Lifting the veils of equity in maritime entitlements: equidistance with proportionality around the islands.

AuthorKozyris, Phaedon John
  1. INTRODUCTION

    The modern maritime entitlements over vast oceanic spaces over the continental shelf and over the exclusive economic zone have produced sharp disagreements among neighboring nations about their delimitation, the definition of their borders, many of which remain unresolved. Economic interests are only part of the picture. The rest is nationalistic pride of the mine and the thine.

    For almost half a century international law has been striving to develop a fair and predictable regime of delimitation through two major multilateral, if not global, treaties(1). One would have expected the process to be easy. The basis of entitlement has been clear and undisputed from day one: extended territorial sovereignty and appurtenance results from adjacency to a coast. What is left is only the quasi-ministerial task of charting lines on the map by means of some identifiable and workable methods. Yet it is only now, after many decades of international adjudication and arbitration,(2) and after the conclusion of numerous agreements in particular regions, that an intelligible regime of delimitation is starting to gel.

    The blame for this delay and confusion lies mainly with the North Sea Continental Shelf Cases [hereinafter "North Sea"].(3) In the first delimitation adjudication in 1969, the ICJ [hereinafter "ICJ"], uncomfortable with the apparent dominance of equidistance, took a wrong doctrinal turn and set sail upon the uncharted waters of an elusive equity. In this uncertain environment, another wrong doctrinal turn came later, mostly in some writings, in deciding the question of whether islands were to be treated somehow differently than mainlands. These doctrinal turns have haunted the delimitation process ever since. The actual borders in the cases already decided, while on balance reasonable, were drawn despite rather than because of them.

    While the literature on these maritime zones, including the equitable quest(4) and the island question,(5) is immense,(6) this article updates the implications of the two most recent and important cases, St. Pierre & Miquelon and Jan Mayen. Its most significant novelty, however, lies in lifting the veils of the purported marine equity to show that after North Sea, through a negative sorting out process, the courts have been able to reach sensible outcomes by accommodating the equitable qualms about equidistance through the concept of proportionality of zones to coastal lengths, and that, therefore, the doctrinal imbroglio created by North Sea should finally be laid to rest. Particular attention will be paid to specific solutions, including the mechanics of how to calculate weights and sizes and how to decide where and how much to cut and readjust. Finally, this article will closely examine how all of these considerations play out in the context of islands, and will focus on some practical issues where further clarification may be needed.

  2. THE GENEALOGY OF EQUITY IN MARITIME DELIMITATIONS: PARTING THE NORTH SEA

    1. The Concerns About the Equidistance-Special Circumstances Formula and the Turn Toward Equity

      In North Sea, a divided ICJ boldly played down the role of the manageable rule of equidistance as the natural law of the continental shelf,(7) a rule which had been incorporated in Article 6 of the Geneva Convention, modified by the exception of special circumstances.(8) To be sure, the ICJ recognized its virtues as a convenient method capable of being employed in almost all circumstances, and stressed that no other method has the same combination of practical convenience and certainty of application.(9) However, its utility had to be evaluated each time, at least in cases of adjacent coasts, under the applicable equitable principles, in view of all relevant circumstances, in order to reach reasonable results.

      It is not an exaggeration to compare the birth of this marine equity in North Sea to Athena springing from the head of Zeus without much gestation. Any conceivable precedent was thin and opaque. Article 6 of the Geneva Convention, with equidistance as its centerpiece, resulted from a lengthy and laborious process by the International Law Commission, and met with world-wide approval, or at least acquiescence.(10) There had not even been a thought of putting into the general rule a criterion such as equitable principles because it could not produce a line on a map. Indeed, the ICJ itself recognized in North Sea that in the pre-Convention proposals a workable methodology had been viewed as an essential prerequisite of delimitation.(11) Nevertheless, the majority focused selectively on a few concerns expressed during the deliberations, and on the possibility of reservations,(12) interpreted the special circumstances exception as originating in equity,(13) and jumped to the conclusion that some undefined equitable principles have always underlain the regime of the continental shelf, seeking inspiration directly from them. The main support for this was supposed to be the Truman Proclamation of 1945 [hereinafter "Declaration"],(14) where the United States [hereinafter "U.S."] had extended its continental shelf to 200 miles, and had declared that the boundaries with the neighboring states would be determined on the basis of equitable principles. However, this blanket unilateral reference to unspecified principles in the Declaration had been little more that a gesture of reassurance to the international community that this novel major appropriation of the open seas will respect the legitimate rights of other states on the basis of equality.(15)

