UNIVERSITY OF NAIROBI

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1 UNIVERSITY OF NAIROBI THE STATUS OF MARITIME BOUNDARIES IN KENYA RATENG JACKLINE F19/2548/2008 A project report submitted to the Department of Geospatial and Space Technology in partial fulfillment of the requirements for the award of the degree of: Bachelor of Science in Geospatial Engineering APRIL 2013.

2 Abstract This project is a report on the status of maritime delimitation process in Kenya. It involves the detailed definition of maritime boundaries, the methods used in establishing these boundaries and the steps accomplished so far in this process. The project also includes a number of relevant case laws that have been used in the explanation of the methods used in the establishment of maritime boundaries. From the study, we are able to understand the Law of the Sea, its real life application and the factors that influence the delimitation of maritime boundaries. The project also brings out frequent maritime boundary issues that come up and possible approaches for resolving these issues. In addition, this project has concisely presented the current status of the Kenyan maritime boundary. The Kenya Tanzania maritime boundary has been described in detail and an in-depth discussion follows the description. Similarly, the Kenya Somalia maritime boundary has also been discussedand the issues affecting this boundary have been clearly brought out alongside possible solutions. It can be concluded that Kenya has reasonably mapped its maritime boundaries and talks are underway to resolve the boundary with disputes. ii

3 Dedication To my late mother Phoebe and father Arthur, for their unwavering support in all my pursuits. iii

4 Acknowledgements The author would liketo thank the Division for Ocean Affairs and the Law of the Sea of theunited Nations, the Survey ofkenya andmr. Mugambi and Mr. Rotich from the commission on delimitation of Kenya s continental Shelf for providing the background for carrying out this research. Special thanks go to Mr. Nyadimo, of Oakar services for his kind support and suggestions during the research. Sincere gratitude goes to my supervisors Mr. D.K Macoco, and Mr. B.M. Okumu for their professional assistance. Without their assistance it would not have been possible to accomplish this research. The author also thanks Dr. Musyoka for sharing his experience and giving guidelines in the process of drafting the research theme. Also, the author thanks the Technicalstaff, all from the Department of Geospatial and Space Technology. Finally, the author wishes to thank, her family, friends and colleagues from the department of Geospatial and space technology, for their input and moral support. iv

5 CS CZ EEZ HS ICJ LOS Km nm TS UN UNCOLOS CLCS List of Abbreviations & Acronyms Continental Self Contiguous Zone Exclusive Economic Zone High Seas International Court of Justice The Law of the Sea Kilometer nautical mile(s) Territorial Sea United Nations United Nations Convention on the Law of the Sea Commission on the Limits of the continental Shelf v

6 TABLE OF CONTENTS Abstract... ii Dedication... iii Acknowledgements... iv List of Abbreviations & Acronyms... v List of Figures... viii CHAPTER ONE: INTRODUCTION Backgroundto the Study Statement of the Problem Objectives Scopeof the Study Organization of the Report CHAPTER TWO: LITERATURE REVIEW Kenyan Maritime Geographic Context Delimited Maritime Boundaries... 9 CHAPTER THREE: METHODOLOGY Determination of the Maritime Zones The Establishment of Baselines Territorial Sea Contiguous zone Exclusive Economic Zone Continental Shelf The Main Methods and Principles of Delimitation Equidistance Equity and the Equitable Principle Single Maritime Boundary Proportionality Perpendicular Method Latitude and Longitude Method Relevant Circumstances Geographical Circumstances Non -geographical Circumstances Kenyan Maritime Boundaries vi

7 3.4.1 Kenya Tanzania Maritime Boundary Kenya-Somalia maritime boundary CHAPTER FOUR: DISCUSSION CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS Conclusions Recommendations Appendix vii

8 List of Figures Figure 1.1: Showing Maritime Zones.7 Figure 2.1: Map of East Africa Showing Kenya and its Neighbours.8 Figure 2.2: Showing the Extents of 200nm of the Coastal States of the Indian Ocean Region...11 Figure 3.1: Showing the 2002 Cameroon/Nigeria Case Figure 3.2: Showing the 1984 Gulf of Maine Case.. 24 Figure 3.3: Showing the 1982 Tunisia/Libya Case Figure 3.4: Showing the 1969 North Sea Case Figure 3.5: Zoomed in Nautical Chart of the Kenya.-Tanzania Territorial Sea...45 Figure 3.6: Nautical chart showing the Kenya - Tanzania Maritime Boundary...46 Figure 3.7: Showing the disputed Kenya-Somalia Oil and Gas Exploration Blocks viii

9 CHAPTER ONE: INTRODUCTION 1.1 Backgroundto the Study A maritime boundary is a conceptual division of the Earth's water surface areas using physiographic and/or geopolitical criteria. As such, it usually includes areas of exclusive national rights over mineral and biological resources encompassing maritime features, limits and zones. Generally, a maritime boundary is delineated through a particular measure from a jurisdiction's coastline also known as baseline and this must be confined to the requirements of the Law of the Sea (LOS). Every coastal state has jurisdiction over the oceans and seas, the limits of which are defined by international conventions and national regulations must confirm to international law. The Law of the Sea, in its essence, divides the seas into zones and specifies the rights and duties of states and ships flying their flags in those zones (Henkin, 1979) Maritime boundaries exist in the context of internal waters, territorial, contiguous zones, and exclusive economic zones; however, the terminology does not encompass lake or river boundaries, which are considered within the context of land boundaries. The zones of maritime boundaries are expressed in concentric limits surrounding coastal and feature baselines. These are: Coastal waters/internal waters the zone extending 3 nm from the baseline. Territorial sea the zone extending 12 nm from the baseline. Contiguous zone the area extending 24 nm from the baseline. Exclusive Economic Zone the area extending 200 nm from the baseline except when the space between two countries is less than 400 nm. Continental Shelf. Maritime boundaries are sometimes controversial, thus countries have to enlist help from the United Nations to solve such disputes. Controversies about territorial waters tend to encompass two dimensions: (a) territorial sovereignty, which are a legacy of history; and (b) relevant jurisdictional rights and interests in maritime boundaries, which are mainly due to differing 1

10 interpretations of the Law of the Sea. An example of this may be reviewed in the context of the ongoing Kuwait-Iraq maritime dispute over the KhawrAbd Allah waterway. Closer home, however, is the Kenya-Somalia dispute over the oil blocks lying in their Indian Ocean boundary. Historically, customary international law has established the law that governed the ocean, as well as maritime zone delimitation. The first sporadic attempts to codify the LOS were undertaken by the then League of Nations. The 1930 conference convened in the Hague Haia attempted to deal with the Territorial Sea (TS), but an agreement could not be reached. Following the Hague Haia Conference, there were three decisive moments in the process of codification of the LOSnamely, the first, second, and third United Nations Conferences on the Law of the Sea (UNCLOS I, II and III: 1958, 1960 and , respectively). UNCLOS I, which was held in Geneva in 1958, led to the codification of four conventions that dealt with some areas of the LOS such as Convention on the Territorial Sea and the Contiguous Zone, Convention on the Continental Shelf, Convention on the High Seas, and Convention on the Fishing and Conservation of the Living Resources of the High Seas. The four conventions adopted by UNCLOS I in Geneva, reflected the sectoral, limited approach to international law still in vague at that time. UNCLOS I documented much of international customary law; however, an agreement could not be reached on a number of issues. One such fundamental issue was the breadth of the TS. They were negotiated and ratified by a small number of maritime states, without participation of most of the newly emerging developing states. UNCLOS II later convened in 1960 to solve the problems left open by the first conference, yet ended without results.unclos III convened from 1973 to 1982, and during a period of ten years held eleven sessions. By the end of the conference, 164 states had participated, as well as 102 observers composed of International Organizations (IOs), National Liberation Movements and territories. The negotiation of the UNCLOS that codified the LOS can be considered one of the greatest diplomatic events of humanity and in the history of International Relations (IR) due to the different interests involved and the difficulties experienced over ten years of complex negotiations. In the end, on 30 April, 1982, the UNCLOS was adopted as a package due to the close interrelationship of many issues before the conference and the conflicting interests involved. Nonetheless, some maritime powers with an important role in the implementation of UNCLOS, such as the United States of America (USA), are not yet party to it. 2

