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Equitable Delimitation of Continental Shelf

Published online by Cambridge University Press:  27 February 2017

M. D. Blecher
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Extract

The fons et origo of much law concerning the continental shelf, the Truman Proclamation of September 28, 1945, declared that in cases where the continental shelf off the coast of the United States extended to the shores of another state or was shared with an adjacent state, the boundary should be determined by the United States and the state concerned “in accordance with equitable principles.” A number of subsequent declarations, such as those of Saudi Arabia and the various coastal sheikhdoms on the Arabian Peninsula, have contained similar statements. In the North Sea Continental Shelf case the International Court of Justice, having found the delimitation provisions of the 1958 Geneva Convention on the Continental Shelf to be inapplicable as between the parties, began its exposition of the basic rules and principles to be applied as follows: “(1) delimitation is to be effected by agreement in accordance with equitable principles.” Although the 1958 Geneva Convention did not explicitly require delimitation to be made in accordance with equitable principles, it has been interpreted as requiring such delimitations. Article 83, paragraph 1 of the Informal Composite Negotiating Text of the Third United Nations Law of the Sea Conference expressly states that the delimitation of the continental shelf between adjacent or opposite states shall be effected by agreement in accordance with equitable principles. Whether or not Article 83, paragraph 1 is eventually accepted, it would seem that notions of equity are likely to continue to play an important part in the determination of continental shelf boundaries.

Type
Research Article
Information
American Journal of International Law , Volume 73 , Issue 1 , January 1979 , pp. 60 - 88
Copyright
Copyright © American Society of International Law 1979

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References

1 Presidential Proclamation No. 2667, 3 CFR 67 (1943-48); 13 Dep't State Bull. 485 (1945).

2 See Padwa, Submarine Boundaries, 9 INT'L & COMP. L.Q. 628, 630 (1960).

3 [1969] ICJ Rep. 3, 53. The two North Sea cases (Federal Republic of Germany/ Denmark and Federal Republic of Germany/Netherlands) will hereinafter be referred to as one.

4 UN Doc. A/Conf.62/WP.10 (1977), Reprinted in 16 ILM 1108 (1977).

5 The United Kingdom of Great Britain and Northern Ireland and the French Republic Delimitation of the Continental Shelf Arbitration Agreement of 10 July 1975; Decision of 30 June 1977 [hereinafter cited as Award]. At the time this article was written, the English text of the decision had not yet been published. It is now available in S. ODA, The International Law Of The Ocean Development. Basic Documents (Supp., October 1978). The Arbitration Agreement of 10 July 1975 is presented in its entirety at the beginning of the arbitral court's decision. [1975] Gr. Brit. TS No. 137 (Cmd. 6280). The decision and agreement will hereinafter be referred to as the Anglo-French case or the Anglo-French arbitration. The members of the court were Erik Castrén (president), Herbert Briggs, André Gros, Endre Ustor, and Sir Humphrey Waldock. For a discussion of the decision, see Colson, The United Kingdom-France Continental Shelf Arbitration, 72 AJIL 95 (1978). For a discussion of the decision of March 14, 1978, interpreting the decision of June 30, 1977, see Colson, The United Kingdom- France Continental Shelf Arbitration, infra at 112. For the French texts of the decisions, see Le Royaume-Uni De Grande Bretagne Et D'irlande Du Nord Et La République Française Délimitation Du Plateau Continental; Décision Du 30 Juin 1977, and (same title plus) DECISION DU 14 MARS 1978, Paris, la Documentation Franchise, 1977 and 1978, respectively.

6 Bin Cheng, Justice and Equity in International Law, 8 Current Legal Prob. 185, 204 (1955).

7 [1969] ICJ Rep. 48.

8 Award, Arbitration Agreement, Article 2(1).

9 Award, para. 245.

10 [1969] ICJ Rep. 47.

11 Ibid.

12 Award, para. 246.

13 Id. at para. 194.

14 [1969] ICJ Rep. 22. The International Court appeared to regard the Truman Proclamation as providing authority for its idea that boundaries were to be delimited rather than areas apportioned. Id. at 33. In fact, the Truman Proclamation referred neither to delimitation nor to apportionment, but stated that continental shelf boundaries “shall be determined by the United States and the State concerned.” Supra note 1 (my emphasis).

15 See text at note 17, infra.

16 [1969] ICJ Rep. 22.

17 Ibid. For earlier discussion concerning the nature of states’ rights over the continental shelf, see E. Katin, The Legal Status of the Continental Shelf as Determined by the Conventions Adopted at the 1958 United Nations Conference on the Law of the Sea: An Analytical Study of an Instance of International Law Making 102-10 (1962) (unpublished thesis in Harvard Law School Library); Petroleum Development Ltd. v. Sheikh of Abu Dhabi, 18 INT'L L. Rep. 144, 156.

18 [1969] ICJ Rep. 50 (my emphasis).

19 Id. at 53 (my emphasis).

20 Id. at 53-54.

21 Id. at 17, 49.

22 Award, paras. 196-99.

23 [1969] ICJ Rep. 54.

