This particular study, therefore, will be based on the delimitation of maritime boundaries in respect to the different approaches followed by the International Court of Justice in situations such as those concerning the North Sea Continental Shelf Cases (

Nonetheless, the consideration of a number of different cases will help us understand better the development of the law of the sea and will clearly identify any uncertainties and specific problems. Before, however, precede further into any particular case and try to unfold all the relevant issues, we must note at this stage the existence of the median line principle. In particular, territorial sea delimitations between opposite states have to be agreed upon a median line, equidistant from the nearest points of the opposing states’ shores, as the boundary. This was done for example, in the 1932 Danish – Swedish Declaration concerning the Sound, for a large part of the boundary between the two States. Sometimes States have employed instead the centre line of the main deep – water channel passing between their shores: an instance of this is the 1928 Agreement between Great Britain and the Sultan of Johore concerning the Johore Strait. Also, the delimitation of territorial seas of adjacent states has been less consistent. Substantial use has been made of the equidistance principle by drawing a median line, although, in many situations, the examination of a number of other criteria has proved to be necessary. 

Furthermore, in respect to the delimitation of the continental shelf, in early years of the twenty century, there is no evidence of the application of any clear principle. It is true that the first ever agreed delimitation, in 1942 between the then British colony of Trinidad and Venezuela, was resolved upon an ‘equitable division’ between the two territories concerned. Similarly, the Truman Proclamation in 1945 referred to the application of ‘equitable principles’ in determining boundaries. The then President of the United States said that: “having concern for the urgency of conserving and prudently utilizing its mineral resource, the government of the United State regards the natural resources of the sub-soil and sea-bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control…”

Despite all the above, however, one of the most significant pages of the International Law of the Sea ‘book’ was undoubtedly written by the International Court of Justice in the North Sea Continental Shelf Cases (1969). The decision of the Court in this particular case is surely one of the most interesting as well as debatable decisions in its history. It deals with certain aspects of one of the most important new developments of international law, the doctrine of the Continental Shelf and touches on some basic problems of the sources of international law. Beyond all, however, the Court was compelled to formulate certain principles of general equity as applicable to the delimitation of the continental shelves between three of the coastal states of the North Sea. It is this attempt of the Court to formulate the general principles of equity applicable to a fair allocation of the resources of the Continental Shelf between neighbours that has been the main issue of many academic discussions over the years.

In respect to the area concerned, the North Sea has, in the words of the Court “to some extent the general look of an enclosed sea without actually being one. Round its shores are situated, on the eastern side and starting from the north, Norway, Denmark, the Federal Republic of Germany, The Netherlands, Belgium and France; while the whole western side is taken up by Great Britain, together with the island groups of the Orkneys and Shetlands”. 

After a series of agreements, between the United Kingdom on the western side, and Norway, Denmark and The Netherlands on the eastern side, they have managed to fix the respective boundaries of the continental shelves according to the principle of the median line.  In addition, the Federal Republic, by agreements of 1964 and 1965 with Denmark and The Netherlands, established certain partial boundary lines. However, the Federal Republic was unable to reach agreement with Denmark and The Netherlands on the other boundaries, which the latter two states wished to determine in accordance with the “equidistance principle”. This is defined in Article 6 (1) of the Continental Shelf Convention as “the median line, every point of which is equidistant from the nearest points of the base lines from which the breadth of the territorial sea of each state is measured”. The Court describes the “equidistance line” as “one which  leaves to each of the parties concerned all those portions of the Continental Shelf that are nearer to a point on its own coast than they are to any point on the coast of the other party”.

The problem, therefore, was that the application of the equidistance principle of article 6 would give Germany only a small share of the North Sea Continental Shelf, in view of its concave northern shoreline between Holland and Denmark (Germany had not ratified the Convention).  By two special agreements then on 2 February 1967 between Denmark and the Federal Republic of Germany and between the latter and the Netherlands, the States requested the International Court of Justice to declare: “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 which appertain to each of them beyond the partial boundary determined by the above mentioned Convention of 9 June 1965?” The Court, therefore, was not asked to determine the continental shelf boundaries but to consider which legal principles are applicable to the situation. The delimitation of the continental shelf boundaries was left to the Parties themselves. 

The International Court of Justice held that the principles stated in article 6 of the Continental Shelf Convention did not constitute rules of international customary law and therefore Germany was not bound by them.  According to the Court’s view, “delimitation is to be affected 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, without encroachment on the natural prolongation of the land territory of the other. Thus, the decision of the Court was that the determination of maritime spaces must be in accordance with equitable principles and the consideration of all relevant issues. Among some of those determining factors was the element of a reasonable degree of proportionality between the lengths of the coastline and the extent of the continental shelf.

