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The Roles of Equity in the Delimitation of Maritime Boundaries*

Published online by Cambridge University Press:  27 February 2017

L. D. M. Nelson
L. D. M. Nelson*
Affiliation:
Of the Office for Ocean Affairs and Law of the Sea, United Nations
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Extract

The recent decisions of the International Court of Justice and various arbitral tribunals with respect to the delimitation of maritime boundaries between states raise certain fundamental problems of jurisprudence. Among these are the legal consequences emanating from the proposition that each boundary is a unicum, that is to say, it is unique or monotypic; the part to be played by equity in the delimitation process; the role of equidistance; the legal consequences of the demise of natural prolongation and the emergence of the distance criterion or principle; the notion of a properly structured system of equity; and the proper function of the Court or tribunal in dealing with these matters.

Type
Research Article
Information
American Journal of International Law , Volume 84 , Issue 4 , October 1990 , pp. 837 - 858
Copyright
Copyright © American Society of International Law 1990

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Footnotes

*

The views expressed are personal and do not necessarily reflect those of the Office for Ocean Affairs and Law of the Sea or of the United Nations.

References

1 The cases are: North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Judgment of Feb. 20), reprinted in 8 ILM 340 (1969) [hereinafter North Sea]; Case concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of 30 June 1977, 18 R. Int’l Arb. Awards 3, reprinted in 18 ILM 397 (1979) [hereinafter Anglo-French Award]; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 (Judgment of Feb. 24), reprinted in 21 ILM 225 (1982) [hereinafter Tunisia/Libya]; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12), reprinted in 23 ILM 1197 (1984) [hereinafter Gulf of Maine]; Arbitral Award of Feb. 14, 1985, in Guinea/Guinea-Bissau Dispute concerning Delimitation of the Maritime Boundary, 25 ILM 251 (1986) [hereinafter Guinea/Guinea-Bissau Award]; Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13 (Judgment of June 3), reprinted in 24 ILM 1189 (1985) [hereinafter Libya/Malta]; Arbitral Award of July 31, 1989 (Guinea-Bissau/Senegal), annexed to the Application filed on Aug. 23, 1989, by Guinea-Bissau with the International Court of Justice instituting proceedings against Senegal in respect of a dispute concerning the existence and validity of the award of July 31, 1989 [hereinafter Guinea-Bissau/Senegal Award].

In addition, decisions are pending in several maritime boundary cases recently submitted to third-party adjudication. Since 1986, a Chamber of the International Court of Justice has been seized of the dispute between Honduras and El Salvador concerning their land, island and maritime frontier. See, e.g., Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Composition of Chamber, 1989 ICJ Rep. 162 (Order of Dec. 13). On August 16, 1988, Denmark, on the basis of the declarations made by both Denmark and Norway accepting the Optional Clause under Article 36(2) of the Statute of the International Court of Justice, submitted its maritime boundary dispute with Norway to the Court. It has been requested “to decide, in accordance with international law, where a single line of delimitation shall be drawn between Denmark and Norway’s fishing zone and continental shelf areas in the waters between Greenland and Jan Mayen.” Maritime Boundary in the Area between Greenland and Jan Mayen (Den. v. Nor.), Application Instituting Proceedings (Aug. 16, 1988), ICJ Doc. 1988 General List No. 78, at 4. On March 30, 1989, Canada and France concluded the Agreement Establishing a Court of Arbitration for the Purpose of Carrying out the Delimitation of Maritime Areas between France and Canada [St. Pierre and Miquelon], 29 ILM 1 (1990). On the proceedings before the International Court of Justice instituted by Guinea-Bissau against Senegal, referred to supra, see Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), 1989 ICJ Rep. 126 (Order of Nov. 1); and id., Provisional Measures, 1990 ICJ Rep. 64 (Order of Mar. 2).

2 See, e.g., Hudson’s observations in the 69th and 79th meetings of the International Law Commission. In particular, he stated at the 69th meeting that “[g]eographical differences prevented the formulation of a general principle.” [1950] 1 Y.B. Int’l L. Comm’n 233, para. 53, and 306, para. 53, UN Doc. A/CN.4/SER.A/1950. Young also noted that “[e]ach situation is unique, and can be solved satisfactorily only in the light of its own facts and the particular interests there involved.” Young, The International Law Commission and the Continental Shelf, 46 AJIL 123, 126 (1952). See also Grisel, The Lateral Boundaries of the Continental Shelf and the Judgment of the International Court of Justice in the North Sea Continental Shelf Cases, 64 AJIL 562, 590 (1970).