11 With its new provisions, UNCLOS expanded the coastal state s resources and economic rights in a vastly expanded Exclusive Economic Zone(EEZ) and Continental Shelf (CS), while also fully protecting sovereign rights in navigational freedom. UNCLOS established the maritime spaces subject to jurisdiction of coastal states and principles governing the delimitation of maritime boundaries. In particular, the maritime spaces which would be most often subject to boundary delimitation between two or more states are the TS (Article 15), the EEZ (Article 74) and the CS (Article 83). There is a difference in treatment to be found between Article 15, which gives prominence to a median line, and two other Articles 74 and 83, which stress the need to reach an equitable solution. The delimitation of maritime boundaries between two or more states occurs in a situation of overlapping maritime claims between those states. From the history of the Law of the Sea discussed above, it is clear that the Law of the Sea is an old and yet difficult and multiform branch of law that is made up of norms regulating activities in the coastal area. 1.2 Statement of the Problem Maritime delimitation remains an important topic where boundary-making, sensitive questions of state sovereignty, sovereign rights, jurisdiction and title to valuable natural resources are all put into question(anderson, 2003). Nowadays, the potential political and security risks of boundary disputes are high, and unresolved maritime boundaries between states may easily affect bilateral relations or even international peace and security. Such disputes may also hamper economic activitiessuch as exploitation of fishing sites due to fear of action by the other states. Furthermore, unresolved maritime boundaries may also cause disputes over certain areas of jurisdiction between states if oil and/or gas discoveries are made in overlapping claimed areas. In the case of Kenya, which has two maritime boundaries, only the boundary with Tanzania has been settled, the Kenya-Somalia boundary is still pending. The focus on the Kenyan maritime boundaries was motivated by the recent disagreement between Kenya and Somalia over exploration oil blocks. Somalia s government accused the Kenyan governmentof illegally awarding off-shore oil and gas exploration blocks to multinationals Total and Eni because the concessions lie in waters claimed by Somalia. Another disagreement that 3

12 Kenya has had with neighboring Uganda, that is not as recent and not a maritime dispute, was whether the Migingo Island in Lake Victoria lies in Kenya or Uganda. The issues mentioned above have brought about the need for Kenya to have clearly delineatedborders and a well-documented report on the status of these boundaries in order to avoid unnecessary conflict and to ensure a peaceful enjoyment of the Oceans resources. The delineation is also important for security reasons. 4

13 1.3 Objectives The main objective of this project is to carry out a study on the progress of the process of delimitation of maritime boundaries in Kenya. Specific objectives are: To identifythe existing maritime boundaries in Kenya including the processes that were used in the establishment of these boundaries. To document the Law of the Seathat maximizes the benefits of these boundaries to Kenya. To use the information obtained to create awareness of the need for accurate and timely maritime boundaries. The main objectives of delimiting maritime boundaries are: To regulate the rights and obligations of states in the marine area thus dividing the seas into zones and specifies the rights and duties of states and ships flying their flags in those zones. To secure a country s resources by clearly identifying the resources that lie under each country s jurisdiction. 1 To ensure peaceful management 2 and utilization of these resources. 1 This is useful for commercial exploitation of resources both living and non-living. Forexample, exploitation of carbon, oil and gas deposits began in the 1940s and has become significant since the late 1950s with the rapid development of deep water recovery technology. 2 The peaceful management of the oceans and seas is another key role played by establishment of maritime boundaries. This is especially with regard to countries with overlapping boundaries. This could prove crucial to the well-being and political stability of coastal states; extensive overlapping claims forestall development while maritime boundaries remain unsettled. 5

14 1.4 Scope of the Study This study is limited to Kenya and more precisely the maritime zones in the Indian Ocean. The study starts with the definition of terms used with regard to maritime boundaries, and an introduction of the same. This is followed by a study of maritime boundaries in the Indian Ocean and separates those that have been delimited from those that have not. This is followed by a map showing all the actual and hypothetical maritime boundaries of the Indian Ocean. It then proceeds to give an explanation of methods and principles used in maritime delimitation, using case laws, followed by the factors that affect maritime delimitation of these boundaries, geographic and non- geographic. What follows are in-depth explanations of the Kenya -Tanzania and Kenya-Somalia maritime boundaries, followed discussions. 1.5 Organization of the Report. This report has been organized into five chapters. Chapter one is the Introduction, this explains the origin of maritime boundaries and what they are. Chapter two is the literature review which explains the delimited and undelimited maritime boundaries of the Indian Ocean. In chapter three the report covers the methods and principles of establishing maritime boundaries as well as an indepth explanation of the rights of a state within these boundaries, according to the UNCLOS It also covers an explanation of the current status of Kenyan maritime boundaries. Chapter four is a discussion of the Kenyan maritime boundaries. Chapter five gives the conclusions and recommendations. 6

15 Figure1.1: Figure showing the maritime zones Source: http// 7

16 CHAPTER TWO: LITERATURE REVIEW 2.1 Kenyan Maritime Geographic Context The Republic of Kenya is a sovereign state in East Africa. It lies on the equator with the Indian Ocean to the south-east, between latitudes 5 N and 5 S, and longitudes 34 and 42 E. The country covers a total area of 580,367 square kilometers (sq. km) including 13,370 km2 of internal waters. Kenya is bordered by Tanzania to the south, Uganda to the west, South Sudan to the north-west, Ethiopia to the north and Somalia to the north-east and the Indian Ocean to the South East. Kenya has a coastline of approximately 1,420km and its coastline has generally a regular configuration. Legend LB Source: Map prepared N by Land Boundary author(lb) Fig 2.1: Map of East Africa showing Kenya and its neighbours Source: Map prepared by Author 8

17 2.2 Maritime Boundaries of the Indian Ocean Delimited Maritime Boundaries The majority of maritime boundaries in the Indian Ocean were delimited in the period and were lines of equidistance. These boundaries were delimited in the Timor Sea between Australia and Indonesia, in the Andaman Sea, between Indonesia, Thailand, India and Burma and in the seas surrounding southern India, the Maldives and Sri - Lanka. The other scattered boundaries delimited in the period involved France and Mauritius dealing with Reunion. Australia and France concerned with Kerguelon and Heard and McDonald Islands and Tanzania and its continental neighbours. In the 1990 s Burma, India and Thailand completed their boundary delimitations by defining their tri junction. Australia and Indonesia completed a comprehensive maritime boundary agreement in the Timor Sea. This agreement is now moot, however, following the emergence of East Timor as an independent state. During this century, Seychelles has delimited its boundaries with France, involving the territory of Mayotte, and its boundaries with Tanzania. Oman and Yemen have delimited their territorial sea and exclusive economic zone boundary. Australia has settled joint arrangements for a Joint Petroleum Development Area (JPDA) first with the United Nations transitional administration in East Timor and then with East Timor in respectively Undelimited Maritime Boundaries of the Indian Ocean This review of the potential maritime boundaries remaining to be delimited starts with Mozambique South Africa then proceeds north and east around continental perimeter to the potential boundary between Bangladesh and Burma. Then the boundary between islands and continental states and between islands and islands will be considered. The land boundary between Mozambique and South Africa reaches the coast near Punta do Oura in a slight embayment about 12 nm in width. The rounded headlands of the embayment carry an equidistance of 140 nm seawards upon a course just south of east. At that distance the marked eastwards bulge of the Mozambique coast takes effect and pushes the line of equidistance southwards. 9

18 The land boundary between Kenya and Somalia terminates on a smooth coastline. Indeed these base points that define line equidistance between the two countries are all found within 30 nm of the terminus. The equidistance line reaches the interaction of the EEZ near 3 30 south and east. Because the continental coastline in this sector is aligned southwest northeast, the equidistance line follows a southeasterly course. Since Kenya and Tanzania delimited their maritime boundary north of Pemba Island by a parallel of latitude, an equidistance line between Kenya and Somalia would mean that Kenya s EEZ would narrow as it proceeds seawards. While this might be argued as being disadvantageous, due to the presence of Yemeni s Socotra Island and appendages, 55 nm off RasCaseyr, the north east tip of Africa, which restricts the maritime zone Somalia, can claim. A potential maritime boundary between Somalia and Yemen commences about 8.5 nm east of the Strait and Bab el Mandeh at the western end of the Gulf of Aden, at a point near north and east. An equidistant line proceeds northeasterly, between the opposing continental coasts of Yemen and Somalia, which have a similar configuration, for about 420 nm through the Gulf of Aden to the Arabian Sea near north and east. At this point, Abd al Kuni the most westerly island in the Socotra group comes into consideration. The line of equidistance turns abruptly southeast and terminates at point 9 N and E, that is 200 nm from RasXaafuun on the Somali coast and JazaritDarsa off the south coast of Socotra.(Forbes,1992) Finally as Glassner(1986:6-8) maintains, the study of the geography of the sea space is one of the most difficult and challenging problems the political geographer(surveyors, geographers and geologists) faces. This fact is further emphasized by Alexander (1986:19-24) who stresses that the study of maritime boundaries requires more attention from political geographers for if they fail to act, the lawyers surely will. 10

