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Progress in International Maritime Boundary Delimitation Law

Published online by Cambridge University Press:  27 February 2017

Jonathan I. Charney
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Extract

Judgments of the International Court of Justice (ICJ) and awards of ad hoc arbitration tribunals carry special weight in international maritime boundary law. On its face, the international maritime boundary law codified in the 1982 Convention on the Law of the Sea is indeterminate. For the continental shelf and the exclusive economic zone, the legal obligation of coastal states is to delimit the boundary “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.” The article on the delimitation of maritime boundaries in the territorial sea is no more determinative despite the fact that it makes direct references to the equidistant line, special circumstances and historic title. In spite of this indeterminacy, if not because of it, coastal states have found that third-party dispute settlement procedures can effectively resolve maritime boundary delimitation disputes. As a consequence, there are more judgments and awards on maritime boundary disputes than on any other subject of international law, and this trend is continuing.

Type
Research Article
Information
American Journal of International Law , Volume 88 , Issue 2 , April 1994 , pp. 227 - 256
Copyright
Copyright © American Society of International Law 1994

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References

1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 74, 83, UN Doc. A/CONF.62/122 (1982), reprinted in United Nations, Official Text of the Unitednations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983) (to enter into force Nov. 16, 1994) [hereinafter 1982 LOS Convention].

2 Id., Art. 15. The equidistant line is defined as “[a] line composed of relatively short segments connecting points that are equidistant from the normal baselines, or from claimed (or assumed) baselines from which the breadth of the territorial sea is measured. This is sometimes called a median line [when the coastlines are opposite].” International Maritime Boundaries at xix (Jonathan I. Charney & Lewis M. Alexander eds., 1993).

3 Jonathan I. Charney, Introduction to International Maritime Boundaries, supra note 2, at xxiii, xxvii. The pending cases (as of January 1994) are Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 1992 ICJ Rep. 237 (Order of June 26); East Timor (Port. v. Austl.), 1992 ICJ Rep. 32 (Order of May 19); and Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Sen.), Application of Mar. 12, 1991.

4 The articles on delimitation of the maritime boundary for the continental shelf and the exclusive economic zone in the 1982 LOS Convention, supra note 1, Arts. 78 and 86, are even less informative than the article quoted infra note 83 on the continental shelf maritime boundary in the 1958 Convention on the Continental .Shelf, Apr. 29, 1958, 15 UST 471, 499 UNTS 311. The state practice is analyzed in International Maritime Boundaries, supra note 2. See Charney, supra note 3, at xlii.

5 See International Court of Justice, Statute, Art. 59.

6 In the Libya/Malta case, for example, the ICJ devoted considerable attention to comparing the facts of that case with the existing precedent. Continental Shelf (Libya/Malta), 1985 ICJ Rep. 13, 23, 28, 30, 35–41, 43–48, 53, 56, paras. 18, 24, 28, 40, 43, 45–48, 50, 55-59, 62, 67, 74, 77 (June 3) [hereinafter Libya/Malta].

7 See Charney, supra note 3; Jonathan I. Charney, Maritime Jurisdiction and the Secession of States: The Case of Québec, 25 Vand. J. Transnat'l L. 343, 372–82 (1992).

8 Prosper Weil, Geographic Considerations in Maritime Delimitation, in International Maritime Boundaries, supra note 2, at 115, 120–22.

9 Charney, supra note 3, at xlii. See generally International Maritime Boundaries, supra note 2.

10 Derek Bowett, Islands, Rocks, Reefs, and Low-Tide Elevations in Maritime Boundary Delimitations, in International Maritime Boundaries, supra note 2, at 131, 132; Keith Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries, in id. at 163, 165.

11 International Maritime Boundaries, supra note 2. More than 130 maritime boundary delimi

tations are documented and examined by contributors to this book.

12 Charney, supra note 3, at xlii.

13 31 ILM 1149 (1992) [hereinafter St. Pierre and Miquelon]. For a case note on this award by Keith Highet, see 87 AJIL 452 (1993).

14 1992 ICJ Rep. 351 [hereinafter Maritime Frontier Dispute]. For a case note on this Judgment by Gideon Rottem, see 87 AJIL 618 (1993).

15 1993 ICJ Rep. 38 [hereinafter Jan Mayen], For a case note on this Judgment by Jonathan I. Charney, see 88 AJIL 105 (1994).

16 See Lewis M. Alexander, Canada-France (St. Pierre and Miquelon) (1972 and 1992), Report No. 1-2, in International Maritime Boundaries, supra note 2, at 387.

17 Continental Shelf (Tunis./Libya), 1982 ICJ Rep. 18, 59–60, paras. 70–71 (Feb. 24) [hereinafter Tunisia/Libya]; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246, 293, 299, 300, 339, 340, paras. 91, 92, 110, 230, 231 (Oct. 12) [hereinafter Gulf of Maine]; Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 77 I.L.R. 636, 675–76, 25 ILM 252, 289 (1986), para. 88 (1985) [hereinafter Guinea/Guinea-Bissau]; Libya/Malta, 1985 ICJ Rep. at 38–39, para. 45.

