the marine delimitation - ghent...

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Faculteit Rechtsgeleerdheid Universiteit Gent

Academiejaar 2010-2011

The Marine Delimitation

An evolution of the concept.

The effect of islands and low-tide elevations on the

marine delimitation.

Masterproef van de opleiding ‘Master in de rechten’

Ingediend door

Pieter DELMOITIE

(Studentennummer.: 00604126)

(Major Internationaal en nationaal Publiekrecht en Milieurecht)

Promotor: Prof. Dr. Eddy SOMERS

Commissaris: Drs. Jasmine COPPENS

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PREFACE

The marine delimitation is an interesting and continuously evolving part of the Law of the Sea. It is of

the utmost importance for States to bring or receive as much as possible of the water surface under

their jurisdiction. Although it is hard enough for States to bring this to a good end in a pure coast to

coast delimitation, our geographic reality provides us with all sort of features, small and big,

impeding the delimitation questions. Moreover, these various insular features all generate different

effects on the marine delimitation. Since States have not always been able to settle the latter

between them, International Courts and Tribunals had to provide a solution in many cases.

Therefore, we found it most interesting to examine the effects generated by the several insular

features and how the Courts and Tribunals resolved the delimitation questions arising from those

insular features.

First of all, I would like to express my sincere gratitude to Prof. dr. SOMERS for promoting this thesis

and thereby giving me the opportunity to get more insight in the international law aspect that clearly

interests me the most. I also owe him much gratitude for allowing me to write this thesis in English.

This clearly forms an indispensible skill for my future, which I hope to find in international law.

It would however be unforgivable not to place a word of sincere gratitude to Drs. COPPENS, who

instantly responded to every single mail and question I have send her over the last ten months. Her

ever friendly and targeted answers stimulated me to continue the work to be done on what now

seems to have been my favorite activity over the last year.

Finally, I must thank my parents, family and friends for supporting me in writing this thesis. And last

but not least, I would like to thank my girlfriend for supporting me and guiding me through some

essential elements of lay-out in order to make this thesis more presentable.

Pieter DELMOITIE

Aalst, 1 May 2011

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KORTE INHOUD

De Mariene Delimitatie. Evolutie van het begrip.

De mariene delimitatie is een zeer belangrijk element van het internationaal zeerecht. Het geeft

staten de mogelijkheid mariene claims te uiten t.a.v. de aanwezige wateroppervlakte. Om

verschillende redenen is soevereiniteit over deze wateren zeer gegeerd. De statenpraktijk ontpopte

zich al snel tot een kluwen van verschillende breedtes en definiëringen. Daarom voelde de Verenigde

Naties de nood aan om op te treden en uniformiteit te bewerkstelligen. De eerste poging die deze

ondernam draaide uit op de 4 Geneefse Conventies van 1958. Hoewel deze op succes werden

onthaald, slaagden ze er niet in duidelijkheid, laat staan uniformiteit, in het leven te roepen m.b.t. de

respectievelijke breedtes van de verschillende mariene zones. De enige voorziene afstand was deze

van een vaste 12 Nm voor een additionele Aansluitende Zee, afhankelijk van de reeds geclaimde

Territoriale Zee. De Geneefse Conventies maakten zelfs geen melding van een visserijzone (later de

Exclusieve Economische Zone). In de nasleep van deze Conventies bleven er verschillende claims

bestaan en ontstaan. De tweede Zeerechtconferentie van 1960 draaide uit tot niets. Het was dus

wachten geblazen op het Zeerecht verdrag van Montego Bay 1982, ter afsluiting van de 9 jaar

durende Derde Zeerechtconferentie. De grote waarde van dit verdrag ligt in de conventionele

regeling van de respectievelijke breedtes. Elke zone werd ditmaal duidelijk en ondubbelzinnig

afgebakend.

Over het gewoonterechtelijke karakter van dit laatste zijn verscheidene doctrinale meningen terug te

vinden. Sommige auteurs hebben beargumenteerd dat dit verdrag in zijn totaliteit deel uitmaakt van

het internationale gewoonterecht. Andere auteurs konden zich hier niet in vinden en verwijzen

daarbij vooral naar de positie van het Diepzeebed regime. Nochtans lijkt het gewoonterechtelijke

karakter van de bepalingen betreffende de Territoriale Zee, Aansluitende Zone, Exclusieve

Economische Zone en het Continentaal Plateau voldoende steun te vinden in de rechtsleer.

Het Zeerechtverdrag regelde ook de regels inzake interstatelijke delimitatie. Gezien de soms

beperkte waterhoeveelheden tussen aanliggende en tegenoverliggende staten, is het vaak

onmogelijk om beide te voorzien van (alle) mariene zones. Daarom was een conventionele regeling

daaromtrent noodzakelijk in dit nieuwe Zeerechtverdrag.

Het hoeft dus geen betoog dat de Zeerechtconventie van onmetelijke waarde is geweest in de

totstandkoming van het (conventioneel geregelde) internationale zeerecht. Desalniettemin zijn er

enkele praktijken die niet geregeld zijn in het Zeerechtverdrag, maar toch een grote rol spelen in het

hedendaagse delimitatierecht. Zo is er de, door statenpraktijk ontstane en door het Internationaal

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Gerechtshof erkende, praktijk die de EEZ en het CP in één lijn afbakenen. Dit is nergens voorzien in

het Zeerechtverdrag, maar is zeker en vast een vaste regel geworden in delimitatiezaken. Een ander

aspect vormt de niet aflatende pogingen van staten om additionele hoeveelheden wateroppervlakte

(en de onderliggende bodem) onder hun bevoegdheid te krijgen. Denken we maar aan Canada die,

omwille van natuurbehouds- en milieudoelstellingen, haar EEZ onaflatend tracht uit te breiden

voorbij de 200 Nm limiet. De mariene delimitatie is dus een constant evoluerende tak van het

internationale zeerecht waar de eindstreep inzake conformiteit nog lang niet in bereikt.

De Mariene Delimitatie. Het effect van eilanden en droogvallingen op de mariene delimitatie

Het vastleggen van de delimitatie tussen staten loopt uiteraard niet altijd van een leien dakje. Het

hoeft dus geen betoog dat eilanden en droogvallingen, en andere insulaire gebieden, de delimitatie

enorm kunnen bemoeilijken. Aangezien de delimitatie van wezenlijk belang is voor de staten, spreekt

het voor zich dat de aanwezigheid van eilanden en droogvalling van zeer groot belang kan zijn.

Vermits deze verschillende insulaire gebieden elk een ander effect ressorteren op de mariene

gebieden, is een heldere begripsduiding noodzakelijk. Men maakt –inzake aanspraken en delimitatie-

een onderscheid tussen respectievelijk eilanden/rotsen, niet bewoonbare rotsen, droogvallingen,

riffen,… Daarbij komt men tot verschillende conclusies.

Inzake de aanspraak op eigen mariene zones kan men concluderen dat eilanden elke zone kunnen

claimen voor zichzelf, terwijl daar voor onbewoonbare rotsen speciale regels gelden. Droogvallingen

daarentegen zijn niet gerechtigd aanspraak te maken op eigen mariene zones. Deze zijn slechts in

staat de grenslijn van de mariene zones van het vasteland of eiland waaronder zij ressorteren uit te

breiden. Doordat deze geïncorporeerd worden in de basislijn, zijn ze dus in staat de lijnen verder

zeewaarts te duwen. Naast de normale basislijn, kunnen beide insulaire gebieden ook gebruikt

worden voor het trekken van rechte basislijnen, zij het dat de droogvallingen onderworpen zijn aan

striktere vereisten. Het gebruik ervan in rechte basislijnen, neigt tot de conclusie dat deze ook

kunnen gebruikt worden in de sluitingslijnen van baaien, zij het wederom onderhevig aan speciale

vereisten voor droogvallingen. Maar meteen valt ook op dat de mogelijkheden voor droogvallingen

om een effect te genereren beduidend minder zijn als bij eilanden. Dit is uiteraard het logische

gevolg van de tijdelijke onderdompeling die een droogvalling ondergaat bij hoog tij.

Het grootste verschil in behandeling, vinden we echter terug op het vlak van het grootste belang van

hun aanwezigheid. Wanneer eilanden en droogvallingen de delimitatie tussen twee staten

bemoeilijken, dan zullen deze twee staten er niet altijd in slagen deze problemen op te lossen.

Daarom hebben zowel het Internationale Gerechtshof, het Permanente Hof van Arbitrage en andere

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Arbitragetribunalen zich reeds moeten uitspreken over het effect van eilanden en droogvallingen in

verscheidene zaken. Hier is het nodig de effecten van de respectievelijke gebieden op te delen.

M.b.t. eilanden dienen we allereerst te benadrukken dat deze gelijke rechten hebben als enig ander

gebied van vasteland. Beide hebben recht op (gelijke delen van) de mariene zones. Dit kan men een

“vol effect” voor eilanden noemen. Hoewel dit principe een conventionele grondslag heeft, heeft

men dit “vol effect” in het verleden als onbillijk ervaren, waardoor men geneigd was deze onbillijke

effecten te willen remediëren. Deze remediëring vertaalde zich dan in een “geen effect”, een

“gedeeltelijk effect” of een “enclave oplossing”. Het mag nochtans duidelijk zijn dat een “geen

effect” eveneens onbillijk kan zijn. Deze verschillende remedies zijn door de verschillende Hoven en

Tribunalen toegepast geweest. Het is echter een spijtige zaak dat er vanuit de verschillende arresten

geen duidelijke voorspelbaarheidratio te distilleren is. Iedere zaak dient op zijn eigen merites

beoordeeld te worden en neigt dus tot andere conclusies. Bovendien zijn verschillende zaken in

gelijklopende situaties anders beslecht geweest, wat het extreem bemoeilijkt daar enige conclusie uit

te halen.

Voor droogvallingen liggen de zaken echter anders. Daar deze niet zelf gerechtigd zijn mariene zones

te claimen, zijn zij dus enkel in staat de grenzen van het vasteland of nabijgelegen eiland (of rots)

verder zeewaarts te duwen. Daardoor kan er dus ook nauwelijks sprake zijn van een “vol effect” of

een “geen effect”, laat staan een “gedeeltelijk (of half) effect”. Een enclave oplossing is echter

ondenkbaar. Een “vol effect” zou hier enkel betekenen dat de droogvalling wordt gebruikt als

basispunt in de basislijn. Het niet gebruiken ervan is dan een “geen effect”. Desalniettemin is er

evolutie waarneembaar in de effecten dat deze gebieden kunnen ressorteren. Zo heeft het

Internationaal Gerechtshof in een zaak beslist dat eilanden en droogvallingen als één geheel

gerechtvaardigd waren om een half effect te genereren. Toegegeven, de draagwijdte hiervan is

uiterst beperkt, maar het vormde een eerste stap naar meer erkenning van droogvallingen in de

mariene delimitatie. In een andere zaak voor het Internationaal Gerechtshof kende het voor de

eerste maal een half effect toe aan een droogvalling an sich. De draagwijdte van dit arrest voor

droogvallingen is dan ook enorm. Tot op heden is er geen enkele zaak geweest die deze tendens

heeft verder gezet. Het is dan ook wachten geblazen op meer erkenning om gewaag te maken van

een nieuwe evolutie.

De verschillende effecten die deze gebieden ressorteren worden nogmaals bemoeilijkt door

milieurechtelijke problemen, waaronder dan vooral de stijging van het zeepeil. Hierdoor is het

denkbaar geworden dat droogvallingen te allen tijde kunnen ondergedompeld worden door het

water. Een eiland zou dan tijdelijk ondergedompeld kunnen zijn en daardoor een droogvalling

worden. Het is echter angstvallig wachten op enkele toepassingsgevallen om te ervaren welk gevolg

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hieraan gegeven zal worden door de statenpraktijk of eventueel door het Internationaal Gerechtshof

of een Arbitragetribunaal. Maar zelfs zonder deze milieuontwikkelingen is de algemene conclusie dat

het delimitatierecht inzake eilanden en droogvallingen constant in evolutie is. Daarvan getuigen

ondermeer de steeds meer en nieuwe delimitatie-akkoorden en uitspraken van het Internationaal

Gerechtshof en andere Arbitragetribunalen. Het is dus voorlopig nog onmogelijk gebleken om een

heldere voorspelbaarheidratio op te stellen inzake hun effect. Maar, zelfs nieuwe zaken en

akkoorden sluiten zoiets in de toekomst uiteraard niet uit.

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS xi

LIST OF FIGURES xiii

THE MARINE DELIMITATION: AN EVOLUTION OF THE CONCEPT 1

INTRODUCTION 2

I. The Territorial Sea 3

1. The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone 3

2. The 1982 United Nations Convention on the Law of the Sea 3

3. Doctrine 4

4. State practice 6

II. The Contiguous Zone 7

1. The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone 7


3. Doctrine 9

4. State practice 10

III. The Exclusive Economic Zone 10

1. Pre – Law of the Sea Convention 10


3. Doctrine 12

4. Further developments 12

IV. The Continental Shelf 13

1. The 1958 Geneva Convention on the Continental Shelf and Jurisprudence 13

2. The 1982 United Nations Convention on the Law of the Sea and Jurisprudence 14

3. Doctrine 16

4. State Practice 16

V. The single delimitation line for the EEZ and the CS 17

CONCLUSION 20

THE MARINE DELIMITATION:

THE EFFECT OF ISLANDS AND LOW-TIDE ELEVATIONS ON THE MARINE DELIMITATION 21

INTRODUCTION 22

I. Definitions 23

1. Islands 23

2. Low-tide elevations 26

3. Current developments 28

II. Entitlement of islands and low-tide elevations for maritime areas 29

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1. Territorial Sea 29

1.1. Islands 29

1.2. Low-tide Elevations 30

2. Contiguous Zone 33

2.1. Islands 33


3. Exclusive Economic Zone 35

3.1. Islands 35


4. Continental Shelf 39

4.1. Islands 39


III. The effect of islands and low-tide elevations on the marine delimitation 39

1. Bays 39

1.1. The effect of islands 39

1.2. The effect of low-tide elevations 43

2. Straight baselines 45

2.1. The effect of islands 45

2.2. The effect of low-tide elevations 48

3. Interstate marine delimitation 53

3.1. General delimitation principles: equidistance and equitable delimitation 53

3.1.1. Boundary delimitation concerning the Continental Shelf 53

3.1.2. Boundary delimitation in the Territorial Sea 61

3.1.3. Boundary delimitation in the Contiguous Zone 62

3.1.4. Boundary delimitation concerning the Exclusive Economic Zone 63

3.2. Islands in interstate marine boundary delimitation 63

3.2.1. Inequity and full effect 65

- The Korean Island Dispute: exemplary situation? 66

(a) The dispute 66

(b) Commentary 67

- Case concerning Maritime Delimitation and Territorial

Questions 2001 (Qatar/Bahrain) 68

(a) Decision of the Court 68

(b) Commentary 70

3.2.2. Abating inequity 70

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3.2.2.1. No effect rule 70

- Continental Shelf Case 1982 (Tunisia/Libya) 71


(b) Commentary 72

- Award of the Arbitral Tribunal-Maritime Delimitation

1998-1999 (Eritrea/Yemen) 72

(a) Decision of the Tribunal 73

(b) Commentary 73

- Case concerning Maritime Delimitation and Territorial



(b) Commentary 74

- Land and Maritime Boundary Case 2002

(Cameroon/Nigeria) 75


(b) Commentary 75

- Black Sea Case 2009 (Ukraine/Romania) 76


(b) Commentary 77

3.2.2.2. ‘Partial’ or ‘half’ effect rule 77

- Anglo-French Arbitration 1977 78


(b) Commentary 80



(b) Commentary 80

- Continental Shelf Case 1984 (Libya/Malta) 82

(a) Commentary 82

- Gulf of Maine Case 1984

(Canada/United States of America) 85

(a) The issue of the Machias Seal Island and the

Court’s decision 85

(b) Commentary 86

- Case concerning Maritime Delimitation in the Area

between Greenland and Jan Mayen 1993

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(Denmark/Norway) 86


(b) Commentary 88

- Award of the Arbitral Tribunal-Maritime Delimitation

1998-1999 (Eritrea/Yemen) 90


(b) Commentary 91

3.2.2.3. Enclave solution 92

- Anglo-French Arbitration 1977 93


(b) Commentary 94

- French Canadian Arbitration 1992

(Islands of Saint Pierre et Miquelon) 95


(b) Commentary 96

- Territorial and Maritime Caribbean Sea Dispute 2007

(Nicaragua/Honduras) 97


(b) Commentary 98

3.3. Low-tide elevations in interstate marine boundary delimitation 99

3.3.1. Abating inequity? 100

3.3.1.1. No effect rule 101

- Case Concerning Marine Delimitation and Territorial



(b) Commentary 102

- Bangladesh v. India before the PCA 102

(a) Problems arising in the maritime delimitation

(b) Commentary 103

3.3.1.2. Partial effect rule 104



(b) Commentary 104

- Case Concerning Marine Delimitation and Territorial


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(b) Commentary 105

3.3.1.3. Enclave solution? 106

CONCLUSION 108

BIBLIOGRAPHY 112

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LIST OF ABBREVIATIONS

AJIL American Journal of International Law

ASIL American Society of International Law

ASIL Proc. American Society of International Law Proceedings

Cal. W. Int’l L. J. California Western International Law Journal

Ch. J. Int’l L. Chinese Journal of International Law

Ch. (Taiwan) Y.B. Int’l L.& Aff. Chinese (Taiwan) Yearbook on International Law and Affairs

Colum. L. Rev. Columbia Law Review

Conn. J. Int’l L. Connecticut Journal of International Law

CS Continental Shelf

CSC Convention on the Territorial Sea and the Contiguous Zone, 1958

CZ Contiguous zone

Denv. J. Int’l L. & Pol’y Denver Journal of International Law and Policy

Dig.Int’l L Digest of International Law

EEZ Exclusive Economic Zone

Geo. Wash. Int’l L. Rev. George Washington International Law Review

Fordham Int’l L. J. Fordham International Law Journal

IBRU International Boundaries Research Unit

ICJ International Court of Justice, The Hague

I.E.L.T.R. International Energy Law and Taxation Review

IJMCL International Journal of Marine and Coastal Law

ILC International Law Commission, New York

ILM International Legal Materials

ILR International Law Reports

ITLOS International Tribunal of the Law Of the Sea, Hamburg

J. Transnat’l L. & Pol’y Journal of Transnational Law & Policy

La. L. Rev. Louisiana Law Review

LOS Bull. Law of the Sea Bulletin

LOSC The Law of the Sea Convention, Montego Bay, 1982

Mar. Pol’y. Rep. Marine Policy Reports

Mich. St. J. Int’l L. Michigan State Journal of International Law

Nm Nautical mile

Ocean Devel. & Int’l L. Ocean Development and International Law

Oil & Gas L. & Tax’n Rev. Oil & Gas Law and Taxation Review

Pace Int’l L. Rev. Pace International Law Review

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PCA Permanent Court of Arbitration, The Hague

RGDIP Revue Générale de Droit International Public

San Diego Int’l L. J. San Diego International Law Journal

Temp. Int’l & Comp. L.J Temple International and Comparative Law Journal

TS Territorial Sea

TSC Convention on the Territorial Sea and the Contiguous Zone, 1958

U. Miami L. Rev. University of Miami Law Review

U.C. Davis J. Int’l L. & Pol’y University of California Davis Journal on International Law and Policy

UCLA J. Envt’l L. & Pol'y University of California, Los Angeles Journal of Environmental law and

Policy

UNCLOS III (Third) United Nations Conference on the Law of the Sea, 1982

U.N.T.S. United Nations Treaty Series

U.S.F. Mar. L.J. University of San Francisco Maritime Law Journal

Vand. J. Transnat’l L Vanderbilt Journal of Transnational Law

Wash. L. Rev. Washington Law Review

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LIST OF FIGURES

Figure 1 The use of the leapfrogging method 32

Figure 2 LTE pushing the outer TS and CZ limits further seawards 34

Figure 3 Bay closing line constituted by Islands 40

Figure 4 Screening Islands closing a bay 42

Figure 5 Islands forming the arms of a bay 42

Figure 6 Closely related islands, creating a bay (left) 43

Figure 7 Closely related islands, creating a bay (right) 43

Figure 8 A LTE creates a bay at low tide 44

Figure 9 A fringe of Islands: the Norwegian Skjærgaard 47

Figure 10 A fringe of Low-Tide Elevations 52

Figure 11 The equidistance line between opposite States 54

Figure 12 The equidistance line between adjacent States 54

Figure 13 The coastal configurations in the North Sea Continental Shelf Cases 56

Figure 14 The Northern Limit Line and DPRK’s boundary limit line 1999 67

Figure 15 Qatar-Bahrain Case: full effect to the Hawar Island Group 70

Figure 16 The equidistance lines applying no effect rule for islands 71

Figure 17 Black Sea Case: no effect to the Serpents’ Island 77

Figure 18 Anglo-French Arbitration: half effect to the Scilly Isles 79

Figure 19 Continental Shelf Case (Tunisia/Libya): half effect to the Kerkennah Island 82

Figure 20 Continental Shelf Case (Libya/Malta): the adjusted median line 85

Figure 21 Greenland-Jan Mayen Case: the adjusted median line 88

Figure 22 Eritrea-Yemen Arbitration: drawing the median line 91

Figure 23 The (semi-) enclave solution for islands 93

Figure 24 Anglo-French Arbitration: enclave solution for the British Channel Islands 94

Figure 25 Canada-France Arbitration: St. Pierre et Miquelon 96

Figure 26 Nicaragua-Honduras Case: enclaving the Cays 98

Figure 27 India v. Bangladesh: the South Talpatty “Island” 103

Figure 28 Qatar-Bahrain Case: half effect to Fasht al Azm 106

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THE MARINE DELIMITATION.

AN EVOLUTION OF THE CONCEPT

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INTRODUCTION

In order to put the reader wise in the effects that islands and low-tide elevations generate on the

marine delimitation, some general principles on marine delimitation are indispensible. Therefore, the

intent of this first part is to provide the reader with some general principles on the concept of marine

delimitation. A step-wise evaluation of the four marine zones – territorial sea, contiguous zone,

exclusive economic zone and continental shelf - will be set out. For the delimitation depends on the

States’ possibilities of forming claims, this outset will mainly focus on the distance and characteristics

of these zones. These several and distinct zones will be dealt with by using the same evaluation

method. The first thing to examine is their delimitation within the Geneva Conventions (except for

the exclusive economic zone because that was not yet foreseen within the Geneva Conventions). The

reader will then be provided with a comparison of their delimitation provisions under the Law of the

Sea Convention 1982 (1. The 1958 Geneva Convention and 2. The 1982 Law of the Sea Convention).

Having determined their scope of delimitation, the reader might start wondering how these

provisions are reflected and what their value is in the ‘real life’. Therefore, some attention will be

attributed to the consensus on these provisions. The outset will provide some considerations on the

customary law character of the respective maritime zones (3. Doctrine). Clearly, all the previous is

mere theory. Hence, the last step will highlight how states will determine their delimitation issues

when the interlaying waters are insufficient to provide them all with all the marine zones (4. State

practice). This will not be the case in the evaluation of the exclusive economic zone. There, attention

will be given to the creeping jurisdiction on its breadth. As the reader might come to notice, when

looking into part 1, there are a lot of similarities between the exclusive economic zone and the

continental shelf concept. Therefore, due attention will be attributed to the delimitation of those

zones by using a single delimitation line.

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I. THE TERRITORIAL SEA

1. The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone

States have always looked upon the seas as the natural prolongation of their territory, and thus

within their sovereignty1. But how far did that prolongation go? States used different ways2 for

delimiting the sea area within their power. This situation of different claims could not be upheld.

Thus, in order to cope with these issues and to reach international conformity on maritime

delimitation, a convention3 (hereinafter as TSC) was set up, under the auspices of the United Nations.

There were 74 participants to the convention, which was signed by 41 States (of which only 19

ratified). There are now 52 State parties to the convention4.

Although considered as a success, the convention was far from complete5. Article 6 TSC provides:

“The outer limit of the territorial sea is the line every point of which is at a distance from the nearest

point of the baseline equal to the breadth of the territorial sea”. The convention provided States with

a system of delimitation, however did not foresee a breadth.

Articles 3 and 4 TSC described the methods of forming the inner limit of the territorial sea by

installing the ‘normal’ and ‘straight’ baselines. However, there was still no sign of an outer limit.

2. The 1982 United Nations Convention on the law of the Sea

The lack of a vast limit resulted in several claims6, varying in distance. A second United Nations

Conference on the Law of the Sea, in 1960, failed to bring international stabilization.

The uncertainty concerning the breadth of the territorial sea led the United Nations to installing a

new conference, the Third United Nations Conference on the Law of the Sea. Although the

1 This principle was generalized by some eminent scholars/jurists, such as AZO, BARTOLUS, GENTILI and others.

2 The canon shot rule, view from the coast, the “marine league”.

3 Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958, United Nations Treaty

Series (U.N.T.S.), vol. 516, 205. 4 Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958,

http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=1&mtdsg_no=XXI-1&chapter=21&lang=en#top. 5 LEVICK, A.J., “From sovereignty to fishing rights: the historical evolution of the law of the territorial sea”, 3

Dig.Int’l L. 1995-1996, 36. 6 “22 States claimed a [TS] of 3 Nm, 4 States claimed 5 Nm, 10 States claimed 6 Nm, 13 States claimed 12 Nm, 2

States claimed 200 Nm, and 5 States claimed to establish their territorial sea in accordance with international law” in LEVICK, A.J., “From sovereignty to fishing rights: the historical evolution of the law of the territorial sea”, 3 Dig.Int’l L 1995-1996, 36. A listing is provided as well by the UN in UNITED NATIONS, Second United Nations

Conference on the Law of the Sea, Official records, Vol. I, Geneva, United Nations Publications, A/CONF.19.8, 1960, 157-163.

19

discussions took over 9 years, the outcome was a new convention7 (hereinafter as LOSC) which was

signed by 157 States of the 179 participants. 141 of the 157 signatory States ratified the convention.

Up to today, there are 161 parties to the convention. The convention provided an outer territorial

sea limit of 12 nautical miles8 (hereinafter as Nm). The provision of article 6 of the Geneva

Convention was upheld in the new article 4, but LOSC inserted a new article 3. Article 3 of LOSC

states: “Every State has the right to establish the breadth of its territorial sea up to a limit not

exceeding 12 Nm, measured from baselines determined in accordance with this Convention”.

Therefore, it is the merit of UNCLOS III and LOSC to have brought international consensus on the

breadth of the territorial sea.

3. Doctrine

The LOSC has become the international framework concerning the use and regime of the oceans and

seas. However, not all countries have ratified, or even signed this Convention. Obviously, this brings

along a lot of difficulties, concerning the applicability of rules, rights and duties for State parties,

when interfering with the rights of non-parties. The LOSC (or at least part I to X) is said to form part

of customary international law. It does not fall under the scope of this outset to provide a detailed

examination on the customary law characteristics. A concise review, however, is indispensible. For a

rule to become customary international law, 2 main elements are required: state practice and opinio

juris9. It is widely recognized that conventions, under some circumstances, can generate customary

7 United Nations Convention on the Law of the Sea (LOSC), Montego Bay, 10 December 1982, U.N.T.S. vol.

1833, 3; Countries that are not State parties to LOSC: 1. Countries that have no direct access to any Sea Area (rivers not included): Andorra, Holy See (Vatican), San Marino, Tajikistan; 2. Countries with no direct access to the High Seas but with access to Sea Area (rivers not included): Azerbaijan (Caspian Sea, lake), Kazakhstan (Caspian and Aral Sea, lakes), Kyrgyzstan (lakes) Turkmenistan (Caspian Sea, lakes), Uzbekistan (Aral Sea, lakes); 3. Others: Ecuador, Eritrea, Israel, Peru, Syria, Taiwan (referred to by China in Article 2 of its Law on the Territorial Sea and the Contiguous Zone of 25 February 1992, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHN_1992_Law.pdf), Turkey, Western Sahara. Not yet a party to the Convention: Kosovo, East-Timor (However, Portugal expressed that the Convention shall fully apply for the non-self-governing territory of East-Timor), Data based on http://nl.alumnieeni.com/ and http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=UNTSONLINE&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#EndDec. 8 1 Nautical mile = 1852 metres according to the First International Extraordinary Hydrographic Conference,

Monaco 1929. There is no international agreement on which abbreviation is to be used for it (M, NM, Nm, nmi are all used), Bureau International des Poids et Mesures, http://www.bipm.org/en/si/si_brochure/chapter4/table8.html (last visited, February 17, 2011). 9 CHURCHILL, R.R. and LOWE, A.V., The Law of the Sea. 3

rd edition, Manchester, Manchester University Press,

1999, 5-6; SHAW, M.N., International Law. 4th edition, Cambridge, Cambridge University Press, 1997, 58-59; LEE, M.L., “The interrelation between the Law of the Sea Convention and Customary International Law”, 7 San

Diego Int’l L.J., 2006, 407.

20

rules, binding on all states (even the non-parties to the convention)10. LOWE11 as well concluded that,

following the Nicaragua case12, it is possible for treaty provisions to have a parallel existence as rules

of customary international law. There are 3 possible ways, set out by the ICJ, in which international

conventions can become international customary law: (1) the convention codifies existing customary

international law, (2) it crystallizes customary international law and (3) it initiates the progressive

development of new customary international law13. According to some scholars14, the LOSC brought

along a new method, namely, “the package deal theory”. CAMINOS and MOLITOR15 described it as

follows; “the new comprehensive convention has been elaborated as a single and indivisible

instrument, as a package of closely interrelated compromise decisions”.

The question then emerges whether the LOSC can be seen as customary international law. LEE16

demonstrated that, in the LOSC, customary rules follow from the different methods (eg. innocent

passage is preexistent customary law, transit passage has been crystallized,…). It is undisputable that

some elements of the LOSC (at least part I to X) have (obtained) a customary law character17. For

other parts of the LOSC this is disputed, not in the least for part XI on the Deep Seabed Regime. It is

clear that the Deep Seabed Regime does not fall under either one of the three conditions, set out by

the ICJ. Moreover, it could not be traditional custom, since there is a lack of state practice (however,

even opinio juris is highly questionable in this respect). Nevertheless, LEE believed that, based on this

package deal theory, “Part XI may have already become customary international law since the

majority of the LOSC was adopted as customary international law” and “that through the combined

force of these four methods, the LOSC represents customary international law to a very wide extent,

and consequently binds all States to its provisions, governing human activities on the ocean”18. REMY

10

SURACE-SMITH, K., “United States Activity Outside of the Law of the Sea Convention: Deep Seabed mining and Transit Passage”, 84 Colum. L. Rev. 1984, 1035. 11

LOWE, A.V., International Law, Oxford, Oxford University Press, 2007, 86. 12

ICJ, 27 June 1986, Case Concerning Military and Paramilitary Activities in and against Nicaragua. Merits.

Judgment, Nicaragua/United States of America, ICJ Reports 1986, 95-96, par. 178-179. 13

Categorization by CHARNEY, J.I., “International Agreements and the Development of Customary Law”, 61 Wash. L. Rev. 1986, 971, based on ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of Germany/Denmark and the Netherlands, ICJ Reports 1969, 37-39, adopted by LEE, M.L., “The interrelation between the Law of the Sea Convention and Customary International Law”, 7 San Diego Int’l L.J. 2006, 408. 14

LEE, L.T., “The Law of the Sea Convention and Third States”, 77 AJIL 1983, 566-567; LEE, M.L., “The interrelation between the Law of the Sea Convention and Customary International Law”, 7 San Diego Int’l L.J. 2006, 408. 15

CAMINOS, H. and MOLITOR, M.R., “Perspectives on the Law of the Sea: Progressive Development of International Law and the Package Deal”, 79 AJIL 1985, 882. 16

LEE, M.L., “The interrelation between the Law of the Sea Convention and Customary International Law”, 7 San Diego Int’l L.J. 2006, 410-418. 17

LOWE, LEE; WOUTERS, J. en BOSSUYT, M., Grondlijnen van internationaal recht, Antwerpen, Intersentia, 2005, 338. 18

LEE, M.L., “The interrelation between the Law of the Sea Convention and Customary International Law”, 7 San Diego Int’l L.J. 2006, 418 and 420.

21

already postponed this thought, “UNCLOS III is the result of twelve years of U.N. conferences and

codifies much of what participating nations consider to be customary international law of the sea”19.

This leads to the conclusion that there is a wide consensus that most parts of the LOSC are customary

international law and thus binding upon all states, including non-parties. But it cannot be upheld that

any provision of the LOSC will unequivocally be deemed to bind every State, in its extreme the Deep

Seabed Regime. All will depend on the exact provision and the customary character of that provision

to make it applicable as a customary rule next to a conventional rule. The most comprehensive

conclusion seems thus to be that there is no general consensus on whether there is a general

consensus on the LOSC.

If we take this customary character to the extent of the territorial sea, there is not much dispute

about it. There is a general consensus that the territorial sea concept has (obtained) a customary law

character through the various methods described above. Or, as LEE postponed, “the twelve-mile

territorial sea limit at the UNCLOS III may be regarded as both crystallizing the emergent customary

international law and codifying and modifying the preexisting norm”20. According to ARRUDA the 12

Nm TS had already obtained its customary law character before UNCLOS III, “Since UNCLOS I and II

were unable to establish a territorial sea limit and the majority of the states claimed a twelve-mile

limit, the twelve-mile limit became the new standard in customary international law”21.

4. State practice

Even though the 12 nautical mile-rule is generally accepted, and probably codified international

customary law, it is not always applicable. Where possible, States will gladly claim the full maritime

zones they are entitled to claim, such as a 12 Nm territorial sea zone. Adjacent or opposite States

can, however, be confronted with an amount of water between them, that would render it

impossible to provide both countries with a 12 Nm territorial sea. International law (of the sea)

entitles them both to a 12 Nm zone. But clearly this would create overlapping claims. In order to

resolve this issue, both the Geneva Convention22 as the LOSC23 state that neither one of those States

is entitled to extend its territorial sea beyond the line of equidistance. This equidistant line is the line

that would normally divide the present water surface between them, leaving them both with equal

19

REMY, C.E., “U.S. Territorial Sea Extension: Jurisdiction and International Environmental Protection”, 16 Fordham Int’l L.J. 1993, 1214. 20

LEE, M.L., “The interrelation between the Law of the Sea Convention and Customary International Law”, 7 San Diego Int’l L.J. 2006, 419. 21

ARRUDA, H.M., “The Extension of the United States Territorial Sea: Reasons and Effects”, 4 Conn. J. Int’l L.

1989, 709. 22

Article 12 TSC. 23

Article 15 LOSC.

22

shares. Nevertheless, this equidistant line does not apply automatically. Both articles refer to the use

of an agreement as the most plausible solution, so as to divide the waters between them. It is up to

those States to reach an agreement on how the interstate delimitation line between them, based on

equitable principles, would be the most plausible. Of course, these agreements do not always

present equitable solutions. It is rather obvious that economically or politically stronger States might

oppress the weaker States or put a lot of pressure on them to get a delimitation line of which the

stronger State clearly benefits the most. In many cases, stronger States will probably succeed in their

attempt and will be granted with a disproportionate amount of the waters between them. As will be

examined throughout this text, certain delimitation issues will be brought before an international

Court or before an Arbitrary Tribunal, in order to examine the given circumstances. This enlarges the

possibility for an equitable solution. Nevertheless, delimitation agreements are still the main source

of boundary delimitation, leaving room for inequity in maritime interstate boundary delimitation.

Politics and economic power continue to dominate interstate relationships, maritime boundary

delimitation does not constitute an exception to the latter.

II. THE CONTIGUOUS ZONE

1. The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone

The first notions of a contiguous zone were installed, for states “to establish zones in which they

could exercise certain powers with respect to foreign vessels to prevent infringement of and, punish

offenses against, their respective internal laws and regulations”24.

This zone was then codified in the Geneva Convention. Apart from the territorial sea, it thus created

a contiguous zone. This zone was created to ensure that coastal States could exercise jurisdiction in

an additional amount of water mass, behind the territorial sea, whenever new developments or

exploitation possibilities urged them to do so25. The Geneva Convention installed this zone in its

article 24, of which paragraph 2 reads as follows: “The contiguous zone may not extend beyond

twelve miles from the baseline from which the breadth of the territorial sea is measured”. Thus, every

State had a contiguous zone reaching up to 12 Nm. This was, however, a vast breadth. Countries that

had already installed a territorial sea of 12 Nm, or more, could not claim an additional 12 Nm

contiguous zone26. This zone was only valid for those countries having a territorial sea of less than 12

Nm, and only up to the line of 12 Nm. Taken from article 24 TSC, the purpose of this zone was to

24

These followed from the British Hovering Acts and later on also United States’ Acts; SYMONIDES, J., “Origin and Legal Essence of the Contiguous Zone”, 20 Ocean Devel. & Int’l L. 1989, 203. 25 SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte uitgave, Mechelen, Kluwer, 2010, 105. 26

SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte uitgave, Mechelen, Kluwer, 2010, 108.

