Drawing the Borderline- The Equidistant Principle or Equitable Solutions in the Delimitation of Maritime Boundaries

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1 Drawing the Borderline- The Equidistant Principle or Equitable Solutions in the Delimitation of Maritime Boundaries Abstract The high seas are posing new challenges for mankind. This is hinged on the availability of new technology not only to delimit the continental shelf and other maritime zones, but also because the huge amount of hydrocarbon and other mineral resources which has brought States to negotiate a leeway out of dispute, and sometimes failing agreement, have resorted to arm struggle. Whether in negotiating or, deciding which principle to adopt in the delimitation of maritime boundary, both States and the International Court of Justice (ICJ), as well as the International Tribunal of the Law of the Seas (ITLOS) have had to grapple with the principle suitable for delimitation of maritime boundaries. Keywords: Maritime Boundary, Delimitation, Maritime Zones, Equidistance principle, Equitable Solutions, Hydrocarbon, UNCLOS II. Introduction Issues relating to maritime boundary delimitation will continue to play a front role in cases tinted with international law flavour. As rightly noted, 1 of the estimated 427 potential maritime boundaries delimitation disputes, only 168 have been formally agreed upon. The legal regime for the delimitation of maritime boundaries is the United Nations Convention on the Laws of the Sea, 1982 (hereinafter UNCLOS II). With the quest for the continued increase in demand for fossil fuel to guarantee energy security, there is likely to be more requests for maritime boundary delimitation, with the attending consequences of overlapping claims in areas of the globe which hitherto had not generated any. The International Court of Justice (ICJ) and the International Tribunal of the Laws the Sea (ITLOS) where these claims are lodged by member States is also faced with the challenges as to the acceptable international norm to be adopted in the delimitation of maritime boundaries. In spite of the acceptability which UNCLOS II has received amongst member States in the delimitation of maritime boundaries, it has received its own share of backlash from some scholars in international law. 2 This is so because; the principles and methods enshrined in delimiting the maritime boundaries of 1 Victor Prescott, Maritime Political Boundaries of the World (Martinus Nijhoff Publishers: liden, 2004) P Carlos Ramos-Mrosovsky, [2008] International Law Unhelpful Role in Senkaku Islands 29 UPJIL, states have become more indeterminate, 3 due to the varying interpretations and applications of its provisions by the Courts and States. It should be noted however that, there are more judgments on maritime boundary delimitation than on any other subject of international law, and the trend is still continuing. 4 To this end, this paper is be divided into five parts. Part one will focus on the various maritime zones, with particular emphasis on territorial sea, exclusive economic zone, continental shelf, as well as the rights accruing to States therein for the purposes of ownership of natural resources. Part two on the other hand shall address factors exacerbating the need for maritime boundaries delimitation by States, while part three shall entail a critique of the principles of delimitation under UNCLOS II through the cases and scholarly commentaries. Part four shall focus on the current approach to the delimitation of maritime boundaries, and part five will conclude this paper. MARITIME ZONES AND THE RIGHTS OF STATES UNCLOS II provides for various maritime zones. These zones are Internal Waters; Archipelagic Waters; Territorial Sea; Contiguous Zone; Exclusive Economic Zone (EEZ), and the Continental Shelf. Apart from internal waters, 5 which is the exclusive preserve of coastal states, except where the establishment of a straight baseline which had not previously been considered as such and have been used for international navigation, in such waters, a right of innocent passage is retained 6 The other zones have become more contentious with respect to State practice. Thus, under Article 3(1) of UNCLOS II, States shall exercise sovereign rights up to a limit not exceeding 12nautical miles of its territorial sea, and 200nautical miles from the nearest points of the baselines from which the territorial sea of each State is measured, 7 for the EEZ and the continental 3 Jonathan I. Charney, [1994] Progress in International Maritime Boundary Delimitation Law 88 American Journal of International Law. 1 4 Ibid. 5 Article 8, UNCLOS II. 6 Ibid (n. 1), See Articles 57 and 76 (1) of UNCLOS II. DOI: / _ GSTF