3 1982 ICJ Rep. at 92, para. 132. In the Anglo-French Award, the court of arbitration noted that “the appropriateness of the equidistance method or any other method for the purpose of effecting an equitable delimitation is a function or reflection of the geographical and other relevant circumstances of each particular case.” 18 ILM at 426, para. 97 (emphasis added).

4 1984 ICJ Rep. at 290, para. 81.

5 25 ILM at 289-90, para. 89 (citing Gulf of Maine, 1984 ICJ Rep. at 290, para. 81) (citation omitted).

6 Judge ad hoc Jiménez de Aréchaga adds to this the historical and political factors that established the land frontiers separating the states parties to each dispute. See his separate opinion in Tunisia/Libya, 1982 ICJ Rep. at 105, para. 22.

7 H. M. Waldock, The International Court and the Law of the Sea 13 (Cornelis van Vollenhoven Memorial Lecture, University of Leiden, May 22, 1979).

8 P. Weil, The Law of Maritime Delimitation—Reflections 153 (1989) (translation of Perspectives du droit de la délimitation maritime (1988)).

9 See, e.g., Gulf of Maine, 1984 ICJ Rep. at 295, para. 99. Note also Articles 74 and 83 of the United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprinted in United Nations, The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

10 P. Weil, supra note 8, at 165-67.

11 Jennings, Equity and Equitable Principles, 42 Annuaire Suisse de Droit International 27, 32 (1986). In a later article, Judge Jennings bluntly stated that “[i]f equity is not to modify the law, it can have no role to play other than to complicate and confuse the juristic terminology. “Jennings, The Principles Governing Marine Boundaries, in Staat und Völkerrechtsordnung: Festschrift Für Karl Doehring 397, 404 (1989) [hereinafter Marine Boundaries].

12 In this respect the following observation from the Anglo-French Award may be noted: “The question is whether, in the light of all the pertinent geographical circumstances, that fact [the mere presence of the Scilly Isles in the position in which they lie] amounts to an inequitable distortion of the equidistance line producing disproportionate effects on the areas of shelf accruing to the two States.” 18 ILM at 454, para. 243.

And from the Tunisia / Libya case: “Yet in the present case nothing was done to investigate the precise effect on an equidistance line of the relevant geographical features in the area of continental shelf under consideration, the ‘unreasonable’ … results which the equidistance method might produce and any modifications to be therefore envisaged.” 1982 ICJ Rep. at 149, para. 11 (Gros, J., dissenting). See also Zoller, Recherche sur les méthodes de délimitation du plateau continental: à propos de l’affaire Tunisie-Libye, 86 Revue Générale de Droit International Public [RGDIP] 645, 669, 670, 674 (1982); P. Weil, supra note 8, passim; Nelson, Equity and the Delimitation of Maritime Boundaries, Iranian Rev. Int’l Rel., NO. 11-12, 1978, at 197, 202; Jennings, Marine Boundaries, supra note 11, at 408. See further section V infra.

13 Tunisia/Libya, 1982 ICJ Rep. at 60, para. 71. Of course, Hudson’s well-known observations in his individual opinion in Diversion of Water from the Meuse (Neth. v. Belg.) are to the same effect:

What are widely known as principles of equity have long been considered to constitute a part of international law, and as such they have often been applied by international tribunals. … A sharp division between law and equity, such as prevails in the administration of justice in some States, should find no place in international jurisprudence; even in some national legal systems, there has been a strong tendency towards the fusion of law and equity.

1937 PCIJ (ser. A/B) No. 70, at 76 (Judgment of June 28) (citations omitted). The idea of autonomous equity may have already been contained in the following dictum in the North Sea Cases: “Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable.” 1969 ICJ REP. at 48, para. 88. In concluding his criticism of this dictum in this seminal case, Judge Koretsky considered that the Judgment tended somewhat toward ex aequo et bono. Id. at 165 (Koretsky, J., dissenting).