23

install a zone, merely to prevent and punish infringement of customs, fiscal, immigration or sanitary

regulations within its territory or territorial sea.

In the light of these perceptions, it is rather clear that the CZ was not seen as a clearly separated and

autonomous maritime zone. There was a possibility for a CZ, but only if the TS did not already extend

to that breadth. It was a zone, created merely to provide the possibility to extend the TS further

seawards when the need for that emerged. Since it was not part of the territorial sea, the CZ-concept

in the TSC was part of the high seas27.

2. The 1982 United Nations Convention on the Law of the Sea

While negotiating the LOSC, several sessions were held. During the second session of the Conference

(1974), “the question was raised whether such a contiguous zone would still be necessary”28. The

questioning of the concept was based on two expressions29. One of them stated that it would no

longer be needed, since there was an emerging consensus on the 12 Nm TS30 (if they were all 12 Nm,

there would be no extension anymore to a 12 Nm limit adjacent to the TS). The other one was based

upon the thought that with the establishment of the EEZ concept, “adjacent to the [TS], would render

the [CZ] superfluous and unnecessary”31. According to some other States’ delegates, this zone would

still have been relevant, even under the new convention32. At the same time, there even were

proposals to extend the contiguous zone33. The latter was finalized at the Committee’s 31st meeting,

of which the debate indicated “that there was no reason for not including the contiguous zone in the

new law of the sea”34. This thought was based upon the fact that “it relates to certain specific powers

and controls which are not included in the regime of coastal State rights and jurisdiction in the

[EEZ]”35. A majority of States favored adopting provisions on the contiguous zone.

27

Article 24 (1) TSC: “In a zone of the High Seas (…)”. 28

NORDQUIST, United Nations Convention on the Law of the Sea 1982. A commentary. Vol. II, Dordrecht, Martinus Nijhoff Publishers, 1993, 269. 29

States in favor of rejecting the zone: Cameroon, Kenya, Lebanon, Mexico, El Salvador, Togo. States in favor of keeping the zone: Algeria, Bahrain, Egypt, India, Indonesia, Iraq, Nigeria and Pakistan; SYMONIDES, J., “Origin and Legal Essence of the Contiguous Zone”, 20 Ocean Devel. & Int’l L. 1989, 206. 30

Eg. The Israelian statements at the 9th

Meeting: Second Committee, 9th meeting (1974), par. 5, II Off. Rec. 121. 31

Eg. The Mexican statements at the 9th

Meeting (par. 2), the Indonesian statements (par. 4): Second Committee, 9th meeting (1974), II Off. Rec. 121. 32

Eg. The Egyptian statements at the 9th

Meeting: Second Committee, 9th meeting (1974), par. 8, II Off. Rec. 121; the Algerian statement (par. 12), the Bahraini statement (par. 19) and the Spanish statement (par. 24): Second Committee, 9th meeting (1974), par. 8, II Off. Rec. 122. 33

India, Honduras, Bahrain; SYMONIDES, J., “Origin and Legal Essence of the Contiguous Zone”, 20 Ocean Devel.

& Int’l L., 1989, 207. 34

Second Committee, 31st

meeting (1974), par. 34-48, II Off. Rec. 234. 35

NORDQUIST, United Nations Convention on the Law of the Sea 1982. A commentary. Vol. II, Dordrecht, Martinus Nijhoff Publishers, 1993, 270.

24

The authors of the LOSC brought a new continuous zone to life. This zone is now to be seen as a

merely supplementary zone for the territorial sea36, no longer as an extension field for it. Article 33

(2) states: “The contiguous zone may not extend beyond 24 nautical miles from the baselines from

which the breadth of the territorial sea is measured”. Thus, next to the 12 Nm territorial sea, every

coastal State also has a 12 Nm contiguous zone. This zone is no longer dependant from or additional

to the chosen breadth of the territorial sea. It is now an autonomous maritime area of (no more

than) 12 Nm. After the LOSC, the CZ concept was no longer part of the high seas37. However, it had

not become an absolute isolated zone either. NORDQUIST stated that for those coastal States that

established an EEZ, “the [CZ] will be included in the waters of the [EEZ]”38. The scope of control, for

which this zone was installed at Geneva, was upheld in the new CZ-concept. Thus, now, States can

exercise those rights in a whole additional zone.

Through the LOSC, this concept has become an autonomous zone of 12 Nm, to be installed by every

State that has the possibility (provided that there is more than 48 Nm interstate waters). Although

every State has the right for a CZ, the States willing to install this zone had and have to declare the

installation of this zone39.

3. Doctrine

The question now to be dealt with is the customary character of this zone. It is shown above that the

LOSC has become at least partially recognized customary law. Concerning the CZ, there is no doubt

on this customary character. According to SYMONIDES40, this had already become customary before

the LOSC entered into force, however, with reservations for when this zone was established for other

purposes.

4. State Practice

There is now a general consensus that every State can claim a CZ up to 24 Nm from the baseline.

International State practice shows that some States had established these zones even before the

36

SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte uitgave, Mechelen, Kluwer, 2010, 108. 37

The phrase “In a zone of the High Seas” was not upheld in the LOSC. 38

NORDQUIST, United Nations Convention on the Law of the Sea 1982. A commentary. Vol. II, Dordrecht, Martinus Nijhoff Publishers, 1993, 275. 39

CARLSON, J., “Presidential Proclamation 7219: Extending the United States’ Contiguous Zone – Didn’t someone say this had something to do with pollution?”, 55 U. Miami L. Rev. 2001, 500. 40

SYMONIDES, J., “Origin and Legal Essence of the Contiguous Zone”, 20 Ocean Devel. & Int’l L. 1989, 208.

25

third United Nations Conference on the Law of the Sea had ended: Malta, India, Pakistan, Sri Lanka,

Democratic Yemen, Dominican Republic, Burma and Vietnam41.

The delimitation between adjacent and opposite States for CZ is a remarkable something. The TSC

applied the same rule for CZ as for TS in delimiting the maritime area between opposite and adjacent

States. It is up to the littoral States to achieve agreement. In case of non-agreement, the line, as

described in article 24 (3) TSC, will divide the waters between the littoral States. There is, however,

no corresponding provision in LOSC. The exact reason for that cannot be pointed out with certainty42.

SYMONIDES43 explained, in this respect, that “[t]he Chairman of Committee II failed to explain whether

a paragraph concerning delimitation was regarded as superfluous on account of articles delimitating

the exclusive economic zone or whether a conclusion was reached that the delimitation of the

contiguous zone without a simultaneous establishment of the economic zone would occur very

rarely”.

III. THE EXCLUSIVE ECONOMIC ZONE

1. Pre – Law of the Sea Convention

The creation of an EEZ was the result of coastal States’ claims, after WW II, to extend their marine

areas, for several purposes44. The first attempt to actually claim a zone similar to the concept of the

EEZ, that was considered to be part of international waters45, came from the US’ Truman

Proclamation(s)46 (It is, however, noteworthy that the Declaration that proclaimed jurisdiction over

coastal fisheries in areas of the High Seas, was never applied47). The next steps were taken by some

Latin American States that started with claiming extensive zoning48. But actually, they claimed

continental shelf areas and claimed sovereignty over the waters above it for fishing interests. These

claims were “challenged generally on the ground that they violated the freedoms of the High Seas”49.

More and more States in all of the world started to extend their sovereignty into areas (of various

breadths) of the High Seas, for fishing or other interests. The first attempt to generalize and legalize

this, and to put down some rules concerning maritime zoning, was the First United Nations Law of

41

SYMONIDES, J., “Origin and Legal Essence of the Contiguous Zone”, 20 Ocean Devel. & Int’l L. 1989, 208. 42


SYMONIDES, J., “Origin and Legal Essence of the Contiguous Zone”, 20 Ocean Devel. & Int’l L. 1989, 210-211, footnote 30. 44

Particularly resource control in ATTARD, D., The Exclusive Economic Zone in International Law, New York, Oxford University Press, 1987, 1. 45

BINGHAM, J.W., “The Continental Shelf and the Marginal Belt”, 40 AJIL 1946, 173. 46

TRUMAN, H.S., Proclamation 2667, 28 September 1945, http://www.trumanlibrary.org/proclamations/index.php?pid=252&st=&st1=. 47

ATTARD, D., The Exclusive Economic Zone in International Law, New York, Oxford University Press, 1987, 2. 48

ATTARD, D., The Exclusive Economic Zone in International Law, New York, Oxford University Press, 1987, 2-6. 49

ATTARD, D., The Exclusive Economic Zone in International Law, New York, Oxford University Press, 1987, 6.

26

the Sea Conference at Geneva 1958. However, famous for its 4 Conventions, it failed on reaching

agreement on two major issues: the territorial sea’s maximum breadth and the extent of a State’s

exclusive fishery rights50. Since UNCLOS I did not manage to codify the extensions, after Geneva new

unilateral claims51 were issued. At this stage, apart for several claims before and after Geneva, there

was still no general consensus on the use of a national fishing zone, let alone an international

approval. The ICJ recognized the use of it in the Fisheries Jurisdiction Case, deciding that although the

50 Nm were not opposable to the UK, Iceland could claim preferential rights with respect to the

fishery resources in question52. ATTARD53 deplored the Court’s failure “to take any position on

extended coastal State jurisdiction” en found that this “indecision encouraged further extensive State

claims54”. The latter was discussed upon in the Sea Bed Committee of the UNCLOS III, which came to

conclude that there was general agreement on three points concerning the newly adopted EEZ: the

concept would include the waters, sea bed and sub-soil of an area beyond the territorial Sea;

secondly, almost all the proposals held that the maximum breadth of this zone would be 200 Nm;

thirdly, the coastal States’ rights referred to the resources of the zone and not to the zone itself55.

2. The 1982 United Nations Convention on the Law of the Sea

With the adoption of the LOSC, the latter was finally internationally codified, providing a uniform rule

generating uniform applicability. Concerning the delimitation of the EEZ, the inner limit is the same

as for all of the other maritime zones: the baseline from which the breadth of the territorial sea is

measured56. On the outer limit, there was already a general consensus in the preparatory

negotiations. Therefore, it did not come as a surprise that the final text of article 57 LOSC provides an

EEZ which shall not extend beyond 200 Nm. The LOSC thus institutionalized the EEZ regime. Today,

this EEZ is “usually categorized as a sui generis zone (not be assimilated with the well-known concepts

of the territorial sea or the high seas)”57.

50

Fifty-Fourth Meeting, United Nations Conference on the Law of the Sea (A/CONF.13/39), 3 Official Records (1958), 168, par. 8. 51

Eg. 1965 Nicaragua Decree No. II expressing the claim for 200-mile national fishing zone. 52 ICJ, 25 July 1974, Fisheries Jurisdiction Case. Merits, Judgment, United Kingdom/Iceland, I.C.J. Reports 1974,

29, par. 68. 53


Even Iceland further extended its fishery jurisdiction zone. 55


Article 57 LOSC. 57

CASTANEDA, J, “Negotiations on the Exclusive Economic Zone at the Third United Nations Conference on the Law of the Sea” in MAKARCZYK, J (ed.), Essays in International Law in Honor of Judge Manfred Lachs, Dordrecht, Martinus Nijhoff Publishers, 1984, 612.

27

This newly installed zone provided coastal States an exclusive right of access to non-living resources

and a priority of access to living resources58. O’CONNELL59 stated that the attempt was to “secure for

the coastal state the resources of sea, seabed and subsoil irrespective of variations in geographic or

economic or ecological circumstances”.

3. Doctrine

The EEZ concept was only internationally codified with the LOSC. There was no mentioning the zone

in the first, nor the second Law of the Sea Conferences. Since this zone is of a more recent date than

the other zones, has this concept already turned into customary law? According to some scholars, it

does60. This thought follows from the fact that the ICJ had already recognized the EEZ concept as

customary international law in 1982 and 198461, both before the LOSC came into force. Since the

LOSC has now entered into force, “at least the basic provisions of the EEZ (…) have a fortiori entered

into customary international law”62. CARLSON admitted that there were dissident opinions, stating the

““non-traditional” rules” are “only “arguably reflective” of customary international law”63.

4. Further developments

The LOSC, thought to be the constitution of the seas, regulated the EEZ concept. Does this, however,

invoke that there is not to be touched to the principles therein set out? Does the high number of

ratifications provide a general acceptance of these provisions? Or, are there States, whether

unilateral, bilateral or multilateral, extending their sovereign rights outside the established border

line of 200 Nm? This was dealt with by FRANCKX64, in his research to find out whether there is creeping

jurisdiction in EEZ boundary. In his text, he also examined the possibility of creeping common

heritage. Some States have unilaterally altered the EEZ boundary line for purposes of sovereignty

extension, eg. the Chilean introduction of the mar presencial, which clearly had an impact on the

58

BAILEY, J.E. III, “Comment: The Exclusive Economic Zone: Its Development and Future in International and Domestic Law”, 45 La. L. Rev. 1985, 1270. 59

O’CONNELL, D.P., The International Law of the Sea. Vol I, Oxford, Clarendon Press, 1982, 552. 60

MACREA, GROLIN, BURKE, O’CONNELL in BAILEY, J.E. III, “Comment: The Exclusive Economic Zone: Its Development and Future in International and Domestic Law”, 45 La. L. Rev. 1985, 1270 and CARLSON (footnote 62). 61

These cases were the Tunisia/Lybia Continental Shelf Case (par. 100) and the Gulf of Maine Case (par. 94). 62

CARLSON, J., “Presidential Proclamation 7219: Extending the United States’ Contiguous Zone – Didn’t someone say this had something to do with pollution?”, 55 U. Miami L. Rev. 2001, 506-507. 63

For this, he refers to ATTARD, D., The Exclusive Economic Zone in International Law, New York, Oxford University Press, 1987, 306. 64

FRANCKX, E, “The 200-Mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage? Some Law of the Sea Considerations from Professor Louis Sohn’s former LL.M. Student”, 39 Geo. Wash. Int’l L. Rev. 2007, 467-498.

28

Chilean competence beyond the 200 Nm EEZ65. Argentina followed with this 200 Nm expanding

competence. Another unilateral action, and according to FRANCKX a way more important, was the

Canadian Royal Assent to the legislative enactment66. There are multilateral actions to be found as

well, one example of which is the U.N. Fish Stocks Agreement67. This agreement provided the coastal

States with extra powers68.

Although TREVES69 stated that “undeniably the limit of 200 miles set by the [1982] Convention as the

external border of State jurisdiction in the economic zone, and consequently the freedoms of the high

seas, are under attack”, FRANCKX70 is more careful in interpreting the post-LOSC developments. He

believed that “State practice suggests that in most, if not all cases, the flag of creeping jurisdiction,

and certainly that of creeping common heritage, does not fully cover the cargo”. At the time of

writing his article, it seemed to him that it was “premature to talk about a clear instance of creeping

jurisdiction”, for “Canada is the only country which so far has proved willing to start implementing its

national fishery legislation outside the 200-mile in 1995”.

IV. THE CONTINENTAL SHELF

1. The 1958 Geneva Convention on the Continental Shelf and Jurisprudence

At Geneva, there was a separate convention established for the continental shelf, the Convention on

the Continental Shelf71 (hereinafter as CSC). There were 43 signatory states out of the 79

participants. Only 22 States ratified the convention. In total there are 58 parties. This continental

shelf convention provided an exploitation-based definition of the continental shelf concept. There

was no description at all concerning the breadth of this zone, making it extremely difficult to find a

general consensus on the latter. This convention merely described this zone as ‘adjacent to the

65

CLINGAN, T., “Mar Presencial (The Presential Sea): Déjà Vu All Over Again? A Response to Francisco Orrega Vicuña”, 24 Ocean Devel. & Int’l L.J. 1993, 93. 66

FRANCKX, E, “The 200-Mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage? Some Law of the Sea Considerations from Professor Louis Sohn’s former LL.M. Student”, 39 Geo. Wash. Int’l L. Rev. 2007, 484. 67 The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the

Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (in force as from 11 December 2001), UN Doc., A/CONF.164/37,

8 September 1995. 68

ZUMWALT, A., “Straddling Stock Spawn Fish War on the High Seas”, 3. U.C. Davis J. Int’l. L & Pol. 1997, 42-43 and 54-56. 69

TREVES, T., “The Law of the Sea Convention Ten Years after Entry into Force: Positive Developments and Reasons for Concern” in CARON, D. and SCHEIBER, H., Bringing New Law to Ocean Waters in Publications on

Ocean Development, Dordrecht, Martinus Nijhoff Publishers, 2004, 352. 70

FRANCKX, E, “The 200-Mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage? Some Law of the Sea Considerations from Professor Louis Sohn’s former LL.M. Student”, 39 Geo. Wash. Int’l L. Rev. 2007, 497 and 489-490. 71

Convention on the Continental Shelf, Geneva, 29 April 1958, U.N.T.S., vol. 499, 311.

29

coast’72. This invokes that the CS was thought to be the natural prolongation of the coastal mainland.

Clearly, this constituted an extremely vague delimitation possibility of the shelf. The natural

prolongation was upheld in international jurisprudence. In the North Sea Continental Shelf Cases, the

ICJ stipulated that “each Party [is to be left as much as possible] all those parts of the continental

shelf that constitute a natural prolongation of its land territory into and under the sea”73. This was

also the case in the Anglo-French Arbitration Case, only with the addition that the natural

prolongation was to be seen from a geographic point of view rather than a geological one74.

The natural prolongation of the CS was, however, an extremely vague consideration. It did not say

anything about the outer limit to be applied in delimiting the CS zone. How far did this natural

prolongation actually go? Moreover, this consideration brought along inequities between different

States, for this natural prolongation could differ in length and depth given the respective

geographical configurations of the seabed. Thus, the natural prolongation, following the CSC, was a

vague and discriminating provision. It therefore needed to be refashioned during the negotiations of

the new Law of the Sea Conference.

2. The 1982 United Nations Convention on the Law of the Sea and State practice

This maritime zone is an interesting one, for the coastal State can exercise sovereign rights over the

continental shelf for the purpose of exploring it and exploiting its natural resources75.

With the new Law of the Sea, a new provision on the CS was adopted in its article 76. This provision

however reinstalled the natural prolongation of the CS. The CS is a zone that is the natural

prolongation of the mainland, up to the continental margin. New, however, was the following

insertion: “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”. Thus, where the natural prolongation up to the continental margin is less than 200 Nm,

the outer limit of the coastal State’s CS will be put at a 200 Nm distance from the baseline (from

which the territorial sea is measured). Nevertheless, there is not always a real continental shelf.

Where there is a geological continental shelf, the coastal State can exploit this marine area, up to the

point where the continental shelf ends (or at a distance of 200 Nm) and the Deep Seabed begins. The

72

Article 1 CSC. 73

ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of Germany/Denmark and the Netherlands, ICJ Reports 1969, 53. 74


Article 77 (1) LOSC.

30

International Law Commission (hereinafter as ILC)76 pointed out that “it would be unjust to countries

having no continental shelf, if the granting of the rights in question were made dependant on the

existence of such a shelf”. Therefore, (coastal) States not having a (geological) continental shelf have

the right to exploit the seabed to an extent of 200 Nm77.

Providing this 200 Nm zone, the LOSC clearly established the minimum outer limit of the CS to the

extent of, for all States able to claim such a portion, a 200 Nm zone. However, the natural

prolongation up to the continental margin, can extend (far) beyond this 200 Nm, making it somewhat

difficult to determine the maximum outer limit of the CS. Therefore, the LOSC, regulated the

outermost limit of the CS in article 76 (4) (a) i and ii, 76 (5) – (7), from which we can conclude that the

outer limit is never to exceed “either (…) 350 nautical miles from the baselines from which the

breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre

isobath, which is a line connecting the depth of 2,500 metres”78. The creators of these articles were

however well aware of the flexibility of this provision. If States were to determine where its

continental margin ended on a pure solely basis, there was no consistency left. Therefore, they

added that if a coastal State wishes to delineate its continental shelf beyond 200 nautical miles from

the baselines (from which the breadth of the territorial sea is measured), it has to submit relevant

data and information, on the basis of equitable geographical representation, to the Commission on

the Limits of the Continental Shelf, set up under Annex II. The Commission’s recommendations are

final and binding79.

Thus, the LOSC inserted next to the natural prolongation provision a 200 Nm limit provision. Yet, at

the beginning, the CS was still seen as the natural prolongation of the mainland. The 200 Nm limit

only came into consideration in a stepwise manner. The ICJ only recognized and used this distance

criterion for the first time in the Libya/Malta case.

Concerning the Continental Shelf delimitation between the littoral States, the parties had different

views. According to Malta, the legal title for claims is the 200 Nm distance criterion, Libya for its part,

objected that the natural prolongation was the immanence of customary international law and that

distance from the coast was not an element of continental shelf delimitation under customary

76

Preparatory work of the ILC leading to its Report to the U.N. General Assembly, 1950 I.L.C. Yearbook, Vol. II, 384. 77

Starting from the baseline (low-water mark). 78

Article 76 (5) LOSC. 79

Article 76 (8) LOSC and JARES, V., “Symposium Mounting Tension and Melting Ice: Exploring the Legal and Political Future of the Arctic. The Continental Shelf Beyond 200 Nautical Miles: The Work of the Commission on the Limits of the Continental Shelf and the Arctic”, 42 Vand. J. Transnat’l. L., 2009, 1265.

31

international law80. The Court found the concepts to be complementary instead of opposed. It

further stated: “Each coastal State is entitled to exercise sovereign rights over the continental shelf

off its coasts for the purpose of exploring it and exploiting its natural resources (Art. 77 of the

Convention) up to a distance of 200 miles from the baselines - subject of course to delimitation with

neighbouring States - whatever the geophysical or geological features of the sea-bed within the area

comprised between the Coast and the 200-mile limit”81.

3. Doctrine

The continental shelf concept has been altered from the 1958 Convention to the LOSC 1982. The

provisions that were upheld in LOSC (stemming from Geneva) can be thought to have a customary

character82, but what about the newly inserted 200 Nm limit? FINLAY argued that “[i]n its Judgment in

the Libya/Malta Continental Shelf (…), the ICJ held that as a result of the general consensus in the

Third United Nations Conference on the Law of the Sea on a 200-nautical mile exclusive economic

zone, Continental Shelf jurisdiction now extends at least to that distance as a matter of customary

international law, without regard to the geomorphology of the intervening ocean floor”83. For States

with a continental shelf extending beyond 200 Nm, MCDORMAN stated that “these substantive rights

are part of customary international law”84.

4. State practice

A lot of international disputes and cases before the ICJ and Arbitral Tribunals were issued to the

continental shelf, due to the lack of a (more than) 400 Nm zone between the littoral States. Opposite

or adjacent States need to find a solution for the division of continental shelf between them. In

article 6 CSC the principles for dividing the CS were set out. The most preferable solution was that of

a mutual agreement between the opposite or adjacent States. When there was no agreement, the

median line was to be used, unless another boundary line was justified by special circumstances.

These circumstances were exceptional configuration of the coastline, the presence of islands,… The

median line is the 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. The interstate delimitation

80

ICJ, 3 June 1985, Continental Shelf Case. Judgment, Libya/Malta, ICJ Reports 1985, 33, par. 34. 81

ICJ, 3 June 1985, Continental Shelf Case. Judgment, Libya/Malta, ICJ Reports 1985, 56, par. 77. 82

Eg. MCDORMAN, T., “The Continental Shelf Beyond 200 Nm: Law and Politics in the Arctic Ocean”, 18 J.

Transnat’l L & Pol’y 2009, 164. 83

FINLAY, L.W., “Correspondence”, 80 AJIL 1986, 601. 84

MCDORMAN, T., “The Continental Shelf Beyond 200 Nm: Law and Politics in the Arctic Ocean”, 18 J. Transnat’l

L. & Pol’y 2009, 162.

32

principles concerning the CS will not be discussed in this paragraph, they are set out in Part II, 3.1.1.:

Boundary Delimitation concerning the CS.

V. THE SINGLE DELIMITATION LINE FOR THE EEZ AND THE CS

Although two notionally distinct concepts, there is something to say about a single delimitation line

for the EEZ and CS. The relevant articles in the LOSC85 provided coastal States with a 200 Nm EEZ and

a CS, reaching up to the continental margin or up to 200 Nm. They may generate different rights

concerning the use of it. Still, in many cases, their outer limit line is the same: one of 200 Nm from

the baselines (from which the breadth of the territorial sea is measured). When the waters situated

between opposite States are not sufficient to supply them both a full 200 Nm zone, there needs to be

a(n) (equitable) delimitation line dividing the waters. This delimitation line is to be achieved in first

instance by agreement. By lack of such an agreement, it is to be resolved by a Court or Tribunal.

Since these two notionally distinct zones need to be delimited, why not delimit them by one single

line? After all, it is (mostly) the same distance to be applied.

ATTARD pointed out that most maritime boundary agreements, concluded before finalizing its opus

magnum, adopted a common seabed/superjacent waters boundary, i.e. a single delimitation line86.

Eg. the India/Sri Lanka Agreement 197687, the Colombia/Haiti Agreement 197788,… In its Separate

Opinion89 to the 1982 Continental Shelf Case between Tunisia and Libya, Judge JIMÉNEZ DE ARÉCHAGA

stated that “at least in the large majority of normal cases, the delimitation of the Exclusive Economic

Zone and that of the continental shelf would have to coincide. The reason is that both of these

delimitations are governed by the same rules, as is shown by the fact that at the Third UNCLOS the

corresponding Articles 74 and 83 are identical, and have been discussed jointly”.

The first time the ICJ actually applied the single maritime boundary delimitation line was in the Gulf

of Maine Case 1981. This case between Canada and the United States of America was a very

important one, for the Court’s task was a very innovative one. It was not just the first case in which

the ICJ was asked to actually draw the delimitation line (instead of limiting itself to declaring the

applicable principles of international law to be used for delimiting the given area), it was also the first

one in which the ICJ had to provide a single delimitation line for these two distinct zones. It should

85

Article 57 and 76 (1) LOSC. 86


Agreement on the maritime boundary between the two countries in the Gulf of Mannar and the Bay of

Bengal and related matters (with map), India/Sri Lanka, 23 March 1976, U.N.T.S., Vol. 1049, I-15804, 43-47. 88

Agreement on the delimitation of the maritime boundaries (with annexed chart), Colombia/Haiti, Port-au-

Prince, 17 February 1978, U.N.T.S., vol. 1155, I-18229, 261-263. 89

JIMÉNEZ DE ARÉCHAGA, Separate Opinion in ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 101-102, par. 56.

33

however be noted that this innovation was introduced by the disputing States90 and not by the ICJ

itself.

A new principle was set; the single delimitation line became a popular request at the ICJ. In the Case

between Denmark and Norway concerning the delimitation line between Greenland and Jan Mayen,

the Court was again called upon to draw the single delimitation line91. Nicaragua requested a single

delimitation line in the case against Honduras92 (here, the single delimitation line was also to be

applied for the territorial sea delimitation) and the case against Colombia93. In the Black Sea Case

between Ukraine and Romania, the single delimitation line was requested as well94.

IGIEHON concluded that it is “appropriate and consistent with contemporary practice to jointly

consider the delimitation of CS and EEZ”95. Of course this is appropriate and consistent with State

practice, for it is State practice that introduced this principle. SHI96 noted that the ICJ found “the

concept of a single maritime boundary does not stem from multilateral treaty law but from State

practice, and that it finds its explanation in the wish of States to establish one uninterrupted

boundary line delimiting the various – partially coincident – zones of maritime jurisdiction

appertaining to them”.

Then, the question remains on how to draw this single boundary delimitation line. CHIU97 described

two methods: “One possible solution is to absorb the regime of continental shelf within 200 miles into

the EEZ. Thus, if the distance between two States of opposite coasts is within 400 miles, then the EEZ

should be delimited regardless of the continental shelf between them”. However, “[o]n the other

hand, a State with a broad shelf vis-á-vis an opposite state is likely to oppose this view. Under such

circumstances, it is possible for that state not to declare an EEZ, but to base its claim on the doctrine

of the continental shelf. Moreover, even if a State makes a declaration on an EEZ, it can still assert its

rights on a continental shelf based on conventional and customary rules of international law”.

90

ICJ, 12 October 1984, Delimitation of the Maritime Boundary in the Gulf of Maine Area. Judgment, Canada/United States of America, ICJ Reports 1984, 252. 91

ICJ, 14 June 1993, Maritime Delimitation Case in the Area between Greenland and Jan Mayen. Judgment, Denmark/Norway, ICJ Reports 1993, 42. 92 ICJ, 8 October 2007, Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in

the Caribbean Sea. Judgment, Nicaragua/Honduras, I.C.J. Reports 2007, 666. 93 ICJ, 13 December 2007, Territorial and Maritime Dispute. Preliminary Objections. Judgment,

Nicaragua/Colombia, I.C.J. Reports 2007, p. 838. 94

ICJ, 3 February 2009, Case concerning Maritime Delimitation in the Black Sea. Judgment, Romania/Ukraine, I.C.J. Reports 2009, 66. 95

IGIEHON, M.O., “Present international law on delimitation of the continental shelf”, I.E.L.T.R. 2006, 8/9, 210. 96

SHI, J., “The Wang Tieya Lecture in Public International Law: Maritime Delimitation in the Jurisprudence of the International Court of Justice”, 9 Ch. J. Int’l L. 2010, 281, par. 40, referring to Qatar/Bahrain Case (93, par. 173). 97 CHIU, H., “Some Problems Concerning the Application of the Delimitation of Maritime Boundary Provisions of

the 1982 United Nations Convention on the Law of the Sea”, 4 Chinese (Taiwan) Y.B. Int’l.L.& Aff. 1984, 77.

34

We conclude, in which we share the same vision as IGIEHON, that one of the merits of this evolution is

to have (preliminary?) ended the debate on how the CS is to be looked upon. By utilizing a single

delimitation line for EEZ and CS, the demarcation falls back to a 200 Nm zone (or another distance,

subject to the interstate delimitation). By virtue of that, the CS will rather be a question of distance

from the baseline than regarded as the natural prolongation of the land. Obviously, this conclusion

only stands when EEZ delimitation absorbs the CS delimitation. When one of the States has a big CS

and is reluctant to do so, then the parties will have to agree on how this single boundary line is to be

drawn.

35

CONCLUSION

There are some general conclusions to be drawn from the latter. The Geneva Conventions 1958,

which were the first attempts to codify an international consensus on the oceans and seas, were not

unsuccessful, but neither did they bring along certainty. It was compiled of rather vague provisions,

not in the least on the issue of their breadth. These conventions did not foresee a breadth in

determining the several marine zones (except for a possible CZ, not exceeding a joint TS and CZ limit

of 12 Nm). The EEZ was even not installed in the Geneva Conventions. With the LOSC, state practice

was inserted in the new provisions, rendering it a consensual character. It inserted a breadth of 12

Nm for the TS and for the –now autonomous- CZ. The Convention added a 200 Nm distance criterion

next to the natural prolongation in the continental shelf concept. State practice was inserted as well

with the creation of an EEZ to a distance of 200 Nm. All of these breadths are to be measured from

the baseline from which the breadth of the TS is measured. Thus, it was one of the merits of the

LOSC to bring along consensus and certainty on several aspects, under which the respective

breadths.

Although one cannot postpone with certainty that the LOSC has totally become part of customary

international law, there is however general consensus that the provisions concerning the four marine

zones have entered into customary law.

The delimitation principles are generally the same for the distinct zones. Nevertheless, the LOSC has

no provision to the latter in case of CZ.

However regarded as customary rules, State practice shows the willingness of States to push the

outermost limits of the zones bordering the international areas (EEZ and CS) further and further

seawards. States are continuously trying to extend their jurisdiction outside the 200 Nm zone. For

purposes of mainly environmental and biodiversity protection, they are trying to obtain rights over

waters outside the genuine EEZ. States are also trying to extend their CS beyond 200 Nm, this is

however a conventional possibility following the natural prolongation.

A final conclusion to be drawn, and probably the most interesting, is the emerging practice of using a

single maritime boundary delimitation line for the EEZ and the CS. This practice has not been

foreseen in any convention and was created by States. Nevertheless, the ICJ has confirmed the use of

it and has consequently even used it in almost all of her following cases. Legal scholars have

subscribed to this practice and have outlined the benefits of it. We can conclude that this practice

has become a general rule for delimitation issues over both EEZ and CS. There is however no

consensus yet on how this single boundary line is to be drawn.

36

THE MARINE DELIMITATION.

THE EFFECT OF ISLANDS AND LOW-TIDE ELEVATIONS ON THE MARINE DELIMITATION.

37

INTRODUCTION

After providing a general introduction in part I, part II will now deal with the main purpose of this

outset: the effect of islands and low-tide elevations for the marine delimitation. In order to help the

reader to fully understand the following outset, it is indispensable to provide him first with the

elementary definitions of the insular features at stake. Serving completeness, the island concept with

be linked with the one of rocks and the part on low-tide elevations will be completed with some

remarks on reefs. Hence, a good understanding requires the possibility to clearly distinguish the

various marine features. With these skills in the back of the head, the reader will be guided through

the different effects island and low-tide elevations might generate in marine delimitation. A first

important step is to examine whether these features are entitled to marine zones of their own.

Therefore, a step-wise categorization of the four marine areas will deal with islands and low-tide

elevations separately. Once the respective claims of entitlement are clarified, the outset will then

fully focus on their effects on maritime delimitation. The outset will provide this assessment in a

shoreward to seaward order. Starting from the shoreward side of the baseline, the reader will be

provided with the effects these insular features might generate in the closing lines of bays. For

separating the internal waters and the territorial sea area through the baseline, it is important to give

due notice to the effect of islands and low-tide elevations for the drawing of straight baselines. For it

is not possible for every state to claim all of the marine areas, the effect of the features emerge in

interstate boundary delimitation. Since a clear view on the delimitation principles is necessary, the

reader will first be introduced to the equidistance-equitable delimitation evolution. Where an island

impedes the interstate delimitation, there are some effects possible for this feature. The outset will

therefore examine the respective effect – full effect, no effect, partial effect, enclave solution - by

providing examples of State practice. On the one hand, some examples of bilateral or multilateral

Agreements will be mentioned. On the other hand, it will thoroughly discuss all the relevant cases

before the International Court of Justice, the Permanent Court of Arbitration and some other Arbitral

Awards (chosen on their merits). The reader will be provided with a concise overview of the decision

and a commentary thereof. Although low-tide elevations do not generally walk the same line as

islands, for reasons of clarity, they will be dealt with in a similar manner. In this respect, their

possible impacts will be compared to those of islands.

38

I. DEFINITIONS

1. Islands

“An island is a naturally formed area of land, surrounded by water, which is above water at high tide”98. Before examining the effect islands can generate in maritime boundary delimitation, it is of the

utmost importance to determine what actually constitutes an island. The difficulty in determining

what constitutes an island is to be found in the different treatment of certain rocks. Since the general

islands-definition can be applicable on rocks as well and since there is no definition of a rock, it is

very difficult to determine whether an insular feature is to be seen as a rock or as an island.

Paragraph 3 of article 121 LOSC even impedes this distinction to be made, since certain rocks are not

entitled to all maritime zones. It is therefore logic that most States will argue that their insular

features are islands, so that they can claim –without any trouble- all maritime zones for them. Being

qualified as a rock leaves substantial difficulties, for the State must then go on proving that its rock

does not fall under article 121 (3).Thus, the main focus is not to determine whether the feature is a

rock or an island. It does not matter because they are both entitled to the same maritime zones and

they both fall under the definition provided above. The real interest of States is to clarify that their

insular features –although looked upon as a rock- are not an article 121 (3) rock. The next paragraphs

will therefore first give scholar grounds for the interpretation made above and then focus on when a

rock is to be considered a 121 (3) rock.

Article 121 (1) LOSC provides a clear definition of an island, allowing to determine which features are

entitled to all of the marine zones. In its article 121 (3) it stated that “rocks which cannot sustain

human habitation or economic life of their own shall have no exclusive zone or continental shelf”.

Following this insertion, rocks are, according to CHARNEY99, islands as well. Unfortunately, there is no

definition of rocks itself100. Yet, because islands are entitled to all maritime zones, article 121 (3) was

inserted to ensure that insignificant features or (also described as) rocks and uninhabitable islets,

would not generate broad zones of national jurisdiction in the middle of the ocean101. But, what are

98

Article 10 TSC and article 121(1) LOSC. 99 CHARNEY, J.I., “Rocks that cannot sustain human habitation”, 93 AJIL 1999, 864. 100

Not in de LOSC, not in the travaux préparatoires. 101

BROWN, E.D., The International Law of the Sea. Volume 1 Introductory Manuel, Dartmouth, Aldershot, 1994, 148; DUBNER, B.H., “The Spratly “Rocks” Dispute – A “Rockapelago” defies norms of International Law”, 9 Temp.

Int’l & Comp. L.J. 1995, 300; DIAZ, L., DUBNER, B.H. and PARENT, J., “When is a “rock” an “island”? – Another unilateral declaration defies “norms” of International Law”, 15 Mich. St. J. Int’l L. 2007, 531; CHARNEY, J.I., “Rocks that cannot sustain human habitation”, 93 AJIL 1999, 866.

