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Ocean Boundaries Between Nations: A Theory for Progress

Published online by Cambridge University Press:  27 February 2017

Jonathan I. Charney
Jonathan I. Charney*
Affiliation:
Vanderbilt University School of Law
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Extract

In the last two decades, there have been three major international adjudications on continental shelf boundaries between states. Three additional cases are now pending before international tribunals. Two concern continental shelf boundaries and the other, a single exclusive economic zone and continental shelf boundary. There is every reason to believe that more cases are on the way. During this period, many international agreements have been negotiated to settle similar international ocean boundary disputes. Nevertheless, the vast majority of such boundaries have yet to be resolved.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 3 , July 1984 , pp. 582 - 606
Copyright
Copyright © American Society of International Law 1984

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References

1 North Sea Continental Shelf Cases (W. Ger./Den.; W. Ger./Neth.), 1969 ICJ Rep. 3 (Judgment of Feb. 20), reprinted in 8 ILM 340 (1969) [hereinafter referred to as North Sea]; Case concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of 30 June 1977, 18 R. Int’l Arb. Awards 3, reprinted in 18 ILM 397 (1979) [hereinafter referred to as Anglo-French]; Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 (Judgment of Feb. 24), reprinted in 21 ILM 225 (1982) [hereinafter referred to as Tunisia/Libya].

2 See Special Agreement between the Government of the United States and the Government of Canada to Submit to a Chamber of the International .Court of Justice the Delimitation of the Maritime Boundary in the Gulf of Maine Area, Mar. 29, 1979, reprinted in 20 ILM 1378 (1981); Libya-Malta: Special Agreement for the Submission to the International Court of Justice of a Continental Shelf Dispute, entered into force Mar. 20, 1982, reprinted in 21 ILM 971 (1982). Guinea and Guinea-Bissau have agreed to submit their continental shelf boundary dispute to a special arbitral tribunal. Panel of Judges to Decide Dispute on Acreage Offshore Two Guineas, Petroleum Information Int’l, No. 12, Mar. 19, 1984, at 1.

3 The agreements are primarily collected in a series of pamphlets entitled Limits in the Seas, published by the Office of the Geographer of the U.S. Department of State. Other sources include Atlante dei Confini Sottomarini (Atlas of the Seabed Boundaries), edited by Benedetto, Conforti and Giampiero, Francalanci (1979)Google Scholar; International Legal Materials; League of Nations Treaty Series; New Directions in the Law of the Sea , edited by Nordquist, , et al., 10 vols Google Scholar.; United Nations Legislative Series (ST/LEG/SER.B); and United Nations Treaty Series.

4 North Sea, 1969 ICJ Rep. 3, paras. 85, 93-98, 101(D).

5 See Anglo-French, supra note 1, paras. 70 and 102. See also id., paras. 76-86, 97, 196-199, 243-251; Tunisia/Libya, 1982 ICJ Rep. 18, para. 37. See also id., paras. 36, 39, 44, 61, 66-68, 70, 72, 76-80, 81, 109-110, 131.

6 There will be some who will no doubt argue that the prior adjudications, which addressed only continental shelf boundaries, are inapposite to the case of other ocean boundaries such as those through the exclusive economic zone (EEZ). They would rely on the unique geological attributes of the continental shelf and its connection to the landmass, which served as the foundation for coastal states’ rights over the resources of the shelf. Such appurtenance is said to be absent in the water column. In this author’s view, the geological foundation of the continental shelf doctrine may be important in defining coastal states’ rights, but it is of little practical value in delimiting boundaries on the shelf between states. Geological evidence of this nature has not significantly influenced such delimitations. As a consequence, the analysis of a continental shelf boundary is likely to be comparable to the analysis of an EEZ boundary. Since the functions of the boundaries may differ, the ultimate lines, however, may not be identical.

7 Art. 6, Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471, TIAS No. 5578, 449 UNTS 311; Art. 12, Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205.

8 See North Sea, 1969 ICJ Rep. 3, paras. 13, 41-42, 53, 55-56, 69-72, 81, 83; Anglo-French, supra note 1, paras. 68, 70; Tunisia/Libya, 1982 ICJ Rep. 18, paras. 109-110.

9 Arts. 74/83, United Nations Convention on the Law of the Sea, Dec. 10, 1982, UN Doc. A/CONF.62/122 (1982), reprinted in 21 ILM 1261 (1982) [hereinafter referred to as LOS Convention]. Judge Oda discusses the history of this provision in his dissent in the Tunisia I Libya case. Dissenting Opinion of Judge Oda, 1982 ICJ Rep. 157, paras. 134-145 [hereinafter referred to as Oda Dissent].

