Author Name:   kiruthikadhanapal@legalserviceindia.com

Equidistance and Equitable Principle under the law of the Sea

Equidistance and Equitable Principle under the law of the Sea

The law of the sea is a difficult and multiform branch of law, which comprises the norms regulating the rights and obligations of States in the marine area. Every coastal State has jurisdiction over the oceans and seas. The law of the sea, divides the seas into zones and specifies the rights and duties of States in those zones. Cooperation on maritime issues by States is very important in contributing to the maintenance of peace, security and economic well-being for all the nations of the world.

Prior to 1945, there was variety in State’s practice with respect to claiming maritime zones in which they could exercise full sovereignty over the seabed and subsoil, the water column, and the airspace. But, after World War II, this situation was soon changed. The scarcity of land-based natural resources forced States to concentrate on the exploitation opportunities of offshore resources. Furthermore, States began to realize the growing importance of the non-living resources of the high seas as being vital to their economic development. These factors resulted in the emergence of the new concept, the continental shelf (CS). The substantial role for the emergence of CS, and the establishment of national jurisdiction on it, was played by the 1945 Truman proclamation. The majority of States in a short period of time, made the similar declarations and the CS soon became accepted as customary international law.

Commercial exploitation of CS oil and gas deposits began in the 1940s and has become significant since the late 1950s with the rapid development of deep-water recovery technology. During the 1960s, again as a result of technological development, most fish stocks in the seas, which are concentrated over CS, were subject to intensive exploitation by distant-water fishing fleets. Coastal State efforts to acquire exclusive rights to manage and exploit these living resources were inevitable. The result was the emergence of the new off-shore zone, the exclusive economic zone (EEZ).

The emergence of the new maritime zones significantly increased the importance of maritime boundary delimitation in contemporary international law. International law permits a State to extend its EEZ seaward to a distance of 200 nautical miles from its baseline, as defined by article 57 of the 1982 LOS Convention. Also the CS seaward extension is at least 200 nautical miles from the baseline.

Those maritime zones of two States frequently meet and overlap, and the line of separation has to be drawn to distinguish the rights and obligations between the States. Therefore, delimitation is a process involving the division of maritime areas in a situation where two (or more) States have competing claims. For both States, this act may imply restriction of their perceived sovereign rights.

It is obvious that delimitation by agreement remains the primary rule of international law. The negotiating process is very important for achieving agreement. The delimitation process must be effected by agreement between parties on the basis of international law, as it is recognized by 1982 LOS Convention. The delimitation of the exclusive economic zone/continental shelf with the opposite or adjacent coasts shell be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

Towards The Formulation Of The Rule Of Delimitation of Sea Boundaried
The Hague Codification Conference:
Although without success, the earliest attempt by the international community to codify delimitation rules and methods was the Hague Codification Conference of 1930. This codification effort was concentrated on the territorial waters and on the delimitation between opposite States.

In a report of the Sub-committee of the Committee of Experts for the Progressive Codification of International Law, it was pointed out that under normal circumstances application of the median line would have a satisfactory result. However, a deviation might be justified by reasons of geographical, historical and other circumstances. With respect to lateral boundaries, the Convention suggested the principle of division by lines perpendicular to the general configuration of the coastline. The expert’s views were different and the topic of lateral delimitation was excluded from the draft proposals submitted by the Sub-committee.

As a result, the preparatory committee for the Hague Codification Conference inserted the draft proposal on opposite delimitation of the Sub-committee. The various delegations disagreed on the proposed draft articles. Despite efforts, the participants to the Conference could not agree on the drafting of a delimitation article.

The International Law Commission (1949-1956) And The 1958 Geneva Conference:
The earliest opportunity to carry on and finish the work of the Codification Conference came with the end of the Second World War and the establishment of the United Nations (UN) in 1945. Within the framework of the UN General Assembly, and under its auspices, the International Law Commission (ILC) was responsible for the codification of international law and for its progressive development.

At an early stage, the ILC recognised the importance of an effort to codify the international law of the sea. At its first session, the ILC drafted a provisional list which included the regime of the high seas which then included, inter alia, the CS. The regime of territorial waters was added later. The ILC established committee of experts on technical questions relating to maritime delimitation of the territorial sea. According to the ILC, these experts should keep in mind that the proposed guidelines would be equally valid and appropriate for the delimitation of the CS.