14 Tunisia/Libya, 1982 ICJ Rep. at 106, para. 24 (Jiménez de Aréchaga,J., Sep. op.). Cf. also these observations: “L’‘Equité’ peut être définie comme la solution qui convient le mieux à chaque cas qui se présente. Elle est done autre chose que T’‘Equity’ du Droit anglo-saxon.” A. Alvarez, Preliminary Communication, 40 Institut de Droit International, Annuaire 151 (1937). Note too the following:

L’équité est essentiellement une affaire d’espèce: e’est là son caractère distinctif: il n’y a pas de “principes d’équité”. … I1 ne peut y en avoir parce que ce qui est juste dans un cas n’apparaît que quand le cas est réalisé, pas auparavant. I1 y a bien des principes de justice, mais c’est en considération des circonstances du cas que l’on choisit le principe applicable pour donner une solution d’équité.

Decencière-Ferrandière, Quelques Réflexions touchant le reglement des conflits internationaux, 36 RGDIP 416, 432 (1929), quoted in Mouskhéli, L’Equité en droit international moderne, 40 RGDIP 347, 353 (1933). To the same effect, see C. De Visscher, De l’Equité dans le règlement arbitral ou judiciaire des litiges de droit international public 7 (1972); and Reuter, Une Ligne unique de délimitation des espaces maritimes, in Mélanges Georges Perrin: Recueil de travaux offerts À M. Georges Perrin 251, 255 and 264 (1984).

15 Counter-Memorial submitted by the Republic of Malta (Libya/Malta), 1983 ICJ Pleadings (1 Continental Shelf) 59, para. 111 (Oct. 26, 1983) [hereinafter Malta Counter-Memorial]. See further, e.g., Bowett, The Arbitration between the United Kingdom and France Concerning the Continental Shelf Boundary in the English Channel and South-western Approaches, 49 Brit. Y.B. Int’l L. 1, 14 (1978); Zoller, supra note 12, at 656; David, La Sentence arbitrate du 14 février 1985 sur la délimitation de la frontière maritime Guinée-Guinée Bissau, 31 Annuaire Français de Droit International 350, 366(1985); Charney, Ocean Boundaries between Nations: A Theory for Progress, 78 AJIL 582, 587 (1984); and P. Weil, supra note 8, at 180-83.

16 See Newman, Introduction to Equity in the World’s Legal Systems 15,17 (R. A. Newman ed. 1973). There he refers to “the presence in the law of goals which are in direct and perennial conflict; the goal of certainty and the goal of individual justice.”

17 N. MacCormick, Legal Reasoning and Legal Theory 98–99 (1978). The theory of particular justice has also been attacked because it does not “provide a means by which a decision can be tested on rational grounds, or sufficient legal data from which rational inferences about the future can successfully be made.” R. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification 97 (1961).

18 P. Weil, supra note 8, at 153, has observed: “Nor is the argument about the particularity of each case entirely convincing. It could be put forward in all fields, not just that of maritime delimitation ….”

19 It must be noted, however, that in the Libya / Malta case, the Court sought to downplay the effects of the unicum in the delimitation process. It said that

the justice of which equity is an emanation, is not abstract justice but justice according to the rule of law; which is to say that its application should display consistency and a degree of predictability; even though it looks with particularity to the peculiar circumstances of an instant case, it also looks beyond it to principles of more general application.

1985 ICJ Rep. at 39, para. 45. This writer doubts whether these principles (see text at note 63 for a list of these equitable principles) in and of themselves possess the degree of precision enabling their application to produce the consistency and predictability necessary for all cases. In this connection Degan argues that “the application of these ‘equitable principles’ as allegedly a part of international law does not lead to predictable results. The margin of discretionary power of the Court is too large.” Degan, “Equitable Principles” in Maritime Delimitations, in 2 International Law at the Time of Its Codification: Essays in Honour Of Roberto Ago 107, 133 (1987) [hereinafter Codification Essays]. The discretionary power of the Court in this matter is discussed in the text at notes 74–81 infra.

20 P. Weil, supra note 8, passim.

21 In this respect Judge Waldock, supra note 7, at 11, labels the Judgment “as in some ways perhaps an unsettling contribution to the modern law.”

