UNIVERSITY OF LAGOS

SCHOOL OF POSTGRADUATE STUDIESFACULTY OF LAW

JIL 803:LAW OF THE SEA

TOPIC: THE NORTH SEA CONTINENTAL SHELF CASES REVISITED.

BEING A SEMINAR REQUIREMENT IN PARTIAL FULFILMENT FORTHE AWARD OF LL.M DEGREE

PRESENTED BY:

CHUKS-NWOLISA CHIBUZOR ENZOR.MATRICULATION NO-149061021.

LECTURERS:

1.PROF AKIN OYEBODE2.MRS. OLAJUMOKE ODUWOLE

5/1/2015

TABLE OF CONTENT

INTRODUCTION

CHAPTER ONE: THE NORTH SEA CONTINENTAL SHELF CASES REVISITED.

CHAPTER TWO:OTHER CONTINENTAL SHELF/MARITIME DELIMITATION CASESREVISITED

CHAPTER THREE: COMPARISM BETWEEN THE DECISION IN THE NORTH SEACONTINENTAL SHELF CASE AND THE DECISION IN OTHER CONTINENTALSHELF/MARITIME DELIMITATION CASES.

CHAPTER FOUR: THE NORTH SEA CONTINENTAL SHELF CASES AND THE UNITED STATES CONVENTION ON THELAW OF THE SEA (UNCLOS)

CONCLUSION.

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I NTRODUCTION. Much of the exploration and exploitation of the marine naturalresources are centered on the continental shelf. The continentalshelf is extremely rich in various resources. Maritime boundarydelimitation and especially continental shelf delimitation anddelineation are one of those subjects of international law that hasgained importance in the last decades.1 It has for a long time nowbecome a lively issue because of the establishment by states ofeconomic rights over areas of the sea, which could be said beganwith the Truman proclamation of 1945 claiming the exclusivejurisdiction and control over the shelf region on the basis ofcontiguity to which other Latin American States immediatelyfollowed suit2

The law on maritime boundary delimitation, especially continentalshelf delimitation is one of the most complicated topics ofmaritime law which is crystalized in the United Nations Conventionon the Law of the Sea (UNCLOS)3. The Delimitation of maritimeboundaries in particular the delimitation of the seabed and subsoilin conformity with international law as it is reflected in theUNCLOS may create overlapping claims requiring maritime boundarydelimitation4 hence we have the North sea Continental Shelf case andother Continental Shelf cases. It becomes imperative to resort tocase law on the delimitation of ocean space to see whether or notthese issues have been addressed as the preamble to UNCLOS III hasaffirmed that all matters not regulated by the convention continueto be governed by the rules and principles of general internationallaws5. Although majority of these cases are based on UNCLOS I, theyhave enunciated principles of international law far beyond what thelaw conceived.6 Although they have never been codified, they remainvalid starting points for the law on delimitation7

1www.un.org/depts/ios/nippon/unnff_programme_home/fellows_pages/fellows_papers/ dehghani_1809_iran.pdf(assessed 28th April,2015)2I.A Ayua, “Delimitation of Maritime Boundaries in the light of the new law of the sea” an article in the book “The New Law of the Sea and the Nigerian Maritime Sector-issues and prospectsfor the new millennium”(The Nigerian Institute of Advanced Legal Studies, 1998) pg. 60&62.3 UNCLOS I (1958) and UNCLOS III (1982)4www.un.org ... Op.cit (assessed 28th April,2015, 14:14).see also article 6 of UNCLOS 2 (1958) and articles 15,76 and 83 of UNCLOS 3 (1982)5 I.A.,Ayua., OP.Cit @676 Ibid.7AdedolapoAkinrele SAN “Nigeria Oil and Gas Law” (OGEL, 2005) pg.36.

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This brief paper is centered on the North Sea Continental ShelfCases, comparism with other continental shelf cases and the impactof these cases on the Law of the Sea.

CHAPTER ONETHE NORTH SEA CONTINENTAL SHELF CASES REVISITEDFEDERAL REPUBLIC OF GERMANY/DENMARK; FEDERAL REPUBLIC OFGERMANY/NETHERLANDS 8 This is the locus classicus of all the continental shelf cases thatset the tune for all other continental shelf cases. It is mostpopularly known as the North Sea Continental Shelf cases and it isthe hall mark of this paper.BRIEF FACTS OF THE CASEThe issues before the International Court of Justice (ICJ) in thiscase was on the delimitation of the maritime boundary betweenGermany and Denmark on the one hand and Germany and Netherland onthe other hand, the delimitation of the continental shelfboundaries between these countries and also for the court to decidewhether the principle of equidistance applied in the delimitationof their continental shelf boundaries was applicable.9Both Denmarkand the Netherlands submitted an individual dispute to the ICJinvolving claims to the North Sea Continental Shelf which wasjoined and decided as one by the ICJ. The parties sought a methodby which the continental Shelf could be fairly delimited and agreedthat the court was not to physically apportion claims but merelyprescribe a method for the parties to follow10Demark and Netherlandsargued that the method of equidistance should be implemented assupported by the Geneva convention(UNCLOS I-1958) which states that8North sea continental shelf, judgment, I.C.J. Reports 1969, pg 3. www.icj-cij.org/docket/files/52/5563.pdf , www.sovereigngeographic.com/maritime_pdf/1969-germany-den-neth-eng.pdf, courses.kvasaheim.com/ps376/briefs/ojf38491/brief4.pdf (assessed 24th April,2015) 9www.sovereigngeographic.com .,Op.citpg 42.10 Courses.kvasaheim.com .,op.cit