19 Figure 2.2: showing the Extent of 200nm Limit of the Coastal States of the Indian Ocean Region. Source: Vivian Loius Forbes, Maritime Boundaries of the Indian Ocean Region, volume 3. 11

20 CHAPTER THREE: METHODOLOGY This project is basically a research paper. It involves finding and collecting materials that will provide the relevant information to be used in compiling the report. These materials includebooks, journals, articles, the UNCLOS hand book as well as the internetsearch which proved to be an invaluable source of information. It comprises a study of the Law of the Sea also known as the International Maritime Law, a step by step review of various case laws so as to understand the workings of the International Court of Justice (ICJ) and to use the case laws to explain the methods that have been used in maritime delimitation. The review of the case laws also bring to one s attention the geographical and nongeographical circumstances that are considered during maritime delimitation and the criteria used to determine the relevant ones in each case. The project then zeros in on the Kenyan situation and covers in detail the Kenya-Tanzania boundary and the Kenya-Somalia boundary, the agreements made, the issues arising and the current prevailing situation. 3.1 Determination of the Maritime Zones The Establishment of Baselines The first step in determining the outer limits of any area of jurisdiction adjacent to a coastline is the establishment of a starting point from which all measurements will be made namely, the baselines. The convention specifies the rules for drawing baselines. These rules distinguish between normal baselines (following the low water line along the coast) and straight baselines (which can be employed only in specified geographical situations). Article 5 of LOSC deals with the normal baseline, stating that the normal baseline for the measurement of maritime spaces is the low water line along the coast, which is marked on largescale charts officially recognized by the coastal state. It appears that the provisions of this article are identical to those made by Article 3 of the 1958 Geneva Convention on TS and CZ. The low water line is an identifiable feature shown on a nautical chart at medium or large scales. The depiction of the low water line as a distinct feature depends largely upon the nature and seaward 12

21 extent of the inter-tidal area. Where the tidal range is appreciable, the inter-tidal zone may extend for a considerable distance to the limit of the low water line and be exposed at low water. The other rule of establishment the baselines is the straight baselines system. First legitimized by the International Court of Justice (ICJ), in 1951 through the Anglo/Norwegian Fisheries Case, it was codified and developed in the 1958 Conventions. The straight baseline method has been adopted by many coastal states, often incorrectly. Article 7 of the LOSC allows states to draw straight baselines in the following situations: a. In the locations where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of territory sea is measured. b. Where because of the presence of deltas and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low water line and, notwithstanding subsequent regression of the low water line; the straight baselines shall remain effective until changed by the coastal state in accordance with UNCLOS. c. The drawing of straight baselines 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. d. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations, which are permanently above sea level, have been built on them, except in instances where the drawing of baselines to and from such elevations has received general international recognition. e. Where the method of straight baselines is applicable under paragraph 1 of Article 7, account may be taken, in determining particular baselines, of economic interests peculiar to a region concerned, be the reality and the importance of which are clearly evidenced by long usage. f. The system of straight baselines may not be applied by the state in such a manner as to cutoff the territorial sea of another state from the HS or an EEZ. 13

22 Thus, normally, baselines may consist either of the low water line along the mainland and island coasts (the normal baseline ), or of straight baselines (including across the mouth of rivers, delta and bay closing lines ). The determination of baselines will immediately fix the outer edge of the State s internal waters, and then permit the mechanical determination of the outer edge of the TS, the CZ, the EEZ and the CS, since each is measured, at their respective uniform distance, seawards from the baselines Territorial Sea The sovereignty of a coastal state extends, beyond its land territory and internal waters and, in the case of an archipelagic state, its archipelagic waters to an adjacent belt of sea, described as the territorial sea. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. The sovereignty over the territorial sea is exercised subject to the UNCLOS and to other rules of international law. Every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the UNCLOS. 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. Normal baseline is used in the establishment of the territorial zone except where otherwise provided in the UNCOLOS, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. 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. Kenya has proclaimed its territorial sea boundary. This is about 12 nautical miles from the baseline (Article 3-6, UNCLOSIII). 14

23 3.1.3 Contiguous zone Contiguous zone 3 is a region neighboring the territorial sea, here; the coastal state may exercise the control necessary to: Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; Punish infringement of the above laws and regulations committed within its territory or territorial sea. Kenya has already established its contiguous zone. This boundary lies at about 24 nautical miles from the baseline. This comprised computing and listing of the coordinates of the outer limit and creation of charts showing the outer limit (Article 33, UNCLOS III) Exclusive Economic Zone The Exclusive Economic Zone 4 (EEZ) emerged in the 1960 s as a result of efforts of Coastal states to acquire exclusive rights to manage and exploit living resources. They had noticed that as result of improved technology, most fish stocks in the sea,that were concentrated around the continental shelf were being intensively exploited by distant water fishing fleet. The Coastal states were not benefiting from resources that were ideally meant to benefit them (Collins, 1982). The emergence of this new maritime zone significantly increased the importance of maritime boundary delimitation in contemporary international law. The most notable feature of this new zone was its great distance from the coast. International law permits a state to extend its EEZ seaward to a distance of 200 nautical miles(370 km) from its baseline, as defined by article 57 of the 1982 LOS Convention: The rights and freedom of the coastal state within this region include: Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of 3 The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. 4 The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. 15

24 the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; Jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) (ii) (iii) the establishment and use of artificial islands, installations and structures marine scientific research; the protection and preservation of the marine environment; In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal state shall have due regard to the rights and duties of other states and shall act in a manner compatible with the provisions of this Convention. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI(Article 58,UNCLOS111). Kenya has already proclaimed its Exclusive Economic Zone, which is the area extending 200 nautical miles from the baseline Continental Shelf Prior to 1945, there was variety in state s practice with respect to claiming maritime zones in which they could exercise full sovereignty over the seabed and subsoil, the water column, and the airspace. But, after World War II, this situation was soon changed. The scarcity of land-based natural resources forced states to concentrate on the exploitation opportunities of offshore resources. Scientific and technological progress had shown the potential importance in this respect of the natural resources of the continental shelf. Furthermore, states began to realize the growing importance of the non-living resources of the high seas as being vital to their economic development. These factors resulted in the emergence of the new concept, the continental shelf (CS)(Collins, 1982). The substantial role for the emergence of CS, and the establishment of national jurisdiction on it, was played by the 1945 Truman proclamation. President Truman of the United States proclaimed that the Government of the United States regarded the natural resources of the subsoil and the seabed of the CS beneath the high seas, and contiguous to the cost of the United States, as appertaining to the United States, subject to its jurisdiction and control(truman,1945). 16

25 The majority of States in a short period of time, made the similar declarations and the CS soon became accepted as customary international law. Article 76, part 1 of the UNCLOS defines the continental shelf as follows : The continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Similar to the EEZ,also, the Continental Shelf seaward extension is at least 200 nautical miles from the baseline, and perhaps considerably farther when international law so permits. Part5 of Article 76 of the UNCLOS states that: The fixed points comprising the line of the outer limit of the continental shelf on the seabed,[ ] either shall not exceed 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 metreisobath, which is a line connecting the depth of 2,500 metres. A state may exercise the following rights within its continental shelf: The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state. The rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil (Article 77, UNCLOSIII). 17

26 Kenya has already delineated its continental shelf and has made a submission to the CLCS (Commission on the Limits of the continental Shelf) which is a sub UN body (Article 76, UNCLOS). 3.2 The Main Methods and Principles of Delimitation Below are some of the most common delimitation methods that have been used in establishing maritime boundaries Equidistance The 1958 Territorial Sea Convention defines equidistance as 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 of the two states is measured. The 1958 Continental Shelf Convention contains a similar definition. This Convention employs the term median line for an equidistant line between opposite states and refers only to a boundary determined by application of the principle of equidistance in the case of adjacent states. The use of equidistance methods depends on the baselines along the coasts of the respective states whose offshore areas are to be separated by the boundary. There may be difficulties here if one state utilizes normal baselines, following the sinuosities of the coasts, and the other employs a straight baseline system connecting the outermost islands, promontories and rocks. The use of the equidistance method was obligatory in the absence of an agreement, historical titles or special circumstances. This was called the combined equidistance/special circumstances rule. 18

