Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Dividing the Oceans by the Equity Principle of “Half-Way Solutions”?
– From Geographical Base-Points to Political Pretention Lines
“… the law of maritime boundary delimitation has
undergone a remarkable - almost circular - evolution”
David Colson1
Contents
Introduction and Summary ........................................................................................................ 2
1.
The Problems at Stake ....................................................................................................... 5
2.
The Law of International Negotiations: Some Introductory Remarks ............................. 7
3.
An Illustration: the 2010 Norway-Russia Agreement ....................................................... 9
4.
Coming to Terms: Delimitation Procedures .................................................................... 12
5.
The 2010 Norway-Russia Negotiation Platform and Compromise ................................. 18
6.
The Basic Principle of Equitable Delimitation ................................................................ 21
7.
Is the Norway-Russia Result Influenced by the Grey Zone Arrangement? .................... 23
8.
The “Half-Way Instrument” - jurisdictione ratio materiae............................................ 26
9.
A.
General Introduction.................................................................................................... 27
B.
The Irrelevant Argument of Resources Utilization ..................................................... 28
C.
The Role of the Proportionality Principle.................................................................... 29
D.
Delimitation Practices: The Reinstatement of a “half-way instrument”? .................... 31
E.
Resulting in Customary Law or General Principles of Law? ...................................... 43
The “Half-Way Principle” - A Conclusion...................................................................... 46
1
David A. Colson; The Delimitation of the Outer Continental Shelf between Neighboring States, 97
AM. J. INT’L LAW 91, 99 (2003)..
1
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Introduction and Summary
This article considers two basic delimitation issues. First, is the delimitation
geographical or geopolitical? The second issue is jurisdictione ratione materiae.
What is the correct delimitation principle for delimiting adjacent and opposite coasts
belonging to two different nation states? Has the state practices observed in the
neighbouring delimitation cases created new international law reaching out beyond
the two parties involved in the dispute? Have we seen a development of general
principles of law or perhaps customary law (see this article section 8E)?
Geodetic points and geographical co-ordinates are a thing of the past when it
comes time to measure maritime delimitation. Despite that many may think that this
method is the less subjective, it embraces uncertainties of which many disputes
erupts; “Similarly, international forums have been unable to delimit maritime
boundaries on the basis of geologic considerations because of the uncertainties of that
science, the difficulty of adapting it to international maritime boundaries that require
rela- tively precise delimitation, and the minimal relevance of such considerations to
contemporary international relations”. 2
Today, geopolitical considerations are the instrument of choice.3 Political
bargaining and bilateral negotiations based on physical configurations rule the day.
Some have criticized that this solution produces nothing but vagueness and
uncertainty. The equity objective is all that matters according to Articles 74 and 83 of
the Law of the Sea Convention (1982) UNCLOS. Thus, half-way instruments seem
to be an easy fix in maritime borderline cases. As this study will demonstrate,
negotiation principles, bargaining and half-way instruments – broadly construed to
mean “mid-way,” “half-angle,” and “middle-point” principles - are vital ingredients to
Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, AM. J. INT’L
LAW, Vol. 88, No. 2 (1994), pp. 227-256, at p. 239.
3
There are perhaps some controversies here. See Tore Henriksen & Geir Ulfstein, Maritime
Delimitation in the Arctic: The Barents Sea Treaty, 42 OCEAN DEVELOP. & INT’L LAW 1, 7 (2011).
These authors seem to subscribe to a reinstatement of geomorphological instruments of delimitation
view. ”It is difficult to assess whether geographical or geological factors have been applied.” (italics
added). No focus is at the geopolitical issues.
2
2
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
achieving the equitable solution. Is this observed development nothing but loose
practices or does it tend to develop principles of law, or rules (see paragraph 8E)?
From the standpoint of a purely geographical system, the “median line” is the
borderline between two opposite States. The “equidistance line” is the name of the
borderline between two adjacent states. Thus, a border occurs as “a “geological fact.”
It extends, in nature, as a prolongation of the terrestrial border. It has “geographical
as well as geological and geomorphological aspects.”4 Russian lawyers have
promoted a geopolitical view of border. They claim that the position of sector-line is
the valid principle of delimitation close to the poles.5 The Antarctic Treaty of 1959
embraces the sector-line border.6 The sector-line is the natural prolongation northward
bound of the Russian land base. The Upper Soviet declared this in 1926. 7 On the
other hand, in the North Sea Continental Shelf Case, the ICJ supported the border as
geological fact, i.e. a line that “linked the doctrine of the continental shelf as an
extension of the coastal state’s landmass to the criteria for delimitation”.8 Thus it
seems reasonable to claim that the sector line drawn from the eastern- and
westernmost corners of its land territory, to the North Pole, encompasses the coastal
state realm and jurisdiction. However, as stated by Keith Highet the natural
prolongation was a position that endured defeat in the Libya- Malta case.9
The “natural prolongation” was also challenged in an ICJ (1969) separate
statement: “[F]or example the appropriation of large areas of the Arctic Ocean and the
Antarctic Continent, an appropriation which also relies on the doctrine of sectors,
which doctrine, in certain of its elements, is reminiscent of the abandoned concept of
spheres of influence”.10 Even so, I cannot agree with the assertion that “the sector
4
Libya’s position, see Libya-Malta, Judgment, 1985 ICJ Rep 31, para. 29.
For a broad survey of the polar delimitation issues, see Alex G Oude Elferink & Donald R Rothwell
(eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. Publications on Ocean
Development, Vol 37. (Kluwer Law International 2001).
6
See Antarctic Treaty, June 23, 1961, 402 U.N.T.S. 71.
7
For a comprehensive presentation of the Russian Arctic positions, see ERIK FRANCKX, MARITIME
CLAIMS IN THE ARCTIC: CANADIAN AND RUSSIAN PERSPECTIVES (Dordrecht : M. Nijhoff 1993).
8
Colson, supra note 1 at 99.
9
Keith Highet, Whatever Became of Natural Prolongation? In Dorinda G. Dallmeyer & Louis De
Vorsey, Jr. (eds.) RIGHTS TO OCEANIC RESOURCES 87 (1989); see also Keith Highet, The Use of
Geophysical Factors in the Delimitation of Maritime Boundaries, in Jonathan I. Charney & Lewis M.
Alexander (eds.) 1 INTERNATIONAL MARITIME BOUNDARIES 1649 (1993) at 163.
10
1969 ICJ Rep.116 (Judge Ammoun).
5
3
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
theory which is implicit in the formulation of this taking of possession is of no legal
value as a basis for a claim of sovereignty in international law, even if such claim is
restricted to lands and islands”.11 As I show in the next section of this article, the
sector-line base for claiming sovereignty – Russia’s pretention lines – is of vital
importance in a bilateral setting (see Section 2).
The present legal status, as I understand it, does not embrace either one of these
positions. I conclude, after studying both bilateral agreements and third-party
solutions, that the negotiation principle is the actual rule. And in deciding the matter,
negotiating parties enjoy a discretionary, if constrained power as long as they achieve
their objective of reaching an “equitable solution,” taking the special circumstances
into consideration. Equitable solutions build upon the equitable principle.
International law recognizes this. In this article, I reveal some of the main ingredients
necessary to reaching an equitable solution. These include the negotiating platform,
positions and compromise. This article investigates, in particular, whether “the halfway instrument” is more applicable than the pure geographical or geodesic method.
“The half-way instrument” is a case law doctrine that the 2010 Norway-Russia
Agreement has also adopted.
Negotiating parties enjoy a discretionary power to achieve a peaceful solution to
the borderline conflict within the limits of Jus Cogens.12
As this study reveals, “the half way instrument” is considered a valid principle of
international law that solves borderline conflicts from time to time. The disputants’
competing claims, i.e. the Russia sector-line v. the Norway median line, which they
asserted in the negotiations that concluded the 2010 agreement, are not anticipatory
positions of law. Instead, they are nothing more than pretention lines which the
antagonists threw down at the start of the negotiations.
11
Donat Pharand, The Legal Régime of the Arctic: Some Outstanding Issues, Vol 39 (1984) p. 742-799,
at p. 766.
12
See Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AM. J. INT’L LAW
55 (1966). On present development, see Dinah Shelton, Normative Hierarchy in International Law,
100 AM. J. INT’L LAW 291–323 (2006).
4
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
1. The Problems at Stake
“While all these examples are an encouragement
to those who prefer accord to discord, none of them
provides … a model from which objective criteria
may be deduced for application in other cases or
other circumstances… Neither do these cases give
us a means of measuring equity, and until someone
discovers how to do that, we shall all have to
struggle along with negotiation”.
Peter B. Beazley13
How can we determine the “objective criteria” of maritime delimitation between
adjacent and opposite coasts? In 1493, Pope Alexander VI allegedly divided the
Atlantic Ocean in two between Spain and Portugal. 14 The leap from this papal bull to
Peter Beazley’s statement is a long one. Nonetheless, throughout that entire time, no
fixed principles have existed for how to divide the waters. We are still riding a wave
of legal uncertainty. The whole thing is a nightmare.
Is it even possible to discover – or generate – legal principles? Could it be that all
we have are the “living fabric of life” and concrete and discretionary solutions? I am
interested in the principles of maritime delimitation, in particular, Articles 74 (the
Exclusive Economic Zone) and 83 (the Continental Shelf) of the Law of the Sea
Convention (UNCLOS) 1982. According to quite a few cases, half-way instruments
seem to have a bearing on the principle of equity. The puzzle is whether the half-way
practices have evolved into a legal norm. If these practices are not yet infra legem,
could they represent a praeter legem position?
What is the status of “half-way instruments?” I use the term “half-way
instruments” in this article to mean concepts such as “mid-way,” “half-angle” and
13
Peter B. Beazley, Commentary in Thomas Clingan, Jr. (ed.) LAW OF THE SEA: STATE PRACTICE IN
ZONES OF SPECIAL JURISDICTION 320 (The Law of the Sea Institute Hawaii 1982) .