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each state claimed all areas closer to itself than any other state.This was rejected by Germany who argued that the principle ofequidistance was unfair as Germany was allotted an exceptionallysmall part of the continental shelf because of the concavity of itscoastlines.Germany opted instead for the apportionment of the shelfthat was proportional to the size of each adjacent states land11

DECISIONThe Court after making a wide ranging analysis of the issuesinvolved held as follows by eleven votes to six:

a. The Geneva Convention is not binding on Germany as it did notratify it

b. While the Geneva Convention calls for the rule ofequidistance, the stipulations outlined in the GenevaConvention would have allowed Germany opt out of this area, soits membership in the treaty is a moot point.

c. Both in the Truman Proclamation and the Geneva Convention theequidistance method is seen as a last resort rather than anapriori rule and rejected claims which included equidistancein international customary law.

d. Germany’s claim of proportional apportionment was alsorejected as it would intrude on the natural claims due tostates based on natural prolongations of land.

e. The parties must draw up an agreement taking intoconsideration both the maximization of area andproportionality and was to be based on equitable principles.12

Although the decision in this case was somewhat inconclusive, theopinions in the case are very significant to international lawnonetheless. PRINCIPLESThe following principles of international law were also establishedin this case.

a. The international law elements of the case are the power oftreaties, customary international law and the principle ofequidistance in claims to the sea territory

b. The Rule of law upheld in the case was the Geneva Convention.

11www.icj-cij.org ., Op.Cit12 See the citation under footnote one for the full case and judgment.

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c. There are several principles in this case manifested in theGeneva Convention. The Court rejected the equidistance methodbut upheld the idea of equitable principles which maximizesland claims based on several co-operative factors.13

IMPACTThe ruling of the court in this case had a terminal effect on theequidistance method of boundary delimitation and its utilizationthrough the Geneva convention. Of course this has no effect on therest of the Geneva convention but merely serves in directs statesto look at customary international law and cooperative action.It should be noted also that this judgment contained many importantpoints including the key concept of equity, the factor ofproportionality between areas of shelf and lengths of coasts, theconcept of minor coastal features which distort median line and theidea of natural prolongation of land mass.14

CHAPTER TWOOTHER CONTINENTAL SHELF/MARITIME DELIMITATION CASES REVISITED.It is pertinent in this chapter to also revisit other continentalshelf cases decided after the North sea continental Shelf case,this is because even though it is well known that the internationalcourt of justice does not follow precedents, it is pertinent toalso examine these cases to enable us do a comparism of theachievements and shortfalls of the NorthSea continental Shelf casein the light of its contributions to the law of the sea.

1. AFRICAN CASES.

13courses.kvasaheim.com.,ibid14www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_conf2/ANDERSON.pdf (assessed 4th May, 2015)

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LIBYAAN ARAB JAMAHIRIYA/MALTA (LIBYA v MALTA) 15 This was one of the continental shelf cases that stressed thecentral importance of achieving an equitable result through theapplication of all methods and principles of maritimedelimitation.16

DECISIONThe Court held by fourteen votes to three as follows:

a. The delimitation is to be effected in accordance withequitable principles and taking into account of all relevantcircumstances so as to arrive at an equitable result

b. The area of continental shelf to be found to appertain toeither party not extending more than 200 nautical miles fromthe coast of the party concerned, no criterion fordelimitation of shelf areas can be derived from the principlesof natural prolongation in the physical sense.

c. In consequence, an equitable result may be arrived at bydrawing as a first stage in the process, a median line atevery point of which is equidistant from the low water mark ofthe relevant coast of Malta and low water mark of the relevantcoast of Libya, that initial line being then subject toadjustment in the light of the circumstances and factorslisted by the court in the course of the Judgment which are:i. The general configuration of the coasts of the parties,

their oppositeness, and their relationship to each otherwithin the general geographical context.

ii. The disparity in the lengths of the relevant coasts ofthe parties and the distance between them

iii. The need to avoid in the delimitation any excessive disproportion between the extent of the continental shelf