24 Award, paras. 9, 12. The court reached the same conclusion about the “Hurd Deep Fault Zone” in the Atlantic region. Id. at para. 12.

25 [1969] ICJ Rep. 54.

26 Award, paras. 152-54; United Kingdom Final Submissions, para. 5.

27 Id. at para. 161.

28 Id. at para. 175.

29 Id. at para. 188.

30 Ibid.

31 Id. at paras. 171-73.

32 Id. at para. 173.

33 Id. at para. 248.

34 See, e.g., Munkman, Adjudication and Adjustment —International Judicial Decision and the Settlement of Territorial and Boundary Disputes [1972-1973] 46 Brit. Y.b. Int'l l. 1, 95-103; O. Schachter, Sharing The World's Resources, pt. I (1977).

35 Award, paras. 150-51.

36 Id. at para. 179.

37 Id. at paras. 201-02.

38 Id. at para. 200.

39 Id. at para. 251. Usage of the parties themselves, of course, is also important, as was found in connection with the use of the Eddystone Rock as a basepoint in the Anglo-French case. Id. at paras. 122-44.

40 Award, para. 219; [1951] ICJ Rep. 116, 133; [1969] ICJ Rep. 54.

41 Award, para. 246.

42 Award, Arbitration Agreement, Article 2(1).

43 Such a delimitation should be effected “by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.” There is apparently a justification, on geometric grounds, for distinguishing the median line from the “equidistance” line: This distinction between an equidistant line and a median line seems valid from a geometrical point of view, for a true median line presupposes a line that is in the middle. Theoretically, at least, a boundary line through the territorial sea between two adjacent States, while an equidistant line, is not a true median line. I A. Shalowitz, Shore And Sea Boundaries 231 (1962). Contra, E. Katin, supra note 17, at 208.

44 [1969] ICJ Rep. 42.

45 Id. at 17, 23.

46 Id. at 49.

47 Award, para. 65.

48 Id. at para. 70.

49 Id. at para. 75.

50 [1969] ICJ Rep. 41.

51 Award, para. 76.

52 Id. at para. 148.

53 Id. at para. 68. See the dissent of arbitrator Briggs expressing concern that “the Court's interpretation of Article 6 seems, in effect, to shift ‘the burden of proof of ‘special circumstances’ from the State which invokes them to the Court itself.“

54 Id. at paras. 150-51.

55 Id at paras. 152-54.

56 Id. at para. 148.

57 id. at paras. 201-02.

58 Id. at para. 95.

59 Id. at paras. 237-42.

60 Id. at para. 233.

61 Id. at para. 208.

62 Id. at paras. 93, 221-22.

63 Id. at paras. 249, 251.

64 Id. at para. 240.

65 That is, the element of a reasonable degree of proportionality which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region. [1969] ICJ Rep. 54.

66 Id. at 53-54.

67 Award, paras. 99, 101.

68 Id. at para. 250.

69 Id. at para. 99.

70 Ibid.

71 Id. at paras. 100-01.

72 Id. at para. 101.

73 Id. at para. 244.

74 Id. at para. 95.

75 This did not mean that the court endorsed the doctrine of equality of states, which was invoked by France; on the contrary, it roundly rejected that doctrine on the basis that the equality of states, applied generally to the delimitation of continental shelf, would have “vast implications” for dividing the shelf among the states of the world, “implications which have been rejected by a majority of States and which would involve, on a huge scale, that refashioning of geography Repudiated in the North Sea Continental Shelf cases.” Id. at para. 195. The court had in mind, rather, the idea, as old, at least, as Aristotle, that equals should be treated equally. But what is it that, absent the Channel Islands, would make the United Kingdom and France “equal” states? Would it be just the similar lengths of their coastlines in relation to the Channel, or would other factors such as social, economic, and political considerations be significant? If considerations other than purely geographical ones were in the mind of the court at this stage, they were not articulated.

76 Award, para. 183.

77 Id. at para. 196. Equity seems to be performing a “corrective” function here. See section V infra. The court added that if this conclusion were tested by applying the equidistance-special circumstances rule of Article 6 of the Geneva Convention, the presence of the Channel Islands close to the French coast would have to be considered, prima facie, as constituting a “special circumstance” justifying a delimitation other than by means of the median line proposed by the United Kingdom. Award, para. 196.

78 The court stated that the equitable considerations invoked by the United Kingdom “do not … appear … sufficient to justify the disproportion or remove the imbalance … which adoption of the United Kingdom's proposal would involve.” Id. at para. 198.

79 Id. at para. 208.

80 Id. at para. 220. The court (at paras. 246—47) rejected this French view.

81 Id. at para. 220.

82 Id., United Kingdom submissions of February 9, 1977 (my emphasis).

83 Id. at paras. 227-29.

84 Id. at para. 243.

85 Ibid.

86 See id. at paras. 249-50.

87 Id. at para. 187. See also [1969] ICJ Rep. 50: there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others.

88 Compare the Informal Composite Negotiating Text, supra note 4, Art. 121(3): “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.“

89 Award, para. 184.

90 Supra at 67.

91 Award, para. 186.

92 Cf. id. at para. 190: “as between the United Kingdom and the French Republic and for present purposes, the Channel Islands are separate islands of the United Kingdom, not separate States” (my emphasis).