10 Tunisia/Libya, 1982 ICJ Rep. 18, para. 132.

11 Id., paras. 45, 70-72, 114-115; North Sea, 1969 ICJ Rep. 3, paras. 85-86, 88; Anglo-French, supra note 1, paras. 70, 75, 84, 97.

12 Dissenting Opinion of Judge Gros, Tunisia/Libya, 1982 ICJ Rep. 129, paras. 9-11, 15-18 [hereinafter referred to as Gros Dissent]; Oda Dissent, supra note 9, para. 182. See Charney, , A Preliminary Evaluation of the Judgment by the International Court of Justice in the Case Concerning the Continental Shelf (Tunisia / Libyan Arab Jamahiriya) , 76 ASIL Proc. 155 (1982)Google Scholar; Stein, , The Libyan-Tunisian Continental Shelf Case: The Impact of New Trends in the Law of the Sea on the Delimitation of Maritime Boundaries , id. at 161 Google Scholar. See also Feldman, , The Tunisia I Libya Continental Shelf Case: Geographic Justice or Judicial Compromise? , 77 AJIL 219 (1983)CrossRefGoogle Scholar; Christie, , From the Shoals of the Ras Kaboudia to the Shores of Tripoli: The Tunisia I Libya Continental Shelf Boundary Delimitation , 13 Ga. J. Int’l & Comp. L. 1 (1983)Google Scholar.

13 This article proceeds on the assumption that definite, fixed boundary lines will be demanded by states. Arguments can certainly be made for greater flexibility through joint management arrangements, adjustable boundaries, and use-specific boundaries. See Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen: Report and Recommendations to the Governments of Iceland and Norway, 20 ILM 797 (1981); and North Sea, 1969 ICJ Rep. 3, para. 101(C)(2).

14 Tunisia/Libya, 1982 ICJ Rep. 18, paras. 36-37, 44, 72, 109-110.

15 Id., paras. 39-68, 74-107, 117-120, 127.

16 Id., paras. 121, 128-129.

17 Id., paras. 130-131.

18 Id., paras. 119-130.

19 Id., paras. 84-86, 93-96, 117, 119-120, 127.

20 The boundary was delimited in two segments. In the discussion of each segment, certain discrete facts were addressed. Thus, in the near shore area, the modus vivendi of the parties appeared to play a major role. Id., paras. 88-95, 117-121. In the offshore segment, the location of the Kerkennah Islands was addressed. Id., paras. 126-129. What the Court did not do was to explain why these facts were worthy of discussion and why the many others that it said were relevant were not discussed. It failed to identify all the factors it did consider and to weigh the relevant factors.

21 Gros Dissent, supra note 12, paras. 9-11, 15-18, 19-24; Dissenting Opinion of Judge ad hoc Evensen, 1982 ICJ Rep. 278, paras. 14, 18-20, Conclusions [hereinafter referred to as Evensen Dissent]; Oda Dissent, supra note 9, paras. 1, 180.

22 Five ocean boundaries between coastal states of the United States were delimited for the administration of a domestic program, the Coastal Energy Impact Program. See Charney, , The Delimitation of Lateral Seaward Boundaries Between States in a Domestic Context , 75 AJIL 28 (1981)CrossRefGoogle Scholar.

23 North Sea, 1969 ICJ Rep. 3, paras. 18-20. See also Anglo-French, supra note 1, paras. 77-78, 101; Oda Dissent, supra note 9, paras. 152-153.

24 Judge Oda appears to acknowledge this fact. See Oda Dissent, supra note 9, para. 154.

25 LOS Convention, supra note 9, Arts. 55-73, 76-82, 85; North Sea, 1969 ICJ Rep. 3, para. 19; Anglo-French, supra note 1, para. 13; Tunisia/Libya, 1982 ICJ Rep. 18, para. 108.

26 Anglo-French, supra note 1, para. 245; North Sea, 1969 ICJ Rep. 3, para. 88; Tunisia/ Libya, 1982 ICJ Rep. 18, para. 71; Gros Dissent, supra note 12, para. 19; Evensen Dissent, supra note 21, paras. 12, 14; and Oda Dissent, supra note 9, para. 1. See Friedmann, , The North Sea Continental Shelf Cases—A Critique , 64 AJIL 229, 234-36 (1970)Google Scholar.

27 See Tunisia/Libya, 1982 ICJ Rep. 18, para. 70.

28 Id.

29 Id., para. 71.

30 Id., para. 132.

31 See text at notes 14-21 supra.

32 Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24).