27 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/median line from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured.(article 6, Apri1958.) Advantages of the equidistance principle a. It emerged in early treaty law, such as in the 1958 Conventions, because of the fact that it strikes a balance between predictability and flexibility, objectivity and discretion. b. The combined rule generally respects the principle of equal division of the area of Converging or overlapping claims, in the absence of inequities resulting from aberrant coastal features or major differences in coastal lengths. Finally, it takes account of adjacency or proximity to the coast as the legal basis of title for the territorial sea and as an integral part of the basis of title for the CS. Later, with the appearance of the EEZ doctrine, the factor of adjacency was dubbed the distance principle and assumed even greater theoretical importance for delimitation purposes as it became the single common element in the basis of title to all offshore zones within the 200 nautical mile limit (Legault et al, 1993). The privileged status of equidistance method was diminished by the ICJ and arbitral tribunals, it was considered as a method which in some cases may lead to inequitable and unreasonable results. The demolishing and toning down of equidistance went so far that the terms equidistance and median line have disappeared from the text of Article 74 and 83 of the 1982 LOS Convention. It remains only in Article 15 of the 1982 LOS Convention. In spite of the diminishing role of equidistance, it found its way into state practice. The majority of bilateral treaties on maritime delimitation still use a line based on simplified or modified equidistance. In many cases, governments begin the negotiations by considering an equidistance line, while subsequently at liberty to modify it. Even in most ICJ cases and arbitral awards, judges found it convenient to use the equidistance line as the starting point in the delimitation process. As Judge Jimenes De Arechaga declared (Nelson, 1990) naturally, in all cases the decision-maker looks at the line of equidistance, even if none of the parties has invoked it. 19

28 In 2002, the ICJ gave judgment on the maritime boundary between two adjacent states of Cameroon and Nigeria. The states asked the Court to draw a single maritime boundary for each respective zone. The parties also agreed upon the method of delimitation: to draw an equidistance line and then consider whether there are factors calling for adjustment of that line to achieve an equitable result( Cameroon / Nigeria Case, 2002). But the states disagreed about the existence of special circumstances necessary for the shifting of equidistance line. In its judgment, the Court relied on previous cases that made it clear what are the applicable criteria, principles and rules of delimitation for a single maritime boundary which are expressed in the equitable principle/relevant circumstances method [ ] which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea (Cameroon/Nigeria case, 2002). Beyond the territorial sea, the Court referred to the case between Qatar and Bahrain, where it had stated that: [ ] for the delimitation of maritime zones beyond the 12 mile zone it would first provisionally draw an equidistance line and then consider whether there were circumstances which must lead to an adjustment of that line(qatar and Bahrain, 2001). The Court found it convenient to apply the same method in the present case. For the delimitation of the territorial sea Court considered that there existed a valid international agreement between the states, thus leaving it with the delimitation of the EEZ and CS of the respective states.(cameroon/nigeria case, 2002) Before drawing the equidistance line, the Court found it necessary to define the relevant coastlines and the location of the base points for the construction of that line. Once the relevant coasts and base points had been established, the Court begun to look for relevant circumstances necessary for the adjustment of the equidistance line. The Court looked first for the existence of geographical circumstances. It rejected the argument of Cameroon regarding the concavity of its coastline as a special circumstance for the modification of the equidistance line. The relevant coastlines for the delimitation area were already determined by the Court and according to this the Court noted that the sectors of coastline relevant to the present delimitation exhibit no particular concavity, as the concave sector of Cameroon s coast was outside the delimitation area(cameroon/nigeria, 2002). 20

29 For the same reason the Court did not regard the presence of the Bioko islands as a circumstance justifying the shifting of the equidistance line. Also, this island did not belong to either of the States party to the dispute. Another argument presented by Cameroon for the shifting of the equidistance line was the disparity between the length of its coastline and that of Nigeria. The Court noted that in the present case, whichever coastline of Nigeria is regarded as relevant, the relevant coastline of Cameroon is no longer than that of Nigeria. There is therefore no reason to shift the equidistance line in favour of Cameroon on this ground (Cameroon/Nigeria case, 2002). Figure 3.1: Showing 2002 Cameroon/Nigeria case Source: ICJ judgment on 2002 Cameroon/Nigeria case. Online at: < cij.org/icjwww/idocket/icn/icnjudgment/icn_ijudgment_ _sk12.jpg>. A final argument for the shifting of the equidistance line invoked by Nigeria was with respect to the oil practices of the two parties, but the Court was of the opinion that the oil practice was not a factor to been taken into account in the present case. 21

30 Finally, the Court found no other reason and circumstances necessary for the adjustment of the equidistance line and decided that the equidistance line represents an equitable result for the delimitation of the area in respect of which it has jurisdiction to give a ruling. The 2002 Cameroon/Nigeria case was the first case between adjacent States in which the ICJ applied the equidistance line without modification Equity and the Equitable Principle The notion of equity is at the heart of the delimitation of the CS and entered into the delimitation process with the 1945 proclamation of US President Truman, concerning the delimitation of the CS between the United States and adjacent states. Equity as a legal concept is a direct emanation of the idea of Justice. The Court is bound to apply equity that is equitable as a part of general international law. When applying positive international law, a court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be closest to the requirements of justice. It is important to note that equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation (Cameroon/Nigeria, 2002). The problem with the idea of equity is that it does not provide any precise principle or criteria for the achievement of an equitable result. With respect to the delimitation of EEZ and CS 1982 LOS Convention sets only a goal which must be achieved and stipulates nothing on how to achieve the result. This vagueness gives some scholars the possibility to assert that there is a loss of normativity in the idea of equity and this idea allows the level of normativity to rise and fall (Kolb, 2003). Equitable principles bring about the idea of unicum which means that geographical features of each delimitation case varied so greatly that it is difficult, if not impossible, to posit any fixed principles applicable for the establishment of maritime boundaries between states. The idea of the uniqueness of each boundary finds significant support in the jurisprudence of the ICJ and arbitral tribunals (Kolb, 2003). 22

31 For example in the 1982 Tunisia/Libya case. Par. 70 and 72, the court declared that: It is the result, which is predominant; the principles are subordinate the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result. Each continental shelf case [ ] should be considered and judged on its own merits [ ] no attempts should be made here to over conceptualize the application of the principles (Tunisia/Libya Case, 1982). This idea that it is difficult to define an equitable principle applicable for all maritime delimitation cases raises suspicions about the wide power and judicial discretion of the Courts. But it is not the fault of the Court or judge, it was the international community that opted the judges this wide power because it found it difficult, even impossible, to define a universally applicable principle. Even the Court and tribunal found it difficult to elaborate such a principle. This situation increases the responsibility of the Court in dealing with disputes concerning the delimitation of maritime boundaries, as the line of delimitation produced by a judicial organ must constitute an equitable result not only in the view of the Court, but also must appear equitable in the eyes of the litigants(dundua,2007). Finally, concerning the equity and equitable principles, one may conclude that at present it is not possible to produce a structured system of equity and a clear body of equitable principles. The choice of, and weight to be attributed to, any equitable principle are too dependent upon the vagaries of geography to allow any systematic body of such principles to develop. It is more prudent to rely on the idea expressed by the Chamber in the 1984 Gulf of Maine case with respect to the role equitable criteria (principle) that their equitableness can only be assessed in relation to the circumstances of each case, and for one and the same criterion it is quite possible to arrive at different, or even opposite, conclusions in different cases (Gulf of Maine case,1984).the idea of unicum and that it is not possible to define equitable principle for all maritime boundary delimitation cases was reiterated and expressed more clearly in subsequent ICJ cases an arbitral awards. In the 1984 Gulf of Maine case, the Chamber stated: [ ] that each specific case, in the final analysis, different from all the others, that it is monotypic [ ] most appropriate criteria (principle) can only be determined in relation to each particular case(gulf of Main Case,1984). 23

32 Figure 3.2:Showing 1984 Gulf Maine Case-Delimitation Line Drawn by the Chamber Source:ICJjudgement1984 Gulf of Maine case. Online at: < 24

33 It should be noted that the sudden change in the direction of the coastline in the north-eastern part of the Gulf of Maine transformed the initial lateral adjacency situation into an opposite relation. In such a situation, the Chamber noted that since the geographical relationship was that of opposite states, only an equidistance/median line could have the appropriate result. Consequently location of the equidistance line was adjusted taking into account the proportionality of the length of the coasts of the respective states, and by correcting this line so as to give halfeffect to two tiny islands in front of the Canadian coast Single Maritime Boundary Following the emergence of the doctrine of the EEZ, there has been an increasing trend among states to adopt, in the interest of simplicity, certainty and convenience, a single maritime boundary to divide their maritime zones beyond the territorial sea. In the case of adjacent coasts, a line drawn seaward from the coast will usually separate only the territorial waters of the two states for the first twelve nautical miles. Beyond that, if states agree, the same may separate the two maritime zones between them (Sharma, 1987). The alternative of the single maritime limit is supported by the parallelism and similar characteristics of the EEZ and the CS up to 200 nautical miles. According to the 1982 LOS Convention the 200 nautical mile distance criterion governs the ascription of legal title to both the EEZ and the CS in cases where the continental margin extends up to 200 nautical miles. Also, the notion of the EEZ comprises both the sea-bed and water column and the legal regime of the CS is virtually identical to the corresponding rights and duties of states in their EEZ (with regard to the sea-bed resources, artificial islands, scientific research) (UNCLOS, Articles 57 and 76). We most certainly also observe that Articles 74 and 83 concerning the delimitation of the EEZ and the continental shelf respectively are identical. To convert one into the other, we just need to substitute the word continental shelf with EEZ. 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. 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. 25