39

those insignificant features? In order to determine so, two aspects will be reviewed: the size-aspect

and the human habitation or economic life-aspect.

Concerning size, there have been attempts to categorize the various types of insular features. The

International Hydrographic Bureau described islets (the smallest features) as 1 to 10 square

kilometers102. Since DUBNER103 believed that a rock is even smaller, a rock has to be less than 1 sq. km

(= 0.3906 sq. mile)104. DIAZ, DUBNER and PARENT105

stated that their size could even be narrowed to less

than 0.001 square mile. This size would obviously render any rock incapable of sustaining human

habitation or economic life. It is, however, difficult to categorize this, due to various geographical

differences. Size will thus not contribute in defining rocks’ claims on maritime zones.

The other aspect –‘human habitation’ or106 ‘economic life’- is not unequivocal. What constitutes

these criteria is open for discussion. Yet, it is important to determine whether these conditions are

fulfilled. Article 121 (3) rocks are, according to WEI SU107, “a special kind of island, satisfying article

121 (1) but bearing some special attributes”. These special kinds of islands were described, by

CARLETON and SCOFIELD as a “disadvantaged sub-category of island whose zone-generating capacity,

and thus value to a potential claimant is significantly reduced”108. There is argumentation that human

habitation invokes tillable and cultivable soil and sufficient potable water and that economic life is

not limited to traditional agrarian activities109. WEI SU added “enough space for accommodating a

community”. BROWN questioned whether the rock must be able “to produce the minimum necessities

102

DIAZ, DUBNER and PARENT refer to the IHB in “When is a “rock” an “island”? – Another unilateral declaration defies “norms” of International Law”, 15 Mich. St. J. Int’l L. 2007, 534. 103

DUBNER, B.H., “The Spratly “Rocks” Dispute – A “Rockapelago” defies norms of International Law”, 9 Temp.

Int’l & Comp. L.J. 1995, 304. 104

DIAZ, L., DUBNER, B.H. and PARENT, J., “When is a “rock” an “island”? – Another unilateral declaration defies “norms” of International Law”, 15 Mich. St. J. Int’l L. 2007, 535. 105

DIAZ, L., DUBNER, B.H. and PARENT, J., “When is a “rock” an “island”? – Another unilateral declaration defies “norms” of International Law”, 15 Mich. St. J. Int’l L. 2007, 535. 106

One of the two must be fulfilled to fail the definition of article 121 (3) LOSC. There have been discussions on whether it should be ‘or’ or ‘and’, see CHARNEY, J.I., “Rocks that cannot sustain human habitation”, 93 AJIL 1999, footnote 26 at 868. The LOSC ended the discussion by clearly stating human habitation or economic life. 107

WEI SU, S., “The Tiaoyu Islands and Their Possible Effect on the Maritime Boundary Delimitation between China and Japan”, 3 Ch. J. Int’l. L. 2004, 392. 108

CARLETON, C. and SCOFIELD, C., “Developments in the Technical Determination of Maritime Space: Delimitation, Dispute Resolution, Geographical Information System and the Role of the Technical Expert”, 3 Maritime Briefing 2002, No. 4, 35-36. 109

If a rock contains valuable gases or resources in its soil, which would make it economically profitable to exploit them, yet there is no agrarian activity possible so that it cannot be a surviving unit on its own for human habitation, it can still have an economic life of its own, because the profits generated from the exploitation can render it an economical surviving status, CHARNEY, J.I., “Rocks that cannot sustain human habitation”, 93 AJIL

1999, 870. I believe that resources such as fisheries and seabed hydrocarbons in the adjacent territorial sea could be included in the calculation if the rock is, or has the resources necessary for use as, an economically viable base for operations, CHARNEY, footnote 38 at 734.

40

of life independent of outside supplies before it can be regarded as habitable?”110. CHARNEY provided

us with a sort of definition: “rocks should have enough current economic value so that, without

outside assistance, they can be economically viable--even to import food and supplies if necessary for

human survival”111. Following the previous outset, rocks –that cannot sustain human habitation but

that can generate an economic life- can have an effect on maritime boundaries. According to BROWN,

however, “‘capable of use’ should mean capable, without artificial addition, of being used throughout

all seasons for some definite commercial or defense purpose, and that ‘capable of habitation’ should

mean capable, without artificial addition, of permanent human habitation”112. Due notice should be

given to the fact that it is the “capability, rather than the actual inhabitation or economic life, [that] is

the test”113. Probably, already half a forest was slaughtered to provide the paper on this debate.

Although the discussion is not complete in this brief concept interpretation, and the debate is far

from complete in doctrine and State practice, CLAGGETT made one thing clear: “It would be an obvious

abuse of the [LOS] Convention for a State to attempt to upgrade the status of an article 121 (3) ‘rock’

by artificially introducing a population, supplied from outside, for the sole purpose of enhancing the

State’s argument that the rock was entitled to command broad areas of maritime space”114. This was

already set forward by ATTARD as well; “no State may artificially create the necessary conditions. Nor

may States artificially extend the rocks for the purposes of delimitation”115.

Article 121 does not forbid their entitlement to a territorial sea or continuous zone. Rocks, “as [well

as] islands are entitled to those zones”116. CHARNEY117 believed that “[i]f the lesser features of low-tide

elevations may be used for these purposes, certainly islands that are Article 121, paragraph 3 rocks

may be so used”.

Clearly, a non article 121 (3) – rock is entitled to all maritime zones, of course when above water at

high tide118. However, geological situations can alter over the years, making previous non article 121

110

BROWN, E.D., The International Law of the Sea. Volume 1 Introductory Manuel., Dartmouth, Aldershot, 1994, 150. 111

CHARNEY, J.I., “Central East Asian Maritime Boundaries and the Law of the Sea”, 89 AJIL 1995, 733-734. 112

BROWN, E.D., The International Law of the Sea. Volume 1 Introductory Manuel, Dartmouth, Aldershot, 1994, 151; DIAZ, L., DUBNER, B.H. and PARENT, J., “When is a “rock” an “island”? – Another unilateral declaration defies “norms” of International Law”, 15 Mich. St. J. Int’l L. 2007, 536. 113

WEI SU, S., “The Tiaoyu Islands and Their Possible Effect on the Maritime Boundary Delimitation between China and Japan”, 3 Ch. J. Int’l L. 2004, 399. 114

CLAGGETT, B.M., “Competing Claims of Vietnam and China in the Vanguard Bank and Blue Dragon Areas of the South China Sea: Part I”, 13 Oil & Gas L. & Tax’n Rev. 1995, 386. 115


CHARNEY, J.I., “Central East Asian Maritime Boundaries and the Law of the Sea”, 89 AJIL, 1995, 734. 117


Following the definition of article 121 (1) LOSC.

41

(3) rocks suddenly falling under the definition and vice versa. The basic requirements for speaking of

a ‘rock’, the human habitation or economic life must be evaluated at the moment of the claim (for

delimitation purposes).

As stated above, the difficulties are not lying within a rocks’ capacity to generate maritime areas, the

trouble is to determine whether they are internationally considered as an island/rock or an article

121 (3) rock, for States will look upon them, as benefits them the most. Eg. the Okinotori Rocks.

Although quite clear that these features cannot sustain neither habitation, nor economic life –due in

essence to their size119- Japan treats them as islands, beneficiary to 200 Nm EEZ. By virtue of that

treatment Japan would be allocated with an additional 160.000 sq. miles of ocean. Therefore, Japan

has undertaken lots of efforts to provide them with the status of islands (122 Japanese citizens have

registered Okinotori as their place of origin and it has “protected” the “islands” from typhoons and

erosion with an 83-foot-thick concrete layer)120. Nevertheless, this situation is a clear example of

what is in non-conformity with international law as was set out by CLAGGETT and ATTARD. Thus,

international law does not support the Japanese EEZ claim for Okinotori. Moreover, by artificially

creating the necessary conditions it is more likely to be seen as the creation of an artificial island. In

that case, the Okinotori will certainly not have an EEZ (not even influence the EEZ) as postponed in

article 60 (8) of the LOSC.

Apart from the entitlement claim, a rock –in general- can also be used as a base point for the drawing

of straight baselines. Thus, obviously, they have an effect on the maritime zones’ limits, including

those of the EEZ and CS. This could however be inconsistent with the prohibition on their use to

generate an EEZ or CS, but their impact is limited – “straight baselines may not be drawn to distant

features because they must not depart to any appreciable extent from the general direction of the

coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to

be subject to the régime of internal waters”121.

2. Low-tide elevations

“A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide”122.

119

The biggest one of them is not bigger than an average bedroom, ONISHI, N., “Japan and China Dispute a Pacific Islet”, N.Y. Times, 10 July 2005, 4. 120

DIAZ, L., DUBNER, B.H. and PARENT, J., “When is a “rock” an “island”? – Another unilateral declaration defies “norms” of International Law”, 15 Mich. St. J. Int’l L. 2007, 523-524. 121


Article 11 (1) TSC and article 13 (1) LOSC.

42

In defining what constitutes a low-tide elevation, we will first compare it with an island. Since the

both are separately dealt with in Conventions, scholar discussions,… it is rather clear that a low-tide

elevation is not an island. This vision was set out by the ILC123 in its discussion text and commentary

with respect to islands:

“ 2. An island is understood to be any area of land surrounded by water which, except in abnormal

circumstances, is permanently above high-water mark.

> this already implicitly excludes low-tide elevation124

Consequently, the following are not considered islands and have no territorial sea:

(i) Elevations which are above water at low tide only.

> low-tide elevations are not the same as islands, which is now also explicitly stated

Even if an installation is built on such an elevation and is itself permanently above water – a

lighthouse, for example – the elevation is not an “island” as understood in this article.”

As was pointed out above, States may have undertaken efforts to upgrade a 121 (3) rock to that of an

island or a not 121 (3) rock, for delimitation purposes. It may, however, not be allowed or recognized

by international law, still it has given rise to difficulties. Although island and low-tide elevations are

two completely different features, the ILC has, nevertheless, explicitly stated that low-tide elevations

can never obtain the island-status, not even by artificial measures to upgrade them. By stating this,

the rock dispute cannot be transferred to the low-tide elevations. There is no need for stating that

artificial measures to upgrade this feature are not valid, because they stay LTE and can never obtain

the island-status. Thus, there is a widespread acceptance that a low-tide elevation is not an island, let

alone that it can become one. There are, however, according to LAVALLE, similarities between low-tide

elevations and rocks as well125. Yet, they are not treated equally. Whereas rocks can have the same

effect as islands, low-tide elevations cannot. This is rather logical if we follow the considerations

made by BROWN126

THAT a feature should be able to be used throughout all seasons. Obviously, low-

tide elevations do not fit that definition. Since it is submerged at high tide, how could it then be

thought to sustain permanent habitation? CHARNEY127 even stated that a low-tide elevation is a lesser

feature than an article 121 (3) rock.

123

Report of the International Law Commission Concerning the Work of its Eight Session, U.N. GAOR 11th

Sess., Supp. No. 9, 16-17, U.N. Doc., A/3159 (1956). 124

Inserted conclusion to the latter. 125

LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention”, 19 IJMCL 2004, 45. 126

See: definition of islands. 127

See: definition of islands.

43

Determining what constitutes a low-tide elevation cannot be considered very difficult. It is an island-

like feature, which happens to be submerged at high tide. Since it is only above water at low tide, it

has a total different effect on baseline drawing and interstate maritime delimitation than islands.

Special reference can be made to a reef. WALKER and NOYES128 based themselves on the International

Hydrographic Organization’s consolidated Glossary129 to provide the following definitions on a reef.

Generally, a reef can be described as follows: “a mass of rock or coral which either reaches close to

the sea surface or is exposed at low-tide”. This means that there are 2 types of reefs. One type is the

“drying reef”. Such a reef is described as “that part of a reef which is above water at low tide but

submerged at high tide”. The other one is the “fringing reef”: “a reef attached directly to the shore or

continental land mass, or located in their immediate vicinity”. Concerning these features, LOSC has

been innovative, for article 6 provides something that was not yet foreseen in the previous

conventions. Article 6 reads as follows: “In the case of islands situated on atolls or of islands having

fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water

line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal

State”. Drying reefs can be used as base points in Archipelagic straight baselines130. This clearly

invokes that a reef can also have an effect on maritime boundary delimitation. Their low-water line

can be used as the mainland’s low-water line, pushing the outer sea limits of the core

mainland/island further seawards. Assessing a reef’s impact on delimitation law is dual. A reef that is

not submerged at low tide will be treated equal to a low-tide elevation. When a reef is submerged at

any state of the tide, this reef will not provide this impact. This can be found in article 6 LOSC itself:

“the seaward low-water line of the reef”. A reef that is submerged at any state of the tide cannot

have a low-water line for baseline purposes.

3. Current developments

Due to climate change and other environmental disturbances (eg. loss of biodiversity), the sea level is

rising131. Clearly, sea level rise could give rise to lots of problems concerning boundary

128

WALKER, G.K. and NOYES, J.E., “Definitions for the 1982 Law of the Sea Convention – Part II”, 33 Cal. W. Int’l

L.J. 2003, 251, 257 and 284. 129

INTERNATIONAL HYDROGRAPHIC ORGANIZATION TECHNICAL ASPECTS ON THE LAW OF THE SEA WORKING GROUP, “Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea”, 51 International Hydrographic Bureau Special Publication 1989. 130


WARRICK, R.A. and OERLEMANS, J “Sea level rise” in HOUGHTON, J.T., JENKINS, G.J. and EPHRAUMS, J.J. (eds.), Climate Change – The IPCC scientific Assessment, Cambridge, Cambridge University Press, 1990, 257-281.

44

delimitation132, for the difference between islands/rocks, article 121 (3) rocks, low-tide elevations,

reefs are all dependant on the state of the tide and the sea level. It is quite obvious that through this

development a shift in insular feature status can impose itself. A low-tide elevation could, due to the

sea level rise, become submerged at any state of the tide. Islands that narrowly fit the definition -

because they are just above sea level at high tide- and rocks that narrowly fulfill the human

habitation or economic life condition can easily become low-tide elevations. Due to this sea level

rise, islands and low-tide elevation could disappear under water, rendering some archipelagic States

or Island States (mainly in the Pacific Ocean) without territory. Of course, this would only be the case

in Archipelagic States which are just above the sea level. Yet, since all of these features have different

outcomes for the drawing of interstate boundary delimitation lines, these current developments will

also affect maritime boundary delimitation in the rest of the world; delimitation yet to be negotiated

or decided upon as well as already established boundary lines. Let us take the example of St. Pierre

et Miquelon. If sea level rise would render these features to the status of low-tide elevations, it is

rather obvious that Canada would no longer agree with the maritime boundary entitlement

generated by the ICJ. Would the Court’s judgment then be upheld for it is decided by the ICJ itself, or

would this changed circumstance require the Court to re-examine its judgment? Would every

bilateral or multilateral boundary agreement made in the past (creating eg. important fisheries

boundaries) based upon insular features be renegotiated to give due effect to these developments or

would they be upheld since they were lawfully negotiated and enforced? These developments will

not be dealt with in this outset on maritime delimitation law, but it clearly shows that there is still

some scholar work to be done in delimitation law.

II. ENTITLEMENT OF ISLANDS AND LOW-TIDE ELEVATIONS FOR MARITIME AREAS

1. Territorial Sea

1.1. ISLANDS

Ever since the early nineteenth century, steps were set for the recognition of islands’ territorial

sea133. By the time the Sub-Committee of Experts of the Hague Preparatory Committee published its

132

For an extensive review, see: BIRD, E. and PRESCOTT, V., “Rising Global Sea Levels and National Maritime Claims”, 1 Mar. Pol’y. Rep. 1989, 177-196; MENEFEE, S.P., ““Half Seas Over”: The Impact of Sea Level Rise on International Law and Policy”, 9 UCLA J. Envt’l. L. & Pol'y. 1991, 175-218. 133

The case of the Anna, 1805; dispute between England and Spain, 1852; the Law Officers of Great Britain, 1875; United States Secretary Bayard, 1886, the United States v. Middleton case, 1929 in JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 9-11.

45

report, it was generally accepted that “each island has its own territorial waters”134. This report was

adopted by the ILC, while preparing the First Law of the Sea Conference 1958. In the established

convention (TSC), article 10 was dedicated to islands. Article 10 (2) states, “the territorial sea of an

island is measured in accordance with the provisions of these articles”. By saying so, islands are

completely equal to greater land mass. Not only do they generate territorial sea of their own, the

principles for measuring their zones are also equal. The LOSC restated this principle in its article 121

(2).

It should be noted that, during the higher mentioned evolution, islands were to be (partly) above

water at all times. The general acceptance did not include low-tide elevations. For the latter, a

different approach was used (see further, 1.2 Low-tide elevations). Requirements to restrict the

effect of islands’ territorial sea, such as habitation and ‘capable of effective use and control’, were

not accepted135 at the Hague Conference and in the ILC.

However, the principle is not upheld when facing delimitation problems between an island on the

one hand and its mainland on the other hand136. The solution to the latter is a distinction, based on

its distance from the mainland. When the island is situated further than 24 Nm, the island has its

own territorial sea. Situated within 12 Nm, it merely extends the mainland’s baseline to the island’s

low-water line. When the island is located within 24 Nm, but exceeding 12 Nm, the island can be

used for the drawing of straight baselines137.

1.2. LOW-TIDE ELEVATIONS

In order to generate a territorial sea, a low-tide elevation must live up to the conditions set out in

article 13 LOSC. The article created two conditions, taking into account, the distance of the low-tide

elevation from the dominant mainland or island.

The low-tide elevation can be situated –wholly or partly- within the breadth of the territorial sea

from the mainland or an island. In that case, the low-water line of the low-tide elevation can be used

as the baseline for measuring the breadth of the territorial sea138. However, technically speaking, in

this case a low-tide elevation does not generate a territorial sea of its own, but merely extends the

territorial sea of the dominant mainland or island located within a distance not exceeding 12 Nm.

134

L.N. Doc. C. 74 M 39, 1929 V. 2, 48 in JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 22, footnote 60. 135

Proposal of Great Britain in respect of Basis of Discussion No. 14, L.N. Doc C.74, M. 39, 1929, V.2, 48 and suggestion of LAUTERPACHT, 1954 I.L.C. Yearbook, Vol. I, 92 in JAYEWARDENE, H.W., The Regime of Islands in

International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 12. 136

For the delimitation problems between islands and other (mainland) countries, see further. 137

Article 7(1) LOSC. 138

Article 13(1) LOSC.

46

The ICJ has even “authorized the use of the low-water line of a low-tide elevation as the [normal]139

baseline for measuring the breadth of the [TS], [CS] and [EEZ], a right that normally corresponds to

islands”. But, the ICJ tempered the importance: “[n]otwithstanding, this had no practical effect

because the ICJ finally decided not to give effect to [it]”140.

When exceeding the breadth of the territorial sea, the low-tide elevation does not generate a

territorial sea of its own141, nor does it extend the territorial sea of the mainland or the island.

This leads to the conclusion that a low-tide elevation is not capable of generating a territorial sea for

its own purposes. This vision was clearly expressed by the ILC’s discussion regarding islands:

“Consequently, the following are not considered islands and have no territorial sea: (i) Elevations

which are above water at low tide only. Even if an installation is built on such an elevation and is itself

permanently above water, a lighthouse for example, the elevation is not an island”142. However, by

fulfilling the distance requirement, its low-water line can be used as baseline143. Like BOWETT

suggested: “rocks, reefs and low-tide elevations represent the landmass [for drawing the baseline]144

and have no autonomous title to maritime areas”145.

According to article 13 of the LOSC, a low-tide elevation should be located wholly or partly at a

distance not exceeding the breadth of the territorial sea from the mainland or an island. The insertion

of ‘from the mainland or an island’ has an important meaning; this clearly precludes the use of the

leapfrogging method. When an elevation is located within the vicinity of the mainland or an island (or

even a rock when there is no nearer island and the mainland is at greater distance from the elevation

than the rock146), it creates a bulge in the territorial sea. If it is a low-tide elevation generating the

139

Emphasis added. 140

Concerning Fasht al Jarim, a Bahraini low-tide elevation, partially within Bahrain’s territorial sea, though relatively far from the coast was denied effect by the ICJ because taking it into account would have produced a distortion, leading to an inequity in LLANOS, H.I., “Low-Tide Elevations: Reassessing their impact on Maritime Delimitation”, 14 Pace Int’l L. Rev. 2002, 269. The use of it for the baseline and the not granting it any effect can be found in ICJ, 16 March 2001, Case concerning Maritime Delimitation and Territorial Questions between

Qatar and Bahrain, Merits, Judgment, Qatar/Bahrain, ICJ Reports 2001, 114-115, par. 245 and 248. 141


Report of the International Law Commission Concerning the Work of its Eight Session, U.N. GAOR 11th

Sess., Supp. No. 9, 16-17, U.N. Doc., A/3159 (1956). 143

LLANOS, H.I., “Low-tide elevations: reassessing their impact on marine delimitation”, 14 Pace Int'l L. Rev. 2002, 255. 144

Emphasis added. 145

LLANOS refers to BOWETT, D, “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitation” in CHARNEY, J.I. and ALEXANDER, L.M., International Maritime Boundaries vol. 1, Dordrecht, Nijhoff Publishers, 1993, 147-148. 146

LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention”, 19 IJMCL 2004, 57.

47

bulge and another low-tide elevation is situated within that bulge, but exceeding the distance

requirement towards the mainland or island, this second low-tide elevation cannot be used for

extending the territorial sea a second time147. Thus, the wording of article 13 precludes the use of the

leapfrogging method.

Clearly, this does not preclude the use of several low-tide elevations when all fulfilling the distance

requirement. In case there is more than one LTE, located within the territorial sea of the mainland or

island, the low-water line of the most seawards low-tide elevations can be used for extending the

mainland’s low-water line.

Since a non-proximate elevation does not influence the baseline, it has no effect whatsoever on the

measuring of the marine areas. Some elevations are built upon, so as to be above sea level at high

tide. By placing all kinds of installations (mostly lighthouses or similar installations) on the elevation,

it is permanently above water. Will this non-proximate elevation, which is now permanently above

sea level, generate maritime areas? According to LAVALLE148, this would prima facie fit the island

definition, capped in article 121 (1) LOSC. But, he equally objected to that reasoning by stating that

“it is reasonable to consider that Article 121 (1), by requiring that a part of an island be permanently

above water, refers to something that can, at least to some extent, be deemed to be a constituent

part of the “naturally formed” island”. For LTE, the ILC has made clear that they can never obtain the

147



Figure 1: A LTE pushes

the outer TS limit further

seawards (left) and the

use of the leapfrogging

method that pushes it in

a disproportionate

manner.

[drawing made by the

author]

48

island-status, not even when built upon149. Unlike a non-proximate elevation, a proximate one, which

is built upon, would fall under article 13 of the LOSC.

2. Contiguous Zone

2.1. ISLANDS

The 1958 TSC installed a new marine area, called the contiguous zone. Since this was a new concept,

there was no prior general acceptance on whether an island can generate a contiguous zone of its

own. The relevant article150 gave no clear indication for the use of CZ by islands. According to

JAYEWARDENE, the solution needs to be found in an a fortiori reasoning. In article 1 of the convention,

islands are not expressly entitled to a territorial sea, nonetheless, it is generally accepted that they

do. This reasoning can also be used for the contiguous zone151. The LOSC152 provides a legal ground

for islands to generate contiguous zone: “the territorial sea, the contiguous zone, the exclusive

economic zone and the continental shelf of an island are determined in accordance with the

provisions of this Convention applicable to other land territory”.

When an island is located within the mainland’s CZ, it will probably not be entitled to a CZ of its own.

In this case, it can be used as a base point for the drawing of a straight baseline153. It will then extend

the baselines from the mainland instead of generating maritime zones of its own.

It should be noted that, for generating contiguous zone, as well as for generating territorial sea, there

is no habitation or effective use requirement.


Since a low-tide elevations does not generate a territorial sea of its own (nor in isolated

circumstances, neither in the vicinity of the mainland), we believe that it, certainly, cannot generate

a contiguous zone of its own. As elaborated above (1.2.), a low-tide elevation can merely influence

the outcome of the delimitation line trough creating a bulge in the baseline, because this low-tide

elevation will be used as the low water line for the mainland or island. This leads us to the question:

can a low-tide elevation then influence the outcome of the contiguous zones’ outer limit? We will

evaluate this from two different angels. From the first point of view, we believe that this is rather

149

See higher, definition of LTE. 150

Article 24 TSC and article 121(1) LOSC. 151

JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 13. 152

Article 121 LOSC, unchanged version of the Informal Single Negotiating Text. 153

Article 4 TSC and article 7 (1) LOSC.

49

evident. When a low-tide elevation pushes the outer limit of the territorial sea seawards in relation

with the outcome for when there would have been no low-tide elevation, this implies that the outer

limit of the contiguous zone is also pushed seawards in relation with its outer limit when there were

no low-tide elevation(s). Thus, from this angel, low-tide elevations do influence the contiguous zone

(as well as EEZ and CS). This implies of course that the low-tide elevation is situated within 12 Nm

from the mainland or island as prescribed in article 13 LOSC.

The other angle we will examine is purely a theoretical one; what’s the effect of a low-tide elevation

when situated within a mainland or island’s contiguous zone? We find a strict interpretation of article

13 LOSC to render this question completely irrelevant, for article 13 excludes effect for low-tide

elevations exceeding the breadth of the territorial sea. Thus, a sole LTE, located within the

mainland’s CZ, will not generate an effect on the boundary delimitation lines of the mainland. Taken

from a broader point of view, this would bring us back to what is all ready set out above (1.2.). This

broad view could introduce a leapfrogging method, according to which a low-tide elevation in the

vicinity of another low-tide elevation, but located in the contiguous zone of the mainland or island,

would create an even greater bulge in the low water line and bring a disproportionate amount of

water under the mainland’s jurisdiction. Therefore the ICJ154 has expressly rejected this method:

“Whereas a low-tide elevation which is situated within the limits of the territorial sea may be used for

the determination of its breadth, this does not hold for a low-tide elevation which is situated less than

12 nautical miles from that low-tide elevation but is beyond the limits of the territorial sea. (…) The

law of the sea does not in these circumstances allow application of the so-called "leapfrogging"

method”.

3. Exclusive Economic Zone

154 ICJ, 16 March 2001, Case concerning Maritime Delimitation and Territorial Questions between Qatar and

Bahrain, Merits, Judgment, Qatar/Bahrain, ICJ Reports 2001, 102, par. 207.

Figure 2: A LTE pushes the outer TS

and CZ limit further seawards (B) in

relation to the delimitation where

there is no LTE (A).

[drawing made by the author]

50

3.1. ISLANDS

For the continental shelf and the exclusive economic zone, there were some objections to granting

this zones to (all) islands. The objections were primarily faced against the fact that also the very small

islands would generate a vast area of marine jurisdiction (200 Nm EEZ and CS). For the LOSC, a

compromise was to be sought between several opinions. Some intended to make a distinction

between islands on the basis of size, eg., the African draft made a distinction between ‘Island States’

and ‘islands and islets’, granting CS and EEZ only to the first. Others, States with lots of insular

features, were against restricting the entitlement, eg. New Zealand proposed to grant them to all

islands155. Micronesia (an Archipelagic State) objected to the exclusion for small islands, by reversing

the whole idea. Instead of subjecting it to big islands only, it should essentially and primarily be

subjected to the smallest ones. The Micronesian spokesman at the Second session156 for the UNCLOS

III stated that: “Small islands which have no land resources to speak of need the benefits of an

economic zone and the sea’s resources within it more desperately than other territories. It would not

be equity to deny the sea’s resources to those who need them most”157. In the same text, he also

objected to the inhabitance-rule, for most of the Micronesian islands are uninhabited. All of these

different opinions impeded the negotiations. During the third Conference negotiations, there also

were attempts by delegates of certain nations to reduce, circumscribe or even eliminate the

entitlements of islands to maritime areas158. One effort, made by nine States159, was the following:

Islands which are situated on the continental shelf of another State, or which on the basis of

their geographical location affect the normal continental shelf or EEZ of another State shall have no

economic zone or continental shelf of their own.160

Another preposition was made by Turkey:

[islands] situated in the economic zone or the continental shelf of other States shall have no

economic zone or continental shelf of its own if it does not contain at the least one tenth of the land

area and population of the State to which it belongs.161

155

Out of (4) The Exclusive Economic Zone of Islands in JAYEWARDENE, H.W., The Regime of Islands in

International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 15-16. 156

Caracas, from the 20th

of June till the 29th

of August 1974. 157

Statement by the Chairman of the Joint Committee of the Congress of Micronesia submitted on behalf of the Congress by the United States of America, 60/ in UNITED NATIONS, OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE

SEA, Régime of islands, New York, United Nations Publications, 1988, 28. 158

KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 375. Generally: SYMMONS, C.R., The Maritime Zones of Islands in

International Law, Nijhoff, The Hague, 1979, 307; KARL, D.E., “Islands and the Delimitation of the Continental Shelf: A framework for Analysis”, 71 AJIL 1977, 642-673. 159

Algeria, Iraq, Ireland, Libyan Arab Jamahiriya, Madagascar, Nicaragua, Romania, Turkey and United republic of Cameroon. 160

A/CONF.62/c.2/L 96, Platzöder, R., Third United Nations Conference on the Law of The Sea: Documents.

Volume V, New York, Oceana Publications Inc, 1984, 203.

51

Clearly, living up to this proposal would have rather perverse and extreme effects. Let us take the

situation of Libya and Malta as an example. On the one hand, every island belonging to Libya,

situated in another country’s EEZ or CS (or Malta’s) would be denied entitlement to an own EEZ or

CS, because the island would be required to have a tenth of the Libyan surface162 of 1.759.540 km²

and a tenth of its 5.657.692 heads of population163. This invokes entitlement only for the Libyan

islands, which are bigger than neighboring Tunisia164 and have a greater population than Malta165

itself, while an island belonging to Malta166 must only be about 32 km² and have a population of

about 40.496, making the Maltese Island of Gozo almost meeting the conditions. Therefore, this

provision would render any claim of big States for their islands almost impossible, whilst little States

with little population could see their tiny little features entitled to an EEZ or CS. This situation would

even be more absurd when a small country and a very big one have islands in each other’s EEZ or CS,

for only the islands of the small State would be entitled. It is rather clear that Turkey, by proposing

this provision, had in fact a secret agenda. There is –still- an unresolved dispute between Turkey and

Greece over the several insular features in the Aegean Sea167. Greece claims a CS for all of these

features, whereas Turkey opposes that thought because they believe that the Greek Islands are mere

protuberances of the Turkish CS. If Turkey managed to get this provision into the LOSC, the LOSC

itself would have ended the Greek-Turkish dispute. According to the convention, the Greek Islands

would not be entitled to CS or EEZ.

And yet another proposal stated that non-adjacent islands

2. The marine spaces of islands considered non-adjacent, in accordance with paragraphs 1

and 6, shall be delimited on the basis of relevant factors taking into account equitable criteria.

3. These equitable criteria should notably relate to: (a) the size of these normally formed

areas of land (b) their geographical configuration and their geological and geomorphological

structure (c) the needs and interests of the population living thereon (d) the living conditions which

161

A/CONF.62/c.2/L 55 (Article 3.2), Platzöder, R., Third United Nations Conference on the Law of The Sea:

Documents. Volume V, New York, Oceana Publications Inc, 1984, 173. 162

Libyan Arab Jamahiriya, UN Facts, http://data.un.org/CountryProfile.aspx?crName=Libyan%20Arab%20Jamahiriya. 163

Population, latest available census and estimates (2008 - 2009), Last updated 16 February 2011: Libyan Arab Jamahiriya, 15 Apr 2006: 5 657 692, http://unstats.un.org/UNSD/Demographic/products/vitstats/serATab2.pdf. 164

Tunisia = 163.610 km², http://data.un.org/CountryProfile.aspx?crName=Tunisia. 165

Population, latest available census and estimates (2008 - 2009), Last updated 16 February 2011: Malta, 27 Nov 2005: 404 962, http://unstats.un.org/UNSD/Demographic/products/vitstats/serATab2.pdf. 165

Tunisia = 163.610 km², http://data.un.org/CountryProfile.aspx?crName=Tunisia. 166

Malta: 316 km², http://data.un.org/CountryProfile.aspx?crName=Malta. 167

The latter was brought before the ICJ in 1977, but the ICJ found itself to be without jurisdiction; ICJ, 19 December 1978, Aegean Sea Continental Shelf Case. Judgment, Greece/Turkey, I.C.J. Reports 1978, 3-45.

52

prevent a permanent settlement of population (e) whether these islands are situated within, or in the

proximity of, the maritime space of another State (f) whether, due to their situation far from the

coasts, they may influence the equity of the delimitation168.

None of these criteria ever made it. Some were rejected, others were not even taken into

consideration. The reason for that is quite clear; “these propositions were intended to promote

national interests rather than to reflect an opinio juris”169.

Therefore, the negotiations led the LOSC to adopt the following (in article 121 (2)):

Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive

economic zone and the continental shelf of an island are determined in accordance with the

provisions of this Convention applicable to other land territory.

Despite the efforts made to deny EEZ and CS to islands in particular cases, it is now an unequivocal

certainty that (all) islands are entitled to the same rights as any other territory. According to KOZYRIS,

article 121 [(2)] of the LOSC has become codified customary international law170.

Islands have a CS and an EEZ of their own (article 121 (2) LOSC), but, for these marine areas, the

habitation and effective use requirements were posed (article 121 (3)).

Even though all islands are entitled to maritime areas, it is clearly stated by the ICJ that the presence

of islets, rocks and minor coastal projections that have a disproportionally distorting effect ought to

be ignored171. Even small islands were sometimes ignored when producing an inequitable result,

even if they were a non art 121 (3) feature172. However, CHARNEY is contesting this judicial practice as

a rule of law in all circumstances. Every particular situation is to be examined on its own

characteristics.

168

A/CONF.62/c.2/L 62/Rev. 1., PLATZÖDER, R., Third United Nations Conference on the Law of the Sea:

Documents. Volume V, New York, Oceana Publications Inc, 1984, 175-176. 169

Citation of KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 376, footnote 279. The author also pointed out that for the same reasons, the Iranian and Italian proposals at the first UNCLOS were heavily defeated. 170

KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 377. 171

ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of Germany/Denmark and the Netherlands, ICJ Reports 1969, 37, par. 57. 172

CHARNEY, J.I., “Rocks that cannot sustain human habitation”, 93 AJIL 1999, 875: referring to the Anglo/French Arbitration, the Tunisia/Libya Case, the Libya/Malta Case, Gulf of Maine Case and the Guinea/Guinea-Bissau Arbitration.

53

Nevertheless, most States did not adopt the 1982 LOSC distinction (in island types) and claim an EEZ

for all their islands173. Therefore, one cannot unequivocally declare article 121 as customary

international law.


Article 13 of the LOSC clearly stated that proximate low-tide elevations, these are lying within the

territorial sea of the mainland (or an island), may be used as the baseline for measuring the breadth

of the territorial sea. A non-proximate low-tide elevation, which is situated beyond the territorial sea

of the mainland (or an island), has no territorial sea of its own. This gave no rise to interpretation

questions of article 11 of the TSC, simply because there was no exclusive economic zone yet.

It is a wide spread principle that a low-tide elevation cannot generate maritime areas174. However,

technically speaking, although a proximate low-tide elevation cannot generate maritime areas of its

own, when closely linked to the mainland, it can be used to extend the territorial sea. Whilst it

cannot generate marine areas of its own, it can influence the width of the marine areas. It

constitutes the low-water baseline. This line is used for measuring the breadth of the various marine

zones, under which the exclusive economic zone (and sometimes the continental shelf). Thus, by

using the proximate elevation for the baseline, it does not only create a bulge in the territorial sea,

the proximate elevation will be the starting point for the measuring of the 200 Nm exclusive

economic zone and by virtue extends all marine zones175.

4. Continental Shelf

4.1. ISLANDS

In 1951, the ILC stated that the continental shelf-principle also includes the submarine areas around

islands176. This principle was later inserted in the 1958 Geneva Convention: “the Continental Shelf is

173

Eg. Democratic Yemen in its Act No. 45 (1977), articles 2 and 18 in ATTARD, D., The Exclusive Economic Zone in

International Law, New York, Oxford University Press, 1987, 260. 174

LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention”, 19 IJMCL 2004, 57-64. 175

This principle is described by various authors: LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention”, 19 IJMCL 2004, 60; CHURCHILL, R.R. and LOWE, A.V., The Law of the Sea. Third edition, Manchester, Manchester University Press, 1999, 50 (according to LAVALLE, this is an implicit acceptance); KOLB, R., “L’interprétation de l’Article 212, Paragraphe 3, de la Convention de Montego Bay sur le Droit de la Mer: ‘Les “Rochers qui ne se Prêtent pas à l’Habitation Humaine ou à une Vie Économique Propre…”’”, 40 Annuaire Français de Droit International 1994, 904-905. 176

JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 14.

54

used as referring (…) (b) to the seabed and subsoil of similar submarine areas to the coasts of

islands”177. The latter is also to be found in the island-article178 of LOSC: “the continental shelf of an

island [is] determined in accordance with the provisions of this convention applicable to other land

territory”.


