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ington. D.C. Sucb (:onlribuOOns are deductible from federa! retums for income, estale and Kif! laJ<

purposes, The Societ)' is incorporated b}' ACl of Congress approved Seplember 20, 1950 (64Slat, 869).

MANLEY O. HUDSON MEDAL

The American Societ}· of International Law bestOws from time lO lime wimout regard to nalionality

a goId medal 10 commemor.lle the liCe work oC Manie)' O. Hudson. Su(:h awards are made Cor preemi-nent scholarship and achie\'ement in international law and in me promolion of the establishmem andmaintenanceof illlemational relations on the basis of law and justice. Medals have been awarded to

Manley O. Hudson (!956), Lord McNair (1959), Philip C. Jessup (1964), Charles De Visscher (1966),Paul Guggenheim(1970), Myres S. McDougal (1976), EduardoJimenez de Arechag-a (1978), RichardReeve Baxter (1981), Oscar Schachter (1981), Hard,· Cross DiUard (1982), Suzanne Bastid (1984),

Marjorie M. Whueman (1985), Leo Gross (1986) and Roben y, jennings (1993).

THE AMERICAN SOCIETY OF INTERNATIONAL LAW

The American Societ)"of International Law was organized in 1906 "to foster the studyofinternational law and to promote the establishment and mailllenance of international

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OFFICERS OF THE SOCIElY. 1993-1994

HO/lOra')' p,.rsidml , , , .. , JOHI> R, STEVENSON

Pre,id",t .. , , '.. _-~~~~.LOUlSHL,,'K1N

\'irr.Prrsidml.l JA!oIESC. CONNER, BURNS H. WESTOl>, ~lARCIA A. WISS

Exrwli,,,, Director , , , , CHARLOTTE Ku

H07lOTary Vicr·Prt.lidrnJ.s: MAXWELL COHEN, EDWARD DUMBAULD, DAVID C. CIU., JOHN LAWRENCE

HARGROVE, RITA HAUSER, JOHN N. HAZARD, KEITH HIGHET, LEONARD H. LEGAULT, MONROELEtGH, CYNTHlA C. LICHTENSTEIN, MYRES S. McDOUGAL, LEONARD MEtKU. COYEYT. OLIVER,

FRANZ M. OPPENHEIMER, ELLlOT L. RtCHARDSON, HENRY J. RICHARDSON III, STEFAN A.

RIESENFELD, WIU.lAM D. ROGERS, SEYMOUR J. RUBIN, DEAN RUSK. OSC~R SCHACHTER,STEPHEN M, SCHWEBEL. LOUIS B. SOHN, ERIC STEIS, PETER D. TROOBOFF, EDITH BROWN WEISS

Srerrtary " , .. , " .. , .....• , , , , ,. MICHAEL H. CARDOZO

TrrO.lllrer , ,." , , .. , , STEPHEN L. CI8S0N

A.l.,i.llallt TUO.lllrer ". , .. , , ,., ., , , PATRlClA A. SHERMAN

PATRONS OF THE SOCIElY

By Jonathan /. C/Ul7'lIey*

* Of the 80ard of Editors. The research for this p"per was supponed by a grani from the \'ander-bilt University School of Law. Adraft of this paper servcd as the basis for a presenlalion al the panel

entitled "The Law of the Sea: Recent Delimitalion Cases," al the Second Joint Conference of the

American Societ)' of International Law and the Nedel'landse Vereniging voor Inlernationaa! Recht,

The Hague Uune 24, 1993). The proceedings will be published under lhe lilie of lhe conference,CoNTEMPORARY INTERNATIONAL LAw ISSUES: OPPORTUNITIES AT A TIME OF MOMENTOUS CHANGE

(Rene J. M. Lefeher ed.).

I United Nations Convemion on the Law of lhe Sea, olJnled Jor sigJwure Dec. 10, 1982, Arls. 74,83, UN Doc. A/CONF.62/122 (1982), reprinled ill UNITED NATIONS, OFFlClAL TEXT OF THE UNlTEDNATIONS CoNVEN1l0N ON THE LAw OF THE SEA WITH ANNEXES AND INDEX, UN Sales No. E,83.V.5

(1983) (to enler imo force Nov, 16, 1994) [hereinaher 1982 LOS Convention].

- t Id., An. 15. The equidislant line is delined as "(ó'J linecomposed of rel.uively shon segmentsconnecting poinls lhal are equidislanl from the nOrlnal baselines, or from c1aimed (or assumed)baselines from which the breadth of the lerrilorial se;, i, lIIeasured. This is somelillles called a medianline [when the coastlines art" opposile]." INTERNATIONAL MARmME BoUNDARlES al xix Uonalhan I.Chamey 8< Lewis M. Alexander eds., 1993).

• Jonathan I. Chamer, InJroduclio71 to INTERNATIONAL MARmME BoUNDAilIES, ""pru nme 2, al

xxiii, xxvii. 11lC pending cases (as of January 1994) "re Maritime Delimilalion and Terl'iwria! Ques.

tiom between Qalar and Bahrain (Qatar \', Bahrain), 1!192 ICJ REP. 237 (Order of June 26); Ust

Timor (Pon. v. AUSII.), 1992 ICJ REP. 32 (Order of May 19); and MaritinJe Delimitalion belween

Guinea-Ri"\;lu and Senel!3l (Guinea-Bissau v. Sen,), A""lic;uion of Mar. 12, 1991.

PROGRESS IN INTERNATIONAL r"IARITIME BOUNDARYDELIMITATION LAW

L INTRODucnON

Judgments of the International Court of justice (ICJ) and awards of ad hocarbitration tribunaIs carry special weight in inlernational maritime boundary law.On its face, the international maritime bounclal)' law codified in the 1982 Conven-

" tion on the Law of the Sea is indeterminalt'. For the continental shelf and theexclusive economic zone, the legal obligali(1ll of coastal states is to delimit theboundary "by agreement on the basis of inl(:rnationallaw, as referred to in Article

38 of the Statute of the International Courl of justice, in order to achieve an

equitable solution."1 The article on the delilllilalion of maritime boundaries in theterritorial se3. rs no more detenninative dc\pilC the faet that it makes direet reCer-ences to the equidistant line, special circulmlances and historic litle.2 In spite oCthis indetemlinacy, if not because of it, coaslal states have found that lhird-party

disputesettlement procedurescan effectivcly resolye maritime boundary delimi-tatian disputes,As a consequence, therc are more judgmen1S and awards onmaritime boundary disputes than on any olhcr subject of international law, andthis trend is continuing,'

Owing to the relative scarcity of authoril;llive pronouncements, ICJ judgmentsand even ad hoc arbitration awards generally assume considerable imponanre ininternational law. In international maritimc houndary law, the judgments andawarclstake on even greater salience. Thcrc are twa reasons for this situation:

first, the existence of a unique line of jurisprudence marle possible by a continu-ing series of decisions and, second, the absencc of clearer guidance fTom codifica-

li"

iil~t

ARTHUR K. KUHN

ALEXANDER FREEMAN

SEYMOURJ. RUBINJOHN LAWRENCEHARGROVEFRANK A. B.~UMAN

RICHARD W. EDWARDS, JR.HUSSAM AL\fESHALMRS, RICHARD BAXTER

ENRIQUE P. SYQUIARITA E. HAUSERHOWARD M. HOLTZMANNARTHUR W, ROVlNEOSC~R SCHACHTER

BASIL S. yANAKAKlSCERALD ARSEN

ANTHONY D'AMATOEARL A. SNYDER

INMEMORlAM

STANLEY P. SMITHDR. JAMES BROWN SCOTTHENRYC. MORRlS

ARTHUR H. DEAN (deceased)

HERMAN PHLEGER (deceased)

GF.NEVIEVEE. T1LLAR (deceased)

W. ROBERT MORGAN

BRUNSON MACCHESNEY (deceased)

AWNA E. EVANS (deceased)

JOHN N. HAZARD

JOHN R. STEVE.'l/SONARTHUR R, ALBRECHT

ALWYN V. FREEMAN (deceased)EDWARD DUM8AULD

KEITH HIGHET

STEPHEN M. SCHWE8EL

WILLIAM D. ROCERS

•• 228 THE AMERICAN JOURNAL OF I!\TER~A1;IO:'l1AL L\W [Vol. 88:227 1994] INTERNATIONAL MARITIME BOUNDAR\' IlU.lMITATION 229

MAP L EL SALVADOR/HoNDURAS: NICARAGUA lNTlkVt:IIoING (GULF OF FONSECA)

Snurce: Land, Island and Marilime Fromier (El Sal./Hond.: Ni,·o •. imervening), 1992 ICJ REP, 351,587 (Sep!. II).

II 31 11.M 1149 (1992) Ihereinafler SI. Pi,"e a,u! Miquelon). Fur a case nnle on lhis award by K~ilhIliKhcl, iCe 87 AJIL 452 (1993).

" 1992 JCj Ru. 351 [hereinafler Marilil7ll!FronJier DispuuJ. Fur a case nole on IhisJudgment byGldMn ROllem, oee 87 AJIL 618 (1993).

1·1993 ICJ Ru. 38 Ihereinafler Jan Mayen]. For a ca.••• 'lilie on lhis Judgmcnl by Jonathan I.f:hz.n,_ •__ gU "'" 'I\~ Il"".'

,2"55"N

13*15'

13"2S"N

87"lS'W

er,S'W

HOHDURAS

87"25'

87"25'8M1i'

GULF OF FONSECA

f_a

••••••••

CooIguIna

17-4$"

87"

.. 230 THE AMERICANJOVRNAL 9F INTERNATIONAL LAW [Vol. 88:227 1994] INTERNATIONAL MARITIMEBOUNDAIlY DEUMITATION 231

I

J

------------,IllIII

I

~..

U

~jf-

232,"" THE AMERICAN JOURNAL OF INTERNATIONAL LAW [VoI. 88:227 1994] INTERN:\T10NALMAIUTIME BOUNDAIIV llEI.IMITATION 233

SOUTU: Marilime Oelimilalion in !he Area belween Greenland and Jan Ma)'en (Den. v. l\or.). 1993ICJRD'. 38. 45, so Uune H).

principles and rules which may be approprialt' in 'lrder to achieve an equita-ble result.18

Procedure

III. DEVELOPMENTS IN TIU: LAw

The message of this language seemed to encollr;'''t· ('oaslal stales 10 assert what-

ever elaims they wished on me chance that" ther ('ould persuade their opponentsOl' a third-party tribunal that equity was on liwiI' side. If international law issupposed to be nornlative, this formulation feli Lal' short of the ideal.