22 1982 ICJ Rep. at 79, para. 110. Gros did not accept that there was any necessity for this “a priori opposition to the very notion of equidistance having any useful role to play in searching for an equitable solution.” Gulf of Maine, 1984 ICJ Rep. at 388, para. 46 (Gros, J., dissenting).

23 See 1984 ICJ Rep. at 297–98, paras. 105–07.

24 See 25 ILM at 294, para. 102.

25 Malta Counter-Memorial, supra note 15, at 78, para. 164. See further text at notes 51–52 infra.

26 1985 ICJ Rep. at 37, para. 43 (quoting Tunisia/Libya, 1982 ICJ REP. at 79, para. 110, and North Sea, 1969 id. at 30, para. 41, respectively) (citations omitted).

27 P. Weil, supra note 8, at 154.

28 The Court’s decision in the North Sea Cases exerted a significant influence on the debates at the conference on this matter. The emergence of several new states had markedly increased the diversity of maritime situations, a fact that also played a significant role within the conference in weakening the/global rule embodied in the equidistance principle. Nelson, supra note 12, at 208; and Quéneudec, L’Affaire de la délimitation du plateau continental entre la France et le Royaume-Uni, 83 RGDIP 53, 74 (1979).

29 Paragraphs 1 and 2 of Article 6 of the Geneva Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311, read as follows:

1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

Paragraph 1 of Articles 61 and 70 of the first negotiating text of the Convention on the Law of the Sea, the Informal Single Negotiating Text, certainly gave pride of place to “equitable principles.” Article 61 (1) read thus: “The delimitation of the exclusive economic zone between adjacent or opposite States shall be effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistance line, and taking account of all the relevant circumstances.” And Article 70(1): “The delimitation of the continental shelf between adjacent or opposite States shall be effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistance line, and taking account of all the relevant circumstances.” UN Doc. A/CONF.62/WP.8/Part II, 4 Third United Nations Conference on the Law of the Sea, Official Records 162 and 163, UN Sales No. E.75.V.10 (1975).

30 See Anderson, Maritime Delimitation—A View of British Practice, 12 Marine Pol’y 231, 237 (1988); Adede, Toward the Formulation of the Rule of Delimitation of Sea Boundaries Between States with Adjacent or Opposite Coasts, 19 Va. J. Int’l L. 207 (1979); Lauterpacht, Equity, Evasion, Equivocation and Evolution in International Law, 33 Am. Branch Int’l L. Ass’n, Proc. & Comm. Rep. 43 (1977–78). For a detailed account of the evolution of the provisions of the 1982 Convention on the Law of the Sea on the delimitation of the continental shelf and the exclusive economic zone, see Dissenting Opinion of Judge Oda, Tunisia/Libya, 1982 ICJ Rep. at 234–47.

31 Article 74(1) of the Convention on the Law of the Sea, supra note 9, reads as follows: “The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.”

Article 83(1) of the Convention reads as follows: “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.”

32 Tunisia/Libya, 1982 ICJ Rep. at 105, para. 21 (Jiménez de Aréchaga, J., sep. op.). See also Jiménez de Aréchaga, The Conception of Equity in Maritime Delimitation, in 2 Codification Essays, supra note 19, at 229. Per contra P. Weil, supra note 8, at 203 et passim.

33 This section of the article is based partly on the report The Relationship between the Exclusive Economic Zone and the Continental Shelf, prepared by this writer for the Committee on the Exclusive Economic Zone for the 62d Conference of the International Law Association in his capacity as rapporteur of the committee. International Law Association, Report of the 62D Conference Held at Seoul August 24th to August 30th, 1986, at 328.

34 1969 ICJ Rep. at 22, para. 19.

35 Id. at 31, para. 43.

36 See, e.g., Anglo-French Award, 18 ILM at 423, para. 79; Tunisia/Libya, 1982 ICJ REP. at 57, para. 66; Gulf of Maine, 1984 ICJ Rep. at 275, para. 47; Guinea/Guinea-Bissau Award, 25 ILM at 300, para. 117.

37 18 ILM at 428, para. 107.

38 1984 ICJ Rep. at 274, para. 46.

39 18 ILM at 428, para. 107.