14
For the view that the 1493 papal edict governs sovereignty issues, see EDGAR GOLD, MARITIME
TRANSPORT; THE EVOLUTION OF INTERNATIONAL MARINE POLICY AND SHIPPING LAW 35 (Lexington
Books, Mass 1981). Philip E. Steinberg rejects that position, and claims that “the pope clearly states
that the purpose of the grant is for missionary activities.” Philip E. Steinberg, Lines of Division, Lines
of Connection: Stewardship in the World Ocean, 89 GEOGRAPHICAL REV. 254, 256 (1999).
5
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
“half-effect” solutions. As a starting point, I support the ICJ’s holding in the TunisiaLibya Case:
“The Court would recall however that a number of examples are to be found
in State practice of delimitations in which only partial effect has been given to
islands situated close to the coast; the method adopted has varied in response to
the varying geographical and other circumstances of the particular case. One
possible technique for this purpose, in the context of a geomorphological method
of delimitation, is that of the "half-effect" or "half-angle". Briefly, the technique
involves drawing two delimitation lines, one giving to the island the full effect
attributed to it by the delimitation method in use, and the other disregarding the
island totally, as though it did not exist. The delimitation line actually adopted is
then drawn between the first two lines, either in such a way as to divide equally
the area between them, or as bisector of the angle which they make with each
other, or possibly by treating the island as displaced toward the mainland by half
its actual distance therefrom.”15
Half-way instruments are more than just practical adaptation to the urgency of the
situation, as I will demonstrate. Instead, half-way instruments are more or less fixed
principles of maritime delimitation upon which reasonable, equity based divisions are
made. While maritime division often results from a half-way measured line, the
starting point for the alignment varies. Sometimes the borderline is measured by the
antagonists’ pretention lines. In other instances imaginary lines – such as a
perpendicular on the direction of the coast 16 – are points of departure.
My interest in this topic is heightened by the Norway-Russia 2010 Agreement.17
The Agreement is the most recent non-third party example of a half-way instrument.
15
Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep.89, para.
129.
16
As was the case in the Tunisia-Libya conflict, see Id. at para. 86.
17
For a comprehensive analysis, see Henriksen & Ulfstein, supra note 2 at 1-2.
6
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Does this bilateral pact satisfy international law? 18 Its alleged negotiators, in fact, its
antagonists, claim that it does. The Agreement is allegedly “based on international
law in order to achieve an equitable solution.” 19
Another issue raised in this article is whether this solution is derived from a
concrete rule? Is the international society of states driven entirely by discretionary,
non-predictable power? Do the deals brokered by the states rely on and result in
irregularity and random solutions, rather than fixed principles of law?
The third issue on which I focus is how to make delimitations? In what situations
are unilateral or bilateral agreements appropriate instruments? Who should make the
decision? 20
My analytical method is grounded in legal dogma. This is a de lege lata question.
I have focused my study on Articles 15, 74 and 83 of the United Nations Convention
on the Law of the Sea (UNCLOS 1982). In particular, I examine the process of
reaching “an equitable solution”. Since these provisions per se give very limited
guidance, the coastal state practice as well as case law has a role to play (see Section
8). Some of these cases have been decided by the International Court of Justice.
Others involve decisions handed down by Arbitration Courts.
2. The Law of International Negotiations: Some Introductory Remarks
“This doctrine on the process of negotiation is a
fundamental principle which underlies all
international relations, and therefore applies equally
to the delimitation of the exclusive economic zone.”
Satya N. Nandan & Shabtai Rosenne 21
Id. at 4 ff. Henriksen & Ulfstein have a slightly different approach: “to identify the applicable law
and to assess … the extent to which international law may have affected the outcome.” My article is
purely descriptive, however, so I do not conclude on the matter.
19
See the Joint Statement on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic
Ocean (June 2010) paragraph 4.
20
For an interesting overview of the remaining questions related to the Arctic, not yet settled in
international law, see Pharand, supra note 9.
21
Satya N. Nandan & Shabtai Rosenne (eds.); UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
1982. A COMMENTARY, VOL. II 814 (Martinus Nijhoff Publishers 1993).
18
7
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
The primary focus of this article is on the law of bilateral negotiations and the
rules that govern how to obtain agreement on outstanding issues such as maritime
delimitation: “duty of Parties to seek first a delimitation by agreement.” 22 My
underlying claim is that legal provisions, whether conventional or customary, govern
third party solutions. They do not bind bilateral negotiations. “[I]t must be
emphasised that the law provides norms for the behavior of the courts, and not of
private individuals.” 23 I agree with Alf Ross on this. I note that Alf Ross’s position
relates directly to domestic law. I would add that this position is relevant to
international law as well. This approach has been called the import of private law
institutions to public law.
I do not seek to impose it, however, “lock, stock and
barrel,” 24 onto international law.
Legal positions that go against judicial interpretations of the law may be
successfully adopted by disputants as they struggle to find a viable solution to
conflict. I hasten to add that I do not support the contention that “Governments may in
fact be more flexible about agreeing to practical arrangements in specific instances
that are somewhat in derogation of the relevant principles if those principles are
firmly established by treaty.” 25 Instead, my position with regards to international law
is analogous to Alf Ross’s position with regards to domestic law. States in search of
a peaceful settlement are flexible regardless of whether principles are established by
treaty.
The states parties’ legal power arises from the sovereignty principle. States may
enter into agreements if not contradictory to jus cogens rules. While parties to an
agreement may derogate from conventional and customary international law, “it is
well understood that, in practice, rule of international law can, by agreement, be
derogated from in particular cases, or between particular parties.” 26 Third party
mediators, courts and arbitrary panels, on the one hand, should follow the law. The
22
Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 39, para. 46
ALF ROSS, ON LAW AND JUSTICE. 35 (Berkeley: University of California Press, 1959).
24
See Judge McNair, 1950 ICJ Rep. 148.
25
See Bernhard Oxman & Anatolyi Kolodkin in Lori F. Damrosch, et al. (eds.), BEYOND
CONFRONTATION: INTERNATIONAL LAW FOR THE POST-COLD WAR ERA 171 (Westview
Press/American Society of International Law, 1995).
26
1969 ICJ Rep. 42.
23
8
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
only exception is where the parties provide otherwise in the writ of summons, and ask
the court to decide a case ex aequo et bono, under article 38, paragraph.2, of the ICJ
Statute.
Thus, states are free to enter into agreements such as treaties, covenants, and
pacts which subsequently lead to sovereignty limitations. One illustration is the
limitation of self-determination to which states parties consent when they join
UNCLOS 1982. Article 74(1) sets this forth. Accordingly, delimitations shall be
reached by agreement within the framework of international law and with the view of
reaching an “equitable solution.”
By dint of acceding to the UNCLOS, coastal states adhere to the negotiation
principle of Article 74. This article does not prescribe any particular delimitation line,
however. Parties to the UNCLOS must negotiate a solution to their maritime
delimitations. In seeking their agreement, the parties must achieve an equitable
solution. While the direction is mandatory, the exact result is not prescribed in detail.
Parties to a border conflict not only enjoy the right, but have the affirmative duty to
deviate from a median line in case “special circumstances” so decides.
Disputants are under a dyadic obligation to bilaterally prescribe an “equitable
solution.” “[I]f there is an agreement between the states there is nothing to say about
any factors which should be taken into account. They can take into account any factor
that they like if they don’t encroach upon the continental shelf of a third state.” 27
Thus, it seems to be a common understanding that “the legal debate concerning the
location of a maritime boundary, was open to any factor that might help achieve, or
identify, an equitable solution.” 28
3. An Illustration: the 2010 Norway-Russia Agreement
Norway and Russia negotiated the Agreement for almost 40 years. One reason
why the negotiations languished was the problem posed by the practical implications
27
Rainer Lagoni, Discussion and Questions, in Thomas Clingan, Jr. (ed.) LAW OF THE SEA: STATE
PRACTICE IN ZONES OF SPECIAL JURISDICTION 341 (The Law of the Sea Institute Hawaii 1982).
28
David A. Colson, Environmental Factors: Are they Relevant to Delimitation? in E.D.Bown & R.R.
Churchill (eds.), THE UN CONVENTION ON THE LAW OF THE SEA: IMPACT AND IMPLEMENTATION 220
(The Law of the Sea Institute Hawaii 1987).
9
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
of each party’s respective position.29 It was clear to the antagonists that “in certain
geographical circumstances which are quite frequently met with, the equidistance
method, despite its known advantages, leads unquestionably to inequity, in the
following sense … The slightest irregularity in a coastline is automatically magnified
by the equidistance line as regards the consequences for the delimitation of the
continental shelf… in the case of concave or convex coastlines … then the greater the
irregularity and the further from the coastline the area to be delimited, the more
unreasonable are the results produced”.30 The Varanger peninsula “juts out” sharply
into the Barents Sea. Even though the coastal area on the Norwegian side is relatively
small, the sharp, irregular configuration on the northeastern tip of the country results
in a tremendous offshore area that greatly benefits Norway.
The equidistance method is not the only problematic approach to dividing the sea.
The Sector-line method is also imperfect.
Geographic and geometrical peculiarities close to the Poles support the claim that
the Sector-line is better adapted to Polar Regions. This geometrical fact is one reason
why comparing the Antarctic and the Arctic areas is fruitful.31 Whether “a” sector
line is the better way to divide polar regions is an open question. “The” Russia
Sector-line, as an alleged line used to determine the prolongation of the landward
mass of Russia,32 is decidedly not an option. In 1926 the Upper Soviet decreed 33 the
westernmost point of the Soviet Union to be at Cap Niemtsky. Russia has a new
border today, as a resultof the Soviet occupation of former Finnish land. Now the
29
For a broader look into the legal and political environment, see ROBIN CHURCHILL & GEIR ULFSTEIN,
MARINE MANAGEMENT IN DISPUTED AREAS: THE CASE OF THE BARENTS SEA (Routledge. 1992).
30
North Sea Continental Shelf Case, 1969 ICJ Rep. 49, para. 89. See also Libya-Malta Continental
Shelf Case, 1985 ICJ Rep. 44, para. 56, where the court states “it may yield a disproportionate result
where a coast is markedly irregular or markedly concave or convex.”
31
DONALD R. ROTHWELL, THE POLAR REGIONS AND THE DEVELOPMENT OF INTERNATIONAL LAW
(Cambridge University Press, 1996).