18 Tunisia/Libya, 1982 ICJ Rep. at 59, para. 70; see also Gulf of Maine, 1984 ICJ Rep. at 290, 312–13, paras. 81, 156–58.

19 Libya/Malta, 1985 ICJ Rep. at 39, para. 45.

20 Gulf of Maine, 1984 ICJ Rep. at 342, para. 237.

21 St. Pierre and Miquelon, 31 ILM at 1206-07, paras. 24–25 (Weil, arb., dissenting).

22 Jan Mayen, 1993 ICJ Rep. at 48–52, paras. 23–40.

23 Maritime Frontier Dispute, 1992 ICJ Rep. at 386–87, paras. 40–42; Guinea/Guinea-Bissau, 77 I.L.R. at 657, 15 ILM at 271, para. 40; Frontier Dispute (Burk. Faso/Mali), 1986 ICJ Rep. 554, 565–67, 568, 586–87, paras. 20–26, 30, 63 (Dec. 22); Arbitration of the Maritime Boundary (Guinea-Bissau/Senegal) of 31 July 1989, 83 I.L.R. 1, 35–39, paras. 61–68 (the procedural validity of this award was upheld by the ICJ in Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 ICJ Rep. 53 (July 31)); Beagle Channel Arbitration (Arg. v. Chile), 17 ILM 632, paras. 9–12 (1978) (award of 1977); Rann of Kutch Arbitration (India v. Pak.), 50 I.L.R. 2, 27–30, 80–89 (1968); Temple of Preah Vihear (Cambodia v. Thail.), 1962 ICJ Rep. 6, 16 (June 15); Colombia-Venezuela Boundary Arbitration, 1 R.I.A.A. 223 (1922). See also The Solemn Declaration of the Meeting of the Heads of States of the Governments of the Organization of African Unity, OAU Doc. AHG/Res. 16(1) (1964); Saadia Touval, The Organization of African Unity and African Borders, 21 Int'l Org. 102 (1967).

24 Maritime Frontier Dispute, 1992 ICJ Rep. at 589, para. 386.

25 1982 LOS Convention, supra note 1, Art. 10.

26 Republic of El Salvador v. Republic of Nicaragua (Mar. 9, 1917), 11 AJIL 674, 700–17 (1917).

For the present author's analysis of this case published prior to the 1993 ICJ Judgment, see Charney, Maritime Jurisdiction and the Secession of States, supra note 7, at 366–70.

27 Maritime Frontier Dispute, 1992 ICJ Rep. at 601–05, paras. 404–12. During the colonial period, Spain had sovereignty over all the shores of the gulf and asserted sovereignty over its waters. When the sovereignty over the land territory was divided, the littoral states maintained the historic claim to the waters. After the 1917 award, the littoral states persisted in this claim notwithstanding differences over the nature of the regime. The status of the gulf as historic waters has not been questioned by any other state in modern times.

28 Id. at 603–04, para. 409.

29 Id. at 606–09, paras. 415–20.

30 Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1 Counter-Memorial Submitted by the Government of the Kingdom of Norway at 81, para. 281, and Ann. 46 (May 11, 1990) [hereinafter Nor. Counter-Memorial]; Jan Mayen, 1993 ICJ Rep. at 49, para. 23.

31 Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1 Reply Submitted by the Government of the Kingdom of Denmark at 126–30, paras. 337–50 (Jan. 1991) [hereinafter Den. Reply].

32 Jan Mayen, 1993 ICJ Rep. at 48–53, paras. 23–32.

33 Id. at 53–56, paras. 33–40.

34 Id. at 54–55, paras. 35–36.

35 In Tunisia/Libya, the Court gave greater weight to interim arrangements. The Jan Mayen Judgment may represent a retreat from that precedent. Tunisia/Libya, 1982 ICJ Rep. at 83–84, paras. 117–18. See Jonathan I. Charney, Ocean Boundaries between Slates: A Theory for Progress, 78 AJIL 582, 602 (1984).

36 Libya/Malta, 1985 ICJ Rep. at 46–47, para. 61.

37 St. Pierre and Miquelon, 31 ILM at 1173–75, paras. 83–91.

38 Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Memorial Submitted by the Government of the Kingdom of Denmark at 42–53, paras. 161–93 (July 1989) [hereinafter Den. Memorial]; 1 Nor. Counter-Memorial, supra note 30, at 23–52, paras. 78–171; 1 Den. Reply, supra note 31, at 21–78, paras. 52–199; Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Rejoinder Submitted by the Government of the Kingdom of Norway at 20–48, paras. 59–153 (Sept. 27, 1991) [hereinafter Nor. Rejoinder].