This particular approach followed by the International Court of Justice in the North Sea Continental Shelf Cases has certainly affected all subsequent cases massively. Despite this, however, and although the delimitation rule in article 6 of the Continental Shelf Convention and the customary rule are rather differently formulated, and even though the Court in the North Sea Continental Shelf cases stressed that the rule in article 6 had not passed into customary law, there has been a tendency to see them as leading to much the same affect. Thus, in the Anglo-French Continental Shelf case in 1977, it was stated that the equidistance–special circumstances rule of article 6, which the tribunal saw as a single rule rather that two rules, “in effect gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles”. In addition to that, the International Court of Justice went even further and in the Greenland/Jan Mayen case expressed the view that “if the equidistance-special circumstances rule of the 1958 Convention is, in the light of this 1977 Decision, to be regarded as expressing a general norm based on equitable principles, it must be difficult to find any material difference- at any rate in regard to delimitation between opposite coasts-between the effect of Article 6 and the effect of the customary rule which also requires a delimitation based on equitable principles”.

It seems, therefore, that the Court has associated article 6 of the Convention with the customary international law principles on the delimitation of continental shelf. Such an approach certainly goes further than the view expressed in the Anglo-French Continental Shelf case where the tribunal emphasised that “under article 6 the equidistance principle ultimately possesses an obligatory force which it does not have in the same measure under the rules of customary law” and that “the rule of customary law are a relevant and even essential means for both interpreting and completing the provisions of article 6”.

Nevertheless, before we consider a different approach adopted by the International Court of Justice in the Greenland/Jan Mayen Case (1993) and try to explore all the relevant issues that contributed to the development of a more clear and comprehensive legal framework in relation to the delimitation of maritime boundaries, it will be a mistake not to mention the terms ‘special circumstances’ and ‘relevant circumstances’ introduced by article 6 of the Convention and customary law respectively. The term ‘special circumstances’, therefore, has traditionally been considered as being comparatively narrow in scope: for example, the International Law Commission regarded ‘special circumstances’ as embracing exceptional configurations of the coast and the presence of islands and navigable channels. On the other hand, ‘relevant circumstances’ have been recognised as being a much wider term. Indeed, the International Court of Justice expressed the view, in the North Sea Continental Shelf Cases, that there was no limit to the king of circumstances that might be taken into account in effecting an equitable delimitation. Subsequent cases, however, tended to narrow such circumstances to those that are relevant to the continental shelf and are primarily geographical in character.

After revising, therefore, a number of different cases we can confidently identify the existence of a range of special-relevant circumstances. Some of the most consistent and significant one may be the configuration of the coast such as the concavity of the German coast in the North Sea Continental Shelf Cases and the presence of relatively small islands, which either will be given less than full effect as in the Anglo-French Continental Shelf case, or full effect as illustrated by the Greenland/Jan Mayen and Libya/Malta cases. Additionally, difference in the lengths of the relevant coastlines has been accepted as constituting to a relevant circumstance, especially in the case of the opposite coast. Where an equidistance lines is drawn as the provisional boundary between two coastlines of markedly different lengths, there will be a considerable degree of disparity between the ration of the coastline to each other and the ratio of the areas of continental shelf attaching provisionally to each party. Therefore, courts are under the obligation to adjust the provisional boundary line so that there is a reasonable degree of proportionality, or at least not excessive disproportional, between the length of the each party’s coastline and the area of continental shelf attaching to it, as was carried out in the Greenland/Jan Mayen case.

Furthermore, another relevant issue, which must be taken into account, is the prior conduct of the parties, such as having contracted a temporary boundary line. In cases like the Tunisia/Libya one or the Greenland/Jan Mayen case, the relevance of the prior conduct has been recognised, despite the fact that Court find that there was sufficient concordance of conduct for it to be relevant. Moreover, as we have seen in the North Sea Continental Shelf Case, the International Court emphasised on the concept of the natural prolongation of land territory as a factor in continental shelf boundary delimitation. As result, geological and geomorphologic features, such as a deep trench amounting to discontinuity in the seabed, would possibly constitute relevant circumstances.

However, despite the above identification of a number of different special or relevant circumstances, which must be considered in determining maritime spaces, the relevant rules and principles still remaining uncertain. The fact that court and tribunals have a wide discretion as to which of these criteria are selected and how they are weighted means that in any particular case it is very difficult to predict what line will be chosen as the boundary by the court or tribunal concerned. As a result, it will be not a mistake if we agree with a number of writers who believe that the courts and tribunals are not applying rules of law when they engage in delimitating boundaries; indeed, we can easily accept that they are in effect making a judgement ex aequo et bono. 

Nevertheless, another significant step towards the development of the law in relation to the delimitation of maritime boundaries has been the approach followed by the International Court of Justice in examining the Greenland/Jan Mayen case (1993). In particular, on 14 June 1993 the International Court of Justice delivered its judgment in the case concerning maritime delimitation in the area between Greenland and Jan Mayen (Denmark v. Norway). In this case the court was asked to determine the boundary between the continental shelves and 200-mile fishery zones of the Norwegian island of Jan Mayen and the Danish island of Greenland. In doing so, the case marks an important step in the development of the international law of maritime boundary delimitation, especially because it is the first time that the full Court has had to consider the delimitation of the boundaries of maritime zones other than the continental shelf, and the first time that the court has had to apply Article 6 of the 1958 Convention on the Continental Shelf.

