Notes
179.· See, e.g., Secretary of State for India v. Sri Raja Chelikani Ramo Rao [1916] 32 TLR 652; '-' The Anna, La Porte (1805) 5 C. Rob. 373.
180. See, e.g., Anglo-Norwegian Fisheries Case, ICJ Reports, 1951, p. 116. Cf. S¢rensen,op.
cit., Varid Juris Gentium, p. 315; O'Connell, op. cit., 45 BYIL (1971), p. 1; Marston, op.
cit., 4 Annals of International Studies (1973), p. 171; Amerasinghe, op. cit., 23 ICLQ (1974), p. 539.
181. 'Where the control over land ends, the power of arms ends'. Cornelius van Bynkershoek, De Dominio Maris Dissertatio (1744, rpt; New York: Oxford U.P., 1923), Ch. II.
182. The Anna, LaPorte (1805) 5C.Rob.373;2BILC,p.699.
183. 'That which the force of a river carries off from your field and attaches to a neighbouring field, ... will remain yours'.
184. [1870] J.B. Moore, International Arbitrations, Vol. 2, p. 1909, at p. 1919. The Island of Bulama is adjacent to the mainland and so near to it 'that animals cross at low water'.
185. [1916] 85 UPC 222; 32 TLR 652; 2 BILC 84l. Cf. JE.S. Fawcett, 'The Judicial Com
mittee of the Privy Council and International Law', 42 BYIL (1967), p. 263.
186. Keesing's Contemporary Archives 1963, p. 19748 B. On 27-28 September 1957, a newly
fonned volcanic island, some 800 yards in diameter and over 300 ft. high, rose from the sea as a result of a violent undersea eruption in the Azores. The Portuguese flag was formally hoisted on the island on 12 October 1957. Ibid., 1957, p. 15808 B. For discussion, see Mark Dingley, 'Eruptions in International Law: Emerging Volcanic Islands and the Law of Territorial Acquisition', 11 Cornell ILJ (1978), p. 121; J.L. Verner, Jr., 'Legal Claims to Newly Emerged Islands', 15 San Diego LR (1978), p. 525; Jan Mayer, a volcanic island off Norway, is considered as an island and therefore entitled to a territorial sea, an economic zone and a continental shelf. 'Report and Recommendations to the Governments of Iceland and Norway of the Concilation Commission on the Continental Shelf Area between Iceland and Jan Mayen', 20 ILM (1981), pp. 797 et seq.
187. On November 3, 1864, Roundell Palmer and R.P. Collier, together with the Queen's Advoc
ate, Robert Phillimore, replied to the Foreign Office which had asked them to advise on the distance to which the rocks, reefs and banks near San Domingo were considered to extend.
They replied: 'That in places where the possession of particular rocks, reefs, or banks, naturally connected with the mainland of any part of Her Majesty's territory, is necessary for the safe occupation and defence of such mainland, Her Majesty's Government also claim the waters inclosed between the mainland and those rocks, reefs, or banks, whatever may be the distance between them and the nearest mainland'. McNair,op. cit., Vol. 1, pp. 367-68.
188. Jus Gentium is a phrase which, about the time of Grotius, was passing from its ancient Roman meaning, the law common to most nations, to its modern meaning, the law between
nations. William Whewell, Grotius on the Rights of War and Peace: An Abridged Transla
tion (Cambridge, M.DCC.LIII), Editor's Preface, ix. See also Sir Frederick Pollock, Essays
in the Law (London: Macmillan & Co., 1922), p. 13, 34 et seq; TJ. Lawrence, The Princi
ples of International Law, 7th ed., Revised by Percy H. Winfield (London: Macmillan 1923), p. 138.
189. Wheaton's Elements of International Law, 6th English Ed., Revised by A. Berriedale Keith, Vol. 1 (London: Stevens 1929), p. 335.
190. See, e.g., the Clipperton Island Arbitration, II RIAA, p. 1108; Eastern Greenland Case, PCIJ Series A/B, No. 53, p. 22; Frontier Land Case, ICJ Reports, 1959, p. 209. In the essence of evidence to the contrary, see e.g., Cyprus, Ireland.