The response to this articulation by the disselllin"judges and writers was severeand may have prom pled the more refined appro;Hh lhal folIowed shonly thereaf-ter. In the COl1til1enlalShelf (Lib)'a/Mallil) case, lht' Coun backed away from thisextremely result-oriented approach:

Thus the justice of which equity is an emanalion, is not abstract justice butjustice according to the rule of law; which is lo s;'y that its application shoulddisplay consistency and a degree of predictahilily; even though it looks withparticularityto the peculiar circumstances ol' an instant case, it also looksbeyond it to principles of more general appliralion.19

The message of the Court is elear. It does /lol hold out the possibility that aclearly delerminative black-letterrule of law will lit, established. Nor shoukl thtl

maritime boundal}' law devolve to the point whcrt, il is so indelerminate that each

delimitation is decided on an ad hoc basis colllparable to a decision ex aequo elb0110. Rather, in the common-Iaw tradition as U/ldcl"Slood by lhe realisls, the con-tinuing series of judgments and awards should pro~l"essively refine the lega I rulesand their objectives. Over time, the essential norlllativc objectives of this law may

be beller underslood, notwithstanding the faC! lhal lhcy may not be adequalelycaptured in a codification. Even though a new and higlI1y determinative codifica-lian of the law is neither likely nor apt to be ol' IIIIIch value, refinements in the

application of the law may improve the normalivt' siluation. The improved situa-tion, in tum, should produce results that are rel;tlively consistent, fair and sensi-tive to the variety of circumstances in which mariliJllc boundaries must be dei im-

ited. It should also encourage the settlement ol' maritime boundarie~, The three

recent cases identified above gave the international tribunaIs an opportunity tofurthel' refine the substantive and procedural la\V in this area.

My primal}' purpose in this anicie is to examinc important issues addressed IDthese three cases, Since international maritime boundal}' law is complex and raisesmany issues, I have chosen to examine issues thal have been prominent over timeOl' are dealt \Vith in unusual ways in the instant decisions. As \ViIIhe seen, for the

most part this trio, especially the Judgment of lhc fuli Court in the Jan Mayencasc, has made important contributions to the fide\.

l·luniAl ••/I.ib~.•. 1982 lej REP.••• 59. p••ra. 70; su ulu. (;ulf uf Maine, 19114 ICJ REP. al 290,:\12-1:\. p"r ••• /lI, 1:'6-511.,. I ilu. ,l' .1•. 'no!': '1"'>, "

Rcfincmems in imernational maritime boundal'Y law may be undertaken di-reelly through thc de\'elopmem of thc substanlivc law ilself. As will he discussed

below, lherc has hecn some dcvelopment of Ihis kind, Equally, jf not more impor-tamly, probrress has heen made through refincmcnts in the procedure used bylribunals to analyzc houndal}' disputes, By sctlin~ lhc parameters of the proce-

,75"N

iii"N

N01lWfGIANS f A

1O'W

G1lffNtAND, S f A

--o

MAP 3. DENMARK V. NORWAY UAN MAnN)

1O'W

/!l~

me Court have to be selected according to their appropriateness for reachingan equitable result. From this consideration it follows mat the term "equita-L. ~ ·~~._,t· ..••..• ·.1' . r- •••

G " E

75'N

N

234THE AM~~I~A.NJOURNAL OF INTERNATIONAL LAW [\'01. 88:227 1994] . INTERNATIONAL MARrrniE BOlINIlAKY DELlMITATlON 235

dure, the tribunaIs have often shaped the results as. well as the substance of the

law itself. For some time now, these tribunais have taken a common approach tomaritime boundary disputes. First, they define the relevant geographical area andthe area in dispute. Second, lhey identify the relevant areas and coastlines. Third,

lhey spell out all lhe relevant considerations. Fourth, lher develop a provisionalline based upon an analysis of the relevanl considerations. Fifth, they check matline against some of me consideralions to determine whether lhe line is "radicallyinequilable"20 and, if so, they adjust it accordingly.

The award of the arbitralion tribunal in the St. Pierre and Miquelon case fol.lowed lhis procedure. BUl il was challenge d as circular by Prosper Weil, on theground lhal, for the analysis lO work, the faclors entered imo consideralion in lhe

final slage mUSI have played a role earlier when the relevam considerations gener-aled the provisionalline in lhe first place.21 This problem may have been kept to aminimum in the jan Ma)'en Judgmenl. The Coun provisionally used the equidis-tam line, based strictly on coaslal geograp~y, before examining olher consider-

ations lhat provided it with a basis for adjusling lhe provisional line.

Historical and ConventiollQt Rights

The jan MaYe1122 case and Maritime Frontier DiJpuLe have made elear lhal

preliminary to a maritime boundary delimilation on lhe basis of lhe multistepanalysis are queslions of hisloric litle, treaty obligations, common behavior and

slabilily derived from lhe doclrine of uLi possideLis. The Maritime Frontier Dispute

case concerned bOlh land and waler boundaries. For much of lhe land bo~rythe Court applied lhe doclrine of uLi possideLiJ. In ilS classie form, the doctn

requires that adminislralive boundaries used to allocate responsibilities amongterritorial subunils of a sovereign slale will constilute boundaries of those terri-

torial unils if they gain independence.2~ The doetrine promoles stability andserves to minimize lhe possibilily of territorial conf1icts after decolonization. The

Courtestablishedin me insIant Judgmenlmat uli possideLiJ may be applied tointernational maritimeboundaries. 24

hl lhis case Honduras and me nonparty intervenor, Nicaragua, supponedboundary delimilation in me Gulf of Fonseca. Whether maritime boundaries were

found in me gulf depended upon its legal status. The gulf is nOI a juridical bay. Ajuridieal bay is one whose walers are considered to be inlernal because it contains

landloeked waters and may be closed by a baseline (or series of baselines) nOIexeeeding a total of 24 nautiealmiles. Sueh a bay may be found only on me eoast

20 Gulf oC Maine, 1984 ICJ REP. al 342, para. 237.

2. SI. Pierre and Miquelon, 31 ILM al 1206-07, par:is. 24-25 (Weil, arb., disseming).•• Jan Mayen, 1993 ICJ REP.al 48'-52. paras. 23-40 ..

•• Mantime Fromier Dispule. 1992 ICJ REP. al 386-87. paras. 40-42; Guinea/Guinea-8issau. 77I.LR. al 657, 15 ILM al 2il. para. 40; Fromier Dispule (Burl:.. Faso/MaJi). 1986 ICJ REP. 554,565'-67,568.586-87, paras. 20-26. 30, 63 (Dec. 22); Arbitralion of lhe Marilime Boundary (Guinea-8issau/SenegaJ) oC 31 July 1989.83 I.L.R. I. 35-39. paras. 61-68 (the proeeduraJ vaJidily of lhis

award was upheld by the ICJ in ArbitraJ Award of 31 July 1989 (Guinea·Bissau v. Sen.), 1991 ICJ REP.53 (juiy 31); Bc:agleChannc:l Arbitralion (Arg. v. Chile). 171LM 632. paras. 9-12 (1978) (award oC

I977);·Rann oC I\uleh Arbilration (lndia \'. PaI:..),50 l.LR. 2. 27-30, 80-89 (1968); Tempie of PreahVihc:ar (Cambodia \'. Thail.), 1962 ICJ REP. 6, 16 (june 15); CoIombia·Venezuc:la Boundary Arbilrd-lion. I R.l.A.A. 223 (1922). &, atso The Solemn Deelaration oC the Meeting oC the Heads oC Slales oCthe Covemmc:nts oC the Organization oC ACrican Unity, OAU Doc. AHG/Res. 16(1) (1964); SaadiaTou\'al, ThL Orgtmi:alion oj Afriuzn Unily and AjriaJn Bordn-s. 21 iNT'L ORG. 102 (1967).

Il \I:.ri ••....,. Frnnli~r nicftl". lonC) ,rr Dl"n .•• ~on c)oc

of one state.25 Sinee three states abut on thl' (;lIlf (Jf Fonseea-EI Salvador, Hon-

duras and Nicaragua-it does not qualify as ;1 juridical bay. El Salvador arguedthat lhe gulf is a historie ba)' held in eondolllilliullI by all three liuoral states. TheICJ again favored slability consistent with the 1917 judgment by the CentralAmeriean Coun thal the Gulf of Fonseea wa.sa historie bay.26 The ICJ determinedthat the gulf was historic imernal waters helt! ill condominium by the three littoralstates and was undivided excepl for a band ol :~nautical miles from the shoreline

of each state.27 The dissolution of that clJllt10lllinium wauld require the agree-ment of all three states.28 Those slates even hdd unajvided interests in the man-

time zones seaward. from the moulh of tl\(' ~lIlf in the Pacifie Ocean (e.g., theterritorial sea, comiguous zone, exclusiH' ('l'ollomie zone or exclusive tishel]'zone, and cantinental shelf).29 Maritime bOllndary delimilations in those areasalso would require an agreement between Iht' lhree slales.

The question of slability and predietabilitv in llIarilime boundary matters arosein the jan Mayen (Den711arkv. Norway) easl' where the ICJ had to delermine theapplicability of a 1965 maritime boundary In'aty bctween lhe two states. On itsface, the first anicie of the trealy mighl ha\"(' disposed of lhe instant continemalshdn)oundary dispute. That anicie slates: .

The boundary belween those part s ol' Ihe eominental shelf over whiehNon\'ay and Denmark respectively exl'nise sovereign rights shall be the me-dian line.which at every point is equidistam from the nearest poims of thebaselines from whieh the breadth of liII' terrilorial sea of each ContraetingPany is measured. ~O

Norway, of course, argued for the equidisl;lnt tinc lo delimillhe marilime bound-ary between tiny Jan Mayen and the lengthv t'astern eoastline of Greenland. Den·mark argued in response thal, despite lhe apparenl generality of the aniciequoled above, the trealy was limited to the single Nonh Sea maritime boundary

deseribed in detail in Aniele 2 of the fivc-artide treatyY Each pany put forwardarguments relating lO lhe interpretation of lrealies in suppon of its position. Inthe end, the Court found the 1965 lreaty to be inapplieable to the eurrem disputebecause Anicie 2 defined the boundary thal was the objecl of me agreement, andthus exeluded the Jan Mayen-Greenland maritime boundary.~

•• 1982 LOS Gonvemion. supra nOle l. Art. 10.

•• Republie oC El Salvadorv. Republic oC Niearagua (Mar. 9. 1917), II AJIL 674. 700-17 (1917).For the presem aUlhor', analysis of this ease published prior to lhe 1993 ICJ Judgmem. see Ghamey.MariIi,,,,, jurisdiclio'l a,ullhL S,uJSi07l oj Slales, supru lIute 7. al 366-70 .

., Marilime Fromier Dispule. J9921CJ REP.aI601-lJ5. paras. 404-12. Dunng lhe colonial period •Spain had sO\'ereignly over aU lhe shores of lhe gulf ,,,ul asserted sovereignty over ils walers. Whenthe sovereib'lllYover lhe land lerrilOl)' was divided, Ilu' Iillor.u slales maimained Ihe hislorie c1aim lO

lhe walers. Afler lhe 1917 a,,·ard. lhe linoral slates per,i,ted in lhis ciaim notwithstanding differencesOVerlhe nalure oC the regime. T1.e slalus of lhe gulf a, hi,wri!' walers has nol been queslioned byanyutber '1'lIe in modem limes.

h Id, al 60:l-0~. p'lra. 409. •.•Id. al 60fl-09, paras. 415-20.•• Muilime Odimilation in Ihe Area helween Gr•••.nl.uul and Jan Mayen (Uen. \'. Nor.), 1 Counter-

Memorial Submilled hy lhe Government of the Kin~d"lIl of Norway al 81, para. 281. and Ann. 46(" ••• y II. 1990) Ihereinafler Nor. Gnunler·MemmialJ, .10111Mayen. 1993 ICJ REP.al 49, para. 23 .