39 Oral Presentation by Mr. Lehman, Agent for Denmark, Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), ICJ Verbatim Record at 15–25, paras. 4–5 (Feb. 11, 1993) [hereinafter Lehman Oral Presentation]; Oral Presentation by Mr. Bowett, Counsel for Denmark, id. at 27 (pt. II.C) (Jan. 14, 1993) [hereinafter Bowett Oral Presentation]; Oral Presentation by Mr. Tresselt, Agent for Norway, id. at 28 (Jan. 15, 1993) [hereinafter Tresselt Oral Presentation].

40 Jan Mayen, 1993 ICJ Rep. at 73–74, para. 80.

41 Id. Some of the separate opinions reflect support for the use of these considerations. Id. at 116, para. 98 (Oda, J., sep. op.); 1993 ICJ Rep. at 267–68, para. 211 (Weeramantry, J., sep. op.); 1993 ICJ Rep. at 301 (Ajibola, J., sep. op.); 1993 ICJ Rep. at 309–12, paras. 14–19 (Fischer, J. ad hoc, dissenting).

42 1993 ICJ Rep. at 74–75, para. 81.

43 Id. at 70, para. 73.

44 Id. at 70, 72–73, paras. 73, 77–78.

45 Id. at 72, 79–81, paras. 76, 92. Judge ad hoc Fischer argued in his dissent that the Court lacked the information necessary to identify a specific geographical area (such as zone 1) as the prime fisheries area or to enable it to know that an equal division of the fishery could be accomplished by dividing that area into two equal parts. Id. at 313, para. 21.

46 To divide the area of prime capelin commercial fishing, the Court considered access problems potentially created by drift ice. 1993 ICJ Rep. at 72–73, paras. 77–78. It determined that during the fishing season drift ice did “not materially affect access to migratory fishery resources in the southern part of the area of overlapping claims.” Id. at 73, para. 78. It also found that ice “constitutes a considerable seasonal restriction of access to the waters.” Id.

47 In this case, neither state could argue that inhabitants of the adjacent coasts had a particular dependence on the fishery. Norway's Jan Mayen has no permanent population. The Norwegian fishing boats travel long distances from the mainland to exploit the capelin. The eastern coast of Greenland adjacent to the area is substantially ice locked and has a relatively small population. Greenland's fishing is carried out by fishermen who live on its western coast and travel long distances to reach the area. Greenland also contracts with foreign fleets to exploit these fisheries. Id. at 71, para. 74; 1 Nor. Counter-Memorial, supra note 30, at 12–13, paras. 44–46; 1 Den. Reply, supra note 31, at 51–54, paras. 131–38.

48 1993 ICJ Rep. at 74, para. 80.

49 Id. at 120 (Schwebel, J., sep. op.). Judge Schwebel's separate opinion contrasts quite sharply with that of an earlier U.S. judge on the Court, Philip Jessup. In his separate opinion in the North Sea Continental Shelf cases, Jessup suggested that the Court and the parties should delimit the maritime boundary by focusing on the real basis of the dispute—access to hydrocarbons in the seabed of the North Sea. North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 66–84 (Feb. 20) [hereinafter North Sea] (Jessup, J., sep. op.).

50 In the Gulf of Maine case, the Chamber delimited the maritime boundary on the basis of coastal geography, causing the valuable resources to be divided. It refused to draw the line in ways that might have followed natural boundaries between the resources. It also refused to adjust the boundary on the basis of economic dependence of coastal communities, but the boundary that was adopted gave both states access to the prime resource areas. 1984 ICJ Rep. at 325–28, 342–44, paras. 190–97, 237–41.

51 They have, however, allowed for their use in extraordinary cases. Consequently, the United States heavily relied on this line of argument in the Gulf of Maine case. Nevertheless, the Chamber did not make use of those arguments when delimiting the maritime boundary. Id. at 272–78, 326–27, 342–44, paras. 41–59, 191–95, 236–41.

52 A permanent boundary may be ambulatory. Thus, a maritime boundary strictly based on the equidistant line generated from the coastline will change as the coastline changes. States have rejected this possibility in their maritime boundary settlements by permanently fixing their boundaries. In this area stability is preferred. David Colson, The Legal Regime of Maritime Boundary Agreements, in International Maritime Boundaries, supra note 2, at 41, 42; Louis B. Sohn, Baseline Considerations, in id. at 154, 155–58; Leonard Legault & Blair Hankey, Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitations, in id. at 201, 206–14. This is best illustrated by the agreements between the United States and Mexico, where the parties developed a solution to connect the fixed maritime boundary to the ambulatory land boundary, which is controlled by the thalweg. See Robert W. Smith & David A. Colson, Mexico-United States, Report No. 10-5, in id. at 427; Peter Beazley, Technical Considerations in Maritime Boundary Delimitations, in id. at 243, 255. Even the land boundary rule of the thalweg seeks a certain stability—the stability of one clearly defined use, navigation—at the expense of some limited loss of geographic stability. In maritime boundary matters it is rare to find such a dominant nongeographical interest. In those rare situations states have favored joint management and other mutual arrangements in the context of geographically fixed limits. See Barbara Kwiatkowska, Economic and Environmental Considerations in Maritime Boundary Delimitations, in id. at 75, 81–96; Colson, supra, at 55–60.