The committee met in The Hague, in 1953, and adopted certain guidelines. The committee had made clear in its report that it favoured the use of a median line in an opposite situation, but also indicated that special reasons such as navigational interests and fishing rights might call for the use of a different method. A lateral boundary should be drawn by making use of the principle of equidistance from the respective coastlines.

The recommendations of the committee of experts were welcomed by the majority of the ILC members. They used this method both for the territorial sea and the CS. Some members insisted on the preference and general use of the equidistance/median line, but other members were unable to support the rather rigid formula for lateral as well as opposite situations, stressing that it was not possible to provide a general rule to cover all cases although they recognised the practical advantage of the method.

Finally, the ILC seemed to be of the opinion that the existence of numerous exceptions and special circumstances legally justified a departure from the median/equidistance rule and they included in the draft report the formula “unless special circumstances justify another boundary.”

After finishing the drafting process, the ILC called upon the General Assembly to convene a diplomatic conference on the international law of the sea (the First United Nation Conference on the Law of the Sea). The conference was convened in accordance with a General Assembly’s resolution N1009 (XI) of 21 February 1957.

The Conference adopted the respective conventions with little modifications to the ILC draft articles. An equidistance rule based on the general principle of equidistance which allowed for some exceptions had been replaced by what was later called a combined equidistance/special circumstances rule.

In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance/median line from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

This combined rule consisted of two substantive elements, equidistance and special circumstances. As a result of this discussion, the Conference finally adopted the 1958 Geneva Conventions relating to respective maritime zones.

The Third United Nations Conference On The Law Of The Sea (1973-1982):
The Third United Nations Conference on the Law of the Sea (UNCLOS III) led to the adoption of the most comprehensive convention on the law of the sea to date.

One of the reasons for the convening of the conference was the growing number of young States as a result of the decolonization process in the 1950’s and 1960’s. Most of the new States had not been involved in the treaty-making process of UNCLOS I. Compared to 86 States participating in 1958, 165 States participated in UNCLOS III.

Secondly, these States wanted to reform the traditional negotiating and multilateral treaty-making process so as to establish a more democratic and equitable international order and among other things, and to revise the traditional law of the sea to reflect this new order.

A Sea-Bed Committee was established by the General Assembly in 1968. This Committee was considered a preparatory committee for the new law of the sea. The Sea-Bed Committee became overburdened with official statements, working papers and government proposals for draft articles on a great variety of issues.

Due to, the Sea-Bed Committee could not complete its preparatory work and UNCLOS III was convened in December 1973. The contradiction between the so called pro-equidistance States and States favouring a concept of equity seriously hampered the negotiations and became a hard issue on the agenda of UNCLOS III.

Several negotiating groups were established to achieve a solution, but it seemed that two groups of States with opposite positions worked without success in achieving a solution. During the conference, many draft proposals were presented by these two groups of States. Of course, the proponents of the equidistance line (for example: Denmark, Norway, United Kingdom, Canada, Greece, Italy, Japan) favoured the treatment of the equidistance/median line as a standard of delimitation. They insisted that it was the principle of international law governing delimitation cases, relying on Article 6 of the 1958 Convention on the Continental Shelf. They considered that the equitable principle standard was vague and subjective.

Supporters of the equitable approach (for example: France, Turkey, Ireland, Kenya, Liberia, Libyan Arab Jamahiriya, Poland, Romania) objected to the very mention of the equidistance/median line as a standard for delimitation and rejected the elevation of that standard to the status of a basic principle. The supporters of the equitable principle were relying on the decision of the ICJ in the 1969 North Sea Continental shelf case. In this case, the ICJ minimised the importance of the median/equidistance line of article 6 of the 1958 Continental Shelf Convention, and emphasized the equitable principle as customary international law on delimitation.

After long and difficult negotiations, a compromise formula for the delimitation was finally reached. The tenth session of UNCLOS III was held in New York from 9 March to 10 April. There appeared to be some agreement on a reference to international law in the delimitation criteria, but the question of its link with the delimitation agreement and with equitable principles could not be resolved. The other elements of the delimitation criteria could also not be resolved. The two Co-chairmen (Ireland for equity group and Spain for the equidistance group) reported separately on the inconclusive outcome of these negotiations to the President. Informal negotiations were also held by the Chairmen of two interest groups with the President of the Conference.