Equally to low-tide elevations in the EEZ, an elevation will not generate a continental shelf of its own.

A proximate one, however, can create a bulge in the drawing of the baseline. For States not having a

geological continental shelf, but a 200 Nm zone starting from the baseline, the presence of a

proximate elevation can extend States’ jurisdiction over continental shelf area.

III. THE EFFECT OF ISLANDS AND LOW-TIDE ELEVATIONS ON THE MARINE DELIMITATION

1. Bays

1.1. THE EFFECT OF ISLANDS

A bay, as described in TSC179 and LOSC180, is “a well-marked indentation whose penetration is in such

proportion to the width of its mouth as to contain land-locked waters and constitute more than a

mere curvature of the coast”. “An indentation shall not, however, be regarded as a bay unless its area

is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth

of that indentation”. In order to use the straight baseline as a closing line of the bay, the distance

between the natural entrance points, at low tide, may not exceed 24 Nm181. Serving completeness,

article 10 (1) provides “This article relates only to bays the coasts of which belong to a single State”.

These principles for closing the bay with a straight baseline are undoubtedly impeded by the

presence of islands. Several questions can arise from the presence of islands.

An island can be located within the bay waters. When this indentation then fulfills the requirements

for being a juridical bay, an island, that is situated shoreward of the closing line, and thus inside the

bay, not influencing the closing line, will be ignored182. The island will merely be looked upon as

water, for the evaluation of the bay-criteria. Its presence does not, in any way, create any effect. The

177

Article 1 CSC. 178

Article 121 LOSC. 179

Article 7.2 TSC. 180




55

LOSC subscribed this thought, “Islands within an indentation shall be included as if they were part of

the water area of the indentation”183.

Islands can also be situated on the imaginary closing line of the bay. In that case, islands have a

positive effect on the breadth of the natural entrance. The closing line may not exceed 24 Nm, not

even when there are islands situated in the opening. However, in case of a multi-mouthed entrance,

this 24 Nm line will be the sum of all the closing lines connecting the several islands184. Obviously,

islands can be most wanted for closing purposes. When an island is widening the closing line, which

could not be applied if the islands were not there, the mainland will be provided with an enlarged

share of internal waters constituting the bay. Thus, in this case, islands have a significant and positive

effect. They can bring a greater amount of water under the mainland’s jurisdiction. The LOSC states

that “[w]here, because of the presence of islands, an indentation has more than one mouth, the semi-

circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different

mouths”185.

There is however a reason for the granting of increased amounts of water through the use of islands:

“islands at the mouth increase the ‘land-locked’ nature of such waters”186. The presence of these

islands negates the indentation-character of a bay. The water no longer cuts into the land, the waters

are now seen to be within the land borders.

183

Article 10 (3), third sentence LOSC. 184


Article 10 (2), second sentence LOSC. 186


Figure 3: The presence of

islands can give rise to

the existence of a

juridical bay.


author]

56

A special situation arises when the bay is closed by screening islands. These are islands, blocking

more than one half of a bay187. Examples of such island screens can be found at the closure of the

Kvarner Bay (Croatia), the Moreton Bay (Queensland, Australia), the Tampa Bay (Florida, USA) and

the Hudson Bay (Canada)188. Taking into account that the semi-circle test is fulfilled, this island screen

must be used as the closing line189 of the bay. JAYEWARDENE described two possibilities.

The island screen can be located seaward or shoreward of the normal closing line. In case it is

situated seaward, then the screen will be used as the closing line. The mainland then benefits from

this screen, for the waters lying shoreward’s from the screen, but seawards from the normal closing

line to be applied, are found to be internal waters. In this case as well, the presence of islands

enlarges the mainland’s jurisdiction boundaries.

When the island screen is located shoreward from the normal closing line, the screen is said to be

utilized for the bay closing line190. However, using this screen as the closing line, would clearly

disadvantage the mainland, for the bay has became smaller and less water is locked in as internal

waters. Therefore, the water area situated seawards from the island screen and shoreward from the

normal closing line, may also be regarded as internal waters191. This invokes that the island screen is

not forming the definitive closing line. That task is reserved for the closing line normally to be

applied. That is why BEAZLEY concluded that the screen lying shoreward of the normal closing line can

be looked upon as nothing more than islands within a bay192. Thus, the island screen, for that reason,

should be regarded as internal waters or ignored for closing purposes.

187

HODGSON, R.D. and ALEXANDER, L.M., Towards an Objective Analysis of Special Circumstances: Bays, Rivers,

Coastal and Oceanic Archipelagos and Atolls, Rhode Island, Law of the Sea Institute, 1972, 17. 188

Hudson Bay, however, is a historical Bay, but the islands at the closure of the bay can be seen as an island screen. 189


HODGSON, R.D. and ALEXANDER, L.M., Towards an Objective Analysis of Special Circumstances: Bays, Rivers,

Coastal and Oceanic Archipelagos and Atolls, Rhode Island, Law of the Sea Institute, 1972, 17 and 20. 191


BEAZLEY, P.B., Maritime Limits and Baselines; a guide to their delineation, Third revised edition, London, The Hydrographic Society, 1987, 19, par. 6.26.

57

Another possibility is that of islands located outside the bay, pushing the closing line further

seawards. The islands then form the arms of the closing line. Here, islands are seen as a prolongation

of the coastal configuration, enclosing a certain amount of water. The closing line will then be drawn

between the outermost islands. Obviously, islands generate, in this case as well, a positive effect for

the mainland, which is now able to enclose a greater amount of water area.

JAYEWARDENE193 also described the possibility of islands closely related to the mainland, and by virtue

of their position creative of a bay. For this, some criteria must be upheld: “(a) it must not be situated

at any great distance from the shore; (b) the area of the island should be greater than the surface of

the intervening water body; (c) the intervening water body should ideally be channel-like in

configuration; (d) this water body should not form a principal channel of navigation”. However, he is

aware of the massive effects this might generate (including an excessive amount of water). Above, it

is more likely, that these islands will be used in drawing a straight baseline or that their low-water

line is to be used as the mainland’s outer limit of internal waters than using them for creating bays.

By doing so, the interrelated waters have an internal water status anyhow.

193


Figure 4:

Screening islands

closing a bay.

[LALL, V.K. and

KHEMCHAND, D.,

Encyclopaedia of

International Law,

New Delhi, Anmol

Publications, 1997,

93.]

Figure 5: Islands forming

the arms of the bay,

pushing the closing line

further seawards.


author]

58

Article 10 LOSC does not apply in the case of historic bays or where straight baselines are being

applied194.

1.2. THE EFFECT OF LOW-TIDE ELEVATIONS

Since there is a lacuna in the 1982 Convention (the bay article195 does not mention the presence of

low-tide elevations the low-tide elevations-article196 does not mention their effect on bays), the

scrutiny of the interrelation between bays and low-tide elevations, is to be analyzed on the basis of

general principles of international law and common sense. We will now thoroughly examine this by

comparing it to the effect islands generate in the same circumstances.

The first situation is that of a low-tide elevation located within the bay waters. We believe that it is

rather logic that low-tide elevations do not generate any effect in this case. Islands are ignored and

looked upon as water, so low-tide elevations will certainly be ignored for that purpose.

But what about low-tide elevations at the closing line, ‘screening low-tide elevations’ or low-tide

elevations that form the arms of the mainland to enclose the bay? What possible effect could low-

tide elevations generate in these present situations? Therefore, we need to take a preview to what is

yet to come: the effect of low-tide elevations for the drawing of straight baselines. The conclusion to

the latter is that low-tide elevations, under certain circumstances, can be used for the drawing of

straight baselines. They can also be used as the extended low-water line. In this capacity, low-tide

elevations can have an effect on the outer territorial sea limit. Thus, why wouldn’t they have an

194


Article 10 LOSC. 196

Article 13 LOSC.

Figures 6 and 7: Closely

related islands, creative of

a bay.

[Left: JAYEWARDENE, H.W., The

Regime of Islands in

International Law in

Publications on Ocean

Developments, Dordrecht,

Martinus Nijhoff Publishers,

1990, 34]

[Right: drawing made by the

author]

59

effect on the TS in case of bays? This might lead to the conclusion that low-tide elevations generate

the same effect on bays as islands do. However, their effect on bays needs to be nuanced.

A bay could be enclosed if low-tide elevations on the closing line would render the enclosure less

than 24 Nm between the low-water marks. Thus, the low-water mark of a low-tide elevation can be

used for the closure of the baseline. Although this elevation is submerged at high tide, which might

lead to the fact that the closing line becomes more than 24 Nm, this shift is of no importance. Its low-

water line is to be used for the measuring of the 24 Nm closing line.

Screening low-tide elevations would then also enclose a bay if located seawards from the normal

closing line. And low-tide elevations located on the arms could enlarge the bay’s internal water.

The question then emerges whether these low-tide elevations would have to fulfill the conditions set

out in article 7 (4) of LOSC; “lighthouses or similar installations which are permanently above sea

level have been built on them or except in instances where the drawing of baselines to and from such

elevations has received general international recognition” or generate this effect on the basis of

article 13 LOSC (no requirements). If we take the closing line of a bay to be a straight baseline, the

answer is quite logical. It does not form the genuine low-water line, but installs a straight baseline so

as to render the water surface an internal water status. Since the use of LTE for straight baselines is

subject to the ‘built upon’ requirement of article 7, low-tide elevations enclosing a bay will have to

fulfill the requirements posed in article 7. CHARNEY197, however, came to a different conclusion: “Even

low-tide elevations that have no structure on them may serve as base points”. He came to this

conclusion because he departed from another presumption, ”may serve as base points for the

normal baseline (the low-water line and closing lines (at rivers) and internal water bays)”, under the

condition that “they are located within the territorial sea of a mainland or island”. Thus, CHARNEY

stated that the closing line of a bay is in fact a normal baseline. Following that presumption, it would

197

CHARNEY, J.I., “Central East Asian Maritime Boundaries and the Law of the Sea”, 89 AJIL 1995, 735.

Figure 8: A LTE creates

a bay at low tide were

it is no bay at high

tide.


author]

60

be quite logical to state that LTE do not need to fulfill the ‘built upon’ requirements, for article 13

LOSC provides that LTE can be used for the normal baseline without requirements. Taken that is a

straight baseline, the LTE must be built upon.

2. Straight baselines

2.1. THE EFFECT OF ISLANDS

The question of using islands for the drawing of straight baselines, clearly, does not require a

thorough examination. The existence of straight baselines is inherent to deep indentations and/or

the presence of islands along the coastline. “In localities where the coastline is deeply indented and

cut into, or if there is a fringe of islands along the coast in its immediate vicinity (…)”198. Thus, to

answer the question whether islands can be used for the drawing of straight baselines, one can

clearly notice that islands are one of the sole emergence reasons for which this baseline system is

shaped. Difficulties rather arise on the applicability of rocks and low-tide elevations for the drawing

of straight baselines.

The lawful basis for this (juridical) creation is the 1951 Fisheries Case199. In this case, the United

Kingdom of Great Britain and Northern Ireland filed an application before the ICJ against the

Kingdom of Norway. The UK did not agree with the delimitation of the Norwegian fisheries zones200.

According to the Court, there was no clear distinction line between the Norwegian land and water, so

that the outer line of the Skjærgaard formed the Norwegian coastline201. Taking into account the

formation of the Skjærgaard, the Court had to examine the delimitation rules to be used. Both

parties agreed on the use of the low-water line, but applied this rule in a different way (128). Norway

used a straight baseline system, which brought the fishery rights under the exclusive reservation for

Norwegian nationals (118-119). Concerning the use of straight baselines in general, the UK found

that it could only be done to enclose bays and historic waters. Norway obviously contested that view.

Even the Court did not support that view, stating that “straight baselines could also be drawn from

and to islands, islets, low-tide elevations and rocks” (130). By recognizing the drawing of such lines,

Norway was given a lot more internal waters.

The Fisheries Case thus became an important step in the path of international maritime boundary

delimitation law, recognizing the application of straight baselines in certain circumstances and thus

198


ICJ, 18 December 1951, Fisheries Case. Judgment, United Kingdom/Norway, I.C. J. Reports 1951, 116. 200 The Norwegian Royal Decree of July 12th, 1935, concerning the delimitation of the Norwegian fisheries

zone. 201

ICJ, 18 December 1951, Fisheries Case. Judgment, United Kingdom/Norway, I.C. J. Reports 1951, 127.

61

modifying baseline principles. However, REISMAN did not confirm to this view. He contested that “the

1951 Anglo-Norwegian Fisheries Case was not about baselines at all, but was a precursor of an

exclusive economic zone or a fishery zone”202. It is in his belief that the straight baseline system was

not a principle of international delimitation law. By describing it as one of the three legitimate ways

(first, the trace parallele203; second, the arcs of circles method204; third, straight baselines) of

determining a States’ coast, the Court pretended “that this was a method consistent with the trace

parallèle and with the arcs of circles methods that were derived from the low-water mark”, by virtue

of which, “the Court was in fact making its actual decision”205.

Whether contested are not, the principle of straight baselines became a fixed element in marine

boundary delimitation law, included in article 4 TSC and article 7 LOSC. The use of a fringe of islands

for straight baselines was a logical consequence thereof.

Before looking at the effects generated by a fringe of islands, rocks or a fringe of low-tide elevations

(see further: 2.2. The effect of low-tide elevations) it is rather important to be well aware of what

constitutes a “fringe”. When do insular features, located near the coastline, constitute a fringe? The

term “fringe of islands” implies, according to KAPOOR and KERR “a number of off-lying islands spread

over some distance so as to form a continuous fringe along the coast”206. A number of off-lying

islands is however rather vague. Nevertheless, as MUNAVVAR stated, it is clear that, in order to speak

of a fringe, it must be constituted of at least one island207. But, there is no further specification on the

minimum or the maximum. Therefore, BEAZLEY stated that “the exact number would depend partially

on size, (so that three large islands might constitute a fringe, whereas three islets over the same area

would not)”208. LAVALLE completed the debate: when constituted of very small, elevations-like islands,

“a greater number of them is required to form a valid fringe than in cases [of] larger features, i.e.

202

WESTERMAN, G.S. and REISMAN, W.M., “Straight baselines in international law: a call for reconsideration”, 82 ASIL Proc 1988, 260. 203 The method of the tracé parallèle, which consists of drawing the outer limit of the belt of territorial waters

by following the coast in all its sinuosities, ICJ, 18 December 1951, Fisheries Case. Judgment, United Kingdom/Norway, I.C. J. Reports 1951, 128. The Court concluded that this method was inappropriate for an irregular coastline such as Norway, WESTERMAN, G.S. and REISMAN, W.M., “Straight baselines in international law: a call for reconsideration”, 82 ASIL Proc 1988, 263. 204 The arcs of circles method, which is constantly used for determining the position of a point or object at sea,

is a new technique in so far as it is a method for delimiting the territorial sea, ICJ, 18 December 1951, Fisheries

Case. Judgment, United Kingdom/Norway, I.C. J. Reports 1951, 129. 205

WESTERMAN, G.S. and REISMAN, W.M., “Straight baselines in international law: a call for reconsideration”, 82 ASIL Proc 1988, 263. 206

KAPOOR, D.C. and KERR, A.J., A guide to Maritime Boundary Delimitation, Toronto, Carswell, 1986, 34. 207

MUNAVVAR, M., Ocean States: Archipelagic Regimes in the Law of the Sea in Publications on Ocean

Developments, Dordrecht, Martinus Nijhoff Publishers, 1994, 116. 208

BEAZLEY, P.B., Maritime Limits and Baselines; a guide to their delineation, Third revised edition, London, The Hydrographic Society, 1987, 11.

62

regular islands”209. According to PHARAND, the term “fringe of islands”, is “considered to be

reasonably accurate to describe the [above mentioned Norwegian] Skjærgaard”210 and MUNAVVAR

completed, “the Norwegian Skjærgaard would provide an inspiration, if not the direct source for the

interpretation of the term”211.

It seems quite obvious that also rocks are to be taken into account for the drawing of straight

baselines212. This follows from the fact that a rock is actually the same as an island and has the same

rights of entitlement213. Moreover, if a low-tide elevation can be used for the drawing of a straight

baseline (possible under article 7 (4) LOSC), a rock must certainly be capable of reinstalling the

baseline further seawards, for this feature is above water at all time. The conditions set out in article

7 (3) LOSC remain applicable: “the use of the straight baseline must not depart to any appreciable

extent from the general direction of the coast, and the sea areas lying within the lines must be

sufficiently closely linked to the land domain to be subject to the regime of internal waters”. We can

conclude from all this, that a single rock, located in the vicinity, not departing from the general

direction of the coast and closely linking the water to the land domain, will therefore allow the

drawing of a straight baseline, taking this rock as a base point for it. A well known example is that of

209


PHARAND, D., Canada’s Arctic Waters in International Law, Cambridge, Cambridge University Press, 1988, 134. 211

MUNAVVAR, M., Ocean States: Archipelagic Regimes in the Law of the Sea in Publications on Ocean

Developments, Dordrecht, Martinus Nijhoff Publishers, 1994, 118. 212 CHURCHILL, R.R. and LOWE, A.V., The Law of the Sea. 3rd edition, Manchester, Manchester University Press,

1999, 50; LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention”, 19 IJMCL 2004, 53. 213

See: definition of islands, concerning rocks.

Figure 9: The Norwegian

Skjærgaard. The classical

example for “a fringe of islands”

generating straight baselines.

But also the cause for the Anglo-

Norwegian Fisheries Case.

[JAYEWARDENE, H.W., The Regime of

Islands in International Law in

Publications on Ocean

Developments, Dordrecht, Martinus

Nijhoff Publishers, 1990, 49.]

63

the Eddystone Rock214 in the Anglo-French Continental Shelf Case, were the Court of Arbitration

found it to be a relevant point for the delimitation215.

Since a single rock can generate this effect, it would seem rather clear that a fringe of rocks, which is

essentially the same as a fringe of islands, can be used as base point for a straight baseline. However,

this is contested216, arguing that it would not comply with the ‘close link’ requirement217. We believe,

however, that this contestation is not logical. Given the facts that rocks are islands, a single rock can

be used as base point and that an island fringes can be used as base point, we find that a fringe of

rocks may be used as base points for the drawing of straight baselines.

2.2. THE EFFECT OF LOW-TIDE ELEVATIONS

As mentioned above, straight baselines were adopted as a legal rule for the first time in the Fisheries

Case. The UK Government listed some considerations, which they believed, were binding for Norway,

and as so to be recognized by the ICJ. One of the submissions made by the Agent of the UK

Government stated: “where there is a low-tide elevation situated within 4 sea miles of permanently

dry land, or of the proper closing line of Norwegian internal waters, the outer limit of territorial

waters may be 4 sea miles from the outer edge (at low tide) of this low-tide elevation. In no other

case may a low-tide elevation be taken into account”218. Thus, the UK recognized the use of low-tide

elevations for drawing the low-water line, but only when it was situated within 4 Nm of the

permanent dry land. The Agent of the Norwegian Government declared that the principles, set out

by the UK Government (and their agent), were not to be seen as international recognized principles,

binding Norway as well (par. 126). They were merely propositions made by the UK. Furthermore,

Norway made use of its own delimitation rules, which were in conformity with international law

requirements.

Concerning the use of low-tide elevations for the delimitation, both parties agreed. The UK, however,

added a condition; such a low-tide elevation should be situated within 4 Nm from the mainland.

214

DUBNER, B.H., “The Spratly “Rocks” Dispute – A “Rockapelago” defies norms of International Law”, 9 Temp.

Int’l & Comp. L.J., 1995, 301. 215

Award of the Arbitral Tribunal, 30 June 1977/14 March 1978, Delimitation of the Continental Shelf between

the United Kingdom of Great Britain and Northern Ireland, and the French Republic, United Kingdom/France, UNRIAA, vol. XVIII, 74, par. 144. 216

REISMAN, W.M. and WESTERMAN, G., Straight baselines in International Maritime Boundary Delimitations, New York, St. Martin’s Press, 1992, 85. 217


ICJ, 18 December 1951, Fisheries Case. Judgment, United Kingdom/Norway, I.C. J. Reports 1951, 120, (4).

64

Since Norway had shown, on charts219, that none of the LTE was beyond 4 Nm, the Court did not find

it necessary to examine this condition, posed by the UK.

The applicability of low-tide elevations for straight baselines was recognized in the Fisheries Case.

However, there was not yet a consensus on their use as base point in straight baselines. The Court

had not brought certainty on this issue. Therefore, it had to be clearly and unequivocally adopted in

the Geneva Convention on the Territorial Sea. Article 4 (3) stated: “[Straight]220

[b]aselines shall not

be drawn to and from low-tide elevations, unless lighthouses or similar installations221

which are

permanently above sea level have been built on them”. The LOSC added a sentence in its article 7 (4):

“or except in instances where the drawing of baselines to and from such elevations has received

general international recognition”.

The general rule is thus quite simple. A low-tide elevation can only be used for the drawing of

straight baselines when a lighthouse or similar installation is built on it (and this installation is

permanently above water). The exceptions added in the LOSC, on the contrary, are anything but

simple.

One of them is the received general international recognition. Because of its vagueness, it leaves

room for discussion and individual interpretation. According to some authors222, this general

recognition, however, must not be a universal one; a widespread recognition by the major maritime

users over a period of time is sufficient. Moreover, this general recognition requires formal action of

the State concerned. That action shows the intention of using that point for the straight baseline,

which is necessary to achieve general recognition.

For using a low-tide elevation as a straight baseline base point, lighthouses or similar installations

which are permanently above sea level must be built on them. Otherwise, they cannot be used. The

use of a low-tide elevation for a system of straight baselines was rejected by an Arbitral Award223

219

ICJ, 18 December 1951, Fisheries Case. Judgment, United Kingdom/Norway, I.C. J. Reports 1951, 128. 220

Emphasis added. 221

“Installations similar to a lighthouse might include towers and buildings which look like a lighthouse without serving any purpose specifically connected with navigation, as well as installations, the functions of which are similar to those of lighthouses, which is to warn navigators of dangers and assist them in fixing their position” in UNITED NATIONS, OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, The Law of the Sea. Baselines: an examination

of the relevant provisions of the United Nations Convention on the law of the sea, New York, United Nations Publications, 1989, 25. 222

REISMAN, W.M. and WESTERMAN, G., Straight baselines in International Maritime Boundary Delimitations, New York, St. Martin’s Press, 1992, 93-94; LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention”, 19 IJMCL 2004, 49; ROACH, J.A. and SMITH, R.W., “Straight Baselines: The Need for a Universally Applied Norm”, 31 Ocean Devel. & Int’l L. 2000, 51. 223

Commentary on the Award of the Arbitral Tribunal in the second stage of the proceedings – Maritime Delimitation, Eritrea/Yemen in KOLB, R., Case Law on Equitable Maritime Delimitation / Jurisprudence sur les

65

because it lacked permanent installations on it. However conceived as a clear rule, this is not an

unequivocal one. The installations that are built on them must actually serve a given cause and may

not be built merely to fulfill the (“built upon”) requirement224. Otherwise, this would clearly be a

violation of article 26 of the Vienna Convention on the Law of Treaties225: it is not performed in good

faith226. Nevertheless, there are countries using low-tide elevations on which there is no lighthouse

built or a similar installation and for which there is no general recognition227.

Whereas island fringes are used as base points and the use of rock fringes is highly contested, an

examination of low-tide elevation fringes imposes itself. There are two possibilities which we will

review. One possibility is the presence of a fringe existing solely of low-tide elevations. The other one

is a fringe composed of low-tide elevations on the one hand, and islands (or rocks, for they are both

considered to be regular islands) on the other hand.

In case the coastline is marked with a fringe that solely contains low-tide elevations, the answer looks

quite logical. Article 7 (1) LOSC expressly mentions “a fringe of islands”. It does not mention a fringe

of insular features, let alone a fringe of low-tide elevations. Since a low-tide elevation is essentially

different in treatment towards an island, this article can be thought to deliberately excluding low-

tide elevations from its scope. LAVALLE228 drew the same conclusion. Moreover, if a fringe of rocks is

already highly contested to provide a basis for straight baseline drawing, than it is rather naturally

that granting this effect to low-tide elevations would certainly not enjoy much support. LAVALLE also

refuted the applicability in a more complex situation. The TSC proclaimed that the building

requirement (for other purposes than merely to be used for a straight baseline) allows low-tide

elevations to be used for the drawing of straight baselines. The insertion from LOSC provided that

general international recognition could also render a low-tide elevation the status of base point.

Now, when these exceptions are gathered in the case of a fringe, “a fringe of uncapped elevations”

délimitations maritimes selon l'équité. Digest and Commentaries / Répertoire et commentares in Publications

on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 2003, 414. 224


Convention on the Law of Treaties, Vienna, 23 May 1969, U.N.T.S., vol. 1155, 331. 226

REISMAN, W.M. and WESTERMAN, G., Straight baselines in International Maritime Boundary Delimitations, New York, St. Martin’s Press, 1992, 93. 227

Saudi-Arabia, Syria in CHURCHILL, R.R. AND LOWE, A.V., The Law of the Sea, Third edition, Manchester, Manchester University Press, 1999, 32. 228

“A state along the coast of which lies a fringe of elevations that are built up (…) but no regular islands or rocks (…), may not lawfully create for itself (…) a straight baseline system resting on these elevations”, LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention”, 19 IJMCL 2004, 52.

66

from which “every [low-tide elevation] has received the “general international recognition””229, this

fringe cannot qualify as a fringe of islands.

A fringe can, however, also be compiled of 2 types of insular features. In case of these hybrid fringes,

low-tide elevations must obviously be a distinct minority. A fringe of islands, which has a few low-tide

elevations, is still a fringe of islands, generating a straight baseline system in which the low-tide

elevations are to be used as well. A fringe of low-tide elevations does not generate such a system. If

that fringe contains an island, it is still a fringe of low-tide elevations. Moreover, it is then more likely

for the island to extend the mainland’s low-water line or straight baseline to that of its own (if

located within 12 resp. 24 Nm of the mainland’s baseline). The low-tide elevations are then more

likely to extend the islands’ low-water line to the low-water line of the elevations at stake (if living up

to the conditions for that) instead of being looked upon as a fringe for straight baseline purposes.

When the island is incorporated within the mainland’s baseline, the fringe then becomes a fringe

solely composed of LTE and by virtue of that not capable of being used in straight baseline drawing.

Therefore a minority of low-tide elevations in a hybrid fringe still makes straight baselines applicable.

LAVALLE230 drew the conclusion that “it would also appear that a [S]tate along the coast of which lies a

fringe of elevations that are built upon (…) but no regular islands or rocks (…) may not lawfully create

for itself (…) a straight baseline system resting on these elevations” and that “a fringe of uncapped

elevations could not (…) qualify as a fringe of islands on the basis that every one of the elevations has

received the “general international recognition” (…)”.

Some critical remarks on these findings emerge. We found it, however, rather strange that a single

low-tide elevation can be used as a base point, whereas a fringe of low-tide elevations does not

generate that effect. Of course, one might argue that a fringe might bring along a disproportionate

amount of water surface under the internal water regime vis-à-vis the waters that would become

internal in case of a single low-tide elevation. However, a fringe of low-tide elevations (that fulfils the

building requirement) clearly renders the waters more closely related to the mainland, for this fringe,

at low tide, partially encloses these waters. Nevertheless, a fringe of low-tide elevations cannot

generate straight baselines. But, does it even matter? Because, when these low-tide elevations are

located within the breadth of the territorial sea, article 13 LOSC provides that the low-water line of

these low-tide elevations may be used as the mainland’s baseline. They might not be used for

straight baselines, but they are still to be taken into account in the drawing of the (normal) baseline. 229



67

It would therefore be logical that a reef, which is not above water at any state of the tide, cannot be

used as a single base point. A reef that is submerged only at high tide, should be able to be used as a

base point. Notwithstanding, an Arbitral Tribunal231 from the Permanent Court of Arbitration

(hereinafter as PCA) had to intervene between Eritrea and Yemen in their maritime delimitation

settlement for, among others, the use of a reef as base point. This Tribunal stated clearly that

Eritrea’s Negileh Rock (a small uninhabited Rock that forms part of the Dahlak’s232), shown by Yemen

to be a reef, could not serve as a base point, for the Negileh Reef was not also a low-tide elevation

(par. 143). The Eritrea/Yemen Arbitral Award did accept the use of other (islets and) reefs as base

points, for they were found to be a constituting part of an island fringe233. Every feature, part of an

island fringe (a majority of which are islands), can be used as base point in incorporating the fringe in

the straight baseline system. This principle was inserted in article 6 LOSC.

There are examples of interstate agreements in which reefs are used as base point, modifying the

equidistant line, eg. the Bahrain-Saudi Arabia Agreement234, USA-Cook Island Agreement 235.

231 PCA, 17 December 1999, Second Stage of the Proceedings between Eritrea and Yemen (Maritime

Delimitation), Eritrea/Yemen, UNRIAA, Vol. XXII, 335-410. 232

KWIATKOWSKA, B., “The Eritrea-Yemen Arbitration: Landmark progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation”, 32 Ocean Devel. & Int’l L. 2001, 9. 233

Commentary on the Award of the Arbitral Tribunal in the second stage of the proceedings – Maritime Delimitation, Eritrea/Yemen in KOLB, R., Case Law on Equitable Maritime Delimitation / Jurisprudence sur les

délimitations maritimes selon l'équité. Digest and Commentaries / Répertoire et commentares in Publications


The Bahrain-Saudi Arabia Frontier Agreement, Riyadh, 22 February 1958, U.N.T.S., vol. 1733, I-30248; Limits

in the Seas, No. 12. 235

Treaty between the United States of America and the Cook Islands on Friendship and Delimitation of the Maritime Boundary between the United States of America and the Cook Islands, Rarotonga, 11 June 1980, U.N.T.S., vol. 1676, I-28971; Limits in the Seas, No. 100.

Figure 10: The

use of low-tide

elevations and a

low-tide

elevations’

fringe for the

drawing of

straight

baselines

[drawing made by

the author]

68

3. Interstate marine delimitation

3.1. GENERAL DELIMITATION PRINCIPLES: EQUIDISTANCE AND EQUITABLE DELIMITATION

International law (of the sea) has provided coastal States with some maritime zones to be claimed by

them. In providing these zones, all States are equal and they are entitled to the same (amount of

these) zones. Granting all of them a same amount would merely be ideological. The given State

configurations in the world cannot provide equal shares to every State. Adjacent States need to draw

a line between them. Opposite States often don’t have enough water area between them to provide

all of the maritime zones to all of them. Therefore, international law of the sea had to work out a

procedure to cope with the differences in configuration. In other words, delimitation principles of the

latter had to be installed.

The general principle for maritime boundary delimitation has altered over the years. However, one

principle has been upheld every time. The method of preference in achieving boundary delimitation

is the one of (mutual) agreement. But States do not always reach an agreement, so there is still a

need for further delimitation principles.

This problem mostly occurs in continental shelf boundaries. Therefore, the continental shelf will first

be examined instead of following the classical order of maritime areas.

3.1.1. BOUNDARY DELIMITATION CONCERNING THE CONTINENTAL SHELF

When there is a continental shelf, which is the same for adjacent or opposite States, the delimitation

issues shall be determined by agreement. When, on the other hand, States cannot come to an

agreement, delimitation principles were needed so as to provide Courts and Tribunals a definite rule

for settling delimitation problems236. As the CSC came into force, the international community was

bound upon the principle of ‘equidistance’. This principle was inserted in art. 6 of that convention

and reads as follows:

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.

236


69

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.

Article 6 made a division between the delimitation of adjacent and opposite States. However, the

applicable rule is the same, that of the equidistance. This rule means that a median line is drawn

between the two States, which is at an equal distance of the nearest points of the baseline (from

which the breadth of the territorial sea of each State is measured).

The main goal of the equidistance line was to provide an equitable solution to boundary conflicts,

where States were either reluctant or incapable of reaching an equitable solution of their own.

Initially, following the Committee of Experts 1953, article 6 would have postponed “equidistance as a

general rule”, but on the suggestion of SPIROPOULOS, this was replaced by “unless another boundary

line is justified by special circumstances”237. Although first adhered as ‘a general rule’ for equitable

delimitation, equidistance clearly did not always provide equitable solutions. JAYEWARDENE238

explained239 “that there are circumstances where equidistance will not be equitable and where it

237

204th

meeting, 29 June 1953, 1953 I.L.C. Yearbook, Vol. 1, 130, 64. 238

JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 329-334. 239

He refers to UN Doc., A/CONF.62/C.2/L.13, explanatory memorandum.

Figures 11 and 12: Equidistance lines between opposite and adjacent States

[CARLETON, C. and SCHOFIELD, C. “Developments in the Technical Determination of Maritime Space: Charts,

Datums, Baselines and Maritime Zones”, 3 Maritime Briefing 2001, 7 (opposite states) and 9 (adjacent

states).]

70

would be necessary to take into account all circumstances relevant for reaching an equitable

solution”. These relevant circumstances are geographical factors, coastal configurations, the

presence of islands, geology and geomorphology, natural resources and security.

Nonetheless, the applicability of the ‘equidistance-special circumstances’ rule was the subject of two

pre-LOSC international disputes of major importance concerning continental shelf delimitation.

The first international applications for this twofold delimitation principle were the North Sea

Continental Shelf Cases (1969) between on the one hand Denmark240 and the Netherlands241, and on

the other hand Germany242.

As it was postponed in article 6 of the CSC, Denmark and the Netherlands saw in the equidistance

line, not only a conventional rule, but also a general rule of public international law243: “The

delimitation (…) is governed by the principles and rules of international law which are expressed in

Article 6, paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf” and “like other

rules of general or customary international law, is binding on the Federal Republic automatically and

independently of any specific assent, direct or indirect, given by the latter “244. However, Germany,

not being a party to the CSC, withheld245 that “(…) (equidistance method) is not a rule of customary

international law”. Furthermore, Germany went on stating that even if the rule were applicable

between the parties concerned, this rule would be excluded because of the special circumstances

(the respective configurations of the coastlines). Denmark and the Netherlands abated that thought

by stating that there were no special circumstances in this case246.

240

The Kingdom of Denmark signed CSC on 29 April 1958 and ratified it on 12 June 1963, http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=1&mtdsg_no=XXI-4&chapter=21&lang=en#4 (last visited 10 November 2010). 241

The Kingdom of the Netherlands signed CSC on 31 October 1958 and ratified it on 18 February 1966, http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=1&mtdsg_no=XXI-4&chapter=21&lang=en#4 (last visited 10 November 2010). 242

The Federal Republic of Germany signed the Convention on 30 October 1958, but did not ratify it. On 27 December 1973 it acceded to the Convention with a declaration (United Nations, Treaty Series, vol. 905, 82), http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=1&mtdsg_no=XXI-4&chapter=21&lang=en#4 (last visited 10 November 2010). 243 SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte uitgave, Mechelen, Kluwer, 2010, 159, referring to North Sea Continental Shelf Case, ICJ Reports 1969, 11. 244

ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of Germany/Denmark and the Netherlands, ICJ Reports 1969, 29. 245

At the hearing on 5 November 1968. 246

ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of Germany/Denmark and the Netherlands, ICJ Reports 1969, 12 (Denmark and the Netherlands), 11, 2 (a) and (c) (Germany).

71

According to Germany, the present case(s) could not rely on the equidistance method, for it would

not lead to equitable apportionments. Therefore, the Court was asked “to decide what principles and

rules of international law are applicable to the delimitation as between the Parties of the areas of the

continental shelf in the North Sea”. The Court was, on the contrary, not asked to delimit the

boundaries, for that task was reserved for the Parties, achieving delimitation by agreement “on the

basis of, and in accordance with, the principles and rules of international law found by the Court to be

applicable” 247.

After long examinations, the Court found248 that the use of the equidistance line was not obligatory

to the parties and that there was no rule which appears to be obligatory in all circumstances. The

Court stated that – instead of the equidistance – the applicable principles of international law

generating the solution to the latter was “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 as much as

possible to each Party all those parts of the continental shelf that constitute a natural prolongation of

its land territory into and under the sea (…)”.

247

ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of Germany/Denmark and the Netherlands, ICJ Reports 1969, 11, 3 (b) (Germany), 10 (Question to the Court), 13 (Court). 248

ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of Germany/Denmark and the Netherlands, ICJ Reports 1969, 54, conclusion (A), (B) and (C).1.

Figure 13: Map showing the respective

configurations of the coasts of the parties,

allotting Germany an exceptionally small part

of the continental shelf area.

delimitation line claimed by Germany

delimitation lines claimed by Denmark

and the Netherlands

[(part of) Map 3, paragraphs 5-9, ICJ, 20 February

1969, North Sea Continental Shelf Case. Judgment,

Federal Republic of Germany/Denmark and the

Netherlands, ICJ Reports 1969.]

72

The second boundary dispute was the Anglo-French Arbitration of 1977 concerning two disputed

areas, the Channel Islands and the Atlantic Continental Shelf Area249.