15Continental shelf(Libyan Arab Jamahiriya/Malta)Judgment, I.C.J. Reports 1985. P.13. www.sovereigngeographic.com/maritime_pdf/1985-libya-malta-english.pdf , www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf.pg.80-88(assessed 24th April,2015)16 I.A Ayua, “Delimitation of Maritime Boundaries in the light of the new law of the sea” an article in the book “The New Law of the Sea and the Nigerian Maritime Sector-issues and prospectsfor the new millennium”(The Nigerian Institute of Advanced Legal Studies, 1998) pg. 71.The issue before the honourable court in this case was that of delimitation of the continental shelf between the States of Libya and Malta. The parties agreed as to the sources of Law applicable to the case but disagreed as to the way in which the court was to indicate the practical applicationof those principles and rules. Malta wanted the court to draw the delimitation line but Libya wanted the court to only pronounce itself on the applicable principles and rules. The Court considered that it was not barred from indicating a delimitation line after considering the special agreement of the parties from which it derived its jurisdiction.

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areas appertaining to the coastal state and the lengthof the relevant part of its coast, measured in generaldirection of the coastline.17

IMPACTIn keeping with the new regime of the law of the sea noconsideration was given to natural prolongation as a factor in thedelimitation of continental Shelf. Serious doubt was cast on suchfactors as geology, geomorphology, economics, population, etc onmaritime delimitation. However, it added that geological orgeomorphological arguments would be relevant in determining theseaward limit of the continental shelf beyond 200miles.18 Theequidistance method of delimitation was the main focus of thisjudgment as it was the recommended method in the Judgment.

TUNISIA v LIBYA ARAB JAMAHIRIYA (TUNISIA v LIBYA) 19

The International Court of Justice(ICJ) was once again asked totake into account equitable principles, the relevant circumstancesand recent trends admitted at the third United Nations Conferenceon the Law of the Sea in the maritime delimitation between thestates.20

DECISIONThe court decided with ten votes to four as follows:

a. The delimitation is to be effected in accordance withequitable principles and taking account of all relevantcircumstance

b. The area relevant for the delimitation constitutes a singlecontinental shelf as the natural prolongation of the landterritory of both parties so that in the present case there isno criterion for delimitation of shelf areas can be derivedfrom the principle of natural prolongation as such

17See footnote 15 for the full facts and reasoning of the court as well as the court’s decision.18I.A Ayua .,Op.Cit pg. 71 19 Continental shelf (Tunisia/Libya Arab Jamahiriya) Judgment, I.C. J. Reports 1982,p.18 , courses.kvasaheim.com/ps376/briefs/anwiiburnbrief4/pdfwww.sovereigngeographic.com/maritime_pdf/1982/-tunisia-libya-english.pdf. www.un.org/depts/los/dalos_publications/publicationtexts/digest_website-version.pdf.pg. 60-66.20 I.A Ayua .,Ibid pg.69By a special agreement of 1977, the parties requested the court to indicate the principles and rules of international law which they should apply in negotiating a treaty on the delimitation of the area of the continental shelf appertaining respectively to the parties. The court was specifically requested to take account of equitable principles and the relevant circumstances which characterize the continental shelf as well as the newly accepted trends in the United Nations Conference on the Law of the Sea.

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c. In the particular geographical circumstances of the presentcase, the physical structure of the continental shelf areas isnot such as to determine an equitable line of delimitation.

d. The practical method for the application of the aforesaidprinciples and rules of international law in the specificsituation of the present case was the separation of thedisputed area in two sectors as determined by the court.21

IMPACTBoth Tunisia and Libya are now bound by the decision of the courtmade in this case, it affects their jurisdiction over areas ofwater which may claim as their own and assert certain rights overit22. The court also rejected the arguments for naturalprolongation as being inadequate. It rejected equidistance as notbeing “a mandatory legal principle” or a method having someprivileged status in relation to others. This case highlights theneed for a process of analyzing the relevant factors so as tobring about an equitable result23.

GUINEA v GUINEA-BISSAU 24 This was an arbitral dispute before an international arbitraltribunal established in 1983 for the delimitation of theterritorial waters, exclusive economic zone and continental shelfof these two states.DECISION

a. The 1886 Convention between France and Portugal did notestablish a maritime boundary between their respectivepossessions in West Africa.

b. Additional protocols and documents played an important role inthe interpretation of the above mentioned convention.

21 ibid22 courses.kvasaheim.com ., ibid23 I.A Ayua., Ibid24 Reports of international arbitral awards,(1983) , Vol. XIX, pp.148-196.www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf.pg.75-79(assessed 24th April,2015). France and Portugal signed a convention for the delimitation of their respective possessions in West Africa in 1886.Portugal when an oil concession was granted to it and later Guinea and Guinea-Bissau proceeded to issue laws defining their territorial waters. The areas which these two states claimed to exercise jurisdiction over overlapped.

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c. The arbitral tribunal went ahead to delimit areas pertainingto the states25.

IMPACT

This case stressed the central importance of achieving an equitableresult through the application of all methods and principles ofmaritime delimitation.26

CAMEROON v NIGERIA: EQUATORIAL GUINEA INTERVENING 27

The outcome in this decision was a great loss to Nigeria,Cross-Rivers State ceased to be a littoral state. It should also be notedthat the main issue before the International Court of Justice wasMaritime Boundary Delimitation.

