared. Second, the case of the distant island where the coastline of the mainland state is not involved and thus is entitled to no effect in the delimitation. If the secondary phase of the model is applied in both of these situations, there will be no delimitation problems when a dependent distant island attains independence or when some islands in a distant island group choose independence and others do not (e.g.,Comoros).

109 Since maritime territory which is more than 200 miles from the land territory of a state cannot be allocated to that state, note 104, supra,it is sometimes impossible to allocate the maritime space according to the exact proportions dictated by the secondary phase of the model, especially in the case of delimitations between adjacent states. This is the situation in Map II with respect to Sao Toméand Principe and also with respect to Annobón, which was not even included in the proportional allocation. Seenote 106, supra.This factor will in many cases actually reduce the sometimes harsh effects of proportionally allocating maritime space to a small independent insular state or a small distant island under the secondary phase of the model.

110 There are an almost infinite number of ways in which the boundary line can be drawn so as to effect a division of the maritime area according to the stated proportions. Due to this fact, it may also be possible, in the case where the area to be delimited contains known deposits of resources, to draw the boundaries such that the areas containing these resources are divided among the delimiting states according to the same proportions. The secondary phase of the model could also be employed on a smaller scale to effect a proportional allocation between Equatorial Guinea (Annobon) and Sao Tom6 and Principe of the area more than 200 miles from the African mainland though such a delimitation is not depicted in Map II.

111 See generallyPhylactopoulos, Mediterranean Discord: Conflicting Greek-Turkish Claims on the Aegean Seabed,8 int. Lawyer 431 (1974). In August 1976, the Greek Government, angered by a Turkish vessel's seismic exploration of the continental shelf area between the islands of Limnos and Lesbos, simultaneously requested a meeting of the UN Security Council and instituted proceedings in the International Court of Justice. See generally Gross, , The Dispute Between Greece and Turkey Concerning the Continental Shelf in the Aegean, 71 AJIL 31 (1977)CrossRefGoogle Scholar. The Court denied the Greek request for interim measures of protection and left to later resolution the question whether it has jurisdiction to entertain the merits of the controversy. Aegean Sea Continental Shelf, Interim Protection, Order of 11 September 1976, [1976] Icj Rep. 3.

112 The islands which will be discussed include those named in the Greek Application to the International Court, namely … the islands of Samothrace, Limnos, Aghios Eustratios, Lesbos, Chios, Psara, Antipsara, Samos, Ikaria, and all the islands of the Dodecanese group (Patmos, Leros., Kalimnos, Kos, Astypalaia, Nisiros, Tilos, Simi, Chalki, Rhodes, Karpathos, etc.) . .. Id.at 6.

113 However if Samothrace was used as a base point, there would be no significant distortion of the lateral line if the Turkish island of Imroz was also used as a base point.

114 Both Greece and Turkey claim territorial seas of six miles in width.

115 The possibility of giving some proportional effect to Lesbos is considered in note 119, infra.

116 Crete is substantial in that it constitutes more than 50% of the Greek coastline south of latitude 38°00'N and approximately 25% of the total Aegean coastline of Greece. Seenotes 87-89, supra,and accompanying text. None of the other islands constitutes more than 7% of the total Greek coastline.

117 When “measured in the general direction of the coastline,” [1969] ICJ REP. 3, 54, the Greek mainland coastline is approximately 150 miles in length and the Turkish coastline is about 140 miles in length. The operative coastline, see note 86, supra, and accompanying text, of Crete is 160 miles. Thus the continental shelf area in this region should be allocated in the proportion

It must be recognized that there is a certain amount of subjectivity in a measurement “in the general direction of the coastline” which depends upon the degree to which one ignores coastal irregularities. This will not make a difference in this case because both Greece and Turkey have coastlines with similar degrees of irregularity and thus a more exacting measurement would not destroy the underlying ratio.

118 North of latitude 38°00'N, the coastline of Greece is approximately 380 miles in length while the coastline of Turkey is approximately 220 miles in length. Thus, when combined with the coastline ratio below that latitude, see note 117, supra, the ratio of total Aegean coastline is

Thus Greece would receive approximately

of the Aegean continental shelf.

119 Though none of the Greek islands other than Crete would be classified as substantial under the model in the author’s opinion, see note 116, supra, the inclusion of those islands which individually constitute more than 5% of the total coastline would increase Greece’s share of the shelf only marginally. The three islands which would come under the 5% cutoff would be Lesbos, Rhodes, and Karpathos with approximate maximum lengths of 42, 50, and 36 miles respectively. The inclusion of these islands would increase Greece's share of the shelf from 66%, note 118, supra, to

See note 89, supra.

120 Article 83, paragraph 2, of the Composite Text provides that, if agreement on delimitation is not reached within a reasonable time, the states involved must resort to the dispute settlement procedures of Part XV of the Text. The model may be useful in the course of these judicial or arbitral proceedings.

121 See generallyBaxter, Treaty and Custom,129 Hague Academy, Recuiel Des Cours 25, 26-75 (I, 1970).

122 However, it is much more difficult to extract principles or rules of customary international law from bilateral treaties. See id.at 75-91.

123 See[1969] Icj Rep. 3, 227 (Dissenting Opinion of Judge Lachs); Baxter, supranote 121, at 66.