40 Malta Counter-Memorial, supra note 15, at 73, para. 146.

41 Reply submitted by the Republic of Malta (Libya/Malta), 1984 ICJ Pleadings (Continental Shelf) 39, para. 70 (July 12, 1984).

42 Although Australia and Indonesia concluded agreements in 1971 and 1972 delimiting the continental shelf between the maritime areas east and west of Timor, they were unable to find any solution to the delimitation of the continental shelf boundary between Timor and northern Australia. Australia based its claim on the natural prolongation principle—on geomorphology—whereas Indonesia’s claim rested on the distance criterion. On December 11, 1989, the two countries signed the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, reprinted in 29 ILM 469 (1990).

43 Convention on the Law of the Sea, supra note 9, Art. 76(1) (emphasis added). The breadth of the exclusive economic zone also depends on distance, since it “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” Id., Art. 57.

44 1982 ICJ Rep. at 48, para. 47.

45 Id. at 49, para. 48. In his separate opinion, Judge ad hoc Jiménez de Aréchaga adopted a clearly more positive approach:

This new method of defining the continental shelf by laying down an agreed distance from the baselines definitively severs any relationship it might have with geological or geomorphological facts. The continental shelf extends, regardless of the existence of troughs, depressions or other accidental features, and whatever its geological structure, to a distance of 200 miles from the baselines, unless the outer edge of the continental margin is to be found beyond that distance.

Id. at 114, para. 51. See also Dissenting Opinions of Judge Oda, 1982 ICJ Rep. at 249, para. 146; and Judge ad hoc Evensen, 1982 ICJ Rep. at 286, para. 9.

46 It is important to note that the Court’s Judgment was significantly influenced by the institution of the exclusive economic zone. The Court observed:

Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of any exclusive economic zone which it might proclaim, one of the relevant circumstances to be taken into account for the delimitation of the continental shelf of a State is the legally permissible extent of the exclusive economic zone appertaining to that same State.

1985 ICJ Rep. at 33, para. 33.

47 Id. at 35-36, para. 40. Evans has questioned this finding of the Court. See M. Evans, Relevant Circumstances and Maritime Delimitation 52 (1989).

48 1985 ICJ Rep. at 35, para. 39.

49 Id.

50 See Counter-Memorial submitted by Canada (Can. v. U.S.), 1983 ICJ Pleadings (Gulf of Maine) 231, para. 558 (June 28, 1983).

51 See text at note 26 supra.

52 1985 ICJ Rep. at 56, para. 77.

53 Id. at 47, para. 62; see also North Sea, 1969 ICJ Rep. at 36, para. 57.

54 1985 ICJ Rep. at 56, para. 77.

55 P. Weil, supra note 8, at 80-81 (quoting North Sea, 1969 ICJ Rep. at 28, para. 37, and 32, para. 46).

56 Id. at 81.

57 Libya/Malta, 1985 ICJ Rep. at 47, para. 63.

58 Judge Bedjaoui noted that “au stade actuel d’évolution du droit de la mer et de la jurisprudence intefnationale correspondante, il serait sans doute hasardeux d’affirmer que les facteurs géologiques et géomorphologiques ont complètement perdu toute pertinence.” Guinea-Bissau/Senegal Award, supra note 1, Dissenting Opinion at 175, para. 116.

59 Libya/Malta, 1985 ICJ Rep. at 33, para. 34.

60 Id. at 128–29, para. 6 (Oda, J., dissenting). It may also be useful to bear in mind the following observations of the Court in the Tunisia /Libya case: “the physical factor constituting the natural prolongation is not taken as a legal title, but as one of several circumstances considered to be the elements of an equitable solution.” 1982 ICJ Rep. at 58, para. 68.

61 1984 ICJ Rep. at 312, para. 157.

62 1985 ICJ Rep. at 55, para. 76.

63 Id. at 39–40, para. 46 (quoting North Sea, 1969 ICJ Rep. at 49, para. 91) (citation omitted).

64 Jennings, Equity and Equitable Principles, 42 Annuaire Suisse de Droit International 27,38(1986).

65 See Kwiatkowska, The ICJ Doctrine of Equitable Principles Applicable to Maritime Boundary Delimitation and Its Impact on the International Law of the Sea, in Forty Years International Court of Justice: Jurisdiction, Equity and EQUALITY 119 (A. Bloed & P. van Dijk eds. 1988) [hereinafter FOrty Years ICJ].