33 Island of Palmas Case (U.S. v. Neth.), 2 R. Int’l Arb. Awards 829 (1928).

Reisman has argued that such flexibility is appropriate in all cases of international adjudication:

Though the decision may diverge from the purport of either the special rule of the compromis or a general rule of international law . . . , the test of the decision’s lawfulness is not its conformity to these secondary expressions of international policy, but its consonance with the fundamental goals of the international community.

Reisman, W., Nullity and Revision 562 (1971)Google Scholar.

34 Judge Hudson pointed out that there is no clear dividing line between decisions according to international law where equity is a consideration and those ex aequo et bono.

The Court’s recognition of equity as a part of international law is in no way restricted by the special power conferred upon it “to decide a case ex aequo et bono, if the parties agree thereto.” . . . It must be concluded, therefore, that under Article 38 of the Statute, if not independently of that Article, the Court has some freedom to consider principles of equity as part of the international law which it must apply.

Diversion of Water from the River Meuse (Neth. v. Belg.), 1937 PCIJ, ser. A/B, No. 70, at 4, 76-77, 4 World Court Rep. 178, 231-32 (Hudson, ed. 1943)Google Scholar (Hudson, J., concurring). Similarly, he wrote in his treatise, “Acting ex aequo et bono, the Court is not compelled to depart from applicable law, but is permitted to do so. . . .” Hudson, M., The Permanent Court of International Justice, 1920-1942, at 618-21 (1943)Google Scholar.

In the Macedonian Claims arbitration (U.S. v. Chile) of 1858, the matter was submitted to the King of Belgium “to decide with full powers and proceeding ex aequo et bono.” The award, nevertheless, was based substantially on “the law of nations.” 2 J. Moore, History and Digest of International Arbitrations to Which the United States Has Been a Party 1449, 1465 (1898); 12 Stat. 1083, TS No. 41. On the other hand, the award in the Chaco dispute (Bol. v. Para.) (1932) made no mention of obligations under international law. See 3 R. Int’l Arb. Awards 1818, 33 AJIL 180 (1939). For comment, see Woolsey, , The Settlement of the Chaco Dispute , id. at 126 Google Scholar; LaFoy, M., The Chaco Dispute and the League of Nations (1941)Google Scholar.

35 North Sea, 1969 ICJ Rep. 3, para. 47. Blecher has argued that “equitable” is synonymous with the use in the Judgment of the terms “appropriate” (para. 81), “appropriateness” (para. 84), “reasonable” (para. 100), “just” (para. 242). Blecher, , Equitable Delimitation of Continental Shelf , 73 AJIL 60, 83 (1979)CrossRefGoogle Scholar.

36 18 R. Int’l Arb. Awards 3 (1977).

37 1982 ICJ Rep. 18.

38 Judge Oda discusses the history of this debate in his dissent in the Tunisia I Libya case. Oda Dissent, supra note 9, paras. 134-145. See Rhee, , Equitable Solutions to the Maritime Boundary Dispute Between the United States and Canada in the Gulf of Maine , 75 AJIL 590, 607-08 (1981)Google Scholar. E. Lauterpacht has also discussed the difficulties presented by the introduction of equitable principles into this subject. Lauterpacht, , Equity, Evasion, Equivocation and Evolution in International Law , 1977-78 Int’l L. Ass’n Proc. & Comm. Rep. of the American Branch 33 Google Scholar.

39 Equity in the World’s Legal Systems: A Comparative Study (Newman, R. ed. 1973)Google Scholar. Sir Henry Maine viewed the role of equity as one stage in the evolution of law. Thus, in primitive societies the Legal Fiction serves as a prime vehicle for social change. The same role is played by Equity in more advanced societies and by Legislation in mature societies. H. Maine, Ancient Law (1864); McWhinney, , Equity in International Law , in Newman, (ed.), supra, at 581, 584 Google Scholar.

40 A review of the literature on equity in the law shows that scholars define the term in four different ways. Equity has been seen as:

(1) An established body of substantive law such as that found in English rules of Equity. See Barton, , Equity in the Medieval Common Law , in Newman, (ed.), supra note 39, at 139 Google Scholar.

(2) A vehicle that can serve in individual cases to modify positive rules of law to eliminate their harshness, i.e., a corrective function. See McWhinney, supra note 39, at 581-82. An example of the corrective use in international law is found in the Cayuga Indians arbitration (UK v. U.S.) (1926), Nielsen Rep. 203, 307, 20 AJIL 574, 586 (1926). See also Judge Fitzmaurice’s separate opinion in Barcelona Traction, Light & Power Co., Ltd. (New Application) (Belg. v. Spain), 1970 ICJ Rep. 4, 85, 86 (Judgment of Feb. 5). It may even be seen in the Channel Islands discussion in the Anglo-French case, supra note 1, paras. 197, 198. See Blecher, supra note 35, at 86; Chattopadhyay, , Equity in International Law: Its Growth and Development , 5 Ga. J. Int’l & Comp. L. 381, 393, 397 (1975)Google Scholar. See also Gassin, , Equity in Criminal Procedure , in Newman, (ed.), supra note 39, at 549, 550 Google Scholar; Diederichsen, & Gursky, , Principles of Equity in German Civil Law , in id. at 277, 278 Google Scholar.