32
”It is solely by virtue of the coastal State's sovereignty over the land that rights of exploration and
exploitation in the continental shelf can attach to it, ipso jure, under international law.” The Aegean
Sea Continental Shelf Case, 1978 ICJ Rep. 36, para. 86.
33
1926 Decree of the Presidium of the Central Executive Committee of the USSR, On the
Proclamation of Lands and Islands Located in the Northern Arctic Ocean as Territory of the USSR, 32
SOBRAINIE UZAKONENII I RASPORIAZHENII RABOCHE-KREST’IANSKOGO
PRAVITEL’STVA SSSR [COLLECTED LAWS AND DECREES OF THE WORKERS AND
PEASANTS GOVERNMENT OF THE USSR] 203 (Apr. 15, 1926) (Rus.), translated in N.D.
KOROLEVA ET AL., Pravovoi rezhim sudochodstva v Rossiiskoi Artktike [Legal Regime
of Navigation in the Russian Arctic] 4, 61 (Moscow, Soiuzmorniiproekt 1995). For further details, see
FRANCKX, supra note 6.
10
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
country extends to the Border river of Grense-Jakob. The revised sector line – moved
from Cap Niemtsky to the river and the terminus 415 (see map figure 2), would cut
off Norway’s territorial sea and parts of Norway’s main land. Because any solution
must be practical, the sector line cannot solve the problem.
Neither the equidistant nor the sector line methods were viable because both
lacked technical authority. It became clear that neither one of these extreme positions
would prevail. Thus, a compromise was necessary and inevitable.
The 2010 Norway-Russia Agreement incorporates the following: First, it is a
single maritime line, delimiting both the Exclusive Economic Zone and the
continental shelf.34 Second, the border is the “half-way instrument” between the
Norwegian and Russian pretention lines. Third, in cases involving trans-boundary
reservoirs of oil and gas; a joint venture scheme is established between the parties
based on the ratio of the geographical distribution of the reservoirs. Fourth, the
fisheries allocation between Norway and Russia is not affected by the agreement. The
Bilateral Norway-Russia Fisheries Commission will continue to negotiate the
common stocks every year pursuant to the terms of the 1976 Norway-Russia
Agreement on Reciprocal Fisheries Relations.35 In practice, the common stocks are
the Norwegian Arctic cod, haddock and capelin. Fifth, regarding the EEZ
jurisdiction, the two parties came to a special arrangement. A pendent area of 3400
km2 (Grey triangle east of the borderline and west of the median line) has been
transferred to Russia.36 Sixth, the two countries’ jurisdiction is settled, both in the
Barents Sea and in the Polar Sea. And finally, the 2011 Norway-Russia delimintation
agreement terminated the Interim Agreement governing the Grey Zone Fisheries
Management System. (See figure 4).
34
For an overview, see Donald M. McRae, The Single Maritime Boundary: Problems in Theory and
Practice, in E.D.Bown & R.R. Churchill (eds.), THE UN CONVENTION ON THE LAW OF THE SEA:
IMPACT AND IMPLEMENTATION 225-234 (The Law of the Sea Institute Hawaii 1987).
35
See St.prp.nr.74 (1976-1977) Avtale mellom Norge og Sovjetunionen om gjensidige
fiskeriforbindelser, see the Norwegian Parliament (Storting) decision of December 15, 1976,
Innst.S.nr.138 (1976-1977) .
36
Henriksen & Ulfstein, supra note 2 refer to this fact, but do not criticize or comment upon its legality
under international law.
11
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Figure 1: the 2010 Norway –Russia delimitation line with terminus positions
Norway’s position is that the Agreement is “based on modern principles of
international law.”37 My focus here is on the delimitation principles solely. The
purpose of this article is to describe what these principles entail, not to describe the
substantive content of the 2010 Agreement.
4. Coming to Terms: Delimitation Procedures
In this section we will examine how to solve borderline delimitations, some of
which provoke conflicts. The starting point is the nation state’s right to unilateral
decision. This right arises from the basic principle of exclusive autonomy over one’s
own territory. Then there are the residual rights of all members of the international
society of states to execute their sovereign rights, with the exception of those curtailed
by membership in international organizations or conventions.
There are several options with regards to geographic area. First of all, are the
instruments under exclusive coastal state autonomy? These relate to the areas closest
37
Press release 15. September 2010, No. 118/10: Treaty on Maritime Delimitation and Cooperation in
the Barents Sea and the Arctic Ocean Signed Today (Oslo October 2010)
12
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
to the coast. Exclusive coastal state autonomy is limited to the territorial sea only; it
does not apply to Exclusive Economic Zone (EEZ) or the continental shelf. All
coastal states enjoy – within strict limits – unilateral decision-making power. Under
Article 15(1) of UNCLOS, “neither of two States is entitled, failing agreement
between them to the contrary, to extend its territorial sea beyond the median line.”
Thus, if it does not extend beyond the median line, a coastal state may unilaterally
declare a boundary towards opposite or adjacent states. Principles of international
law underpin this decision. “Although it is true that the act of delimitation is
necessarily a unilateral act, because only the coastal state is competent to undertake it,
the validity of the delimitation with regard to other States depends upon international
law.” 38 Thus, the ICJ acknowledges the coastal state’s unilateral competency, within
the framework of international law.
The coastal state’s unilateral competency is limited, however. In disputes over
how to construe the nearest points on the baselines: “The Court would therefore
observe at the outset that an attempt by a unilateral act to establish international
maritime boundary lines regardless of the legal position of other States is contrary to
recognized principles of international law, as laid down, inter alia, in the Geneva
Conventions of 1958 on the Law of the Sea”.39 This was demonstrated by the
unsuccessful British claim that 10 nautical miles was the maximum distance between
two base lines points. 40 This claim was rejected in the 1951 Anglo-Norwegian
fisheries case. 41 Where two states disagree as to whether the distance between two
points is too great, which results in the median line being extended toward the other
state, one state cannot unilaterally decide the line. Where a nation state’s position is
disputed, the dispute per se suspends the unilateral competency of the neighbouring
state. A bilateral regime takes over at that point. The two disputing adjacent or
opposite states are under an obligation to come to terms by negotiation.
38
39
40
41
The Anglo-Norway Fisheries Case, 1951 ICJ Rep 132.
The Tunisia-Libya Case, 1982 ICJ Rep. 66, para. 87.
See 1951 ICJ Rep,, especially at 131.
Id.
13
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Norway and the Soviet Union anticipated a possible borderline dispute in the
Varanger fjord. This is why the two states came up with the 1957 solution, which
drew the borderline from the nearest offshore terminus, No 415 (see figure 2). The
unclear legal situation with regards to the procedure of maritime delimitation caused
Norway and the Soviet Union to opt for a bilateral commission to fix the
geographically appropriate points upon which the median line should be drawn.
Second, beyond the territorial sea, into the EEZ and the continental shelf, bilateral
solutions are a must. Article 74 of UNCLOS 1982 provides that Parties may agree
upon one or another solution with the objective of reaching an “equitable solution,”
provided that the solution does not contravene international law. The negotiation
principle governs the area beyond 12 nautical miles. According to general principles
of international law, (see i.e. the UN Charter, Article 33.1), parties do not have a mere
duty to “sit at the table,” but must also seriously search for a viable and equitable
solution.
The parties to a maritime dispute enjoy the exclusive, unanimous power to decide
the length of the negotiation obligation, that is, how long the negotiations will last.
Parties then decide whether a “reasonable period of time” has passed. (Article 74.2)
Thus, there is no maximum limit. No international law subject or third party may
overrule the decision made by timid disputants to continue on with talks. The
Norway-Russia borderline dispute benefited from this international law position. The
countries talked for 40 years. This time was considered reasonable, and thus satisfied
international law.
14
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit

Terminus 415; at the mouth of
Grense-Jakobs river (maritime
border point # 1)

Maritime border # 2 intersection
between Norway 4 n. mile and
Russia 12 n. mile territorial sea

Maritime border # 3; median
point on the closing line Cape
Kiberg – Cape Niemtsky

The line is a ”selective utilization
of the equidistance principle”
Figure 2: the 1957 Norway-Russia agreement on the territorial sea
Where the parties have exhausted all avenues of bilateral negotiations, it is
necessary to bring in a third party to solve the dispute. Articles 15, 74 and 293 of the
UNCLOS set forth the third party solution as the necessary “next step.” When the
third party comes in, the conflict is taken out of the disputants’ hands. One issue is
whether courts have any jurisdiction at all over delimitation disputes because the
UNCLOS provisions do not set forth any clear rules or principles on this issue.
Norway’s position in the Greenland-Jan Mayen Case was that the only international
law duty imposed on the parties is a duty to negotiate.42 When Denmark (on behalf of
Greenland) and Norway failed to agree, Norway contended that the court could not
decide the case. The court rejected this argument. “To give only a broad indication of
the manner in which the definition of the delimitation line should be fixed, and to
leave the matter for further agreement of the Parties, as urged by Norway, would in
the Court’s view not be a complete discharge of its duty to determine the dispute. The
court is satisfied that it should define the delimitation line in such a way that any
questions which might still remain would be matter strictly relating to hydrographic
technicalities which the Parties, with the help of their experts, can certainly resolve.”
42
Maritime Delimitation in the Area between Greenland and Jan Mayen, 1993 ICJ Rep.77, para. 88.
15
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
The Court also refused Norway’s alternative position of “no right to judicial
legislation.” The Russian Judge Vereshchtin is the proponent of this position. 43
Because there was no existing legal rule available to decide the dispute, Norway
insisted that the Court in the Jan Mayen case could only indicate, in a general way, the
relevant arguments, elements and considerations that the parties to the dispute should
take to obtain a peaceful solution. Norway’s position is flawed.