53 Highet, supra note 10, at 163, 180–83; Beazley, supra note 52, at 243.

54 1982 LOS Convention, supra note 1, Art. 57.

55 Kwiatkowska, supra note 52, at 75; Colson, supra note 52, at 55–60.

56 Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen (May 1981), 62 I.L.R. 108, 20 ILM 797 (1981) [hereinafter Iceland/Norway]; D. H. Anderson, Iceland-Norway (Jan Mayen), Report No. 9-4, in International Maritime Boundaries, supra note 2, at 1754. The Conciliation Commission had the latitude to recommend a joint development zone. That authority is traditionally lacking in adjudications and arbitrations.

57 1984 ICJ Rep. at 344, para. 240.

58 31 ILM at 1174, para. 87. Arguably, the tribunal did consider resource information when delimiting the boundary line. According to one member of the Canadian litigation team, the line was drawn to preserve substantially all of its traditional fisheries for Canada. Ron Gélinas, Remarks at “The Law of the Sea: Recent Delimitation Cases,” supra note *, at 227.

59 Lehman Oral Presentation, supra note 39, at 11–12, para. 2; id. at 34 (Jan. 25, 1993).

60 Tresselt Oral Presentation, supra note 39, at 59–61 (pt. 6).

61 The view expressed by Judge Jessup in his separate opinion in the North Sea cases, 1969 ICJ Rep. at 66, has some appeal. International law exists to serve the interests of states and works best when it optimizes the interests of all concerned states. In each case, Jessup argued, the Court should focus on the core dispute, which in the North Sea cases was access to hydrocarbons; it should then fashion a result that best divides those resources. The disputants would be highly motivated to embrace the judgment and support the law. Consequently, the Court would be strengthened. If states' current interests are served, the boundary can be settled amicably. It will likely remain fixed even if these interests change in the future.

The weakness of this approach is that it is not based on a predictable set of principles. The basis for maritime boundary delimitations would vary depending on the interests that are foremost in the positions taken by the states. In one case it would be a fish stock of current importance, in another hydrocarbons, in another proximity, and in another the environment. For each a division would have to be fashioned. In the end, the law, and thus the Court's decision, would appear not to be based on principle. To the extent that the Court may exercise authority, attract the respect of the international community and induce obedience to its judgments, its decisions must be based on the legitimacy and authority of generally applicable norms of law. A decision-making process that is essentially based on ad hoc state interests, even if sanctioned by the ICJ, would have little legitimacy. States may agree among themselves to delimit boundaries on the basis of current interests. The Court, however, will impel states to accept its delimitations only if they are based on more principled rules that give its judgments legitimacy. It is for the political process, not the Court, to settle disputes on the basis of states' current interests.

62 Libya/Malta, 1985 ICJ Rep. at 50, para. 69.

63 St. Pierre and Miquelon, 31 ILM at 1165–66, paras. 49–52; Jan Mayen, 1993 ICJ Rep. at 73–74, para. 80.

64 Jan Mayen, 1993 ICJ Rep. at 79–80, para. 92. Of course, in this case the desolate Jan Mayen confronted the sparsely populated coast of eastern Greenland.

65 St. Pierre and Miquelon, 31 ILM at 1161, para. 26.

66 Id. at 1161–62, paras. 29–32. For this purpose the tribunal included as coastline the closing lines of juridical bays, as well as a line drawn across Cabot Strait at the entrance to the Gulf of St. Lawrence. The tribunal found that this line “represents coastlines inside the Gulf.” Id. at 1161, para. 29. Implicit in this statement is the conclusion that the gulf is not internal waters of Canada. See Charney, Maritime Jurisdiction and the Secession of States, supra note 7, at 386–97.

67 St. Pierre and Miquelon, 31 ILM at 1162, para. 33.

68 Id. at 1176, para. 93.

69 Id. at 1204–07, paras. 20–26 (Weil, arb., dissenting).

70 Den. Memorial, supra note 38, at 102–11, 119–21, paras. 320–56, 371–78; Oral Presentation by Mr. Thamsborg, Expert for Denmark, Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), ICJ Verbatim Record at 40–46, 54–63 (pts. I, II.1 and II.2) (Feb. 11, 1993); Oral Presentation by Mr. Bernhard, Agent for Denmark, id. at 41–51 (Jan. 14, 1993); Lehman Oral Presentation, supra note 39, at 25–31 (Jan. 25, 1993); Bowett Oral Presentation, supra note 39, at 51–54 (Jan. 25, 1993).

71 Nor. Rejoinder, supra note 38, at 180–83, paras. 612–26; Tresselt Oral Presentation, supra note 39, at 44; Oral Presentation by Mr. Brownlie, Counsel for Norway, Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), ICJ Verbatim Record at 42–47, 54–71 (Jan. 19, 1993) [hereinafter Brownlie Oral Presentation]; id. at 42–47 (Jan. 27, 1993).