2 shelf with similar attending sovereign rights to explore and exploit natural resources and certain economic activities, as well as exercising jurisdiction over marine science research and environmental protection. 8 However, the above right of coastal States does not affect the rights of other States in the exercise of their rights within these zones. 9 MARITIME BOUNDARY - THE NEED FOR DELIMITATION Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. 10 As Prescott noted, maritime boundaries only began to be significant in the middle of the 20 th Century. Prior to that time, State jurisdiction rarely extended more than three nautical miles 11 mainly because, the doctrine of the freedom of seas, namely that the sea is res communis (not capable of appropriation as territory) as stated by the 17 th century Dutch Jurist, Hugo Grotius. 12 One of the foremost reasons adduced these far the current imbroglio, was the Harry Truman s Proclamation of 1945, which extended the landward territory of the United States to the continental shelf, regarding the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coast of the United States...subject to its jurisdiction and control. 13 With this development, varying claims to the continental shelf by other States became notoriety. 14 A further reason attributed to the quest for maritime boundary delimitation is the presence of hydrocarbon resources in the continental shelf, and to complicate matters, delimitation has not proceeded at a healthy pace in areas where natural resources, mainly petroleum developments, was underway or expected. 15 More so, for the case of the U.S, by the 1950s, oil was meeting more of its 8 Articles, 56, 57 and Arts. 76, 77 of UNCLOS. 9 Articles 58 and 79 of UNCLOS II. 10 See the North Sea Continental Shelf Case. 11 Ibid (n 1), 215. See also Article 1 of United Nations Convention on the Continental Shelf, Adedolapo Akinrele, Nigerian Oil and Gas Law (Oil, Gas & Energy Law Intelligence: Dundee, 2005) Malcolm M. Shaw, International Law 5 th Ed (Cambridge University Press: Cambridge, 2005) Ibid. For instance, Argentina and El Salvador did not only claim the CS, but also the water and airspace; Chile and Peru having no continental shelf, claimed sovereignty over the seabed and waters around their coast to a limit of 200 miles. 15 Emdadul A.K.M Haque, (2011) A View from Bangladesh: Principles of Settling Disputes on Delimitation of Maritime Boundaries-A Review of Cases Relevant to the Bay of Bengal Vol. 9 Is. 6, OGEL. total energy needs than coal. 16 It is only correct to submit therefore that the need for maritime boundaries delimitation has been resource induced. 17 As Dundua noted, with the scarcity of land-based natural resources, and realisation by States of the significance of non-natural resources, States were forced to concentrate on the exploitation of opportunities for offshore resources, whose potential importance was attributed to the advancement and progress in science and technology. 18 In addition, during the 1960 s, the most abundant fish stock in the sea concentrated over the continental shelf, and been the subject to intense exploitation by distant-water fishing fleets. As such, States efforts to acquire exclusive rights to manage and exploit these resources became inevitable. 19 It is not surprising therefore that of the 427 potential maritime boundaries cases, only about 168 (39 percent) have been formally agreed, and many of these only partially, both in terms of boundary length and functionally in respect of the maritime zone delimited. 20 As such, where States attempt to annex their marine potentials for economic development, there are bound to be competing claims as to where the maritime boundaries of the States involved should be drawn. These States activities have seldom led to military confrontation. The maritime boundary dispute between Bangladesh and Myanmar and the recent statement by the Ivorian government challenging the challenging the maritime boundary between her and Ghana since the discovery of hydrocarbon in Ghana s deep offshore basin, as well as Philippines and China claims over the Spratly Islands in the South China Sea are points of reference. Thus, to avoid dispute of this nature, and bringing the force of the United Nations Charter 21 to bear on States, there is the need for the delimitation of the maritime boundaries of coastal States. However, the adoption of the 1958 Geneva 16 Daniel Yergin, The Prize- The Epic Quest for Oil, Money and Power (Free Press: New York, 2009) Ibid (n 1) Nugzar Dundua, [2005] Delimitation of Maritime Boundaries between Adjacent States (The United Nations-Nippon Foundation). < home/fellows_pages/fellows_papers/dundua/0607georgia.pdf.> accessed January, Edward Collins, and Martin A.Rogoff, [1982] International Law of Maritime Boundary Delimitation Vol. 34, UMLR, Ibid (N.1) Articles 2(3) and 33(1), enjoins member states to settle international disputes by peaceful means through negotiation, enquiry, mediation, conciliation, arbitration, judicial settlements, and result to regional agencies etc. < Accessed 27,January GSTF