The court, arbitration tribunal or other mediators should take the equidistance
principle as a starting point to solve the dispute. The third party decision makers
should adjust the equidistance principle, however, in accordance with the principle of
equitable solution if special circumstances occur. This principle is customary
international law as developed by the ICJ 44 and Arbitration Awards. As the ICJ
clarified in the Libya-Malta Case; “The Court is unable to accept that, even as a
preliminary provisional step towards drawing of at delimitation line, the equidistance
method is one which must be used, or that the Court is ‘required, as a first step, to
examine the effects of a delimitation by application of the equidistance method’ …
Such a rule would come near to an espousal of the idea of ‘absolute proximity’,
which was rejected by the Court in 1969 … and which has since, moreover, failed of
acceptance at the Third United Nations Conference of the Law of the Sea.”45
As argued in the next section, this rule governs courts and other third party mediators,
but it does not necessarily bind negotiations between disputants. In 2007, Russia and
Norway resolved the third borderline agreement based on the equidistance line. The
new line follows the median line direction beyond the territorial sea by crossing the
median point of the closing line between Cape Kiberg and Cape Niemtsky. It then
continues into the Barents Sea towards the point 6, which is the intersection between
the Norwegian median line – i.e. the Norwegian pretention line and the Sector line of
Russia, i.e. the Russia pretention line. Russia bases its claim in the “doctrine of
natural prolongation” 46 from its land base to the geographic North Pole. Taken at
43
Nuclear Weapons Advisory Opinion, 1996 ICJ Rep. 279-80.
As stated by the International Court of Justice in the Hague (ICJ).
45
Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 37, para. 43.
46
As was the case of Libya, see Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 33, para. 34.
44
16
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
face value, the 1926 Upper Soviet Decree is nothing more than a claim based on
might.
• The prolongation of the 1957
borderline beyond the Cap KibergCape Niemtsky closing line
• The 2007 Agreement Article 2:
borderline delimits the territorial sea,
the EEZ, the continental shelf and
other zones according to the law of the
sea.
• The terminus at point 6 is the
intersection between the sector and
median line
Figure 3: The Norway-Russia borderline beyond the territorial sea
Eo ipso it is scarcely valid under international law. It includes both discovered
and undiscovered lands, which is why it is legally baseless. As it happens, Russia
rejects that the “decree made any indication as to the status of water space adjacent to
those islands. In the following years, the Soviet government never applied the decree
of 1926 to assert that the whole triangular shaped area between the Northern Coast
and the North Pole was part of the Soviet territory or of Soviet internal or territorial
waters.” 47 We need to weigh all these factors when defining the Russia-Norway
delimitation line.
Figure 3 illustrates the 2007 Norway Russia Agreement. The line drawn there
results from the negotiation principle and is a practical adaptation to two facts: first,
that Russia maintained its claim to a Sector line; and second, that the Norwegian
median claim met at an intersection named “Point 6.” In the 2010 Agreement, the
47
Daniel Magraw, Suzanne Lalonde, Bakhtiyar Tuzmukhamedov and David D. Caron, Polar Politics:
Change in The Arctic, Proceedings of the Annual Meeting, AM. SOC. INT’L LAW 151, 155 (2008).
17
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
former Point 6 is the new Point No. 1. As such, it was the starting point for the final
solution to the parties’ conflict.
5. The 2010 Norway-Russia Negotiation Platform and Compromise
How to characterize the Norway-Russia solution? Is it “best described as a
modified median line or a modified sector line”? 48 My answer is that neither one of
these positions is accurate. The law of the sea does not prescribe any pre-determined
solution as the one and only one relief or deliverance. Parties to a dispute may opt for
whatever solution they choose, provided that it is “equitable.” (Article 74.1) Clearly
the Norwegians and Russians opted for a “half-way instrument” as their solution.
"Due to the practicalities of the case, the number of boundary posts at the
delimitation line is limited. This does not to corrupt the overall distribution of the
area, however. In the final calculation, the parties agreed upon a solution that
split the disputed area into two approximately equally sized parts."49
Before considering whether the “half-way instrument” qualifies as an equitable
delimitation, the actual half-way instrument developed in the Norway-Russia case
needs qualification. What is it? The understanding of the Norwegian government is
that the half-way instrument is “the split of the disputed area into two approximately
equally sized parts".50 Is it possible to clarify what this means?
48
Henriksen & Ulfstein raise this issue, supra note 2 at 7.
Prop. 43 S (2010–2011) Proposisjon til Stortinget [Proposition to the Norwegian Parliament on the
ratification of the bilateral agreement between Norway and Russia on the marine delimitation and
cooperation in the Barents Sea and Polar Sea] p. 6 col. 2.
50
Prop. 43 S (2010–2011) Proposisjon til Stortinget [Proposition to the Norwegian Parliament on the
49
ratification of the bilateral agreement between Norway and Russia on the marine delimitation and
cooperation in the Barents Sea and Polar Sea] p. 6 col. 2.
18
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Figure 4: Norway and Russia disputed area and pretention lines
The following analysis results from studies into the history of border agreements,
preparatory works (some of which I discuss in the the next section), and the
proposition to the Storting.51 The substance of the parties’ negotiating platform,
positions and compromise is the following: Even though Russia disregarded the
median line as the proper principle of delimitation in this particular case, Russia did
recognize the median line proposed by Norway as the Norwegian pretention line. The
reverse is also true. Norway recognizes the Russia sector line as a Russian pretention
line. These lines close the disputed area at their point of intersection. The equally
sized parts are measured from this point. Thus the half-way instrument is not related
to the baselines. Instead, the solution comes out of the historical facts over which the
disputants have been clashing for approximately 40 years.
Article 74.1 provides that the parties’ solution must build on international law.
The issue, therefore, is whether the half-way instrument, as set forth in the NorwayRussia 2010 Agreement, is a valid delimitation principle under the Law of the Sea?
Conventional international law does not provide for this outcome. However, rules
compulsory to third party solutions do not necessarily prescribe the outcome of
51
Id.
19
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
bilateral solutions. Article 74.1 does not impose any particular solution with regards
to bilateral negotiations. The discretionary power of the negotiating parties is limited
by jus cogens only. This is why I fully support Rainer Lagoni’s claim that disputants
have the legal power to bilaterally prescribe “the equitable solution” under Article
74.1. Thus, “if there is an agreement between the states there is nothing to say about
any factors which should be taken into account. They can take into account any factor
that they like if they don’t encroach upon the continental shelf of a third state.”52
Bernhard Oxman also gets it right. “When states negotiate with each other, they can
generally consider any factors that they wish, and the International Court of Justice
recently made that quite clear”.53 Thus, international law does not require the
negotiating parties to choose between a sector or a median line solution. Parties are
free to opt for a wide range of solutions, such as “non- encroachment; proportionality;
and natural prolongation in its geographic sense, or coastal-front extension.”54 Of
course, nothing prohibits parties from following ICJ judgments or Arbitration
Awards. Parties choose to do so, however, of their own free will.
I conclude, therefore, that the 2010 Norway-Russia Agreement is in accordance
with international law. Whether it should be characterized as a modified median-line
or modified sector-line is a false dichotomy.55 The agreement could best be described
as a “half-way” solution, the substance of which will be investigated in the next
section. In the following sections, I will discuss whether the Agreement represents a
one-time practical solution, or whether it adheres to a customary principle of
international law, instead. We urgently need clear cut and predictable solutions. It is
not easy to come up with them, however. Up till now, no one has discovered how to
do so.56
52
Lagoni, supra note 25 at 341.
Bernard Oxman, Introduction in E.D.Bown & R.R. Churchill (eds.), THE UN CONVENTION ON THE
LAW OF THE SEA: IMPACT AND IMPLEMENTATION 215 (The Law of the Sea Institute Hawaii 1987).
54
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v.United States), 1984
ICJ Rep. 261.
55
As discussed by Henriksen & Ulfstein, supra note 2 at 7.
56
As stated by Peter B. Beazley, Commentary in Thomas Clingan, Jr. (ed.) LAW OF THE SEA: STATE
PRACTICE IN ZONES OF SPECIAL JURISDICTION 320 (The Law of the Sea Institute Hawaii 1982).
53
20
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
6. The Basic Principle of Equitable Delimitation
“As a result of compromise, Articles 74(1) and 83(1) are
intentionally opaque. They do not provide a privileged
position to any criteria or methodology to be used by
States.”
Ted L. McDorman 57
Case law has developed the principle of equity. The purpose of negotiation is to
achieve a delimitation that is equitable, not an equal apportionment of maritime
areas.58 Thus, the parties do not come to the table to insist upon equally divided
marine basins – in casu the Barents Sea in a ratio close to 1:1. Instead, disputants
negotiate to find solutions that both sides can live with. The very purpose of the
median line, however, is to split the adjacent waters into two approximately identical
sized areas. This is why I agree with David A. Colson, who has stated that “[t]he
provisional equidistant line does not imply a legal presumption in its favor.” 59
What is the jurisdictione ratione materiae of the equity principle? As a starting
point, we need to agree that the sources that bind the International Court of Justice are
not only those principles already recognized as law. In addition, the ICJ must adhere
to principles that many consider to be extra-legal principles. As the court stated in
the 1950 Advisory Opinion on Namibia: “International law recruited … many of its
rules and institutions from private systems of law… The way in which international
law borrows from the source is not by means of importing private law institutions
’lock, stock and barrel’ … [T]he true view … is to regard any features or terminology
which are reminiscent of the rules … of private law as an indication of policy or
principle rather than as directly importing these rules and institutions.” 60
TED L. MCDORMAN, SALT WATER NEIGHBORS — INTERNATIONAL OCEAN LAW RELATIONS
BETWEEN THE UNITED STATES AND CANADA (Oxford University Press 2009).
58
As stated by ICJ in: The North Sea Continental Shelf Case, 1969 ICJ Rep. para. 18; Maritime
Delimitation in the Area between Greenland and Jan Mayen, 1993 ICJ Rep. para. 64; and Marine
Delimitation in the Black Sea (Romania-Ukraine), 2009 ICJ Rep. 100, para. 111.
59
Colson, supra note 1 at 101.
57
60
See Judge McNair, 1950 ICJ Rep. 148.