In this case, concerning the continental shelf delimitation between the United Kingdom and France,

the parties disagreed on whether the CSC in general and the equidistance principle of article 6 in

particular were applicable. Since the U.K. had rejected the French reservations to article 6, France

argued that the CSC had not entered into force between them. The Tribunal found the CSC to be in

force between the opponent States250. Concerning the Channel Islands region, the latter had to be

resolved in accordance with the rules of customary law. The applicability of the equidistance

principle, described in article 6 CSC, was to be seen as a treaty obligation, rendering it obligatory (a

status it would not have under customary law251). The Tribunal immediately thereafter recognized

the consistency between the equidistance line and the special circumstances. This was an elementary

consistency, because it was the combined rule of article 6 that expressed the general norm that

delimitation ought to be based on equitable principles252. The Arbitration Tribunal thus came to the

same conclusion as the ICJ in the North Sea Continental Shelf Cases, that there was no automatic

application of the equidistance-special circumstances rule, but that it could be applied when (given

all the circumstances) it would generate an equitable solution. Concerning the Channel Islands, OUDE

ELFERINK253 stipulated that they are “considered a ‘special circumstance’ within the meaning of article

6 or a circumstance creative of inequity, and it is on this consideration that the delimitation is

effected”.

Hence, for this matter it needs to be pointed out that the Tribunal of Arbitration did, for the first

area, take account of the equidistance line, but not in a stringent way as proposed by the United

Kingdom. The Tribunal saw an equitable solution in using the equidistance line, but, for that matter

ignoring the presence of the Channel Islands. These islands were looked upon by the Tribunal

following the French argumentation, as a relevant circumstance. Concerning the second area, the

249

Both disputed areas are mentioned below in respect of their effect to the interstate delimitation, page 78 and 92. 250

The Court found that a French reservation to the effect that there are special circumstances in the Bay of Granville covered the whole Channel Islands region in OUDE ELFERINK, A.G., The Law of Maritime Boundary

Delimitation. A Case Study of the Russian Federation. in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1994, 55, footnote 60; Award of the Arbitration Tribunal, 30 June 1977/14 March 1978, Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland,

and the French Republic, UK/France, UNRIAA, Vol. XVIII, 46-47, par. 71-74. 251

OUDE ELFERINK, A.G., The Law of Maritime Boundary Delimitation. A Case Study of the Russian Federation. in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1994, 55. 252

Award of the Arbitration Tribunal, 30 June 1977/ 14 March 1978, Delimitation of the Continental Shelf

between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, UK/France, UNRIAA, Vol. XVIII, 45, par. 70. 253

OUDE ELFERINK, A.G., The Law of Maritime Boundary Delimitation. A Case Study of the Russian Federation. in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1994, 57.

73

Tribunal postponed that the equidistance principle was applicable. Again, the Tribunal did not follow

the stringent equidistance line254. The Tribunal did, however, clearly state that the equidistance

principle is binding for the State parties to the CSC, but immediately thereafter stated that it only

remains binding, unless another boundary is justified by special circumstances255.

Following these developments in international boundary delimitation, SOMERS256 concluded that for

delimiting continental shelf area, whether based on art. 6 CSC or international customary law, in the

absence of agreement, achieving an equitable delimitation prevails on an automatic applicability of

any delimitation principle, including equidistance. Because of art 6 CSC, the equidistance principle

cannot be put aside, but circumstances can justify the use of other delimitation principles.

Nevertheless, BOWETT stated that, between CSC State parties as well as between non-State parties

the equidistance principle is used, although sometimes in a modified way257. WEIL described this as

follows, “according to reliable testimony, governments always begin the negotiation of a maritime

delimitation by considering an equidistance line, while at liberty subsequently to modify it”. He

immediately added that “there is no reason why this practice should not be taken into account in the

development of the customary law governing the delimitation process” 258.

With the new law of the sea (the LOSC) the international community had a (new) chance of

(re)formulating an accepted principle on continental shelf delimitation. And especially for that cause,

the negotiations on the subject were everything but simple. One the one hand, there were States

sanctifying the equidistance principle, on the other hand there were States arguing a complete

rejection of the equidistance method in favor of equitable principles. Quite logically, States

advocated the vision that benefited them the most. The negotiating States to UNCLOS III had a lot of

trouble achieving agreement on this issue. One attempt to reach acceptance were the thorough

discussions of it in Negotiating Group 7 under the chairmanship of Mr. MANNER, of Finland, that dealt

with the definition of maritime boundaries between adjacent and opposite States259. Document

NG7/39, that contained the report of the Chairman MANNER, stated that “(…) none of the proposals

for revision of the informal composite negotiating text offered a substantially improved prospect of a

254

The Court placed the equidistance line between the line that would have been generated if the Scilly Islands were to be taken into account and the line for when they were not to be taken into account, see further. 255



BOWETT, D.W., The legal Regime of Islands in International Law, New York, Oceana Publications, 1979, 157-160 and 170-183. 258

WEIL, P, Perspectives du droit de la délimitation maritime, Paris, Pedonne, 1988, 154; NELSON, L.D.M., “The Roles of Equity in the Delimitation of Maritime Boundaries”, 84 AJIL 1990, 844. 259

Report of the Chairman of the Second Committee, 27 April 1979, UN Doc., A/CONF.62/L.38, par. 3.

74

consensus”260. There was only a “widespread and substantial support” for the draft article of the

Chairman, Mr. KOH at the 10th Session at August 1981: delimitation is to be done by agreement on

the basis of International Law, in order to achieve an equitable solution261.

The latter was endorsed in article 83 LOSC:

1. The delimitation of the continental shelf between States with opposite or adjacent coasts

shall be effected by agreement on the basis of international law, as referred to in Article 38 of

the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned

shall resort to the procedures provided for in Part XV.

Boundary delimitation still has to be the subject of an agreement, reached by the parties concerned.

This first rule seems to be sanctified throughout the years. The new law of the sea, however, did not

postpone any delimitation principle. Contrary to the CSC, it does not even mention a delimitation

principle. It merely states that parties are to achieve an equitable delimitation, leaving every possible

delimitation principle open for use, including equidistance, but not prevailing equidistance as the

principal delimitation principle. Ironically, that leads back to square one, for equitable delimitation

anteceded the 1958 equidistance-special circumstances rule262.

International jurisprudence before the ICJ and Arbitral Sentences has affirmed the principle of

equitable delimitation263. A brief review follows264. In the first case that was brought to the ICJ’s

260

Report of the Chairman of the Second Committee, 27 April 1979, UN Doc., A/CONF.62/L.38, par. 7. 261


The ‘equitable delimitation’ was first postponed in the Truman Proclamation of 28 September 1945 were the boundary delimitation took place in accordance with equitable principles (U.N. Legislative Series, Law and Regulations on the Regime of the High seas, Vol. 1, 1951, 38). The American point of view was rapidly followed by various littoral states of the Arabian Gulf region (The Proclamations of the Sultan of Bahrain of 5 June 1949; The Proclamations of the Sheik of Qatar of 8 June 1949; The Proclamations of the Sheik of Kuwait of 12 June 1949; The Proclamations of the Ruler of Abu Dhabi of 10 June 1949; … ) and also by Nicaragua (Nicaragua Declaration of 28 May 1949). Gaining wide acceptance, the 1958 CSC would have endorsed this principle, taking into account the deliberations in the ILC, if it was not for the 1953 Committee of Experts that recommended the equidistance method. Rapporteur FRANÇOIS suggested even the wording ‘equidistance as a general rule’. Because of objection the latter had to be discussed and voted. The Commission adopted, by a majority, the equidistance principle. (for an extensive review on the historical development of the concept, see JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 316-324 and footnotes 337 to 346 on page 503. 263

ICJ, 24 February 1982, Case concerning the Continental Shelf, Tunisia/Libya, ICJ Reports 1982, 17-323; ICJ, 12 October 1984, Gulf of Maine case, Canada/United States of America, ICJ Reports 1984, 246-390; ICJ, 3 June 1985, Case concerning the Continental Shelf, Libya/Malta, ICJ Reports 1985, 12-187; Arbitral Sentence for the delimitation of the single maritime boundary between Guinea and Guinea-Bissau, 14 February 1985, R.G.D.I.P. 1985, 484; Tribunal of Arbitration for the delimitation of maritime areas between Canada and France: Decision in case concerning delimitation of maritime areas (St. Pierre and Miquelon), 10 June 1992, I.L.M. 1992, 1145-

75

attention, Tunisia/Libya 1982, the Court stated that equitable principles are the primary grounds for

delimitation. It therefore stepped off of the equidistance trail. The outcome of the Court was,

however, contested. Not in the least through the dissenting opinions265 stating that the equitable

delimitation prejudiced the precision and the predictability from delimitation law, something that

was certainly not the case with the equidistance line. In its Gulf of Maine case 1984, the Court did not

use the equidistance line. On the contrary, it sought for the most equitable criteria to be used. After

drawing the delimitation line in regard of those criteria it finalized it by controlling whether the

outcome was an equitable result. In the Lybia/Malta Case 1984, the ICJ even rejected the existence

of a rule that the equidistance method was to be used. Delimitation is to be effected by using

equitable principles in all relevant circumstances; this will generate an equitable result. One of those

principles is that equity does not necessarily imply equality. An Arbitral Tribunal followed these

events by stating in its Arbitral Sentence on the Case between Guinea and Guinea-Bissau 1985 that

the equidistance line did not enjoy priority over other delimitation principles. In Canada/France

1992, the Tribunal stated to consider the case on the basis of equity and it confirmed that the

solution must always be equitable. In the Greenland/Jan Mayen Case 1993, the ICJ used the

equidistance line for the delimitation of the maritime zones, but, immediately corrected this line due

to special circumstances. The Court reaffirmed that the delimitation was to provide an equitable

solution.

SOMERS concluded that there is an institutionalized vagueness replacing the preferential treatment of

the equidistance principle266. IGIEHON added that each case is decided on, on what the Court –on that

moment- thought was good and equitable267. However, through these inconsistent and

unpredictable outcomes, a new principle is being applied. The jurisprudence coming from the ICJ and

Arbitral sentences use the equitable principles/relevant circumstances method, for the Court will

now start with an equidistance line, removing it, due to relevant circumstances, in order to achieve

an equitable result268.

In more recent cases before the ICJ, the Court provided solutions based on this newly installed

equitable principles/relevant circumstances-rule. This was the case for Qatar/Bahrain 2001 and

1219; ICJ, 11 September 1992, Case concerning the land, island and maritime frontier dispute, El Salvador/Honduras: Nicaragua intervening, ICJ Reports 1992, 350-761; ICJ, June 14, 1993, Maritime delimitation in the area between Greenland and Jan Mayen, Denmark/Norway, ICJ Reports 1993, 38-314. 264

This review will be mainly based on SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte

uitgave, Mechelen, Kluwer, 2010, 164-177 and IGIEHON, M.O., “Present international law on delimitation of the continental shelf”, I.E.L.T.R.2006, 8/9, 208-215. 265

Judges GROS, ODA, EVENSEN, SCHWEBEL. 266


IGIEHON, M.O., “Present international law on delimitation of the continental shelf”, I.E.L.T.R.2006, 8/9, 214. 268

SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte uitgave, Mechelen, Kluwer, 2010, 174.

76

Cameroon/Nigeria 2002. The ICJ reaffirmed that this method was still the applicable rule in the

Nicaragua/Honduras Case 2007, but that it was not to be applied in the present case. Application

would render the resolution of the delimitation issue an inequitable one. The principle was last

applied in the Black Sea Case 2009 by the ICJ.

Thus, the final solution to the latter is a three-phase269 analysis for determining the boundary

delimitation line. This three-phase method is already applied (en thus affirmed) in several cases of

State practice, making it valuable as the contemporary delimitation method to be applied. The three

steps are the following270: the Court will first “establish a provisional equidistance line based on

methods that are geometrically objective” and also “appropriate for the geography of the area in

which the delimitation is to take place”. Secondly, it will then consider “whether there are factors

calling for the adjustment or shifting of the provisional equidistance line in order to achieve an

equitable result”. Thirdly, it must verify that “the provisional equidistance line, adjusted or not, does

not lead to an inequitable result by reason of any marked disproportion between the ratio of the

respective coastal lengths and the ratio between the relevant maritime area of each State”.

3.1.2. BOUNDARY DELIMITATION IN THE TERRITORIAL SEA

When the sea area between two or more adjacent or opposite States is insufficient for providing all

of them an equal part of territorial sea, States can negotiate in order to achieve an agreement,

granting them each an equitable part of the sea territory. But also for the territorial sea, a

delimitation principle was needed for situations where States were unable to reach such an

agreement. This was taken care of in article 12 TSC:

1.Where the coasts of two States are opposite or adjacent to each other, neither of the two

States is entitled, failing agreement between them to the contrary, to extend its territorial sea

beyond the median line every point of which is equidistant from the nearest points on the

baselines from which the breadth of the territorial seas of each of the two States is measured.

The provisions of this paragraph shall not apply, however, where it is necessary by reason of

historic title or other special circumstances to delimit the territorial seas of the two States in a

way which is at variance with this provision.

269

There is however an author that speaks of a two-step method (this is mentioned and explained further on while highlighting the semi-enclave solution in the Nicaragua/Honduras Case). See page 98 and footnote 416. 270

ICJ, 3 February 2009, Case concerning Maritime Delimitation in the Black Sea. Judgment, Romania/Ukraine I.C.J. Reports 2009, 101, par. 116-122; LATHROP, C. G., “Maritime delimitation in the Black Sea (Romania v Ukraine). At http://www.icj-cij.org. International Court of Justice, February 3, 2009”, 103 AJIL 2009, 546.

77

Failing agreement, the delimitation of the territorial sea, was also to be settled by using the

equidistance principle. Article 12 TSC shows that the equidistance rule, for territorial sea as well,

could be put aside for delimitation purposes, where it is necessary “by reason of historic title or other

special circumstances”271. Apart from some stylistic changes, article 15 LOSC did not bring along a

differed procedure for (opposite or adjacent) boundary delimitation in the territorial sea. There was

not much discussion about the territorial sea delimitation. ARNAUT stated that it “is governed by the

equidistance and the special circumstances rule which is embodied in the United Nations Convention

on the Law of the Sea (LOSC), and has been accepted without much controversy since the first

territorial sea convention”272.

3.1.3. BOUNDARY DELIMITATION IN THE CONTIGUOUS ZONE

Since the contiguous zone was installed as a supplementary zone for the territorial sea, it mostly

walked the same line. That was not different for opposite or adjacent boundary delimitation. Article

24 (3) of the TSC did not differ from the first sentence of art 12 (1) TSC:

3.Where the coasts of two States are opposite or adjacent to each other, neither of the two

States is entitled, failing agreement between them to the contrary, to extend its contiguous

zone beyond the median line every point of which is equidistant from the nearest points on

the baselines from which the breadth of the territorial seas of the two States is measured.

Contiguous zone delimitation was subject to the equidistance rule. Because of its supplementary

character, the assumption was that neither historic title nor special circumstances could be at stake.

Notwithstanding its supplementary character, the contiguous zone did not walk the line of the

territorial sea at the LOSC. Delimitation of contiguous zones was not even mentioned in the new

convention. Whatever the exact reason may be is not clear. There are two possible reasons. First,

since the contiguous zone is part of the EEZ, the delimitation rules of the EEZ should be applied273.

Second, the competences to be exercised in contiguous zone area could be practiced by several

States in a same maritime area, excluding the need for delimitation274.

3.1.4. BOUNDARY DELIMITATION CONCERNING THE EXCLUSIVE ECONOMIC ZONE

Opposite or adjacent State delimitation is mentioned in article 74 of the LOSC, stating:

271

ARNAUT, D, “Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation Between Croatia and Slovenia, 8 Ocean and Coastal L.J. 2002, 30. 272

ARNAUT, D, “Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation Between Croatia and Slovenia, 8 Ocean and Coastal L.J. 2002, 22. 273


X, De Derde Zeerechtconferentie van de Verenigde Naties, (Ned) Ministerie van Buitenlandse Zaken, Den Haag, 1984, 83; SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte uitgave, Mechelen, Kluwer, 2010, 109.

78

1. The delimitation of the exclusive economic zone between States with opposite or adjacent

coasts shall be effected by agreement on the basis of international law, as referred to in

Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable

solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned

shall resort to the procedures provided for in Part XV.

These provisions are literally the same as the continental shelf provisions of art. 83. Hence,

agreement needs to be reached in order to delimit the area. In case States do not reach agreement,

the dispute settlement body of Part XV of LOSC is applicable. Again, no delimitation principle is

mentioned, let alone prevailed. There is merely a reference to achieve an equitable solution.

3.2. ISLANDS IN INTERSTATE MARITIME BOUNDARY DELIMITATION

“[T]he territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of

an island are determined in accordance with the provisions of this Convention applicable to other land

territory”. Article 121 (2) LOSC is the basic ground for the equal treatment of islands and other

mainland. It is thus conventional, if not customary, that an island is to be seen and treated as equal

to mainland. By virtue of that, delimitation between them is to allot them both with equal shares.

This is the principle relating to islands.

As stated earlier, although not anymore the sole solution for boundary delimitation, State practice

shows the willingness of States to keep on using the equidistance-special circumstances rule. One of

the most important and occurring ‘special circumstances’ are, without a doubt, the presence of

islands275 within the marine area to be delimitated. Nevertheless, State practice276 and many

authors277 have shown that using the equidistance line, in cases where there are islands involved, can

lead to inequitable delimitation. When giving islands full effect for the purpose of delimitation,

inequitable distortions can take place. This is the sentiment in State practice relating to islands.

According to some scholar works, these points of view constitute a “major and irreconcilable

contradiction”: “On the one hand, the international treaties and the cases uniformly recognize the

equal status and rights of all coastal territory, including that of islands. On the other hand, we find in

some cases what appears to be the short-changing of minor or small islands through lesser effect,

275

CHURCHILL, R.R. and LOWE, A.V., The Law of the Sea. Third edition, Manchester, Manchester University Press, 1999, 154. 276

See further. 277

CHURCHILL and LOWE, BOWETT, JAYEWARDENE, SOMERS, … (this can be found in books and articles from the respective authors which are already mentioned earlier).

79

movement back or enclaving”278. Thus, whilst islands are totally equal to a continental mainland for

the purposes of delimitation, they are not treated equally because of the inequitable effect they

might generate. An explanation for this different treatment of islands can be found in their

location279.

There are various (geographical) situations in which this full effect would generate inequity based on

the location: islands lying at the shore of an opposite280 or adjacent281 State, islands located at the

equidistance line which would normally be applied282, delimitation between an island283 or an island

State284 and a State or island that is way larger, islands (subject to a greater landmass) located far

from the mainland285,…. Obviously, this brings along some major difficulties. KOZYRIS286 raised lots of

questions to this extent; What is an island? Is there a difference between Malta, Greenland, Australia

in defining an island? Should all islands be diminished, or only some? Is it important whether an

island is politically independent? The major question appears to be: are some islands more equal

than others?

In order to cope with these so-called inequities, several remedies are provided. These remedies vary

from a partial effect to no effect at all, or to the (semi-)enclave solution. The following outset will

provide an examination of the applicability of these remedies in the Cases decided upon by the ICJ287,

the PCA288 and some other Arbitral Tribunals289.

Nevertheless, equidistance is no longer the only method to be applied. There are other methods to

be applied as well, eg. the use of an azimuth, latitude parallels or rhumb lines290. This has an effect on

278

KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 373-374. 279

“For lack of a better explanation” according to KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 375. 280

Eg. the Bahraini Hawar Island Group at the Qatari coast. 281

Eg. the South Korean Yeonpyeong Island before the coast of North Korea. 282

Eg. the Islands of Partelleria, Lampedusa and Linosa between Italy and Tunisia 283

Eg. delimitation between Greenland (Denmark) and Jan Mayen (Norway). 284

Eg. delimitation between Malta and Libya (way larger in this case comes to an 8:1 ratio). 285

Eg. the French Islands of St. Pierre and Miquelon under the island of New Foundland (Canada). 286

KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 374. 287

Tunisia/Libya, Libya/Malta, Gulf of Maine, Greenland/Jan Mayen, Qatar v. Bahrain, Cameroon/Nigeria, Nicaragua/Honduras and Ukraine/Romania. 288

Eritrea/Yemen and Bangladesh/India. 289

Only if important enough to be mentioned: Anglo-French Arbitration and French-Canadian Arbitration. 290

Azimuth: Angle measured clockwise between north and the object being sighted; Latitude parallels: A circle on the surface of the earth parallel to the plane of the equator and connecting all points of equal latitude; Rhumb Lines: A line on the earth's surface making the same angle with all meridians. A straight line on a Mercator projection chart, and the standard way of laying down a ship’s course. Definitions from NIKAS, R.J.,

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the importance of the presence of islands. In most cases “where there is no reliance on equidistance,

the relevance of islands diminishes”291. Eg. the Brazil-France (French Guiana) Agreement uses an

azimuth292. The States involved can also choose not to settle the latter and install joint development

zones (and other arrangements)293, eg. the Japan-Korea Agreement294.

3.2.1. INEQUITY AND FULL EFFECT

As stated above, inequity can occur in different geographical situations. The inequity is mainly the

result of granting full effect to islands when situated in such a geographical situation. It has become a

principle of general international law that no full effect can be granted to islands295. Islands should

have limited capacity to affect a maritime boundary296 when this maritime area is to be divided

between an island and a continental State.

Nevertheless, there are situations granting a full effect to islands - as should be the case according to

codified customary international law - and treating them equally to greater mainland in maritime

boundary delimitation.

Interstate maritime boundary delimitation is primarily to be achieved by bilateral (or trilateral, …)

agreements amongst nations. There are thus many examples of such boundary agreements applying

the full effect granted to islands. BOWETT clarified that “the islands accorded full entitlement are both

independent States and dependant territories”297. Full effect to islands towards mainland states:

“Where The Street Meets The Sea: A Nautical Glossary For Maritime Lawyers” 9 U.S.F. Mar. L.J. 1996, 247, 267 and 269. 291

BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations” in CHARNEY, J.I. & ALEXANDER, L.M., International Maritime Boundaries. Volume I, ASIL, Martinus Nijhoff Publishers, 1993, 134. 292

Agreement Between the Government of Brazil and the Government of France Relating to the Maritime Delimitation Between Brazil and French Guiana; 30 January 1981, 25 ILM, 1986, 367. 293

JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 349-363; BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations” in CHARNEY, J.I. & ALEXANDER, L.M., International Maritime

Boundaries. Volume I, ASIL, Martinus Nijhoff Publishers, 1993, 131-151. 294

Agreement between Japan and the Republic of Korea concerning joint development of the southern part of the continental shelf adjacent to the two countries, Seoel, 30 January 1974, U.N.T.S., vol. 1225, I-19778; Limits

in the Seas, No 75. 295

CHARNEY, J.I., “Central East Asian Maritime Boundaries and the Law of the Sea”, 89 AJIL 1995, 731. 296 VAN DYKE, J., “The Maritime boundary between North & South Korea in the Yellow (West) Sea,” 38 North,

U.S.-Korea Institute Johns Hopkins University School of Advanced International Studies, July 29, 2010, www.38north.org/?p=1232. 297

BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitation” in CHARNEY, J.I. and ALEXANDER, L.M., International Maritime Boundaries vol. 1, Dordrecht, Nijhoff Publishers, 1993, 134.

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tripartite agreement between India, Sri Lanka and the Maldives298; French (Corsica) Agreement with

Monaco299. Agreements on full effect concerning island to island delimitation: Australia-France

Agreement concerning Kerguelen Island and the Heard and Mc Donald Island300; Italy-Spain

Agreement over Sardinia and Menorca301.

The Korean Island Dispute: exemplary situation?

(a) The dispute

A full effect, although disputed, occurred in the delimitation between the Republic of Korea and the

Democratic People’s Republic of Korea. In 1953, after a civil war, a delimitation line (the Northern

Limit Line, shorted as NLL) was installed by the UN, in which the equidistance line was placed

between the DPRK’s coast line and the ROK’s Islands lying offshore thereof. Regardless of this line,

the DPRK installed its own delimitation line in 1999, arguing that the NLL was unilaterally drawn by

the UN, leaded by ROK’s ally, the USA. Obviously, this NLL created an inequity towards DPRK. VAN

DYKE302 stated that “if the two Koreas were to be regarded as independent countries (rather than as

two halves of a temporarily divided country), then this Line would not be viewed as a legitimate

maritime boundary under the “equitable principles” that govern boundaries, because it denies North

Korea access to adjacent sea areas”.

298

Agreement between Sri Lanka, India and the Maldives on the Determination of Trijunction Point between the three Countries in the Gulf of Mannar, Gulf of Mannar, 31 July 1976, UN Legislation Relating to the Law of

the Sea, ST/LEG/SER.B/19, 1980, 415. 299

Convention on Maritime Delimitation Agreement between the Government of His Serene Highness the Prince of Monaco and the Government of the French Republic, Paris, 16 February 1984, U.N.T.S., vol. 1411, I-23631; 9 LOS Bull. 1987, 58. 300

Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, Melbourne, 4 January 1982, U.N.T.S., vol. 1329, I-22302. 301

Agreement between Italy and Spain Relating to the Delimitation of the Continental Shelf between the Two Countries, Madrid, 19 February 1974, Limits in the Seas, No 90. 302

VAN DYKE, J., “The Maritime boundary between North & South Korea in the Yellow (West) Sea,” 38 North, U.S.-Korea Institute Johns Hopkins University School of Advanced International Studies, July 29, 2010, www.38north.org/?p=1232.

82

According to the ROK and the NLL, the islands have a territorial sea of their own. The delimitation

line was drawn between those territorial sea waters and the territorial sea of DPRK. According to the

DPRK and its own delimitation line, the islands (north of that line) are looked upon as South Korean

but all the waters surrounding them are North Korean. When looking at the NLL as the delimitation

line to be applied, this is an example of the full effect rule. Hence, because of the disputed character

of the NLL, it is not totally correct to put in front as an example of full effect, for DPRK uses another

boundary line.

(b) Commentary

This difficult situation needs a solution, which would ideologically be an agreement between the two

Korea’s. Ideologically, because the two States are still in a state of war (since the Armistice

Agreement did not provide a definitive solution) and almost do not communicate.

According to the principles of international law, the following would be a plausible solution. Obvious,

granting both sights their claims is not possible, it is however possible to take them both into

account. Therefore, the enclave solution303 for these islands would solve most of the problems. By

doing so, the DPRK is granted its 12 Nm territorial sea and the ROK still has sovereignty over the

territorial waters surrounding its (geo-strategically important) Islands. There would still be an

agreement needed between the two Korea’s on the limit to the Islands’ territorial sea. The most

plausible solution for the waters seawards from the territorial seas is the institution of a joint

fishing/development zone in which both States have equal fishing rights304. This solution might even

force a breakthrough in their tensed bilateral relations, for they would be expected to take

appropriate joint measures to safeguard their mutual interests. It could also stabilize the region for

their would be no more, so called illegal, crossing each other’s boundary lines, even making their

303

See further, 3.1.1.3. Enclave solutions. 304

A similar solution can be found in the waters between Korea and Japan since 1965, KIM, S.P., Maritime

Delimitation and Interim Arrangements in North East Asia in Publications on Ocean Development, Martinus Nijhoff Publishers, Leiden, 2004, 249-250.

Figure 14: Map showing the

effect of the islands on the NLL

and the DPRK’s maritime

boundary line 1999.

[VAN DYKE, J., “The Maritime

boundary between North & South

Korea in the Yellow (West) Sea,” 38

North,

www.38north.org/?p=1232.]

83

boundary lines unnecessary. The Republic of Korea had already proposed this solution, facing North-

Korean reluctance305, leaving the latter still unresolved.

Case concerning Maritime Delimitation and Territorial Questions 2001 (Qatar/Bahrain)

The delimitation issue between the Arab States of Qatar and Bahrain was extremely hampered by

the presence of lots of islands, islets and low-tide elevations surrounding them. On above, this case is

an interesting one, for as Bahrain is an island-State itself, surrounded by other features. This was

even more hampered because both States were not a party to the 1958 TSC and only Bahrain was a

party to the LOSC, at the time the case was pending306. Therefore, the ICJ only applied conventional

law to the maritime delimitation307.

(a) Decision of the Court

One of the features at stake in this case was the Hawar Island group. Without a doubt, this group of

Islands seriously impeded the delimitation of the area. Located in the vicinity of the Hawars, is the

Janan Island, formed by two insular features: Janan and Hadd Janan. The parties agreed for Janan to

be an island and Hadd Janan to be a low-tide elevation. However, the Court did not spend special

consideration to this low-tide elevation because it declared to treat them as one island: “In any

event, since, for Qatar, Hadd Janan is "a small area of sandy bottom below water at low tide”, and,

for Bahrain, forms only one island with Janan at low tide, the Court considers itself entitled to treat

Janan and Hadd Janan as one island”308. Bahrain claimed the Janan Island to be part of the Hawar

group309. Both claimed sovereignty over the islands. Their location was the starting point for the

somewhat troublesome position. The Island group is “both geographically Qatari” and “wholly

305

The introduction of a joint fishing zone was already introduced by Moon Jae-in (Chief of Staff of the President of the Republic of Korea). On September 12, 2007, he announced to introduce this on the Inter-Korean Summit Meeting at Pyongyang, Korea Joongang Daily, http://joongangdaily.joins.com/article/view.asp?aid=2880502. Unfortunately, North Korea did not agree on the installation of a joint fishing zone, because of the existing NLL, The Hankyoreh, 29 November 2007, http://english.hani.co.kr/arti/english_edition/e_national/253571.html. 306

Bahrain ratified the Convention on May 30, 1985; Qatar only ratified it after the judgment, on December 9, 2002, http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=UNTSONLINE&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en. 307

LLANOS, H.I., “Low-Tide Elevations: Reassessing their impact on Maritime Delimitation”, 14 Pace Int’l L. Rev. 2002, 268, footnote 75. 308

ICJ, 16 March 2001, Case concerning Maritime Delimitation and Territorial Questions between Qatar and

Bahrain, Merits, Judgment, Qatar/Bahrain, ICJ Reports 2001, 86 and 150. 309 The Bahrain-Qatar Border Dispute: The World Court Decision: Part 2, XIII The International Estimate, No. 7,

2001 at http://www.theestimate.com/public/040601.html.

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detached geographically from the State of Bahrain”310. Both States argued that Hawar and Janan fell

under its sovereignty. Whereas the Qatari based their Hawar claim on the location of the island

group, forming part of its coastline, the Bahraini claim was based on the continuously and

uninterrupted exercising of jurisdiction. The Court found the Hawar Island group to be under Bahraini

sovereignty and the Janan Island under Qatari sovereignty311. After declaring the sovereignty, the

Court passed on to the delimitation issues. Concerning these islands, the Court delivered the

following decision: “Taking account of all of the foregoing, the Court decides that (…) the boundary

will follow a north-easterly direction, then immediately turn in an easterly direction, after which it will

pass between Jazirat Hawar and Janan; it will subsequently turn to the north and pass between the

Hawar Islands and the Qatar peninsula and continue in a northerly direction” (par. 222). The solution

was thus one of a full effect granted to this Bahraini island group. Janan “was not considered to be a

special circumstance and was given full effect”312.

310

Judge TORRES BERNÁRDEZ, Dissenting Opinion, 442, par. 538 in ICJ, 16 March 2001, Case concerning Maritime

Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, Qatar/Bahrain, ICJ

Reports 2001. 311


Bahrain, Merits, Judgment, ICJ Reports 2001: Hawar : 70, par. 99 (Qatar), 71, par. 101 (Bahrain) and 85, par. 147 (Court); Janan: 91, par. 165. 312

SHI, J., “The Wang Tieya Lecture in Public International Law: Maritime Delimitation in the Jurisprudence of the International Court of Justice”, 9 Ch. J. Int’l L. 2010, 279, par. 32 .

Figure 15: Map showing the Court’s

Judgment in the Qatar/Bahrain Case,

drawing the delimitation line between

the Hawar Islands group and Qatar.

[http://www.catnaps.org/islamic/islamgrap

hics/hawar.png]

85

(b) Commentary

Clearly, this outcome was creative of an extreme distorting inequitable result. The median line

running between the Hawars and Qatar does not leave a territorial sea for Qatar. At the time of the

judgment, dissenting Judge TORRES BERNÁRDEZ (par. 538) already thought it would have been better to

enclave the Hawar Islands (as the Arbitral Tribunal did for the Channel Islands), for this would have

avoided such an extraordinary distortion. KOLB as well, believed the enclave solution would have

avoided this situation313. Following maritime delimitation law and State practice, we can agree with

the enclave solution. This would have, indeed, brought along a more equitable result than drawing

the delimitation boundary between the Hawars and Qatar.

3.2.2. ABATING INEQUITY

3.2.2.1. No effect Rule

Islands can be totally ignored for delimitation purposes. This in one way of abating inequity. This rule

does not say anything about the islands’ position, it merely ignores it for the drawing of the

equidistance line. The equidistance method is applied as if there were no island located there.

According to JAYEWARDENE314, this rule can be applicable in several situations: off lying islands, islands

in the median zone, reciprocating islands, detached islands and disputed islands.

313

KOLB, R., Case Law on Equitable Maritime Delimitation / Jurisprudence sur les délimitations maritimes selon

l'équité. Digest and Commentaries / Répertoire et commentares in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 2003, 561. 314

JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 354-355.

Figure 16: Simplified drawing of the

equidistance line between opposite or

adjacent states applying the no effect

rule towards the present island(s).


86

State practice, existing of agreements, is also available for the no effect rule. BOWETT315 remarks that

ignoring an island for delimitation purposes is mostly the case when the sovereignty over the island is

disputed as well, the reason for which he describes as follows: “[t]his may be the ‘price’ one party has

to pay for having its sovereignty recognized”. This was the case eg. in the India-Sri Lanka

Agreement316. Nevertheless, there is State practice in which States agree on ignoring a non-disputed

island for delimitation purposes. Eg. the Spanish-French Conventions concerning the Bay of Biscay317.

Continental Shelf Case 1982 (Tunisia/Libya)

(a) The Court’s decision

In the present case, the ICJ had to evaluate the presence of islands as well as low-tide elevations in

interstate boundary delimitation (of the continental shelf). The features involved were the islands of

Djerba and Kerkennah and their low-tide elevations. Tunisia318 argued that the delimitation was to

“take account of all relevant circumstances which characterize the area”, in particular, “the fact that

the eastern coastal front of Tunisia is marked by the presence of a body of islands, islets and low-tide

elevations which form a constituent part of the Tunisian littoral”, thus, in other words, the Islands are

relevant circumstances to the Tunisian Republic. Obviously, Libya contested to that point of view. It

advocated that the Island of Djerba was not to be taken account of and that the Kerkennah Island

was to be excluded. Thus, it was up to the Court to describe their effect on this delimitation issue.

The Court did not give effect to the Djerba Island, as if Djerba were a promontory319. For the

conclusions on Kerkennah, see further.

(b) Commentary

The Djerba Island was not taken into account for the drawing of the maritime boundary delimitation

line. We find this to be a strange solution. An island of that size and importance, and located so

closely to the mainland could hardly be ignored. Following the delimitation principles (set out above),

this island was to push the baseline further seawards. But it did not, on the contrary, it was not to be

315

BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitation” in CHARNEY, J.I. and ALEXANDER, L.M., International Maritime Boundaries vol. 1, Dordrecht, Nijhoff Publishers, 1993, 136-137. 316

Agreement between India and Sri Lanka on the Boundary in Historic Waters between the Two Countries and Related Matters, Colombo/New Delphi, 26 June 1974, U.N.T.S., vol. 1049, I-15802; Limits in the Seas, No 66. 317

Convention between France and Spain on delimitation of the territorial sea and contiguous zone in the Bay of Biscay and Convention between the Government of the French and Republic and the Government of the Spanish State on the delimitation of the continental shelves of the two states in the Bay of Biscay The Government of the French Republic and The Government of the Spanish State, Paris, 29 January 1974, National Legislative Series, UN Doc. No. ST/LEG/SER.B19, 1980, 395 and 445; Limits in the Seas, No 83. 318

ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 26, 4 (a). 319

KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 382.

87

taken into account. According to DUNDUA320, the reason for that is that it “had no influence on the

delimitation line because the conduct of parties indicated a result which obviated the need for it to be

considered as a relevant circumstance”. It is remarkable to see the difference in the decisions of the

Court in different cases. The ICJ found an island, as Djerba, located so closely to the mainland to have

no effect, whereas it found the Hawar Island in the Qatar/Bahrain Case, located extremely close to

the opposite State, to have a full effect. We must admit that the comparison is not completely

justified because Tunisia/Libya is a case of adjacency and Qatar/Bahrain one of oppositeness.

Nevertheless, we find both solutions to be creative of more inequity than the islands’ positions them

self.

Award of the Arbitral Tribunal-Maritime Delimitation 1998-1999 (Eritrea/Yemen)

The present Award had to determine the effect of several insular features between the parties in

order to achieve a delimitation solution to the latter. In the scope of the no effect rule, the Jabal al-

Tayr Island and the al-Zubayr Island group must be mentioned.

