Malta, Maine and beyond
5
Malta, Maine and beyond
Trends in the theory and practice of maritime boundary delimitation
Charles H. Norchi*
Director and Professor of Law, Marine Law Institute, University of Maine School of Law
This writer is among the many collaborators who have enjoyed an association with Professor David Attard – eminent international lawyer, scholar and friend. In joint initiatives and projects between the International Maritime Law Institute (IMLI) and Yale, Harvard or the Marine Law Institute of the University of Maine School of Law, he has been a driving force in numerous Malta–America academic initiatives. By building relations between Malta and the overseas world, Professor Attard has established academic and institutional ties that continue to enhance learning, research and that generate transnational collegiality.
Beginning with his seminal work, The Exclusive Economic Zone,1 which was awarded the Guggenheim Prize in International Law, Professor Attard has also been at the centre of international maritime delimitation scholarship. He has advised governments on the full spectrum of maritime delimitation problems bearing upon the exploration and exploitation of marine resources, has led legal and technical teams in negotiations to delimit single maritime boundaries, to delimit continental shelf and EEZ boundaries and to delimit fishing zone boundaries. In recognition of Professor Attard’s contributions to the field of maritime boundary delimitation, this chapter reflects on two landmark cases of the International Court of Justice (ICJ) that set in motion delimitation trends. The judgments span and link the coastal seafaring communities of Malta and Maine. They were decided within two years of each other and are joined in the annals of maritime boundary delimitation jurisprudence. This chapter appraises the impact of the case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. USA)2 and the case concerning the Continental Shelf
* The author would like to thank two avid supporters of Malta–Maine relations: colleagues Professor Martin A. Rogoff and Dean Peter Pitigoff.
1 D. Attard, The Exclusive Economic Zone in International Law (Oxford: Oxford University Press, 1987).
2 Delimitation of the Maritime Boundary in the Gulf of Maine Area, judgment, ICJ Reports 1984, p. 246 (hereinafter Gulf of Maine).
(Libyan Arab Jamahiriya–Malta),3 particularly their commonalities and features of the judgments that remain significant. The Gulf of Maine and Libya–Malta cases have been thoroughly treated by other scholars.4 Yet they merit reappraisal for their contemporary impact on delimitation theory and practice, as evident in the ICJ Black Sea Delimitation delivered in February 2009.5
Introduction
UNCLOS, Articles 74 and 83, provides a vague formulation for delimiting the maritime boundaries between states’ EEZ and continental shelves:
The delimitation of the exclusive economic zone/continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.6
Because UNCLOS provides minimal guidance for maritime boundary delimitation, the law has developed through ICJ decisions and judgments of other international tribunals. As the Court in the Libya–Malta case observed:
The Convention sets a goal to be achieved, but is silent as to the method to be followed to achieve it. It restricts itself to setting a standard, and it is left to the States themselves, or to the courts, to endow this standard with specific content.7
The cases considered in this chapter are pivotal in the further clarification of delimitation goals, the specification of standards and the evolution of international maritime law.
3 Continental Shelf (Libyan Arab Jamahiriya–Malta), judgment, ICJ Reports 1985, p. 13 (hereinafter Libya–Malta case).
4 See E. Collins and M. A. Rogoff, ‘The Gulf of Maine case and the future of ocean boundary delimitation’, 38 Maine Law Review 7, 1986; L. A. Willis, ‘From precedent to precedent: the triumph of pragmatism in the law of maritime boundaries’, Canadian Yearbook of International Law, 1986; J. Schneider, ‘The Gulf of Maine case: the nature of an equitable result,’ Am. J. Int’l L. 79, 1985, pp. 539–77; D. Pharand, ‘Delimitation of maritime boundaries: continental shelf and exclusive economic zone in light of the Gulf of Maine Case’, Revue générale de droit, 1985; L. H. Legault and B. Hankey, ‘From sea to seabed: the single maritime boundary in the Gulf of Maine case’, Am. J. Int’l L. 79, 1985, pp. 961–91; M. D. Evans, ‘Maritime delimitation and expanding categories of relevant circumstances’, 40 ICLQ 2, 1991; Kaye, ‘Lessons learned from the Gulf of Maine case: the development of a maritime boundary delimitation jurisprudence since UNCLOS III’, 14 Ocean and Coastal Law Journal, 73, 2009.
5 Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), judgment of 3 February 2009 (hereinafter Black Sea Delimitation).