34 Pending agreement as provided for in paragraph 1, the states concerned, in a spirit of understanding and cooperation shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. Where there is an agreement in force between the states concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement83 concerning the delimitation of the EEZ and CS are identical. The ICJ in the 1985 Libya/Malta case established the distance criteria as the sole basis of title to the sea-bed and subsoil within 200 nautical miles in favor of the single maritime boundary between the two zones. Figure3.3: Figure Showing 1982 Tunisia /Libya Continental Shelf Judgment Source: ICJ judgment on 1982 Tunisia/Libya case. Online at: < cij.org/icjwww/icases/itl/itl_ijudgment/itl_ijudgment_ pdf>. 26

35 The court proceeded as follows: I. The court first considered roles of the new accepted trends of the UNCLOS III(Tunisia/Libya,1982). Having considered that there was only one continental shelf shared between the two states, the Court focused on whether the natural prolongation of each of the two states could be determined on the basis of physical criteria, it concluded that the continental shelf appertaining to each could not be ascertained from the criteria of natural prolongation. Where the situation of adjacency between the coast of Libya and Tunisia has been modified to that of opposite states by the geographical configuration of the Tunisian coast, and where the Court decided to give a half-effect to the Kerkennah Islands of Tunisia. The line of delimitation of the two continental shelves is to veer to the East. The bearing of the delimitation line parallel to each bisector being 52 degrees to the meridian (Tunisia/Libya case, 1982). Also the single maritime boundary was mentioned in the previous Gulf of Maine case where a single maritime boundary was to be established for both the continental shelf and the fisheries zone (Gulf of Maine Case, 1984).Where: The Chamber drew a single maritime boundary for three sectors, as was indicated by the parties in their special agreement. For the first sector, the Chamber did not favour the equidistance method which, apart from not being a mandatory rule for a single delimitation, would give undue importance to islands, uninhabited rocks or low-tide elevations as base points for the drawing of a line intended to equally divide a given area (Jagota, 1985). In the second sector, the sudden change in the direction of the coastline in the north-eastern part of the Gulf of Maine transformed the initial lateral adjacency situation into an opposite relation. In such a situation, the Chamber noted that since the geographical relationship was that of opposite states, only an equidistance/median line could have the appropriate result. Consequently location of the equidistance line was adjusted taking into account the proportionality of the length of the coasts of the respective states, and by correcting this line so as to give half-effect to two tiny islands in front of the Canadian coast (Gulf of Maine case, 1984). For the third sector, the ICJ also did not favour the equidistance line. Instead, it found it equitable to draw a perpendicular line because this line reflected to a certain extent the general direction of 27

36 the United States coast and the perpendicular line was, in practice, a true equidistance line(gerard, 1990) Proportionality Ideally, proportionality in the real sense is not really a method but more like a check. Proportionality is taken into account in the process of delimitation, or at the end of the process to test that the result is equitable. It will not be an exaggeration to say that proportionality is incorporated in maritime delimitation and it is an applicable criterion for both the adjacent and opposite states in maritime delimitation process. According to the proportionality concept, maritime delimitation should be effected by taking into account the ratio between the water and CS areas attributed to each party and the length of their respective coastlines. Thus, the Court and tribunals have to estimate roughly, or calculate exactly, the lengths of the relevant coastlines and compare that ratio to the ratio of the provisionally delimited relevant water and CS areas. If the proportion of the relevant maritime zones does not roughly coincide with the relative length of the coastlines, further analyses or adjustment would be considered. The 1969 North Sea Case is the first of the maritime delimitation cases between adjacent states to apply the concept of proportionality. The then Federal Republic of Germany (FRG) formulated this concept in the case by contending that each state concerned should have a just and equitable share of the available CS, proportionate to the length of its coastline or sea frontage. The ICJ rejected FRG s argument of a just and equitable share. It did accept the concept of proportionality as a final factor to be taken into account and introduced the idea of proportionality between the CS attributed to each of the states and the length of respective coast following the general direction of the coast The Court suggested three geographical features which justified the recourse to proportionality: 1) the coasts of the states concerned are adjacent to each other; 2) the coastlines of the FRG are concave; and 3) the coastline of the states abutting on the North Sea are comparable in length. The idea of proportionality was to use it as a corrective element for inequitable results in order to avoid an unreasonably inequitable result deriving from geographical particularities of the coasts. Also, it should be noted that the Court regarded proportionality not as a distinct principle of 28

37 delimitation, but as one of the factors ensuring delimitation in accordance with equitable principles, in other words: proportionality is a test of the equity (North Sea case, 1969). Figure 3.4:Figure Showing the 1969 North Sea Case Source: Nuno Marques Antunes. Towards the conceptualisation of maritime delimitation. Other cases that dealt with proportionality In the Tunisia/Libya Case, first, while reaffirming that the CS in the legal sense did not comprise the sea-bed areas under the internal and territorial waters, the Court considered these zones as parts of the CS for the purpose of calculating proportionality. According to the Court, the question is not one of definition, but of proportionality as a function of equity, and the only absolute requirement of equity is that one should compare comparable things. Thus, in the Court s view, if the CS areas below the low-water mark of the Libyan coast are compared to the areas around the Tunisian coast, this requirement is fulfilled. Nevertheless, it may appear more appropriate to compare the parties 29

38 CS in the legal sense (Tunisia/Libya Case, 1982).Also, when one measurement is done from the Low water mark and the other is done from a straight baseline; errors are introduced, though small. Secondly, it is unclear how the coastal lengths and relevant areas are calculated. On this point, the Court stated in a general way that only the coasts of overlapping maritime areas were deemed relevant(tunisia/libya case, 1982). For the Gulf of Maine Case, in the second sector, the chamber only used the length of the coastline and not the extent of the area as a basis of comparison. This was a pure and simple application of proportionality. It is not used as a test of equity, but as a criterion of equity, even of decisive value for drawing the delimitation line and verifying the latter s equitableness. In the Guinea/Guinea Bissau case, The Tribunal clearly pointed out that the proportionality rule was not a mechanical rule based only on the figures transcribing the lengths of the coasts, and noted that proportionality should play its role in a reasonable degree, taking into account other relevant circumstances. In fact, the Tribunal compared solely the coastal lengths of the parties taking into account costal islands and the Bijagos islands, without calculating the maritime surface. Then, it merely stated that the coastlines of the two states were of the same length and that neither party could claim any advantage It is noteworthy that in this judgment, the Tribunal rejected the idea that proportionality should be considered in relation to the landmasses behind the relevant coast (Guinea/Guinea Bissau, 1986). On the whole, it is possible to say that the concept of proportionality is a sound test to ensure that the delimitation results are equitable. One can thus conclude that for the use of proportionality it is reasonable to define the relevant coasts of states and it is not necessary to take into account the totality of the coast. It seems better to exclude from the evaluation of proportionality those segments of the coastline which are not within the overlapping maritime areas. In respect to those areas, it would be reasonable to exclude the internal waters and territorial seas from the calculation of proportionality for the purpose of the delimitation of CS and single maritime boundaries, since the CS and EEZ are areas that extend beyond territorial waters. It would not meet the requirements of equity to shift the delimitation line and give more maritime areas to the state with a longer coastline without calculating and comparing the ratio of the attributed areas to the relevant coasts. It is true that a state with a long coast will normally have an area of maritime jurisdiction greater than if it had a short coastline. 30