The interventions by UNCLOS III President Koh were considered necessary in order to protect the fragile consensus on the slowly crystallizing Conference text, thus continued during the resumed tenth session and eventually produced the long search for a compromise formula. Together with the help of the representative of Fiji, Koh proposed the following substantive provision on delimitation:

74/83 Delimitation of the EEZ/Continental shelf between States with opposite or adjacent coasts:

The delimitation of the EEZ/Continental shelf zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

The compromise text was eventually incorporated in the 1982 LOS Convention.

The representative of Ireland, Chairman of the equity group, said that he could confirm that the proposal did indeed enjoy widespread and substantial support in the group. Similarly, the representative of Spain, Chairman of the equidistance group, reported that he now fully supported the comments made by the representative of Ireland and that there was indeed general support in his group for the President’s proposal.

The adoption of the delimitation provision for the territorial sea was not so problematic, since the distance does not exceed 12 nautical miles and a projection of the land border which is used, which in practical terms means a median line. So Article 15 of the 1982 LOS Convention remained mostly the same as it was in the 1958 Geneva Convention. Failing agreement, and in the absence of historical titles or other special circumstances, the boundary is the median line.

The new compromise formula would protect the interests of the two conflicting groups, as well as any party to a delimitation case. The solution proposed by President Koh and accepted by a large section of the Conference, although not perfect, is workable.

However, it seems that the compromise formula is too vague and it invests the Court and tribunals with a wide power of discretion in addressing delimitation disputes. However, this compromise article is more convenient for States. If there was one prescribed method of delimitation, in many cases it would lead to inequitable results. The States are free during the negotiation process to agree on any method or methods which they consider to be equitable for them.

Also, the task of the judge is to produce an equitable and just result in the particular case. To reach such a result, the judge has to take into account the relevant circumstances of each case, not only by balancing the various circumstances, but also by balancing or composing the interests of the State in dispute.

Equidistance Principle
The 1958 Territorial Sea Convention defines equidistance as “the line every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each of the two States is measured.” The 1958 Continental Shelf Convention contains a similar definition. This Convention employs the term “median line” for an equidistant line between opposite States and refers only to a boundary determined by application of the principle of equidistance in the case of adjacent States. According to the 1958 Conventions, the use of the equidistance method was obligatory in the absence of an agreement, historical titles or special circumstances. This was called the combined equidistance/special circumstances rule.

Part II, Section 2 of UNCLOS sets out the rules applicable to the territorial sea; Article 15 provides: “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

The emergence of the principle of distance gives pertinence in normal situations to the equitable method of the equidistance/median line. However, notwithstanding the recognition of the principle of distance as the basis of entitlement to both the EEZ and the CS within 200 nautical miles, the privileged status of equidistance method was diminished by the ICJ and arbitral tribunals, it was considered as a method which in some cases may lead to inequitable and unreasonable results. In the majority of cases, it was declared that equidistance was not a binding rule of law, but merely one method among others and it was not regarded as part of customary international law which plays the major role in delimitation process. The defects of the equidistance method, even tempered by the notion of special circumstances, led to its undoing. The demolishing and toning down of equidistance went so far that the terms “equidistance” and “median line” have disappeared from the text of Article 74 and 83 of the 1982 LOS Convention. It remains only in Article 15 of the 1982 LOS Convention.

In spite of the diminishing role of equidistance, it found its way into State practice. The majority of bilateral treaties on maritime delimitation still use a line based on simplified or modified equidistance. Even in most ICJ cases and arbitral awards, judges found it convenient to use the equidistance line as the starting point in the delimitation process.

The first case brought before the ICJ in 1969 was the case between three adjacent States, and was the case which started the demolition of the equidistance principle. Through this case, it ceased to be a principle and became merely one method among others.

The second case involving adjacent States was in 1982, concerning the delimitation of the CS between Tunisia and Libyan Arab Jamahiriya. For the use of equidistance, the Court reviewed the developments since the 1969 North Sea Continental Shelf Case involving adjacent States However, since the Court considered that equidistance was not a privileged method, it applied the modified equidistance line in the second sector as a measure of equity. It seems that the Court realised that in the case of opposite coasts, the use of equidistance in combination with relevant circumstances could led to an equitable result.