•• M"rilime Dehmilaliun in lhe Area belween Grt"t"III'lIldand Jan Mayen (Den. v. Nor.). I ReplySubmitted by che Covernmem of lhe Kingdom of Ot-1I11l"rkal 126-30. paras. 33;-50 (jan. 1991)Ihrn-inaflt"r Ilen RepiyJ.

11,

NOTtgeographic Considerati01lS

•• Id. al 53-56, paras. 33-40. 5. Id. al 54-55. paras. 35-36.

•• In TunisiajLibya. Ihe Coungave grealcr wcighl lo imerim arran!:emems. The Jan Mayen Judg-IlIClll lDay represent a relreat from lbalprecedem. TunisiajLibya. 198:? ICJ REI'. at 83-84. paras.117-18. &~Jonathan I. Cbamey. OcmR Boundari~J ÓdlHnI StaleJ: A ThLory for ProgresJ. 78 AJIL582. 1i02 (J 984).

sa Lihya/Malta. 1985 ICJ Ru. al 46-47. para. 61.S7 SI. Pierre and MiQueloll. 31 II.M al J 17'l_7~ "',..., 1l~_OI

In the LibyajMalla case, the ICJ underscored the significanee of distance indelimitations of continental shelf areas located less than 200 nautieal miles fromthe coasts of the states in question.36 It cast serious doubt on the relevance ofconsiderations such as geology, geomorphology, economics, population and othersocial science data in maritime boundary delimitations alfeeting the 200-nautical-

mile ~xclusive economic zone or fishery zone, or even the e()J1l~helf un-

deriymg such zones. What appeared to remain was the geWaphy of the relevantcoastlines. Despite lhis elear signal from the Coun, FraJf

238 THE AMERICAN JOURNAL OF INTERNATIOSALL\W [Vol. 88:227 1994] INTERNATIONAL MARITIME BOUNII:\RY OELIMITATION 239

boundary in this zone, therefore, appears to have been placed 10 give to thedisputing states' fishing industries half the value of today's commerdally exploit-able fishery.l7 This dedsion is hard to reconcile with the position taken by theCourt elsewhere in the Judgment that "the attnbution of mantime areas 10 theterritory of a State, which, by its nature, is destined to be permanent, is a legalprocess based solely on the possession by the territory concerned of a coastline. "48The determination of the boundary in zone l appears 10 have reintroduced sodo-economic considerations into mantime boundary law, a result strongly cnticizedby Judge Schwebel in his separate opinion,,9

On the other hand, the proscnbed sodoeconomic cohsiderations may be nar-rowly defined to focus on the relative economic strengths and requirements of thepopulations in settlements adjacent to the area in dispute. The delimitationshould not be designed to compensate them directly for their relative poverty ordependence on the resources in question. If so defined, the Coun did not directlyretreat from the exclusion of socioeconomic considerations by dividing the pnmecommerdal fishery in half by area. However, the Court did attempt to share thevaluable resource equally between the disputants. While this may not amount to asocioeconomic consideration, it certainly is an economic consideration intended'directly to affect the populations with an interest in the resource ("soCio-").50

Some have been reluctant fully to embrace the limitation to coastal geography. because mantime boundanes have human and economic impacts. Thus, the eon-

servation and management of manne resources may be made more difficult if

mantime boundanes do not reflect natural boundanes Ol' exploitatipn patterns.Arguably, the mantime boundary might be designed 10 conform to natural Ol'traditional behavior patterns Ol' sodal needs. The boundary could be drawn todivide the value of resources in the disputed area imo equal shares. Argumentsalong those lines have beenput forward in the past. With the exception ofthejanMayen Judgment, the. ICJ and ad hoc arbitration tnbunals have been unable 01'unwilIingto base mantime boundary lines on these considerations.51 Not only is it

part oC ,he area oC o\'erlapping cIaims." Id. at 73, para. 78. It also found thal ice "constilutes aconsiderable seasonal restrietion oCaccess lO Ihe walen. " Id.

47 In lhis case, neither state couJd argue that inhabitants oC the adjacent coasts had a particulardependence on the fishery. Norway's Jan Mayen has no permanent population. The Nor",egian fish-ing boats travellong distances Crom the mainland to exploit the capelin. The eastem coast oCGreen-land adjacent to the area is substantially ice locked and has a relalively smali population. Greenland'slishing is carried oUI by fishennen who live on its weslem coasl and travellong distances to reach thearea. Greenland also contracts WilhCoreign neets lo exploil these fisheries. Id. at 7l, para. 74; I Nor.Counter-Memorial,supra nole 30, at 12-13, paras. 44-46; I Den. Reply, su/JTanote 31, at 51-54,paras. 131-38.

411993 ICJ REP. at 74, para. 80.•• Id. at 120 (Schwebel, j., sep. op.). Judge Schwebel's sepaiolle opinion contrasts quite sharply with

tbat of an earlier U.s. judge on the Court, Philip Jessup. In his separate opinion in the North SeaCtmlinnUtJI SMlf cases, jessup suggesled tbai Ihe Court and the parties should delimit the maritimeboundary by focusing on the real basis oCthe dispwe-access to hydrocarbons in Ihe seabed oCtheNorth Sea. North Sea Continmtal Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP.3, 66-84 (Feb. 20)lhereinaCter North Sea] (jessup, j., sep. op.).

lO In the Gul/o/ Maine case, the Chamber delimited the maritime boundary on the basis oCcoastalgeography, awing lhe \-aluable resources to be divided. It reCused lo draw the line in ways that mighlba~ Collowednatural boundaries between the resources. Ii aIso refused 10 adjust boundary on thebasis of «onomic dependence oC coastal communities, but the boundaJ)' at was adopte ~ bothstales access to !he prime resource areas. 1984 ICJ REP.at 325--28, 3 -44. paras. 190-97. 2 -41.

SI1bey baw:, howe\'er, allowed Cortheir use in eXlraordinary cases Consequentl)', the United Statesh_ ..•~.a.. __I:_.JI *"_ .,.~. "_ ~ r

difficult to find credible evidence to .support a boundary that recondles thesefactors, but resource interes ts and human allivilics change over time, making apermanem delimitation constructed to accollllllodale them umenable.52 Similarly,international forums have been unable to dr·limit maritime boundaries on the

basis of geologie considerations because o[ lhl' IIncertainties of that science, thedifficulty of adapting it 10 international marilimc boundanes that require rela-tively precise delimitation, and the minimal rl'levance of su ch considerations to

contemporary international relations.55 Thal m;,y be why the international com·munity was willing 10 establish the 200-nautictl'lIlile line in the 1982 LOS Conven-tion.S4 Mantime zones and boundary delilllilalions established on the basis ofcoastal geography, distances measured frolll lhe coastline, and proximity moreclosely reflect states' interests in spatial-based aUlhority and control and theirpreference for maximization of the physical separ:llion between states, as viewedfrom the two-dimensional perspective of the eanh's surface.

Nevertheless, the human and resource imp'lrts of maritime boundary delimita-tions cannot be ignored. Coastal states thal do enter inlO maritime boundary

agreements often deaI with these impacts ill sl'\~arate agreements .gesigned tocompJement the boundary settlements.55 This praetice is understood by third-party forums thal dec ide maritime bound:lI) disputes. The foremost exampleinvolved the continental she1f boundary belwecn lee land and Jan Mayen (Nor-way). There the.conciliators recommended, ancllhc parties accepted, a joint devel·opment zone on the continental she1f and a lIlarilime bOlllldary located at the200-nautical-mile limit, as measured from the Icelandic baseline.56 The ICJ

Chamber in theGulf oj Maine case pointed 0111 lhal the United States and Canadahad traditionally and successfully resolved tishcries management issues jointly

make use oCthose arguments when delimiling Ihe marii""" (,uundary. Id. al 272-78, 326-27, 342-44, paras. 41-59,191-95,236-41. .

s. A permanent boundary may be ambulalory. ThU!, 'I lIIalitime boundary slrictly based on \heequidistant line generated Crom the coastline will change as lhe coaslline changes. Stales have rejecledthis possibilily in their maritime boundary seulements b\' p•.rmanently fixing lheir boundaries. In thisarea slability is preCerred. David Colson, The Legal Rtgim. oj Maritim. Boundc.ry Agruments, inINTERNATIONALMARITIMEBOUNDARlES,su/JTa nOle 2, al 41, 42; Louis B. Sohn, Bast/im Consider·alions, in id. at 154, 155-58; Leonard Legault & Blair Hankey, M.thod, Oppositmess and Adjaum.ry,mul Proportionality in Maritime Boulldary D.limitatiOltJ. "' id. al 201, 206-14. Thi~ is best iIlustratedby the agreements between the United States and Mexiw. where the parties developed a SOIUIH)IllOcnnnect the fixed marilime boundary lO the ambulalO'1' land boundary, which is controlled by \heIhalweg. Set Robert W. Smith & David A. Colson, M"(/CII-U"it.d States, Report No. 10-5, in id. at427; Peter Beazley, Technical Considerations in Maril""t IlowuJary Delimitations, i" id. at 243.255.t:ven the land boundary rule oC the thalweg seeks a (main stabilily-the stabilily oC one cIearlyckflOed use, navigation-at the expense oC some limilel1 luss oC geographic stabililY. In maritimeboundary mallers it is rare to find sucll a dominant nonl:~ol{raphical inleres!. In those rare situaliomllales have Camred joint management and other mUlu,1I'"Tangemems in the context of geographi-ully fixed limits. Set Barbara Kwiatkowska, uOIIOmic and l:"vironmental Co,uiderations i'l lWaritimeBouruJaryLHlirnilations, i" id. at 75, 81-96; Colson, ,u!,m. al 55-60.