39 3.2.5 Perpendicular Method The perpendicular line to the general direction of the coast is also one of the methods used for drawing the maritime boundary between adjacent coasts. This method was used by the ICJ in some cases and has also found its place in state practice. The use of the perpendicular line is more frequent in the case of adjacent states which present coasts that are more or less straight. A lateral delimitation based on a perpendicular line, however, will only lead to a mutually acceptable result when the coast at the point of termination of the land frontier is relatively straight and the general direction of the coastline rather easy to determine. For such delimitation, the locations of the baselines are important in determining the general direction (Alexander, 1983). Unless the use of a straight baseline system is accepted by the two adjacent states, application of a perpendicular line rule will be difficult to conceive when concave or convex coastlines are at issue, or when various islands are situated in front of the coast of the states. The use of the perpendicular method is debatable in the case of a coast which is not altogether straight, for it presupposes a preliminary decision on the general direction of the coast between two points which have to be chosen. This is a difficult issue, and it is easy to understand why the Committee of Experts consulted by the International Law Commission preferred the equidistance method to the perpendicular one (Weil, 1989). The earliest case in which the perpendicular line was used is the Grisbadarna case between Sweden and Norway on the delimitation of the territorial sea in The Permanent Court of International Arbitration was asked to decide whether the maritime boundary was fixed, in whole or in part, by the boundary treaty concluded between the two states in 1661; and if not, to determine the correct boundary in accordance with circumstances of fact and the principles of international law. After rejecting the equidistance method, which had not achieved sufficient standing in international law at that time and thus could not have been in the mind of the negotiators of the 1661 treaty, the tribunal decided that the line should be drawn perpendicular to the general direction of the coast. Furthermore, drawing of the perpendicular line was not based on the coastal direction; the more decisive fact was the historical use and fishing interests of the parties in the Grisbadarna banks (Collins et al, 1982). The perpendicular line method for the delimitation of the CS was used by ICJ for the first time in the 1982 Tunisia/Libya case. For the determination line in the first sector, closest to the coast, the Court was conscious that the CS should start from the outer limits of territorial sea. 31

40 For this segment, the Court found that, in principle, a line perpendicular to the coast could serve as an equitable boundary taking into account the rather uniform conduct of the parties in the past and the line established by this conduct was also roughly perpendicular to the coast (Tunisia/Libya case, 1982). In the 1984 Gulf of Maine case, the Chamber noted that the method of the perpendicular was probably the oldest method to come to mind when problems arose in the delimitation by adjacent state for their territorial sea. In this case the Chamber drew the delimitation line for three sectors. In the first sector, closest to the coast, the Chamber decided to adopt the method of a bisector of the reflex angle formed by perpendiculars drawn from a point already determined by states to the long and short sides to the rectangle. This method would be more suited to the production of the equal division of the area of overlap. For the delimitation of the third and final sector, which was situated in the open ocean and against the Gulf, the Chamber preferred a line perpendicular to the closing line of the Gulf which was in conformity with the general direction of the two coasts. The starting point of the perpendicular line was determined to coincide with the point where the corrected median line in the second sector meets the Gulf s closing line: it would be unthinkable that the dividing line should not follow or continue the line drawn within the gulf by reference to the particular characteristics of its coast (Gulf of Maine Case, 1984). Finally, it is possible to observe that the perpendicular line can also, in certain cases, be useful for the delimitation of maritime zones between adjacent states. This line seems to be close to the equidistance line. A line of equidistance between two points is, by definition, the perpendicular bisecting the straight line between those two points. Thus the line of equidistance method is simply a series of perpendiculars. It would scarcely be an exaggeration to say that the equidistance method is the scientific development of the perpendicular line (Weil, 1989) Latitude and Longitude Method Latin American agreements present another method for the drawing of maritime boundaries which is notable. On 28 August 1962, Chile, Peru and Ecuador signed the Santiago Declaration on the Maritime Zone claiming as a principle of their international maritime policy sole sovereignty and jurisdiction over at least a 200 nautical mile area, including the sea-bed and subsoil. The maritime 32

41 boundary between the parties to this Declaration was to follow the parallel of latitude drawn from the point where the land frontier between them reached the sea. This principle and practice were followed in South America in the maritime boundary agreements between Chile and Peru (1954), Peru and Ecuador (1954), and Colombia and Ecuador (1975). A combination of latitude and longitude was also followed for setting the boundary in the agreement between Colombia and Panama (1976) (Jagota, 1985). 33

42 3.3 Relevant Circumstances The International Law Commission envisaged special circumstances while drafting the 1958 Geneva Convention, which was a reasonably small and well-defined body of exceptions to a rule of equidistance/median line. One function of relevant circumstances is to shift a provisionally drawn equidistance/median line when it leads to inequitable result (Evans, 1991). The study of relevant circumstances has been dominated by perceptions of the role that they play within the delimitation process. The subject is dominated by the view that relevant circumstances have an effect upon delimitation and that it is virtually impossible to achieve an equitable solution in any delimitation without taking into account the particular relevant circumstances of the area (Tunisia/Libya case, 1982). Relevant circumstances never have been the sole disseminator and self-sufficient factor in delimitation. They often appeared to operate only within a framework of equitable principles or equidistance. It is accepted that the maritime delimitation process in most cases may begin with a line of equidistance, but it does not necessarily end with one. Equidistance line drawn at the starting phase may become inequitable in light of particular circumstances of the case in question (Evans, 1991). Also, equitable principles acquire substance only by reference to relevant circumstances in the case, and the relevant circumstances in the case operate only with the help and in the context of equitable principles. In practice, however, relevant circumstances and the equitable principle go hand in hand. Without the help of equitable principles, relevant circumstances would be powerless to produce any assessment of the equity of a situation (Weil, 1989). As Judge Jimenez de Arechaga indicated: Equity is nothing other than the taking into account of a complex of historical and geographical circumstances the consideration of which does not diminish justice but, on the contrary, enriches it (Tunisia/Libya case, 1982). For a delimitation to be equitable, account must be taken of all the relevant circumstances of the case. It is however important to note that the notion of relevant circumstances does not feature in Articles 74 and 83 of the 1982 UNCOLOS convention. Nevertheless, its relevance in the delimitation of maritime boundaries cannot be under estimated. Right from the 1969 North Sea case, where it was first used, the concept of relevant circumstances has elicited so much validity that it has become an integral part of the language of the court. Article 15 of the 1982 UNCOLOS 34

43 for the delimitation of the territorial sea includes the term historic titles, which is different from relevant circumstances. From the cases heard by the ICJ, it s possible to divide relevant circumstances into geographical and non-geographical circumstances. The more dominant of the two are those that are geographic in nature. Of the geographical circumstances, the most relevant seems to be the coastal configuration and the consideration of islands, as well as the length of the coast. All the three factors were taken into account by Judges in all cases. The length of coast was also seen to be closely related to the concept of proportionality as discussed previously Geographical Circumstances Configuration of the coast A coastline also known as a sea shore refers to the area where the land meets the sea/ocean. A precise line cannot, however, be determined due to the dynamic nature of tides. The configuration of the coastline is therefore the pattern of the coast along the ocean. The configuration of the coastline is an important matter when it comes to the determination of maritime boundaries. Depending on whether the coast is concave or convex, the construction of the baseline hence the distance of Coastal waters a county can claim varies. The importance of the configuration of the coastline will be discussed using previously mentioned case laws as follows: In the 1969 North Sea case, the Court took into consideration the general configuration of the coasts of the parties.it found that the coasts of Denmark and the Netherlands were convex, while that of the Federal Republic of Germany was concave. In such a case, the use of equidistance left Germany an exceptionally small part of the North Sea CS and the goal of the delimitation process, to achieve an equitable result, would not be satisfied. The Court observed that: It is necessary to examine closely the geographical configuration of the coastline of the countries [ ] since the land is the legal source of power which may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extension(north Sea case,1969). In the 1984 Gulf of Maine case, geography and geographical circumstances were undoubtedly considered and were implicitly regarded as having a superior status. The Court considered geographical criteria as excellent example of impartial circumstances, suitable for a multi-purpose 35

44 delimitation. It mentioned first the geographical configuration of the area and then other relevant circumstance(gulf of Maine Case, 1984). In this case, the United States based an important part of its criticism on the equidistance line advocated by Canada on the concavity of the Gulf as a whole. The Chamber, however did not endorse this view. It was not this concavity of the gulf which caught its attention, but rather its more or less rectangular appearance. Another factor that got the Courts attention was the sudden change of the costal configuration in the second sector, when the initial lateral adjacency situation transformed into an opposite relation, was taken into account by the Chamber as a relevant circumstance (Gulf of Maine Case, 1984). In the 2002 Cameroon/Nigeria case, the Court noted that the geographical configuration of the area was not an element open to modification by the Court but a fact on the basis of which the Court must effect the delimitation. In this case, Cameroon contended that the concavity of the Gulf of Guinea in general and of Cameroon s coastline in particular, created a virtual enclavement of Cameroon. This factor, in the view of Cameroon, constituted a special circumstance which needed to be taken into account in the delimitation process. The Court relied on previous cases and did not deny that the concavity and special coastal configurationmay be a circumstance relevant to the delimitation. The Court determined that the coastlines relevant to the delimitation between Cameroon and Nigeria did not include all of the coastlines of the two states within the Gulf of Guinea. The Court also noted that the sectors of coastline relevant to the present delimitation exhibited no particular concavity. Consequently, the Court did not consider that the configuration of the coastlines relevant to the delimitation represented a circumstance that would justify shifting the equidistance line (Cameroon/Nigeria case, 2002). In the 1982 Tunisia/Libya case, the general configuration of the parties coasts was also considered a relevant circumstance.the ICJ found that the marked change in the direction of the Tunisian coastline modified the lateral relationship of the two states and should be taken into account in the balancing-up process and was justified and legally sound (Tunisia/Libya case, 1982). The most profound examples of treaties, however, where coastal configuration was taken into account remain the 1971 agreements concluded between the Federal Republic of Germany and 36