21
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Both Norway and Russia are parties to UNCLOS 1982. As such, both are bound
by Articles 74 and 83. Under the terms of these articles, both parties must agree upon
delimitation lines that fulfill the objective of an “equitable solution.” The reference to
equity in the legal language refers to the institution of equity and its principles. Both
are incorporated into international law. “Equity as a legal concept is a direct
emanation of the idea of justice. The Court whose task is by definition to administer
justice is bound to apply it.” 61
That said, what is the equity principle all about? Does the Norway-Russia “halfway instrument” qualify as equitable delimitation? If it is a legally binding
instrument, then the parties must be equally bound by equity because in international
law, “the legal concept of equity is a general principle directly applicable as law.” 62
The ICJ has maintained this principle when deciding a wide range of cases. In the
Barcelona Traction Case, for example, the Court defined its role as existing “to
confirm and endorse the most elementary principles of morality”.63 Equity forms part
of both third party solutions and bilateral agreements. Therefore, the importance of
the equitable principle, as construed by the International Court of Justice and
Arbitration Awards, is not limited to its value for judicial precedent. It also serves as
a guideline to states parties in future delimitation conflicts.
As the ICJ has stated explicitly, the “[a]pplication of equitable principles is to be
distinguished from a decision ex aequo et bono.”64The Statute of the International
Court of Justice (1945) also distinguishes the two in Article 38. Thus, our task here is
to consider whether the “half-way-solution” enjoys the status of valid international
law (as discussed in Section 8).
Let’s look at some of the factors the court has taken into consideration when
deciding delimitation cases. This is a non-exhaustive list of considerations. 65 First
and foremost, are there any disparities in the relevant coastal lengths? Great
61
1982 ICJ Rep. 60, para. 71.
Id.
63
1970 ICJ Rep. 23.
64
1982 ICJ Rep. 60.
65
For an overview and discussion of the present development, see Colson, supra note 1 at 91-107.
62
22
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
disparities, like the ones in the case of Jan Mayen-Greenland (1:9) 66 and TunisiaMalta (1:8) are relevant. Lesser disparities, like the ones in the Romania-Ukraine
(1:2.8) 67 case are not. Second, what about any cut-off effect? Should it be
considered? Disparities and cut offs are particularly relevant to the Barents Sea
delimitation. The Norway-Russia coastal zone ratio is approximately 1:6. According
to the ICJ, this is a major disparity. However, if implemented as the final borderline,
the unmodified sector line would create impossible cut off effects not only to the
territorial sea, but also to the undisputed territory of Norway at Spitsbergen according
to the Svalbard Treaty of 9th February 1920.
Third, are there any special circumstances surrounding other maritime
delimitations in the area? Special circumstances include the nature of the sea and land,
concavity, convexity, and direction of the current land base. Are they any islands
located in the area?
Fourth, should the parties’ conduct be the “line arising from a tacit agreement or
a modus vivendi?” 68 As explained earlier, the court has explicitly refused to weigh the
parties’ conduct in earlier decisions. Fifth, has a particular borderline created special
security considerations? This has been a relevant factor in the equity inquiry in the
above referred cases.
Leaving aside the third party solutions and the factors that are relevant to the
principle of equity, under a bilateral scheme, any other factors considered appropriate
by the disputants to obtain “an equitable solution” are also relevant as long as they do
not contravene Jus Cogens principles.
7. Is the Norway-Russia Result Influenced by the Grey Zone Arrangement?
Does the Grey Zone Agreement limit the Norway-Russia options? Has either
Norway or Russia acquiesced in a particular line of division as the principle of
delimitation pursuant to this intermediate agreement?
66
See Jonathan I. Charney, Maritime Delimitation in the Area between Greenland and Jan Mayen, 88
AM. J. INT’L LAW, 105, 105-109 (1994).
67
2009 ICJ Rep. 98, para. 104.
68
Romania-Ukraine Case, 2009 ICJ Rep. 123, para. 189.
23
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
The Grey Zone Agreement does not suggest such a position. The background to
this intermediate solution was fisheries concerns. Both parties put petroleum
explorations on hold when negotiating the Grey Zone Agreement. Because Norway
and Russia were afraid that foreign fishing fleets were emptying the fish-rich fishing
grounds of the Barents Sea, both countries introduced the Exclusive Economic Zone
in 1977. In the interregnum before the countries were able to settle a final delimitation
line, IUU fishing in the loop holes and the high sea continued unabated. Both parties
were anxious about this situation. Thus, even though the two countries disagreed on
the adjacent and opposite delimitation, they were both able to agree that they needed
several rounds of negotiations before they could ultimately resolve their differences.
The so-called Grey Zone Agreement was reached against this background to serve as
an interim and practical agreement for the time being. 69 Its purpose was in no way
intended to delimit the continental shelf. It cannot qualify as a tacit acknowledgment
by the parties to any particular future solution.
This is not the place to present or discuss the many aspects of this
arrangement. Because the Grey Zone Agreement is no longer valid, I am mainly
interested in discussing whether there are any Grey Zone influences on the final 2010
Norway-Russia Agreement. As explicitly stated in the intermediate agreement, the
Grey Zone is a practical solution to fisheries management in an adjoining area of the
Barents Sea (map in figure 5, see the dotted area). Flag state jurisdiction governed the
respective coastal state’s fishing vessels. Third state vessels applied for and were
issued licenses by the relevant coastal state, but the coastal state’s licensing terms and
procedures were governed by the Norway-Russia Grey Zone Agreement. Clearly, this
now-terminated zone agreement did not affect the allocation of fish between two
countries.70
69
St.prp.nr.70 (1977-1978) Avtale mellom Norge og Sovjetunionen om en midlertidig praktisk ordning
for fisket i et tilstøtende område i Barentshavet med tilhørende protokoll og erklæring (Grey Zone
Agreement) and the Norwegian Parliament (the Storting) decision of March 9, 1978, see Innst.S.nr. 190
(1977-1978).
70
This is regulated by two agreements on fisheries cooperation of 11th April 1975 and 15th October
1976.
24
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Sector line
Grey zone
Figure 5: The dotted area is covered by the Grey Zone Agreement
De jure understanding is that the intermediate solution shall not “jeopardize or
hamper the reaching of the final agreement”.71 Both parties emphasized this
repeatedly for more than 30 years during the annual negotiations that took place to
prolong the 1978 Agreement. The parties also stated this explicity to the UN
Commission on the Limits of the Continental Shelf (UNCLOS 1982, Annex II). The
Commission’s work on the acknowledgment of the outer borders of the coastal state
shelves should not prejudice in any sense the remaining bilateral questions on
overlapping claims.72
De facto one cannot disregard such a long lasting intermediate solution and claim
that it had no influence upon the agreement that finally solved the dispute. My
71
St.prp.nr.70 (1977-1978) Avtale mellom Norge og Sovjetunionen om en midlertidig praktisk ordning
for fisket i et tilstøtende område i Barentshavet med tilhørende protokoll og erklæring (Grey Zone
Agreement) and the Norwegian Parliament (the Storting) decision of March 9, 1978, see Innst.S.nr. 190
(1977-1978).
72
Prop. 43 S (2010–2011) Proposisjon til Stortinget [Proposition to the Norwegian Parliament on the
ratification of the bilateral agreement between Norway and Russia on the marine delimitation and
cooperation in the Barents Sea and Polar Sea] p. 4 col. 2.
25
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
understanding is that the Grey Zone necessarily delimits the direction that the final
line of delimitation would take. Because the Grey Zone extended from a line west of
the Sector Line and also extended, in part, from a line east of the median line, this
“bottleneck” was not particularly severe or burdensome. I would thus conclude, as did
the ICJ in the Libya-Malta Case, that the “history of the dispute, and of the legislative
and exploratory activities in relation to the continental shelf, do not require to be set
out at length, since the Court does not find that anything of moment turns on
considerations derived from this history.”73
8. The “Half-Way Instrument” - jurisdictione ratio materiae
As a starting point, we have to agree on the sources of equity as a delimitation
principle. Equity is codified law of the sea and was previously customary
international law.74 “The combined ‘equidistance-special circumstances rule’, in
effect, gives particular expression to a general norm that, failing agreement, the
boundary between States abutting on the same continental shelf is to be determined on
equitable principles.” 75 The puzzle here is whether a discretionary equity law of
delimitation can include a more or less fixed half-way-principle? If it can, what is the
substantive rule? As to the “half-way” solution, what are its parameters? In other
words, “half way” between what? Are these social, political or geographic factors?
Clearly, they cannot be economic factors because they are not relevant to the equity
inquiry: “The Court is, however, of the view that these economic considerations
cannot be taken into account for the delimitation of the continental shelf areas
appertaining to each Party.” 76
The intricate question is whether the half-way solution is a customary law
principle at all. The question is two-fold. First, is it indeed a practical, concrete, and
73
Case Concerning the Continental Shelf; Libya-Malta, 1985 ICJ Rep. 28, para. 24.
For a general account, see PETER ØREBECH & FRED BOSSELMAN, ET AL, THE ROLE OF CUSTOMARY
LAW IN SUSTAINABLE DEVELOPMENT, in particular, Chapter 9 (Cambridge University Press 2005).
75
Anglo-French Delimitation Case (1977) UN Rep. of International Arbitral Awards (RIAA) Vol.
XVIII, p. 45, paragraph 70
76
Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 77, para.
107.
74
26
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
periodically adjusted “equitable solution” upon which no firm line of normative
structure is set forth? If it is, then what is its substantive content?
The disputants’ agreements do not preclude any particular solution, nor do case
law or the “teachings of the most highly qualified publicists of the various nations” 77
prohibit the parties from taking into account any concern they find relevant.78 Thus,
any “half way instrument” of whatever kind is appropriate if the parties so decide.
The main purpose of this section is to consider evolving delimitation practices.
Does the “half-way” method, as practiced by nation states or reached in third party
solutions, satisfy international law? Does the equity principle acknowledge a halfway-solution in order to solve delimitations conflicts?
A. General Introduction
Before discussing state practices on the delimitation of disputed areas, I must
make some general comments upon the position of “half-way-solutions” under
international law. The “half-way” solution is widely recognized in most fields of
diplomacy and international law. See, for instance, the U.S – India Civil Nuclear
Deal, which, according to the former U.S. Secretary of State, Condoleezza Rice,
represents a halfway instrument that is the best way to preserve international
safeguards and peace.79 In relation to the Iraq sanctions approved by the U.N.,
political theory studies show the bargaining model as a “halfway point between
continuing and ending sanctions”.80 This is difficult to prove in situations of mismatch
between disputants, cf. the “American Empire Debate”.81
While half-way instruments are complicated in non-quantifiable conflicts, they
are much more straightforward where the disputants’ positions are clear and where the
conflict relates to measurable discrepancies. This is the context in maritime
77
Statute of the International Court of Justice, art. 38, para. 3(d), June 26, 1945, T.S. 993.