191. ICJ Reports, 1953, pp. 97-98. See above, II. D.
192. Ibid., p. 99 [italics added] .
193. ICJ Reports, 1951, p. 133. See above, II. D.
194. The judgment lays the emphasis on Iceland's obligation to· respect the United Kingdom's existing fishing rights and the United Kingdom's obligation, in turn, to respect Iceland's preferential rights. The Court held: 'The concept of preferential rights is not compatible with the exclusion of all fishing activities of other states. A coastal state entitled to pre
ferential rights is not free, unilaterally and according to its own uncontrolled discretion, to determine the extent of those rights. The characterization of the coastal state's rights as preferential implies a certain priority, but cannot imply the extinction of the concurrent rights of other states, and particularly of a state which has for many years been engaged in fishing in the waters in question ... .' Fisheries Jurisdic tion Judgment ,ICJ Reports, 1974, pp.27-28.
195. ICJ Reports, 1969, p. 51, para. 96;ICJ Reports, 1978, p. 36, para. 86.
196. ICJ Reports, 1982, p. 61, para. 73.
197. Scott, Hague Court Reports, 1916, p. 127.
198. See generally, Gordon Ireland, Boundaries, Possessions, and Conflicts 'in Central and North America and Caribbean (Cambridge, Mass.: Harvard U.P., 1941), pp. 332-33; John Bassett
~oore, A Digest of International Law (Washington : Gov't Printing.Office, 1906), Vol. 1, pp. 285, 351,536; Hall's International Law, 8th ed., by A. Pearce Higgins (Oxford: Clar
endon Press, 1924), p. 149; James Brown Scott, 'The Isle of Pines', 17 AJIL (1923), p. 100;
Quincy Wright, 'The Isle of Pines Treaty', 19AJIL (1925),p. 340.
199. Wright cites W.E. Hall's A Treatise on International Law to support this view that the Isle of Pines is a typical example of islands naturally appurtenant to the coast. See Quincy Wright, 'Territorial PropinquitY', 12 AJIL (1918), p. 519.
200. North Sea Continental Shelf Cases,ICJ Reports, 1969, p. 3.
201. ICJ Reports, 1969, p.22, para. 19. The judgment was given on the basis of customary in.ternational law, and the dicta have been widely considered relevant to the interpretation of Article 6 of the Continental Shelf Convention and have influenced the draftsmen of the Draft Convention on the Law of the Sea. Cf. L.F .E. Goldie, 'The ICJ's "Natural Prolonga
tion" and the Continental Shelf Problem of Islands', 4 Netherlands YBIL (1973), p. 237.
202. Ibid., p. 31, para. 43.
Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitati'Jn in Relation to Small Islands
203. UN Doc. ST/LEG/SER. B/l (1951), pp. 38-39.
204. E.D. Brown, 'The Anglo-French Continental Shelf Ca"e', 16 San Diego LR (1979), pp. 476
77.
205. ICJ Reports, 1978, p. 36, para. 86. Cf. North Sea Continental Shelf Cases, ICJ Reports, 1969, pp. 31 et seq.
206. Miscellaneous No. 15 (1978), C:rnnd. 7438. Award, para. 191.
207. Ibid.
208. ICJ Reports, 1982, p. 92, para. 133 A(2). The conclusion which, in the Court's view, has ineluctably to be drawn was that, despite the confident assertions of the geologists on both sides that a given area was 'an evident prolongation' or 'the real prolongation' of the one or the other state, for legal purposes it was not possible to define the areas of continental shelf appertaining .to Tunisia and to Libya by reference solely or mainly to geological considera
tions. For details, see pp. 52-54, paras. 57-61.
209. Occupation to support a claim to territorial sovereignty must be effective. Discovery alone without any subsequent act could not at the present time suffice to prove sovereigilty over Palmas. Island of Palmas Arbitration [1928] II RIAA, p. 829. Normally occupation would require the setting up of some form of administration in a territory, and not simply the expression of an animus occupandi. Clipperton Islarid Arbitration [1932] II RIAA p. 1105.
