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A. International Aspects

A significant statement was made by the ICJ in the Anglo-Norwegian Fisheries Case in the following words:

The delimitation of sea afeas has a/ways an international aspect. It·cannot be depen­

dent merely upon the will of the coast state as expressed in its municipal law. Al­

though it is true that the act of delimitation is necessarily a unilateral act, because only the coastal state is competent to undertake it, the validity of the delimitation with regard to other states depends upon international law. 139

In this passage, which related to delimitation of the sea, not the seabed, in the con­

text of this case, the Court did not say that the validity of a delimitation by a coastal state vis-a-vis another state depends on the will of that other state. What it said was that the validity of the delimitation with regard to other states depends upon inter­

national law. In this connection, the PCIJ in the Tunis-Morocco Nationality Decrees Case 140 stated that 'whether a certain matter is or is.noi within the domestic jurisdic­

tion of a staie is an essentially relative question: it depends upon the development of international relations'. Whether or not a matter is solely within the reserved domain may be estimated with accuracy be deciding whether 'international' is ap­

plicable to the case.

Relying on these above cases, it may therefore be contended that the problem of delimitation of the continental shelf boundary between adjacent or opposite states is also not a matter which is solely within the domestic jurisdiction and has an international aspect.

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Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands

B. The Line of Equidistance

The principle of equidistance141 has been- adopted ,in Article 1 of the 1954 Agreement between the United Kingdom and Portugal relating to the Nyassaland­

Mozambique Frontier for delimiting those patts of the frontier affected by the presence of Lake Nyasa. By paragraph 2 of this article, it is expressly provided that the UK shall retain sovereignty over the islands of Chisamulo and Likoma, whioh lie on the Mozambique side of the line of equidistance, together with the exercise of all rights flowing from such sovereignty, including full, unrestricted and uncondi­

tional rights of access. 142

Article 6 of the 1958 Geneva Continental Shelf Convention however deals with a different boundary problem, i.e. where when the same continental shelf is shared between opposite and adjacent states. The general principle laid down in this article is that such boundaries shall be determined by agreement between the states con­

cerned but in default of such agreement, arid unless another boundary line is justifi­

ed 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.

Islands add a considerable complication as has already been indicated, both because in conformity with Article 1 (b) of the convention an island may generate its own continental shelf and also because in consequence they may affect the base­

line from which the territorial sea is measured.

The difficulty and doubt surrounding the issue is _shown by the fact that in narrow seas the following questions can be raised: 143

(a) If state A possesses a small island three-quarters of the way across the sea towards state B, does state A get seven-eighths of the shelf between itself and B? 144

(b) If state B possesses other small islands close to state A, does the shelf boundary zig-zag accordingly. 145

(c) If state A possesses a small island in the middle of a shallow sea, all parts of which are incontestably part of the continental shelf with B, should ~mch a small island be allowed to divert a boundary and thus give extensive areas of shelf to A?

The role to be assigned to islands in determining the equidistant boundary line raises complex difficulties. The status in customary international law of the equi­

distant method of delimitation has itself been questioned in the North Sea Con­

tinental Shelf Cases: though Denmark and the Netherlands contended that 'equi­

distant' was the essential element in a rule of law, namely, that in the absence of agreement by the parties to employ another method orto proceed to a delimitation

The Journal of National Chengchi University Vol. 48, 1983

on an ad hoc basis, all continental shelf boundar­ MEDIAN-LINE CONSTRUCTION ies must be drawn by means of an equidistance

line, unless, a special circumstance is calling for or warranting a departure from the equidistance method of delimitation. These two states argu­

ed that only the presence of a special feature such as an islet or small protuberance would produce a disproportionately distorting effect on an otherwise acceptable boundary line. 146

In his dissenting opinion, Judge Tanaka observed that:

it is argued on behalf of the two Kingdoms [of Denmark and the Netherlands] that the application of this [special circumstance]

clause should be limited to such cases as the existence of insignificant islands, promontor·

Figure 2. The formula for construc­

ies etc., which should be ignored in drawing

ti~g line

the equidistance line. This seems well-found­ a median boundary

ed. 147 enables the waters between two

states to be divided equitably.

Until 1969 many thought that the 'equidis­ Offshore islands complicate tance - special circumstances rule' reflected and but do not prevent the prin­

ciple of equidistance from be­

crystallized the relevant rule of customary inter­

ing applicable.

national law. However, in the North Sea Con­

Source. Whiteman's Digest of In­

tinental Shelf Cases, the Court held that the ternational Law Vol. 4, pp.

equidistance rule of Article 6 of the Continental 332.