See Lagoni, supra note 25 at 341. See also, Colson, supra note 26 at 220.
79
Kate Heinzelman, Note: Towards Common Interests and Responsibilities: The U.S.-India Civil
Nuclear Deal and the International Nonproliferation Regime, 33 YALE J. INT'L L. 447, 460 (2008).
80
Euclid A. Rose, From a Punitive to a Bargaining Model of Sanctions: Lessons from Iraq, 49 INT’L
STUDIES QUARTERLY, 459, 461 (2005).
81
See Daniel H. Nexon & Thomas Wright,; What's at Stake in the American Empire Debate, 101 AM.
POL. SCI. REV.253 (2007), with further references.
78
27
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
delimitation matters. Under the law of the sea, the negotiation principle, grand
bargaining and half-way instruments all have a role to play. Since the early
discussions on the UNCLOS I, which ultimately concluded the four 1958 Geneva
Conventions on the Law of the Sea, the International Law Commission (ILC) has
included the half-way solution as a possible conflict solving instrument. For instance,
in the ILC discussion on the regime of the high seas,82 a half-way instrument was
discussed in relation to the coastal state’s regulatory competence beyond its territorial
sea. In the end, however, it “did not seem feasible” even though “the true
requirements of equality were met” (paragragh 27). Granted, these problems were
somewhat different from the borderline problems discussed here. Nonetheless, the
ILC has determined that the half-way instrument satisfies equity law. This general
observation is important. My understanding is that a half-way instrument may be
invoked in most law of the sea conflicts.
Focusing on maritime delimitation, it is clear that the “half-way instrument” is a
function of the factual context: namely, the political situation of overlapping claims
and the discontinuous, conflicting jurisdiction over seabed and waters. This is why
the parties have to solve these disputes in legal and political forums. In this context,
grand bargain theories play a role. Parties also share the basic understanding of “the
principle that although all States are equal before the law and are entitled to equal
treatment, ‘equity does not necessarily imply equality’ (I. C. J. Reports 1969, p. 49,
Section 9l).” 83 This is the special circumstances discussion. What are special
circumstances? What situations trigger a modification to the equidistance method?
B. The Irrelevant Argument of Resources Utilization
Third parties who adjudicate borderline disputes treat the following factors as
relevant. Are there any disparities in relevant coastal lengths? Would one or the other
Yearbook of the International Law Commission, ‘Vol. I: New Draft Articles on Fisheries,
A/CN4/79,/CONF.10/6 (301st meeting – 31 May 1955) p. 109.
83
See Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 39, para. 46.
82
28
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
borderline produce any possible cut-off effects?84 Are there any special
circumstances, such as barren reefs, remote, uninhabited islands or other maritime
delimitations in the area (see Section C)? What is the nature of the disputed waters? Is
an agreement already in place based on the parties’ conduct, i.e. binding tacit or
Modus Vivendi solutions? Should security considerations be taken into
consideration?85
Sometimes resources utilization arguments are listed among the special
circumstances that justify a departure from the equidistance principle. Resources
utilization is one of the special circumstances listed as relevant to the adjustment of
pure geographic and geomorphological measurement. At the same time, however,
“[r]esource-related criteria have been treated more cautiously by the decisions of
international courts and tribunals, which have not generally applied this factor as a
relevant circumstance”.86
Instead of applying such complicated and complex reasoning, would it be better
to apply the proportionality principle somewhat mechanically? Perhaps reinstating
the principle of half-way instrument would suffice (see Section D)?
C. The Role of the Proportionality Principle
Before discussing the position and role of “half-way instruments,” I will consider
the position of the proportionality principle in the delimitation process. The half-way
option that Norway and Russia chose complies with the most recent case law
development. The parties departed from fixed, treaty-prescribed principles in favour
of a case-by-case view where the ultimate objective was to reach an “equitable
solution.” This is very similar to the equidistance/special circumstances method
applicable in delimitation of the territorial sea. It involves first drawing an
equidistance line, then considering whether there are factors calling for an adjustment
Weighed as a relevant factor in the ICJ’s holding in Romania-Ukraine Case 2009 ICJ Rep. para.
199-201.
85
A relevant factor for the ICJ in the Romania-Ukraine Case, Id. at para. 202-204
86
Arbitral Tribunal in the case between Barbados and Trinidad and Tobago Award of 11 April 2006,
RIAA, Vol. XXVII, p. 214, para. 241
84
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
or shifting of that line in order to achieve “an equitable result.” 87 Shifting from the
equidistance line to another more equitable line does not require or imply a shift in
principles. Instead, it involves only a shift in methodology.
“The Court observes that … the relevant area is pertinent to checking
disproportionality. This will be done as a final phase of methodology. The
purpose of delimitation is not to apportion equal shares of the area, nor indeed
proportional shares. The test of disproportionality is not in itself a method of
delimitation. It is rather a means of checking whether the delimitation line arrived
at by other means needs adjustment because of a significant disproportionality in
the ratios between the maritime areas which would fall to one party or other by
virtue of the delimitation line arrived at by other means, and the lengths of their
respective coasts”.88
Thus the equidistance line is the starting point which may then be adjusted by
such relevant factors as the disparity, or the disproportion, of coastlines. However, the
proportionality method is not the easy fix that replaces the vague, discretionary and
unpredictable “equity solution.”
“Its weakness as a basis of argument, however, is that the use of proportionality
as a method in its own right is wanting of support in the practice of States, in the
public expression of their views at (in particular) the Third United Nations
Conference on the Law of the Sea, or in the jurisprudence.”89
The ICJ took a similar position recently. “This is not to suggest that these
respective areas should be proportionate to coastal lengths”.90 Only “a substantial
difference in the lengths of the parties’ respective coastlines may be a factor to be
87
Cameroon-Nigeria Case 2002 ICJ Rep. para. 288.
Romania-Ukraine Case, 2009 ICJ Rep. Para. 110.
89
Libya-Malta Case 1985 ICJ Rep. 45, para. 58.
90
Romania-Ukraine Case, 2009 ICJ Rep. 103, para. 122.
88
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
taken into consideration in order to adjust or shift the provisional delimitation line”.91
Accordingly, I agree with Ted L. McDorman when he says that “In light of the recent
case law, both of these roles for proportionality are questionable”.92 Thus, we need
alternative principles to better predict how to solve future delimitation conflicts.
D. Delimitation Practices: The Reinstatement of a “half-way instrument”?
Do emerging state practices and third party solutions evidence new legal
developments? The task is to consider the 2010 Norway-Russia solution in light of
state practices. As mentioned earlier, several maritime space conflicts have
successfully sought out half-way principles to obtain the prescribed “equal solution”
of UNCLOS Articles 74 and 83.93 The puzzle is whether these solutions qualify as
international customary law, or do they constitute evolving law, i.e. the praeter legem
position? Is the half-way option an evolving principle of law based on its proven
success rate at solving conflicts?
In 1909 a half-way instrument in maritime delimitation was introduced as a
preview to the instrument’s more recent success. The successful introduction took
place in the Arbitration Award in the Norway-Sweden border case.
91
The Cameroon-Nigeria Case, 2002 ICJ Rep. 446, para. 30.
MCDORMAN, supra note 55.
93
See the list of cases modifying the full effect of equidistance principle, in Id. at 201.
92
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Figure 6: Norway- Sweden maritime delimitation of 1909
“From point 18 situated as indicated on the chart annexed to the
project of the Norwegian and Swedish commissioners of August 18,
1897, a straight line is traced to point 19, constituting the middle point
of a straight line drawn from the northernmost reef of the Roskaren to
the southernmost reef of the Svartskjar, the one which is provided with
a beacon;
From point 19 thus fixed, a straight line is traced to point 20,
which constitutes the middle point of a straight line drawn from the
northernmost reef of the group of reefs called Stora Drammen to the
Hejeknub situated to the southeast of Heja Islands; from point 20 a
straight line is drawn in a direction of west 19 degrees south, which
line passes midway between the Grisbadarna and the Skjottegrunde
south and extends in the same direction until it reaches the high sea”.94
Thus; the delimitation principle upon which the tribunal based its Award is the
“middle point of a straight line” and a line drawn “midway” between two important
94
The Hague Court Report, The Arbitration Award; The Grisbadarna Case (1909) p. 133.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
fishing grounds over which both Norway and Sweden claimed sovereignty. The basis
for the tribunal’s consideration was the two overlapping pretention lines that Norway
and Sweden presented to the Court, as indicated by the above map.
The Libya-Malta Case, decided under customary international law,95 produces
fruitful understanding on the role and importance of state practice. “The Court for its
part has no doubt about the importance of State practice in this matter.” The practices
are relevant factors of interpretation. Nevertheless, because the practices are rather
ambiguous, it is unclear which principle of law governs in conflicts between states on
opposite or adjacent, overlapping, geographical claims:
“Yet that practice, however interpreted, falls short of providing the existence of a
rule prescribing the use of equidistance, or indeed of any method, as obligatory.
Even the existence of such a rule as is contended for by Malta, requiring
equidistance simply to be used as a first stage in any delimitation, but subject to
correction, cannot be supported solely by the production of numerous examples
of delimitations using equidistance or modified equidistance, though it is
impressive evidence that the equidistance method can in many different situation
yield an equitable result”.96
Thus, the equidistance principle – which is identical to the median line “since the
method of delimitation is the same for both”97 – may in some instances fully adapt to
the equitable result, as held by the ICJ in the Cameroon-Nigeria Case.98 In the LibyaMalta Case, the parties seemed to agree that special circumstances existed that
justified a modified principle however: “Parties have indicated that the consequences
of the application of any method initially adopted are to be tested against certain
criteria in order to check the equitableness of the result”.99 Libya argued that neither
party faced a problem of overlapping continental shelves due to a “rift zone.” The ICJ
95
Case Concerning the Continental Shelf; Libya-Malta, 1985 ICJ Rep. 29, para. 26.
Id. at 38, para. 44.