"Ih"hel, su/JTanote lO, at 163, 180-83. Bealley, '''1'''' nule 52, al 243.M I!l1l2 LOS Cnllvemiun, supra nOle I. Ar!. 57." Kwialkowska, sU/JTanule 52, al 75; CoIson, supra nole r,2, al 55-60.lO Report and Recommendatiuns In the: GI)\'ernmenl> or 1(c1and and Nurwal' uC lhe ConciJialion

CotllmiulOn on the Cominental Shelr Area between 1(~I"nd and Jan Mayen (~Iay 1981),62 I.I..R.108, 20 lUd 797 (1981) (hereinarter Icc:land/Nurw.I\·I. D. H. Anderson, lceia,uJ·NoTWa] Ua"M4,n.), Repurt No. 9-4, i" INTERNATIONALMARITIMLBOUNDARIES,supra nOle 2, at 1754. TheC.•.•ncil~lIUll C.•.•mm"'iun had the lalilude to recommellll ;'joim de\'e1opm~m wne. That authnrity is

240 THE AMERICAJIIIQ~'-;Al OF INTERNATIONAL V.W (Vol. 88:227 1994J :.';c·;I:-ITERNATlONAL MARITIME BOU/'oOIl:\RY DEllMITATION 241

througi:l international agreements.57 The arbitration tribunal in the St. Pierre andMiquelon award found that Canada and France had engaged in the same prac-tice.58 Similarly, both litigants in the jall A'1ayen case acknowledged their historie

cooperation on fisheries management in the region. Denmark argued that thedelimitation was needed primarily to set tle the spatialjurisdiction of the two statesto enable them to calculate national areas for management and make quota dec i-sions important to reaching mutually acceptable arrangements.59 Non,'ay main-tained that the maritime boundaI)' dispute was not an obstacle to the successful

__ ~im~p_Jem.entation of fisheries agreements between the parties.60In my opinion, the general rejection of considerations other than coastal geog-

raphy in maritime boundar)' delimitation cases is the preferable COUTse.The rein-troduction of other considerations, albeit in a limited and indirect way, in the janMa)'e1l Judgment is unfortunate and likely to encourage greater conflict and un-certainty.61 II may slo w the evolution of more stable law. Natural resource, envi-ronmental and similar concerns may be best a

242 THE AMERICAN JOURNAL OF INTERNATIONAL L\W . [Vol. 88:227 1994] INTERNATIONAL MARITlME BOI!:'. 18-21.

" Id. al 65. para. 61. The Greenland coaslline was measured belween poinlS G and H on map 3. p.I}ql) •.• , ••• ,. Th· •• I .•••.•, •.•••."'"' ••.•.•••.•.,1; ••.••••••••.••.•••.••.•••. _..l L_o •. -. o••.•

drawn doser to Jan M~yen than the equidisl~1l1 line.74 It did hold, however, that adelimitation dividing the area in the same r"tio as that found for the relevantcoastlines was not required.75 A line drawn al lhe 200-nautical-mile limit from the

coastline of Greenland (its maximum entilklllent) was rejected even though itwould produce an area ratio of only 1:6 (NorwarDenrnark).76 The Court opinedthat it would be inequitable on the basis of olhn relevant considerations to pennitGreenland (Denmark) its fulI 200-nautical'lIlile entitlement and to lea"e JanMaren (Norway) with the remaining 50 naulir;11 miles between them. Equit)' re-quired thal eaclLst.ate obtain lesstban its hIll cntitlement.77 The lCJ went on todelirnit the boundary by a line that divided tlle area of overlapping entitlements bya ratio of 1:3 (Norway:Denmark).78 By craftlllg a solution that produced a divisionof the water area so different from the cllastline proportions (1 :9), the Courtseems to have diminished the importance lIf proportionality. As the Court itselfpointed out, previous cases had considered lIluch smaller differences to be a basis

for adjusting the boundary line (e.g., the (;ulj oj Maine case).79The Court eompounded the capriciomlH'ss of its proportionality analysis by

focusing only on its division of the water arl''' separating the maritime boundarylines daimed· by the two parties before th-;:-Court-the 200-nautical-mile line

drawn from the Greenland coastline claimecl by Denmark and the equidistant linedaimed by Norway (the area enclosed by lines connecting points AIJBCl\IDLK onmap 3, p_ 232)-not the entire relevant area (Le .• that enclosed by lines connect-ing points AEFBCMGH on map 3). By framillg Ihe division in that way. it encour-ages future disputants before the Court to persist in their maximul11 boundarydaims in hopes of influencing this proportionality calculation.80 At best, the

Court appears to have stressed the uniquencs5 and individuality of its approach tothe case. even while emphasizing the valuc of developing a more determinativenorm through state practice and third-party settlements.81 By implication,this approach strengthens arguments for lIo"el analyses and delimitations inevery case.82

7< 1993 lej REP. al 68-69, paras. 68-69. "Iti. al 69. para. 69.,. Id., para. 70. 77 Id.

'"Id. al 79-81, paras. 91-92; id. al 127 (Schwebel.].. sep. op.); 1993 ICj REp. al 308-1 I. paras.13-15 (Fischer,]. ad hoc, dissenting). This was accornplishcd by dividing lhe area belween lhe Green-land 200-naulical-rniJe line and the equidistant line 11I10 .hree zones. Zone I was divided by area inhalf in an e/fort lO divide Ihe capelin lishery equally. s" lexl supra al nOle 45. The other IWOloneswere divided lO produce "equily." Zone 3 was divid"d by a lin" connecling poinl A lo a point on lineKI (map 3. p. 232) thal .is Iwo-thirds of Ihe dislance ;i1ong Ihal line loward Greenland (point O). Inlane 2 Ihe end points of the lines dividing zones I and 3 (points N and O. respectively) were con-neClcd by a slraighl line (line NO). 1993 ICj REP. al 79-11l, para. 92.

" 1993 ICj REP. al 68-69, para. 68. ProponionaJll" wa., also considered in Delimilalion oC IheComincnlal Shelf belween lhe Uniled Kingdom of Grcal Brilain and Northern treland. and lhe

Frcnch Republic. 18 R.LA.A. 3. 57-58. 18 IlM 398. 427. 454-55 (1979), paras. 98-101. 244-50(1977\ [hereinafter Anglo-French casel; Tunisia/Lib,- ••. 1!11l2ICj REP. al 91. paras. 130-31; Libya/Matl In Ibis Krue. Ihe inslam Judgmem is cunsislem w,llo Ihe unique Irealmenl of proponiollalilylou~t. in lhe gcographiC

Eqli;itAiftance

The goals of consistency and prediclabililY may be funher promoted by resolv-ing another debate in international maritime boundary law. In the past, the Coun

hasgone quite far in trying to establisl1 that the equidistant line is not the pre-ferred methodofdelimitation. Here, too, the Jan Ma)'en case was in point. Anicie6 of the1958 Convention on the Continental Shelf contains the infamous equi-distancejspecial circumstances rule.8S InJanMayen Nomay favored lhe applica-lion of Aniele 6 lo delimil the continental shelf boundary because lhe aniele

allegedly gave preference to- the--use-of-equidisiance. Denmark argued the oppo-sile. One wouldhave lhoughl lhat this debate had be en seuled by lhe award in the

United Kingdom-France Continental Shelf arbitralion, where lhe equidistancejspecial circumstances rule of lhe 1958 Continental Shelf Comention was found lO

be indistinguishable fromthe general international law rule, which gi\'es no spe-cial preference lO equidistance.84 The Court made elear in the Jan Ma)'en casethat it accepted lhis view: an analysis based on thal Com'ention will be identical tothe general internalionallaw analysis. BOlh seek' 10 produce an equitable resull.Furthermore, "special circumstances" under the Continental Shelf Conventionproduce. the sauleresult as'lielevant circumstances" used in general internationallaw. This convergence was supponed by the evolution of the general international

law in relation to which the Continental Shelf Convention is lo be interpreted.85As a consequence, lhe Court adopted the reasoning of the tribunal of arbitrationin the Anglo-Fmuh case, which itquoted with approval.86

Ihal the relevant coastlines were 24 miles:192 miles (Maha:Libra), il delermined thal Ihe (modilied)equidistant line failed lo re/leCl the subslantial disprupuniunalilr in Ihe coastal lenglhs, Conse-quemlr, an adjusunent was required, Id. al 50, para, 68, After considering Ihe wider geographic area

and wilhoUl allempting lo caJculale marilime areas amibulable 10 the disputams, the Court decidedlo shifl Ihe provisional (modilied) equidistant line nonh tuward Malta three'quarters of lhe di~ancebetween the provisionalline and anolher hypolhetical equidistamline construcled between lhe coasl.

Iines of Libya and ItaJy (wilhoul regard to Ihe Maltese coaslline near Ihe Italian coasl lO Ihe soulh). Id.al 51-53, paras. 71-73. The Coun found thal lhis resull was consistem Wilh proponionality, Id. at53, para. 74. See Jan Maren, 1993 Iq REP.al 125-26 (Schwebel, j., sep. op.).

63 Anicie 6 of the 1958 Convemion on lhe Cominental Shelf, supra note 4, slates, in pan:

I. Where the same continentaJ shelf is adjacent lo Ihe lerrilOnes of IWODr more States whosewasts are oppusile each olber, lhe boundary of lhe continental shelf appenaining lo such Slatesshall he detennined by agreement belween Ihem, In Ihe absence of agreemem, and unless anomher huundarr line is juslilied br special circumstances, Ihe boundary is Ihe median line, e\'el')'point of which is equidislapl from Ihe neareS! points of the baselines frum \\'hich the breadth ofthe lerritoria! sea of each ,Slale is measured.

2. Where the same continemal shelf is adjacent lO'ihe terrilones of lwu adjacem Stales, Ihebuund •••)' uf tiu, conlinemal shelf shall be delermined by agreemem belween Ihem. In Ihe ab-sence of af,'Teemelll, and uniess anOlher boun/Jary line is justified by special circumslances, Ihe

/ buundary shall be delermined by applicalion of lhe priJlciple of equidislance from lhe nearesl

( ()Uin.ls of the baselines frum which !he b~eadlb of lhe lerrilOrial sea uf each Stale is measured.

•• Anglo·French case. 18 lUf al 420-21,)IiJtas. 65-69 .•s.I:ln Mayen, 199:1 Iq REP.al 58-59, 67-69, paras, 46, 65-68,

•••Id. al 58 (quotin~ AngJu·French case, 181L\1 at 421, paTa, 70), The separale upinions by threejudges sili ing on lhe JUII Ma."" case argue thal Ihe applicahility of lhe 1958 Cominental Shelf

Cunvemic>ll,.1"Pru nole 4, require. a ullique anal~'Sismore favnrahle lu equidistance. J 993 Iq REP.al99, para, 37 (Od••, J .. sep. op.); 1993 Iq REP.al 122-26 (Schwebel, j., sep. op,); 1993 ICJ REP. at136-47, 151-59 (Shahabuddeeu, j., sep. op.). Two alher opinions suppon the cunclusioll of Ihe~I CI/lIhi.' i,,"e: 1993 Iq REP.al 169-73, paras. 171-232 (Weerdlllarnry, j.. sep, op.); 1993 lejRf.I'iII1e:'i, I"r •• 4 (Fi,,'her, I, aillu", d,s.\Cntincl

The Single Maritirne Boundary

Substantial progress was made in the direclioll of a single maritime boundaryfor aU offshore zones in the Libya/Malta cas!:' when the Court found thal coaslal

gcography and dis lance were the principal rl'!l'vant considerations in this 1'1'-

Ol 1!I931C] REP.at 60-61, 79. 79-81, par•••. 51, 91, !J~

•• E.g" l.ihya/Maha, 1985 Iq REP. 13; Gulf uf Maml.', l'lIH ICJ REP. ~46,lO Jan Mayen, I!l93 ICJ REP, al 58, para, 45,•• 191H Iq REP.at 291-95, paras, 84-96,Ol ~I tl.M al 1162, J 168. 1169, I J 76, paras. 33, 35. 6~, Id, 93.It'.cll"ult r.: IIankey, '''pro Ilnlc 52, at 203, 221; Ch.lI'lr\·, ,w/lm 1101•• 2. ;ol ~Ii\'.. .. .