Jan Mayen is a relatively small island situated some 250 miles from the coast of Eastern Greenland. Norway annexed the island in 1929. Greenland, which had been a colony of Denmark, became an integral part of the Kingdom of Denmark in 1953 and was granted home rule in 1978. In 1980 both Denmark and Norway extended their fishery jurisdiction zones in the area to a full 200 miles. Primarily, both sides respected the median line as a de facto boundary but, in response to alleged enforcement action by Norway beyond the median line, Denmark asserted jurisdiction over the full 200 miles. In 1988, therefore, Denmark filed an application requesting from the International Court of Justice to determine the maritime boundaries between the parties in the area, basing itself upon the compulsory jurisdiction enjoyed by the Court in the light of the declarations made by both parties under Article 36(2) of the Court's Statute; making it the first maritime delimitation case in which the Court's jurisdiction has not been based upon a special agreement between the parties.

However, Denmark asked the Court to settle on “a single line of delimitation of the fishing zone and continental shelf area” whilst Norway argued that, although the median line constituted the boundary for both zones, the two lines should remain conceptually distinct. The reason Norway adopted this “two zones-coinciding line” argument is obvious. First, Norway was to claim that the equidistance line already formed the continental shelf boundary. It did not wish to question its suitability by agreeing to seek a single line appropriate to both zones. Second, both States were parties to the 1958 Geneva Convention on the Continental Shelf and so Article 6, specifying the use of equidistance in the absence of agreement or unless another line is justified by special circumstances, would apply to the delimitation of the continental shelf as a matter of treaty law. 

Although Denmark had asked the Court to draw a single boundary, the Court decided, that, since there was no special agreement between the parties requesting it to draw a single line, it should examine separately the two strands of applicable law. It therefore engaged into separate delimitation exercises, one for the continental shelf and the other in respect of the 200 – mile fishing zone of Greenland and Jan Mayen, although ultimately the two boundaries drawn by the Court instantaneous. In respect to the fishing zone boundary, the Court decided as a first step to determine such a boundary by applying the customary law governing Exclusive Economic Zone delimitation.

However, the Court claimed that it was delimiting two zones and not producing a single line serving two purposes; it is difficult to accept that this is what in fact it did. After having confirmed the applicability of Article 6 to the continental shelf delimitation, the Court said that “this does not mean that [it] can be interpreted and applied without reference to customary law on the subject, or wholly independently of the fact that a fishery zone boundary is also in question”. Whereas in the Anglo-French case Article 6 had been placed in the context of customary law in order to justify importing the flexibility of “equitable principles” into the conventional rule, in the Jan Mayen case the Court used this linkage to justify exporting the equidistance method into customary law and concluded that: “If the equidistance-special circumstances rule of the 1958 Convention is, in the light of [the Anglo-French case], to be regarded as expressing a general norm based on equitable principles, it must be difficult to find any material difference—at any rate in regard to delimitation between opposite coasts—between the effect of Article 6 and the effect of the customary rule which also requires a delimitation based on equitable principles”.

Nevertheless, we can clearly identify that the law in respect to the delimitation of maritime boundaries is an extremely complex and confusing issue of our days. The International Court of Justice plays a significant role towards the evolution of this particular area. Despite this, however, has failed to provide us with a clear and comprehensive legal framework based on which a number of cases may find a reasonable solution. The different approaches followed by the International Court of Justice in an attempt to determine maritime boundaries in the two cases discussed above certainly represent the existence of confusion and uncertainty. However, even though recent development, such as the UN’s Convention in 1982, have introduced a number of new concepts like articles 74 and 83, the delimitation of maritime boundaries still remains to be one of the most sensitive and difficult issues between neighbouring States; legally and politically. Finally, because of the recent developments in the international law of the sea, our troubled globe now faced with innumerable new tasks of the drawing of boundary lines between neighbouring States.

 

Bibliography

Books

Churchill R., & Lowe A., (1999) “The Law of the Sea” 3 ed., Manchester University Press

Tanaka, Y., (2006) “Predictability and Flexibility in the Law of Maritime Delimitation”, Oxford, Hart Publishing

Shaw N. Malcolm (2003), “International Law”, 5th Ed., Cambridge University Press

Internet/Articles

Adel Omar Alsied (2006) “Delimitation of Maritime Boundaries with special reference to the EEZ and the IMO Conventions Regime: a Libyan case study”,
http://www.un.org/Depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/alsied_0506_libya.pdf

Churchill R., “The Greenland-Jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation”, International Journal of Marine and Coastal Law, Vol. 9, (1994)

George Galdorisi, “The common heritage of mankind: a view from the flagship bridge” 
http://www.omg.unb.ca/LawOfTheSea/introduc.htm

Malcolm D. Evans “Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway)”, ICLQ, Vol. 43, (1994)

Friedmann, W. “The North Sea Continental Shelf Cases-A Critique”, AJIL, Vol. 64, 1970, p.229-230  

Truman Proclamation No. 2667 of September 1945.

 

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