DECISION

PRELIMINARY OBJECTIONS 28

The Court struck out Nigeria’s preliminary objections and held thatit had jurisdiction to adjudicate upon the dispute between the

25 See footnote 24 for the full decision of the tribunal and their reasoning.26 I.A Ayua ., Ibid27Land maritime boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening)Judgment, I.C.J Reports 2002,p.303.www.ajol.info/index.php/ajcr/article/download/59305/47603 www.icjcij.org/docket/files/ 94/13803.pdf www.ijil.org/courses/documents/ CaseNoteonLandandMaritimeBoundaryBetweenCameroonandNigeria.pdf (assessed 24th April,2015) In March 1994,Cameroon filed an application(subsequently amended with no objection) with the International Court of Justice(ICJ) requesting that it determine the question of sovereignty overthe oil-rich Bakassi Peninsula and a parcel of land in the area of Lake Chad both of which were in dispute between Cameroon and Nigeria. Cameroon also asked the court to specify the land and maritime boundary between thetwo states and to order an immediate and unconditional withdrawal ofNigerian troops from alleged Cameroonian territories in the disputed areas. Cameroon relied on the declarations made by parties under article 36(2) of the ICJ statute as the basis of the Court’s jurisdiction to which Nigeria raised seven preliminary objections relating to the court’sjurisdiction. Equatorial Guinea filed an application for permission to intervene (which was granted) in order to protect its legal rights in the gulf of guinea and to inform the court of its legal rights and interests so that those would remain unaffected when the court addressed thequestion of the maritime boundary between Cameroon and Nigeria.28 Delivered on June 11, 1998

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parties on their land and maritime boundary and that theapplication as amended by Cameroun was admissible.

The Court held that it lay within the discretion of the court toarrange the order in which it would address the issues relating tothe title of the Bakassi Peninsula and to the delimitation of themaritime boundary between the states.

MERITS 29

By thirteen votes to three, the court decided thus:

a. The Court upheld the validity of the declarations of the Headsof States of Nigeria and Cameroun in which the maritimeboundaries between the two states was agreed upon.

b. It adopted the equidistance line of delimitation for theseaward maritime boundary which in its view produced anequitable result.

c. The delimitation for most parts respected oil installations.d. The Court preserved Equatorial Guinea’s rights as well as

those of Nigeria and Cameroon in regard to their delimitationwith Equatorial Guinea.30

2. NON-AFRICAN CASES

FRANCE v UNITED KINGDOM 31

The focus of this case was on the application of those factors tothe delimitation of the Western Approaches between France and theUnited Kingdom (both were parties to the 1958 convention). Althoughthis case was decidedbefore the North Sea continental shelf case,the Court of Arbitration accepted the concept of naturalprolongation as a dominant factor in the delimitation ofcontinental shelf boundary. It also accepted as a fundamental normthat delimitation must be reached by the application of equitable

29 Delivered in October,200230 See foot note 27 for the full facts of the case, reasoning and decisions of the court.31 International Law Reports, Vol. 54, pp. 6-138 and pp.139-213www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf.p.51-59

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principles and that the appropriateness of any of the principleseffecting an equitable delimitation must be determined in the lightof all relevant circumstances.32

CANADA v UNITED STATES OF AMERICA (GULF OF MAINE) 33

The equitable approach received a bigger boost by the ICJ in thiscase. The case emphasized the central importance of the duty on theneighbouring states to settle maritime boundary delimitation byagreement following negotiations conducted in goodfaith and withthe genuine intention of achieving a positive result. Delimitationis to be effected by the application of equitable criteria and withthe use of practical methods capable of ensuring an equitableresult.34

CANADA v FRANCE (SAINT PIERRE AND MIQUELON)35

The major issues arising in this case included Maritimedelimitation of opposite or adjacent coastlines, treaties, enclaveand frontal projection theories, principle of proportionality,equidistance, fisheries, mineral resources, equity and dependantterritories.36The court of arbitration decided by a vote of three totwo that delimitation be based upon certain geographical factorsand also conducted a test of proportionality to determine theequity of the delimitation upon geographical criteria and held thatthe delimitation based on geographical criteria was indeedequitable.

DENMARK v NORWAY (GREENLAND AND JAN MAYEN) 37

32I . A Ayua., Ibid.33International Law Reports, Vol.71, p.74.www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf. p. 67-74 .The parties decided to refer to the court a long-standing dispute between them concerning the maritime delimitation of the fisheries zones and continental shelf in the gulf of maine.34I.A Ayua.,Ibid p.703531 International Legal Materials (1992), p.1145-1219.www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf.p.89-9436Ibid. France and Canada made known their position in the delimitation of the continental shelf between Canada and St. Pierre and Miquelon. while France believed in the equidistance theory, Canada believed in the special circumstances rule.