Shelf Convention was neither a rule of custom­

ary international law nor had it become so since 1958 in

a

manner so as to be op­

posable to a non-party to the Convention. The Court pronounced that

delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a na­

tural prolongation of its territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other. 148

In his dissenting opinion, Judge Morelli, considered however, that the equidist­

ance method of delimitation had acquired the status of a rule of general internation­

al law, but he thought that there was another rule, that where, as in the present -78 ­

Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands

cases, there was a particularly serious discrepancy between the results of the equi­

distance method and absolutely equitable apportionment, the states concerned were obliged to negotiate an agreement to revise the existing legal situation (Le. equi­

distance) or, in the absence of agreement, simply to take the matter to arbitration. 149 From state practice following the North Sea boundary treaties, it appears that there has been a clear tendency to rely for guidance on the principle of equidist­

ance. ISO It appears in nearly all cases to have been the starting point for negotia­

tions, but it can be seen in some cases to have undergone adjustments in the course of the bargaining process.

The North Sea Continental Shelf Cases had concerned delimitation between adjacent states, one of which had not ratified the 1958 Continental Shelf Conven­

tion. The Anglo-French Continental Shelf Arbitration however, was the first in which both disputants were parties. to the Convention. The Court adopted a half­

effect solution, as an equitable variant of the equidistance principle, where continen­

tal shelf delimitation was complicated by the presence of offshore islands. lSI This was evidenced by the Court's selection of two particular pairs of base-points for the calculation of the equidistance lines determining the half-effect boundary, rather than all the potentially relevant points on the respective coastilines.

C. Special Circumstances

It is necessary to emphasise that there is a great difference between the case of the state that considers itself to be an exception, and that of a state that puts itself forward as constituting an exceptional case. 152 A review of the travaux pre­

para to ires of Article 6 of the Continental Shelf Convention indicates that the,Parties to the Geneva Convention intended the equidistance rule to be regarded as the general or residual rule and that the onus of proof of special circumstances lies upon those pleading them.

The principles and rules of special circumstances are illustrated by observations of the following cases. In the Diversion of Water from the Mense Case, Judge Hud­

son, concurring in the judgment, observed that an international judicial.or arbitral tribunal cannot disregard 'special circumstances' which may call for the considera­

tion of 'equitable principles': 153 (a) if it is asked to enforce the obligation to make reparation which any breach of an international engagement normally involves;

(b) if it is asked to decree a kind of specific performance of a reciprocal obligation which the demandant itself is not performing; or (c) if it has before it a request for a declaratory judgment and the circumstances are such that the declaration request­

The Journal of National Chengchi University Vol. 48, 1983

ed would disturb that equality which is equity. It was apparent that the role of 'equitable principles' was similar to that of the concept of 'special circumstances'.

In the Anglo-Norwegian Fisheries Case, the decision was based on the view, not that special circumstances in themselves gave rise to a legal right to exceptional treatment outside the normal rules of law, but that in the maritime field under consideration in that case, international law itself took account of certain exception­

al circumstances to meet which it applied a general principle in a particular way. 154 In the Anglo-French Continental Shelf Arbitration, the United Kingdom reviewed extensively the travaux preparatories of Article 6, state practice and opinio . juris and concluded that:

the travaux preparatories disclose that islands would constitute 'special circumstances' only where very small islands produce an excessively complicated median line which might be straightened out in the interests of simplicity, but compensating a loss of shelf in one area with a gain in another .155

We must ask, however, several other questions concerning the precise 'special circumstances' which might be used to vary a median or other line.

(i) At what point delimitation of continental shelf boundary and under what con­

ditions should a small island be justified as an exceptional case?

At the UNCLOS I, Italy proposed that:

where in the proximity of coasts which are opposite to each other there are islands belonging to the said continuous continental shelf, in the absence of agreement, the boundary is the median line ... unless some other method of drawing the said median line is justified by special circumstances. 156

This proposal dealt with the special case of islands belonging to a continuous con­

tinental shelf between two states which were opposite to each other.

Sweden remarked that, as the term 'island' and 'coast' appeared to be employ­

ed in opposition to each other in the above proposal, the proposal might be inter­

preted to mean that the median line serving as a boundary between two states con­

cerned should be drawn solely on the basis of coastlines, leaving islands entirely out of account. If that were indeed the purpose of the proposal, Sweden would be unable to support it. 157 Italy replied that it was not the purpose of its proposal to detract in any way from the general rule that each island should have its own con­

tinental shelf. It contended, however, that certain situations formed an exception to the general rule, and that the special provisions governing that exception should be duly codified. 158

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Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands

Venezuela could not accept the idea that if there were no agreement the bound­

ary line should, as a general rule, be the median line. The situations that existed in different parts of the world were too varied to justify the adoption of any such general rule. Moreover, the cases in which the median line would offer the best solution were likely to arise less frequently than any others, so that exceptions would be more numerous than the cases covered by the general rule. 1S9