245INTERNATIONAL MARITlME BOUNIIt\I(V l>ELlMITATlON1994]

In Jan Mayen equidistance was used for thr provisional line and the final line

was generated with reference to il.87 As Wilh pn'vious cases where equidislanceplayed a significant role, the boundary to Iw ddimilcd was between oppositecoastlines.88 Funhermore, for the first time Ihl' Coun had before il a marilimeboundary delimitation case in which the 19r1H COlIVcnlion on Ihe Continemal

Shelf was directly applicable. Both slates wen' p;lrtics lO Ihe Convention and Ihe

Coun was called upon lO delimit the contilll'lIl;11 shelf.89 In the earlier Gulf ojMainecase, the Uniled States and Canada wen' also panies lO the Convention,

but the Coun was required to delimit a single 111;11 itime boundary.90 Rathel' than asingle maritime boundary, however, the Jall 1110.)'1'11case called for delimilations

both of the continental shelf and of the fishel')' WIlCS in the superjacent walers.On this basis alone, the Court might have releJ.:;lled the equidistance principle lOdelimitations of the continental shelf only. 11tlid Ilot do sa. Rathel', equidislancewas given consideration throughoul. Ii thus appears that, as a theorelical matler,

the Court took equidistance out of the cellar alld gave some recognition 10 itslogic and importance in maritime boundary ddilllilations of lhe cominelllal shelf,

as well as lhose of exelusivefishery and ecollolllic zones, and of single marilimeboundaries. On the other hand, it felt free to jl'ttisOll equidislance so Ihal il couldcraft an alternative line in the instant case.

In St. Pierre and Miquelon, a case of adjacellry, equidistance was rejecled be-cause it would produce a division of the arca l'Ollsiderably different [rom lhecoastline ratio and the seaward projeetion of the Canadian coastline.91 This tri-bunal also treated the rule of the Continental Shdf Convention as identical to the

rule of general international law governing delilllilation of the maritime boundary'in the continental shelf and superjacent watcrs.

The information collecled in International lItoTitirne Roundaries demonslrales

that equidistan

246 THE AMERICAN JOl'RNAL OF INTERl\ATlONAL L,,"W [\'01.88:227 1994] INTERNATIONAL MARITlME BOL\I'ARY I>ELlMITATJON 247

gard,g4 This conclusion was based on the Coun's viewthat the entitlement of thecoastal state to the continental shelf within 200 namical miles of the shcre is now

based solely upon the distance measured from the coastline. The same has alwa)'sbeen true for.other maritime zones since their delimitation has invariabl)' been afunction of distance measured from thecoastline. Nevenheless, in the Jan Ma)'e1lcase Norway imested considerable effort to establish a distinnion between the

delimitation of lhe continental shelf and ·of lhe 200-nautical-mile fishery zonesclaimed by the parties.95 On the basi s of this distinction, Nom'a)' argued that theCoun may nor find a single maritime boundary for all purposes but must make anindependent anal)'sis for each of the twa zones, eyen if the end result is lhat the

twa boundary lines are geographically identical.96 This argumem was made de-spite the fan that both states had accepted lhe finding in Intemalional MaritimeBoundaries that the strong trend in maritime boundary settlements is toward a

single Hne and that maritime boundaries drawn for one purpose are routinelyextended for all other purposes.97 For its pan .•Denmark requested that the Courtdelimit a single line for the continental shelf and fishery zones of borh slales inlhe area,98 .

Ali the cases prior la Jan J1ayen in"olved one maritime zone only ar the partieshad agreed that a single line would delimit all the relevant zones. For example, inthe St, Pierre and Miquelon case Article 2(1) of the parties' agreement estabHshingthe court of arbitration called for a single delimitation.99 The Court in the JanMayencase had to dec ide for the first time whether it should delimit a single linear separate lines for each zone, even though they might be coincident in the end.

The Court selected the latter course in theory.loo When it actually engaged inanalyzing the facts in the light of the applicable law, the Court found that theanalysis of the boundary for continental shelf purposes was identical to that re.

quired for the fishing zones.101 Thus, zone l was created to encompass the prime

commercial fishery area and was divided to give each state half of that ~me. Theresulting line delimited the fishing zone boundaryas well as lhe continental shelfboundary even though the continental shelf regime does not concem the fisheriesof the superjacent waters. 102De /rujo, the Court appears to have established that a

single maritimeboundary delimits alI zones-continental shelf and fishing zoneor exclusive economic zone-especially in cases involving opposite coasts. Forpraetical reasons states have favored a single line in all but the most unusual

•• 1985 ICJ REP.al 55-56, ~ 77.

•• I Nor. Counter-Memmial, sup'ra nme 30, at 81-92. paras. 279-322; Nor. Rejoinder. supra nole38. al 191-92, paras. 653-57; Ora! Presemalion by Mr. Haug, Agem for Nonvay, Maritime Delimila-lian in !he Area belween Greenland and Jan Mayen (Den. v. Nor.), ICJ Verbatim Record al 17-23

Uan. 15, 1993)[bereinafter Haug Oral Presenlationj; Tresselt Oral Presemation. supra note 39, at25-26,27-32 Uan. 27. 1993).

•• Jan Mayen. 1993 ICJ REP. at 43, para. 9.

• , Colson.supra nOle 52. at 41. 46-50; Den. MemoriaJ. supra note 38, at 113-17, paras. 357-64; INor. Counter-MemoriaJ, supra nOle 30, aI91-92,108-11, paras. 317-22, 373-81; 1 Den. Reply.supra nOle 31, at 170-73, paras. 467-80: :\or. Rejoinder, supra nOle 38, at 191, para. 653.

•• Jan Mayen. 1993 ICJ REP. at 42, para. 9. •• 31 ILM at 1152. para. J.100 Jan Mayen, 1993 ICJ REP. at 56-59. paras. 41-48.

101 Id. at 61-62. 69-70,79. paras. 52-53. 71, 90. Judge Oda argued in bis separate opinion tbat tbeanaIyses shouJd ba\'e been very different. Id. at I lO, para. 73.

102 Convention on the CominemaJ Shelf. supru 1I0te 4, Ans. 2, 3. Jan Mayen. 1993 ICJ REP. at79-81, para. 92. The Cour! presented separate. but para!leI. anaJ)'ses to establisb the equidistamprovisionalline. Sub5equelltly, onlv a single anaIysis was preseme

cases-those in which detailed resource manag('llIent solutions are crafted. II is

praetical for the Court to eSlablish a single lilll' (','cn though some difficulties deJUTe may be presented.

1l1aximum Reach

Another trend that may exist in fact, if nOI III law, is exhibited by lhe tribunals:to deiimit maritime boundaries 50 lhat all di"J"II;llIts are allotted some access to

areas approaching the ma.ximulll distance from Ihl' coast permitted for each zope.

This trend received an early stan in the 19(j~l Norlh SeaContmelltaTSlie7J caseswhere theF ederal Republic of Germany was Id('ascd from the cutoff effect of lheequidistant line generated by the coasts of its Ill'ighbors.lO~ The ultimate solution,

which was based on the Court's judgment, to"k lhe form of an agreement gi"ingthe Federal Republic a seaward window that approaches the middle of the Nonh

Sea and connects directly with the opposite ZOIl('uf lhe United Kingdom.104 Nosubsequent award or judgment has had the ellnl of fully cutting off a disputant'saccess to the seaward limit of any zone. Thm, while Malta was not able to get aboundary.equidistant from the Libyan and \blll'se wasts, it gOl something cIose

to it. 105In the recent Gulf oj FOllseca judgnwlll, the Coun avoided subjeetingHonduras to a cmoff effect in the gulf by findillg a historically eSlablished, undi-vided condominium there. The Coun also reUJgnized a righl of all the liuoral

states to a share 'bf the zones in the ocean seaward of the gulf cIosing line.106In the St. Pierre and Miqueloll case, the lrihullal awarded the smali French

islands close to the coast of Canada a very narrol\' corridor, which it constructed

seaward [rom their coastline to the 200-naUlical-lIlile limit.107 Cenainly, propor-tionality and other considerations could have bccn equally well met by a more

compact and manageable delimitation.108 The Irihunal appeared to place value onaccess to a lengthy distance seaward, even though the corridor may be too narrowfor French commercial fishing. Since the corridor do es not seem lO include a

10. Nortb Sea, 1969 ICJ REP. at 45, para. 8 J.

,o

• 248 --'~ THE AMERIC ..\N jOURNAL OF INTERNATIONAL LAW [Vol. 88:227 1994) INTERNATIONAL MARITIJ\(E BOlJN Ili\ 10' IlEl.IMI1XnON 249

•valuable fishery, the tribunal appears to have focused on the delimitation of area,

as opposed to economic and resource-based interests.I09 Viewed another way, thetribunal denied France a victory in regard to its economic objective-access tosubstantial fisheries. As a consolation, the tribunal awarded France the symboli cvictory of an area reaching seaward toward the 200-nauticaJ-mile limit. This delim-itation may make fisheries and resource management in the area difficult withoutagreements between France and Canada.

The jall Ma)'cn case presented a similar issue. Although both states and theirrelated territories have undisputed access to the fuli 200-nauticaI-mile limit inareas adjacent to the areadisputed in the case, access to the middJe orthe waters

between Greenland and Jan Mayen was at the core of the controversy. Denmark(Greenland) sought a fuli 200-nautical-mile zone in the area directly between thetwo territories, limiting Non\'ay Uan Mayen) to a maximum of about 50 nautical

miles in that area. On the other hand, !'\omay claimed an equidistant line that

would equally split the distance separating tJ.1etwo territories. Denmark's geo-graphical argument was based principally upon ,the short coastline of Jan Mayenand the island's territorial insignificance, as opposed to the extremely long coast-line or eastem Greenland.I1O

It was impossible to give both coastal states access to the fuli 200-nautical-milelimit of th~ir potential entitlements in the disputed area. The 'Court could havegiven each su ch access in different parts of the area, but that solution was noteven mentioned in the Judgrnent. It could have awarded Denmark its fuli 200-

nautical-mile claim, limiting Nonvay to the remainder, but this option was re-jected, not\\ithstanding that this division would have more closely reflected therelative lengths of the relevant coastlines than the solution in the Judgrnent. Therejection of the line based on Denmark's claim apparently stemmed, in part, fromthe desire of the Court not to cut off either state's access to the middle of the

area. III It could even have selected the equidistant line, which, by dafinition,would run through the middle of the waters sep arat ing J an Mayen and Gr~enland,

giving both states equal access to the disputed area. Although the Court adoptedthe equidistant line provisionally, in the end it delimited the boundary by drawinga line between the equidistant line and the 200-nautical-mile line that was the limit

of Denmark's entitlementll2 (line AONM on map 3, p. 232). Thus, Norway was

given limited geographical access to the middJe of the disruted area. This result

109 Se. CeIinas, supra nole 58; and Valerie Hughes, Remarks al "The Law of me Sea: RecemDelimilalion Cases," supra note *, al 227,

The lribunal refused to decide •••helher me French corridor would go beyond 200 naUlica! milesfrom the coastline of Sl. Pierre and Miquelon. This sea•••ard access for Sl. Pierre and Miquelon maynul, however, be unlimited since me area beyond 200 nauiical miles from the French islands is wilhin200 naUlieal miles of the Canadian coastline of No\'a Scolia and Ne•••foundland, Thus, lhe French

zone may beencapsulaled "'imin lhe Canadian coaslaJ zones, Sl. Pierre and Miquelon, 31 ILM al117.1-73. panlS. 75-82.

110 &e Den. ~Iemorial, supra nOle 38, al 95-97, II i-21, paras. 295-301, 365-i8; I Den, Repl}',mpra nOle 31. al 5, 165-i3, panlS. 10,452-80.

