287_ki Beom Lee - The Flexibility Of The Rules Applied In Maritime Boundary Delimita

Third Year PhD Presentation Series

Ki Beom Lee

-­ Background Document for 4th March 2011 Presentation -­

The Flexibility of the Rules Applied in Maritime Boundary Delimitation

Ki Beom Lee School of Law, the University of Edinburgh

This paper attempts to provide an overview of my research for discussion among those who will be kindly attending my presentation on 4th March 2011. Firstly, I will present background information in the first section of this paper. I will then address the structure of my thesis and illustrate key points relating to its original contribution to public international law in the following section, entitled Development of the Thesis. Lastly, I will confirm more precisely what that original contribution to international law is in the third section of the paper, headed Original Contribution to Public International Law.

I. Introduction 1. The Meaning of a Maritime Boundary “The land dominates the sea” is a famous maxim in international law.1 According to this saying, a State having sovereignty over its own territory can, undoubtedly, claim a right to a maritime zone connected with its coastline. Therefore, one of the major concerns of States was how far the territorial sea could extend under the pre-­1945 international law of the sea which only recognised a dichotomy between the territorial X

I.C.J. Reports 2001, p.97, para.185. X

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sea and the high seas. Since the issuing of the 1945 Truman Proclamation, coastal States have started to actively claim new maritime zones different from the territorial sea. These contentions have led to the development of novel concepts like the continental shelf and the exclusive economic zone (hereinafter called “EEZ”) in international law.2 Consequently, the boundary of the territorial sea no longer functions as the one and only maritime boundary. Currently, States can establish several maritime boundaries, such as the boundary of the continental shelf or that of the EEZ. Why is the concept of a maritime boundary important? The reason is that a maritime boundary functions as the limit of the extent in which a State can enjoy maritime rights pertinent to a maritime zone. At the moment, it should be noted that maritime boundaries are different from maritime limits.3 A maritime limit means the limit of the maritime spaces over which a State can exercise the relevant jurisdiction. A State can establish its own maritime limits relating to the territorial sea or the EEZ under the principles and rules of international law. As a result, a maritime limit has a kind of ‘unilateral’ character.4 On the other hand, a maritime boundary indicates a sort of ‘division’ in relation to the maritime zones of another State. As such, it is said that maritime boundaries entail a ‘bilateral’ or ‘multilateral’ nature.5 2. The Meaning of Maritime Boundary Delimitation 2.1. The Need for Maritime Delimitation States can establish their own maritime limits (except for the outer limits of the continental shelf beyond 200 nautical miles (hereinafter called “NM”)), in the absence of adjacent or opposite States, under the principles and rules of international law. However, since almost all States (except for land-­locked States) have adjacent or Y

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R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester: Manchester University Press, 1999), pp.142-­145, 160-­162. Nuno Marques Antunes, Towards the Conceptualisation of Maritime Delimitation (Leiden: Martinus Nijhoff Publishers, 2003), pp.6-­7. Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (Portland: Hart Publishing, 2006), p.8. Ibid. Y

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opposite States, there is a strong possibility that the ‘overlapping’ of maritime entitlements between two or more States can exist. What is more, States are likely to claim their maritime zones towards maximising their own interests.6 Thus, maritime boundaries need to be completely clear. 2.2. The Characteristics of Maritime Delimitation Maritime delimitation means to establish a maritime relationship between two or more States where their maritime entitlements overlap. If such overlapping did not exist, our concerns would be limited to the establishment of maritime limits. In this respect, it is said that maritime delimitation has an ‘international’ character.7 Furthermore, the delimitation of maritime boundaries is ‘constitutive.’8 In other words, the aim of international courts and tribunals dealing with the matter of maritime delimitation is not to declare a priori one and only one delimitation line but to arrive at an ‘equitable result’ through the application of equity. This indicates that there could be many delimitation lines that are unseen at sea. 3. Efforts to Make Rules Governing Maritime Boundary Delimitation 3.1. Law-­making by Treaties in Relation to Rules Governing Maritime Delimitation The delimitation of maritime boundaries has been carried out through ‘bilateral’ agreements between the States involved. It is true that quite a few bilateral agreements concerning maritime delimitation can be found. 9 However, in seeking to discover customary international law with regard to maritime delimitation, many analyses of these agreements have provided disappointing indications. Firstly, there is no overwhelmingly accepted rule relating to maritime delimitation between adjacent States.10 Secondly, even in the case of opposite States, it is not easy to identify the

