GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
Drawing the Borderline- The Equidistant
Principle or Equitable Solutions in the
Delimitation of Maritime Boundaries
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
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.
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.
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,1of
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
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,5which 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), 10.
7
See Articles 57 and 76 (1) of UNCLOS II.
1
Victor Prescott, ‘Maritime Political Boundaries of the
World’ (Martinus Nijhoff Publishers: liden, 2004) P 245.
2
Carlos Ramos-Mrosovsky, [2008] ‘International Law
Unhelpful Role in Senkaku Islands’ 29 UPJIL, 903. 1.
DOI: 10.5176/2251-2853_2.1.56
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
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
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 20th 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 17th
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
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 Charter21
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) 391.
17
Ibid (n 1) 217.
18
Nugzar Dundua, [2005] ‘Delimitation of Maritime
Boundaries between Adjacent States’ (The United
Nations-Nippon Foundation).
<http://www.un.org/depts/los/nippon/unnff_programme_
home/fellows_pages/fellows_papers/dundua/0607georgia
.pdf.> accessed January, 2012
19
Edward Collins, and Martin A.Rogoff, [1982]
‘International Law of Maritime Boundary Delimitation’
Vol. 34, UMLR, 1.
20
Ibid (N.1)218.
21
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. <
http://www.un.org/aboutun/charter> Accessed
27,January 2012.
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, 1958.
12
Adedolapo Akinrele, ‘Nigerian Oil and Gas Law’
(Oil, Gas & Energy Law Intelligence: Dundee, 2005) 24.
13
Malcolm M. Shaw, ‘International Law’ 5th Ed
(Cambridge University Press: Cambridge, 2005) 522.
14
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.
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
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.
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.
OPTIONS
FOR
DELIMITATION
OF
MARITIME BOUNDARIES
The current legal regime for the delimitation of the
maritime boundaries of States is contained in
Article 1524, 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.28
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 case34 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) 15.
Ibid.
31
P. Weil, (1989) ‘The Law of Maritime DelimitationReflections’ 153; cited in L.M.D Nelson, [1990] ‘The
Role of Equity in the Delimitation of Maritime
Boundaries’ 84, American Journal of International Law,
484.
32
S.P Jagota, ‘Maritime Boundary’ (Martinus Nijhoff
Publishers: Dordrecht; Boston 1985) 122, cited in
Dundua, Ibid (n18) 32.
33
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 20
1969) < http://www.icjcij.org/docket/files/52/5563/52/5.pdf> Accessed January
2012.
34
(1984) I.C.J Reports (Judgment of 12 October 1984)
http://www.icj-cij.org Accessed 24 January 2012.
35
(1985) I.C.J Reports (Judgment of 3 June 1985)
www.icj-cij.org Accessed 24 January 2012.
36
(2007) I.C.J Reports (Judgment of 8 October 2007)
www.icj-cij.org Accessed 24 January 2012.
30
22
Article 1of the United Nations Geneva Convention on
the Continental Shelf. Adopted 29 April 1958, entered
into force on the 10 June 1964. See also Article 76 (1) of
UNCLOS II.
23
Ibid (n. 13) 523.
24
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 59.
27
Ibid (n 12) 35.
28
Ibid (n 13) 527.
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
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
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
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.42
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’ (5th 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, 2009.
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, 2006-2007).
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.
37
Ibid, (n. 33) 6.
R. Kolb, (2003) ‘Case Law on Equitable Maritime
Delimitation’ 171.
39
(1993) I.C.J Reports (Judgment of 14 June 1993) Para
49-52. www.icj-cij.org Accessed 28 January 2012.
40
(2001) I.C.J Reports (Judgment of 16 March 2001)
www.icj-cij.org Accessed 24 January 2012.
41
(2002) I.C.J Reports (Judgment of 10 October 2002)
Paras. 269-307. www.icj-cij.org Accessed 28 January
2012.
42
Ibid (n 12) 36.
38
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
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 2004. 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
59
© 2012 GSTF