III Denmark (Greenland) SOUghlme same marilime boundal)' solUlion maI "'as reached in lhemarilime area belween Iceland and Jan Mayen (Norwa}'), \celand oblained ilS fuli 200-naulieal-mileentitlement and Jan Mayen was leCIWilh the remainder, which was far less lhall ilS fuli 200·naUlical-

mile potentia! emit!emem, Iceland/!l:orway, supra IIOle56; Den. Memorial, .upra 1I00e38, al 91-92,para. 289; Anderson. supra nOle 56. at 1755. The ICj, ho,,'ever, produced a maritime boundary in theGrem/a,uL-jan Maym case that is marginally set alf from me equidiSlant line lO famr the slale Wilh

the Innger rele\ ••nt coastline (Oenmark), just as il did in lhe Libya/Malla case. &e Sco\'azzi. supra

can be explained by the substantial differenct'S in the lengths of the rele\'antcoastlines;113 the presence of pack ice, which ofll'lI prc\'ents vessels from reachingmuch of the area;114 and the limited region in ",hich wlIlmercial fishing has takenplace in recent years.115 Furthermore, in other III'arhy areas both territories have

access to their fuli 200-nautical-mile entitlem('III~. Thes(' facts may make the janAla)'e1l case unusual.

The interests to be served by the idea of maxilIlIIIII reach are not elear. The idea

may be viewed as geographical and status based, IIlt\llling that the coaslal state'soffshore zon es are not limited to areas near the shorl" but, rmher, run a consider-

able distance seaward like those of its bettl'Hilllaled neighbors. It may evenrefleet an interest in ha\'ing rights in an area, ;d'll'il Iilllited, which would permitthe state to participate in intemational arrangl'm(,llls as an equal. This interestmay have motivated the Federal Republic of C('f'III;IIIYin the North Sca Conlinell-

lal Shelf cases. Alternatively, maximum reach may rd;lte to navigation and other

kinds of access to the high seas or the waters of Ihircl states. In that sense it may beconnected to security interests in transportaliolI and lllobility. This was certainlythe interest that was pressed by the United Killgciolll for the Channel Islands inthe Anglo-French case but rejected in the award,

The recent cases do not even acknowledge Ihis consideration, much less its core

values. In SI. Pierre and Miquelon, the long conidor may have served some statusinterests of the French, but this benefit ap]Jl';u'S to be limited. As for French

navigational and security interests, they do nol appear to be threatened, eventhough the islands are deeply tucked into the Calladian cnast. As a matter of law,France's access to and from the islands is proll"l'Ied evt'n without the corridor. IfFren~h security or navigational interests we re al risk, lhe corridor could be ofvalue, but only if it reached the high seas beyond all Canadian zones. As described

in the award, the corridor does not reach thal point since the tribunal believed

that its jurisdiction did not reach further seaward,I16 Although navigation andsecurity were not implicated in thejau Mayen case, status and participation wereimportant to Norway. lt had enjoyed a long hislOIY of resource exploitation in thearea and laid claim to equal status and participation. These interests could be

recognized, however, without granting Norwar rights to the geographic middle ofthe area between Jan Mayen and Greenland. In the Gulf oj Fonseca casc, bothinterests were at the core of Honduras's maritilllt, c1aims. Absent a condominium,the maritime boundary delimitation might well have cut off all Honduran mari-

time zon es at a location substantially landward ol' [he mouth of the gulf, obviatingdistant reach. That result could have preeluded Honduras's exploitation of the

l1Iarine resources immediately outside the gulI' (and perhaps within it) and mighthave created access problems for navigation, O\'t'rllight and security. From theperspective of the two categories of interests scrvnl by maximum reach, the three

cases were correctly decided. lt is unfortunatc Ihal the analyses paid scam atten-lian to this apparently important consideration.

TJu. Wider PeT.lpeclive

Third .slales. Despite the similarities and coll\'l'rgencies of the three new cases

that are the focus of this article, the ICJ and arhilralion paneis often have been

lU Id al fi~)-fi9,p"ras, 61-70. See Ihe discussion ill Ilw su!Jseclion "I'ruponionalil}'," JupraP. 241114 •••••••• ~, ••.

• 250 THF..AMERlC\N JOURNAL OF INTERNATIONAL Lo\W [Vol. 88:227 'iIi,'f.:"1994JINTERNATIONAL MARITlME BOU1'Ili\II.\' OEI./MITATlON 251

•reluctant to look beyond the dispute before them 10 relationships with neapbythird states, region al implications of the delimitation, and other maritime bound-ary settlements involving similar circumstances. This reluctance sen'es the auton-omy interests of states but handicaps the 'community's interests in the coherent

resolution of maritime boundaries and impedes a common-law progression to-ward a more coherent body of maritime boundaI)' law.

Maritime boundaries do not always involve the interes ts of only two states.Often several states have maritime space interests that intersect Ol' overlap witheach othei.Thus, maritime boundaries separating the maritime zones of threestates have been negotiated to meet at tri-points.lI7 Third states have also at-

tempted to inten'ene in adjudications involving two states. Although Italy's appli-cation to intervene in the Libya/Malta case was denied, its efforts we re rewarded

when the ICJ excluded from consideration maritime areas claimed by Italy asagainst the parties to the litigation.1I8 In Maritime Frontier Dispute, the ICJChamber granted Nicaragua the right to intervene as a nonparty.119 While Nicara-gua was permitted to express its views on the issues involving the Gulf of Fonseca,the Chamber held that Nicaragua was not legally bound by the Judgment.120

Most maritime bouhdaries established by agreemem are the product of bilateralnegotiations. Third-party procedures also are usually limited to boundaries be-tween two state parties. Maritime boundaries, however, mus t be seen as well in a

regional context in which other states' maritime zon es may be relevam. Interna-

tional. tribunais have considered the regional comext even when only two stateswere before them. The tribunal in the Guinea/Guinea-Bissau arbitration was

most explicit in this regard.121 The ICJ has considered the region al perspeeth'e inmaritime boundary delimitations in the Mediterranean Sea.122 Nevertheless, theCourthas been reluctant to permit neighboring states to intervene in su ch cases

eventhough the claims of the parties may overlap those ofa third state. m Theonly exception to this practicewas in the Maritime FTOntier Dispute case, whereNicaragua was permitted to intervene under Article 62 of the kJ Statute on thebasis that it had "an interes t of a legal nature which may be affected by theChamber's decision on the question of the existence Ol' nature of a regime ofcondominium Ol' communit}' of interes ts within the Gulf of Fonseca."124 In con-trast, the Court decided that if no condominium were found, the mere fact that a

delimitation might be related to Nicaragua's boundaI)' claims would not be a

'" Su BeazJey, supra note 52. at 243. 256-59; Colson. supra nOle 52. at 41. 61-62.

118 Continental Shelf (Libya/Malta). Application to Imervene. 1984 ICJ REP. 3. 25-27. paras. 41-44 (Mar..21); Libya/Malta. 1985 ICJ REP. at 24-28, paras. 20-23.

"' Marnime Fromier Dispute (El Sal.fHond.), Application to Imervene. 1990 ICJ REP. 92 (Sept.13); Maritime Frontier Dispute. 1992 ICJ REP.al 609-10. par •••. 421-24.

'20 Maritime Frontier Dispule. 19921CJ REP.al 609-10. paras. 421-24.

121 7i I.L.R. at 683-84. 25 IL\12t297-98, paras. 108-10. For eomparable domeSlie U.S. disputesin whieh a regional perspeetive was eonsidered. see Jonathan I. Chamey, The lHlimilalion oj Ltun-alSeaward Boundaries &twun Stales in a IJoJUSticCoIIJex/,75 AJIL 28 (1981).

lU Conlinemal Shelf (Libra/Malta). Application to Inter\'ene. 1984 ICJ REP. 3. 25-27, paras. 40,41.43 (Mar. 21); Libya/Malta, 1985 ICJ REP.al 20-22. 40,50-51, pardS. 14-17.47.69-72; Tunisia/libya, 1982 ICJ REP.al 91. para. 130.

m Cominental Shelf (libya/Malta), AppIicalion 10 Imen·ene. 1984 ICJ REP. 3 (Mar. 21); lib~'a/Malta, 1985 ICJ REP. 13 (June 3).

12. Marilime Frontier Dispute (El SalfHond.), Applieation 10 Intervene, 1990 ICJ REP. al 125,n:Ir:1 7Q

Irlf,.

t~1:

t•

ltl

lll:l

sufficient basis for intervention.125 This laUn delcrmination is consistent withprior judgments denying inten'ention to stale, roncerned about the effects of a

judgment delimiting a maritime boundaI)' bel wlocn their neighbors.126As memioned above, one request to inten't'lIl' did lead Ihe lCJ lo exclude areas

claimed by the third state from the aeljudicat jOli.m Even in lhe exceplional case

where inten-emion may be allowed, unless thel(' is a particular basis for jurisdic-lion, the inten'enor will not be granted pan)' M:llus. The judgmem will not be res

judicata in regard to that third state.128 Al lIu"l, lhe inten'ention provides theCourt and parties with the benefit of the views of the thircistate-withoui-imposingany obligations on it (l,l1uchlike an amicus cUli,w). Since third-party dispute settle-

men t procedures require the consent of thl' p;tnicipating panies, a liberal ap-proach to third-state inten'ention is unlikely. r-;evcrtheless, man}' maritime bound-aries .ought to be seen in a regional context ill order to avoid additional conflict

and confusion.129 Express consideration of lhal context along the lines of theGuillea/Guinea-Bissau award should be emUbll'd and. perhaps. greater encour-

agement should be given to third-state panicip;llion.130 In a sense. the lej pro-motes greater inmlvement by excluding area, ( laill1cd by lhird stales from consid-eration. This praClice could be' seen as de jacit/ IJ1;tkingthe interested third state a

necessary party, and might encourage stale, 111lhe future lO include closely re-lated third states in the dispute settlement plocess.131

O/her bOU7u1arysettlemenls. In the Jan Ma.VI'Ilc;tse belween Denmark and Nor-

way, the former sought to invoke as a specially relevant precedent the maritime

boundary established between Iceland and r-;orway (Jan Mayen) by conciliationand agreement. That boundary allowed Iceland a fuli 200-naulical-mile com in en-

tal shelf and fishery zone between it and Jan Mayen, which limited Nom'a}' to theremaining 106 nautical miles separating them. IW Denmark argued lhat lhe criticalelement s of coa~tal geography in the Greenlalld/Jan Mayen situation were essen-

Il> Id.

••• r.olllinental Shelf (libya/Malta). Applieation to Intl'rvl'nc. 1984 ICJ REP. at 22. 25-27. par dS.35.41-44; Libra/Malta, 1985 ICJ REP. at 24-28. paTa.'>.~()-23; Tunisia/Libya. 1982 ICJ REP. at 91,para. 130.

117 Conlinental SheJf (Libya/Malta). Applieation to Inlcrvl."nc. 1984 ICJ REP. at 25-27, paras, 41-H; Libra/Malta, 1985 ICJ REP. at 24-28. paras. 20-23 .