72 Jan Mayen, 1993 ICJ Rep. at 47–48, paras. 18–21.

73 Id. at 65, para. 61. The Greenland coastline was measured between points G and H on map 3, p. 232 supra. The Jan Mayen coastline was measured between points E and F on map 3.

74 1993 ICJ Rep. at 68–69, paras. 68–69.

75 Id. at 69, para. 69.

76 Id., para. 70.

77 Id.

78 Id. at 79–81, paras. 91–92; id. at 127 (Schwebel, J., sep. op.); 1993 ICJ Rep. at 308-11, paras. 13–15 (Fischer, J. ad hoc, dissenting). This was accomplished by dividing the area between the Greenland 200-nautical-mile line and the equidistant line into three zones. Zone 1 was divided by area in half in an effort to divide the capelin fishery equally. See text supra at note 45. The other two zones were divided to produce “equity.” Zone 3 was divided by a line connecting point A to a point on line KI (map 3, p. 232) that is two-thirds of the distance along that line toward Greenland (point O). In zone 2 the end points of the lines dividing zones 1 and 3 (points N and O, respectively) were connected by a straight line (line NO). 1993 ICJ Rep. at 79–81, para. 92.

79 1993 ICJ Rep. at 68–69, para. 68. Proportionality was also considered in Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, 18 R.I.A.A. 3, 57–58, 18 ILM 398, 427, 454–55 (1979), paras. 98–101, 244–50 (1977) [hereinafter Anglo-French case]; Tunisia/Libya, 1982 ICJ Rep. at 91, paras. 130–31; Libya/Malta, 1985 ICJ Rep. at 48–53, paras. 64–74; Gulf of Maine, 1984 ICJ Rep. at 322–23, 334–37, paras. 184–85, 218–23.

80 Jan Mayen, 1993 ICJ Rep. at 127 (Schwebel, J., sep. op.).

81 1993 ICJ Rep. at 63–64, paras. 57–58.

82 In this sense, the instant Judgment is consistent with the unique treatment of proportionality found in the geographically similar Libya/Malta case, see text at note 62 supra, where the Court provisionally drew an equidistant line between the two states' coastlines but did so initially by disregarding the effect of the small Maltese Island of Filfla. 1985 ICJ Rep. at 48, para. 64. After calculating that the relevant coastlines were 24 miles: 192 miles (Malta:Libya), it determined that the (modified) equidistant line failed to reflect the substantial disproportionality in the coastal lengths. Consequently, an adjustment was required. Id. at 50, para. 68. After considering the wider geographic area and without attempting to calculate maritime areas attributable to the disputants, the Court decided to shift the provisional (modified) equidistant line north toward Malta three-quarters of the distance between the provisional line and another hypothetical equidistant line constructed between the coastlines of Libya and Italy (without regard to the Maltese coastline near the Italian coast to the south). Id. at 51–53, paras. 71–73. The Court found that this result was consistent with proportionality. Id. at 53, para. 74. Se*Jan Mayen, 1993 ICJ Rep. at 125-26 (Schwebel, J., sep. op.).

83 Article 6 of the 1958 Convention on the Continental Shelf, supra note 4, states, in part:

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.

84 Anglo-French case, 18 ILM at 420–21, paras. 65–69.

85 Jan Mayen, 1993 ICJ Rep. at 58–59, 67–69, paras. 46, 65–68.

86 Id. at 58 (quoting Anglo-French case, 18 ILM at 421, para. 70). The separate opinions by three judges sitting on the Jan Mayen case argue that the applicability of the 1958 Continental Shelf Convention, supra note 4, requires a unique analysis more favorable to equidistance. 1993 ICJ Rep. at 99, para. 37 (Oda.J., sep. op.); 1993 ICJ Rep. at 122–26 (Schwebel, J., sep. op.); 1993 ICJ Rep. at 136–47, 151–59 (Shahabuddeen, J., sep. op.). Two other opinions support the conclusion of the Court on this issue: 1993 ICJ Rep. at 169–73, paras. 171–232 (Weeramantry, J., sep. op.); 1993 ICJ Rep. at 305, para. 4 (Fischer, J. ad hoc, dissenting).

871993 ICJ Rep. at 60–61, 79, 79–81, paras. 51, 91, 92.

88 E.g., Libya/Malta, 1985 ICJ Rep. 13; Gulf of Maine, 1984 ICJ Rep. 246.

89 Jan Mayen, 1993 ICJ Rep. at 58, para. 45.

90 1984 ICJ Rep. at 291–95, paras. 84–96.

91 31 ILM at 1162, 1168, 1169, 1176, paras. 33, 35, 62, 64, 93.

92 Legault & Hankey, supra note 52, at 203, 221; Charney, supra note 2, at xliv.

93 North Sea, 1969 ICJ Rep. at 45–49, paras. 81–90.

94 1985 ICJ Rep. at 55–56, para. 77.