3 Convention on the Continental Shelf, which defined the continental shelf to be the seabed or subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the superjacent waters admits of the exploitation of the natural resources of the area...or coast of island 22 did not help either. As Shaw noted, this provision caused problems, since developing technology rapidly reached a position to extract resources to a much greater depth than 200 metres, and this meant that the outer limits of the shelf, subject to the jurisdiction of the coastal state, were consequently unclear. 23 Article 76 (1) of UNCLOS II on the other hand defined the continental shelf without specifying any method of delimitation. OPTIONS FOR DELIMITATION OF MARITIME BOUNDARIES The current legal regime for the delimitation of the maritime boundaries of States is contained in Article 15 24, dealing with territorial sea, and the combined effect of Articles 74 and 83 UNCLOS 11 respectively for the EEZ and continental shelf. 25 While Article 15 envisages the use of the equidistance principle, failing any agreement by the parties and in the absence of historic title or special circumstances, Articles 74 and 83 enjoins States to enter into agreement on the basis of international law as referred to in Article 38 of ICJ Statutes, 26 with the aim of achieving an equitable solution. Thus, unlike Article 15, the provisions relating to the delimitation of the EEZ and continental shelf, did not specify a method of delimitation, thus failing to resolve the issue, making the current position less specific than the position under the 1958 Geneva Convention on the Continental Shelf. 27 In concurring with the above point, Shaw noted that the question of the delimitation of the continental shelf has occasioned considerable debate and practice from the 1958 and 1982 conventions to case-law and a variety of treaties Article 1of the United Nations Geneva Convention on the Continental Shelf. Adopted 29 April 1958, entered into force on the 10 June See also Article 76 (1) of UNCLOS II. 23 Ibid (n. 13) Article 15 (1) of UNCLOS II. 25 Ibid, (n 2). See Articles 74 and 83 of UNCLOS II. 26 Article 38 of the Statute of the International Court of Justice states on disputes submitted to it, the court shall apply international conventions; international customs, general principles of law recognized by civilized nations and those subject to the provisions of Article Ibid (n 12) Ibid (n 13) 527. According to the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, the equidistant principle was defined as the line every point of which is equidistant from the nearest point of the baselines from which the breath of the territorial sea is measured. 29 Thus prior to UNCLOS II, the equidistance principle held sway failing agreements by states in issues relating to maritime boundaries, even in negotiations between states. As Dundua noted, the principle struck a certain balance between predictability and flexibility, objectivity and discretion. 30 It thus account for while governments always begin the negotiation of a maritime delimitation by considering an equidistance line, while at liberty subsequently to modify it. 31 Jagota, further stressed that, in hundred agreements concluded among fiftynine States, the equidistance method, whether true or modifying was privileged. 32 In spite of the plausible defence for the use of the equidistance principle, the courts have in a plethora of cases rejected the sole use of the equidistance principle. For instance, in North Sea Continental Shelf Cases (concerning Denmark/Germany and Germany /Netherland), 33 the court held that the principle was not a general principle of international customary law, but only a method of delimitation. This position was further amplified by the courts in the Gulf of Maine case 34 and Libya v. Malta, 35 and the more recent case of Nicaragua v Honduras, 36 where the court took into consideration of all relevant circumstances to arrive at equitable result, and it held that it would be impossible to apply the equidistance principle. It must be noted however that what constitute relevant circumstances to arrive at an equitable solution was never defined by 29 Ibid (n 18) Ibid. 31 P. Weil, (1989) The Law of Maritime Delimitation- Reflections 153; cited in L.M.D Nelson, [1990] The Role of Equity in the Delimitation of Maritime Boundaries 84, American Journal of International Law, S.P Jagota, Maritime Boundary (Martinus Nijhoff Publishers: Dordrecht; Boston 1985) 122, cited in Dundua, Ibid (n18) Cited in, Mark O. Igiehon, (2006) Present International Law on the Delimitation of the Continental Shelf International Energy Law and Taxation Review. 5. Also (1969) I.C.J Reports (Judgment of February ) < Accessed January (1984) I.C.J Reports (Judgment of 12 October 1984) 35 (1985) I.C.J Reports (Judgment of 3 June 1985) 36 (2007) I.C.J Reports (Judgment of 8 October 2007) GSTF