In the Eastern Greenland Case, the Court held that 'a claim to sovereignty based ... upon continued display of au thority, involves two elements each of which must be shown to exist:
the intention and will to act as sovereign, and some actual exercise or display of such au
thority. PCB Ser. A/B, No. 53, at pp. 45-56. In the Minquiers and Ecrehos Case, the Court found sovereignty lay with the exercise of legislative aut~ority, jurisdiction and administra
tion. IC] Reports, 1953, p. 47. In the Western Sahara (Advisory Opinion) Case, the Court said that the evidence does not show that Morocco displayed effective and exclusive state activity in Western Sahara. ICJ Reports, 1975, p. 3.
210. H. Lau terpacht, 'Sovereignty over Submarine Areas', 27 BYIL (1950), p. 418 [italics suppli
ed].
211. It is difficult to imagine any arrangement more calculated to produce international friction than one which en titles state A, although it may be thousands of miles from state B,,to stake ou t claims in the continental shelf contiguous to state B by 'squatting' on B's doorstep - at some point just outside state B's territory water limit. Petroleum Development Ltd. v. Sheik of Abu Dhabi 18 ILR (1951), p. 156. Cf. Lauterpacht, op. cit., 27 BYIL (1950), p. 420;
Richard Young, 'The Legal Status of Submarine Areas Beneath the High Seas', 45 AJIL
(1951), p. 230; M.S. McDougal and W.T. Burke, The Public Order of the Oceans: A Con
temporary International Law of the Sea (Yale UP., 1962), p. 631.
212 R.P. Anand, Legal Regime of the Sea-bed and the Developing Countries (Leyden: A.W.
Sijthoff, 1976), p. 78; Cf. II YBILC (1951), p. 142; II YBILC (1953), p. 515; II YBILC (1956), p. 298; L.F.E. Goldie, 'A General View of International Environmental Law: A Survey of Capabilities, Trends and Limits', Alexandre Charles Kiss (ed) The Protection of the Environment and International Law (Leyden: Sijthoff, 1975), pp. 36-39.
213. Aegean Sea Continental Shelf,Interim Protection, Order of 11 September 1976. ICJ Reports,
1976,p.l0,para.29.
214. Ibid., p. 11, para. 33.
215. In the Diversion of Water from the Meuse Case, Judge Hudson observed that 'principles of equity have long been considered to constitute a part of international law, and ... they have often been applied by international tribunals'. 1937. PCIJ Ser. A/B, No . 70, p. 76. See generally, Rolet Chih-shih Chen, The Non-Navigational Uses of International Rivers (Taipei:
Ching Sui Publ., 1965), pp. 156-59; Tomas Rothpfeffer, 'Equity in the North Sea Continental Shelf Cases', 42 Nodisk Tidsskrift for International Ret (1972), pp. 81-92 ; Georg Schwar
zenberger, 'Equity in International Law', YBWA (1972), p. 371; Michael Akehurst, 'Equity and General Principles of Law', 25 ICLQ (1976), p. 801.
216. PCIJ Ser. A/B,No. 70, pp. 73-80. See above, III. C.
217. For details, see Max Habicht, The Power of the International Judge to Give a Decision 'ex acquo et Bono' (London: Constable, 1935).
218. See, e.g., Art. 5 of the Germano-Swiss Treaty of 1921 provided: 'If the Parties agree, the Tribunal may, instead of basing its decision on legal principles, give an award in accordance
with considerations of equity'. See Habicht, op. cit., Ii. 29. In the Beagle Channel Arbitra
tion however, the Court of Arbitration has no power under the 1971 Compromiso or other
wise to reach a conclusion ex aequo et bono. Award ofHer Britannic Majesty ~ Government pursuant to the Agreement for Arbitration (Compromiso) of a Controversy between the Argentine Republic and the Republic of Chile concerning the region of the Beagle Channel (London: HMSO, 1977), p. 3, para. 7(b).
219. Presidential Proc1arriation No. 2667, Department of State Bulletin, Vol. 13, No. 327, September 30,1945, p.485. See also UN Doc. ST/LEG/SER. B/l (I951),p. 38.