97
Marine Delimitation in the Black Sea (Romania-Ukraine), 2009 ICJ Rep. 101 para. 116.
98
Case Concerning theLand and Maritime Boundary between Cameroon and Nigeria, 2003 ICJ Rep.
448, para. 306.
99
Case Concerning the Continental Shelf; Libya-Malta, 1985 ICJ Rep. 24, para. 19.
96
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
rejected this claim “since the distance between the coasts of the Parties is less than
400 miles”.100 Because the court fully rejects the geological principles of delimitation,
factors relevant to a legal solution include only socio-political principles. “As the
Court has found above, the law applicable to the present dispute, that is, to claims
relating to continental shelves located less than 200 miles from the coasts of the States
in question, is based not on geological or geomorphological criteria, but on a criterion
of distance from the coast or, to use the traditional term, on the principle of adjacency
as measured by distance.” [Italics added.] 101
The Court then turned its attention to the actual principle to apply in the case of
the Libya-Malta delimitation, which involved a “delimitation as between rival
claims.”102 In this holding, the Court refrained from considering base-points along the
straight baseline of Malta. This would have included an uninhabited island. Thus,
Malta’s equidistance claim came out differently when measured from the straight
baseline, including the uninhabited island, and whether the perpendicular through
base-points along the Tunisian coast was taken as basis than it did when this
perpendicular was not taken into account. On these two different starting points, two
different lines were imposed: “Once it is contemplated that the boundary requires to
be shifted northward of the median line between Libya and Malta, it seems
appropriate first to establish what might be the extreme limit of such a shift.” 103
The 1977 Arbitration Award between Great Britain and France relied on the
importance of “special circumstances." As stated by the panel;
“A number of examples are to be found in State practice of delimitations in which
only partial effect has been given to offshore islands situated outside territorial
sea of the mainland. The method adopted has varied in response to the varying
geographical and other circumstances of the particular cases, but in one instance,
at least, the method employed was to give half, instead of full, effect to the
offshore island in delimiting the equidistance line. The method of giving half
100
Id. at 35, para. 39.
Id. at 46, para. 61.
102
Id. at 47, para. 62.
103
Id. at 51, para. 71.
101
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
effect consists in delimiting the line equidistant between the two coasts, first,
without the use of the offshore island as a base-point and, secondly, with its use
as a base-point; a boundary giving half-effect to the island is then the line drawn
mid-way between those two equidistance lines. The method appears to the Court
to be an appropriate and practical method of abating the disproportion and
inequity…”104
Figure 7: The half-way of the Great Britain-France overlapping pretention lines
Several aspects of this award are illustrative. The two overlapping approximation
claims – the southern UK claim which took the Scilly Islands into consideration, and
the northern French claim, which overlooked these UK islands – are taken as the
boundaries upon which the half-way instrument is drawn.
The British and French pretentions were taken as a fait accompli upon which the
award was given. The 1982 ICJ holding in the Tunisia and Libya continental shelf
delimitation applied the “half-effect” principle. The court drew two lines – one east
104
Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great
Britain and Northern Ireland, and the French Republic, Arbitration Award Decision of 30 th June 1977.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
of the Kerkennah Islands, and another as the perpendicular from Gulf of Gabes and
the Cape of Ras Kabodia as illustrated by the following map (figure 8):
“The Court would recall however that a number of examples are to be found in
State practice of delimitations in which only partial effect has been given to
islands situated close to the coast; the method adopted has varied in response to
the varying geographical and other circumstances of the particular case. One
possible technique for this purpose, in the context of a geometrical method of
delimitation, is that of the "half-effect" or "half-angle".”105
The court chose the “half-effect” or “half-angle” principle reasoning that Libya’s
domestic regulation sea border lines were not “opposable to Tunisia, that the ZV 45o
line is not opposable to Libya … neither can be taken into consideration for the
purposes of this Judgment”.106 On the other hand,
“It is to be noted that in the present case Tunisia, having previously argued in
favour of a delimitation by the equidistance method for at least some of the area
in dispute, contended in its Memorial that the result of using that method would
be inequitable to Tunisia; and that Libya has made a formal submission to the
effect that in the present case the equidistance method would result in an
inequitable delimitation. The Court must take this firmly expressed view of the
Parties into account.” 107
105
Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep.79, para.
110.
106
Id. at 69, para. 92.
107
Id. at 79, para. 110.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Figure 8: The Tunisia and Libya pretention lines (left) and borderline and halfeffect principle of islands (right).
On this basis, the Court’s holding resulted de facto – as indicated by the map in
figure 7 – in two, close to half-way instruments between the Tunisian pretention lines
from Ras Agir indicated by the left map, and the Libyan pretention line from that
same land based terminus. Perhaps one might see this as an early sign of the mid-way
instruments to come?
The next case that has a bearing on our investigation into the “half-way-solution”
is the Gulf of Maine Case.108 This Court decision considers not onlythe “half-effect”
of a particular Island (Machias Seal Island), but also “half-effect” of some
geographical peculiarities (Chebogue Point). The Court was unwilling to give full
effect to the geographic configuration of Nova Scotia with its southernmost island.
“The Chamber however considers that it would be excessive to treat the coastline of
Nova Scotia as transferred south-westwards by the whole of the distance between Seal
Island and that coast, and therefore thinks it appropriate to give the island half
108
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v.United States), 1984
ICJ Rep. 246.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
effect.”109 As indicated by the two maps in the figure, the judicially determined
borderline is politically motivated and not a mechanical solution resulting from pure
geodetic and geometrical factors.
While the decision seems rather technical because it takes geodetic and geometric
methods into consideration, the Court did not reject the relevance of the political or
human geography. Instead, it found both factors to “be relevant to assessment of the
equitable character of a delimitation first established on the basis of criteria borrowed
from physical and political geography.” 110 Both factors related to fishing and
exploration and exploitation of possible petroleum resources. The court did not reject
them out of hand, but instead considered them fully before finding them without
relevance to the objective of an “equitable solution.” These findings of fact led the
court to the following legal conclusion:
“In short, the Chamber sees in the above findings confirmation of its conviction
that in the present case there are absolutely no conditions of an exceptional kind
which might justify any correction of the delimitation line it has drawn. The
Chamber may therefore confidently conclude that the delimitation effected in
compliance with the governing principles and rules of law, applying equitable
criteria and appropriate methods accordingly, has produced an equitable overall
result”.111
This judgment confirms the existence of a principle of “half-effect” to geographical
peculiarities such as islands that cannot sustain human habitation. “Half-effect” can
also apply to configurations of nature which, if the equidistance principle were to be
given full effect, would result in unequal distribution of maritime space. As the maps
indicate, the settled border is a delimitation line that de facto divides the disputed area
by means of a line in between the two pretention lines even if it does not divide them
exactly in half.
109
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States), 1984
ICJ Rep. 337, para. 222.
110
Id. at 340, para. 232 .
111
Id.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Figure 9: Canada- U.S. Pretention Lines vs. Final Border Line
The Court’s emphasis on the relevance of the human and political geography to
its decision is also important. These factors are relevant to an equity solution.
Equidistance, on the other hand, measures only a set of base points, that is, the
“physical” geography.112 Physical geography is not a factor of relevance to the
“equitable solution” inquiry.
The ICJ also considered geopolitical factors in the 1993 Greenland-Jan Mayen
Case. Denmark (on behalf of Greenland) argued for a full-fledged EEZ reaching 200
n. miles from baselines on the East-Greenland coast. Norway asserted a non-modified
median line. The court rejected both parties’ claims. “The Court has come to the
conclusion that the median line adopted provisionally for both, as first stage in the
delimitation, should be adjusted or shifted to become a line such as to attribute a
larger area of maritime space to Denmark than would the median line. The line drawn
by Denmark 200 nautical miles from the baselines of eastern Greenland would
112
Romania-Ukraine Case, 2009 ICJ Rep. 101, para. 117.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
however be excessive as an adjustment, and would be inequitable in its effects. The
delimitation line must therefore be drawn within the area of overlapping claims,
between the lines proposed by each Party.”113
This reasoning takes the disputants’ asserted pretention lines as a point of
departure when seeking the equitable solution. On the one hand, the court weighed
Denmark’s claim to full extension of its EEZ without taking into consideration that
the Greenland-Jan Mayen distance was closer than 400 n.miles. By that very decision,
the median line as delimitation principle was relinquished. On the other hand, the
court also weighed Norway’s contention that it follow the median line irrespective of
any special circumstances that might occur. Consequently, the Court sought a “halfway-solution,” that is, a line closely related to the parties’ asserted line, which the
Court deemed equitable.
As demonstrated by the circumstances, the Court opted for a modified “half-way
instrument” drawn between the Norwegian pretention line – the median line – and the
full-fledged EEZ of Greenland. In the southern area – Zone 1 – capelin fishing takes
place. Here, the Court chose to grant the parties equal fishing opportunities through
the delimitation it chose. To do so, it “divide[d] zone 1 into two parts of equal
area.”114 This delimitation line, splitting Zone 1 into two equally sized areas, was
modified, however, when it continued into Zones 2 and 3. In those circumstances, a
straight half way instrument “would give too great a weight to this [the marked
disparity in coastal lengths] circumstance.”115 In Zones 2 and 3, the western section of
Greenland is nearly half the size of the eastern part of Norway. Here one can say that
the Court implemented the “method of giving half effect” to an extreme ratio of
coastal line. The reason for that was simply that neither Jan Mayen nor this northeastern part of Greenland did really “sustain human habitation.” Since the harvesting
argument was not available under the facts, the court could not justify granting the
full-fledged EEZ of Greenland. This distinguished Greenland from Iceland, which de
facto sustained human habitation on the relevant coastline. This modified half-way
instrument is similar to the one held in the Anglo French Arbitration Award of 1977.
113
Maritime Delimitation in the Area between Greenland and Jan Mayen, 1993 ICJ Rep. 77, para. 87.
Id. at para. 92.
115
Id..
114
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
The only difference is that the award did not dismiss the effect of any islands, unlike
the Jan Mayen decision.
As I see it, the arbitral and judicial decisions granting half effect to peculiarities
which produce full effect under other circumstances are all fact driven. Coastal line
length is generally weighed in light of the number of inhabitants living on it or its
harvesting potential. Under the equity principle, only similar facts should result in
similar decisions.