Il! Marilime Frontier Dispute (El SaI.fHond.). Appliealio/l lU Intervene. 1990 ICJ REP. al 134-36.Il;Im. 9!1-104; Maritime Frontier Dispute. 1992 ICJ REP. al 1;09-10, paras. 421-24.

""1111." ruling denying Italy's request to intervene in Ihl."J.ilryajMalta ease drew five dissems argu-ing for a morc liberal applieation of the righl to intervene II, lIIarit;me boundary eases. See dissems of

JudK.n S•..ue·Camara, Oda. Ago. Schwebel. and Jennings ;11 Cumincnlal Shelf (Libya/Malta), AppJiea-liun lu Im•..rvene. 1984 ICJ REP. at 71. 90. 115, 131. & 141!.respcetively. Su gmeraliy Llri Fislerf)~mru!l(h. Mullilal"ul Dispu/es, ill INTERNATIONALCOURTUf JUSTJCEATA CROSSROADS377 (Lori.'lol•..r 1}~llIro5Ch•..d .• 1987).

"·Guin •..~/Guinea.Bissau, 77 I.L.R. al 683-84, 25 Il.M al 297-98. paras. 108-10.u'1lu- IC] tlitl flfld jui"d •..r lu be required in Case uf Ilu' ""lllC'tary guld remuvcd frum Rome in

llH~ (h,oIy v. fr. UK. U.S.). I'rcliminary Question. I !l!)~ Iq REP. 19 (June 15), where the legalInlrrnlO uf II••.ab•••.m .t~l •.."'o"ld furm thc "ery subjen 1\I~lIerof lhe dccisiun. Su Maril;me Frolllier~pulr (U Sal v. Hond.). Applicalion lu Imen·cllc. J!l'llllq REP.al 114-JG. paras. 52-56. BUllhe("",,, h.u olhe""'i", Ix-

252 THE AMERICA~ JOURNAk OF INTERNATIOl'\AL L\W [Vol. 88:227 1994]INTER:-;ATIO~AL MARITlMEBOU~f)AR\' DELIM1T..i.tION 253

•tially indistinguishable fTOm the Iceland/Jan Mayen situation. m In the face of

those arguments, Non\'ay maintained that the maritime bOllndary agreemem withIceland was based largel)' on political considerations (especially Iceland's heavydependence on fishing and lack of other potemial h)'drocarbon resources) and

other quid pro quos; thus, it should not sen'e as a relevant precedent.134The Court rejected the rele\'ance of the Iceland/Jan Maren settlements as a

basis for delimiting the Greenland/Jan Ma)'en bounda~' bv a 200-nautical-mileline drawn from Greenland's coaslline.135 It did, however, limit the rele\'am area

in the south bv the Icelandic 200-nautical-mile line.136 By rejectingthe-rdeYaIlce ._of the Iceland!Jan Mayen malitime boundary settlemem, as well as the Denmark/Nom'a)' settlemem of the maritime boundary in the Faroe Islandsm and the

Nonvegian actions regarding Bear Island, 138 the Court stressed the uniqueness ofeach maritime boundary delimitation, the freedom of stales 10 use dilferem melh-

ods for dilferem boundaries, and the rights of states 10 lake political consider-ations imo account when reaching a maritime boundal}' settlement.

Even though these are legitimate vaJues, the Court's emphasis on aUlOnom)' anduniqueness may ha\'e gone further than necessal}' in the insIant ease. B)' caslingalf highl)' similar seltlemems for aJl aspects of its analrsis, the Court further

diminishes the role of state practice in this area.139 Even though e\'el}' boundal}'has unique elements and political considerations do imrude, prior settlememsmay help the Court appreciate the vaJues and methods taken imo accoum insimilar siluations.

By basing its decision to disregard the Iceland/Jan Maren agreement in the

context of the Greenland/jan Mayen displlte on the ground thal it was the pro d-uct of a political compromise, the Court necessarily accepts the proposilion that

all maritime boundary settlemems are irrele\'ant to other delimitations. AlthoughfactuaJ and political circumstances do vary, there are also common elemems

among maritime boundary agreements that will help 10 inform diplomats, judgesand arbitralOrs called upon 10 resolve col1tro\'ersies and 10 restrain states from

overreaching.140 The ICJ shouldacknowledge this value Wilh a view 10 funhering"the ruleof law; which is to say that its application should dis!>lay consistency and

'" Boweu OraJ Presemation, supra nole 39, al 19-23 (Pl. II.B); Lehman Oral Presemalion, supranOle 39, al 22-25,

". See I Nor. Coumer-Memorial, supra nole 30, al 71-72, 160, paras, 250-52, 553; Tressell OralPresemation, supra nole 39, al 46-51 (pl. 4); Haug OraJ Presemalion, supra nole 95, al 34, 66-67(jan. 18,1993); Tressell Ora! Presemation, supra, al 13-17 Uan. 27, 1993).

". Jan Ma~'en, 1993 ICJ REP, al 76-77, para, 86.". Id. at 47, para. 18. The panies were in agreemem",ilh respecl 10 lhis Iimilalion.'" Id. at 55, para. 37. .38 Id. al 76, para. 85.". Arguabll', maritUne boundary selllemenlS would become more difficull if lhe Court drew more

from slate practice in the course of deciding marilime bounda'}' dispules, The precedem-sellingimpact would add a complication to an a1ready-complicated issue. To the comTa')', stale praclice as akey elemem in international lawmaking is penasive and has nOI been considered an unacceplable!hreal 10 negOliated settlemenlS of imernational disputes, In faCl, !he resulling focus on slate prac licema)' heJp to define !he limits of dispUles and tbe comeXI for !heir solutions. Thal may limit lhe

number nf dispules thal wiUarise and the range of differences bel ••.een lhe parties. "hile facililalinglhe developmem of solulions.

••• Thus, in !be Nonh Sea aJI the other coaslal SGllesbad an imeresl in limiting the seaward spreadand reach of !be FederaJ Republic af Gennan)·. Only international la••.declared b)' lhe ICJ in theNorthSea CoJllinnUal SM/f cases lept those interests in check and preserved Germany's righu, Seetht" thrff Tf"onn'i h,' :\noersnn. in l'TFRNATlONAl ~h.RrnMF ROIT'NnARIF"C;; Ulh,." nnl,. 1(lo!

~::...'

a degree of predictability; even though it loole, Wilh. particularity 10 the peculiarcircumstances of an instant case, it aJso loob heyond it lo principles of moregeneral application. "141

From the perspective of coastal geograph)', the Iceland/Jan Mayen maritimeboundary was indubitably relevant to the Gum/mul/jan MaJe1I dispute. In theIceland case, the vel}' short coastal front of Jall Mayen faeed the substantiallylarger coastal front of Iceland. Iceland obtained ils fuli 200-nauticaJ-miIe emitle-ment and Nonvay reeeh'ed the remainder. nie faet lhat \he Icelandic coastline

facing the area is shorter than the relevant Gn:cnland coastline suggests that theDanish claim againsl Noma)' may be geographilall)' slronger than Iceland's. Sincecoastal geography is preponderant in maritilllc boundary delimilation law, theIceland settlement should have been more lhoroughly considered in the Green-land case, notwithstanding the potential relevalll'c of other eonsiderations.142

The ICJ and other tribunaIs sitting on marililllc boundal}' mauers ought tobegin to bring together the lines of state praeticc. While slate practice has beenput fonvard in man)' maritime boundal}' cases, lribunals have often treated that

information superficiaJly.I~3 Thus, in jan A1aJen Ihc parties ad\'erted 10 a varietyof maritime boundal}' settlements that the)' mailllained were representalive of

state practice in suppon of their positions.l41 Thc)' had a fuli opponunit}' 10comment on each other's evidence.145 This acl'CSS to the relevant stale practiceplaced the Court in an ad\'antageous position lo follow up its declaralion in lhe

Libya/Malta case with results predicated UPOII an acknowledged anal)'sis of thestate praetice. By this step the ICJ would havc promoted both auention to priorpractice and a convergence of state praclices lhal would funher the "consistencyand . . . predictability" 146 previously endorscd b)' Ihe Court. !ts failure to do soin the jan Mayen case is disappointing.

In theory, the Court is called upon to draw connections between state praeticeswhen it searches for cuslomary international law. A fundamental assumption ofthat law is that linkages can be drawn between aUlonomous aetions of states. Thisis difficult, indeed, since aJI actions of states have political and other dimensions.

But those dimensions do not necessarily disqualif)' them from sen'ing as evidenee

of state practice. Increasingly, the Coun's judgments avoid anaJ)'zing state prac-tice before pronouncing on customary law. Rather, as I argued in a prior issue ofthis joumal, it has tumed to other, more readily available information 10 find

generaJ international law, whose establishment is not necessaril)' dependent onpOsitive state practice.147 But general international law derives from resolutions uf

", I.ibya/Malta, 1985 ICJ REP,at 39, para. 45.

••• E.g., lhe dislance belween Ice1and and Jan Maren is gTl·"I~r. lhe socioeconomic conditions ofIlel;lIld and easlem Greenlanci are diflerent, and lhe sell1e'm"n! was the product of a cnn{'ilialion thatresuhed in the establishment af a joint de"e1opment zon", 11"/;lIld/Norway, supm note 56; Andersoo,'Upra 11011' 56, al 1755.

••• For a sludy uf the international marilime boundarv' !>eUit'1Il"tlls, see INTERNATIONALMARITIMf.8oUNDARtES.supm nole 2. .

••• Oen. Memorial, .,upra note 38, al 91-95, paras, 289-93; I NoT. Counter.,\femorial, supm not •.~O, al 17[>-83, para." 619-58.

••• I Den. Repl~', "upro nOle 31, al 116-108. paras. 21f,-!IX; Nor. Rejoind"r, JUP'" nole 38. al1-10-18, par•••. l62-!l6; noweli Oral Presemalion, supra no" :l!l, al 31-35 (pl. III!; BrowniiI' ara!l'rnentiltion •• upra note 71, al i2-86 (Jan. 19, 1993); 80 •••·(·11 Oral Presemalion. supra, at 63-68U~ :l.S, 1993); Brnwnli" Orotl Presentalion, .upra, al 4i-l!1 (J;1II.27, 1993).

Uby:t/Maha, 1985 ICJ REJ'. at 39, para. 45.In Jflf1 ••l ••••n r CIUrlIJOO\. , .••• ~..••.. 'Ol l .•

• 254 THE AMERICA.'\JOURNALOF INTERNATIOSALLAW [VoI. 88:227 1994] INTERNATIONALMARITIMEBOUNI>"l{Yl>ELlMITATlON 255

••

in~ernational organizations,etreaties and other consensuHeporting deelarationsthatcontain normative rules.Unfortunately, in maritime boundary law and prac-tice no such articulations exisL In their absence the Court has linie choice but to

consider the evidence of state practice to flesh out the relatively general state-ments of the law. The state practice will not readily give guidance to the Court.The international maritime boundary study made elear how difficult this taskmay be.U8

Nevertheless, the Court should begin to take account of the rich information

available to it about the maritime boundary settlements. !t may find that in sima-otions highly similar to the one before it certain types of solutions are common Ol'trends exist that present themselves as appropriate for use in the instant case.