6 UNCLOS, Arts 74 and 83.
7 Libya–Malta case, above fn 3, pp. 30–1.
The ICJ is a critical arena for coastal state maritime delimitation claims. However, judgments of the Court are merely one phase in the assertion of state competence over the authority and control of ocean zones, ultimately clarified in a formal delimitation judgment. The process begins with events, incidents and coastal state demands that are the prelude to international litigation. The assertion of Maltese, Libyan, Canadian and American coastal state interests and claims in the Mediterranean and the Gulf of Maine preceded resort by the respective governments to the ICJ.
The Gulf of Maine judgment
The Gulf of Maine covers an area of roughly 90,000 square kilometres. The location of the boundary between the USA and Canada had been in question since the USA became independent. In the 1960s, the USA and Canada were exploring for hydrocarbon resources in the northwest Atlantic. By 1969, the boundary of the continental shelf in the area emerged as an official issue during diplomatic talks and hence formal negotiations between the two states proceeded through the 1970s.8 Over that decade the two countries were in disagreement over authority and control of the continental shelf and the fishery resources of the Georges Bank, an area among the richest fishing grounds on the planet and holding potentially valuable oil and gas reserves.9 The USA and Canada asserted overlapping claims to the continental shelf and superjacent waters of the Gulf of Maine seaward from the coast to a distance of 200 nautical miles.10 On 29 March 1979, the two governments concluded the Treaty to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area. A Special Agreement annexed to the Treaty submitted the boundary question to a Chamber of the ICJ requesting the Chamber to decide ‘in accordance with the principles and rules of international law … the course of the single maritime boundary that divides the continental shelf and fisheries zones of the United States and Canada’.11 The Chamber was asked to describe the course of the maritime boundary in terms of geodetic lines and to depict the course of the boundary on hydrographic charts.12
8 See D. Johnston, The Theory and History of Ocean Boundary-Making (Montreal: McGill-Queen’s University Press, 1988), pp. 178–96.
9 Canada took the position that the boundary should follow the equidistance line under Article 6 of the 1958 Convention on the Continental Shelf and that no special circumstances existed in the area. The USA position was that special circumstances existed and pressed for a line that would follow the Northeast Channel.
10 The Gulf of Maine is flanked on the north, northwest and west by the USA mainland. Thirty percent of the Gulf of Maine faces the Atlantic Ocean. Georges Bank is seaward of the Gulf.
11 Special Agreement Between the Government of the United States of America and the Government of Canada to Submit to a Chamber of the ICJ the Delimitation of the Maritime Boundary in the Gulf of Maine Area, Annex I to Maritime Boundary Settlement Treaty, Art. II (hereinafter cited as Special Agreement).
12 Special Agreement, above fn 11, Art. II, para. 2.
On 12 October 1984, a Chamber of the ICJ delivered its decision on the Gulf of Maine.13 The boundary as determined by the Court gave the USA roughly two-thirds of the Gulf of Maine and nearly three-quarters of Georges Bank with Canada receiving the remainder.
The Parties agreed upon a fundamental norm applicable to the delimitation of a single maritime boundary – that the delimitation must be effected in accordance with equitable principles accounting for all relevant circumstances to achieve an equitable result.14 The Chamber further clarified this by declaring that the fundamental norm required that all maritime boundary delimitations, whether through negotiation or dispute resolution, must be achieved ‘by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result’.15 This was the ratio decidendi of the decision and its purpose was to serve as a guideline to achieve a goal. ‘In a matter of this kind, international law – and in this respect the Chamber has logically to refer primarily to customary international law – can of its nature only provide a few basic legal principles, which lay down guidelines with a view to an essential objective.’16 The Chamber drew a distinction between principles and rules of international law, and the criteria and methods for their application. The Chamber was contextual in its approach observing that cases are ‘monotypic and that, more often than not, the most appropriate criteria, and the method or combination of methods most likely to yield a result consonant with what the law indicates, can only be determined in relation to each particular case and its specific characteristics’.17 The critical decision tools were the ‘various equitable criteria and practical methods that may be used to ensure in concreto that a particular situation is dealt with in accordance with the principles and rules in question’.18
The Chamber did not select a basic method that would apply in single maritime boundary delimitations. While indicating that pure geometric methods of equidistance could be used where geographically appropriate, it refused to elevate the equidistance method to a rule of customary law.19 Thus no fundamental method of delimitation was urged. The equitable criteria clarified in the context of delimitating a single maritime boundary would determine the method or methods of implementation. Thus, ‘methods must be chosen which are instruments suitable
13 The Gulf of Maine case was the third ICJ decision on maritime boundary delimitation, and the first of a single maritime boundary delimitation for continental shelf and superjacent water column.