It seems to me that the half effect results from factual circumstances that deviate
from the general situation. Generally there are connections between length of coastal
line, number of inhabitants and harvesting capacity. Subsistence and industrial needs
tend to mirror the size of the coastal line. If they do not, the coastal length cannot
equitably be given full account.
Figure 10: Greenland-Jan Mayen Pretention Lines and Final Delimitation A-M
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
In the Romania-Ukraine Black Sea judgment,116 the Court made no explicit reference
to half-way, half-effect, or other similar principles. Of course, the parties’ positions
did not require the Court to respond in this way.
Figure 11: Romania-Ukraine Pretention Lines (left map) and Final Borderline
(right map)
What is clear is that the court did not consider the half-effect principle, or any
other factor that might be relevant to a finding of “special circumstances” that would
modify the equidistance principle. First of all, the court rejected the contention that
the disproportionality between the ratio of coastline (1:2,8) versus the ratio of the
divided waters (1:2,1) constituted a special circumstance that would justify an
alternative borderline. “The Court is not of the view that this suggests that the line as
constructed, and checked carefully for any relevant circumstances that might have
warranted adjustment, requires any alteration.”117
Secondly, the equidistance line, according to the ICJ, fully satisfied the “equitable
solution” required under Articles 74 and 83 of the UNCLOS. See Figure 11:
116
117
Marine Delimitation in the Black Sea (Romania-Ukraine) 2009 ICJ Rep. 100, para. 111
Id. at 130, para. 216.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Romania-Ukraine Pretention Lines (left map) and Final Borderline (right map).
Comparing the two, one may easily see that the equidistance line closely follows a de
facto half-way instrument between the two pretention lines of Romania and Ukraine,
respectively. This solution is perhaps unintended. At the very least, it does not result
from a rational line of thought. Whatever the case, my reflection is that equitable
solutions should, in real life, allocate space that is in a reasonable ratio to the
disputants’ pretentions. This is the only way to keep it equitable. As indicated by the
maps in Figure 11, the the Court divided the disputed seas between Romania and
Ukraine into relatively equally sized divisions of the disputed maritime areas between
the two pretention lines. The Court did not expressly perform a half-effect analysis in
its holding, nor did it provide any language to that effect in its reasoning. Nonetheless,
the court’s decision created a half-way instrument. Since Termini 4 and 5 follow the
median line as proposed by Romania, there is no half-way instrument in this portion.
The more or less half-way instrument relates to the northern part of the disputed area,
as illustrated by Termini 1- 3.
E. Resulting in Customary Law or General Principles of Law?
The international law is dynamic: As told by the Swedish professor of
international law Torstein Gihl: The international customary law is clearly not static,
to the contrary dynamic and ever changing and a state intervention contrary to past
practice which in the first hand seems to express a breach of international law is
simply the first step into a brand new rule of law.118
Sometimes new customary rules are practice driven, whether its development is
monistic, dualistic or mediator either by unilateral, bilateral or trilateral approach. In
Torsten Gihl: ”Aktuella problem inom folkrätt och allmän rättslära”. [Contemporary Challenges of
International Law and Theory of Law] Svensk juristtidning [Swedish Journal of Jurisprudence] 1953 p.
356, at p. 366: “Den internationella sedvanerätten står ju icke stilla utan befinner sig i ständig utveckling,
och en statsåtgärd, som strider mot tidligare praxis och följaktligen i första hand ter sig som en
folkrättsbrott kan ju helt enkelt betyda uppkomsten av en ny folkrättsregel” (translation by this author).
118
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
other instances new principles of law are established or resurrecting from . In this
section some main considerations are launched to materialize possible solutions to the
puzzles on which are the switches that form new international law. First one need to
consider the bottom-up production of law, the more or less concerted state practice
that produces customary laws. Secondly a top-down transformation of political,
moral, religious or other extralegal principles into general principles of law.
1. Sometimes experience tells us that the world of factual acts constitutes
normative structures. The theoretical platform is found in the Georg Jellinek position
on “Die Normative Kraft des faktischen”. There are several routes here: One
illustration is the Indian Passage Rights Case” (India and Portuguese colony Dão): a
“constant and continual practice between two nations”. This does necessarily not
create principles of law nor international customary law. The mechanics is as
follows; For state No 1 an action is carried out because it is believed to be a legal
obligation; or said otherwise; since this is believed to be the law, therefore this action!
For state No 2 things appear differently: since states per definition are law abiding;
the State No 1 action is the visible sign of the law; or said otherwise; this is observed
by state No 2 as an action uncovering underlying norms; the practice unveils the
underlying law! Such practices or changes in practices may have an instant character.
It is important to state that “a passage of only a short period of time is not necessarily,
or of itself, a bar to the formation of a new rule of customary international law”
(North Sea Continental Shelf Case, 1969). A practice followed and found reasonable
over time and by many may result in customary laws. “To constitute the opinio
juris… two conditions must be fulfilled. Not only must the acts concerned amount to a
settled practice, but they must also be such, or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the existence of a rule
of law requiring it. The need for such a belief, i.e., the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitates (North Sea
Continental Shelf Case (1969) § 76-77).
Such a practice is sometimes unilateral and undisputed; i.e. the well-known tacit
and explicit recognition by the international societies of states with regard to the 1945
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
Truman Proclamation on the Continental Shelf. Common to all these instances is the
need for acknowledgment by the international societies of states.’
Other solutions results from negotiations and bilateral agreements, like the
Norway-Russia Delimitation Agreement of 2010. No one seems to have challenged
that the delimitation principle is contradictory to international law (which has to some
legal scientists been a topic of interest).
As displayed here, several arbitration awards and court decisions opt for
geopolitical solutions and several of which points in the direction of “half way
solutions”. Whether these practices have resulted in new customary law or perhaps we
are on route towards a new principle – a praeter legem position – is impossible to say.
If such new customary law rules are in its coming, one certainly need to stress that the
half way solution rely upon the basic justification of equitable solution, which
indicated that quite odd or exorbitant pretention lines taken by the proponents as their
starting points inflates the platform for any half way solution. Thus, only wellconceived and recognizable positions do qualify for the “half-way solution”.
2. However; not all repeatedly copied activities result in customary laws: “There
are many international acts, e.g., in the field of ceremonial and protocol, which are
performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty”.119 Sometimes
developments end up in general principles of law and not customary law. We are here
oriented towards either 1. Something that the courts acknowledges as such; i.a. Rebus
sic santibus & pacta sunt servanda or 2. Something that the international societies of
states recognizes as such; 3. On the other hand: International Court of Justice
rejected arguments that because most legal systems follow a particular rule that
acknowledge a right, this fact alone does not establishes a principle of international
law.(Right of Passage over Indian Territory (India v Portugal 1960 ICJ 6): The
division between extra-legal and legal norms: Nicaragua Case, ICJ 1986, 100 §.187:
119
North Sea Continental Shelf Case ( ICJ. Rep. 1969) § 76-77.
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Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
A general practice, necessarily not uniform & uninterrupted with a considerable
degree of consistency in addition to Opinio juris sive necessitates.
9. The “Half-Way Principle” - A Conclusion
The idea of a “circular history”120 points at the possible reinstatement of ancient
concepts and principles. This study has shown that the legal language codified in
Articles 74 and 83 of UNCLOS has changed meaning even though the words
themselves have not been changed. The test that started out as basically a geometric
measurement has been reconfigured as a mainly political test. The development of
half-way outcomes of overlapping and contradictory diplomatic pretentions represents
a dramatic change in the understanding of “equitable solution.” This study, therefore,
supports Hans Kelsen in his view that modern legal systems are dynamic 121 to keep
up with the changing living fabric of life.
As this study reveals, there are subtle signs of a new development in the law. At
the start of the second decade of the new millennium “conflict aversion,” negotiation
and peaceful solutions to disputes encourage diplomatic and political outcomes. This
seems to swell the sails of half-way instruments.
State practice and case law provide no clear picture of the role of half-way
principles. However, because negotiating parties enjoy a high degree of discretionary
power and a wide range of relevant factors, parties are free to achieve a peaceful
solution to the borderline conflict within the framework of Jus Cogens.
Delimitation agreements and third party solutions are seldom based on the
equidistance method. Instead, parties and courts reply on special circumstances to
correct the purely geodetic method of division.
There is no fixed connection between the proportionality of the coastlines and the
allocated size of the waters and continental shelf. The coastline ratio was 1:8 in the
Libya-Malta case, and 1:9 in the Jan Mayen-Greenland case. These ratios influenced
120
121
Colson, supra note 1 at 99 .
HANS KELSEN, PURE THEORY OF LAW 193-278 (1970).
46
Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit
the ICJ’s holdings. Smaller disparities are considered irrelevant, however. For
instance, the ratio of 1:2.8 measured along the relevant coasts compared to the ratio of
1:2.1 in the distribution of off shore areas was insufficient to cause the court to find
disproportionality in the Romania-Ukraine case.
In the case of Norway-Russia, the ratio is approximately 1:6, disfavoring
Norway. The parties do not mention the ratio in the 2010 Agreement, however.
Instead, the parties have chosen to follow “a solution by which the division of the
disputed area was split into two approximately equally sized parts."122 In this
particular instance, the Norway-Russia Agreement chooses to attribute to Russia half
of the area which Russia would have lost by a strict application of the equidistance
method.
Political principles, and not just geomorphological principles, clearly govern.
Seeking the “equitable solution,” parties to the dispute or a third party mediator resort
to what are considered just divisions. These are often grounded in the “half-way”
principle, whose point of departure is not geodetic or geomorphological base points,
but politically defined pretention lines.
122
Prop. 43 S (2010–2011) Proposisjon til Stortinget (forslag til stortingsvedtak) Samtykke til
ratifikasjon av overenskomst av 15. september 2010 mellom Norge og Russland om maritim
avgrensning og samarbeid i Barentshavet og Polhavet [Proposition to the Norwegian Parliament on the
ratification of the bilateral agreement between Norway and Russia on the marine delimitation and
cooperation in the Barents Sea and Polar Sea] p. 6 col. 2.
47