(a) Decision of the Tribunal

In this area to be delimitated there were islands running along the respective coastlines. There were

Jabal al-Tayr and al-Zubayr on the Yemeni side and the Dahlak’s on the Eritrean Side. Because the

Dahlak Islands were to be used as base points for Eritrea – the Tribunal321 recognized this by referring

to them as “a typical example of a group of islands that forms an integral part of the general coastal

configurations”. The Eritrean coast was thus formed by the outer Dahlak’s low-water line322 -, Yemen

wanted to use its islands likewise. It therefore suggested323 that “these islands should be used as base

points because they were as important, or even more important, than the very small uninhabited

outer islets of the Dahlak group”. Because both island groups would then be used in the drawing of

the baseline system, Yemen argued them to balance each other; “In this way, said Yemen, there

would be a “balance” in the treatment of island base points on the west and the east coasts, arguing

that in this northern area “each Party possesses islands of a comparable size, producing similar

320

DUNDUA, N., “Delimitation of maritime boundaries between adjacent states”, New York, United Nations – The Nippon Foundation Fellow, 2006-2007, 61. 321 PCA, 17 December 1999, Second Stage of the Proceedings between Eritrea and Yemen (Maritime

Delimitation), Eritrea/Yemen, UNRIAA, Vol. XXII, 43, par. 139. 322

KWIATKOWSKA, B., “The Eritrea-Yemen Arbitration: Landmark progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation”, 32 Ocean Devel. and Int’l. L. 2001, 9. 323

PCA, 17 December 1999, Second Stage of the Proceedings between Eritrea and Yemen (Maritime

Delimitation), Eritrea/Yemen, UNRIAA, Vol. XXII, 4, par. 15.

88

coastal facades lying at similar distances from their respective mainlands” (par. 15). The Tribunal,

however, did not consent with the Yemeni argumentation and stated (par. 147) that these islands do

not constitute a part of Yemen’s mainland coast. Furthermore, these islands should have no effect on

the median line. The reason for which these islands were not to be taken into account, is found in the

fact that they were “far out to sea, arid and inhospitable”324.

(b) Commentary

It was the Yemeni attempt to get these islands into their baseline, so that the median line would be

drawn between the Eritrean coastline and these islands, by virtue of which, Yemen would have

succeeded in extending its jurisdiction over the interstate waters. By refusing the applicability of

them for the baseline system, the median line was to be drawn between the respective coastlines,

taking the Dahlak’s into account as the Eritrean coastline. Clearly that would produce a more

equitable result for the both, granting them with a more or less equal share of the interstate waters.

Since many of the features involved in this case were merely of interest for extending the baseline

system, they affected the baseline and by virtue of that they were able to push the outer limits of the

maritime zones a bit more seawards while extending the internal waters. Because of the distant

location of the Yemeni Islands from the mainland, an extension of their baseline was found to be

most disproportionate. They are, nevertheless, islands. And, islands are able to generate maritime

areas of their own. Wouldn’t it be better for the Yemeni to claim a direct effect to these islands

(enclaving them, a full or half effect towards Eritrea instead of extending the baseline)? The question

is rather whether this claim could have succeeded. Given the inherent characteristics of the islands

and the extreme proximity of the opposite coastlines towards each other, it is most likely that the

Tribunal would not have granted the islands any effect. Yemen must have foreseen this, thus it tried

to use them otherwise. However, this attempt seemed to fail as well.



In this case, the ICJ had to determine whether Qit’at Jaradah325, located within the territorial sea of

both States, was an island (Bahraini vision) or a low-tide elevation (Qatari vision) and under whose

sovereignty it fell326. The Court found Qit’at Jaradah to be in line with the provision of article 121 (1)

324



For the geographic location on a chart, see further: Figure 28, page 105. 326 LAUTERPACHT, E., GREENWOOD, C. and LEE, K., “QATAR v. BAHRAIN (MERITS)”, 139 ILR 2011, 1, 3 and 4.

89

LOSC and thus being an island. A small uninhabited island, devoid of vegetation327, that is. If this

island were to be taken fully into account as a base point for the equidistant line, this would clearly

generate a massive distortion in their respective maritime zones, leaving Qatar with only a small strip

of territorial sea. Luckily, for Qatar, the Court shared that thought. It therefore stated that “if its low-

water line were to be used for determining a base point in the construction of the equidistance line,

and this line taken as the delimitation line, a disproportionate effect would be given to an

insignificant maritime feature”328.

(b) Commentary

Concluding, Qit’at Jaradah is an island, under Bahraini sovereignty. However, it had, because of the

disproportionate effect that it would generate, no impact on the delimitation line329. As will be seen

later on, in many cases in which an island is situated within another State’s maritime zones, or on the

wrong side of the equidistant line, the island is (semi-) enclaved. However, the Court did not

establish one in this case. Although the Court found it to be an island, it was not unequivocally clear

in the past. Perhaps because it was seen by the Qatari to be a low-tide elevation, that the Court was

not willing to give this – as it stated itself- insignificant maritime feature an actual effect. In fact, it

looks like the Court did not want to dissatisfy any of the parties. By rendering it the status of an

island, Bahrain got what it wanted, and by denying it any effect, Qatar could not complain about the

island-status the Court gave to Qit-at Jaradah. This is a clear example of BOWETT’s remark that this is

“the price [Bahrain] has to pay for having its sovereignty recognized”330.

Land and Maritime Boundary Case 2002 (Cameroon/Nigeria)


When the Court had to draw the delimitation line between Cameroon and Nigeria, Cameroon

impeded the examination by referring to the Bioko Island. Bioko Island is a constituting part of

Equatorial Guinea. Moreover, it is resident to the Nation’s capital. Although Bioko is part of

Equatorial Guinea and that last one was not a party to the case, the parties’ views on the island

327

SHI, J., “The Wang Tieya Lecture in Public International Law: Maritime Delimitation in the Jurisprudence of the International Court of Justice”, 9 Ch. J. Int’l L. 2010, 279, par. 32. 328

ICJ, 16 March 2001, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and

Bahrain, Merits, Judgment, Qatar/Bahrain, I.C.J. Reports 2001, 104-109, par. 219. 329

LLANOS, H.I., “Low-Tide Elevations: Reassessing their impact on Maritime Delimitation”, 14 Pace Int’l L. Rev. 2002, 269. 330

BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitation” in CHARNEY, J.I. and ALEXANDER, L.M., International Maritime Boundaries vol. 1, Dordrecht, Nijhoff Publishers, 1993, 136-137.

90

differed331. Cameroon contented that Bioko Island was to be seen as a relevant circumstance for the

purposes of delimitation; that it was to justify an adjustment of the equidistance line and that it was

not to be given a full effect for a "radical and absolute cut-off of the projection of [Cameroon's]

coastal front" must be avoided at all costs. Nigeria on the other hand contested that it was not

allowed for the Cameroonian adjusted line to refashion geography by eliminating the present island.

The fact that Bioko was part of an independent State, not a party to the case, rendered it impossible

to take it into account as a relevant circumstance. Cameroon thus postponed that Bioko Island was

not to be given effect, whereas Nigeria contested that the island could not be ignored. The Court

came to the following conclusion: “Bioko is not an island belonging to either of the two Parties. It is a

constituent part of a third State, Equatorial Guinea. North and east of Bioko the maritime rights of

Cameroon and Equatorial Guinea have not yet been determined. The part of the Cameroon coastline

beyond Debundsha Point faces Bioko. It cannot therefore be treated as facing Nigeria so as to be

relevant to the maritime delimitation between Cameroon and Nigeria”332.

(b) Commentary

Although not completely relevant to the scope of this outset, this case is nevertheless worth

mentioning. It was not up to the Court to determine which effect was to be given to Bioko Island in

the disputed interstate maritime delimitation, for it was not a part of the disputing countries.

Therefore, it was not a question of rendering it a partial or a full effect or enclaving it. The Court had

no jurisdiction on determining the effect of Bioko, for that would had to be determined between

Cameroon and Equatorial Guinea instead of between Cameroon and Nigeria333. Thus, without

granting a “no effect”, the Court had to ignore the Bioko Island in this case. Ignore it as a relevant

circumstance, not ignore its presence. The Court merely stated that it did not regard Bioko as a

relevant circumstance, justifying an adjustment of the equidistance line (par 299). The final

conclusion, to be drawn from this case for interstate maritime boundary delimitation, is that the

Court cannot take features, not belonging to the littoral States, into consideration, although they

have a distorting effect on their respective delimitation issues.

331

ICJ, 10 October 2002, Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria.

Judgment, Cameroon/Nigeria; Equatorial Guinea intervening, I.C.J. Reports 2002: 433-434, par 272-274 (Cameroon); 435-437, par. 279-280 (Nigeria). 332

ICJ, 10 October 2002, Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria.

Judgment, Cameroon/Nigeria; Equatorial Guinea intervening, I.C.J. Reports 2002, 442-443, par. 291. 333 SHI, J., “The Wang Tieya Lecture in Public International Law: Maritime Delimitation in the Jurisprudence of

the International Court of Justice”, 9 Ch. .J. Int’l L. 2010, 276-277, par. 13. An Agreement concerning Bioko Island was concluded between Equatorial Guinea and Nigeria: Treaty between the Federal Republic of Nigeria and the republic of Equatorial Guinea Concerning Their Maritime Boundary, Malabo, 23 September 2000, U.N.T.S., vol. 2205, I-39154.

91

Black Sea Case 2009 (Ukraine/Romania)


The island at stake in the present case is the Ukrainian Serpents’ Island. The Court was asked to draw

the (single) delimitation line between the littoral States. Following the respective claims on the chart,

one can notice that Ukraine favored a full effect to the Serpents’ Island, granting it with all maritime

zones (incl. EEZ and CS) and by virtue of that pushing the delimitation line further south-west. Based

on its claim, Romania, did obviously recognize a (12 Nm) territorial sea to Serpents’ Island. However,

since it is ‘incapable of sustaining human habitation or economic life of its own’, Romania argued it to

be a rock334 and therefore not entitled to an EEZ or CS335. Therefore, the Court found that Serpents’

Island “should have no effect on the delimitation in this case, other than that stemming from the role

of the 12-nautical-mile arc of its territorial sea”336.

(b) Commentary

Apart from the fact that the ICJ did not render any effect to the Serpents’ Island, this judgment has

another importance, for it was not “in keeping with the recent procedural practice of international

Courts and Tribunals”337. The difference in this case, from all the previous ones, lies within its

qualification. Islands have always been relevant circumstances influencing the delimitation line. In

334

ICJ, 3 February 2009, Case concerning Maritime Delimitation in the Black Sea. Judgment, Romania/Ukraine, I.C.J. Reports 2009, 120, par. 180. 335


ICJ, 3 February 2009, Case concerning Maritime Delimitation in the Black Sea. Judgment, Romania/Ukraine, I.C.J. Reports 2009, 123, par. 188. 337

LATHROP, C. G., “Maritime delimitation in the Black Sea (Romania v Ukraine). At http://www.icj-cij.org. International Court of Justice, February 3, 2009”, 103 AJIL 2009, 548.

Figure 17: Map (left)

showing the Ukrainian

claim (blue line) and

Romanian Claim (red line)

and the Court’s delimitation

line (purple line, right map)

[Annex maps to ICJ,

(Unofficial) Press Release

2009/9, 3 February 2009,

http://www.icj-

cij.org/docket/files/132/14985

.pdf]

92

this case, according to LATHROP338, it was removed from the delimitation calculation at an early stage

by virtue of which, the Court had reduced the importance of Serpents’ island’s potential role as a

relevant circumstance.

3.2.2.2. ‘Partial’ or ‘half’ effect Rule

Some islands may generate inequity if given a full effect to them. However, given the circumstances,

the no effect rule would also be possible to create an inequitable solution for the latter. Therefore, a

remedy in between was needed, so as not to reach inequity. Thus, in order to delimit a boundary

conflict, a new line was drawn, between the no effect rule and the full effect rule. This line was called

the half effect rule. Mostly, this is indeed a ‘half’ effect rule, for the line is then placed (exactly) in

between the full effect equidistant line and the no effect equidistant line. It is however possible for

the remedy in between to be a partial effect instead of a half effect. In that case the final equidistant

line is put in between of the other equidistant lines, but not necessarily halfway. The partial effect

can also be one of a ¼ or a ¾ ratio. According to BOWETT, it is “size [that] may affect the weight to be

given to an island” as was the case in the Greece-Italy Agreement339.

This delimitation method of islands was used for the first time in the Continental Shelf Boundary

Agreement between Saudi-Arabia and Iran of December 13, 1965340. The agreement was set up to

delimit the continental shelf between them and take account of the several islands. Concerning the

Island of Khark, a half effect was given. In an analysis341 by the U.S. Department of State, this half

effect was described as follows: “The half-effect line is that line constructed so as to divide equally the

area between (1) a line equidistant from the Saudi Arabian mainland and the island of Khark (full

effect), and (2) a line equidistant from both the mainland of Iran and Saudi Arabia: Khark (no-effect),

that is, when Khark is given full-effect it is considered to be part of the mainland, and when Khark is

338

LATHROP, C. G., “Maritime delimitation in the Black Sea (Romania v Ukraine). At http://www.icj-cij.org. International Court of Justice, February 3, 2009”, 103 AJIL 2009, 548. 339

In this Agreement the large Islands of Corfu, Kefallinia and Zakynthos were granted a full effect, whilst the Islands of Fanos and Samothrake were granted a three-quarters effect and the Strofades group was granted a half effect, Agreement between the Italian Republic and the Hellenic Republic on the Delimitation of Zones of the Continental Shelf Belonging to Each of the Two States, Athens, 24 May 1977, U.N.T.S., vol. 1275, I-21048; Limits in the Seas, No. 96. Another example is the Indonesia-Malaysian Agreement, Agreement between the Government of Malaysia and the Government of Indonesia on the delimitation of the continental shelves between the two countries, Kuala Lumpur, 27 October 1969, 9 ILM 1970, 1173; Limits in the Seas, No. 1; BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitation” in CHARNEY, J.I. and ALEXANDER, L.M., International Maritime Boundaries vol. 1, Dordrecht, Nijhoff Publishers, 1993, 139-140. 340

This agreement was never ratified and thus modified by the Agreement of 24 October 1968 (see footnote 396). 341

U.S. Department of state – Bureau of Intelligence and Research, Continental Shelf Boundary: Iran - Saudi Arabia, 24 Limits in the Sea, the Geographer, 6 July 1970, 5, (http://www.state.gov/documents/organization/61606.pdf (last visited 19 November 2010)).

93

given no-effect, it is ignored in determining the equidistant line”. However, this agreement was never

ratified, due to the Iranian vision that the solution was still creative of inequity342.

Anglo-French Arbitration 1977

The most well known outcome from this Arbitration is probably the effect granted to the British

Channel Islands. This is, however, not of the issue in this paragraph (but see further). The other

disputed issue in the Anglo-French Arbitration is that of the Scilly Isles in the Atlantic region.


The British Scilly Isles were found to be ‘special circumstances’ under article 6 CSC343 influencing the

median line that would normally be applied. Thus, it “does constitute an element of distortion which

is material enough to justify not delimiting the boundary by a strict median line”344. Therefore, the

United Kingdom suggested that the median line to be drawn was to divide the region in the following

manner. The line was to take full account of the British coastline, as projected seawards by the

Cornish peninsula and the Scilly’s on the one hand, and of the French coastline, projected seawards

by the Brittany peninsula and the Island of Ushant. France did not agree to this British attempt to

acquire 4.000 square Nm of additional continental shelf. The Court followed the French opinion that

the British projection leads further seaward to the Atlantic than the French projection does, thus

creating an inequitable median line (if following the British supposition). The Arbitration Tribunal

indicated that, for the delimitation purposes of the Scilly Isles, “the method to be applied has to

remedy the disproportionate effect of the Scilly Isles without disregarding either them (or Ushant)”345.

The final solution to the latter was an equidistance line following the half-effect rule for the Scilly

Isles.

342

The 1965 Agreement was never ratified because of the reluctance of the Iranians, who apparently felt that the Agreement did not provide an equitable division of the seabed resources; this view predominated after new mineral resources were discovered in the northern zone of the 1965 CSB, U.S. Department of state – Bureau of Intelligence and Research, Continental Shelf Boundary: Iran - Saudi Arabia, 24 Limits in the Sea, the Geographer, 6 July 1970, 4, (http://www.state.gov/documents/organization/61606.pdf (last visited 19 November 2010)). 343


Award of the Arbitration Tribunal, 30 June 1977 and 14 March 1978, Delimitation of the Continental Shelf

between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, UK/France, UNRIAA, Vol. XVIII, 114, par. 244. 345

Award of the Arbitration Tribunal, 30 June 1977 and 14 March 1978, Delimitation of the Continental Shelf

between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, UK/France, UNRIAA, Vol. XVIII, 116, par. 248.

94

(b) Commentary

The Scilly Isles provided a projection into the Atlantic that “extended the outer limits of English

baselines approximately twice as far as those of France as drawn to (…) Ushant”346. It is quite clear

that attributing the Isles with a full effect, would be disproportionate because this would attribute

too much of the waters under British sovereignty. However, ignoring the islands would also be

creative of inequity. Therefore, a partial effect was to be attributed to the Scillies. The most equitable

solution was that of a half effect. BERRY stated: “The median was thus drawn midway between the

medians that would have resulted from giving the Scillies full effect and from ignoring them

completely”347.



As stated above, the ICJ had to evaluate the presence of islands as well as low-tide elevations in


Djerba and Kerkennah and their low-tide elevations. Tunisia348 argued that they were to be regarded

as relevant circumstances. Libya found that Djerba was not to be taken account of and Kerkennah

was to be excluded. Thus, it was up to the Court to describe their effect on this delimitation issue.

346

BERRY, K.B., “Delimitation and the Anglo-French arbitration”, 6 Australian Yearbook of International Law 1974, 146. 347

BERRY, K.B., “Delimitation and the Anglo-French arbitration”, 6 Australian Yearbook of International Law 1974, 146. 348

ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 26, 4 (a).

Figure 18: The half-effect rule

in the case of the Scilly Isles.

[http://www.acls-

aatc.ca/files/english/books/4.1.j

pg]

95

In this section, the Kerkennah Island group is of the issue. In describing the Court’s findings to the

latter, we can be as short as the Judgment349 was itself, it found that “[t]o the east of this line,

however, lie the Kerkennah Islands, (…), and constituting by their size and position a circumstance

relevant for the delimitation, and to which the Court must therefore attribute some effect”, however,

a full effect “would, in the circumstances of the case, amount to giving excessive weight to the

Kerkennahs”. It therefore resolved the latter by giving a half-effect to the Kerkennah Islands.

(b) Commentary

The Court referred to the Kerkennah Islands as relevant circumstances for the marine delimitation.

LLANOS350, however, deplored that the Court, after taking them into account as relevant

circumstances, gave them only a half effect, without further explanation. Judge SCHWEBEL351 wrote, in

his dissenting opinion, that “the Court has not carried the burden of demonstrating why granting full

effect to the Kerkennahs would result in giving them ‘excessive weight’ ”. For similar reasons, Judge

GROS argued that the Kerkennah Islands are entitled to full effect352. FELDMAN353, stated that “[t]his

adjustment was effected by making the line of delimitation parallel to a line bisecting the angle

formed by a line drawn along the Tunisian coast and one drawn along the seaward coast of the

Kerkennah Islands”

There is thus a great consensus that the Kerkennahs should have been granted a full effect. Judge

ODA, on the other hand, did not share that thought. He would not give the Kerkennahs any effect in

developing the equidistant line, for they are “being elongated and far from parallel to the coast,

project far out to sea”354. According to KAYE355, however, the Kerkennah Islands “were not given any

effect by the ICJ, but the baseline used by the Court to represent the Tunisian coast was deliberately

angled out into the Mediterranean”. He stated that the islands themselves were not given any effect,

but they increased the mainland State’s effect on the boundary line.

349

ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 88-89, par. 128-129. 350


Judge SCHWEBEL, Separate Opinion, 99 in ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982. 352

Judge GROS, Dissenting Opinion, 143-156 in ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982; sentence out of FELDMAN, M.B., “The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise”, 77 AJIL 1983, 237. 353

FELDMAN, M.B., “The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise”, 77 AJIL 1983, 237. 354

Judge ODA, Dissenting Opinion, 271, par. 183(2), in ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982. 355

KAYE, S., “Lessons learned from the Gulf of Maine Case: The development of Maritime Boundary Delimitation Jurisprudence since UNCLOS III”, 14 Ocean and Coastal L. J. 2008, 84.

96

Apart from these opinions, KOLB raised that this case is to be criticized, because this half effect only

takes account of the Tunisian coast line and disregards the Libyan coastline356.

Continental Shelf Case 1984 (Libya/Malta)

(a) Commentary

Clearly, this case is different from others already discussed. There is however a mainland-to-island(s)

delimitation question at stake, but in this case the island is not a dependant island impeding the

drawing of the delimitation line. In this case the island is an independent sovereign State, rendering

the delimitation question a mainland-to-mainland delimitation question. Following the general

principles, an island has a full and equal entitlement to maritime zones as any other coastal State.

Since the Island(s) of Malta (Gozo and Comino) are an independent State, their entitlement to

maritime zones is the only maritime claim they have. Taking this into account it may not come as a

surprise that Malta argued that the delimitation line was to be found by drawing the equidistance

line between the two equal States.

A special agreement from 23 May 1976 between the parties at stake, submitted the case under the

attention of the ICJ. However, despite this Agreement, the parties’ position as to the function of the

356


l'équité. Digest and Commentaries / Répertoire et commentares in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 2003, 194-195.

Figure 19: Continental

Shelf Case

(Tunisia/Libya)

[ICJ, 24 February 1982,

Continental Shelf Case.

Judgment,

Tunisia/Libya, ICJ

Reports 1982, 81.

(extract)]

97

Court differed: Malta wanted the Court to actually draw the delimitation line, whereas Libya wanted

it merely to stipulate and clarify the applicable international law. In response, the Court noted that it

was “to name the method it found to be appropriate and that the Agreement would not be a bar to

the Court indicating an approximate line which could be illustrated on a map”357.

However important this judgment may be for continental shelf delimitation purposes, the interest in

this paragraph is mainly focused on the delimitation line with respect to the fact that Malta is an

Island State. Thus, the Court had to delimit the continental shelf between a mainland and an island

State. The question thus emerged whether the Court found them to be sovereign States, forcing the

equidistance line not to be influenced, or whether the Court found the divergence in coastline (8:1

ratio358) to be relevant for adjusting the equidistance line.

After drawing its provisional (equidistance) line, the Court “found that that line requires to be

adjusted in view of the relevant circumstances of the area, namely the considerable disparity between

the lengths of the coasts of the Parties here under consideration, the distance between those coasts,

the placing of the base points governing any equidistance line, and the general geographical context”

and that this adjusted line “gives a result which seems to the Court to meet the requirements of the

test of proportionality, and more generally to be equitable, taking into account all relevant

circumstances”359. This line was adjusted northwards360.

Fulfilling this proportionality requirement would mean that the lengths of the coastlines and their

ratio is be taken into account361. In this case the Court found the difference to be “so great as to

justify the adjustment of the median line so as to attribute a larger shelf area to Libya” (par. 68). In

this respect, YOSHIFUMI362 contested: “Why should a median line be modified because of the

disproportion between the length of two coasts?”. He posed that this might on the one hand lead to

no CS for the state with the smallest coastline. On the other hand, he noted that “the difference of

coastal lengths was already reflected in the surfaces of the two zones separated by the median line.

357

NORCHI, C.H., “Malta, Maine and beyond. Trends in the theory and practice of maritime boundary delimitation.” in MARTÍNEZ GUTIÉRREZ, N.A., Serving the Rule of International Maritime Law. Essays in Honour of

Professor David Joseph Attard, Oxon, Routledge, 2010, 84, referring to ICJ, 3 June 1985, Continental Shelf Case.

Judgment, Libya /Malta, ICJ Reports 1985, 24, par. 19. 358

The relevant coastal lengths are 192 miles for Libya and 24 miles for Malta. 359

ICJ, 3 June 1985, Continental Shelf Case. Judgment, Libya /Malta, ICJ Reports 1985, 56, par. 78. 360

The adjustment was some 18 miles towards Malta, CARLETON, C., “Maritime delimitation in complex island situations: a case study on the Caribbean Sea” in R. LAGONI. and D. VIGNES, Maritime Delimitation in Publications


YOSHIFUMI, T., “Reflections on the Concept of proportionality in the Law of Maritime Delimitation”, 16 IJMCL 2001, 433-434. 362

YOSHIFUMI, T., “Reflections on the Concept of proportionality in the Law of Maritime Delimitation”, 16 IJMCL 2001, 441-443.

98

In fact, the northern part of the area delimited by the median line was considerably smaller than the

southern part because of the much shorter coasts of Malta and the much longer coast of Libya”363.

His vision was based on the “trapezium” view. He concluded by stating that “accordingly, it would

appear that there was no reason to give an additional area to Libya because its coastlines were

longer than Malta’s”.

NORCHI stated that the Court based this adjustment on “well-established equitable principles”: “(1)

there is not to be a refashioning of geography or a compensation for the inequalities of nature; (2) A

coastal State enjoys sovereign rights over its adjacent continental shelf and another party cannot

encroach upon the shelf of another; (3) respect must be paid to all relevant circumstances; (4) all

States are entitled to equal treatment, but this does not mean that inequality of nature can be

altered; (5) there can be no question of distributive justice”364. After evaluating the Gulf of Maine

Case and the Libya/Malta Case, ANTUNES365 proclaimed some delimitation trends, which are generally

the same as the ones set out above.

Thus, even though all States, including little Island States, are equal vis-à-vis maritime entitlement,

equity prevents them from being treated equally in factually delimiting the area concerned. Given

the set out principles, we still find this judgment to render some States more equal than others for

delimitation purposes. The final conclusion to be drawn in Island State-to-mainland delimitation can

be found in the words of ANTUNES366: “equity will not necessarily imply equality”.

363

On this vision, YOSHIFUMI refers to the dissenting opinion of Judge MOSLER, 121. 364

These principles are described in ICJ, 3 June 1985, Continental Shelf Case. Judgment, Libya /Malta, ICJ

Reports 1985, 39-40, par. 46 and neatly summarized in NORCHI, C.H., “Malta, Maine and beyond. Trends in the theory and practice of maritime boundary delimitation.” in MARTÍNEZ GUTIÉRREZ, N.A., Serving the Rule of

International Maritime Law. Essays in Honour of Professor David Joseph Attard, Oxon, Routledge, 2010, 86-87. 365

ANTUNES, N, Towards the Conceptualisation of Maritime Delimitation in Publications on Ocean Development,

Leiden, Martinus Nijhoff Publishers, 2003, 419. 366

ANTUNES, N, Towards the Conceptualisation of Maritime Delimitation in Publications on Ocean Development,

Leiden, Martinus Nijhoff Publishers, 2003, 425.

99

Gulf of Maine Case 1984 (Canada/United States of America)

(a) The issue of the Machias Seal Island and the Court’s decision

Without a doubt, the Gulf of Maine Case is, and will always be linked with the single boundary

delimitation line, for which it has become one of the most known cases of the ICJ. However, in this

section, it has another relevance: the delimitation line had to consider the Machias Seal Island. This

island, together with North Rock, has been the issue of dispute between Canada and the USA. Both

claim(ed) to have sovereignty over the island367. The parties, however, wanted to resolve this issue

in a bilateral way. “Canada and the United States agreed to exclude the question of the sovereignty

over and the sea area adjacent to Machias Seal Island and North Rock from the Gulf of Maine Case,

so this issue remains unsettled”368. Nevertheless, the ICJ had to draw the delimitation line. The Court

“considered that it could not discount Seal Island by reason both of its dimensions and, more

particularly, of its geographical position, as well as the fact that it is inhabited all the year round. It

367 MCDORMAN, T.L., “Canada-United States Cooperative Approaches to shared Marine Fishery Resources:

Territorial subversion?”, http://students.law.umich.edu/mjil/article-pdfs/v30n3-McDorman2.pdf (last visited on March 31, 2011), 685, following MC DORMAN, Salt Water Neighbors: International Ocean Law Relations Between the United States and Canada (2009). 368

MCDORMAN, T.L., “Canada-United States Cooperative Approaches to shared Marine Fishery Resources: Territorial subversion?”, http://students.law.umich.edu/mjil/article-pdfs/v30n3-McDorman2.pdf (last visited on March 31, 2011), 685.

Figure 20: Map showing the adjusted

median line in the Libya/Malta Case.

[http://www.sovereigngeographic.com/mari

time_pdf/1985-lib-mal-map.pdf]

100

was therefore given half-effect”369. However, the Court immediately thereinafter provided that

“[s]ince it is only a question of adjusting the proportion by reference to which the corrected median

line is to be located, the result of the effect to be given to the island is a small transverse

displacement of that line, not an angular displacement; and its practical impact therefore is

limited”370.

(b) Commentary

It is somewhat remarkable that the ICJ was not allowed to determine the sovereignty over the island.

Therefore, the latter remained unresolved. There is now a bilateral working group in place to resolve

the latter since 2002371. It is even more remarkable that the ICJ, without determining sovereignty,

granted the island a half effect. On what grounds did the Court base this effect, since it was unable to

regard the mainland-island interrelation and the islands position towards the opposite State? We

believe that an enclave solution would have been a better solution. Since the Court -still- does not

know who the sovereign State is, but had to determine an effect, it could just enclave it towards both

States so as not to make it extremely difficult. After determining the sovereignty issue, this enclave

could have been opened on the mainland side so as to connect the mainland’s waters. However, the

Court gave it half effect. It is a good thing that the Court did not give it a full effect. Granting it such

an effect would obviously have impeded the sovereignty dispute even more, because then it would

not be likely for either of the States to cede the island. Granting a no effect could have reduced the

States interest in the island, which could have postponed the sovereignty determination for a long

time.

Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen 1993

(Denmark/Norway)


On August 16, 1988, Denmark filed an application before the ICJ, requesting the Court to “draw a

single line of delimitation of the fishing zone and continental shelf area of Greenland in the waters

between Greenland and Jan Mayen”372. Obviously Denmark found this line to be at a distance of 200

369

DEGHANI, R., “Continental Shelf Delimitation in the Persian Gulf”, The United Nations-Nippon Foundation Fellowship Programme, New York, 2008-2009, 76. 370

ICJ, 12 October 1984, Delimitation of the Maritime Boundary in the Gulf of Maine Area. Judgment, Canada/United States of America, ICJ Reports 1984, 337, par. 222. 371

NORCHI, C.H., “Introduction: Twenty-five years of the Gulf of Maine Judgment”, 15 Ocean and Coastal L.J. 2010, 182. 372

ICJ, 14 June 1993, Maritime Delimitation Case in the Area between Greenland and Jan Mayen. Judgment, Denmark/Norway, I.C.J. Reports 1993, 42.

101

Nm from the Greenlandic baseline373. This would leave a maritime area of 50 Nm to the Norwegian

Island of Jan Mayen. Norway, on the other hand, argued that equidistance is to be used and argued

that the Courts task merely existed in declaring “the basis of delimitation, leaving it to the parties to

negotiate the precise line of delimitation” and that there were two, although coincided, still

conceptually distant, zones to be delimited374. The Court followed the Norwegian statement and

found a single delimitation line to be applicable, only if the parties agree on the use of it375.

The Court adjusted the equidistance line in favor of Greenland, but did not allocate it a full 200 Nm

limit. The underlying thought was that “a delimitation that would give one State its full entitlement

and leave only the remainder for the other was found to be inappropriate when the coastlines of both

front on the area”376. The delimitation line between Greenland and Jan Mayen was drawn by the

Court as the lines dividing the several sectors (see map). This line (AONM) is found to be somewhere

between the Greenlandic claim (on the east) and the median line (on the west). Neither of both

islands is granted with a full effect, not even Greenland which is in a 9 to 1 ratio. By virtue of that,

none of the islands is ignored using a no effect rule. For that reason, this delimitation line is found to

be giving a partial effect.

373

This was probably based on the Delimitation Agreement between Jan Mayen and Iceland, where Jan Mayen’s entitlement was recognized, without, however, restricting the Icelandic claims. Iceland got a full 200 Nm zone, while Jan Mayen got a reduced effect , Additional Protocol to the Agreement of 28 May 1980 between Iceland and Norway concerning Fishery and continental shelf questions and the Agreement derived there from of 22 October 1981 on the continental shelf between Jan Mayen and Iceland, 11 November 1997, 43 LOS Bull., 2000, 109. 374

CHURCHILL, R.R., “The Greenland-Jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation”, 9 IJMCL 1994, 6-7. 375

CHARNEY, J.I., “International Maritime Boundary Delimitation—Geneva Convention on the Continental Shelf—Equidistant Line—Special Circumstances. Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.) 1993 ICJ Rep. 38 International Court of Justice, June 14, 1993.”, 88 AJIL 1994, 108. 376

CHARNEY, J.I., “International Maritime Boundary Delimitation—Geneva Convention on the Continental Shelf—Equidistant Line—Special Circumstances. Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.) 1993 ICJ Rep. 38 International Court of Justice, June 14, 1993.”, 88 AJIL 1994, 108-109.

102

(b) Commentary

Without a doubt, this case is nothing like all the others (already treated and yet to come) concerning

the partial effect. Whereas the other cases were dealing with little islands impeding the delimitation

line between two sovereign States, this case is –theoretically- one between two dependant islands

from separate sovereign States. Moreover, the islands are both distant from the metropolitan

mainland, rendering the delimitation question one between two islands. Given the specific features,

the issue can, however, not just be narrowed to one between islands; Greenland is the largest island

in the world377 and has a permanent population (although only 6 % of the +/- 55.000 headed

population lives in the east of Greenland378), whereas Jan Mayen is a desolate little island without

permanent habitation379. Clearly, the outcome of this case is of extreme importance in international

maritime boundary delimitation.

Since this is not a mainland-to-island-delimitation question, the latter required a different approach

in evaluating the effect of islands in maritime boundary delimitation. Whereas, in previous cases,

islands were looked upon as special or relevant circumstances, this thought could not be upheld in

377

Provided that Australia is to be seen as a continent, rather than an island. 378

CHURCHILL, R.R., “The Greenland-Jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation”, 9 IJMCL 1994, 2. 379

Apart from some scientific researchers: “about 25 people (…) live temporarily on the island (…)” in CHURCHILL, R.R., “The Greenland-Jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation”, 9 IJMCL 1994, 2.

Figure 21: Delimitation line between

Greenland and Jan Mayen (AONM),

drawn by the ICJ.

[ICJ, 14 June 1993, Maritime Delimitation

Case in the Area between Greenland and Jan

Mayen. Judgment, Denmark/Norway, ICJ

Reports 1993, 80.]

103

the present case, for it is an island-to-island-delimitation question. Yet, the main principles remain,

after drawing the provisional equidistance line, there are still circumstances allowing, even obliging,

the equidistant line to be adjusted. Here, the relevant circumstances at stake are the lengths of the

respective coastlines (a 9:1 ratio380), the fishing resources, the presence of ice, security factors and

the conduct of the parties381. The Court expressly rejected population and other socio-economic

factors382. Taken all the previous into account, this is rather a case of evaluating the effect of small

islands vis-à-vis large islands.

When placing the judgment next to other judgments and assessing the merits thereof, one can

clearly find a lot of similarities with the Libya/Malta Case. Even though the present case played

between two dependant islands and the Libya/ Malta Case was one between two independent

States, the virtual outcome was the same. Based on the charts, unequivocally, the result was the

same: the provisional equidistance line was adjusted towards the smallest of the features, without,

however, granting the largest one a full effect. In both cases, the decisive reason for this adjustment

was the divergence in the respective coastal lengths, following the proportionality requirement.

CARLETON383, on the other hand, stated that “this adjustment was not uniform as it was in the

Malta/Libya case”. It may not use the same numeric adjustment ratio, but the outcome remains an

adjusted median line. Assessed on their merits, from a practical point of view, both cases presented

an equitable result by adjusting the equidistance line. SHI384 described it as follows: “the Court has

considered the equitableness of a provisional equidistance line by comparing the ratio between the

lengths of each Party’s coast and the maritime areas allocated to that Party by the provisional line.

Where one Party has a significantly longer coastline than the other, but the maritime area allocated

by the provisional line does not reflect the disparity in coastal lengths, the Court has, without

requiring precise mathematical proportionality, modified the provisional line in order to achieve a

more equitable ratio”. YOSHIFUMI385 reminded of the criticism in the Libya/Malta Case concerning this

proportionality. The applicability of proportionality to delimitations between States with opposite

380

The relevant coasts are the Greenlandic 504 km and the Jan Mayen 55 km. 381

CHURCHILL, R.R., “The Greenland-Jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation”, 9 IJMCL 1994, 8. 382

ICJ, 14 June 1993, Maritime Delimitation Case in the Area between Greenland and Jan Mayen. Judgment, Denmark/Norway, I.C.J. Reports 1993, 74, par. 80. 383

CARLETON, C., “Maritime delimitation in complex island situations: a case study on the Caribbean Sea” in R. LAGONI. and D. VIGNES, Maritime Delimitation in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 2006, 163. 384


YOSHIFUMI, T., “Reflections on the Concept of proportionality in the Law of Maritime Delimitation”, 16 IJMCL 2001, 447.