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Ibid., p.2. Ibid., p.8;; I.C.J. Reports 1982, pp.66-­67, para.87. _ Tanaka, supra note 4, pp.12-­14;; Antunes, supra note 3, p.7. ` Malcolm D. Evans, “Maritime Boundary Delimitation: Where Do We Go from Here?,” in David Freestone, Richard Barnes and David M. Ong (eds.), The Law of the Sea: Progress and Prospects (Oxford: Oxford University Press, 2006), p.137. XW Tanaka, supra note 4, pp.134-­136. ^

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existence of opinio juris.11 Lastly and more importantly, States are reluctant to consider a particular rule as obligatory because they argue for the ‘peculiarity’ of relevant circumstances, including geographical factors, in the course of negotiations to conclude an agreement.12 States have also endeavoured to make rules dealing with maritime delimitation through ‘multilateral’ treaties, such as the 1958 Geneva Convention on the Continental Shelf and the 1982 United Nations Convention on the Law of the Sea (hereinafter called “UNCLOS”). Nevertheless, the International Court of Justice (hereinafter called “ICJ”) was reluctant to admit that the rule governing maritime delimitation included in the 1958 Geneva Convention on the Continental Shelf had been transformed into a rule of customary international law. Moreover, the UNCLOS only states that the final aim of maritime delimitation with respect to the continental shelf and the EEZ is an ‘equitable solution (equitable result)’ despite the lengthy discussions of the Third United Nations Conference on the Law of the Sea. 3.2. Law-­making by International Courts and Tribunals in Relation to Rules Governing Maritime Delimitation For the reasons listed above, the finding (or the making) of rules concerning maritime delimitation has been actively undertaken by international courts and tribunals rather than through State practice. In fact, not only have there been many international judgments or awards since 1969, but some cases are still pending in international courts or tribunals.13 However, the making (beyond the finding) of rules by international courts and tribunals may bring about many criticisms because the role of international courts and tribunals is, basically, to make an interpretation and application of an applicable law in a specific case.14 XX

Ibid., pp.137-­138;; Antunes, supra note 3, p.412. Prosper Weil, “Geographic Considerations in Maritime Delimitation,” in Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries (Dordrecht: Martinus Nijhoff Publishers, 1993), Vol.I, pp.123, 130. XZ Territorial and Maritime Dispute case (Nicaragua/Colombia) and Maritime Dispute case (Peru/Chile). The former was submitted to the ICJ on 6 December 2001 and the latter was submitted to the ICJ on 16 January 2008. See http://www.icj-­cij.org/docket/index.php?p1=3&p2=1. X[ Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, XY

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Indeed, it is controversial whether the ICJ found or made a rule governing maritime delimitation in the 1969 North Sea Continental Shelf cases. In these cases, the Court implied that a rule of customary international law with respect to maritime delimitation included the concept of ‘equitable principles.’ This rule, as defined by the ICJ, differed from the rule stipulated in the 1958 Geneva Convention on the Continental Shelf. 3.3. Two Rules Governing Maritime Delimitation As has been mentioned above, there have been considerable attempts to make rules governing maritime delimitation. Unfortunately, these attempts led to the formulation of two rules in relation to the delimitation of maritime boundaries: the Equidistance-­ Special Circumstances rule and the Equitable Principles-­Relevant Circumstances rule.15 The conflict between these two rules has interfered with consistent State practice and the identification of opinio juris. 3.3.1. The Equidistance-­Special Circumstances rule The Equidistance-­Special Circumstances rule was first articulated in the 1958 Geneva Convention on the Continental Shelf. Article 6(2) of the Convention declared that: “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 another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. (Italics added.)”