In 2002, the ICJ gave judgment on the maritime boundary between two adjacent States of Cameroon and Nigeria. Beyond the territorial sea, the Court referred to the case between Qatar and Bahrain, where it had stated that […] for the delimitation of maritime zones beyond the 12 mile zone it would first provisionally draw an equidistance line and then consider whether there were circumstances which must lead to an adjustment of that line. Finally, the Court found no other reason and circumstances necessary for the adjustment of the equidistance line and decided “that the equidistance line represents an equitable result for the delimitation of the area in respect of which it has jurisdiction to give a ruling.” The 2002 Cameroon/Nigeria case was the first case between adjacent States in which the ICJ applied the equidistance line without modification.

After reviewing relevant ICJ Cases and arbitral awards concerning maritime delimitation between adjacent States, it is possible to conclude that the equidistance method is not a general rule of customary international law and not a privileged method among others. This view was expressed not only in the cases between adjacent States, but also between the States with opposite coasts. In cases with opposite States, the Court and Tribunal found it convenient to use the equidistance method as a starting point. Despite the fact that, in some cases, the equidistance/special circumstances method was subsumed into the equity principle/special circumstances rule, the Court emphasized that the equidistance method may lead to an equitable result in particular cases and not in general.

Special Circumstance
(a) Small islands
Special circumstances are those circumstances which might modify the results produced by an unqualified application of the equidistance principles. Small islands and maritime features are arguably the archetypical special circumstances as much in the delimitation of the territorial sea as in the delimitation of the continental shelf/EEZ. The Court has recognized in numerous cases, including the North Sea Continental Shelf, Tunisia/Libya, Libya/Malta and Qatar v. Bahrain cases that the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain islets, rocks and minor coastal projections. It is difficult to state from the Court's decisions any simple rule on how the disproportionate effect of such features is to be eliminated. Indeed, much depends on the circumstances of the case. The effect that a small island has on the equidistance line will vary depending on whether the island is located far from, or close to, the coast and on whether the coastlines of the parties are adjacent or opposite. In light of this the Court has adopted a variety of ways of addressing any disproportionate effect. In most cases, however, the Court will give the maritime feature a partial effect on the delimitation line (for example by adjusting the equidistance line as if the island were located closer to the coast of the State which has sovereignty over it, as occurred in the Gulf of Mainecase in respect of Canada's Seal Island) – generally the further out to sea an island is located, the more partial will be the effect given because of the greater potential for distortion of the boundary. In some cases, such as the Qatar v. Bahrain case, the island will be given almost no effect.

(b) Geography of coastline
When engaged in the task of delimiting the territorial sea, the Court will generally seek to remove any inequitable effect of special circumstances by modifying the equidistance line. However, in some cases, modification of the provisional equidistance line will not be sufficient to achieve an equitable result. Thus in the Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, the Court, while maintaining that equidistance remains the general rule in delimiting the territorial sea, formed the opinion that it would not be sufficient simply to adjust the provisional equidistance line but that special circumstances required the use of a different method of delimitation known as the bisector method (i.e., the line formed by bisecting the angle created by a linear approximation of coastlines). In the view of the Court, the bisector method, like equidistance, is a geometrical approach that can be used to give effect to “[the] criterion long held to be as equitable as it is simple, namely that in principle, while having regard to the special circumstances of the case, one should aim at an equal division of areas where the maritime projections of the coasts of the States … converge and overlap”. The special circumstances in the above-mentioned Nicaragua v. Honduras case related to the geography of the coastline. The land boundary between Nicaragua and Honduras ends at Cape Gracias a Dios which is a sharply convex territorial projection abutting upon a concave coastline on either side to the north and south-west. This meant that the pair of base points to be identified on either bank of the boundary River Coco would assume a considerable dominance in constructing the equidistance line. The Court stated, “Given the close proximity of these base points to each other any variation or error in situating them would become disproportionately magnified in the resulting equidistance line”. Moreover, continued sedimental accretion at sea brought about by River Coco caused its delta to exhibit a very active morpho-dynamism, especially as it travels out from the coast. Under the circumstances, the Court considered that these factors taken together had the result that any equidistance line constructed today could become arbitrary and unreasonable in the near future.