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The case was about the delimitation of the continental shelf andfisheries zones of Denmark and Norway, two states with oppositecoasts.38The Court decided by a vote of fourteen to one that thelimits of the continental shelf and fisheries zone was defined tothe north by the intersection of the line of equidistance betweenthe two coasts and on the south by 200miles limit around Iceland asclaimed by Iceland, between the points of intersection of thatlimit with the two said lines39

ERITREA AND YEMEN 40

Eritrea and Yemen signed an agreement under which they submittedtheir dispute to the tribunal for maritime delimitation,equidistance, baselines, islands, proportionality andfishing.41Taking into account articles 15, 74 and 83 of UNCLOS thedelimitation of their boundary was decided by the principle ofequidistance.

QATAR v BAHRAIN42

The issues before the court in this case included sovereignty overlands, straight lines, maritime boundary delimitation, singlemaritime boundary, equidistance line, special circumstances. TheCourt in this case delimited the continental shelf and theexclusive economic zones of the states in line with theequidistance principle making also making consideration for thespecial circumstances rule that may lead to the adjustment of theline drawn across the boundary.43

37 ICJ: Reports of Judgments and Advisory Opinions and Orders, 1993, p.38-314.www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf. p.95-11038Ibid.The maritime area subject to the proceedings was that part of the Atlantic Ocean lying between the eastcoast of Greenland and the island of Jan Mayen.39 Ibid.40International Law Reports, Vol.119, p.417.www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf p.111-11741 Ibid.42ICJ: Reports of Judgments, Advisory Opinions and Orders, 2001 p. 40-461.www.un.org/depts/ios/dalos_publications/publications texts/digest_website-version.pdf.p.118-12943Ibid.

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ROMANIA v UKRAINE (THE BLACK SEA CASE-2009) 44

On 16 September 2004, Romania brought a case against Ukraine beforethe International Court of Justice (ICJ) relating to a disputeconcerning the establishment of a single maritime boundary betweenthe two states in the Black Sea, thereby delimiting the continentalshelf and the exclusive economic zones (EEZ) appertaining to them.Romania requested the ICJ to draw the boundary in accordance withinternational law and, specifically, the criteria laid down inArticle 4 of the Additional Agreement between Romania and Ukraine,which entered into force in October 1997.The public hearings in thecase concerning Maritime Delimitation in the Black Sea (Romania v.Ukraine) were concluded on 19 September 2008. The Court deliveredits judgment on 3 February 2009, establishing a single maritimeboundary in line with the equidistance principle delimiting thecontinental shelf and exclusive economic zones of Romania andUkraine.45The maritime boundary was traced according to a method theInternational Court of Justice developed, based on internationallaw, in dealing with similar cases in its over 60 years ofactivity.46

44http://www.icj-cij.org/docket/files/132/14987.pdf http://www.haguejusticeportal.net/index.php? id=6185 (assessed 11th May,2015)45Ibid.46http://www.mae.ro/en/node/2094 (assessed 11th May, 2015)

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CHAPTER THREE

COMPARISM BETWEEN THE DECISION IN THE NORTH SEA CONTINENTAL SHELFCASE AND THE DECISION IN OTHER CONTINENTAL SHELF/MARITIMEDELIMITATION CASES.

As stated in the preamble to chapter two, the International Courtsare not known to follow precedents, each time a case is beforethem, new principles of international law emerge and especially inthe area of maritime delimitation. No two cases applied exact samemethod of boundary delimitation, but it can be said that during thetwenty years following the decision in the North Sea ContinentalShelf cases, different courts and tribunals were preoccupied withtwo concepts of maritime delimitation which are NATURALPROLONGATION and EQUITABLE PRINCIPLES as well as the interplaybetween customary and conventional law47however, the cases betweenDenmark v Norway, Eritrea v Yemen and Qatar v Bahrain have gone along way towards reducing uncertainty in the maritime boundarydelimitation laws and principles created in the North SeaContinental Shelf cases and the other earlier decided cases bytrying to merge customary and conventional law together. 48

47www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_conf2/ANDERSON.pdf (assessed 10th May,2015)This resultedin difficulty in offering confident legal advice to Governments as to the outcome of boundary litigation.48 Ibid.

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Since the decision in the North sea continental Shelf cases,Customary International Law can be said to provide a few basislegal principles which lay down guide lines to be followed inMaritime boundary delimitation which is achieving an equitablesolution49 When charged with maritime delimitation, the courts andtribunals in the various cases have adhered to multistage processeswhich can be summarized thus:

Identification of the “relevant area” Construction of a provisional delimitation line, usually based

on the principle of equidistance Examination of the provisional (Equidistance) line in the

light of equitable factors (relevant circumstances) so as todetermine whether it is necessary to adjust or shift that lineto produce an equitable solution.

Application of a final proportionality check.