220. ICJ Reports, 1969, p. 3. Cf. pp. 49-50, para. 91. It is aquestion of rememdying the dispro
portionality and inequitable effects produced by particular geographical configurations or features in situations where otherwise the appurtenance of roughly comparable attributions of continental shelf to each state would be indicated by the geographical facts.
221. Friedman criticised the case on these grounds but is there not a distinction to be made between 'equity' in a general sense (standard of living etc.) and equity in the legal sense
equity between competing legal rights and principles? See Wolfgang Friedman, 'The North Sea Continental Shelf Cases-A Critique', 64 AJIL (1970), p. 229. For further discussions, see Rothpfeffer, op. cit., 42 Nodisk Tidsskrift for International Ret (1972), pp. 93-137.
222. ICJ Reports, 1969, p. 49, para. 89. For example, the Court felt that if the equidistance method were applied to a con~ave coastline, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable would be the results · produced. See Brown, op. cit., 23 Current Legal Problems (1970), p. 187, atpp. 191-94.
223. ICJ Reports, 1969, p. 49, para. 89(a).
224. Ibid., pp. 49-50, para. 9l.
225 . Ibid ., p. 51-52, paras. 95-99; p. 53, para. 101. In his dissenting opinion in the Fisheries Jurisdiction Case, Judge Gros criticised the Court's invocation of equity. 'To hold a balance between the economic survival of a people and the interests of the fishing industry of other states' raised issues which were too complex an~xplosive to be resolved by the application
Whose is the Bed of the Sea? The Problem of Continental Shelf Dellinitation in Relation to Small Islands
of equity; striking such a balance was a political arid economic task, not a legal one. ICJ Reports, 1974, p. 3. In preparing recommendation with regard to the dividing line for the shelf area between Ice1and and Jan Mayen (Norway), the Commission shall take into account Iceland's strong economic interests in these sea are\as, the existing geographical and geologi
cal factors and other special circumstances. See 'Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen', 20!LM (1981), pp. 797 et seq.
226. Channel Award (Crond. 7438). On equitable principles, see paras. 97, 194-96, 199, 239-42, 244, 248-51.
277. The Court interpreted that there is no legal limit to the considerations that states may take into account to ensure the application of equitable principles. North Sea Continental Shelf Cases,ICJ Reports, 1969, p. 50, para. 93. See above, III. C.
228. Channel Award (Crond. 7438), p. 60, para. 99.
229. Ibid., p. 94, para. 198.
230. Ibid., pp. 59-60, para. 97. Cf. Separate Opinion of Sir Humphrey Waldock, pp. 197-201.
231. Ian Brownlie, 'Legal Status of Natural Resources in International Law (Some Aspects)"
162 Recueil des Cours (1979-1), p. 287.
232. See, e.g., the Bahrain-Saudi Arabia Boundary Agreement, Agreement concerning the sove
reignty over the islands of Al-Arabiyah and Farsi and the delimitation of the boundary line separating the submarine areas between the Kingdom of Saudi Arabia and Iran, Agreement for settlement of the offshore boundary and ownership of islands between Abu Dhabi and Qatar, Offshore Boundary Agreement between the Amirates of Abu Dhabi and Dubai, Agreement concerning the Boundary Line dividing the continental shelf between Iran and Qatar, Agreement concerning delimitation of the Continental Shelf between Bahrain and Iran, Agreement concerning the boundary line dividing parts of the continental shelf be
tween Iran and the United Arab Emirates (Dubai), Agreement concerning delimitation of the continental shelf between Iran and Oman. For details, see R. Young, 'Equitable Solutions for Offshore Boundaries: The 1968 Saudi-Arabia-Iran Agreement', 64AJIL (1970),p.152;
EI-l1akim,op. cit., Ch. III, pp. 83-131; MacDonald, op. cit., pp. 126-40. Dr. Amin observed that equitable principles do not always require the application of the equidistance method.
Whatever method is applied for delimitation, it is essential that the result be equitable. See Amin, op. cit., p. 142.