4 UNCLOS II. Thus, Judge Gros in his dissenting opinion in the Gulf of Maine Case (supra) criticised the application of equity as a vague conceptions with the implication that there was no longer a legal rule governing delimitation, as each cases would be open to each judge to decide at his discretion what was equitable. 37 Another criticism levelled against the use of equity was 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 continental shelf. 38 The Current Approach to Maritime Boundary Delimitation under International Law In what appears to be a judicial summersault, the court in Denmark v Norway, held, after examining the relevant precedent, that it was proper to begin the process of delimitation by a median line provisionally drawn. 39 In Qatar v Bahrain, the court further held that even if it were appropriate to apply customary law concerning the continental shelf as developed in decided cases, it is in accordance with precedents to begin with the median line as a provisional line, and then to ask whether special circumstances require any adjustment or shifting of that line. 40 Also, in the recent case of Cameroon v Nigeria, (Equatorial Guinea Intervening), where the issue was on the maritime boundary beyond Point G, where no maritime boundary delimitation has been agreed between both states, the court held, after rejecting Cameroon s contention of the disparity between the length of its coastline and that of Nigeria in the Gulf of Guinea, as relevant circumstance; that the first step is to draw the equidistance line, and then consider whether there are factors calling for the adjustment or shifting of the line in order to achieve an equitable result... and in the absence, the equidistance line represent the equitable result. 41 Similarly, in the Anglo French Continental Shelf Case, the Court of Arbitration demonstrated that the median equidistance principle will be applied in the first instance, and where appropriate, the customary international law rules on delimitation could be utilized to review the median/equidistance principle in order to achieve a fair and equitable result Ibid, (n. 33) R. Kolb, (2003) Case Law on Equitable Maritime Delimitation (1993) I.C.J Reports (Judgment of 14 June 1993) Para Accessed 28 January (2001) I.C.J Reports (Judgment of 16 March 2001) 41 (2002) I.C.J Reports (Judgment of 10 October 2002) Paras Accessed 28 January Ibid (n 12) 36. CONCLUSION Whilst it is not possible for international law to provide an answer as to where the maritime boundaries of coastal states should be drawn, the particularities of each case, as well as the geographical configuration of the maritime milieu to be delimited are fundamental, if armed conflict over the quest for energy security is to be averted. More so, the definition of what factors would constitute relevant circumstances will help in guiding States not only in their applications to the court or tribunal, but also in their negotiations, where States decide not to submit to third party mode of settlement. More so, the current trend adopted by the ICJ and award tribunals in applying the equidistance principle before ascertaining whether special circumstances would require the application of equitable solutions will acceleration claims relating maritime boundary delimitation REFERENCES Books: Akinrele, Adedolapo, Nigerian Oil and Gas Law (OGEL: Dundee, 2005). Jagota, S.P, Maritime Boundary (Martinus Nijhoff, Dordrecht; Boston, 1985) Kolb, Robert, Case Law on Equitable Maritime Delimitation (2003) 171. Prescott, Victor, Maritime Political Boundaries of the World (Martinus Nijhoff, Liden, 2004). Shaw, N. Malcolm, International Law (5 th ed. Cambridge University Press, 2005). Weil, Prosper, The Law of Maritime Delimitation (Cambridge: Grotius, 1989) 153. Yergin, Daniel, The Prize-The Epic Quest for Oil, Money and Power (Free Press: New York, Articles: Charney, I. Jonathan, (1994) Progress in International Maritime Boundary Delimitation Law 88 American Journal of International Law. Dundua, Nugzar, Delimitation of Maritime Boundaries between Adjacent States (United Nations- The Nippon Foundation Fellow, ). Collins, Edward and Rogoff, A. Martins, (1982) International Law of Maritime Boundary Delimitation (1) 4, University of Maine Law Review. Haque, A.K.M. Emdadul, (2011) A View from Bangladesh: Principles of Settling Disputes on Delimitation of Maritime Boundaries- A Review of Cases Relevant to the Bay of Bengal Vol. 9, Is. 6, Oil, Gas and Energy Law Intelligence. Igiehon, O. Mark, (2006) Present International Law on the Delimitation of the Continental Shelf International Energy Law and Taxation Review. Ramos-Mrosovsky, Carlos, (2008) International Law Unhelpful Role in the Senkaku Islands 29, University of Pennsylvania Journal of International Law, 903. Nelson, L.D.M, (1990) The Role of Equity in the Delimitation of Maritime Boundaries 84, American Journal of International Law GSTF

5 Profile: EDWARD O. OKUMAGBA Esq., is a Lecturer at the Delta State University, Nigeria. I obtained a Bachelors of Law (LL.B) degree from the University of Benin, Nigeria, in 2003, before proceeding to the Nigerian Law School, Abuja in I was called to the Nigerian Bar in 2005 (B.L), as a Barrister and Solicitor of the Supreme Court of the Federal Republic of Nigeria, and worked briefly at the Rules and Business Committee of the House of Representatives of the National Assembly as a Legal Research Officer, before proceeding to the University of Aberdeen, United Kingdom, where I obtained a Masters of Law (LL.M) in Oil and Gas Law. Currently, I teach Oil and Gas and Environmental Laws, and also a PhD candidate in Energy Security GSTF