95 1 Nor. Counter-Memorial, supra note 30, at 81–92, paras. 279–322; Nor. Rejoinder, supra note 38, at 191–92, paras. 653–57; Oral Presentation by Mr. Haug, Agent for Norway, Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), ICJ Verbatim Record at 17–23 (Jan. 15, 1993)[hereinafter Haug Oral Presentation]; Tresselt Oral Presentation, supra note 39, at 25–26, 27–32 (Jan. 27, 1993).

96 Jan Mayen, 1993 ICJ Rep. at 43, para. 9.

97 Colson, supra note 52, at 41, 46–50; Den. Memorial, supra note 38, at 113–17, paras. 357–64; 1 Nor. Counter-Memorial, supra note 30, at 91–92, 108–11, paras. 317–22, 373–81; 1 Den. Reply, supra note 31, at 170-73, paras. 467-80; Nor. Rejoinder, supra note 38, at 191, para. 653.

98 Jan Mayen, 1993 ICJ Rep. at 42, para. 9.

99 31 ILM at 1152, para. 1.

100 Jan Mayen, 1993 ICJ Rep. at 56–59, paras. 41–48.

101 Id. at 61–62, 69–70, 79, paras. 52–53, 71, 90. Judge Oda argued in his separate opinion that the analyses should have been very different. Id. at 110, para. 73.

102 Convention on the Continental Shelf, supra note 4, Arts. 2, 3. Jan Mayen, 1993 ICJ Rep. at 79–81, para. 92. The Court presented separate, but parallel, analyses to establish the equidistant provisional line. Subsequently, only a single analysis was presented for all purposes. Furthermore, the Court treated the fishery zone as an exclusive economic zone, a view that was severely criticized by Judge Oda in his separate opinion. Id. at 95–96, paras. 20–22 (Oda, J., sep. op).

103 North Sea, 1969 ICJ Rep. at 45, para. 81.

104 See the case study of this matter in D. H. Anderson, Federal Republic of Germany-United Kingdom, Report No. 9-12, in International Maritime Boundaries, supra note 2, at 1851; D. H. Anderson, Denmark-Federal Republic of Germany, Report No. 9-8, in id. at 1801; D. H. Anderson, Federal Republic of Germany-The Netherlands, Report No. 9-11, in id. at 1835 and map (Regional Overview North and West Europe, Region Number 9), in id. at 343.

105 See the case study of this matter in Tullio Scovazzi, Libya-Malta, Report No. 8-8, in International Maritime Boundaries, supra note 2, at 1649.

106 Maritime Frontier Dispute, 1992 ICJ Rep. at 606–09, paras. 415–20. If the area seaward of the gulf is divided by maritime boundaries, Honduras may find itself with a long, thin corridor sandwiched between El Salvador and Nicaragua.

107 See 31 ILM at 1169–71, paras. 66–74. See also Jonathan I. Charney, Canada-France, Report No. 1-2 Addendum, in International Maritime Boundaries, supra note 2, at 399. The corridor runs south from the islands, reflecting the direction of their coastal front. While this cardinal direction is hard to justify on the basis of coastal geography, cardinal directions have been used elsewhere. See Legault & Hankey, supra note 52, at 202, 211–12. An 88-km.-long and 3.160-km.-wide maritime boundary was established by the France-Monaco agreement of Feb. 16, 1984. Tullio Scovazzi, France-Monaco, Report No. 8-3, in International Maritime Boundaries, supra, at 1580.

108 In some rare cases, states have drawn maritime boundaries that create narrow corridors. See Scovazzi, supra note 107, at 1581; Tullio Scovazzi, Cyprus-U.K. (Akrotiri, Dhekelia), Report No. 8-1, in International Maritime Boundaries, supra note 2, at 1559; Kaldone G. Nweihed, Dominica-France (Guadeloupe and Martinique), Report No. 2-15, in id. at 705; and Kaldone G. Nweihed, Netherlands (Antilles)-Venezuela, Report No. 2-12, in id. at 615. See also Highet, supra note 10, at 462. A narrow corridor may be more viable if established by agreement to address specific concerns or if created in the context of other amicable arrangements.

109 See Gelinas, supra note 58; and Valerie Hughes, Remarks at “The Law of the Sea: Recent Delimitation Cases,” supra note *, at 227.

The tribunal refused to decide whether the French corridor would go beyond 200 nautical miles from the coastline of St. Pierre and Miquelon. This seaward access for St. Pierre and Miquelon may not, however, be unlimited since the area beyond 200 nautical miles from the French islands is within 200 nautical miles of the Canadian coastline of Nova Scotia and Newfoundland. Thus, the French zone may be encapsulated within the Canadian coastal zones. St. Pierre and Miquelon, 31 ILM at 1171–73, paras. 75–82.

110 See Den. Memorial, supra note 38, at 95–97, 117–21, paras. 295–301, 365–78; 1 Den. Reply, supra note 31, at 5, 165–73, paras. 10, 452–80.