93 [1969] ICJ Rep. 22; Award, para. 77.

94 For a discussion of the continental shelf to be awarded to islands variously circumstanced, see Karl, Islands and the Delimitation of the Continental Shelf: A Framework for Analysis, 71 AJIL 642 (1977).

95 Award, para. 197.

96 Cf. id. at para. 200, where the court considered the Franco-Canadian delimitation of territorial sea relating to St. Pierre and Miquelon.

97 Id. at para. 198.

98 Ibid.

99 Id. at paras. 201-03.

100 Id. at para. 187. Compare, however, the caveat of the International Court of Justice that “the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.” Fisheries Jurisdiction Case (United Kingdom v. Iceland) [1974] ICJ Rep. 23-24.

101 Award, para. 200.

102 Id. at para. 199.

103 Id. at para. 244.

104 Id. at para. 246.

105 Id. at paras. 248-49.

106 Id. at para. 249.

107 Ibid.

108 Id. at para. 250.

109 Id. at para. 251.

110 Could it be argued that if one had wished to use a half-effect method, one should have split the distance between, first, the equidistance line without the use of either the Scillies or Ushant as base points, and, second, the equidistance line with baselines including both the Scillies and Ushant?

111 Award, para. 229.

112 Compare Cheng, supra note 6, at 210-11: “in the assessment of damages, where the principle of liability has clearly been established, but the extent of the loss is not clear, the only recourse for an international judge often is to assess the damages in as equitable a manner as is possible under the circumstances.“

113 Arbitrator Briggs, however, did feel constrained to deliver a separate opinion in which he disagreed with the court's interpretation of Article 6 of the 1958 Continental Shelf Convention.

114 See, e.g., Award, para. 81 (“appropriate“), para. 84 (“appropriateness“), para. 100 (“reasonable“), para. 242 (“just“). Compare Padwa, supra note 2 at 629, remarking that several techniques of submarine boundary delimitation have been used, and commenting: “The most that can be said is that each technique is designed to achieve a division in each situation which yields a reasonable and equitable result and which is consonant with the existing political realities” (my emphasis); also Katin, supra note 17, at 219, using “equity” and “justice” interchangeably.

115 Award, para. 194.

116 1 R. Int'l Arb. Awards 331 (1922).

117 Award, para. 81. See the discussion of “proximity” and “adjacency” in [1969] ICJ Rep. 30.

118 Award, paras. 198, 246.

119 [1969] ICJ Rep. 22; Award, para. 78.

120 [1969] ICJ Rep. 49-50; Award, para. 195.

121 [1969] ICJ Rep. 22; Award, para. 77.

122 Award, para. 195.

123 Id. at para. 196.

124 Equity is, of course, a concept used not only in connection with the delimitation of continental shelf or even in connection with boundary claims generally. Its presence is pervasive in international law. As one writer put it, “[f]ew major branches of international law have been left entirely untouched by equitable principles.” C. W. Jenks, The Prospects Of International Adjudication 420 (1964).

125 See V. Degan, L'EquitÉ Et Le Droit International 239 (1970): Le probléme des lacunes et des insuffisances du droit international positif nous semble avoir un caractére théorique plutot que pratique. On ne peut pas prétendre que le droit actuellement en vigueur soit un systeme parfait et immuable, mais ce systéme offre toutefois des moyens suffisants au juge pour combler ses propres lacunes.

126 See, e.g., the separate opinion of Judge Fitzmaurice in the Barcelona Traction case, [1970] ICJ Rep. 85.

127 See C. De Visscher, Del'equité Dans Le Réglement Arbitral Ou Judiciaire Des Lltiges De Droit International Public 10 ( 1972 ) .

128 S. Milsom, Historical Foundations Of The Common Law 77 (1969).

129 Supra note 127, at 8-9.

130 See, in the domestic context, Brown v. Board of Education, 349 U.S. 294, 300 (1955): “Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases [concerning desegregation in public education] call for the exercise of these traditional attributes of equity power” (footnotes omitted).

131 This nonacquiescent spirit is present in the statement that it must be of some importance to determine the validity and probative force of various types of evidence and to determine the weight that a given category of evidence should carry, relative to other forms of evidence. If this inquiry is not made, the proof of international law must inevitably be highly impressionistic or even non-rational, being governed only by the presumed good judgment of him who asserts the existence of the rule. Baxter, Multilateral Treaties as Evidence of Customary International Law, [1955- 1956] 41 Brit. Y.B. Int'L L. 275, 275. Although Professor Baxter's remarks were concerned with evidence of law, one could argue that they should apply with some, if not equal, force to evidence of equity.