Equitable Principle
The notion of equity is at the heart of the delimitation of the CS and entered into the delimitation process with the 1945 proclamation of US President Truman, concerning the delimitation of the CS between the Unites States and adjacent States. The Truman proclamation inspired the Court during the 1969 North Sea case, when the Court stated that “delimitation is to be effected by agreement in accordance with equitable principles, and taking into account all the relevant circumstances.” This idea became doctrine and was reiterated and confirmed by the ICJ and arbitral tribunals in subsequent cases. Articles 74 and 83 of the 1982 LOS Convention concerning the delimitation of the EEZ and the CS provides for effecting the delimitation by agreement, in accordance with international law and in order to achieve an equitable result.

The Court further stated that “It is not a question of applying equity simply as a meter of abstract justice, but of applying a rule of law” during the 1969 North Sea case, and later, during the 1985 Libya/Malta case, it reiterated that “the Justice of which equity is an emanation, is not abstract justice but justice according to the rule of law.”

It thus appears that equity is applied by the Courts as a part of international law and as a rule of law for the delimitation of the CS. To explain why the law made equity its own, and perhaps to give it greater force, the Judgments emphasize that law and equity are close because they start from, and give expression to, the same idea: the idea of justice. The Court’s jurisprudence shows that in disputes relating to maritime delimitation, equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation.

The problem with the idea of equity is that it does not provide any precise principle or criteria for the achievement of an equitable result. With respect to the delimitation of EEZ and CS 1982 LOS Convention sets only a goal which must be achieved and stipulates nothing on how to achieve the result. This vagueness gives some scholars the possibility to assert that there is a loss of normatively in the idea of equity and this idea allows the level of normatively to rise and fall.

The definition of equitable principles is closely related to the idea of unicum, which means that geographical features of each delimitation case varied so greatly that it is difficult, if not impossible, to posit any fixed principles applicable for the establishment of maritime boundaries between States. The idea of the uniqueness of each boundary finds significant support in the jurisprudence of the ICJ and arbitral tribunals.

In 1985 Guinea/Guinea-Bissau arbitration, the tribunal expressed the same idea: “the factors [the equitable principles] and methods result form the legal rules, however none of them is obligatory for the Tribunal since each of delimitation is unicum.”

It seems that there is no equitable principle in maritime delimitation which is applicable for all cases; but rather an equitable result must be sought for each case. It is the idea that Judge Jimenes de Arechaga had in mind when he noted that “the judicial application of equitable principles means that a court should render justice in the concrete case.”

Indeed, there were cases when the Court cited several equitable principles, such as the principle of non-encroachment; the principle not to refashion the geography; and not to seek to make equal what nature has made unequal. Even the use of those principles is not obligatory for the Courts and arbitral tribunals, because of their highly variable adaptability to each specific case. The use of those principles is also not obligatory for States.

This idea that it is difficult to define an equitable principle applicable for all maritime delimitation cases raises suspicions about the wide power and judicial discretion of the Courts. But it is not the fault of the Court or judge, it was the international community that opted the judges this wide power because it found it difficult, even impossible, to define a universally applicable principle. Even the Court and tribunal find it difficult to elaborate such a principle. This situation increases the responsibility of the Court in dealing with disputes concerning the delimitation of maritime boundaries, as the line of delimitation produced by a judicial organ must constitute an equitable result not only in the view of the Court, but also must appear equitable in the eyes of the litigants.

With respect to the idea that there is a lack of normativity regarding the concept of equity, the continuing series of judgments and awards may progressively refine the legal rules and principles, and refinements in the application of law may improve the normative situation. The improved situation, in turn, should produce results that are relatively consistent, fair and responsive to the variety of circumstances in which maritime boundaries must be delimited. It should also encourage the settlement of maritime boundaries.

Finally, concerning the equity and equitable principles, one may conclude that at present it is not possible to produce a structured system of equity and a clear body of equitable principles. The choice of, and weight to be attributed to, any equitable principle are too dependent upon the vagaries of geography to allow any systematic body of such principles to develop. It is more prudent to rely on the idea expressed by the Chamber in the 1984 Gulf of Maine case with respect to the role equitable criteria (principle) that “their equitableness can only be assessed in relation to the circumstances of each case, and for one and the same criterion it is quite possible to arrive at different, or even opposite, conclusions in different cases.”