45 Denmark, and between the Federal Republic of Germany and the Netherlands following the 1969 Judgment of the ICJ Islands Article 121 of the 1982 LOS Convention defines an island as follows: An island is a naturally formed area of land, surrounded by water, which is above water at high tide [and it enjoys its territorial sea, EEZ and continental shelf]. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. The present discussion only focuses on dependent islands, i.e. islands under sovereignty of one or the other states. The problem is essentially different when it comes to island states. In such a situation, the delimitation process will be held between opposite states and whether it is a large continental state or a small independent island, in every case its statehood gives it the same potential for generating maritime projection under the condition laid down by international law. The existence of an island or islands in the delimitation area may have a distortion effect on the delimitation line. Its presence constitutes a relevant circumstance, and needs to be taken into account fully, partly or be ignored by states or the Court. In state practice, as in legal theory, the effect given to islands for delimitation purposes differs from one island to another. Depending on circumstances, the island may be given full or partial effect. In certain cases, it may even be ignored. In others, it may be enclaved, which means that the delimitation may be carried out between the mainlands as if the island did not exist, and the island may then be given its own maritime space around its coasts(weil,1989). The Courts apply the theory of special geographical features to islands. If the island appears as an integral part of the general coastal configuration, it is treated for the purpose of delimitation on the same footing as the mainland and given full effect. If, on the other hand, it seems to be an aberrant geographical feature in relation to the general configuration, or an insignificant feature, it is given partial effect or ignored. Also, the size, population and economy of island are important factors in the delimitation process, as well as its position relative to the equidistance/median line. In the 1982 Tunisia/Libya case, the Court attributed a half-effect to the Kerkennah Islands because of their size and position. Despiteits 37

46 size and population, the island of Jerba, in contrast, had no influence on the delimitation line because the Court did not consider its geographic position as relevant to the case (Tunisia/Libya Case, 1982). In this case, the island of Jerba was not taken into account in establishing the general direction by reference to which was drawn the perpendicular which was to constitute the line of delimitation, but it was taken into account when the Court came to calculate the length of coastal fronts. As to the Kerkennah Islands, although they were given half-effect for drawing the line, they were ignored in one of the calculations of proportionality. In the 1984 Gulf of Maine case, the Chamber decided to discount certain minor geographical features, in particular tiny island, uninhabited rocks or law-tide elevations, sometimes lying at a considerable distance from terra firma. On the other hand, it 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 was therefore given half-effect (Gulf of Maine Case, 1984). In the 1985 Guinea/Guinea-Bissau case, the Court made a distinction between three categories of islands: a) The coastal islands, which are separated from the continent by narrow sea channels or narrow watercourses and are often joined to it at low tide; b) The Bijagos islands; and c) The more southerly islands scattered over shallow areas. The court observed that the first category of islands should be considered as forming an integral part of the continent. The second group, the Bijagos archipelago, was taken into account when determining the coastal configuration. For example, the coast of Guinea-Bissau could only be described by the Tribunal as convex because the Bijagos islands were included. The third group of islands scattered further to the south were simply ignored when it was a question of determining the shape of the shore line and measuring its length, but one of them, the island of Alcatraz, played a more important role in defining the line than the larger Bijagos islands most of which were inhabited (Guinea/Guinea-Bissau case, 1985). The question of taking islands or not into account arises from the determination of the delimitation line, the general configuration of the shore line, and calculating the coastal length. Thus, from the case laws, it can be concluded that the effect granted to islands depends on whether they have a distorting effect on delimitation line and whether they can help to achieve an equitable result. This observation is noted by the Court in the 1969 North Sea case: It is therefore not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number 38

47 of states, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result Non -geographical Circumstances Geology and Geomorphology Geological factors are those that result in the formation of geological structures (structures that result from the powerful tectonic forces that occur within the earth e.g. faults, mountains) and how these structures affect rocks. Geomorphology refers to the study of the physical features of the surface of the earth and its relation to their geological structures. From the definitions above it is apparent that geology and geomorphology are somewhat interrelated.as such, these factors may constitute relevant circumstance in CS delimitation. These factors are closely related to the concept of natural prolongation, which played an important role in the 1969 North Sea case as the basis for the entitlement for CS. The fact that during this time, the notion of the EEZ had not emerged is noteworthy. The Court stated that one of the factors needed to be taken into account by states in their negotiation process is the physical and geological structure of the continental shelf areas involved (North Sea Case, 1969). In the 1982 Tunisia/Libya case, both parties invoked the factor of natural prolongation in their submissions as the basis for entitlement to the CS, and accordingly geological and geomorphological circumstances as relevant factors for the delimitation of their CS(Tunisia/Libya Case, 1982). The Court found that the relevant area of delimitation constituted the common CS of both parties and stated that no criterion for delimitation of shelf areas can be derived from the principle of natural prolongation as such (Tunisia /Libya Case, 1982). In the Courts view, the principle that the natural prolongation of the coastal state was a basis of its legal title to the CS did not necessarily provide criteria applicable to the delimitation of the areas appertaining to adjacent states. (Ibid par 48). The Court was unwilling to regard a determination of the limits of natural prolongation as constituting per se an equitable delimitation. It ruled that the satisfying of equitable principles and identification of the natural prolongation are not to be placed on a plane of equality (Tunisia /Libya Case, 1982). 39

48 The Court further ruled that the argument of geology as well as geomorphology were unhelpful in enabling it to identify the division between the continental shelves of the two states. While rejecting the contentions of the states concerning the geological factors, the Court concluded as follows: Despite the confident assertion of the geologists on both sides that a given area is an evident prolongation or the real prolongation or the one or the other state, for legal purposes it is not possible to define the areas of continental shelf appertaining to Tunisia and to Libya by reference solely or mainly to geological considerations. The Court also added that in the Libya/Tunisia case the geographical configuration had to be considered. In the 1984 Gulf of Maine case, the parties agreed in principle that the Georges Bank formed part of the geology of the North American CS. This unity of the seabed area in question is, furthermore, demonstrated by geomorphologic evidence. In the words of the Chamber: According to generally accepted scientific findings, this shelf is a single continuous, uniform and uninterrupted physiographical structure, even if here and there it features some secondary characteristics resulting mainly from glacial and fluvial action. Nevertheless, the United States had to convince the Chamber that the Northeast Channel constituted a geomorphological fault which should be taken into consideration because it formed a natural boundary in the seabed. The Chamber refused to accept such an extension of the operation of a geological circumstance. If to take into account the limited importance, the Chamber evidently attributed to circumstances in this case which only addresses one aspect of single maritime boundary delimitation, it seems proper to conclude that geology and geomorphological peculiarities became even less important for a single maritime boundary. The following observation of the Chamber clearly evidences this approach: In a concrete situation where distinctive geological characteristics can be observed in the continental shelf, such as might have special effect in determining the division of that shelf and the resources of its subsoil, there would in all likelihood be no reason to extend the effect of those characteristics to the division of the superjacent volume of water, in respect to which they would not be relevant. 40