At this point, it should be noted that, in the absence of an agreement between the States involved, the equidistance method cannot be applied without regard to special circumstances. That is why this rule has been called ‘the Equidistance-­Special Circumstances rule.’16 In spite of the codification of the Equidistance-­Special Circumstances rule, the ICJ 2007), pp.266, 272. Evans, supra note 9, pp.143-­147. X] See I.C.J. Reports 2001, p.111, para.231. X\

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refused to regard this rule as a rule of customary international law in the 1969 North Sea Continental Shelf cases.17 Following these decisions, there were a number of opinions contesting and attempts to oppose the mandatory application of this rule in maritime delimitation, particularly with regard to the continental shelf and the EEZ. Disagreements and debates between effected States during the Third United Nations Conference on the Law of the Sea explicitly evidence this objection.18 One group called the ‘Equidistance Group’ was an ardent supporter of the Equidistance-­Special Circumstances rule, whereas another group called the ‘Equitable Principles Group’ strongly disagreed with this rule.19 Despite lengthy debates, the two groups could not reach a conclusion. Accordingly, the President of the Conference had no choice but to propose a new formula which did not refer to the two terms, ‘equidistance’ and ‘equitable principles’ with regard to the delimitation of the continental shelf and the EEZ.20 The formula only established the ‘final’ aim of maritime delimitation, which it termed the achievement of an ‘equitable solution (equitable result).’ In fact, some States did not accept the Equidistance-­Special Circumstances rule because the equidistance method might produce an inequitable result in a certain case. In contrast, other States argue that this rule can guarantee ‘predictability’ concerning maritime delimitation. 3.3.2. The Equitable Principles-­Relevant Circumstances rule The term, ‘equitable principles’ can be found in the 1945 Truman Proclamation. The Proclamation provided that: “In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. (Italics added.)”21

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I.C.J. Reports 1969, pp.46-­47, para.85. Antunes, supra note 3, pp.84-­87. X` Tanaka, supra note 4, pp.44-­46. YW Antunes, supra note 3, p.87. YX Presidential Proclamation No.2667 (28 September 1945) concerning the Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, in United Nations Legislative Series, Laws and Regulations on the Regime of the High Seas, Vol.I (New York: United Nations Publications, 1951), pp.38-­40. X_

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However, the meaning of equitable principles was equivocal at that time. The 1958 Geneva Convention on the Continental Shelf entered into force on 10 June 1964. In the 1969 North Sea Continental Shelf cases, it was an important issue to decide the legal character of the equidistance method because Germany was not a party to this Convention at that time. The ICJ concluded that the application of the equidistance method was not obligatory in all given cases, pointing out as part of its main reasoning that such a method could produce an inequitable result.22 Instead, the Court willingly accepted the concept of equitable principles as part of customary international law.23 According to the Court, the concept of equitable principles is an element ‘within’ a rule of customary international law governing the delimitation of the continental shelf between adjacent States.24 However, the concept of equitable principles did not have any content at that time. The ICJ went on to state that “… in short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, … , (b) … taking all the circumstances into account, equitable principles are applied, … (Italics added.)”25 The Court implied that the ‘application’ of equitable principles should be carried out by ‘taking all the circumstances into account.’26 In addition, the ICJ distinguished equitable principles from equity, referring to “giving some degree of indication as to the possible ways in which it [equity] might be applied in the present case. (Italics added.)”27 It provided ‘some degree of indication,’ such as some factors to be taken into account. The Court then suggested three factors to be taken into account in arriving at an equitable result: (a) the general configuration of the coasts, as well as the presence of any special or unusual features;; (b) the physical and geological structure, as well as the natural resources, of the continental shelf concerned;; and (c) proportionality.28 YY

I.C.J. Reports 1969, p.37, para.59. I.C.J. Reports 1969, pp.46-­47, para.85. Y[ Hugh Thirlway, “The Law and Procedure of the International Court of Justice (Part One),” BYIL, Issue 60 (1989), p.52. Y\ I.C.J. Reports 1969, pp.46-­47, para.85. Y] I.C.J. Reports 1969, pp.46-­47, para.85. Y^ I.C.J. Reports 1969, p.50, para.92. Y_ I.C.J. Reports 1969, pp.53-­54, para.101. YZ

