The delimitations of the exclusive economic zone and the continental shelves do not have to be the same, but all recent disputes have been resolved with a single maritime line. [xlviii] In the Jan Mayen dispute, the parties did not request a single zone, and the Court addressed the continental shelf and exclusive economic zone boundaries separately, but found the analysis to be identical and came up with a single line for both boundaries. [xlix] ** The equidistance approach can be used as an aid to analysis, but it is not to be used as a binding or mandatory principle.
In the 1985 Libya/Malta case, the 1984 Gulf of Maine case, and most recently the 1993 Jan Mayen case, the ICJ examined the equidistance line as an aid to its preliminary analysis, but then adjusted the line in light of the differences in the length of the coastlines of the contending parties. [l] This preliminary equidistance line is drawn from the coastlines themselves, not from any straight baselines. [li] The Court has made it clear in all these cases that the equidistance line is not mandatory or binding. The proportionality of coasts must be examined to determine if a maritime boundary delimitation is "equitable.
" It has now become well established that an essential element of a boundary delimitation is the calculation of the relative lengths of the relevant coastlines. If this ratio is not roughly comparable to the ratio of the provisionally delimited relevant water areas, then the tribunal will generally make an adjustment to bring the ratios into line with each other. [lii] In the recent Jan Mayen case, the ICJ determined that the ratio of the relevant coasts of Jan Mayen (Norway) to Greenland (Denmark) was 1:9, and ruled that this dramatic difference required a departure from reliance on the equidistance line.
The final result was perhaps a compromise between an equidistance approach and a proportionality-of-the-coasts approach, with Denmark (Greenland) receiving three times as much maritime space as Norway (Jan Mayen). Similarly, in the Libya/Malta Continental Shelf case, the ICJ started with the median lines between the countries, but then adjusted the line northward through 18' of latitude to take account of the "very marked difference in coastal lengths"[liii] between the two countries.
The court then confirmed the appropriateness of this solution by examining the "proportionality" of the length of the coastlines of the two countries[liv] and the "equitableness of the result. "[lv] The proportionality-of-the-coastlines is thus not a mathematically mandatory requirement, but rather provides a rough sense of justice which the tribunal uses, along with other factors, to achieve a result that it deems to be "equitable. Geographic considerations will govern maritime boundary delimitations and nongeographic considerations will only rarely have any relevance.
The Gulf of Maine case was perhaps the most dramatic example of the Court rejecting submissions made by the parties regarding nongeographic considerations, such as the economic dependence of coastal communities on a fishery, fisheries management issues, and ecological data. The concept of the continental shelf as a "natural prolongation" of the adjacent continent is a geographical notion, but it has not received prominence in recent decisions. [lviii] Nevertheless, this term does appear in Article 76 of the 1982 Law of the Sea Convention, and thus may continue to be of some relevance.
To some extent, the principle of nonencroachment has taken the place of the natural-prolongation idea. ** The principle of nonencroachment. This principle is explicitly articulated in Article 7(6) of the 1982 U. N. Law of the Sea Convention, which says that no state can use a system of straight baselines "in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone. " It has recently been relied upon more expansively in the Jan Mayen case, where the Court emphasized the importance of avoiding cutting-off the extension of a coastal state's entry into the sea.
Even though Norway's Jan Mayen Island is minuscule in comparison with Denmark's Greenland, Norway was allocated a maritime zone sufficient to give it equitable access to the important capelin fishery that lies between the two land features. [lix] The unusual 16-nautical-mile wide and 200-nautical-mile long corridor drawn in Canada and France's St. Pierre and Miquelon case also appears to have been based on a desire both to avoid cutting off these islands' coastal fronts from the sea but at the same time to avoid blocking access to the open ocean for Canada's Newfoundland coast. ** The principle of maximum reach.
This principle first emerged in the North Sea Continental Shelf cases,[lx] where Germany received a pie-shaped wedge to the equidistant point even though this allocation cut into the claimed zones of Denmark and the Netherlands. Professor Charney reports that this approach has been followed in all later cases: "No subsequent award or judgment has had the effect of fully cutting off a disputant's access to the seaward limit of any zone. "[lxi] In the Gulf of Fonseca case, the Court recognized the existence of an undivided condominium regime in order to give all parties access to the maritime zone and its resources,[lxii] and in the St.
Pierre and Miquelon case France was given a narrow corridor connecting its territorial sea with the outlying high seas. The geographical configuration in the Jan Mayen case presented different issues. But even in this situation the Court gave Norway more than it "deserved" considering the small coastline and geographical size of Jan Mayen island. The motive apparently was to enable Norway to have at least "limited geographical access to the middle of the disputed area,"[lxiv] which contained a valuable fishery.