According to jurisprudence, and upon a closer study of all thesecases, no privileged status should be assigned to any particularmethod of delimitation and there is no presumption in favour of theprinciple of equidistance (North Sea continental shelf cases,Tunisia v Libya, Guinea v Guinea-Bisseau). The equitableness of theequidistance method of delimitation is considered particularly aptfor states with opposite coasts (Libya v Malta) and it was alsofound acceptable in Cameroun v Nigeria and the Black Sea case. Butit is less so in situations of adjacent coasts.50 All in All it isdiscovered that the equidistance principle has not been verypopular in the international community as a means of achieving anequitable result. As was found by the ICJ in the North Seacontinental Shelf cases neither state practice nor the opinionjuris of the states were sufficient for the equidistance principleto become a customary rule or to give it priority in respect of any

49www.iho.int/mtg_docs/com_wg/ABLOS?ABLOS_conf6/s6p1-p.pdf (assessed 10th May, 2015). See the cases in chapter two.(Cameroun-Nigeria,Libya/Malta, Tunisia/Libya, Guinea/Guinea-Bisseau.50Ibid.

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other methods. Therefore most times other equitable principlessupercede the principle of equidistance.51

The natural prolongation concept is one of the most entangledprinciples of the customary solution. Taking into account thedevelopment of the delimitation question of the continental shelf,the natural prolongation concept is found to have two interrelatedconnotations. The first introduces the natural prolongation conceptas a general principle which constitutes the basis of title of thecontinental shelf doctrine (entitlement and delimitation matters)-the North Sea continental shelf cases, Here natural prolongation isseen as a purely legal concept which is first and foremost for thebenefit of all the states.52 The second is that natural prolongationconstitutes a geographically relevant circumstance in certain caseswhere it is proven by the existence of a fundamental naturaldiscontinuity of the relevant continental shelf, here the conceptof natural prolongation as a relevant circumstance is based onlegal implications as well as on geological facts- Tunisia v Libya,United Kingdom v France, Libya v Malta (dissenting opinion of JudgeOda), Guinea v Guinea - Bisseau53

The courts also both in the North Sea continental shelf cases andthe other continental shelf cases have applied equity as a part ofinternational law and a rule of law for the delimitation of thecontinental shelf. The Judgments in these cases emphasize that lawand equity are close because they start from and give expression tothe same idea of justice even though it is not a method ofdelimitation, it is an aim to be borne in mind in effectingdelimitation and does not provide precise principle or criteria forthe achievement of an equitable result as the geographical featuresof each delimitation case vary greatly.54

51www.ejil.org/pdfs/7/3/1369.pdf (assessed 10th May, 2015).52 Ibid.53 Ibid.54www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/ dundua_0607_geogia.pdf (assessed 10th May,2015). The concept of proportionality is also one concept that has been applied in virtually all the cases before it by the ICJ but there is no particular method of application.

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All the cases also talk about relevant circumstances, theserelevant circumstances can be divided in two parts.

a. The Geographical Circumstances, the most relevant whichconsists of the coastal configuration and the consideration ofislands as well as the length of coast. These factors weretaken into account by Judges in all the cases and are closelyrelated to the concept of proportionality.

b. The Non Geographic circumstances which include Geology andGeomorphology (this played a big role in the North SeaContinental Shelf cases and other continental shelf cases),Socio –economic circumstances which may play a role inmaritime negotiation process between States but are consideredlargely irrelevant by the Courts as they do not depict equity,Conduct of the States prior to the delimitation dispute, andHistoric title.55

Finally, it should be noted that the only case that departed fromthe normal two stage approach maritime delimitation approachestablished in the North Sea continental shelf cases and compliedwith in the subsequent cases was the Black Sea case where the courtintroduced a three stage approach to maritime delimitation.

establish provisional equidistance line; consider whether there any factors which call for an

adjustment of the equidistance line to reach an equitableresult;

verify that that line does not lead to an inequitable resultby reason of any marked disproportion between the ratio of therespective coast lengths and the ratio between the relevantmaritime area of each State by reference to the delimitationline.56

Nonetheless it has been shown that the principles propounded in theNorth Sea continental Shelf cases has over the years played an55Ibid.56http://cil.nus.edu.sg/wp/wp-content/uploads/2012/12/LeoBernard-Effect-of-Islands-in-Maritime- Delimitation-19-Nov-2012.pdf (assessed 11th May, 2015). Note the concept of disproportionality introduced in this case against the normal concept of proportionality.

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influential role in the other cases on maritime delimitation anddelimitation of the continental shelf, although there has beendepartures owing to the fact that the ICJ is not bound byprinciples but the root of these principles remain essentially thesame.

CHAPTER FOURTHE NORTH SEA CONTINENTAL SHELF CASES AND THE UNITED STATESCONVENTION ON THE LAW OF THE SEA (UNCLOS)

Two sets of rules and principle are available in international law.The first is Article 6 of the 1958 law of the sea convention(UNCLOS I) which provides thus:

1. “Where the same continental shelf is adjacent to the territories of two or more Stateswhose coasts are opposite each other, the boundary of the continental shelfappertaining to such States shall be determined by agreement between them. In theabsence of agreement, and unless another boundary line is justified by specialcircumstances, the boundary is the median line, every point of which is equidistant fromthe nearest points of the baselines from which the breadth of the territorial sea of eachState is measured.