66 Referred to as equitable principles by the Court in the Libya / Malta case. See 1985 ICJ Rep. at 39, para. 46. In Degan’s opinion, the Chamber of the Court in the Gulf of Maine case was correct in qualifying some of these equitable principles as equitable criteria: “Almost none of them has the specific content of a source of legal rights and duties for States, nor can they be as such mandatory for a judicial organ.” Degan, supra note 19, at 134.

67 Gulf of Maine, 1984 ICJ Rep. at 313, para. 158. To the same effect, the U.S. Counter-Memorial in the Gulf of Maine case stated that “[ijnasmuch as the circumstances of each boundary situation are unique, a method of delimitation that is equitable in one case may not produce an equitable solution in another case.” Counter-Memorial submitted by the United States of America (Can. v. U.S.), 1983 ICJ Pleadings (Gulf of Maine) 146, para. 219 (June 28, 1983).

68 See section V supra.

69 1982 ICJ Rep. at 60, para. 71. To the same effect, see North Sea, 1969 ICJ Rep. at 49, para. 90.

70 1982 ICJ Rep. at 82, para. 114, and 59, para. 70.

71 Jennings, supra note 64, at 30.

72 Tunisia/Libya, 1982 ICJ Rep. at 153, para. 18 (Gros,J., dissenting). For further criticisms of the approach, see, e.g., Charney, supra note 15, at 594; Herman, The Court Giveth and the Court Taheth Away: An Analysis of the Tunisia-Libya Continental Shelf Case, 33 Int’l & Comp. L.Q. 825, 853 (1984); Decaux, L’Arrêt de la Cour Internationale de justice dans l’affaire du plateau continental (Tunisie / Libye), 28 Annuaire Français de Droit International 357, 372 (1982); and P. Weil, supra note 8, at 161.

73 This type of criticism already surfaced in Judge Koretsky’s dissenting opinion in the North Sea Cases where he issued his celebrated warning that to introduce “so vague a notion [i.e., equity] into the jurisprudence of the International Court may open the door to making subjective and therefore at times arbitrary evaluations.” 1969 ICJ Rep. at 166. See also Marek, Le Problème des sources du droit international dans l’arrêt sur le plateau continental de la mer du Nord, 6 Revue Belge de Droit International 44, 78 (1970–71).

74 The Truman Proclamation on the natural resources of the subsoil and seabed of the continental shelf, issued by the United States on September 28, 1945, had declared in part that “[i]n cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles.” 3 C.F.R. 67 (1943–48). This was followed by similar action on the part of several states. See Memorial of the Federal Republic of Germany (FRG/Den.), 1968 ICJ Pleadings (I North Sea) 31 (filed by Aug. 21, 1967). The Court in the North Sea Cases accorded the Truman Proclamation a “special status” not only with regard to the nature and extent of the right exercisable over the continental shelf, but also with regard to the delimitation of maritime boundaries. As to the latter, the Court held that the two concepts contained in the Truman Proclamation—delimitation by mutual agreement and delimitation in accordance with equitable principles—“have underlain all the subsequent history of the subject.” 1969 ICJ Rep. at 33, para. 47. Thus, the Court in the North Sea Cases ensured that the customary law initiated by the Truman Proclamation with respect to the role of equitable principles in the delimitation of maritime boundaries remained unaffected by the conventional norm embodied in Article 6 of the Geneva Convention on the Continental Shelf, supra note 29.

The Anglo-French court of arbitration, for its part, blurred the distinction between the rules contained in Article 6 of the Geneva Convention and the rules of customary international law, since in its opinion the object of both was the same—-the delimitation of the boundary in accordance with equity—and it thus took “the heart out of the treaty regime.” P. Weil, supra note 8, at 147. See also McCrae, Delimitation of the Continental Shelf between the United Kingdom and France: The Channel Arbitration, 15 Can. Y.B. Int’l L. 173, 195 (1977); Bowett, supra note 15, at 13.

75 The fact that it was the international community that, as it were, opted to accord the judge this wide power and not the judge who usurped it is of some significance. David, supra note 15, at 365; Bedjaoui, supra note 58, at 157.