Reliance on that information would strengthen the authority of the Court's judg-ments and at the same time promote convergence toward more coherent mari-

time boundaIJ' law. !ts own cali for a degree of predictability and certainty inmaritime boundaIJ' law makes it incumbent on the Court to facilitate this result

through an increasing convergence of its judgments and reliance on the maritimeboundaries established by agreement whenever possible.

Compulsory Jurisdiction oj the ICJ

Finally, perhaps the element of the Jan Mayen case that might have been mostdamaging to the advancement of maritime boundary law and practice was theeffort 'by Norway to establish that the ICJ should exercise prudence and not

delimit the boundary between Jan Mayen and Greenland.149 This appeal wasbased on the fac[ [hat the case was brought unilaterally by Denmark under the

compulsory jurisd.iClion of the Court and not on the basis of a contemporarymutual agreement. Non,ay argued that maritime boundary delimitation is so dif-

ficu1t, sa technical, and sa fraught with danger that [he Court should only deelarethe principles on which the delimitation should be based. It should avoid delim-

iting the boundaI1' itself, absent mutual agreement bythe coastal states to submit

that veI1' dispute to the Court for delimitation. Norway also argued that interna-

tional tJ1a.,ritimeboundary law requires states only to setqe their maritime bound-ariesby agreement andnotaccording to any specific rule ar principle.lso

The Court rejected these arguments and proceeded to delimit the boundary. !tfound a duty todecide the dispute on the basis of the applicable international law.

Thus, theobligation to establish the maritime bound~' by agreement was con-

struedasmerelya prcliminaI}' obligation; once efforts to negotiate a settlementwereexhausted, the suhstantive internationalmaritime boundary law became ap-plicahle and provided the rules pursuant to which the boundary must be delim-

ited. Intheend, the Judgmem defined the·maritime boundary line by straightlines connecting poims identified by geographical coordinates 50 that onI)' techni-cal questions remained.lsl .

Il. Su Chame,', SllJnD nOle3. al xlii.Il' I Nor. Coumer-Memorial.supra nOle30. al 197. para. 704; Nor. Rejoioder.• upra mile 38. at

192. para. 654; HaugOr.!IPresenwion••upra nOle95. al 12-14 (jan. 15. 1993); id. al 57-59 Uilll.27. 1993).

,•• OraI PresenlationbyMr. Higbet.Agemfor Norway.MaritimeDdimitationin lhe Area belweenGreenIand andJan M~'Cn(Den.~. :\or.). ICj VerbalimRecord at 58-78 Um. 2 I. 1993).

•••Jan Mayen,1993 ICJ REP.al 7S.81. paras. 89, 93.

t

lIlI,l

Had the Court accepted Nonvay's argument Ihal Ihe onI y nOlm of international

law applicable to international maritime boundary delimitations was the duty toattempt to negotiate an agreement, it would havl" diminished the influence of themaritime boundary jurisprudence that the COUT!imd ad hoc tribunais have devel-oped over the last quarter of a century. Thill jurisprudence would have been

relevant only to the extent that the contesting' slates al,'Teed to apply it to theirspecific dispute. If successful in its argument, Norway would also have remm'edsome of the important benefits of international "cljudication from the field. The

Court's availability to render maritime boundary delimitations has...sen'ed to pro- .mate boundary settlements. !ts compulsory jurisdiclion. when available, and its

willingness to make delimitations without spec:i,tl restrictions have encouragedstates to settle their maritime boundary disputes "nd. failing that, to invoke third-party processes. In no prior case in which the mcrits were reached d.id [he Coun

face insoluble difficulties when rendering a mari[ime boundaI1' delimitalion.IS2

That SUccess was not due to the fact that the ('ases were brought pursuant tospecial agreements. In the past, the Court has eng"ged cxpens to assist il in [he

technical execution of the delimitations as lJ(~('cssary. and il may do so in thefuture. There is no practical reason why the Court should withdraw from thesematters in cases brought under its compulsory jurisdiclion and il was wise to haverejected such arguments in this case.

IV. CONCLUSJON

The recent trio of international maritime bCJUndary decisions is addressed to

fundamental maritime boundary law, practice and procedure. The decisions carryforward the common-law approach to that law. They mark importam advancesand refinements in the law, which, in tum, will promOle the settlemem of mari-time boundary disputes. For the most part, they h"ve focused attention on coastal

geography and have analyzed that information by use of increasingly structured

and uniform procedures and techniques. This progress is strengthened by theICJ-endorsed merger of the equidistancejspecial circumstances rule of the 1958

"" In three pre,ious marilimejurisdiction cases. lhe juri.diclion of lhe Coun wasinmked in theal>ll;nceof comemporaryagreememsbelweenlhe SlaleseunCl'rnedlo liligatelhe disputesbefore (heICJ. Only the Aegean Sea Continental Shelf case (Greeee v. Turk.). 1978 ICJ REP.3 (Dec. 19).COlICerneda marilime boundary delimitationbelwecnwaslal Slales.Turkey refused to appear bUlconununkaledil. objcclions lOlhe Coun. The Court foullo lhal ajoilll commumquerelied upon byGfftce did 1101 con'lilute a specialagreememlo submit lhe buundarydispule 10 lhe Coun and lhatcumpuls"ryjurisdiClionwasabsenl.The FUheriesease(UK". Nor.). 1951 ICJ REP.116 (Dec.18), wasbl'Ullllhlby lhe Uniled Kingdomunder lhe compulsoryjnriwiClion uf lhe ICJ. whichwasnol con-In!ed by Norway.In di'pule wasnOl lhe marilime b

•256 THE AMERlCAN JOURNAL or INTERNATIONAL LAW [Vol. 88:227

•Continental Shelf Convention and the relevant circumstancesjequitable resultrule of contemporary general international law, the rehabilitation of the equidis-tant line, and the de JMto application of the single maritime boundary. The Courtis now in a position to make further contributions that will promote greaterconsistency and predictability in these matters.

Unfortunately, the most recentJudgrnent, in thejan Mayen case, may also beinterpreted to emphasize the uniqueness of each delimitation more than the com-monalities among the delimitations. Even the role of proportionality is less elearafter this decision because of the unusual way that consideration was applied.Thus, progress may have been a~complished at the cost or some recidivis~m-.~In-th-'e--------future, the International Court of Justice should not shrink from its unique rolein this area as a primary vehiele for law development.153 Of course, the mostdifficult task for the Court and other tribunals is to find the optima! balancebetween the inherent individuality of every case and the consistent application ofgenerall)"relevant procedural and substantive law. That balance can be reached ina more principled way if the foeus of attention is on coastal geography and meth-ods that help to analyze those facts. Such analyses may draw upon previouslyestablished maritime boundaries in similar circumstances as well as principles andmethods of analysis developing from the maritime boundary jurisprudence. Alithings considered, this recent trio of maritime cases represents a positive devel-opment.

"'Judge Weeramanu)", in his lenglhy separale opinion, focused primarily on equilY in interna-tionalla ••., and especially in marilime boundary la••..He argued that equit)' is a legitimate and tradi.tional basis for decisions in adjudications of international disputes. While he also recognized thal lheCoun plays an inlponant legislative role in international marilime boundary law, he argued. that il istllOeariy for convergence toward more detenninative law.Jan Mayen, 1993 ICJ REP.at 214. 276-77,paras. 3. 240 (Weeramantry. ].. sep. op.). There are grounds to demur. In the .Iast50 years. there havebeen more separate international adjudicalions and arbitrations on this subject of public international

lawthan on any other. Furthermore. approximately one-third of the potential maritime .boundarieshave already been seuJed by agreement or otherwise.lf now istoo early, whenwould.it betime?

l~...·... --

THE FOREIGN SOVEREIGN IMMUNITIES ACT ANDPUBLIC DEBT LITIGATION: SOME FIFTEEN YEARS LATER

By Georges R. D,.J(/1/1Ile*

The decision of the United States Supremt' eourt in Republic oj ArgentillQ v.Weltover, Inc.1 is an invitation to reassess (hl' impaet of the Foreign SovereignImmunities Act-(FSIA)2upon public debt liligation.' In contrast with other activi-

ties of foreign states, which have been the ohject of extensive and continuinglitigation, barely two dozen cases involving public debt disputes have been re-ported since the FSIA took effeet. Whether lhis situation is attributable to thecare with which transnational loan documenls are usually drafted or to someother reasons, ineluding possibly the contemporary tendency to rely on debt re-scheduling as a means of remedying difficult ~ilUali(llls,is an interesting matter ofspeculatio.n·Wha!cc,'er,~e exp1anatio.n for l/Wrd;\(ivdy limited number of publicdebt cases, Weltover can be expected to have a decisive impact upon future liti-gation.

Subject to further analysis, a brief summary of the issues involved in Weltovermay help set the discussion in its proper perspective. In 1982, as a result of a

foreign exchange crisis in the Republic of Argclltina, lhe Central Bank of Argen-tina (Banco Central), as fiscal agent for Argl'ntina, issued new types of instru-ments called "Bonods" to refinance existing debl. The BOllods provided thatpayment would be made in dollars on scheduled dates in 1986 and 1987, withspecified interest, and that payment would be made at the option of the creditorin either New York, London, Frankfurt or Zurich. When the foreign exchangecrisis worsened, Argentina and Banco Central, acting pursuant to a govemmentdecree and an order from the Ministry of Economy, Ilotified the holders of Bo-nods that they were unilaterally rescheduling p;lYlllents.The plaintiffs (two Pana-manian corporations and a Swiss bank) brought an aetion in the United StatesDistrict COUrtfor the Southern District of New York to. compel the defendants,Argentina and Banco Central, to honor their original debt obligations. The de-fendants moved to dismiss for lack of subject matter and personal jurisdictionunder the FSIA, and Jorum non conveniens. Ali motions were denied.4 Appeal wastaken but was limited to the issue of subject matter jurisdiction, The U.S. Court ofAppeals for the Second Circuit affirmed.5 The U.S. Supreme Co.urt granted cer-tiorari and affirmed the judgrnent of the coun of appeals.6

• Counsel, Curtis. Mallel-Prevost, Colt & Mosle; Conllerly. Senior Legaj Adviser, Imernauonal

~mre for Seulemem of Inveslmem Disputes (ICSID). The Olulhor is indebted lo his colleague.Josepho. Piuurro of Cunis. Mallet-Prevost, for his useful comlll("ms on the manuscript of this article.

I 112 S,Ct. 2160 (1992),31 ILM 1220 (1992), summanUtIi" 86 AJIL 820 (1992). Another impor-'''''' decition of the U.S. Supreme Coun. which does nol wncem lhe financial field. is Saudi Arabia \'.Nebon, 11:1S.CI. 1471 (1993). For a comment. see Moml'" I.eil(h, 87 AIII. 442 (1993).

• 2f1lJ.S.C. 111330-1332. 1391. 1441, 1602-1611 C1!IHH).

• .\H Gtt.rgn R. Delaume, Pub/ie Debl and St1lJn'ngn /mmU1lilv: TM Fortign Sov~reign Jmlllu"ili~skt -/ /976,71 AJIL 399 (1977). .

: Well~, Inc:.v. RepuMic oC ArRemina. 753 F.Supf' l :!ll) (S.D.N.Y. 1991).fi.' F2d •.••• /'),1 r; .. 1/\1'.\