2. Where the same continental shelf is adjacent to the territories of two adjacent States,the boundary of the continental shelf shall be determined by agreement between them.In the absence of agreement, and unless 4 another boundary line is justified by specialcircumstances, the boundary shall be determined by application of the principle ofequidistance from the nearest points of the baselines from which the breadth of theterritorial sea of each state is measured”57.

This is also known as the conventional solution and introduces atri point set of rules and principles namely; a boundary lineeffected by:

Agreement Special circumstances Equidistant principles.58

57Convention on the continental shelf 1958.http://maritimeinfo.moi.gov.tw/marineweb/pdf/D01E.pdf (assessed 11th May, 2015)58http://www.ejil.org/pdfs/12/1/505.pdf (assessed 11th May, 2015)

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The Second is the customary solution stated by the internationalcourt of justice in the North Sea continental shelf cases. Wherethe ICJ found that Article 6 of UNCLOS I was inapplicable in thecase and eventually declared that no single method of delimitationwas likely to prove satisfactory in all circumstances. The courtwent ahead to establish two kinds of solution.

To first attempt meaningful negotiations based on equitableprinciples and taking into account all relevant circumstances

Seek a judicial or arbitral award based on the equitableprinciples and the relevant circumstances.59

While the equidistant principle has not been popular in theinternational community as a means of achieving an equitable resultfor the delimitation question of the continental shelf. The degreeof emphasis on the equidistance principle as a conventionalobligation is mitigated by the inclusion of the “specialcircumstances” clause in the conventional solution.60 The customarysolution on the other hand establishes some principles according towhich delimitation process is carried out which are Equitableprinciples, equity, equitable solution and natural prolongation.The conventional solution can be said to be regulatory while theconventional solution is explanatory. Though co-existing, both theconventional approach and the customary approach are interrelatedhence to interpret one of them reliance must be placed on theother.61

In a bid to actually bring these two different approaches onmaritime delimitation together, the United Nations Convention onthe Law of the Sea 1982 (UNCLOS III) has managed to assert thesubstantial elements of the said two sets of principles and rules.

Article 15 of UNCLOS III states:

59ibid60ibid61Ibid.

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“Where the coasts of two States are opposite or adjacent to each other, neither of the two Statesis entitled, failing agreement between them to the contrary, to extend its territorial sea beyondthe median line every point of which is equidistant from the nearest points on the baselinesfrom which the breadth of the territorial seas of each of the two States is measured. The aboveprovision does not apply, however, where it is necessary by reason of historic title or otherspecial circumstances to delimit the territorial seas of the two States in a way which is atvariance therewith”.62

Article 76 also states:

“The continental shelf of a coastal State comprises the seabed and subsoil of the submarineareas that extend beyond its territorial sea throughout the natural prolongation of its landterritory to the outer edge of the continental margin, or to a distance of 200 nautical miles fromthe baselines from which the breadth of the territorial sea is measured where the outer edge ofthe continental margin does not extend up to that distance”.63

Article 83 (1-4) states also:

1. “The delimitation of the continental shelf between States with opposite or adjacentcoasts shall be effected by agreement on the basis of international law, as referred to inArticle 38 of the Statute of the International Court of Justice, in order to achieve anequitable solution.

2. If no agreement can be reached within a reasonable period of time, the Statesconcerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit ofunderstanding and cooperation, shall make every effort to enter into provisionalarrangements of a practical nature and, during this transitional period, not tojeopardize or hamper the reaching of the final agreement. Such arrangements shall bewithout prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relatingto the delimitation of the continental shelf shall be determined in accordance with theprovisions of that agreement”.

Since the equidistant principle was not generally acceptable inlight of the decision in the North Sea continental shelf cases

62United Nations Convention on the Law of the Sea, 198263ibid

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there was no alternative but to include the delimitation questionof the continental shelf among the hardcore issues at the UNCLOSIII. The negotiations were centered on how much weight was to begiven to the equidistance principle. There were two factions in thedebate, those for the equitable principle (North Sea Continentalshelf cases) and those for the equidistance principle (UNCLOS I).The compromise between these two factions resulted in Article 83(1) of the UNCLOS III.64

However, reference by Article 83 (1) to article 38 of theICJ statutemeans that the UNCLOS added nothing new to the already existing rulesand principles but rather made reference to them. International Law inno way considers the equidistance method to be more than one methodamongst many that could be used where appropriate by means ofsatisfying the requirements of equity.65 In my opinion however, itcould be said that the decision in the North Sea continental shelfcases impacted greatly on these provisions of the UNCLOS III as theprovisions tally with the holdings in the cases.

CONCLUSION.