76 See note 31 supra. The Court itself made the following observations on Article 83, paragraph 1 of the official Draft Convention, UN Doc. A/CONF.62/L.78 (1982):

In the new text, any indication of a specific criterion which could give guidance to the interested States in their effort to achieve an equitable solution has been excluded. Emphasis is placed on the equitable solution which has to be achieved. The principles and rules applicable to the delimitation of continental shelf areas are those which are appropriate to bring about an equitable result ….

1982 ICJ Rep. at 49, para. 50. The provision, it has been said, is “limited to expressing the need for settlement of the problem by agreement and recalling the obligation to achieve an equitable solution.” Gulf of Maine, 1984 ICJ Rep. at 294, para. 95. However, it may be viewed as underpinning the fundamental norm of customary law governing maritime delimitation: “that delimitation, whether effected by direct agreement or by the decision of a third party, must be based on the application of equitable criteria and the use of practical methods capable of ensuring an equitable result.” Id. at 300, para. 113. It may be noted that Judge Oda did not believe that the reference to “the basis of international law as referred to in Article 38 of the Statute of the International Court of Justice” furnished any practical assistance toward a solution, in the absence of any more specific designation of which principles and rules from the entire panoply of customary, general and conventional law were of particular significance. Tunisia/Libya, 1982 ICJ Rep. at 246, para. 144 (Oda, J., dissenting).

77 See Nelson, supra note 12, at 208.

78 C. Perelman, Justice, Law and Argument: Essays on Moral and Legal Reasoning 39 (1980) (emphasis added).

79 In a sense the discretionary power of the judge is in inverse proportion to the generality of the norm. Id. at 40; see also Reuter, Quelques Réflexions sur l’équité en droit international, 15 Revue Belge de Droit International 165, 166 (1980–81); Degan, supra note 19, at 126; and Rosenne, The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law, in Forty Years ICJ, supra note 65, at 85, 92. Interestingly, with respect to the relevance of economic considerations in maritime boundary delimitation, the Court has in effect circumscribed its discretionary power. In the seminal case on the matter, it stated that there was “no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures.” North Sea, 1969 ICJ Rep. at 50, para. 93; see also Libya/Malta, 1985 ICJ Rep. at 40, para. 48. This line of thinking quite naturally led to the conclusion that economic considerations can constitute relevant factors in the delimitation process. Munkman, Adjudication and Adjustment—International Judicial Decision and the Settlement of Territorial and Boundary Disputes, 46 Brit. Y.B. Int’l L. 1, 89(1972–73). However, the Court in the Tunisia / Libya case did not accept the relevance of economic considerations for the delimitation of the continental shelf. “They are virtually extraneous factors,” the Court held, “since they are variables which unpredictable national fortune or calamity … 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 a result of an event such as the discovery of a valuable economic resource.” 1982 ICJ Rep. at 77, para. 107. The Court reaffirmed its position on this matter in the Libya / Malta case:

The Court does not however consider that a delimitation should be influenced by the relative economic position of the two States in question, in such a way that the area of continental shelf regarded as appertaining to the less rich of the two States would be somewhat increased in order to compensate for its inferiority in economic resources. Such considerations are totally unrelated to the underlying intention of the applicable rules of international law. It is clear that neither the rules determining the validity of legal entitlement to the continental shelf, nor those concerning delimitation between neighbouring countries, leave room for any considerations of economic development of the States in question.

1985 ICJ Rep. at 41, para. 50. Judge Oda noted that “[t]his is a matter of future policy of world social justice which does not fall within the purview of ajudiciary which has to employ solely the principles and rules of international law jinless requested to decide a case ex aequo el bono.” Id. at 159, para. 66 (Oda, J., dissenting). The Court’s approach in a sense throws into relief the dominant role that geographical circumstances play in the delimitation of maritime boundaries. Bowett notes that the “unvoiced reason” behind the Court’s reluctance to enter into economic factors is 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.” He argues, however, for a much less restrictive view of the judicial function in this matter. Moreover, “the economic interests of States lie at the very heart of the Convention. … There is therefore a reasonable, legal basis for the proposition that delimitation … ought not to be conceived as an abstract exercise based on coastal geography, and divorced from considerations of the economic interests of the States concerned.” To be sure, Bowett continues, “one might even say that delimitation should not be divorced from the interests of the world community in promoting the economic well-being of States which have so far been economically under-developed or disadvantaged in terms of their access to resources.” Bowett, The Economic Factor in Maritime Delimitation Cases, in 2 Codification Essays, supra note 19, at 45, 61–62.