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In sum, in the 1969 North Sea Continental Shelf cases, the ICJ concluded that maritime delimitation can be performed by the application of the Equitable Principles-­ Relevant Circumstances rule.29 3.3.3. The Assimilation of the Two Rules Starting from the 1993 Jan Mayen case, the ICJ has taken less and less consideration of the meaning of equitable principles. The reason is that the Court concluded that, with regard to the delimitation of the continental shelf between opposite States, the Equidistance-­Special Circumstances rule formulated in Article 6 of the 1958 Convention on the Continental Shelf is not materially different from the Equitable Principles-­Relevant Circumstances rule which existed in customary international law.30 Furthermore, the ICJ assimilated the two rules regarding the delimitation of the EEZ, stating that “That statement of an ‘equitable solution’ as the aim of any delimitation process reflects the requirements of customary law as regards the delimitation both of continental shelf and of exclusive economic zones.”31 Thus, whereas the earlier cases had rejected the obligatory character of the equidistance method and tried to clarify the meaning of equitable principles, the 1993 Jan Mayen case intended to deny the substantial difference between the two rules and to justify the ‘provisional’ use of the equidistance method.32 Subsequently, both the 2001 Maritime Delimitation and Territorial Questions (Qatar/Bahrain) case and the 2002 Land and Maritime Boundary (Cameroon/Nigeria) case crystallised this logic of assimilation. For instance, in the 2001 Maritime Delimitation and Territorial Questions (Qatar/Bahrain) case, the ICJ stated that “The equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable principles/relevant circumstances rule, as it has been developed since 1958 in case-­law and State practice with regard to the delimitation of the continental shelf and the exclusive economic zone, are closely

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I.C.J. Reports 1969, pp.53-­54, para.101. I.C.J. Reports 1993, pp.58-­59, para.46. ZX I.C.J. Reports 1993, p.59, para.48. ZY Malcolm D. Evans, “Maritime Delimitation after Denmark v. Norway: Back to the future?” in Guy S. Goodwin-­Gill and Stefan Talmon (eds.), The Reality of International Law (Essays in Honour of Ian Brownlie) (Oxford: Oxford University Press, 1999), p.160. ZW

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interrelated. (Italics added.)” 33 Likewise, the 2002 Land and Maritime Boundary (Cameroon/Nigeria) case of the Court mentioned that “They [The applicable criteria, principles and rules of delimitation] are expressed in the so-­called equitable principles/relevant circumstances method. This method, which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result.’ (Italics added.)”34 It is true that attempts to understand the meaning of equitable principles have declined since the 1993 Jan Mayen case because the difference between the two rules is not remarkable. However, it should not be overlooked that international delimitation cases since 1993 have also produced an equitable result by ‘taking into account all the relevant circumstances’ despite the fact that research into the meaning of equitable principles seems to have diminished at a glance. In addition, it is noteworthy that the name of the rule called the Equidistance-­Special Circumstances rule for a long time has been changed into the Equidistance–Relevant Circumstances rule since the 2002 Land and Maritime Boundary (Cameroon/Nigeria) case. The legal reasoning of the ICJ since 1993 suggests that the construction of the equidistance line is no more than a first step in the delimitation process, rather than the mandatory method for delimitation. As indicated in the 1969 North Sea Continental Shelf cases, the equidistance method is just a method which can be employed in the course of the application of equitable principles. Thus, it is certain that the application of equitable principles has also been performed by taking account of all the relevant circumstances since the 1993 Jan Mayen case as in the earlier cases, irrespective of the provisional employment of the equidistance method. In consequence, the two rules were assimilated towards refining the Equitable Principles-­Relevant Circumstances rule. The assimilated rule will be called the ‘refined’ Equitable Principles-­Relevant Circumstances rule in my thesis.

ZZ Z[

I.C.J. Reports 2001, p.111, para.231. I.C.J. Reports 2002, p.441, para.288. `

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II. Development of the Thesis 1. The Objective of the Two Rules: Predictability v. Flexibility Some scholars have firmly upheld the equidistance method because they considered this method as the most effective method of guaranteeing ‘predictability’ in maritime delimitation.35 At this point, it is possible to put several questions to the supporters of the equidistance method. Which should be regarded as more important, predictability or flexibility with respect to the delimitation of maritime boundaries? Does an equitable result ensue from the predictability of the delimitation process? Or does an equitable result reflect flexibility? In fact, it has been strongly urged that the equidistance method conflicts with the concept of equitable principles. This assertion seemed to be exaggerated during the heated disputes between the Equidistance Group and the Equitable Principles Group at the Third United Nations Conference on the Law of the Sea.36 What is worse, it has been believed that the equidistance method only stands for predictability whereas the concept of equitable principles pursues flexibility. At this point, a word might be said as to how international courts and tribunals reach their decisions regarding maritime delimitation. Since the mid-­1980s, it has been general practice for international courts and tribunals to draw the provisional equidistance line and then take special or relevant circumstances into consideration to adjust that line.37 The equidistance method became one method of constructing the ‘provisional’ line in the delimitation process. In fact, opposition to the equidistance method implies that an ‘equitable result’ is much more important than the obligatory force of a specific method in a given case. It follows that the final aim of maritime delimitation is not to guarantee predictability through the compulsory employment of a specific method but to arrive at an equitable Z\