233. The Helsinki Rules of the ILA provide that 'each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin' (Ch. 2, Art. 4). The !LA Report of the 52nd Conference (Helsinki, 1966), p. 486. Cf. Colin Phagan, 'GATT Article XVI. 3: Export Subsidies and Equitable Shares', 16 Journal of World Trade Law (1982), pp. 251-64.
234. The maxim sic utere tuo ut alienum non laedas, the duty to exercise one's own rights in ways that did not harm the interests of other subjects of law. See e.g., The Trail Smelter Arbitration, III RIAA, p. 1905; The Corfu Channel Case,ICJ Reports, 1949, p. 4. Art. 3 of the Charter of Economic Rights and Duties of States provides: 'In the exploitation of of a system of information and prior consultations in order to achieve optimum use of such
resources without causing damage to the legitimate interest of others'.
235. See, e.g., Arts. 13(1X3) and 14(1X2). UN Doc. A/CN.4/Ser. A/1980/Add.l (part 2), p. 9.
Cases holding that equitable compensations must be paid for expropriation fall into the same category. See, e.g., The Chorzow Factory Case (1928) PCIJ Sec. A, No. 17, p. 46;Affaire Goldenberg Arbitration (1928) II RIAA, pp. 903-10; Jessie Watson (Great Britain) v. United Mexico States (1931), V RIAA, p. 162. For discussion, see B.A. Wortley,Expropriation in Public International Law (Cambridge U.P., 1959), pp. 6-7; M. Akehurst, The Law Governing Employment in International Organization (Cambridge U.P., 1967), pp. 85-88; Charles Rousseau, Droit international public, Tome 1 (paris: Editions Sirey, 1970), pp. 406-7.
236. UN Doc. A/CONF. 62/L. 78 (28 August 1981). It seems Article 83(1) does not represent a consensus since a large number of states favour the str~ct application of the equidistance solution. Cf. Art. 74 of the Draft Convention on the Law of the Sea. See above, III. B.
237. ICJ Reports, 1982, p. 49, para. 50.
238. About 50 states have continental shelf boundary problems. They can be divided into two groups: (a) the median line group and (b) the equitable principle group , the former basing their view on Article 6 of the 1958 Continental Shelf Convention and the latter on the judgement of the North Sea Continental Shelf Cases. The fonner regard equidistance as providing an ultimate equity. Under the Convention on the Law of the Sea, in the absence of agreement there is no rule: neither fonnulae, nor any reservations, are permitted.
239. 'Trough' is defmed as follows: (1) An elongated region of low barometric pressure between two areas of higher (meteorology). (2) The hollow between two waves. (3) A syncline (geo
logy). (4) An elongated valley or trench. See Stamp (ed) A Glossary of Geographical Terms op. cit., p. 464; idem (ed .)Longmans Dictionary of Geography. op. cit., p. 423; Swayne, A Concise Glossary of Geographical Terms, op. cit., p. 144; FJ. Monkhouse,A Dictionary 0/
Geography, 2nd ed. (London: Edward Arnold, 1970), p. 359.
240. 'Trench' is, defined as 'a long narrow steep-sided submarine valley', Stamp, op. cit., p. 463;
Swayne, op. cit., p. 143; Monkhouse defmes trench as (i) An elongated trough or deep in the coean floor; (ii) A U-shaped valley in the mountains. Monkhouse, op. cit., p; 357.
241. See generally, Richard Young, 'Offshore Claims and Problems in the North Sea', 59 AJIL (1965), pp. 505-6; D.W. Bowett, The Law of the Sea, p. 39, n. 3;idem, The Legal Regime of Islands in International Law, p. 144, n. 10; p. 162, n. 55; pp. 222-23; Brown, The Legal Regime of Hydrospace, p. 7; Juraj Andrassy, International Law and the Resources of the Sea (N.Y.: Columbia U.P., 1970), pp. 88-89; H.M. Jain, 'Continental Shelf - Some Geological Aspects', 12 Indian JIL (1972), p. 576; L.F .E. Goldie, 'A Lexicographical Controversy -the Word 'Adjacent' in Article 1 of the Continental Shelf Convention', 66 AJIL (1972), pp. 829, 834; Prescott, op. cit., p. 191; E. Lauterpacht, 'Oil and Gas Resources of British Waters
Some Proplem of International Law', International Bar Association, 2 Proceedings of the Petroleum Law (8-13 January 1978, Cambridge), 34.8; Symmons, op. cit., pp. 190-91.