111 Denmark (Greenland) sought the same maritime boundary solution that was reached in the maritime area between Iceland and Jan Mayen (Norway). Iceland obtained its full 200-nautical-mile entitlement and Jan Mayen was left with the remainder, which was far less than its full 200-nautical-mile potential entitlement. Iceland/Norway, supra note 56; Den. Memorial, supra note 38, at 91–92, para. 289; Anderson, supra note 56, at 1755. The ICJ, however, produced a maritime boundary in the Greenland-Jan Mayen case that is marginally set off from the equidistant line to favor the state with the longer relevant coastline (Denmark), just as it did in the Libya/Malta case. See Scovazzi, supra note 105, at 1649.

112 Jan Mayen, 1993 ICJ Rep. at 79–81, paras. 91–92.

113 Id. at 65–69, paras. 61–70. See the discussion in the subsection “Proportionality,” supra p. 241.

114 1993 ICJ Rep. at 72–73, paras. 77–78.

115 Id. at 72, para. 76.

116 St. Pierre and Miquelon, 31 ILM at 1171–73, paras. 75–82.

117 See Beazley, supra note 52, at 243, 256–59; Colson, supra note 52, at 41, 61–62.

118 Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. 3, 25–27, paras. 41–44 (Mar. 21); Libya/Malta, 1985 ICJ Rep. at 24–28, paras. 20–23.

119 Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. 92 (Sept. 13); Maritime Frontier Dispute, 1992 ICJ Rep. at 609-10, paras. 421–24.

120 Maritime Frontier Dispute, 1992 ICJ Rep. at 609–10, paras. 421–24.

121 77 I.L.R. at 683–84, 25 ILM at 297–98, paras. 108–10. For comparable domestic U.S. disputes in which a regional perspective was considered, see Jonathan I. Charney, The Delimitation of Lateral Seaward Boundaries Between States in a Domestic Context, 75 AJIL 28 (1981).

122 Continental Shelf (Libya/Malta), Application to intervene, 1984 ICJ REP. 3, 25–27, paras. 40, 41, 43 (Mar. 21); Libya/Malta, 1985 ICJ Rep. at 20–22, 40, 50–51, paras. 14–17, 47, 69–72; Tunisia/Libya, 1982 ICJ Rep. at 91, para. 130.

123 Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. 3 (Mar. 21); Libya/Malta, 1985 ICJ Rep. 13 (June 3).

124 Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. at 125, para. 79.

125 Id.

126 Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. at 22, 25–27, paras. 35, 41–44; Libya/Malta, 1985 ICJ Rep. at 24–28, paras. 20–23; Tunisia/Libya, 1982 ICJ Rep. at 91, para. 130.

127 Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. at 25–27, paras. 41–44; Libya/Malta, 1985 ICJ Rep. at 24–28, paras. 20–23.

128 Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. at 134–36, paras. 99–104; Maritime Frontier Dispute, 1992 ICJ Rep. at 609–10, paras. 421–24.

129 The ruling denying Italy's request to intervene in the Libya/Malta case drew five dissents arguing for a more liberal application of the right to intervene in maritime boundary cases. See dissents of Judges Sette-Camara, Oda, Ago, Schwebel, and Jennings in Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. at 71, 90, 115, 131, & 148, respectively. See generally Lori Fisler Damrosch, Multilateral Disputes, in International Court of Justice at a Crossroads 377 (Lori Fisler Damrosch ed., 1987).

130 Guinea/Guinea-Bissau, 77 I.L.R. at 683–84, 25 ILM at 297–98, paras. 108–10.

131 The ICJ did find joinder to be required in Case of the monetary gold removed from Rome in 1943 (Italy v. Fr., UK, U.S.), Preliminary Question, 1954 ICJ Rep. 19 (June 15), where the legal interests of the absent state would form the very subject matter of the decision. See Maritime Frontier Dispute (El Sal. v. Hond.), Application to Intervene, 1990 ICJ Rep. at 114–16, paras. 52–56. But the Court has otherwise been opposed to compulsory third-party joinder on the ground that, without an independent basis for jurisdiction, it would conflict with the Court's consent-based jurisdiction. Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. at 20–22, paras. 32–33.

132 See Iceland/Norway, supra note 56; Den. Memorial, supra note 38, at 91–92, para. 289; Anderson, supra note 56, at 1755.

133 Bowett Oral Presentation, supra note 39, at 19–23 (pt. II.B); Lehman Oral Presentation, supra note 39, at 22–25.

134 See 1 Nor. Counter-Memorial, supra note 30, at 71–72, 160, paras. 250–52, 553; Tresselt Oral Presentation, supra note 39, at 46–51 (pt. 4); Haug Oral Presentation, supra note 95, at 34, 66–67 (Jan. 18, 1993); Tresselt Oral Presentation, supra, at 13–17 (Jan. 27, 1993).