Prosper Weil, The Law of Maritime Delimitation – Reflections (Cambridge: Grotius Publications LTD., 1989), pp.79-­81;; Antunes, supra note 3, pp.411-­421. Z] Weil, supra note 35, p.204. Z^ Ibid., pp.83, 191-­192, 205-­208;; Yoshifumi Tanaka, “Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (8 October 2007),” IJMCL, Vol.23 (2008), p.338. XW

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result by taking special or relevant circumstances into account. Hence, it can be said that the drawing of the equidistance line is just a ‘starting point’ to obtain ‘flexibility’ in the final stage of maritime delimitation. 2. Equity and Equitable Principles Since the two aforementioned rules were assimilated into the ‘refined’ Equitable Principles-­Relevant Circumstances rule, the meaning of ‘equitable principles’ needs to be examined. (As pointed out above, the provisional employment of the equidistance method seemed to lead to a lack of concern about equitable principles.) The concept of equitable principles is a concept that is necessary to pursue the flexibility of the rules governing maritime delimitation. In this context, the research on the concept, role and application of ‘equity’ in international law is a starting point to understand what is meant by ‘equitable principles’ which brings the concept of flexibility into maritime delimitation. Basically, it can be said that equity in international law does not correct or modify the existing legal system. The 1982 Continental Shelf (Tunisia/Libya) case of the ICJ stated that “It [equity] was often contrasted with the rigid rules of positive law, the severity of which had to be mitigated in order to do justice. In general, this contrast has no parallel in the development of international law;; the legal concept of equity is a general principle directly applicable as law.”38 In other words, equity is not a means to correct or modify the existing law but is a legal principle directly applicable ‘as law.’ Therefore, one ‘practical’ application of equity in international law may be the concept of equitable principles found in the rules governing maritime delimitation. What is the concept of equitable principles? A study of the relationship between equitable principles and relevant circumstances is an essential step in understanding the meaning of equitable principles in international law. The concept of equitable principles is a concept which can only be meaningful in relation to its ‘application,’ not its own meaning or content. In other words, the application of equitable principles is a ‘process’ intended to arrive at an equitable result in some areas of international law. In the course of applying equitable principles, it must therefore be asked how it deals with relevant

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I.C.J. Reports 1982, p.60, para.71. XX

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circumstances. In its three cases of the 1980s, the ICJ (or its Chamber) tried to present a number of concrete examples of equitable principles. It did so under the misconception that equitable principles are a set of ascertainable norms. In spite of the ICJ’s effort to present five concrete examples of equitable principles in the 1985 Continental Shelf (Libya/Malta) case, there was no way to explain the application of equitable principles except by identifying and weighing-­up relevant circumstances in a delimitation case. Since the 1993 Jan Mayen case, almost all maritime delimitation cases have employed the equidistance line as a starting point in the delimitation process. Nevertheless, the identification and weighing-­up of relevant circumstances have still been essential steps in the delimitation of maritime boundaries, irrespective of the provisional use of the equidistance method. In other words, the application of equitable principles, which is a core element of the rules governing maritime delimitation, still requires all the relevant circumstances to be taken into consideration. Therefore, the relationship between equitable principles and relevant circumstances can be understood in the sense that the application of equitable principles as a process is to take account of all the relevant circumstances in a concrete delimitation case. After the identification and weighing-­up process of relevant circumstances, the result which international courts and tribunals would arrive at cannot be anticipated in a predictable way. This point brings us to the concept of flexibility. In sum, in the case of maritime delimitation, equitable principles are not a body of ascertainable principles. Rather, equitable principles are meaningful when they are applied as a process for arriving at an equitable result. This process requires taking into account all the relevant circumstances. In some areas of international law, such as the law of maritime delimitation and the law of international watercourses, equitable principles are applied. Here, the consequent outcome would not be predictable. The reason is that the list of relevant circumstances is open-­ended and that the weighing-­up process of assessing relevant circumstances would allow international courts and tribunals to exercise discretion to some extent. (However, even though each delimitation case has its own peculiarity, this does not mean that international courts and tribunals have the absolute discretion to cut out the case in their own way.)