242. Scientific Considerations Relating to the Continental Shelf, UN Doc. A/CONF. 13/2 and Add. 1 in the UN Doc. A/CONF. 13/37, p. 39, at p.41 , para. 20;pp.43-44, paras. 32(a) and 34. The Deep off Norway goes down in the Skagerrak to about 430 fathoms and in 17 December 1963. Snaking along the Norwegian coast is the Norwegian Trough, between
Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands
50 and 150 kilometres wide and 287 to 700 metres deep. John Andrews, 'Norway's Oil Riches', The Guardian, April 9, 1981, p. 18.
243. UN Doc. A/CONF. 13/c. 4/SR. 17 (24 March 1958), A/CONF.13/42, p. 41, para. 10. The 1 st and 2nd drafts of the ILC had the word 'contiguous' to the coast - as indeed the Truman Proclamation itself-but since contiguity suggests always touching or contact this might have been thought to exclude for example the shelf off Norway. The Norwegian Deep, Lord Shackleton suggested, excluded Norway from taking advantage of the North Sea continental shelf. Hansard, H.L. Deb., Vol. 257, Col. 216: 17 December 1963. Cf. Jennings,op. cit., 121 Recueil des Cours (1967-11), p. 396. For Norwegian Trough, see also Bowett, The Legal Regime of Islands in International Law, op. cit., pp. 162, n. 55; 196, n.4; 222-23.
244. UN Doc. A/CONF. 13/C. 4/SR. 19 (25 March 1958), A/CONF. 13/42 p. 48,paras. 21 and 23. In the Memorandum prepared by the Secretariat of UNESCO it was in conformity with this approach that the depressions in the Norwegian shelf ought not to be disassociated therefrom because they form an integral part of the shelf. UN Doc. A/CONF. 13/2 (20 September 1957), A/CONF. 13/37, p. 39, at p.41, para. 20; pp. 4344, paras. 32 and 34.
245. 1933 PCIJSer. A/B,No. 53,p. 71.
246. Ibid., p. 91.
247. In the Temple of Preah Vihear Case where the Siamese authorities such as Prince Deva
wongse, the Minister of Foreign Affairs, Prince Damrong, the Minister of the Interior, the Siamese members of the First Mixed Commission and the Siamese members of the Commis
sion of Transcription, did not make any reseIvation nor raise any. query about the acuracy of the Annex I map, either then or for many years thereafter; they must thereby be held to have acquiesced to the Annex I map. IC] Reports, 1962, p. 15.
248. Norway No.1 (1965), Cmnd. 262; UKTS No. 71 (1965), Crnnd. 2757. Instruments of ratification were exchanged on 29 June 1965, and the Agreement entered into force on that date. See also BPIL (1965), p. 139. Cf. Hansard H.C. Deb., Vol. 688, Col. 277: 28 January 1964. See alsoBPIL (1964),p. 58.
249. E. Lau terpacht, loco cit., Prescott suggests that the UK, perhaps, try to avoid further delays in securing firm title to potential oil and gas. See Prescott, op. cit., p.191; Birnie & Mason, op. cit., in Mason (ed) The Effective Control ofResources, pp. 28-34.
250. Hansard, H.L. Deb., Vol. 253, Cols. 916-17,936: 3 December 1963; ibid., Vol. 254, Col.
216: 17 December 1963. A similar guery was raised by Sir Frank Soskice in the House of Commons, see Hansard, H.C. Deb., Vol. 688, Cols. 270,277: 28 January 1964.
251. At rust the UK contended that the Norwegian Trough marked the proper division between the UK and Norwegian continental shelves. Norway, however, contended that the ~or.
wegian Trough was only an accidental depression in the surface of the continental shelf, and the correct boundary was a line of equidistance between the British and Norwegian coasts.
wegian Trough was only an accidental depression in the surface of the continental shelf, and the correct boundary was a line of equidistance between the British and Norwegian coasts.