Argentina asked how the provisions of the Italian amendment would apply, for example, to the case of the small island of St. Helena in the Atlantic off the west coast of Africa. Presumably, the intention was not, by drawing the median line between that island and the African coast, to grant rights over eno,rmous stretches of ocean to what was a mere pinpoint in the Atlantic. The UK observed that among the special circumstances which might exist there was, for example, the presence of a small or large island in the area to be apportioned. Other types of special circumstances were the possession by one of the two states concerned of special mineral exploitation rights or fishery rights or the presence of a navigable channel; in all such cases, a deviation from the median line would be.justified, but the median line would still provide the best starting point for negotiation. The United States could not agree with the representative of Italy that it was possible to exclude a provision in relation to islands because it agreed with the representative of the UK that, in view of the great variety of size, grouping and position of islands, it would be impossible either to include or exclude all islands on the continental shelf, and that each case should be considered on its merits. 160

As to the question in what circumstances do small islands constitute 'special circumstances', the IC] held in the North Sea Continental Shelf Cases that:

a special circumstance calling for or warranting a departure from the equidistance method of delimitation only the prelience of'some special feature . .. - such as an islet or small protuberance - but so placed as to produce a disproportionately distorting effect . ..161

In the Anglo-French Continental Shelf Arbitration, the Court of Arbitration decided that the Channel Islands, the Scilly Isles and the Island of Ushant - having considered the geographical circumstances, especially their locations - constituted 'special circumstances' having distorting effects on the delimitation of an equidis­

tance boundary. 162 The IC] in the Case Concerning the Continental Shelf (Tunisia - Libyan Arab Jamahiriya) held that 'the existence and position of the Kerkennah Islands' was considered -as 'special circumstances' and similar treatment should also apply.163

The Journal of National Chengchi University Vol. 48, 1983

(ii) What type of exceptional configuration may constitute special circumstances?

Could geological, geographical mineral deposits, economic or other factors establish a ground of special circumstances?

In 1958, at the UNCLOS I, Iran maintained that in cases where large areas of water carrying sediment deposited the sediment near the coast and formed extensive mud flats which were exposed at low water, it would be almost impossible to iden­

tify the low-water line by visual observation or photography. It would have to be established by calculation from the high-water mark and tide measurements, but there were many areas where no tide measurements had been made and where it might be necessary to define a boundary line for th~ continental shelf. Iran thus proposed that in such circumstances the boundary should be measured from the high-water mark instead of the low-water mark. It; moreover, maintained that:

It might. __ be a complicated matter, where there were islands on a continuous con­

tinental shelf, to identify the low-water line for each island and it was therefore pro­

posed that in such cases the boundary should be measured from the low-water line along the coast. 164

The purpose of the Iranian amendment was to permit some measure of relaxation of the general rule followed in delimiting the boundary to the extent of referring to the high-water mark rather than the low-water mark where an exceptional geo­

graphical configuration or other circumstances might justify such a departure. 165

The United States, however, did not consider the Iranian amendment neces­

sary; a reference to measurement from the high-water mark in certain cases would only introduce confusion and such cases were in any event -fully covered by the reference to special circumstances. Uruguay pointed out that the proposed method of defining a boundary was related entirely to the surface of the continental shelf and did not take account of the conditions obtaining below the sea bottom. A boundary thus drawn might cut across a mineral deposit in the ocean bed in a man­

ner prejudicial to one of the states concerned. 166 The UK considered that the adop­

tion of the median line as a boundary was the fundamental principle and the most equitable solution, to be departed from only if special circumstances so required.

Special circumstances might lead the states concerned to agree to adopt a boundary other than the median line_ 167

In addition to these factors mentioned above, there are some historical, politi­

cal and ,strategic considerations which influence the delimitation of the continental shelf boundaries. For example, the Iran-Sharjah Agreement of 1971 on the sub­

marine areas around Abu Musa was Signed mainly on a political and strategic basis. 168 - 82­

Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands

Similarly in the Iran-Bahrain Agreement of 1971, concessions were made on essen­

tially historical grounds. 169 It should perhaps be stressed that, from a legal view­

point, political or historical. considerations ought not to constitute any major prob­

lem in relation to the apportioning of the submarine boundaries.

Having earlier (before the above decision) carefully considered and examined the variety of elements relating to 'special circumstances', Professor Brown came to the conclusion that it would clearly be wrong to attempt to draw up a closed list of cases of special circumstances. 170 Equally, it would also be unjustifiable to ignore the evidence which offers guidelines for a reasonably restrictive interpretation of the concept of special circumstances.

The North Sea Continental Shelf Cases judgment suggested various factors which should be considered in reaching agreement upon delimitation: the general configuration of the coasts any any unusual features; so far as known or readily ascertainable, the physical and geological structure, and natural resources of the areas involved; the element of a reasonable degree of proportionality between the extent of the continental shelf areas appeartaining to the coastal state and the length of its coast. 171

In the Anglo-French Continental Shelf Arbitration, one of the questions at

In the Anglo-French Continental Shelf Arbitration, one of the questions at

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