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3. The Application of Equitable Principles When applying the ‘refined’ Equitable Principles-­Relevant Circumstances rule to maritime delimitation, the most important issue is to define what the application of equitable principles is. As has been mentioned above, the application of equitable principles means to take into account all the relevant circumstances in a given delimitation case. In order to clearly understand the application of equitable principles, three phases found in the process of the application of equitable principles need to be examined. 3.1. The Identification of Relevant Circumstances The first phase of the application of equitable principles is the identification of relevant circumstances. The 1969 North Sea Continental Shelf cases only referred to some factors which ‘might’ be relevant because these cases did not aim to construct an actual delimitation line. However, all international delimitation cases except for the 1969 North Sea Continental Shelf cases have tried to identify relevant circumstances in each case. The reason is that the common goal of international delimitation disputes is to actually draw a delimitation line. In the 1993 Jan Mayen case, the ICJ defined the concept of relevant circumstances as a concept which “can be described as a fact necessary to be taken into account in the delimitation process.”39 The concept of relevant circumstances only means ‘facts’ that need to be taken into consideration to produce an equitable result. These facts do not necessarily mean all facts. Only facts that are deemed to be relevant in the course of the delimitation operation can be included in the category of relevant circumstances. 3.2. The Weighing-­up Process of Relevant Circumstances The second stage of the application of equitable principles in maritime delimitation is the weighing-­up process of relevant circumstances. In international case-­law regarding the delimitation of the continental shelf, the weighing-­up process of relevant circumstances only raised the issue of how much weight a certain relevant circumstance

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I.C.J. Reports 1993, p.62, para.55. XZ

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(such as the existence of islands) should be given on the premise that coastal geography or objective geographical context should be accorded more weight. Commencing from the 1984 Gulf of Maine case of the Chamber of the ICJ, the establishment of a Single Maritime Boundary (hereinafter called “SMB”) has been generally carried out in maritime delimitation. However, the 1984 Gulf of Maine case, the 1985 Guinea/Guinea-­Bissau case and the 1992 Saint Pierre and Miquelon case did not take on a different aspect in comparison with the previous cases which had only dealt with the delimitation of the continental shelf. The reason for this is that these cases did not consider circumstances other than the circumstances which are commonly pertinent to both the continental shelf and the EEZ as relevant.40 Thus, the weighing-­up process of relevant circumstances until the 1992 Saint Pierre and Miquelon case had only two significant implications: (a) to grant coastal geography more weight and (b) to open up a possibility that an ‘economic catastrophe’ could be a relevant circumstance. However, the 1993 Jan Mayen case of the ICJ raised a different issue in the weighing-­up process of relevant circumstances. It was questioned whether a circumstance pertinent ‘only’ to the FZ between the continental shelf and the FZ could be a relevant circumstance in the course of establishing a SMB. The essence of this case is that the access to the capelin fishery resources was given more weight in the first zone, which was distinguishable from the fact that coastal geography had been granted more weight in the earlier cases. Thus, the 1993 Jan Mayen case showed that an economic factor can be regarded as a relevant circumstance, thereby holding more significance than as one of the auxiliary criteria in the delimitation operation. In consequence, if two or more relevant circumstances, which need to be weighed up, are found in a certain delimitation case, the weighing-­up process of the delimitation case leads to a certain flexibility in the result produced. The reason for this is that it is not certain how much weight a relevant circumstance would be given. What is more, it is also flexible how an economic factor other than coastal geography would be assessed. 3.3. The Indication and Application of Practical Methods The third stage of the application of equitable principles is the indication and

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I.C.J. Reports 1984, pp.326-­327, paras.192-­195. X[