(3) A term embracing certain fundamental norms of all legal systems such as good faith, honesty and generosity that will be applied to cases. Newman, , The General Principles of Equity , in Newman, (ed.), supra note 39, at 589, 599-604 Google Scholar.

(4) A doctrine that permits a court to fashion a result in a case unguided by articulated rules of law. See Lauterpacht, H., The Function of Law in the International Community 121 (1966)Google Scholar; Snyder, , Natural Law and Equity , in Newman, (ed.), supra note 39, at 33, 34, 43 Google Scholar; Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116, 132 (Judgment of Dec. 18). See also Jeanneau, , Equity in French Private and Public Law , in Newman, (ed.), supra note 39, at 223, 227 Google Scholar.

See also Schachter, , The Nature and Process of Legal Development in International Society , in The Structure and Process of International Law 747, 797-99 (Macdonald, R. St. J. & Johnston, D. M. eds. 1983)Google Scholar.

41 See note 44 infra. Newman wrote:

If the Anglo-American experience has any significance it is in establishing the need and practicability of clarifying the basic precepts and principles of a source of law, rich in ethical content and in the capacity for dynamic growth, which lies hidden beneath the institutions of positive law. This reservoir of what Alf Ross has described as “common fundamental evaluations, the community’s tradition of culture”, is always in the process of change. Since change by the legislative process is sluggish and uneven, the progressive humanization of the law would be greatly accelerated if judges were permitted, in the civil law, to draw openly from this incompletely tapped source, not only to fill gaps in the written law, a process which resembles the temporary patching of a building, but for the application of principles not recognized in the codes to the solution of controversies, a process in which patching is replaced by rebuilding.

Newman, supra note 40, at 597-98.

42 Thus, British Equity evolved in response to the rigidities of the common law, which failed to reflect the fundamental norms of contemporary society. Equity evolved as a corrective mechanism, which then evolved further, in part, to a state of codified law. The corrective role itself relies on a finding that the strict law is harsh. A finding of harshness is in fact a determination that, as applied, the strict law does not conform to the underlying normative concept. Equity facilitates the realization of that concept. Similarly, such precepts as good faith, honesty and generosity only come into play in particular cases when the normative concept underlying the strict law calls for the application of good faith, honesty or generosity. Finally, the rule of equity that the court is free to fashion the result in a particular case requires the court to identify the essence of the normative standard and to apply it to the individual case.

45 It is common to assume that abstract rules of equity are subjective and that they do not rest upon more fundamental normative assumptions. These terms may well substitute for a complex decision-making process that cannot be easily articulated and replicated. Work on artificial intelligence demonstrates that apparently intuitive decisions by experts are likely to be based upon a complex of highly rational decisions. Machines Built to Emulate Human Experts’ Reasoning, N.Y. Times, Mar. 29, 1984, at Al, cols. 4-5.

44 De Visscher, C., L’Equité dans le Règlement Arbitral OU Judiciaire des Litiges de Droit International Public 10 (1972)Google Scholar; Blecher, supra note 35, at 87.

45 North Sea, 1969 ICJ Rep. 3, para. 85 (emphasis added).

46 Dissenting Opinion of Judge Tanaka, id. at 194. See also Separate Opinion of Judge Ammoun, id. at 132; and Dissenting Opinion of Judge Koretsky, id. at 166.

47 Tanaka Dissent, id. at 195-196. See note 46 supra.

48 North Sea, 1969 ICJ Rep. 3, paras. 93-98. It has been recognized that equitable principles and special circumstances used in the Convention on the Continental Shelf, supra note 7, rely on the same factors. North Sea, 1969 ICJ Rep. 3, paras. 55 and 85; Anglo-French, supra note 1, paras. 108, 148, 196. See also Ammoun Separate Opinion, North Sea, 1969 ICJ Rep. at 144; Oda Dissent, supra note 9, paras. 50, 53; Rhee, supra note 38, at 607.

49 Koretsky Dissent, North Sea, 1969 ICJ Rep. at 167. See also Dissenting Opinion of Judge Morelli, id. at 213. This was a primary thrust of the dissents in the Tunisia I Libya case. Oda Dissent, supra note 9, para. 1; Gros Dissent, supra note 12, paras. 16, 18; Evensen Dissent, supra note 21, para. 14. See also McWhinney, supra note 39, at 582-83.