104

coasts remains questionable386. From a human perspective, the outcomes are to be called equitable.

One could easily understand and agree to an adjustment based on their characteristics (Libya

towards Malta, Greenland towards Jan Mayen). Perhaps, one might even argue a greater share to

resp. Libya or Greenland. In this respect, one can argue that it is obvious that (dependant) islands are

treated in a total equal manner as States, in their interrelationship. The outcome in both cases was

the same, thus islands are treated equal.

Nevertheless contradictory, from a legal point of view, these cases are a breach of international

principles and bring along a divergence on the basis of types of islands. From the Libya/Malta Case

we can conclude that there is no such thing as equal treatment between continental mainland and

islands. Malta was an island and there was no equal division between the littoral states. From the

Greenland/Jan Mayen Case, we can also conclude that there is even no such thing as equal division

between islands. The greater island (Greenland) has received more than the small island. Thus, there

is a distinction made in delimitation claims, between mainland and islands en between islands on the

basis of surface. Didn’t customary law provide that all coastal territories are equal? Is it equitable to

find different treatments to different types of coastal territory? Should these cases not be resolved

with a strict equidistance line? No, not at all, that would assign the whole equitable result-relevant

circumstances theory to the garbage bin. The configurations of the respective situations are an exact

representation (they take it to the extreme and that is what constitutes their importance) of what

the equitable delimitation wanted to achieve. For a strict use of the equidistant line would be

creative of inequity itself, the respective configurations allow the line to be adjusted on the basis of

fairness. The fact that this invokes different treatment of different coastal territories is inherent to

the aim of the equitable result. Moreover, granting totally equal shares to eg. Greenland and Jan

Mayen would clearly be a refashioning of geography, for the restricted possibilities of Jan Mayen

would be placed on an equal ground as the massive Greenland. After all, it is as ANTUNES described it,

“equity will not necessarily imply equality”.

Award of the Arbitral Tribunal-Maritime Delimitation (Eritrea/Yemen) 1998-1999


One of the areas to be delimited in this case was the one of the central sector, massively impeded by

the presence of several islands, rocks, islets, …. The Tribunal’s first task was to decide upon the

question of sovereignty over the respective insular features, the outcome of which was to declare

386

Judge ODA, Separate Opinion, 115, par. 92; Judge SCHWEBEL, Separate Opinion, 125 in ICJ, 14 June 1993, Maritime Delimitation Case in the Area between Greenland and Jan Mayen. Judgment, Denmark/Norway, ICJ

Reports 1993; citation from YOSHIFUMI T., “Reflections on the Concept of proportionality in the Law of Maritime Delimitation”, 16 IJMCL 2001, 447.

105

Yemeni sovereignty over the Zuqar-Hanish group of Islands387 and Eritrean sovereignty over the

Mohabbakah Islands, High Island388, the Haycock Islands and Southwest Rocks389. In the same

paragraph of the Award, the Tribunal recognized both groups’ potential to claim territorial waters of

their own, however, immediately thereinafter, noticed that this allocation generated overlapping

territorial sea claims over the interstate water area. Thus, what the Tribunal had to do, was to

determine the effect of both sides’ island groups in an equal way, taking into account that there was

little to be divided. The Tribunal found the area to be delimited by using a median line boundary,

without however, expressly declaring an effect to any of the island groups (par. 158).

(b) Commentary

It is rather difficult to make an exact evaluation of the Tribunal’s outcome that would fit the

proposed framework of this outset because the Tribunal did not expressly mention the value it has

given to the respective island groups. Thus, we have to base ourselves on the wording of the Award

together with the provided charts. By doing so, we can only conclude that the Tribunal granted them

a partial effect. It is quite obvious that the median line did not ignore the presence of the Zuqar-

Hanish group (the isolated northern group), nor the presence of the Mohabbakah Islands, High

Island, the Haycock Islands and Southwest Rocks. Neither did it provide them with a full effect, for

that would not even be possible. However, one might argue that the islands at stake should have

387

For the Zubayr Group, see page 72. 388

This Island was not mentioned at the Hague Justice Portal, but it is listed with the others under Eritrean Sovereignty in PCA, 17 December 1999, PCA, Second Stage of the Proceedings between Eritrea and Yemen

(Maritime Delimitation), Eritrea/Yemen, UNRIAA, Vol. XXII, par. 154. 389

Eritrea/Yemen Arbitration, 9 October 1998, http://www.haguejusticeportal.net/eCache/DEF/6/153.html.

Figure 22: map

showing the median

line in the

Eritrea/Yemen Award

[PCA, the International

Maritime Boundary Line

– Chart 3,

http://www.pca-

cpa.org/upload/files/cha

rt3.gif]

106

been enclaved. We, however, agree with the vision set out in the Award390 and reaffirmed by KOLB391.

Enclaving the island groups or some of them would invoke distorting effects. The boundary line to be

drawn would be consistent of bulges which would interfere with the principle of non-encroachment

because of the small water area between them. Moreover, KOLB argued that this would clearly give

rise to security issues, for the enclaves would interfere with the navigational routes, bordered by

reefs.

3.2.2.3. Enclave solution

Another remedy for abating the inequity is the so called enclave solution. The enclave remedy can

either be a full enclave solution or a semi-enclave solution.

In case the full enclave solution is applied, an island or an island group will then be provided with a

[territorial sea]392 of its own, forming an enclave within the others State’s maritime zone, “where the

maritime belt accord to the island is wholly separated from the offshore zone of the mainland coast of

the State to which the island belongs”393.

The semi-enclave solution is mostly applied when islands are located near the equidistance line. This

remedy installs a corridor, connecting the enclave and the mainland’s maritime zone.

390

PCA, 17 December 1999, Second Stage of the Proceedings between Eritrea and Yemen (Maritime

Delimitation), Eritrea/Yemen, UNRIAA, Vol. XXII, par. 1157-158. 391



Other maritime areas can be inherent to the enclave situation as well. 393 DEGHANI, R., Continental Shelf Delimitation in the Persian Gulf, The United Nations – Nippon Foundation

Fellowship Programme, New York, 2008-2009, http://www.un.org/Depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/dehghani_0809_iran.pdf.

107

The use of the enclave solution, however, should not be deemed applicable at all times. According to

ATTARD394, in the aftermath of the Case of St. Pierre et Miquelon, the use of enclaves should be

restricted to cases of narrow waters.

Agreements have been concluded in State practice for the enclave solution as well as the semi-

enclave solution. An example for the enclave solution is the Australia-Papua New Guinea Agreement

(1987)395, and for the semi-enclave solution, the Iran-Saudi Arabia Agreement396. In this last

Agreement, the State parties agreed to draw a preliminary equidistant line, which was then “bulged”

by the balancing semi-enclave solutions397.

The Anglo-French Arbitration 1977


For the interstate maritime delimitation between the U.K. and France, the Arbitration Tribunal was

to find a solution for the Channel Islands (Guernsey, Sark, Herm, Alderney and Jersey) closely linked

394


Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, And Related Matters, 18 December 1978, 18 ILM 1979, 291. 396

Semi-enclave solution for the Iranian Island of Farsi and the Saudi Arabian Island of Al’Arabia: Agreement concerning the sovereignty over the Islands of Al-‘Arabiyah and Farsi and the delimitation of the boundary line separating the submarine areas between the Kingdom of Saudi Arabia and Iran, Teheran, 24 October 1968, U.N.T.S., vol. 696, I-9976; Limits in the Seas, No. 24. 397

BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitation” in CHARNEY, J.I. and ALEXANDER, L.M., International Maritime Boundaries vol. 1, Dordrecht, Nijhoff Publishers, 1993, 142-143.

Figure 23: Simplified drawing of

the enclave solution for islands

belonging to State B in State A’s

EEZ or CS (drawing A) and the

semi-enclave solution for islands

belonging to State B, forming a

connecting corridor between the

TS of the islands and the EEZ or CS

of mainland B (drawing B).


108

to the French coastline and by virtue of their location impeding the delimitation issue. Consequently,

drawing a median line so as to provide equal shares of interstate waters was not an option when

taking account of the islands398. “The presence of the Channel Islands on the French side of the

median line disturbs the balance of geographical circumstances which would otherwise exist (…)”399.

Given its character as special circumstances, the Arbitration Tribunal could not deny them effect. In

its search for the most equitable solution for the latter, the Court accorded the Channel Islands400 a

12 Nm continental shelf401. This solution unequivocally generated a British enclave within French

Channel Waters.

(b) Commentary

Clearly, using a median line between France and the Channel Islands was not the most appropriate

solution. Ignoring the islands would have been inequitable. Thus, the Tribunal had to make use of

398

The islands were found to be ‘special circumstances’ in the delimitation. 399


Not a 12 Nm CS for each island, but a CS as an archipelago, surrounding the totality of the features. 401

Award of the Arbitration Tribunal, 30 June 1977/ 14 March 1978, Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK, France), UNRIAA, Vol. XVIII, 94-95, par. 201-202. By virtue, this treatment is creative of an inequity in regard of the U.K., for BROWN stated that “circumstances which would constitute ‘special circumstances’ (…), would also constitute

‘factors creative of inequity’ under international customary law”, BROWN, E.D., The International Law of the Sea.

Volume 1. Introductory Manual, Aldershot, Dartmouth, 1994, 173.

Figure 24: Map showing the British Channel Islands Enclave Solution

[ILR, Vol. 54 (1979), 123.]

109

them. Granting them a full effect would have been totally disproportionate. Even a half effect rule

would have rendered the delimitation line inequitable. Therefore, enclaving them was the only valid

solution. Taking account of their location closer to the French mainland than to the median line, this

is a full enclave within French continental shelf. The British Channel Islands Enclave is the classical

example for the enclave solution in maritime delimitation law402.

French Canadian Arbitration 1992 (Islands of Saint Pierre et Miquelon)


The French Islands of Saint Pierre and Miquelon are situated at a distance of 12 Nm from the

southern Canadian coastline of Newfoundland403. Clearly, this distant location from the mainland and

its close vicinity to another State’s coastline, made it even more difficult for the Arbitration Tribunal

to easily settle the latter. It must be noticed that the true interest of the parties contained the fishing

rights in the area and the exploitation possibilities (of gas and oil resources) in this continental shelf

area, for which the littoral States had concluded many treaties and (interim) agreements over many

years, trying to settle the disputed interests404. Finally, both States agreed on bringing the issue

before an Arbitration Tribunal. Both parties agreed on asking the Tribunal to “establish a single

delimitation for all maritime zones” to be “in accordance with the principles and rules of international

law applicable in the matter”405, which “is binding” upon the parties406. Whereas France believed that

the delimitation should have taken place on the grounds of equidistance between the equal parties

at stake, Canada contested that the islands were only entitled to a 12 Nm zone407. They were thus to

be allotted with an enclave solution, for there is a massive difference in coastal lengths. In its Award,

402


MCDORMAN, T.L., “The Canada-France Maritime Boundary Case: Drawing A Line Around St. Pierre and Miquelon”, 84 AJIL 1990, 158. 404

For a review, see MCDORMAN, T.L., “The Canada-France Maritime Boundary Case: Drawing A Line Around St. Pierre and Miquelon”, 84 AJIL 1990, 157-165. 405 Décision du Tribunal Arbitral, 10 Juin 1992, Affaire de la délimitation des espaces maritimes entre le Canada

et la République française, UNRIAA, Vol. XXI: "Aux principes et règles du droit international applicables en la

matière": 271, Article 2.1; "Delimitation unique": 282-283, par. 36-42. 406

MCDORMAN, T.L., “The Canada-France Maritime Boundary Case: Drawing A Line Around St. Pierre and Miquelon”, 84 AJIL 1990, 166-169. 407

SIDDON, T., Remarks, [1987] 3 Can. Parl. Deb, H.C., 33d Parl., 2nd

Sess. 2808-09. (Siddon was the Canadian Minister of Fisheries and Oceans).

110

the Tribunal made a distinction between two sectors to be delimited408, making it the so called

‘keyhole’ or ‘mushroom’ delimitation409.

(b) Commentary

The French position is the externalization of the interpretation of article 121 LOSC: “Islands that can

sustain human habitation, that are inhabited and that are the size of St. Pierre and Miquelon are

entitled in customary and conventional international law to claim a 12-nautical-mile territorial sea, a

continental shelf and a 200-nautical-mile exclusive economic zone, subject of course, to bilateral

delimitation where the claims overlap with claims made by other islands or States”410. According to

Canada the Islands of St. Pierre and Miquelon were only entitled to a 12-nautical mile zone.

Based on the lines drawn on the charts that reflect the Tribunal’s Award, we can conclude the

following. In the first sector, the westward projection of the Islands of St. Pierre and Miquelon, the

Tribunal followed the Canadian view to enclave the features. By not doing so, it would have allocated

a disproportionate amount of water (especially living and non-living resources) of the Bay of St.

Lawrence under French sovereignty. According to KOLB411, however, the Tribunal took the view that

408

Décision du Tribunal Arbitral, 10 Juin 1992, Affaire de la délimitation des espaces maritimes entre le Canada et la République française, UNRIAA, Vol. XXI, 289, par. 66. 409

PLANTEGENEST, M., IOSIPESCU, M. AND MACNAB, R., “The French Islands of Saint Pierre et Miquelon: A Case for the Construction of a Discontinuous Juridical Continental Shelf?”, http://www.gmat.unsw.edu.au/ablos/ABLOS03Folder/PAPER5-1.PDF, 2. 410

MCDORMAN, T.L., “The Canada-France Maritime Boundary Case: Drawing A Line Around St. Pierre and Miquelon”, 84 AJIL 1990, 170-171. 411


l'équité. Digest and Commentaries / Répertoire et commentares in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 2003, 414.

Figure 25: Map showing the respective

claims concerning St. Pierre et Miquelon

and the Tribunal’s decision to the latter.

[PLANTEGENEST, M., IOSIPESCU, M. AND MACNAB, R.

“The French Islands of Saint Pierre et

Miquelon: A Case for the Construction of a

Discontinuous Juridical Continental Shelf?”,

http://www.gmat.unsw.edu.au/ablos/ABLOS

03Folder/PAPER5-1.PDF.]

111

the westward projection of St. Pierre and Miquelon encroached upon Newfoundland’s southern

projection. By virtue of this, KOLB believed that the Tribunal failed to adopt a neutral perspective,

because it treated one projection as dominant and thus applied an unequal conception of equity. For

the second sector, the southern projection of the Islands, it could have theoretically had a full 200

Nm zone, without obstructing Canadian coastline. In this sector, the Tribunal rather followed French

arguments of equidistance, in willing to grant them both a portion of EEZ and CS. The Tribunal,

however, provided a somewhat strange solution. Instead of using the common radial projection, the

Tribunal chose to make use of an axial projection, which must be limited to the width of the coasts of

St. Pierre and Miquelon412. We found this to be a very strange solution. According to KOLB (P.416)

there are obvious reasons to doubt the wisdom of this solution: “it was not a very practical one,

either for the purposes of economic exploitation or from the perspective of policing the zone”.

Territorial and Maritime Caribbean Sea Dispute 2007 (Nicaragua/Honduras)


There have been disputes in interstate maritime delimitation between the littoral States for several

decades, leading Nicaragua to file an application before the ICJ (1999), requesting the course of the

(single) maritime boundary line. The Court was also to bring clarity on the issue of the disputed

islands between them. It was first to determine which was the sovereign State to this features, for

both had claimed sovereignty over Savanna Cay, Port Royal Cay, Bobbel Cay and South Cay. The

Court concluded, after an extensive review, that the features were under the sovereignty of

Honduras413. There was no dispute concerning Edinburgh Cay, which was accepted to be Nicaraguan.

The Court was then to delimit the interstate maritime boundary, taking account of the islands. After

applying the angle bisector method, it found the Honduras’ Cay’s to be on the Nicaraguan side of the

delimitation line. Because of their vicinity to the bisector line, the Court applied the semi-enclave

solution to the latter. The islands were granted a 12 Nm TS, running from the angle bisector line,

around the Cay’s and running to the line delimiting the Honduras’ Cay’s and the Nicaraguan

Edinburgh Cay.

412


l'équité. Digest and Commentaries / Répertoire et commentares in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 2003, 415. 413 ICJ, 8 October 2007, Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in

the Caribbean Sea. Judgment, Nicaragua/Honduras, I.C.J. Reports 2007, 727, par. 227.

112

(b) Commentary

However, the real value of this judgment is not to be found in its solution. A semi-enclave solution is

a perfectly defendable solution whenever features are found to be on the wrong side of the

equidistance line. This already became clear in the previous (Arbitration) Case concerning the British

Channel Isles. A more important aspect of this judgment is the method applied to delimit the

interstate boundary. The semi-enclave solution is the consequence of the applied method. LATHROP414

highlighted the switch in the Court’s reasoning. Over two decades415, the Court, as well as Tribunals

used “the [three]-step416 equidistance process” in which they have “given full effect to the base points

414

LATHROP, C.G., “Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). At http://www.icj-cij.org. International Court of Justice, October 8, 2007”, 102 AJIL 2008, 118-119. 415

Eg; Maritime Delimitation in the Area Between Greenland and Jan Mayen (1993), Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (2001), Land and Maritime Boundary Between Cameroon and Nigeria (2002). 416

In his text, Lathrop speaks of a two-step method (set out in the paragraph). However, most authors refer to this delimitation method as a three-step method. Eg. McDorman (“The Canada-France Maritime Boundary Case: Drawing A Line Around St. Pierre and Miquelon”, 171.) described this three step method as (1) determination of the criteria and methods that satisfied equitable principles and location of a provisional line by using such a method; (2) adjustment of the line to take relevant circumstances into account; and (3) examination of the line to see if it met the test of equitableness. Although worthy to mention this difference, it must be noted that this divergence has no important consequences.

Figure 26: Map showing the Lines drawn, by the ICJ, around the several Cays’. Savanna Cay, Port Royal

Cay, Bobbel Cay and South Cay in the North, creative of the big circle. Edinburgh Cay in the South,

creating its own delimitation circle (left map). Map showing the Court’s final solution to install a semi-

enclave solution around the Honduras’ Cay’s (right map).

[ICJ, 8 October 2007, Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the

Caribbean Sea. Judgment, Nicaragua/Honduras, I.C.J. Reports 2007, 753-754.]

113

on all features, regardless of size, in the first step of the analysis: the construction of the provisional

equidistance line. In the second step of the analysis, the effect of these features on the equidistance

line has then been discounted either partially or fully, if necessary, to achieve an equitable result”. In

this case, however, the Court made use of the angle bisector method417. LATHROP stated; “the

macrogeographic angle bisector method presumes a mainland-to-mainland delimitation. Here, the

chosen method led the Court to treat the offshore features as an afterthought, enclaving them after

the mainland-to-mainland boundary had been decided”.

We believe that, even if the Court had used the three-step method, the enclave solution is the most

logical one, given the coastal configurations, the land frontier line and the localities of the Cay’s. If

the Court was first to take full account of the islands –which it found to be under Honduras’

sovereignty- it would have had to draw the equidistance line between the Honduras Cay’s and

Edinburgh Cay. This would obviously create a massive inequity towards Nicaragua418. If the Court was

then to evaluate the Cay’s effect on this equidistance line, for achieving an equitable result, a full

effect would be a clear distortion of maritime boundary delimitation. Clearly, granting such an effect

would be not be an option. Even a half effect would still be disproportionate in the light of the

frontier configurations, making it rather doubtful that the Court would grant such an effect to the

Cay’s. This would have led the Court to redrawing its equidistance line, for purposes of equity,

granting no effect to the islands. But this solution would not be equity either, because islands

lawfully affect the interstate maritime boundary delimitation. And the circumstances are not of that

kind, to make it admissible to ignore the presence of this Cay’s. Therefore, we believe that the Court,

ultimately, if using the three-step method, would have chosen an enclave solution for the Cay’s.

3.3. LOW-TIDE ELEVATIONS IN INTERSTATE MARITIME BOUNDARY DELIMITATION

Because there is not so much scholar work to find about low-tide elevations, the following

examination is primarily based on a conjunction of what is already said about low-tide elevations and

logical deduction.

Throughout the examination on islands, it is made clear that granting a full effect to islands might be

creative of inequity. Therefore, remedies were installed to reduce this effect and provide certain

417

Eg. Continental Shelf (Tunisia/Libya) (1982), Delimitation of the Maritime Boundary in the Gulf of Maine Area (1984). 418

The effect this line would generate, would be similar to the coastal configuration in the North Sea Continental Shelf Cases (where Germany found it’s amount of waters under jurisdiction limited, due to the Dutch and Danish claims and their respective coastal configurations, creating a half circle-like situation). In the present Case, the Nicaraguan coastline and land frontier run North-East. Granting full effect to the Cay’s would create a line running South-East and by virtue of that eliminating the equitable portion of water to the Nicaragua benefit.

114

solutions to islands impeding delimitation questions. These principles of international law and State

practice depart from the equal rights that islands have vis-à-vis coastal mainland. Low-tide

elevations, on the other hand, do not possess the ability of being treated equally to islands, let alone

to mainland. They generate a completely different effect to the marine delimitation. A low-tide

elevation will therefore never be able to generate a full effect in the same extent as an island does. In

order to fully understand this, an assessment of the term “effect” for these purposes imposes itself.

This “effect”, generated by low-tide elevations, cannot be compared with the effect that islands

generate, being an adjustment of the equidistant line on the basis of generating their own maritime

zones. It is set out above, that the only effect generated by a low-tide elevation, is the one of

creating a bulge in the maritime zones of the mainland or island. In order to do so, it even has to be a

proximate low-tide elevation. If that is the only effect a low-tide elevation can generate, it is rather

clear that there is less to say about them, than there is about islands. For a low-tide elevation to

create this bulge, under the precondition that it is a proximate low-tide elevation, is has to be used

as a base point for the baseline, i.e. the low water line. Low-tide elevations can also generate an

extension of the marine zones by being applied as a straight baseline base point, subject to the

relevant provisions419. A full effect granted to a low-tide elevation is thus the use of it as a relevant

base point. A no effect would then be not using it as a base point. It is rather difficult to speak of a

half effect, for it is either used or not used as a base point.

3.3.1. ABATING INEQUITY?

These features are merely creating a bulge through incorporation into the mainland’s or island’s

baseline system, in consistency with the relevant provisions. Therefore, a full effect can hardly be

creative of inequity. If a LTE is located at a distance which would render it unusable for the baseline,

granting it an effect in such desolate circumstances would clearly be creative of inequity. But this

effect is reserved for islands in interstate delimitation, not for LTE. The full effect to a LTE would

therefore not be inequity. However, it could become inequity when this LTE is used as a base point in

overlapping territorial sea claims. Then this LTE is not to be used and thus ‘granted’ with a no effect.

Thus, in all cases were the interstate delimitation does not concern overlapping territorial sea claims,

it would not be inequitable to give it a “full effect”. Therefore, there is not really a need for abating

the inequity in case of LTE. Nevertheless, we will examine the LTE’s impact on delimitation questions

in the same way as we did for islands.

419

Article 4 (3) TSC and article 7 (4) LOSC.

115

3.3.1.1. No effect



As set out above, in this case the ICJ had to determine whether Qit’at Jaradah, located within the

territorial sea of both States, was an island (Bahraini vision) or a low-tide elevation (Qatari vision) and

under whose sovereignty it fell420. The Court found Qit’at Jaradah to be in line with the provision of

article 121 (1) LOSC and thus being an island. However it had, because of the disproportionate effect

that it would generate, no impact on the delimitation line421.

Between Qatar and Bahrain there were also other low-tide elevations situated in the area were the

territorial sea claims overlapped. For these were proximate low-tide elevations, theoretically, both

states were entitled to use their respective low-water line for measuring the breadth of the

territorial sea422. The Court, however, stated that “a State could not acquire sovereignty by

appropriation over a low-tide elevation situated within the limits of its territorial sea where the same

low-tide elevation was also situated within the territorial sea of another State” and then “concluded

that these low-tide elevations could not be used as part of the baseline”423.

There also was the presence of the Fasht ad Dabil feature. It was agreed upon by the parties that this

feature was a low-tide elevation424. The Court related this feature to the outcome of the Qit’at

Jaradah issue. The Court stated that, however the Qit-at Jaradah issue was to be resolved, the Fasht

ad Dibal LTE would fall within Qatari TS and thus under Qatari sovereignty. It therefore stated that

the boundary delimitation line runs between these two features placing Qit’at Jaradah on the

Bahraini side and Fasht ad Dibal on the Qatari side.

A last low-tide elevation was the Bahraini Fasht al Jarim. For this feature, the Court expressly stated

that “if given full effect, would distort the boundary and have disproportionate effects” (par. 247). “In

the view of the Court, such a distortion, due to a maritime feature located well out to sea and of

which at most a minute part is above water at high tide, would not lead to an equitable solution

which would be in accord with all other relevant factors referred to above. In the circumstances of the

420 LAUTERPACHT, E., GREENWOOD, C. and LEE, K., “QATAR v. BAHRAIN (MERITS)”, 139 ILR 2011, 1, 3 and 4. 421



Citation from SHI J., “The Wang Tieya Lecture in Public International Law: Maritime Delimitation in the Jurisprudence of the International Court of Justice”, 9 Ch. J. Int’l L. 2010, 277, par. 21, based on ICJ, 16 March 2001, Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits,

Judgment, Qatar/Bahrain, ICJ Reports 2001, 101-103, par. 204-209. 424


Bahrain, Merits, Judgment, Qatar/Bahrain, ICJ Reports 2001, 100, par. 200.

116

case considerations of equity require that Fasht al Jarim should have no effect in determining the

boundary line in the northern sector” (par. 248).

(b) Commentary

Defined to be an island, the Qit’at Jaradah-issue brings no new elements in maritime delimitation

principles concerning low-tide elevations.

Neither did the Court bring along a value to the LTE principles in marine delimitation concerning

Fasht ad Dibal. It made the issue completely dependent on the Jaradah outcome, therefore it could

not be thought to have any effect on the boundary delimitation.

For Fasht al Jarim, the Court found it to be a distortion if taken into account. This is a logical solution,

given the distant location of it from the Bahraini mainland. It is too far out to be used in the baseline

system (be it the normal or the straight one), so taking it into account as a relevant circumstance for

adjusting the median line would have been totally disproportionate. Therefore, the Court correctly

denied it any effect.

Bangladesh v. India before the PCA

(a) Problems arising in the marine delimitation

Following years of discussions on the respective maritime zones between Bangladesh, India and

Myanmar, Bangladesh instituted arbitral proceedings against India on 8 October 2009425. One of the

problem areas between them is a disputed island near Hariabhanga River. Bangladesh claims it to be

its South Talpatty Island, whereas India contests it to be the Indian New Moor Island. Both States

base their claims on the ‘Thalweg’ or mid-channel formula, arguing that the river stream and thus the

navigable channel are located respective on the eastern or western side of the island, making the

island falling under their territorial waters and thus within their sovereignty426. Obviously, “the

dispute over this island has more to do with the extent of the maritime zone to be potentially

acquired in the oil-rich delta of the Bay of Bengal than the island itself”427. The island of South

Talpatty, however, is supposed to have emerged after the 1970 Bohla Cyclone, as a result of

siltation428 and has thus no long standing history.

The PCA has not yet finalized its Award.

425

Bangladesh v. India, http://www.pca-cpa.org/showpage.asp?pag_id=1376 (last visited 5 April 2011). 426

ALAM, S. and AL FARUQUE, A., “The Problem of Delimitation of Bangladesh’s Maritime Boundaries with India and Myanmar: Prospects for a Solution”, 25 IJMCL 2010, 415. 427

ALAM, K., “The issue of South Talpatty”, The Daily Star, 12 May 2006, 13. 428

ALAM, S. and AL FARUQUE, A., “The Problem of Delimitation of Bangladesh’s Maritime Boundaries with India and Myanmar: Prospects for a Solution”, 25 IJMCL 2010, 415-416.

117

(b) Commentary

According to ALAM and AL FARUQUE this alleged island is merely a low-tide elevation, that is located to

the east of the deeper Channel and thus within Bangladesh’s territorial sea, for which Bangladesh

can legitimately claim sovereignty over it.

Even if this low-tide elevation would have classified as a proximate one, it would have been most

doubtful that the Tribunal would allow it to be used as base point. The elevation “had never been

permanently settled and was uninhabited, partly due to the dispute of ownership”429.

However, it does no longer impede the delimitation question, for the “island” has sunk under the sea

level. It is no longer a low-tide elevation, due to the sea level rise and global warming. (Here, we like

to bring in mind the considerations set out in I. Definitions, 3: Current developments). Therefore,

HAZRA430 stated: “[w]hat these two countries could not achieve from years of talking, has been

resolved by global warming”.

Since the alleged island is no more, the Tribunal will have no difficulty concerning the island and can

thus ignore its previous presence in the Bay of Bengal. Even if it were still there, but certainly since it

is no longer there, this low-tide elevation will be given a no effect.

429

Low-lying New Moore Island No Longer On The Map, 25 March 2010, http://weinterrupt.com/2010/03/low-lying-new-moore-island-no-longer-on-the-map/ (last visited 7 April 2011). 430

Professor Sugata HAZRA of the School of Oceanographic Studies at Jadavpur University in Calcutta at http://weinterrupt.com/2010/03/low-lying-new-moore-island-no-longer-on-the-map/ (last visited 7 April 2011).

Figure 27: map showing South

Talpatty between Bangladesh and

India. The orange line is the Main

flow of Hariahbanga River, clearly

locating the “island” on the

Bangladesh side. Nature has

settled the dispute for once and for

all.

[Low-lying New Moore Island No

Longer On The Map, 25 March 2010,

http://weinterrupt.com/2010/03/low-

lying-new-moore-island-no-longer-on-

the-map/ (last visited 7 April 2011)]

118

3.3.1.2. Partial effect Rule


This case has already been discussed concerning the effects of islands. Here, a brief summary will be

given to the facts at stake so as to discuss the effects of low-tide elevations in this case.


In the present case, the ICJ had to evaluate the presence of islands as well as low-tide elevations in


Djerba and Kerkennah and their low-tide elevations. Thus, as stated above, Tunisia431 argued that the

delimitation was to “take account of all relevant circumstances which characterize the area”, in

particular, “the fact that the eastern coastal front of Tunisia is marked by the presence of a body of

islands, islets and low-tide elevations which form a constituent part of the Tunisian littoral”.

Therefore, the islands and low-tide elevations were relevant circumstances to the Tunisian Republic.

Libya did not confirm to that opinion, stating that the island of Djerba was not to be taken account of

and that the Kerkennah Island was to be excluded, without even mentioning their low-tide

elevations432, making it clear that Libya was not going to recognize some low-tide elevations as

relevant circumstances, so as to enlarge the Tunisian continental shelf claim. Thus, it was up to the

Court to describe their effect on this delimitation issue. The ICJ stated that “To the east of this line,

however, lie the Kerkennah Islands, surrounded by islets and low-tide elevations, and constituting by

their size and position a circumstance relevant for the delimitation, and to which the Court must

therefore attribute some effect”433.

(b) Commentary

As already mentioned, the Court referred to the Kerkennah Island as a relevant circumstance. But, in

this case, its low-tide elevations were not dissociated from the main island. The ICJ had thus found

low-tide elevations to be relevant circumstances as well. However, the value of this judgment must

not be overrated, concerning low-tide elevations. The Court did not say unequivocally that low-tide

elevations were relevant circumstances an sich, because they were never taken apart from their

main island, by virtue of which the Island of Kerkennah and its low-tide elevations were to be treated

as a unit. The Court resolved the latter by giving the Kerkennah Island and its low-tide elevations (as

a unit) a half-effect in interstate boundary delimitation434. It is thus not quite correct to categorize

431

ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 26, 4 (a). 432


ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 88-89, par. 128. 434

ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 89, par 129.

119

this case as a half effect, provided to low-tide elevations. But, it is a start for the acknowledging of

low-tide elevations in maritime boundary delimitation.



One of the problems arising from the insular features was the “Fasht al Azm”-issue. Fasht al Azm is a

low-tide elevation near the Island of Sitrah. The dispute between the States was whether the low-

tide elevation was in connection with the island. Qatar believed that the low-tide elevation had

always been separated from the Island of Sitrah by a natural Channel, while Bahrain denied such a

separation (based on Bahraini and British maps)435. The Court436 then continued by providing both

hypotheses with the corresponding equidistant lines, for it could not determine whether Fasht al

Azm was part of the Island of Sitrah or a low-tide elevation. In both hypotheses, the Court concluded

that the equidistant lines generated a disproportionate effect disadvantaging Qatar. The Court

immediately thereinafter recognized the presence of special circumstances in both hypotheses.

(b) Commentary

The recognition by the Court that there were special circumstances in both hypotheses makes this

judgment extremely important on this matter. By saying so, the Court took an important step in the

role of low-tide elevations in the maritime delimitation principles. In its second hypothesis where

Fasht al Azm was a (separated) low-tide elevation, the Court still found it to be a relevant

circumstance for delimitation purposes and therefore generated a partial effect to be attributed to it.

LLANOS declared that “[t]he ICJ gave partial effect to a low-tide elevation, which had an impact on the

delimitation line, making this the first precedent in international case law to give effect to this type of

feature”437.

435


Bahrain, Merits, Judgment, Qatar/Bahrain, I.C.J. Reports 2001, 98, par. 189. 436


Bahrain, Merits, Judgment, Qatar/Bahrain, I.C.J. Reports 2001, 104 and 98, par. 218 and 190. 437

LLANOS, H.I., “Low-Tide Elevations: Reassessing their impact on Maritime Delimitation”, 14 Pace Int’l L. Rev. 2002, 268.

120

3.3.1.3. Enclave solution

The enclave solution granted to islands is based upon the presumption that an island is equally

entitled to maritime zones as a coastal mainland. It is shown above that a low-tide elevation is not

entitled to maritime zones, but that it is merely capable of creating a bulge. The enclave solution,

however, is founded on the whole idea that the island can claim maritime zones for its own. Since

low-tide elevations lack the capacity of generating these zones, an enclave solution provided to

them, would be a total disregard of international maritime delimitation principles. Therefore, there is

not much to say in this paragraph. A low-tide elevation cannot generate maritime zones, thus,

enclaving a low-tide elevation is out of the question.

From a legal point of view, this would thus be impossible, but if we take this to a purely theoretical

extent, we might have to nuance this. Speaking thus purely theoretical, granting an enclave solution

to a low-tide elevation remains possible. Delimitation of interstate maritime boundary is still, in first

order, to be achieved by agreement. If States should come to enclaving a low-tide elevation in their

interstate delimitation, for any reason they could think off438, that could be a perfectly legitimate

438

Some examples: both States have always regarded the low-tide elevation as being an island or qualifying that definition, be it on the ground of general international recognition; because the building requirement is fulfilled which makes the States look upon it as an island; for reasons of balancing low-tide elevation enclaves; the importance of the location for the one country and a “no-interest” or “goodwill” of the other state; for stemming a country because they obtain other benefits to be achieved in return.

Figure 28: Map showing

the partial effect of Fasht

al Azm in the

Qatar/Bahrain Case

[Modified drawing,

originating from

Kwiatkowska, B., “The Qatar

v. Bahrain Maritime

Delimitation and Territorial

Questions Case”, IBRU, 6

Maritime Briefing 2003, 31.]

121

solution between them. Would this enclave solution then come before a Court or Tribunal, it is most

likely that this enclave will not last very long. If, however, the parties have upheld this solution during

many years, and other States have also recognized this, it would be most interesting to see what the

ICJ, ITLOS or PCA or other Tribunal would make of it. This could then introduce a historic milestone in

the delimitation principles concerning low-tide elevations.

Nevertheless, we need to remain realistic. There is not much of a chance that any State would allow

a low-tide elevation to be enclaved within its own maritime zones. Furthermore, we have no

knowledge of any factual evidence.

122

CONCLUSION

In formulating the conclusions to the latter, we must clearly make a distinction between the effect

generated by islands and the effects generated by low-tide elevations.

For determining the effect of islands, a first important step is to determine their status, for its effect

depends on whether it is an island or a rock or a rock as described in article 121 (3) LOSC. For islands,

the conclusion is mainly that they are entitled to all maritime zones, in an equal manner as

continental mainland does. A rock falling under article 121 (3) LOSC does only generate a TS and a CZ.

Nevertheless, when located within certain breadths of the mainland, the island will merely extend

the continental mainland’s marine zones. In such case, they are used as the normal baseline. But, as

a general principle of law, the ‘genuine’ islands are creative of all marine zones. Clearly, this invokes

that such islands are capable of influencing a bay closing line. The presence of islands in and around

bays and their imaginary closing line may give rise to some effect, if meeting the distance

requirement. An island can even be creative of a bay in situations where there would otherwise not

be a bay. Since an island can be used in a normal baseline, and can influence or even create the

straight baseline of a bay, it is only logical that it can also be used as a base point in the drawing of

straight baselines.