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application of practical methods or, more precisely, the application of practical methods indicated by relevant circumstances. Except for the 1969 North Sea Continental Shelf cases, all international delimitation cases should actually construct the delimitation line of each case. In order to draw the final delimitation line, relevant circumstances are identified and then weighed up. Practical methods are then indicated through the identification and weighing-­up of relevant circumstances and applied to the case at hand. 4. The Meaning of Flexibility Simply put, the flexibility of rules in the context of maritime delimitation is a concept used to indicate the flexibility of ‘result.’ Although the delimitation process is predictable, the result then obtained through the application of the ‘refined’ Equitable Principles-­Relevant Circumstances rule governing maritime delimitation is not predictable. The mandatory use of the equidistance method had been challenged for two reasons, as will be described below, and, as a result, the predictability of result in maritime delimitation -­ which should have been guaranteed by the obligatory character of the equidistance method -­ was not achieved. The first reason preventing predictability is that any method other than the equidistance method can be employed according to the reasoning of the 1969 North Sea Continental Shelf cases.41 It can be said that there is a need for flexibility with regard to maritime delimitation because international courts and tribunals have failed to derive a particular method on the basis of entitlement (for example, natural prolongation or the criterion of distance).42 Furthermore, the 1993 Jan Mayen case accepted that there is an ‘area of overlapping potential entitlement.’43 It follows that the flexibility of result can be pursued in the delimitation of maritime boundaries in the sense that there is the possibility of a sharing-­out process with regard to an equitable result.44 The second reason is that, as the 1977 Anglo-­French Continental Shelf case declared, special (or relevant) circumstances may qualify the equidistance method even though

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I.C.J. Reports 1969, pp.46-­47, para.85. Hugh Thirlway, “The Law and Procedure of the International Court of Justice (Part Five),” BYIL, Issue 64 (1993), p.31. [Z I.C.J. Reports 1993, p.47, para.19. [[ Thirlway, supra note 42, pp.35-­36. [Y

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the employment of the equidistance method may be obligatory.45 Thus, predictability -­ as the very notion that lies behind the equidistance method -­ was undermined by the flexibility of result, at which the two rules relating to maritime delimitation aimed. The concept of the flexibility of result can be explained in three ways. Firstly, in the sense that the result would be considered as equitable unless the provisional result (achieved through the drawing of the provisional equidistance line and the identification and weighing-­up of relevant circumstances) proves inequitable, all results which remain within some limits can be equitable. For example, even if the ratio between the relevant areas of two States is either 49:51 or 51:49 on the assumption that each State has the same length of relevant coastline, both ratios can be equitable. Similarly, in the 2007 Maritime Delimitation (Guyana/Suriname) case, the ratio of the relevant areas (Guyana 51%: Suriname 49%) was considered as equitable in relation to the ratio of the coastal frontages (Guyana 54%: Suriname 46%).46 In other words, the term, equitable does not mean mathematical. How can the equitable limits of the provisional result be determined? At this moment, the ‘disproportionality test’ can be invoked.47 According to the judicial and arbitral case law, a provisional result finally becomes an equitable result unless it is disproportionate. Therefore, it should not be overlooked that the discretion of international courts and tribunals can be exercised with regard to the disproportionality test.48 Secondly, on the premise that the provisional line can be adjusted, the end result of maritime delimitation cannot be predicted. Depending on which circumstances are relevant or how much weight the relevant circumstances are given, the final result would be determined. Thirdly, the concept of flexibility can be discussed with respect to the contents (elements) of an equitable result. If a result in conformity with the contents (elements) of an equitable result is achieved, the result can be considered as equitable. Since the contents (elements) of an equitable result in a certain delimitation case are not predictable on a case-­by-­case basis, the flexibility of result can be supported. For [\

The Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (Geneva, 30 June 1977), UNRIAA, Vol.XVIII, pp.45-­46, para.70. [] Award of the Arbitral Tribunal (The Hague, 17 September 2007), p.127, para.392. [^ See I.C.J. Reports 2009, pp.129-­130, paras.210-­216. [_ I.C.J. Reports 2009, p.129, para.213. X]

Third Year PhD Presentation Series

Ki Beom Lee

example, whilst non-­encroachment on natural prolongation can be the most important content (element) of an equitable result in a delimitation case, proportionality can be the most decisive one in another delimitation case.

III. Original Contribution to Public International Law My thesis demonstrates new knowledge for public international law in three ways. Firstly, as the result of an analysis of the Equidistance-­Special Circumstances rule and the Equitable Principles-­Relevant Circumstances rule, it is submitted that these two rules were assimilated into the ‘refined’ Equitable Principles-­Relevant Circumstances rule. Secondly, it is submitted that the rules governing maritime delimitation, unlike other rules of international law, pursue the flexibility of result because equitable principles are applied. Thirdly, since my thesis discovers several contents (elements) of an equitable result and it does not discover any priority order among them, it is submitted that the achievement of an equitable result is flexible on a case-­by-­case basis.

Thank you very much for reading this paper!

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