135 Jan Mayen, 1993 ICJ Rep. at 76–77, para. 86.

136 Id. at 47, para. 18. The parties were in agreement with respect to this limitation.

137 Id. at 55, para. 37.

138 Id. at 76, para. 85.

139 Arguably, maritime boundary settlements would become more difficult if the Court drew more from state practice in the course of deciding maritime boundary disputes. The precedent-setting impact would add a complication to an already-complicated issue. To the contrary, state practice as a key element in international lawmaking is pervasive and has not been considered an unacceptable threat to negotiated settlements of international disputes. In fact, the resulting focus on state practice may help to define the limits of disputes and the context for their solutions. That may limit the number of disputes that will arise and the range of differences between the parties, while facilitating the development of solutions.

140 Thus, in the North Sea all the other coastal states had an interest in limiting the seaward spread and reach of the Federal Republic of Germany. Only international law declared by the ICJ in the North Sea Continental Shelf cases kept those interests in check and preserved Germany's rights. See the three reports by Anderson, in International Maritime Boundaries, supra note 104.

141 Libya/Malta, 1985 ICJ Rep. at 39, para. 45.

142 E.g., the distance between Iceland and Jan Mayen is greater, the socioeconomic conditions of Iceland and eastern Greenland are different, and the settlement was the product of a conciliation that resulted in the establishment of a joint development zone. Iceland/Norway, supra note 56; Anderson, supra note 56, at 1755.

143 For a study of the international maritime boundary settlements, see International Maritime Boundaries, supra note 2.

144 Den. Memorial, supra note 38, at 91–95, paras. 289–93; 1 Nor. Counter-Memorial, supra note 30, at 176–83, paras. 619–58.

145 1 Den. Reply, supra note 31, at 86–108, paras. 216–98; Nor. Rejoinder, supra note 38, at 140–48, paras. 462–96; Bowett Oral Presentation, supra note 39, at 31–35 (pt. III); Brownlie Oral Presentation, supra note 71, at 72–86 (Jan. 19, 1993); Bowett Oral Presentation, supra, at 63–68 (Jan. 25, 1993); Brownlie Oral Presentation, supra, at 47–49 (Jan. 27, 1993).

146 Libya/Malta, 1985 ICJ Rep. at 39, para. 45.

147 Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993).

148 See Charney, supra note 3, at xlii.

149 1 Nor. Counter-Memorial, supra note 30, at 197, para. 704; Nor. Rejoinder, supra note 38, at 192, para. 654; Haug Oral Presentation, supra note 95, at 12–14 (Jan. 15, 1993); id. at 57–59 (Jan. 27, 1993).

150 Oral Presentation by Mr. Highet, Agent for Norway, Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), ICJ Verbatim Record at 58–78 (Jan. 21, 1993).

151 Jan Mayen, 1993 ICJ Rep. at 78, 81, paras. 89, 93.

152 In three previous maritime jurisdiction cases, the jurisdiction of the Court was invoked in the absence of contemporary agreements between the states concerned to litigate the disputes before the ICJ. Only the Aegean Sea Continental Shelf case (Greece v. Turk.), 1978 ICJ Rep. 3 (Dec. 19), concerned a maritime boundary delimitation between coastal states. Turkey refused to appear but communicated its objections to the Court. The Court found that a joint communique relied upon by Greece did not constitute a special agreement to submit the boundary dispute to the Court and that compulsory jurisdiction was absent. The Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Dec. 18), was brought by the United Kingdom under the compulsory jurisdiction of the ICJ, which was not contested by Norway. In dispute was not the maritime boundary between the two coastal states, but rather the legality under international law of lines established by Norway to mark the seaward limits of its internal waters and to serve as the baseline from which the seaward limit of its territorial sea is measured. The relevant bodies of international law on juridical bays and historic waters and nascent systems of straight baselines are clearly distinguishable from the international maritime boundary law. Compare 1982 LOS Convention, supra note 1, Arts. 7, 10 with Arts. 15, 74, 83. In the third case, Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Jurisdiction of the Court, 1973 ICJ Rep. 3, 49 (Feb. 2), Merits, 1974 ICJ Rep. 3, 175 (July 25), jurisdiction was based on compromissory clauses in agreements with Iceland. Iceland refused to appear on the ground that jurisdiction was lacking. The Court found jurisdiction and rendered judgments on the merits. The issues in these cases focused on rights and obligations established by the agreements and by the new international law of the sea regarding coastal states' exclusive fisheries jurisdiction in adjacent maritime areas. No delimitations of maritime boundaries between coastal states were in issue. Compare 1982 LOS Convention, supra, Arts. 55–73 with Arts. 15, 74, 83.

153 Judge Weeramantry, in his lengthy separate opinion, focused primarily on equity in international law, and especially in maritime boundary law. He argued that equity is a legitimate and traditional basis for decisions in adjudications of international disputes. While he also recognized that the Court plays an important legislative role in international maritime boundary law, he argued that it is too early for convergence toward more determinative law. Jan Mayen, 1993 ICJ Rep. at 214, 276–77, paras. 3, 240 (Weeramantry, J., sep. op.). There are grounds to demur. In the last 50 years, there have been more separate international adjudications and arbitrations on this subject of public international law than on any other. Furthermore, approximately one-third of the potential maritime boundaries have already been settled by agreement or otherwise. If now is too early, when would it be time?