Professor Charney identifies several interests that are served by the maximum reach principle–"status" (by recognizing that even geographically disadvantaged countries have rights to maritime resources), the right "to participate in international arrangements as an equal," navigational freedoms, and "security interests in transportation and mobility. "[lxv] Among the South China Sea claimants, the nonencroachment and maximum reach principles may be especially helpful to Brunei because its limited coastal frontage would otherwise be in danger of being dominated by the longer coasts and larger claims of Malaysia.
Each competing country is allocated some maritime area. This principle is similar to the nonencroachment and maximum reach principles, but it is worth restating in this form to emphasize how the ICJ has reasoned in recent years. Although it has attempted to articulate consistent governing principles, its approach to each dispute submitted to it has, in fact, been more akin to the approach of an arbitrator than that of a judge.
Instead of applying principles uniformly without regard to the result they produce, the Court has tried to find a solution that gives each competing country some of what it has sought and thus can accept. [lxvi] In that sense, it operates like a court of equity, or as a court that has been asked to give a decision ex aequo et bono. [lxvii] Perhaps such an approach is inevitable and even desirable, given that the goal of a maritime boundary delimitation is to reach an "equitable solution. " Islands have a limited role in resolving maritime boundary disputes.
Islands can generate maritime zones,[lxviii] but they do not generate full zones when they are competing directly against continental land areas. This conclusion has been reached consistently by the Court and arbitral tribunals in the 1969 North Sea Continental Shelf case, the 1977 Anglo-French arbitration, the 1982 Libya/Tunisia Continental Shelf case, the 1985 Libya/Malta Continental Shelf case, the 1984 Gulf of Maine case, the 1985 Guinea/Guinea-Bissau arbitration, the 1993 Jan Mayen case, and the 1992 St.Pierre and Miquelon arbitration.
A few examples may be useful to illustrate how the Court has reasoned. In the Libya/Tunisia Continental Shelf case, the ICJ followed the Anglo-French arbitration and gave only "half-effect" to Tunisia's Kerkennah Islands in delimiting the continental shelf between the two countries, even though the main island of Kerkennah is 69 square miles in area and has a population of 15,000.
[lxx] In the Gulf of Maine case, the Court's chamber gave only partial effect to Canada's Seal Island even though a permanent year-round population resides on the island. [lxxi] Perhaps most dramatic is the Libya/Malta Continental Shelf case, where the court ruled that the tiny uninhabited island of Filfa, belonging to Malta, should be disregarded altogether, and that the main island of Malta should, in effect, be given only partial effect because of its small size in relation to Libya's broad coast.
Malta's main island is 122 square miles in land area, and has a population of 350,000, yet it was not considered to have full power to generate extended maritime zones when opposed by larger land areas. The more recent decisions in the St. Pierre-Miquelon arbitration and the Jan Mayen case reaffirm this approach. The islands of St. Pierre and Miquelon were given only territorial sea enclaves plus a corridor to the high sea,[lxxiii] and Jan Mayen was given a reduced zone because of its limited size in relation to the broad coast of Greenland.
The results in these cases are of profound importance to any dispute involving islands. Without exception, the ICJ and arbitral tribunals have ruled that islands do not generate full zones in relation to opposing larger land areas. Even if an islet is entitled to generate an exclusive economic zone, its capacity to generate such a zone is always viewed as very weak in relation to any competing claims from opposite or adjacent continental or large-island land masses. The vital security interests of each nation must be protected.
This principle was also recognized in the Jan Mayen case, where the ICJ refused to allow the maritime boundary to be drawn too close to Jan Mayen island, and it can be found in the background of all recent ICJ decisions. Even as early as the 1917 decision of the Central American Court of Justice on the Gulf of Fonseca, it was emphasized that the waters of the Gulf had to be viewed as jointly owned by the three adjoining states because of the "primordial interests" of "the economic, commercial, agricultural and industrial life of the riparian States" as well as the "the interest of national defense. The refusal of tribunals to adopt an "all-or-nothing" solution in any of these cases illustrates their sensitivity to the need to protect the vital security interests of each nation.
The legal principles governing islands are still in some dispute, but consensus can be identified on some issues. With regard to sovereignty, actual and effective control, particularly during the past century, is the most important factor, and it will usually be decisive if some level of acquiescence or acceptance by other nations can also be established.
With regard to generating continental shelves and exclusive economic zones, countries are making broad claims for uninhabitable islets, but the better approach is to require a permanent, nonmilitary population of at least 50 or so before an islet is allowed to generate an extended maritime zone. And with regard to boundary delimitations, it is clear that islets play a limited role, particularly if they are uninhabited or sparsely inhabited. In some cases, they play a small or reduced role in determining the angle or placement of the delimitation line, and in other cases they play almost no role at all.