50 To make this point, Lauterpacht relies heavily on Judge Huber’s awards in the Isle of Palmas and British Claims in the Spanish Zone of Morocco cases. H. Lauterpacht, supra note 40, at 121, 133. He also relies on Moore’s analysis of the decision of the Commission acting under Article V of the Jay Treaty of 1794, in which Moore “justly observed that the result reached was ‘after all an example of the necessary process of adjustment, of weighing of one consideration against another.’ “ Id. at 121 n.4. See also id. at 132; Fisheries case, 1951 ICJ Rep. at 132; Tunisia/Libya, 1982 ICJ Rep. 18, para. 71; Separate Opinion of Judge ad hoc Jiménez de Aréchaga, id. at 100, para. 24 [hereinafter referred to as Jiménez de Arechaga Opinion]. Snyder states:

As the doing of equity depends, essentially, on the particular circumstances of each individual case, the rules or principles of equity should not be too particularized since a too detailed set of equitable rules tends to reduce them into an inflexible body of positive laws in and of themselves. However, the freedom to consider all cases in an equitable light, subject entirely to discretion, must not be indulged in too far, “lest thereby we destroy all law.” [Blackstone, Commentaries, I §§61, 62 (1765).] The test is whether a specific application of equity leads to essential justice in a given situation, conforming to a moderate sense of “fairness”, or whether in securing the satisfaction of one, it is done so at the cost of others.

Snyder, supra note 40, at 40.

51 The Court stated that there is no legal limit to the relevant factors. North Sea, 1969 ICJ Rep. 3, para. 93.

The individualization of justice is at the base of equity: The need for equity is therefore inescapable in problems in which the need for individual justice predominates. Since every case is different, the principles of equity are relevant to a greater or less extent, depending on the balance to be struck between individual justice and social order, throughout the entire range of law. The full effect of the principles of equity is available only if the principles are recognized as an integral part of the law.

Newman, supra note 40, at 627-28.

A similar view was expressed by Judge ad hoc Jiménez de Aréchaga in his separate opinion in the Tunisia/Libya case:

Tunisia/Libya, Jiménez de Aréchaga Opinion, supra note 50, para. 24.

To resort to equity means, in effect, to appreciate and balance the relevant circumstances of the case, so as to render justice, not through the rigid application of general rules and principles and of formal legal concepts, but through an adaptation and adjustment of such principles, rules and concepts to the facts, realities and circumstances of each case. . . . In other words, the judicial application of equitable principles means that a court should render justice in the concrete case, by means of a decision shaped by and adjusted to the relevant “factual matrix” of that case. Equity is here nothing other than the taking into account of a complex of historical and geographical circumstances the consideration of which does not diminish justice but, on the contrary, enriches it.

52 See Blecher, supra note 35, at 86-87. See also note 44 supra.

53 North Sea, 1969 ICJ Rep. 3, paras. 18-20.

54 Id., paras. 43, 93-98.

55 Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against the U.N.E.S.C.O., 1956 ICJ Rep. 77 (Advisory Opinion of Oct. 23).

56 Id. at 100.

57 See Judge Huber’s award of October 1924 concerning the British claims in the Spanish Zone of Morocco (Spain v. UK), 2 R. Int’l Arb. Awards 615 (1925); the Cayuga Indians arbitration, supra note 40; the individual opinion of Judge Hudson, supra note 34, 1937 PCIJ, ser. A/B, No. 70, at 76; Portuguese Colonies of South Africa case (Port. v. Ger.), 2 R. Int’l Arb. Awards 1011, 1016 (1928). See also H. Lauterpacht, supra note 40, at 121; S. Rosenne, The International Court of Justice 427-28 (1957); McWhinney, supra note 39; Chattopadhyay, supra note 40; and Blecher, supra note 35.

58 1951 ICJ Rep. 116.

59 Id. at 142. Reasonableness was a question in the North Atlantic Coast Fisheries Case. This was to be determined on the basis of whether the regulations in question were “equitable and fair as between local and American fishermen.” North Atlantic Coast Fisheries Case (UK v. U.S.), 11 R. Int’l Arb. Awards 167, 189 (1910). See Chattopadhyay, supra note 40, at 395.

60 S. Rosenne, supra note 57, at 427-28.

61 Id.

62 See notes 39 and 44 supra. See also Anglo-French, supra note 1, para. 97; Cayuga Indians arbitration, supra note 40, 20 AJIL at 585, 586; Chattopadhyay, supra note 40, at 395, 399; Newman, supra note 40, at 629.