A review of the North Sea continental shelf case and maritimedelimitation jurisprudence since 1969 in this paper has shown thatsince the decision in the North Sea continental Shelf cases thoughnot bound by precedent, Judicial and Arbitral bodies in theInternational Community have sought to develop an approach thatwould accommodate the need for flexibility that would meet therequirements of equity.

Initial rules for maritime delimitation prior to the North Seacontinental shelf cases favoured the equidistance principle butlater developed resistance following the decision in the North SeaContinental Shelf cases despite the fact that the equidistance rulewas enshrined in article 6 of the 1958 United States Convention onthe Law of the sea (UNCLOS I) and emphases was placed ondelimitation in accordance with equitable principles either by

64http://www.ejil.org/pdfs/12/1/505.pdf (assessed 11th May, 2015)65 Ibid.

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agreement or by the intervention of a third party (the ICJ orArbitral Tribunal).

The United Nations Convention on the Law of the Sea 1982 (UNCLOSIII) also dropped explicit reference to equidistance in exchangefor the concept of equitable solution in the process of drawing anappropriate maritime boundary line this can be said to be aninfluence caused by the decision of the law of the sea in the NorthSea Continental Shelf cases.

It would be remiss of me to end this paper without pointing outthat while the principle of equidistance formerly employed wasstraight forward even though it might not lead to a justiciablesolution for all the parties involved, it was easier to apply butthe use of equitable principles permits the court or the parties touse a wide range of factors to be weighed against each othertherefore making it extremely difficult to offer any precise amountof principles that might be applied to future disputes this isbecause despite the attention given to the equitable principles,its exact scope is still not clear.

REFERENCES

STATUTES

1. Convention on the continental shelf 1958. 2. United Nations Convention on the Law of the Sea, 1982

LAW REPORTS

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1. ICJ: Reports of Judgments and Advisory Opinions and Orders, 1993

2. International Law Reports, Vol.1193. ICJ: Reports of Judgments, Advisory Opinions and Orders, 20014. 31 International Legal Materials (1992)5. International Law Reports, Vol.716. International Law Reports, Vol. 547. Land maritime boundary between Cameroon and Nigeria (Cameroon

v Nigeria: Equatorial Guinea intervening)Judgment, I.C.J Reports 2002,

8. Reports of international arbitral awards,(1983) , Vol. XIX,9. Continental shelf (Tunisia/Libya Arab Jamahiriya) Judgment,

I.C. J. Reports 198210. Continental shelf(Libyan Arab Jamahiriya/Malta)Judgment,

I.C.J. Reports 1985. 11. North sea continental shelf, judgment, I.C.J. Reports 1969

TEXT BOOKS

1. I.A Ayua, “Delimitation of Maritime Boundaries in the light ofthe new law of the sea” an article in the book “The New Law ofthe Sea and the Nigerian Maritime Sector-issues and prospects for the new millennium”.

2. AdedolapoAkinrele SAN “Nigeria Oil and Gas Law”

WEBSITE

1. http://www.ejil.org/pdfs/12/1/505.pdf 2. http://maritimeinfo.moi.gov.tw/marineweb/pdf/D01E.pdf 3. http://cil.nus.edu.sg/wp/wp-content/uploads/2012/12/

LeoBernard-Effect-of-Islands-in-Maritime-Delimitation-19-Nov-2012.pdf

4. www.un.org/depts/los/nippon/unnff_programme_home/ fellows_pages/fellows_papers/dundua_0607_geogia.pdf

5. www.ejil.org/pdfs/7/3/1369.pdf 6. www.iho.int/mtg_docs/com_wg/ABLOS?ABLOS_conf6/s6p1-p.pdf 7. www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_conf2/ANDERSON.pdf 8. http://www.mae.ro/en/node/2094

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9. http://www.icj-cij.org/docket/files/132/14987.pdf 10. http://www.haguejusticeportal.net/index.php?id=6185 11. www.un.org/depts/ios/dalos_publications/publications

texts/digest_website-version.pdf12. www.ajol.info/index.php/ajcr/article/download/59305/47603 13. www.icjcij.org/docket/files/94/13803.pdf www.ijil.org/courses/

documents/CaseNoteonLandandMaritimeBoundaryBetweenCameroonandNigeria.pdf

14. courses.kvasaheim.com/ps376/briefs/anwiiburnbrief4/pdf15. www.sovereigngeographic.com/maritime_pdf/1982/-tunisia-libya-

english.pdf16. www.sovereigngeographic.com/maritime_pdf/1985-libya-malta-

english.pdf17. www.icj-cij.org/docket/files/52/5563.pdf 18. www.sovereigngeographic.com/maritime_pdf/1969-germany-den-

neth-eng.pdf, 19. courses.kvasaheim.com/ps376/briefs/ojf38491/brief4.pdf20. www.un.org/depts/ios/nippon/unnff_programme_home/

fellows_pages/fellows_papers/dehghani_1809_iran.pdf

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