      A good number of the judges in the ICJ expressed their dismay over this adventure into a process with no discernible practical choices in sight.(16) Many commentators have also criticized this process.(17) However lacking in authentication, was this recourse to equity in North Sea at least wise like Athena and helpful in resolving disputes fairly? The ICJ cited three basic ideas for the delimitation of the continental shelf: (1) negotiate in good faith to reach an agreement; (2) do not encroach on natural prolongation; and (3) apply equitable principles, taking all circumstances into account and employing appropriate methods, including equidistance,(18) in order to arrive at a reasonable result.(19) The duty to negotiate does not provide much guidance on content and outcome and the ICJ's attachment to natural prolongation proved to be futile as will be discussed later. Will the third idea of equitable principles, relevant circumstances and reasonable results work?

    2. The Difficulties with the Equitable Doctrine of North Sea

      1. A Good Beginning: Staying with Equity-Within-the-Law

        North Sea started out correctly by providing the proper framework of the applicable law. The ICJ was indeed committed to the idea that the most fundamental of all rules of law relating to the continental shelf was that the entitlement of each state was an extension of its territorial sovereignty over land, existing inherently ab initio and ipso facto by virtue of its coastline.(20) A state without a coast has no continental shelf.(21) Thus, the ICJ disclaimed any intention of using delimitation to produce just and equitable shares by a wholesale refashioning of nature or to remedy natural inequalities.(22) Marine equity did not implicate either abstract justice(23) or results ex aequo et bono.(24) In other words, the ICJ unequivocally limited itself to equity within the law, disclaiming any recourse to equity as fountainhead of the law, or as the source of just results directly rather than through positive law. Equity within the law denotes a method of effectuating the law necessitated by the priority of first principles over rules, and by the impossibility of anticipating a total solution for every conceivable situation because of the complexity of facts and the generality of rules.

        North Sea was on solid ground by distancing itself from any form of equity without the law. No international tribunal has ever asserted general authority to use equity on its own to make law, or to contradict the positive law.(25) Many commentators have eloquently exposed the perversions of instant, instinctive judicial justice, no matter how well-intentioned,(26) and they need no belaboring here. The practice of visceral jurisprudence is particularly objectionable in international adjudication, where states zealously protect their sovereignty. No central government is entrusted with a general police power and armed with an executive branch. The tribunals have no general jurisdiction to remedy the ills of society, but are under a strict obligation not to make policy, but only to apply the existing law within the narrow terms of the submission of the dispute before them. In this environment, equity cannot be a roguish thing measured by the chancellor's foot.(27)

        The most authoritative international text on treaty interpretation, the Vienna Convention on the Law of Treaties [hereinafter the "Vienna Convention"],(28) contains no explicit reference to anything resembling fountainhead or direct-results equity.(29)

      2. Trouble Starts: How Can Equity-Within-the-Law Help Here?

        (a) The Need for Particularization

        The ICJ was aware that the mere invocation of equity was not enough and that a particularization and a practical approach were necessary:

        [I]t is a truism to say that the determination must be equitable; ... it would ... be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case.(30) For this task, the long history of equity within-the-law could have helped. Such equity, which goes at least as far back as Aristotle, has influenced legal practice through the Roman praetors and the English chancellors for many centuries, and has found its way into the modern codifications. In operation, it appears within positive law in the form at the one end of overiding general...

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