Although islands are, as a general rule, equal to mainland in the entitlement of marine zones, their

presence in interstate boundary delimitation can give rise to lots of difficulties. If we take the

entitlement of dependant islands to a full extent, it has been argued that granting them such a full

effect might be creative of inequity. But their presence is however a special circumstance that does

not justify an automatic ignorance of the island. This all depends on the exact location of the island

towards the opposite State and its mainland. States are to determine their interstate delimitation by

achieving agreement. However, islands can impede the delimitation in such a manner, that no

agreement can be reached between the parties at stake. Therefore, the ICJ, PCA and other Arbitral

Tribunals were addressed to resolve such issues. These Courts and Tribunals were asked to

determine the effects of islands and sometimes to remedy their distorting effect. In almost every

case, the Court or Tribunal will start with a provisional equidistance line, adjusting the line in case of

special circumstances (of which islands are an example) and eventually assessing the equitableness

of this result. Several remedies for islands have been established in delimitation law. Islands can not

only be generated a full effect or ignored for delimitation purposes, they can also be attributed with

a partial effect (which is mostly a half effect) and they can be enclaved when located –at least

partially- on the wrong side of the equidistance line.

123

One of our desires was to provide a predictability rule on the effects of islands before the ICJ and

other Tribunals. However, no two cases are the same in geographical conditions, let alone that the

Courts and Tribunals decide on them in an equal manner, based on similar conditions. Unfortunately,

it is however impossible to draw a general conclusion from the decisions on marine delimitation in

respect of islands. Their effect needs to be (re)examined in every case, for every case justifies

another solution. Is there then a difference between small and bigger islands? The ICJ has given a full

effect to the large Hawar Islands, but no effect to the large Djerba Island. It has given no effect to the

very small Qit’at Jaradah, but a partial effect to the very small Machias Seal Island. If we take this to

the extreme extent however, we can see that the ICJ attributed a lesser effect to a lesser feature

where there is an island to island delimitation. The ICJ relocated the equidistance line further

towards the tiny Jan Mayen and further away from the massive Island of Greenland. The location of

the islands does not bring along a certain rule as well. There was no effect attributed to Zubayr and

to Qit’at Jaradah, and a partial effect to the Zuqar-Hanish group, all were located somewhere in

between of the area to be delimited. In case of islands situated on the “right side” of the

equidistance line, a no effect was attributed to Serpent Island whereas the Scilly Isles and the

Kerkennah Group were attributed with a partial effect. There is however one relative certainty, an

island (or island group) located on the wrong side of the equidistance line, the Channel Islands and

the Honduras’ Cays, or distant from the mainland, St. Pierre et Miquelon, will most likely generate an

enclave solution. Relative, because the Hawar Group was also on the wrong side, but was attributed

with a full effect. Nevertheless, to our opinion, the Courts and Tribunals do not always come to

equitable solutions or solutions respecting delimitation law, eg. the full effect to the Hawar Group,

the adjustment of the equidistance line between Greenland and Jan Mayen.

All of the above were dependant island situations. There is a major case in delimitation law were a

delimitation line was to be drawn between a coastal mainland and an independent Island State. In

this case the ICJ had adjusted the median line because Malta was a small island and therefore was

not entitled to the same amount of waters as Libya. Clearly, this is a violation of the equal

entitlement of islands and other coastal configurations. But there is something to say about the

adjustment. And that can become a single general conclusion to the latter. The marine delimitation is

to achieve an equitable solution in all situations, even were the special circumstances of islands are

impeding the delimitation. They are both to be taken into account and have equal entitlement rights

for the equitable solution. Therefore, we can conclude with the following words: equity will not

necessarily imply equality.

For low-tide elevations, a whole different set of conclusions is to be drawn from the latter. For these

features as well, the first step is to determine their status. A reef that is also a low-tide elevation has

124

the same effect as a low-tide elevation. However, the determination of status is not that of a low-

tide elevation or reef, but that of a low-tide elevation or an island. Many examples of State practice

have shown that States do not share the opinion on whether an insular feature is an island or a low-

tide elevation. The mainland State will obviously take them as an island, for that benefits them the

most. Courts and Tribunals had to intervene more than once to determine their status. One thing,

however, must be clear, it is prohibited for a State to take actions that would render a low-tide

elevation the status of an island, if these actions are only undertaken for the mere purposes of

regarding them as an island in the drawing of maritime boundary delimitation.

Once a feature is agreed to be a low-tide elevation, the effects this feature will generate are not the

same as the ones of islands. As a starter, these features are not autonomously entitled to maritime

zones. They do not generate TS, CZ, EEZ or CS for their own. They can only bulge the mainland’s

baseline if located in the vicinity (not exceeding the breadth of the TS) of the mainland. Once it is

located further away from the mainland, it will have no effect on the maritime zones. They can also

enlarge the maritime zones of islands, if located within the island’s TS. This already points out that a

low-tide elevation is a lesser feature than an island and thus generates different effects. That is the

case for bays as well. LTE can generate an effect on the closure of bays, but this effect different from

the effects of islands. Moreover, principally, low-tide elevations need to be built upon to be used for

the closure of bays (because they are straight baselines). For the drawing of straight baselines, low-

tide elevations can be used as well, but only if they are built upon or there is general recognition on

their use.

Since these features do not generate maritime areas of their own, there effect in interstate boundary

delimitation is a totally different one. Low-tide elevations are not equal to other coastal mainland,

thus a full effect would not be an equitable result for them. A full effect is simply their use as base

point (in the normal or straight baseline system). Since there is no “full effect”, there can hardly be

an inequitable result. Because of their characteristics, it is most likely for a single low-tide elevation

to be granted with a no effect in interstate boundary delimitation. However, low-tide elevations are

mostly situated in the vicinity of islands and thus forming part of them. In this case the group can be

granted with an effect, eg. the low-tide elevations near Kerkennah Island, they were granted a partial

effect, as a unit. Nevertheless, there might be some innovation in their effects, stemming from the

Qatar/Bahrain Case. In this case the ICJ found it to be a relevant circumstance even if it were a

separate low-tide elevation. This was the first time in delimitation history before the Court and other

Tribunals that a low-tide elevation was granted with an effect. This might have been the first step in

treating low-tide elevations the same as islands. However, this might be exaggerated and this case

could become the only case in which an effect was granted to this kind of feature. Nevertheless, it

remains possible for these features to have such an effect in interstate boundary agreements.

125

Another remedy provided for islands, cannot be transposed to low-tide elevations. Because of the

lack to generate maritime areas of their own, a low-tide elevation cannot be expected to be

enclaved. There is however not much scholar work about the effects generated by low-tide

elevations, thus much of the drawn conclusions are primarily based on interpretations of

conventional provisions, charts and common sense.

As one can clearly see, in the current situation, there is a massive difference in the treatment of

islands and low-tide elevations. There might ever be a shift to an equal treatment, but that is not

only far away, it is also far from likely to happen. There is however a shift in the islands geographical

situations. Due to climate change and disturbances of nature, the sea level is continuously rising and

forming a threat to lots of insular features. Through this sea level rise, low-tide elevations might

become features that are submerged at any state of the tide, making them unusable for maritime

delimitation purposes. Islands on the other hand might become submerged at low-tide and thus

becoming low-tide elevations. The question is whether these changes in features will lead to

renegotiated agreements between States or even to the reassessing of decision of Courts and

Tribunals.

Marine delimitation law relating to islands and low-tide elevations are thus far from static. It is a

continuously evolving part of international law, not in the least through the acceptance of boundary

agreements and the rulings of Courts and Tribunals adding new effects to features. Especially with

the Qatar/Bahrain Case, there is still room for evolution in the area of low-tide elevations. The lack of

general principles or a predictability rule for the effects of islands and low-tide elevations makes

every new decision a valuable one in assessing their effects. Due to sea level rise, the marine

delimitation law for islands and low-tide elevations cannot just be expected to crystallize rules. The

constant shift in geography makes it even more difficult. Thus, despite all the International Cases,

bilateral and multilateral agreements, the immense number of scholar works, the work to be done in

this matter is far from completed. It has not been possible yet to establish a predictability rule for

islands and low-tide elevations. However, this remains a possibility in the future.

126

BIBLIOGRAPHY

CONVENTIONS AND CONFERENCES

− First International Extraordinary Hydrographic Conference, Monaco, 1929.

− Convention on the Continental Shelf, Geneva, 29 April 1958, U.N.T.S., vol. 499, 311.

− Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958,

U.N.T.S., vol. 516, 205.

− Convention on the Law of Treaties, Vienna, 23 May 1969, U.N.T.S., vol. 1155, 331.

− Third United Nations Conference on the Law of the Sea, New York, 1973-1982.

− United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982,

U.N.T.S., vol. 1833, 3.

BILATERAL AND MULTILATERAL AGREEMENTS

− The Bahrain-Saudi Arabia Frontier Agreement, Riyadh, 22 February 1958, U.N.T.S., vol.

1733, I-30248; Limits in the Seas, No. 12.

− Agreement concerning the sovereignty over the islands of Al-'Arabiyah and Farsi and the

delimitation of the boundary line separating the submarine areas between the Kingdom

of Saudi Arabia and Iran, Teheran, 24 October 1968, U.N.T.S., vol. 696, I-9976; Limits in

the Seas, No. 24.

− Agreement between the Government of Malaysia and the Government of Indonesia on

the delimitation of the continental shelves between the two countries, Kuala Lumpur, 27

October 1969, 9 ILM 1970, 1173; Limits in the Seas, No. 1.

− Convention between France and Spain on delimitation of the territorial sea and

contiguous zone in the Bay of Biscay and Convention between the Government of the

French and Republic and the Government of the Spanish State on the delimitation of the

continental shelves of the two states in the Bay of Biscay The Government of the French

Republic and The Government of the Spanish State, Paris, 29 January 1974, National

Legislative Series, UN Doc. No. ST/LEG/SER.B19, 1980, 395 and 445; Limits in the Seas, No

83.

− Agreement between Japan and the Republic of Korea concerning joint development of

the southern part of the continental shelf adjacent to the two countries, Seoul, 30 January

1974, U.N.T.S., vol. 1225, I-19778; Limits in the Seas, No 75.

− Agreement between Italy and Spain Relating to the Delimitation of the Continental Shelf

between the Two Countries, Madrid, 19 February 1974, Limits in the Seas, No 90.

127

− Agreement between India and Sri Lanka on the Boundary in Historic Waters between the

Two Countries and Related Matters, Colombo/New Delphi, 26 June 1974, U.N.T.S., vol.

1049, I-15802; Limits in the Seas, No 66.

− Agreement between Sri Lanka, India and the Maldives on the Determination of Trijunction

Point between the three Countries in the Gulf of Mannar, Gulf of Mannar, 31 July 1976,

UN Legislation Relating to the Law of the Sea, ST/LEG/SER.B/19, 1980, 415.

− Agreement on the maritime boundary between the two countries in the Gulf of Mannar

and the Bay of Bengal and related matters (with map), India/Sri Lanka, New Delphi, 23

March 1976, U.N.T.S., vol. 1049, I-15804.

− Agreement between the Italian Republic and the Hellenic Republic on the Delimitation of

Zones of the Continental Shelf Belonging to Each of the Two States, Athens, 24 May 1977,

U.N.T.S., vol. 1275, I-21048; Limits in the Seas, No. 96.

− Agreement on the delimitation of the maritime boundaries (with annexed chart),

Colombia/Haiti, Port-au-Prince, 17 February 1978, U.N.T.S., Vol. 1155, I-18229.

− Treaty between Australia and the Independent State of Papua New Guinea Concerning

Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including

the Area Known as Torres Strait, And Related Matters, Sydney, 18 December 1978, 18 ILM

1979, 291.

− Treaty between the United States of America and the Cook Islands on Friendship and

Delimitation of the Maritime Boundary between the United States of America and the

Cook Islands, Rarotonga, 11 June 1980, U.N.T.S., vol. 1676, I-28971; Limits in the Seas, No.

100.

− Agreement Between the Government of Brazil and the Government of France Relating to

the Maritime Delimitation Between Brazil and French Guiana, Paris, 30 January 1981, 25

ILM, 1986, 367.

− Agreement on Marine Delimitation between the Government of Australia and the

Government of the French Republic, Melbourne, 4 January 1982, U.N.T.S., vol. 1329, I-

22302.

− Convention on Maritime Delimitation between the Government of His Serene Highness

the Prince of Monaco and the Government of the French Republic, Paris, 16 February

1984, U.N.T.S., vol. 1411, I-23631; 9 LOS Bull., 1987, 58.

− Treaty between the Federal Republic of Nigeria and the republic of Equatorial Guinea

Concerning Their Maritime Boundary, Malabo, 23 September 2000, U.N.T.S., vol. 2205, I-

39154.

128

− The United Nations Agreement for the Implementation of the Provisions of the United

Nations Convention on the Law of the Sea of 10 December 1982 relating to the

Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

(in force as from 11 December 2001), A/CONF.164/37,8 September 1995.

REPORTS

− Preparatory work of the ILC leading to its Report to the U.N. General Assembly, 1950 I.L.C.

Yearbook, Vol. II, 384.

− Report of the International Law Commission Concerning the Work of its Eight Session,

U.N. GAOR 11th Sess., Supp. No. 9, 16-17, U.N. Doc A/3159 (1956).

− Report of the Chairman of the Second Committee, 27 April 1979, Document

A/CONF.62/L.38.

STATEMENTS

- Second Committee, 31st meeting (1974), par. 34-48, II Off. Rec. 234

− The Israelian statements, Second Committee, 9th meeting (1974), par. 5, II Off. Rec. 121.

− The Mexican statements, Second Committee, 9th meeting (1974), par. 2, II Off. Rec. 121.

− The Indonesian statements, Second Committee, 9th meeting (1974), par. 4, II Off. Rec. 121.

− The Egyptian statements, Second Committee, 9th meeting (1974), par. 8, II Off. Rec. 121.

− The Algerian statements, Second Committee, 9th meeting (1974), par. 12, II Off. Rec. 121.

− The Bahraini statements, Second Committee, 9th meeting (1974), par. 19, II Off. Rec. 121.

− The Spanish statements, Second Committee, 9th meeting (1974), par. 24, II Off. Rec. 122.

- Proposal of Great Britain in respect of Basis of Discussion No. 14, L.N. Doc C.74, M. 39,

1929, V.2, 48.

- Statement by the Chairman of the Joint Committee of the Congress of Micronesia

submitted on behalf of the Congress by the United States of America, 60/ in UNITED

NATIONS, OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, Régime of islands, New York,

United Nations Publications, 1988, 28.

JURISPRUDENCE

− ICJ, 18 December 1951, Fisheries Case. Judgment, United Kingdom/Norway, I.C. J. Reports

1951, 116-144.

129

− ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of

Germany/Denmark, ICJ Reports 1969, 3-56.

− ICJ, 20 February 1969, North Sea Continental Shelf Case. Judgment, Federal Republic of

Germany/Netherlands, ICJ Reports 1969, 3-56.

− ICJ, 25 July 1974, Fisheries Jurisdiction Case. Merits, Judgment, United Kingdom/Iceland,

I.C.J. Reports 1974, 3-44.

− Award of the Arbitration Tribunal, 30 June 1977/ 14 March 1978, Delimitation of the

Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and

the French Republic, UK/France, UNRIAA, Vol. XVIII, 3-413.

− ICJ, 19 December 1978, Aegean Sea Continental Shelf Case. Jurisdiction, Greece/Turkey,

I.C.J. Reports 1978, 3-45.

− ICJ, 24 February 1982, Continental Shelf Case. Judgment, Tunisia/Libya, ICJ Reports 1982,

18-94.

− ICJ, 12 October 1984, Delimitation of the Maritime Boundary in the Gulf of Maine Area.

Judgment, Canada/United States of America, ICJ Reports 1984, 246-352.

− ICJ, 3 June 1985, Continental Shelf Case. Judgment, Libya/Malta, ICJ Reports 1985, 13-58.

− ICJ, 27 June 1986, Case concerning Military and Paramilitary Activities in and against

Nicaragua. Merits. Judgment, Nicaragua/United States of America, I.C.J. Reports 1986, 14-

150.

− Décision du Tribunal Arbitral, 10 Juin 1992, Affaire de la délimitation des espaces

maritimes entre le Canada et la République française (St. Pierre et Miquelon), UNRIAA,

Vol. XXI, 265-341.

− ICJ, 14 June 1993, Maritime Delimitation Case in the Area between Greenland and Jan

Mayen. Judgment, Denmark/Norway, ICJ Reports 1993, 38-82.

− PCA, 17 December 1999, Second Stage of the Proceedings between Eritrea and Yemen

(Maritime Delimitation), Eritrea/Yemen, UNRIAA, Vol. XXII, 335-410.

− ICJ, 16 March 2001, Case concerning Maritime Delimitation and Territorial Questions

between Qatar and Bahrain, Merits, Judgment, Qatar/Bahrain, ICJ Reports 2001, 40-118.

− ICJ, 10 October 2002, Case Concerning the Land and Maritime Boundary Between

Cameroon and Nigeria. Judgment, Cameroon/Nigeria; Equatorial Guinea intervening, I.C.J.

Reports 2002, 303-458.

− ICJ, 8 October 2007, Case concerning Territorial and Maritime Dispute between Nicaragua

and Honduras in the Caribbean Sea. Judgment, Nicaragua/Honduras, I.C.J. Reports 2007,

659-764.

130

− ICJ, 13 December 2007, Territorial and Maritime Dispute. Preliminary Objections.

Judgment, Nicaragua/Colombia, I.C.J. Reports 2007, p. 832-877.

− ICJ, 3 February 2009, Case Concerning Maritime Delimitation in the Black Sea. Judgment,

Romania/Ukraine, I.C.J. Reports 2009, 61-134.

− Judge SCHWEBEL, Separate Opinion, in ICJ, 24 February 1982, Continental Shelf Case.

Judgment, Tunisia/Libya, ICJ Reports 1982, 99.

− Judge JIMÉNEZ DE ARÉCHAGA, Separate Opinion, in ICJ, 24 February 1982, Continental Shelf

Case. Judgment, Tunisia/Libya, ICJ Reports 1982, 100-142.

− Judge GROS, Dissenting Opinion, in ICJ, 24 February 1982, Continental Shelf Case.

Judgment, Tunisia/Libya, ICJ Reports 1982, 143-156.

− Judge ODA, Dissenting Opinion, in ICJ, 24 February 1982, Continental Shelf Case. Judgment,

Tunisia/Libya, ICJ Reports 1982, 157-277.

− Judge ODA, Separate Opinion, in ICJ, 14 June 1993, Maritime Delimitation Case in the Area

between Greenland and Jan Mayen. Judgment, Denmark/Norway, ICJ Reports 1993, 89-

117.

− Judge SCHWEBEL, Separate Opinion, in ICJ, 14 June 1993, Maritime Delimitation Case in the

Area between Greenland and Jan Mayen. Judgment, Denmark/Norway, ICJ Reports 1993,

118-129.

− Judge TORRES BERNÁRDEZ, Dissenting Opinion in ICJ, 16 March 2001, Case concerning

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits,

Judgment, Qatar/Bahrain, ICJ Reports 2001, 257-450.

BOOKS AND CONTRIBUTIONS TO BOOKS

− UNITED NATIONS, United Nations Conference on the Law of the Sea. Official Records. Vol. III,

Geneva, United Nations Publications, A/CONF.13/39, 1958, 261.

− UNITED NATIONS, Second United Nations Conference on the Law of the Sea. Official Records.

Vol. I, Geneva, United nations Publications, A/CONF.19.8, 1960, 176.

− HODGSON, R.D. and ALEXANDER, L.M., Towards an Objective Analysis of Special

Circumstances: Bays, Rivers, Coastal and Oceanic Archipelagos and Atolls, Rhode Island,

Law of the Sea Institute, 1972, 54.

− SYMMONS, C.R., The Maritime Zones of Islands in International Law, Nijhoff, The Hague,

1979, 307.

131

− BOWETT, D.W., The legal Regime of Islands in International Law, New York, Oceana

Publications, 1979, 337.

− O’CONNELL, D.P., The International Law of the Sea. Vol. I, Oxford, Clarendon Press, 1982,

634.

− CASTANEDA, J, “Negotiations on the Exclusive Economic Zone at the Third United Nations

Conference on the Law of the Sea” in MAKARCZYK, J (ed.), Essays in International Law in

Honor of Judge Manfred Lachs, The Hague, Martinus Nijhoff Publishers, 1984, 760.

− PLATZÖDER, R., Third United Nations Conference on the Law of The Sea: Documents. Volume

V, New York, Oceana Publications Inc, 1984, 543.

− X, De Derde Zeerechtconferentie van de Verenigde Naties, (Ned) Ministerie van

Buitenlandse Zaken, ‘s-Gravenhage, Staatsuitgeverij, 1984, 263.

− KAPOOR, D.C. and KERR, A.J., A guide to Maritime Boundary Delimitation, Toronto, Carswell

Legal Publications, 1986, 123.

− ATTARD, D., The Exclusive Economic Zone in International Law, New York, Oxford University

Press, 1987, 416.

− BEAZLEY, P.B., Maritime Limits and Baselines; a guide to their delineation, Third revised

edition, London, The Hydrographic Society, 1987, 54.

− WEIL, P., Perspectives du droit de la délimitation maritime, Paris, Pedonne, 1988, 319.

− UNITED NATIONS, OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, Régime of islands, New

York, United Nations Publications, 1988, 124.

− PHARAND, D., Canada’s Arctic Waters in International Law, Cambridge, Cambridge

University Press, 1988, 288.

− UNITED NATIONS, OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, The Law of the Sea.

Baselines: an examination of the relevant provisions of the United Nations Convention on

the law of the sea, New York, United Nations Publications, 1989, 67.

− WARRICK, R.A. and OERLEMANS, J “Sea level rise” in HOUGHTON, J.T., JENKINS, G.J. and

EPHRAUMS, J.J. (eds.), Climate Change – The IPCC scientific Assessment, Cambridge,

Cambridge University Press, 1990, 410.

− JAYEWARDENE, H.W., The Regime of Islands in International Law in Publications on Ocean

Developments, Dordrecht, Martinus Nijhoff Publishers, 1990, 572.

− REISMAN, W.M. and WESTERMAN, G., Straight baselines in International Maritime Boundary

Delimitations, New York, St. Martin’s Press, 1992, 242.

− NORDQUIST, United Nations Convention on the Law of the Sea 1982. A commentary. Vol. II,

Dordrecht, Martinus Nijhoff Publishers, 1993, 1040.

132

− BOWETT, D., “Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary

Delimitations” in CHARNEY, J.I. & ALEXANDER, L.M., International Maritime Boundaries.

Volume I, ASIL, Martinus Nijhoff Publishers, 1993, 131-151.

− OUDE ELFERINK, A.G., The Law of Maritime Boundary Delimitation. A Case Study of the

Russian Federation. in Publications on Ocean Developments, Dordrecht, Martinus Nijhoff

Publishers, 1994, 431.

− MUNAVVAR, M., Ocean States: Archipelagic Regimes in the Law of the Sea in Publications

on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 1994, 225.

− BROWN, E.D., The International Law of the Sea. Volume 1 Introductory Manuel, Aldershot,

Dartmouth, 1994, 494.

− LALL, V.K. and KHEMCHAND, D., Encyclopaedia of International Law, New Delhi, Anmol

Publications, 1997, 1852.

− SHAW, M.N., International Law. 5th edition, Cambridge, Cambridge University Press, 2003,

1297.

− CHURCHILL, R.R. and LOWE, A.V., The Law of the Sea. 3rd edition, Manchester, Manchester

University Press, 1999, 494.

− KOLB, R., Case Law on Equitable Maritime Delimitation / Jurisprudence sur les délimitations

maritimes selon l'équité. Digest and Commentaries / Répertoire et commentares in

Publications on Ocean Developments, Dordrecht, Martinus Nijhoff Publishers, 2003, 575.

− ANTUNES, N, Towards the Conceptualisation of Maritime Delimitation in Publications on

Ocean Development, Leiden, Martinus Nijhoff Publishers, 2003, 684.

− TREVES, T., “The Law of the Sea Convention Ten Years after Entry into Force: Positive

Developments and Reasons for Concern” in CARON, D. and SCHEIBER, H., Bringing New Law

to Ocean Waters in Publications on Ocean Development, Dordrecht, Martinus Nijhoff

Publishers, 2004, 349-354 (497).

− KIM, S.P., Maritime Delimitation and Interim Arrangements in North East Asia in

Publications on Ocean Development, Martinus Nijhoff Publishers, Leiden, 2004, 386.

− CARLETON, C., “Maritime Delimitation in Complex Island Situations: A Case Study on the

Caribbean Sea” in R. LAGONI and D. VIGNES, Maritime Delimitation in Publications on Ocean

Developments, Dordrecht, Martinus Nijhoff Publishers, 2006, 153-188 (241).

− LOWE, A.V., International Law, Oxford University Press, Oxford, 2007, 298.

− NORCHI, C.H., “Malta, Maine and beyond. Trends in the theory and practice of maritime

boundary delimitation.” in MARTÍNEZ GUTIÉRREZ, N.A., Serving the Rule of International

133

Maritime Law. Essays in Honour of Professor David Joseph Attard, Oxon, Routledge, 2010,

77-94 (404).

− SOMERS, E., Inleiding tot het internationaal zeerecht, 5de herwerkte uitgave, Mechelen,

Kluwer, 2010, 512.

ARTICLES

− BINGHAM, J.W., “The Continental Shelf and the Marginal Belt”, 40 AJIL 1946, 173-178.

− BERRY, K.B., “Delimitation and the Anglo-French arbitration”, 6 Australian Yearbook of

International Law 1974, 139-152.

− KARL, D.E., “Islands and the Delimitation of the Continental Shelf: A framework for

Analysis”, 71 AJIL 1977, 642-673.

− LEE, L.T., “The Law of the Sea Convention and Third States”, 77 AJIL, 1983, 541-568.

− FELDMAN, M.B., “The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial

Compromise”, 77 AJIL 1983, 219-238.

− SURACE-SMITH, K., “United States Activity Outside of the Law of the Sea Convention: Deep

Seabed mining and Transit Passage”, 84 Colum. L. Rev. 1984, 1032-1058.

− BAILEY, J.E. III, “Comment: The Exclusive Economic Zone: Its Development and Future in

International and Domestic Law”, 45 La. L. Rev. 1985, 1269-1297.

− CHARNEY, J.I., “International Agreements and the Development of Customary Law”, 61

Wash. L. Rev. 1986, 971-996.

− WESTERMAN, G.S. and REISMAN, W.M., “Straight baselines in international law: a call for

reconsideration”, 82 ASIL Proc. 1988, 260-277.

− SYMONIDES, J., “Origine and Legal Essence of the Contiguous Zone”, 20 Ocean Devel. & Int’l

L. 1989, 203-211.

− ARRUDA, H.M., “The Extension of the United States Territorial Sea: Reasons and Effects”, 4

Conn. J. Int’l L. 1989, 697-727.

− BIRD, E. and PRESCOTT, V., “Rising Global Sea Levels and National Maritime Claims”, 1 Mar.

Pol’y. Rep. 1989, 177-196.

− INTERNATIONAL HYDROGRAPHIC ORGANIZATION TECHNICAL ASPECTS ON THE LAW OF THE SEA WORKING

GROUP, “Consolidated Glossary of Technical Terms Used in the United Nations Convention

on the Law of the Sea”, 51 International Hydrographic Bureau Special Publication 1989.

− NELSON, L.D.M., “The Roles of Equity in the Delimitation of Maritime Boundaries”, 84 AJIL

1990, 837-858.

134

− MCDORMAN, T.L., “The Canada-France Maritime Boundary Case: Drawing A Line Around St.

Pierre and Miquelon”, 84 AJIL 1990, 157-189.

− MENEFEE, S.P., ““Half Seas Over”: The Impact of Sea Level Rise on International Law and

Policy”, 9 UCLA J. Envtl. L. & Pol'y. 1991, 175-218.

− REMY, C.E., “U.S. Territorial Sea Extension: Jurisdiction and International Environmental

Protection”, 16 Fordham Int’l L.J. 1993, 1208-1252.

− CLINGAN, T., “Mar Presencial (The Presential Sea): Déjà Vu All Over Again? A Response to

Francisco Orrega Vicuña”, 24 Ocean Devel. & Int’l L.J., 1993, 93-97.

− CHARNEY, J.I., “International Maritime Boundary Delimitation -- Geneva Convention on the

Continental Shelf -- Equidistant Line -- Special Circumstances. Maritime Delimitation in the

Area Between Greenland and Jan Mayen (Den. v. Nor.) 1993 ICJ Rep. 38 International

Court of Justice, June 14, 1993.”, 88 AJIL 1994, 105-109.

− KOLB, R., “L’interprétation de l’Article 212, Paragraphe 3, de la Convention de Montego

Bay sur le Droit de la Mer: ‘Les “Rochers qui ne se Prêtent pas à l’Habitation Humaine ou à

une Vie Économique Propre…”’”, 40 Annuaire Français de Droit International 1994, 876-

909.

− CHURCHILL, R.R., “The Greenland-Jan Mayen Case and its Significance for the International

Law of Maritime Boundary Delimitation”, 9 IJMCL 1994, 1-29.

− DUBNER, B.H., “The Spratly “Rocks” Dispute – A “Rockapelago” defies norms of

International Law”, 9 Temp. Int’l & Comp. L.J., 1995, 291-331.

− CLAGGETT, B.M., “Competing Claims of Vietnam and China in the Vanguard Bank and Blue

Dragon Areas of the South China Sea: Part I”, 13 Oil & Gas L. & Tax’n Rev., 1995, 375.

− CHARNEY, J.I., “Central East Asian Maritime Boundaries and the Law of the Sea”, 89 AJIL

1995, 724-749.

− NIKAS, R.J., “Where The Street Meets The Sea: A Nautical Glossary For Maritime Lawyers”

9 U.S.F. Mar. L.J. 1996, 245-278.

− CAMPBELL, A.M., “International Law – Maritime Delimitation and Territorial Dispute –

Qatar v. Bahrain, 1994 I.C.J. 112 (July 1)”, 19 Suffolk Transnat’l L. Rev. 1996, 573-578.

− LEVICK, A.J., “From sovereignty to fishing rights: the historical evolution of the law of the

territorial sea”, 3 Dig.Int’l L, 1995-1996, 36 (no page numbers available on Westlaw).

− ZUMWALT, A., “Straddling Stock Spawn Fish War on the High Seas”, 3. U.C. Davis J. Int’l. L &

Pol. 1997, 35-56.

− KOZYRIS, P.J., “Lifting the veils of equity in maritime entitlements: equidistance with

proportionality around the islands”, 26 Denv. J. Int’l L. & Pol’y. 1998, 319-388.

135

− ROACH, J.A. and SMITH, R.W., “Straight Baselines: The Need for a Universally Applied

Norm”, 31 Ocean Devel and Int’l L. 2000, 47-80.

− CHARNEY, J.I., “Rocks that cannot sustain human habitation”, 93 AJIL 1999, 863-878.

− CARLSON, J., “Presidential Proclamation 7219: Extending the United States’ Contiguous

Zone – Didn’t someone say this had something to do with pollution?”, 55 U. Miami L. Rev.

2001, 487-526.

− YOSHIFUMI, T., “Reflections on the Concept of proportionality in the Law of Maritime

Delimitation”, 16 IJMCL 2001, 433-463.

− KWIATKOWSKA, B., “The Eritrea-Yemen Arbitration: Landmark progress in the Acquisition of

Territorial Sovereignty and Equitable Maritime Boundary Delimitation”, 32 Ocean Devel.

and Int’l L. 2001, 1-25.

− ARNAUT, D, “Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea

Delimitation Between Croatia and Slovenia, 8 Ocean and Coastal L.J. 2002, 21-69.

− CARLETON, C. and SCOFIELD, C., “Developments in the Technical Determination of Maritime

Space: Delimitation, Dispute Resolution, Geographical Information System and the Role of

the Technical Expert”, 4 Maritime Briefing, 2002, Vol. 3, 1-62.

− LLANOS, H.I., “Low-Tide Elevations: Reassessing their impact on Maritime Delimitation”, 14

Pace Int’l L. Rev. 2002, 255-272.

− WEI SU, S., “The Tiaoyu Islands and Their Possible Effect on the Maritime Boundary

Delimitation between China and Japan”, 3 Ch. J. Int’l. L., 2004, 385-420.

− LAVALLE, R., “Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations

Under the UN Law of the Sea Convention”, 19 I.J.M.C.L. 2004, 43-69.

− ONISHI, N., “Japan and China Dispute a Pacific Islet”, N.Y. Times, 10 July 2005, 4.

− IGIEHON, M.O., “Present International Law on Delimitation of the Continental Shelf”,

I.E.L.T.R., 2006, 8/9, 208-215.

− LEE, M.L., “The interrelation between the Law of the Sea Convention and Customary

International Law”, 7 San Diego Int’l L.J. 2006, 405-420.

− DUNDUA, N., “Delimitation of maritime boundaries between adjacent states”, New York,

United Nations – The Nippon Foundation Fellow, 2006-2007,

http://www.un.org/Depts/los/nippon/unnff_programme_home/fellows_pages/fellows_p

apers/dundua_0607_georgia.pdf.

− FRANCKX, E, “The 200-Mile Limit: Between Creeping Jurisdiction and Creeping Common

Heritage? Some Law of the Sea Considerations from Professor Louis Sohn’s former LL.M.

Student”, 39 Geo. Wash. Int’l L. Rev. 2007, 467-498.

136

− DIAZ, L., DUBNER, B.H. and PARENT, J., “When is a “Rock” an “Island”? – Another unilateral

declaration defies “norms” of International Law”, 15 Mich. St. J. Int’l L. 2007, 519-555.

− KAYE, S., “Lessons learned from the Gulf of Maine Case: The development of Maritime

Boundary Delimitation Jurisprudence since UNCLOS III”, 14 Ocean and Coastal L. J. 2008,

73-99.

− LATHROP, C.G., “Territorial and Maritime Dispute Between Nicaragua and Honduras in the

Caribbean Sea (Nicaragua v. Honduras). At http://www.icj-cij.org. International Court of

Justice, October 8, 2007”, 102 AJIL 2008, 113-119.

− DEHGHANI, R., “Continental Shelf Delimitation in the Persian Gulf”, New York, The United

Nations – Nippon Foundation Fellowship Programme, 2008-2009,

http://www.un.org/Depts/los/nippon/unnff_programme_home/fellows_pages/fellows_p

apers/dehghani_0809_iran.pdf.

− JARES, V., “Symposium Mounting Tension and Melting Ice: Exploring the Legal and Political

Future of the Arctic. The Continental Shelf Beyond 200 Nautical Miles: The Work of the

Commission on the Limits of the Continental Shelf and the Arctic”, 42 Vand. J. Transnat’l.

L. 2009, 1265-1305.

− LATHROP, C. G., “Maritime delimitation in the Black Sea (Romania v Ukraine). At

http://www.icj-cij.org. International Court of Justice, February 3, 2009”, 103 AJIL 2009,

543-549.

− MCDORMAN, T.L., “Canada-United States Cooperative Approaches to shared Marine

Fishery Resources: Territorial subversion?”, http://students.law.umich.edu/mjil/article-

pdfs/v30n3-McDorman2.pdf (2009).

− VAN DYKE, J., “The Maritime boundary between North & South Korea in the Yellow (West)

Sea,” 38 North, U.S.-Korea Institute Johns Hopkins University School of Advanced

International Studies, July 29, 2010, www.38north.org/?p=1232.

− SHI, J., “The Wang Tieya Lecture in Public International Law: Maritime Delimitation in the

Jurisprudence of the International Court of Justice”, 9 Ch. J. Int’l L. 2010, 271-291.

− NORCHI, C.H., “Introduction: Twenty-five years of the Gulf of Maine Judgment”, 15 Ocean

& Coastal L.J. 2010, 177-184.

− ALAM, S. and AL FARUQUE, A., “The Problem of Delimitation of Bangladesh’s Maritime

Boundaries with India and Myanmar: Prospects for a Solution”, 25 IJMCL 2010, 405-423.

− LAUTERPACHT, E., GREENWOOD, C. and LEE, K., “QATAR v. BAHRAIN (MERITS)”, 139 ILR 2011,

1-10.

137

− PLANTEGENEST, M., IOSIPESCU, M. AND MACNAB, R., “The French Islands of Saint Pierre et

Miquelon: A Case for the Construction of a Discontinuous Juridical Continental Shelf?”,

http://www.gmat.unsw.edu.au/ablos/ABLOS03Folder/PAPER5-1.PDF, 11.

WEBSITES

− http://www.un.org.

− http://www.un.org/Depts/los/LEGISLATIONANDTREATIES.

− http://data.un.org/.

− http://unstats.un.org/ .

− http://treaties.un.org/ .

− http://www.icj-cij.org.

− http://www.pca-cpa.org.

− http://www.itlos.org.

− http://www.haguejusticeportal.net.

− http://www.38north.org.

− http://nl.alumnieeni.com/.

− http://www.bipm.org.

− http://joongangdaily.joins.com .

− http://english.hani.co.kr.

− http://www.theestimate.com.

− http://www.gmat.vnsw.edu.au.

− http://www.weinterrupt.com.