14 For a thorough assessment of the assessment of the use of equitable criteria in the Gulf of Maine case, see D. Pharand, ‘Delimitation of maritime boundaries, continental shelf and exclusive economic zone in light of the Gulf of Maine case, Canada v. USA (1984)’, 16 Revue générale de droit, 1985.
15 Gulf of Maine case, above fn 2, p. 300, para. 113.
16 Ibid., p. 290.
17 Ibid.
18 Ibid.
19 Gulf of Maine case, above fn 2, p. 297.
for giving effect to those criteria and not other criteria of a fundamentally different kind’.20
The elements of choice making adopted by the Chamber amounted to a departure from established criteria along with a methodological shift. Producing a single line for both the continental shelf and the superjacent water column, the Chamber noted that this ‘can only be produced by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these two objects to the detriment of the other and at the same time is such as to be equally suitable to the division of either of them’.21 The Court would look to criteria of a ‘neutral character’ derived from the geography of coasts within the delimitation area. Hence:
Basic choice should favour a criterion long held to be as equitable as it is simple, namely that in principle, while having regard to the special circumstances of the case, one should aim at an equal division of areas were the maritime projections of the coasts of the States between which delimitation is to be effected converge and overlap.22
Given the array of diverse delimitation claims and cases, basic criteria would have to be adjusted owing to the geographic diversity of the world’s coasts. Geography became the critical conditioning factor and overtook the earlier criterion of natural prolongation:
The Chamber is, furthermore, convinced for the purposes of such a delimitation operation as is here required, international law, as will be shown below, does no more than lay down in general that equitable criteria are to be applied, criteria which are what may be properly called the geographical features of the area.23
The Chamber drew the single maritime boundary in three segments. The first segment was drawn using a pure geometrical method and delimited the innermost area of the Gulf of Maine. There were no special circumstances that required modification. The second segment was determined in two stages owing to the presence of special circumstances. The configuration of the coasts determined the choice of method. At the closing of the Gulf, the coasts of Massachusetts and Nova Scotia face each other and are nearly parallel. The Chamber found the relevant coastline of the USA to be much longer than that of Canada and this auxiliary criterion of proportionality was taken into account. A difference in coastline ratios favouring the USA resulted in the provisional median line being moved
It would be unthinkable that, in that part of the delimitation area which lies outside and over against the Gulf, the dividing line should not follow or continue the line drawn within the Gulf by reference to the particular characteristics of its coasts. If one were to seek for a typical illustration of what is meant by the adage ‘the land dominates the sea,’ it is here that it would be found.24
The Chamber underscored that the concept of adjacency, or distance, better conveyed the nexus between a state’s sovereignty and its sovereign rights over adjacent submerged land such as the continental shelf and superjacent water column, than did the previously accepted idea of natural prolongation.25 Geography was the primal factor conveying legal title. The Chamber stated that:
‘legal title’ to certain maritime or submarine areas is always and exclusively the effect of a legal operation. The same is true of the boundary of the extent of the title. That boundary results from a rule of law, and not from any extrinsic merit in the purely physical fact. In the Chamber’s opinion, it is therefore correct to say that international law confers on the coastal State a legal title to an adjacent continental shelf or to a maritime zone adjacent to its coasts; it would not be correct to say that international law recognizes the title conferred on the State by the adjacency of that shelf or that zone, as if the mere natural fact of adjacency produced legal consequences.26
Legal entitlement to ocean space turns on legal title to land. Hence the equitable result that was the goal of the fundamental norm was achieved by ‘taking into consideration for each party, the extent of the link between the land and the waters, the coastal State’s right and the equitable limit of its claim being a
function of the land factor’.27 Maritime boundary delimitation theory must now account for the application of geographic criteria and methods that link the land and the sea.
The legal framework identified and clarified an equitable result as the delimitation goal, and stipulated that relevant circumstances would be factored into achieving that result. The decision was criticized, including by the dissenting Judge Gros who wrote, ‘What is today called equitable … is no longer a decision based on law but an appraisal of the expediency of a result, which is the very definition of the arbitrary, if no element of control is conceivable.’28