63 Tunisia/Libya, 1982 ICJ Rep. 18, para. 70. See also id., para. 71.

64 Convention on the Law of the Sea, supra note 9, Arts. 74/83.

65 North Sea, 1969 ICJ Rep. 3, para. 85. The Court’s refusal to focus on the result is most clearly stated in the context of its denial of arguments that favored a decision based on the equitable share: “Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share. . . .” Id., para. 18. “The delimitation itself must indeed be equitably effected, but it cannot have as its object the awarding of an equitable share, or indeed of a share, as such, at all. . . .” Id., para. 20. “[I]t is a truism to say that the determination must be equitable; rather . . . the problem [is] above all one of defining the means whereby the delimitation can be carried out in such a way as to be recognized as equitable.” Id., para. 92 (emphasis added).

Nevertheless, two commentators have argued that this decision focuses on a functional result. Chattopadhyay, supra note 40, at 396, 398; Blecher, supra note 35, at 85.

66 Tunisia/Libya, 1982 ICJ Rep. 18, paras. 117-118. In the Anglo-French award, the tribunal did consider political and economic factors in analyzing the Channel Islands question, but the use of those factors is not clear. On the other hand, those factors appear to have been used by the tribunal in order to obtain a better understanding of the underlying geological and geographical facts. Thus, the United Kingdom argued that there are close ties between the islands and the mainland of the United Kingdom. The tribunal responded by stating that it “accepts the equitable considerations invoked by the United Kingdom as carrying a certain weight.” Anglo-French, supra note 1, paras. 197, 198. On the other hand, the tribunal concluded its discussion of the matter with a statement that may imply an orientation toward results: “the specific features of the Channel Islands region call for an intermediate solution that effects a more appropriate and a more equitable balance between the respective claims and interests of the Parties.” Id., para. 198. One’s interpretation of this statement will depend on whether stress is on the word “features” or the words “claims and interests.”

67 See supra notes 46-49.

68 Judge ad hoc Evensen wrote:

I respectfully submit that the equity considerations to be applied must be placed in some legal context. If applied in a legal void as entirely self-sufficient, equity may easily change the character of a decision from being a legal decision under Article 38, paragraph 1, of the Statute to becoming an ex aequo et bono decision governed by the provisions of paragraph 2 of Article 38 of the Statute.

Evensen Dissent, supra note 21, para. 14. See also id., para. 12; Gros Dissent, supra note 12, paras. 16, 18; Oda Dissent, supra note 9, para. 1. See the reference to Blackstone by Snyder, supra note 50.

69 “[A] decision cannot be equitable when litigants do not understand the decision, how it was reached, nor why such legal rules should be applied to this situation or be binding on their lives.” Nader, & Starr, , Is Equity Universal? , in Newman, (ed.), supra note 39, at 126, 133 Google Scholar.

70 This issue was taken up by Judge Sørensen in his dissent in the North Sea Continental Shelf Cases: “[If] the delimitation is to be governed by a principle of equity only, considerable legal uncertainty will ensue, and that in a field where legal certainty is in the interest not only of the international community in general, but also—on balance—of the States directly concerned.” Dissenting Opinion of Judge Sorensen, North Sea, 1969 ICJ Rep. at 257. See also Tanaka Dissent, id. at 196. This is particularly a problem in international boundary matters where it is expected that states “will tend to exaggerate their legal rights.” H. Lauterpacht, supra note 40, at 132.

71 See note 9 supra and accompanying text.

72 Tunisia/Libya, 1982 ICJ Rep. 18, paras. 61, 107. When the Court disposed of the geological arguments, it held:

The function of the Court is to make use of geology only so far as required for the application of international law. It is of the view that what must be taken into account in the delimitation of shelf areas are the physical circumstances as they are today. . . . It is the outcome, not the evolution in the long-distant past, which is of importance.

Id., para. 61.

73 North Sea, 1969 ICJ Rep. 3, para. 93.

74 Tunisia/Libya, 1982 ICJ Rep. 18, paras. 38, 71, 107, 126. This balancing process was also touched upon with approval in the separate opinions and dissents. Jiménez de Aréchaga Opinion, supra note 50, paras. 24, 35; Gros Dissent, supra note 12, para. 13; and Evensen Dissent, supra note 21, para. 23.