49 When considering the geological factors and natural prolongation, it is important to note the 1985 Libya/Malta case. In this case, the Court finally refused, and downplayed, the concept of the natural prolongation for the entitlement of CS within 200 nautical miles and the geology and geomorphology as relevant circumstances in the maritime delimitation. The Court established the distance criterion as the sole basis of title to the seabed and its subsoil within the 200 nautical mile limit. The Court recognized the validity of the 200 nautical mile limit in Article 76 of the 1982 LOS Convention as a basis for a legal title to the CS rights and indicated in a rather absolute terminology that geological and geomorphological circumstances will no longer play any role in CS delimitation: The dissenting opinion of Judge Shigeru Oda regarding the above seems interesting and useful. Judge Oda reviews the evolution of the Law of the Sea during the UNCLOS III negotiations, including references to the travaux preparatories, and concludes accurately that the language of Article 76 (1) of the 1982 LOS Convention was intended to provide all coastal states an entitlement to a CS of 200 nautical miles regardless of the geology and geomorphology of the seabed and subsoil. In all subsequent cases, the Court and arbitral tribunal never regarded the geological and geomorphological factors as relevant circumstances for maritime delimitation. However, the states may claim a CS beyond the 200 nautical miles on the basis of natural prolongation within the parameters provided for in the article 76 of the 1982 LOS Convention. In a situation when two adjacent states are going to delimit the CS beyond the 200 nautical miles, they may use the existence of geological factors, such as gap or trough, as the natural boundary of the CS between them. State practice shows the same situation concerning the geological and geomorphological factors for maritime delimitation Socio -Economic Factors Social and Economic factors play an important role in maritime negotiation between states, however, the Court considers such factors irrelevant in the delimitation of maritime boundaries. 41

50 The Court argues that its mandate is to provide for equitable delimitation of maritime boundaries within the confines of international law and not to ensure distributive justice. In most cases, there was no reason for adjusting the delimitation line simply because an oil deposit or a fishery resource straddled the line, or because all the resources were to be found on one side. If the provisional line cuts across a resource, dividing it in two, this is not the circumstance which reasonable to take into consideration. There are, suggested by the Court, possible ways of solving the problem of the unity of any deposits (North Sea Cases, 1969). They consist, in implementing the principle of cooperation. In any case, products much in demand today may tomorrow fall into disrepute because of economic, technological and market changes. To draw a boundary on this basis would imply that if these circumstances changed the boundary would need to be reconsidered, which, quite apart from good sense, would be at odds with the principle of the permanence and stability of boundaries, maritime as much as land(dundua,2007). It is understandable why the Court should have excluded from the category of relevant circumstances, and thus of equitable principles, anything which might seem to relate to an apportionment of resources, a division of wealth, an allocation of share (Weil, 1985). The Court s reluctance to consider socio-economic factors is also due to the fact that Courts are not concerned with distributive justice or the task of establishing a regime of equitable allocation of resources, for that is a legislative rather than a judicial task (Nelson, 1990). In the 1982 Tunisia/Libya case the issue of economic factors was brought out. Tunisia raised the fact that they have higher poverty levels as compared to Libya and their absence of natural resources and pointed out that fishing resources must necessarily be taken into account as supplementing its nationaleconomy in eking out its survival as a country (Tunisia/Libya Case, 1982). The Court refused to take into account the relative poverty of Tunisia stating that: They are virtually extraneous factors, since they are variables which unpredictable national fortune or calamity, as the case may be, might at any time cause to tilt the scale one way or the other. A country might be poor today and become rich tomorrow as the as the result of an event such as the discovery of a valuable economic resource(tunisia /Libya Case, 1982). 42

51 In the 1984 Gulf of Maine case, the judgment noted that the real subject of the dispute was Georges Bank, because of the potential resources of its subsoil and, even more, its enormous fishery resources (Gulf of Maine Case, 1984). The United States stressed that consideration had to be given to the continuous human presence which took the form of harvesting, conservation and management of fisheries and thus sought to avoid any division of this bank, which it claimed in its totality. Canada, more that the UnitedStates, claimed that the loss of the bank, especially the richer part, would ruin the economy of a region which depended on the line which the boundary took(gulf of Maine Case, 1984). The chamber however decided the case without taking into account of any of the evidence presented by the parties. The chamber also indicated that socio-economic factors could only be taken into account if the delimitation methods would be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned (Gulf of Maine Case, 1984). This was not the case with either of the two parties involved. In the 1985 Guinea/Guinea-Bissau case, the Tribunal did not regarded economic factors as relevant circumstances because delimitation cannot be based on the evaluation of data which changes in relation to factors that are sometimes uncertain (Guinea/Guinea-Bissau Case, 1985). The Tribunal noted that it [ ] does not have a power to compensate for the economic inequalities of the states concerned by modifying a delimitation which it considers is called for by objective and certain considerations(guinea/guinea-bissau Case, 1985). The Tribunal reaffirmed the traditional doctrine of case law, but it seems perhaps to reduce its scope when it stated that: [ ] can nevertheless not completely lose sight of the legitimate claims by virtue of which economic circumstances are invoked, nor contest the right of the peoples concerned to a level of economic and social developments which fully preserves their dignity (Guinea/Guinea-Bissau Case, 1985). 43

52 The significance of this qualification should not, however, be exaggerated, since although it may have led the Tribunal to encourage the parties to a mutually advantageous cooperation (Guinea/Guinea-Bissau Case, 1985).It does not seem to have had any influence on the delimitation itself. Nevertheless, the human and resource impacts of the maritime boundary delimitation cannot be ignored. Coastal states that do enter into maritime boundary agreements may address these impacts through separate agreements designed to complement the boundary settlement. The general rejection of considerations other than coastal geography in maritime boundary delimitation cases is the preferable course. Natural resources, environmental and similar concerns, may be best addressed on their own merits, in light of, but apart from, the maritime boundary delimitation (Charney, 1994). 44

53 3.4 Kenyan Maritime Boundaries Kenya Tanzania Maritime Boundary In the determination of this boundary, meetings were held in 1972 and 1975 in Mombasa, Kenya and Arusha, Tanzania respectively; and the final meeting also held on 4th September 1975, in Dodoma, Tanzania. The two countries agreed on the delimitation of boundaries of territorial waters. The agreement proceeded as explained below: On December 17, 1975, the Republic of Kenya sent a note to the United Republic of Tanzania proposing the terms of an agreed delimitation of the boundary between their respective territorial waters and other maritime jurisdictions of the two states. The United Republic of Tanzania replied on July 9, 1976, accepting these terms. The exchange of notes constitutedan agreement on their maritime boundary which entered into force on July 9, The full text of the agreement is appendicized. Figure 3.5: Zoomed in Nautical Chart Showing Kenya's Maritime Zones as Agreed with Tanzania. Source: Kenya-Tanzania Maritime Boundary agreement. 45

54 Figure 3.6: Nautical Chart Showing Delimitation of Kenya -Tanzania Maritime Boundary. Source: Kenya-Tanzania Maritime Boundary agreement. 46

55 3.4.2 Kenya-Somalia maritime boundary Somalia borders Kenya to the north-east and has the longest coastline in Africa. The government of Somalia collapsed in 1991 and the Somali civil war broke out. Due to lack of a proper government, the people of Somalia resorted to local forms of conflict resolution including civil laws, religious laws and customary laws. A Transitional National Government (TNG) was established in the year 2000 which was later succeeded by the Transition Federal Government (TFG) in 2004 which reestablished National institutions. A new provisional constitution was established in August 2012, which designated Somalia as a Federation. Following the end of the TFGs interim mandate which happened in the same month, the Federal Government of Somalia was formed. The first permanent central government in the country since the start of the Civil war From the above explanation, it is clear why no maritime boundary agreement has been established between Kenya and Somalia. Attempts to do the same were made in 2009 when Kenya and Somalia signed a memorandum of understanding saying that the boundary would run East along the line of latitude but Somalia which has lacked an effective government since 1991 later rejected the agreement in parliament. The spat between Kenya and Somalia over maritime boundaries began when Kenya awarded off shore oil and gas exploration blocks to multinationals Total and Eni( accused Kenya of illegally issuing these blocks as it claims that these concessions lie in its waters. Somalia expressed its intention to take up the matter with the United Nations as four of the blocks awarded in the deep waters are invalid. It was concerned about the lease of these blocks and intended to lodge complaints. The blocks are among seven awarded by Kenya, three of them to Italy's Eni and one to France's Total. Kenya rejected the accusation that ownership of the blocks was contested and stated there was no need to hold up exploration. 47

56 Figure 3.7: Figure Showing Kenya SomaliaOil ExplorationBlocks Source: com Kenya says the maritime boundary, over which there is no formal agreement, should run due east from the point at which the land border meets the coast, like the maritime boundaries of other countries along the coast. Somalia says the boundary should extend perpendicular to the coastline, giving it a big chunk of the waters claimed by Kenya. Joshua Brien, a legal adviser with the Commonwealth Secretariat who is advising Kenya on the matter, said no legal boundary can be established until both governments sign a U.N.-approved agreement or move the issue to an international court. The direct implication of this disagreement to Kenya is that it cannot extend its claim to the continental shelf beyond its 200 nautical miles (370 km) of territorial waters until the border spat is resolved. That holds up the awarding of more exploration licenses. 48