Relevant Circumstance:
(a) Coastal geography
One crucial concept in maritime delimitation relevant to coastal geography is the concept of proportionality. Proportionality is based upon the relationship between the relative lengths of the coasts of the Parties abutting the maritime area to be delimited, and the relative areas of maritime space allocated to each of the Parties by means of delimitation. In the North Sea Continental Shelf cases, the Court described proportionality as follows: “the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines, – these being measured according to their general direction … ” The concept of proportionality is also employed as an ex post facto verification of the equitableness of a maritime delimitation, i.e. a disproportionality test. Another crucial aspect of coastal geography is the configuration of the coastline. For instance, in the North Sea Continental Shelf cases, the concave nature of the coasts of Germany, sandwiched between The Netherlands and Denmark was held to be a relevant circumstance because: “where two such [equidistance] lines are drawn at different points on a concave coast, they will, if the curvature is pronounced, inevitably meet at a relatively short distance from the coast, thus causing the continental shelf area they enclose, to take the form approximately of a triangle with its apex to seaward and, as it was put on behalf of the Federal Republic, ‘cutting off’ the coastal State from the further areas of the continental shelf outside of and beyond this triangle.” The Court considered that a failure to take this into account would lead to inequity in a situation where each of the Parties' coastlines was of similar length.

(b) Geomorphology of the delimitation area
In the North Sea Continental Shelf, Tunisia/Libya and Gulf of Maine cases, the Court in each instance considered the geomorphology of the area to be delimited, in particular to establish whether there were any features interrupting the continuity of the continental shelf. In those cases, the Court clearly considered that any such discontinuities may be relevant to the delimitation of the continental shelf/single maritime boundary ultimately adopted, although no such discontinuities were found in those cases.

(c) Historic Rights
While an argument based on historic rights has not yet resulted in an adjustment of the provisional delimitation line before the Court, historic rights are a recognized special circumstance and receive a special mention in UNCLOS in respect of delimitation of the territorial sea. It is, however, debatable as to whether they can exist in the continental shelf/EEZ which until the 1950s were considered to be high seas. However, “the traditional character of the different types of fishing carried out by the populations concerned” was given some weight in arriving at the final delimitation line in the Greenland/Jan Mayen (Denmark v. Norway) case.

(d) Fisheries
In the Greenland/Jan Mayen case, in the context of delimiting the fisheries zone (now known as the EEZ), the Court adjusted the provisional equidistance line to ensure that each Party had equitable access to capelin stocks.

(e) Oil deposits/oil concessions and oil wells
In contrast to the approach in relation to fisheries, in the Cameroon v. Nigeria case the Court stated that “oil concessions and oil wells are not in themselves to be considered as relevant circumstances justifying the adjustment or shifting of the provisional delimitation line.”

(f) Socio-economic factors
The Court will only take socio-economic factors into account as a relevant circumstance where a – delimitation would otherwise have catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned, as in the Gulf of Maine case. In other cases, the Court has taken the position that delimitation should not be influenced by the relative economic position of the two States in question, e.g., the Libya/Malta case.

(g) Security
In Greenland/Jan Mayen and Libya/Malta, the Court recognized that, in certain cases, security may be a relevant consideration, but only in a situation where a delimitation line passes very close to the coast of one State.

Equidistance Versus Equitable Principle
Historically, the jurisprudence of the Court, such as the North Sea Continental Shelf cases and the Gulf of Maine, Tunisia/Libya and Libya/Malta delimitations, suggests that the rule of equidistance and that of equitable principles are different in that the equitable principles rule gave no primacy to equidistance as a method of delimitation. It can be seen that in the early jurisprudence of the Court, under the “equitable principles – relevant circumstances approach” regard must be had to the relevant circumstances and equitable principles simultaneously at a first stage, in order to decide which method of delimitation to apply.

However, the recent jurisprudence of the Court has tended to minimize the difference between the two rules. In the Qatar v. Bahrain case, the Court noted that: “the equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable principles/relevant circumstances rule, as it has been developed since 1958 in case-law and State practice with regard to the delimitation of the continental shelf and the exclusive economic zone, are closely interrelated.” Further, in the Cameroon v. Nigeria case, the Court, speaking of the equitable principle/relevant circumstances method, stated that: “This method, which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result’.” Thus, in delimiting the continental shelf and the EEZ of both adjacent and opposite coasts, the Court will generally now first provisionally draw an equidistance line, or at least consider the appropriateness of such an equidistance line, and then consider whether there are circumstances which must lead to an adjustment of that line, or indeed, in extreme cases, to the use of another delimitation technique in order to achieve an equitable solution. This approach was adopted in Qatar v. Bahrain as well as in the Greenland/Jan Mayen and Cameroon v. Nigeria cases where the final delimitations were modified equidistance lines, and in the Nicaragua v. Honduras case where the Court ultimately concluded that an equidistance line could not produce an equitable outcome in light of the particular circumstances of the case, and applied the bisector method. I would like to add that in the most recent case of Maritime Delimitation in the Black Sea (Romania v. Ukraine), the Court, after a careful consideration of the various relevant circumstances in the dispute between the Parties, decided that there was no need to adjust the provisional equidistance line drawn by the Court.