75 Anglo-French, supra note 1, paras. 180-202.

76 Id., paras. 232-251. While there is extensive literature on the subject of ocean boundaries, the discussion of the process by which a line should be selected has not addressed in depth the multi-factor balancing process apparently called for by the cases. See, e.g., Bowett, , The Arbitration Between the United Kingdom and France Concerning the Continental Shelf Boundary in the English Channel and South-western Approaches , 49 Brit. Y.B. Int’l L. 1 (1978)Google Scholar; Friedmann, supra note 26; Grisel, , The Lateral Boundaries of the Continental Shelf and the Judgment of the International Court of Justice in the North Sea Continental Shelf Cases , 64 AJIL 562 (1970)CrossRefGoogle Scholar; Jagota, , Maritime Boundary , 171 Recueil Des Cours 81 (1982 II)Google Scholar; McRae, , Proportionality and the Gulf of Maine Maritime Boundary Dispute , 19 Can. Y.B. Int’l L. 287 (1981)Google Scholar; Boundary Delimitation in the Economic Zone: The Gulf of Maine Dispute, 30 ME. L. Rev. 207 (1979); Rhee, , Equitable Solutions to the Maritime Boundary Dispute Between the United States and Canada in the Gulf of Maine , 75 AJIL 590 (1981)CrossRefGoogle Scholar; Swan, , That Gulf of Maine Dispute: Canada and the United States Delimit the Atlantic Continental Shelf , 10 Nat. Resources Law. 405 (1977)Google Scholar; Feldman, supra note 12; and Christie, supra note 12. A bibliography of the literature in this area has been assembled in McDorman, T., Beauchamp, K. & Johnston, D., Maritime Boundary Delimitation: An Annotated Bibliography (1982)Google Scholar.

77 North Sea, 1969 ICJ Rep. 3, paras. 18, 20, 91; Anglo-French, supra note 1, paras. 78, 101.

78 Anglo-French, supra note 1, para. 69; Tunisia/Libya, 1982 ICJ Rep. 18, para. 72; North Sea, 1969 ICJ Rep. 3, paras. 93-94.

79 Since neither international law nor international tribunals actually rely on positivist enforcement systems to assure conformance to the law, the apparent legitimacy of the rule or decision is crucial to assuring behavior that conforms to the legal obligation. While the prestige of the International Court of Justice confers prima facie legitimacy on its decisions, the appearance of arbitrariness can damage this status and facilitate decisions by states to violate the Court’s decrees. See Charney, , supra note 12, at 160 Google Scholar; see generally Charney, , Transnational Corporations and Developing Public International Law , 1983 Duke L.J. 748, 756-62 Google Scholar.

80 It is assumed for this analysis that in an international adjudication the compromis has not placed any unusual restrictions on the tribunal. While all the previous adjudications have been subject to unique conditions, none appear to have significantly affected the tribunals’ analyses. The possible exception to this observation arose in the Tunisia I Libya case where in the presentation of their cases neither party advocated the equidistance line. This fact appears to have encouraged the Court to pay less attention to equidistance than might ordinarily be the case. Tunisia/Libya, 1982 ICJ Rep. 18, para. 110. But see id., para. 126. See Anglo-French, supra note 1, paras. 48, 61, 65, 75 (neither the binding effect of the 1958 Convention on the Continental Shelf nor French reservations to the Convention were deemed by the tribunal to require an analysis different from that required under general international law); Tunisia/Libya, 1982 ICJ Rep. 18, paras. 23, 24, 50 (the required consideration of trends at UNCLOS III did not affect the analysis).

81 The Court did attempt to define the general coastline and area in dispute in the course of the Tunisia I Libya Judgment:

[I]t is not the whole of the coast of each Party which can be taken into account; the submarine extension of any part of the coast of one Party which, because of its geographic situation, cannot overlap with the extension of the coast of the other, is to be excluded from further consideration by the Court. It is clear from the map that there comes a point on the coast of each of the two Parties beyond which the coast in question no longer has a relationship with the coast of the other Party relevant for submarine delimitation. The sea-bed areas off the coast beyond that point cannot therefore constitute an area of overlap of the extensions of the territories of the two Parties, and are therefore not relevant to the delimitation.

1982ICJ Rep. 18, para. 75. This analysis later informed the Court as it selected the particular areas to make the proportionality calculation. Id., paras. 130—131. The selection of these limits necessarily depends on one’s perspective and is subjective. See Charney, supra note 22, at 51-52 and 65.

82 UN Convention on the Law of the Sea, supra note 9, Art. 56.

83 See North Sea, 1969 ICJ Rep. 3, paras. 42-46; Anglo-French, supra note 1, paras. 80-81.

84 See North Sea, 1969 ICJ Rep. 3, para. 89; Anglo-French, supra note 1, para. 244.

85 See the Grisbadarna Case (Nor. v. Swed.), Hague Ct. Rep. (Scott) 121 (1909), reprinted in 4 AJIL 226 (1910); Tunisia/Libya, 1982 ICJ Rep. 18, paras. 96, 119-120.

86 The line from the midpoint of the coast might divide the land area equally or connect the coast to the furthest inland point in the state measured from the point on the coast.