80 See Joint Separate Opinion of Judges Ruda, Bedjaoui and Jiménez de Aréchaga, Libya/Malta, 1985 ICJ Rep. at 90, para. 37.

81 Id.; see also Reuter, supra note 79, at 186; Degan, supra note 19, at 126; and M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 479, 496 (1989). Cf. H. Lauterpacht, The Function of Law in the International Community 319 (1933).

82 In the Gulf of Maine case, the United States put forward this principle as one of the equitable principles to be applied to produce an equitable solution. U.S. Memorial (Can. v. U.S.), 1982 ICJ Pleadings (Gulf of Maine) 139, para. 238 (Sept. 27, 1982). The Chamber agreed that these “ ‘principles’ … may in given circumstances constitute equitable criteria, provided, however, that no attempt is made to raise them to the status of established rules endorsed by customary international law.” 1984 ICJ Rep. at 298–99, para. 110.

83 North Sea, 1969 ICJ Rep. at 92 (Padilla Nervo, J., sep. op.).

84 1969 ICJ Rep. at 50, para. 92 (emphasis added).

85 Rothpfeffer, Equity in the North Sea Continental Shelf Cases, 42 Nordisk Tidsskrift for International Ret 81, 120(1972).

86 It is of some significance that Judge Lachs, the President of the arbitral tribunal in the Guinea/Guinea-Bissau arbitration, had this to say before the handing down of the award: “Notre effort ne saurait avoir de meilleur résultat que de vous voir satisfaits.” Discours du Juge Manfred Lachs, Président du Tribunal Arbitral pour la Délimitation de la Frontière Maritime Guinée/Guinée-Bissau, prononce avant la lecture de la sentence le 14 février 1985. However, Judge ad hoc Sørensen wrote that if maritime boundary delimitation is to be governed by a principle of equity, only considerable legal uncertainty will ensue—giving rise to international disputes—while the function of law is to reduce the causes of disagreement and disputes to a minimum. North Sea, 1969 ICJ Rep. at 256–57 (Sørensen, J., dissenting). Commenting on this view, Monconduit stated quite rightly, in this author’s opinion, that “la réalisation de l’équité, permettant de satisfaire, autant qu’il est possible, les intérêts contradictoires de plusieurs Etats, est la meilleure garantie contre l’apparition de différends.” Monconduit, L’Affaire du plateau continental de la Mer du Nord, 15 Annuaire Français du Droit International 213, 244 (1969). Sir Hersch Lauterpacht’s observations may also be borne in mind:

The settling of interests is normally within the province of the legislature, but that does not mean that courts have nothing to do with composing conflicting interests. As the judicial activity is nothing else than legislation in concreto is it possible to assert dogmatically that the settling of conflicts of interests is outside the province of judicial tribunals?

H. Lauterpacht, supra note 81, at 320. In her analysis of some important land boundary awards, Munkman, supra note 79, at 27, observed:

[A]ll the boundary awards afford a compromise between the claims of the parties. This may be regarded as evidencing a diplomatic desire to give some satisfaction, and to ensure that the award is acceptable to both parties; or it may be the result of taking into consideration all the interests argued by the parties—clearly these will rarely weigh in favour of one party alone.

Bardonnet also saw equity as providing “la nécessaire et impartiale balance des intérêts.” Bardonnet, Equité et frontières terrestres, in Mélanges offerts à Paul Reuter, Le Droit International: Unité et diversité 35, 74 (1981). Johnston views the adjudication of maritime boundary disputes as serving primarily a facilitative function. D. Johnston, The Theory and History of Ocean Boundary-Making 123–222 (1988).

87 Sandström, Remarks, in [1953] 1 Y.B. Int’l L. Comm’n 126, para. 14, UN Doc. A/ CN.4/SER.A/1953.

88 See note 31 supra.