Special Versus Relevant Circumstance
Further, while the rule pertaining to the territorial sea refers to special circumstances and the rule pertaining to the EEZ and continental shelf refers to relevant circumstances, the Court recognized in the Greenland/Jan Mayen delimitation that these are one and the same. In respect of what can constitute a special/relevant circumstance, the Court stated in the North Sea Continental Shelf cases: “In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures … ” However, in the Libya/Malta case the Court added the following caveat: “For a court, although there is assuredly no closed list of considerations, it is evident that only those that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation, will qualify for inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally changed by the introduction of considerations strange to its nature.”This holds equally true for the other maritime zones. Thus while ecological characteristics constitute potentially relevant circumstances in the context of delimiting the EEZ, they will not be so relevant in the context of the continental shelf. Similarly, geological characteristics, while relevant to the continental shelf, could not be determinative for delimitation of the EEZ. In the Gulf of Maine case, however, the Court noted that coastal geography will be equally relevant to the delimitation of the EEZ and continental shelf. This is important in the context of the delimitation of a single-maritime boundary because in such cases the Court's position is that preference should be given to the criteria that, because of their neutral character, are best suited for use in a multi-purpose delimitation.

Conclusion
The foregoing considerations allow for the conclusion that maritime delimitation is a very complex and multiform subject. The international community and the Courts, in spite of their endeavours, find it difficult to produce a general principle applicable to all maritime delimitation processes. The 1982 LOS Convention sets forth only the goal to achieve maritime delimitation, and says nothing about the principles and methods for the achievement of equitable result. Customary law, which plays an important role in the delimitation process, also establishes that delimitation must be in accordance with equitable principles, taking into account the relevant circumstances. Equitable principles do not lay down obligations, but simply clarifies the guidelines for achieving an equitable result in the delimitation and the relevant circumstances are relevant only for particular cases. At the same time, case law and especially State practice, supports the use of equidistance/relevant circumstances rule and shows that primacy must be accorded to the geographical factors in delimiting maritime boundaries because each case is unicum. A single rule or method may not be applicable in all circumstances, irrespective of geographical and other facts. A maritime boundary, to be durable, must be fair and equitable and take into account the special circumstances in the area relevant to delimitation.

The primary rule for maritime delimitation accepted both by conventional law and customary law is that the delimitation must be effected by agreement. Maritime boundaries between States, to be secure and stable, have to be settled by agreement between them. The negotiation process between States is very important for the achievement of positive results. The subject of maritime boundary, like the subject of land boundary, is a sensitive one and should be handled carefully and with understanding of the opposite viewpoints. Despite serious and meaningful negotiations if difficulties and disputes arise, the parties may resort to the third-party settlement procedures.
****************
Bibliography
1.Articles:
# Adede, Andronico O, Toward the formulation of the rule of delimitation of sea boundaries between States with adjacent or opposite coasts, Virginia journal of international law 19, 1979.
Jonathan I. Charney, Progress in international maritime boundary delimitation law, American journal of international law (Washington, D.C.) 88(2) April 1994.
# Lewis M. Alexander, Baseline delimitations and maritime boundaries, Virginia journal of international law 23, 1983.
# Nelson L. Dolliver M, The roles of equity in the delimitation of maritime boundarie, American journal of international law (Washington, D.C.) 84(4) October 1990.
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# Arbitration Tribunal for the delimitation of the maritime boundary between Guinea and Guinea-Bissau; Award of 14 February 1985. International legal Materials. 1986. www.heinonline.org
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# Case concerning maritime delimitation and territorial questions between Qatar and Bahrain. (Qatar v. Bahrain); Judgment of 16 March 2001 – Merits. www.icj-cij.org
# Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening): Judgment of 10 October 2002 – Merits. www.icj-cij.org
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# Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 111, para. 231.
# Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, pp. 441, para. 228.
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