87 See North Sea, 1969 ICJ Rep. 3, para. 51; Tunisia/Libya, 1982 ICJ Rep. 18, paras. 85, 120. Contra Evensen Dissent, supra note 21, para. 21.

88 See North Sea, 1969 ICJ Rep. 3, paras. 94, 96; Anglo-French, supra note 1, para. 84; Tunisia/ Libya, 1982 ICJ Rep. 18, para. 66.

89 See North Sea, 1969 ICJ Rep. 3, para. 98; Anglo-French, supra note 1, paras. 99-101, 245; Tunisia/Libya, 1982 ICJ Rep. 18, paras. 103-104, 130-131; and Charney, supra note 22, at 36, 56-57.

90 Tunisia/Libya, 1982 ICJ Rep. 18, paras. 74-75, 130-131.

91 No such selection was made in the Anglo-French award, supra note 1. Some general observations closely connected to the proportionality test were made, however, for the Channel Islands and Atlantic regions. Id., paras. 201, 248. In the decisions pursuant to the United States Coastal Energy Impact Program, this calculation was made for only one of five boundaries delimited. See Charney, note 22 supra. In the North Sea cases the Court was not called upon to delimit a boundary, so no such calculation was required.

92 See note 81 supra.

93 North Sea, 1969 ICJ Rep. 3, paras. 43, 94, 95.

94 In its latest statement on this issue, the International Court of Justice seemed to indicate that geology is not generally useful in these cases. At least it was not useful in the instant case. Tunisia/Libya, 1982 ICJ Rep. 18, para. 61. See also Anglo-French, supra note 1, paras. 12, 104-108; and Charney, supra note 22, at 53-54.

95 See Oda Dissent, supra note 9, para. 107.

96 North Sea, 1969 ICJ Rep. 3, paras. 94, 97.

97 See discussion in text at notes 99-101 infra.

98 See Charney, supra note 22, at 66-68; and Anglo-French, supra note 1, paras. 183-203, 248-252.

99 Tunisia/Libya, 1982 ICJ Rep. 18, paras. 87, 90-92.

100 Id., paras. 93-96.

101 Id., paras. 117-118. The court of arbitration avoided a similar decision by finessing the question of French acquiescence regarding the status of Eddystone Light. Anglo-French, supra note 1, paras. 134-144.

102 See Tunisia/Libya, 1982 ICJ Rep. 18, paras. 96, 118.

103 The arbitral tribunal seemed to acknowledge this element in its discussion of the Channel Islands region. Anglo-French, supra note 1, paras. 188, 197-198.

104 See note 94 supra.

105 Tunisia/Libya, 1982 ICJ Rep. 18, para. 107. See also Charney, supra note 22, at 53 and 66-68.

106 In Fisheries Jurisdiction, the Court recognized the importance of avoiding decisions that would discourage interim agreements. It stated:

[T]he inevitable result would be to discourage the making of interim arrangements in future disputes with the object of reducing friction and avoiding risk to peace and security. This would run contrary to the purpose enshrined in the provisions of the United Nations Charter relating to the pacific settlement of disputes.

Fisheries Jurisdiction (UK v. Ice.), Merits, 1974 ICJ Rep. 3, para. 41 (Judgment of July 25).

107 Tunisia/Libya, 1982 ICJ Rep. 18, para. 107.

108 Id., para. 106.

109 The objectivity of the proportionality rule is clear once the limits of the relevant coastlines and the water areas are determined. Those determinations, however, are fundamental and may themselves be subjective and determinative. See Charney, supra note 12; and Charney, supra note 22, at 57 and 65.

110 Such a comparison of relevant factors affecting a boundary delimitation was at the core of the discussion of the boundary in the Channel Islands region by the tribunal in the Anglo-French award, supra note 1, paras. 180-202. See also the analysis of the Atlantic region, id., paras. 232-251.

111 See id., paras. 249-251, 253. Tunisia/Libya, 1982 ICJ Rep. 18, paras. 27-30, 128-129; and Charney, supra note 22, at 63-64.

112 See Tunisia/Libya, 1982 ICJ Rep. 18, para. 107. See also notes 73-76 supra.

113 Tunisia/Libya, 1982 ICJ Rep. 18, paras. 61, 66-68, 107. Judge Oda also reviewed the relevant factors in depth. Oda Dissent, supra note 9, paras. 151-176.

114 I.e., the evidence that supported the modus vivendi line used to support the near shore segment of the boundary, the bisector of the angle line at the Kerkennah Islands used for the outer segment, and the proportionality test. Tunisia/Libya, 1982 ICJ Rep. 18, paras. 95, 129, 133(B).