1. At April 30,1982,130 states voted in favour of the Convention, 4 against and 17 states abstained from voting. The Convention was signed at Montego Bay December 10,1982. It has not yet entered into force. As of December 31,1989,159 states and other entities, among which the European Economic Community and the UN Council for Namibia, signed the 1982 LOSC. See, ST/LEG/SER.E/8,778–779. Other entities which have signed the Final Act of the Conference include the African National Congress, the Netherlands Antilles, the Palestine Liberation Organization, the Pan African Congress of Azania and the South West Africa People's Organization. The Final Act has been reprinted in U.N. Doc. A/Conf.62/121, Corr 1–8. As of January 1, 1989,44 states have ratified the LOSC. The Convention shall enter into force twelve months after the date of deposit of the sixtieth instrument of ratification or accession (Article 308).

2. For the linkage between the establishment of a New International Economic Order (NIEO) and the LOSC, see G.A. Res. 3201, May 1, 1974 (S-VI); G.A. Res. 3281 (XXIX), Dec. 12,1974. According to Kwiatkowska this makes the 1982 LOSC “a NIEO document par excellence”. See B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea 2 (1989).

3. Cf., The Montevideo Declaration on the Law of the Sea, May 8,1970, reprinted in S.H. Lay, R. Churchill, M. Nordquist (eds.), New Directions in the Law of the Sea, Documents, Vol. I, 235–236 (1973); The Declaration of the Latin American States on the Law of the Sea, Aug. 8,1970. Id. at 237–239; The Declaration of Santo Domingo, June 9,1972, reprinted in S. Oda, The International Law of the Ocean Development, Basic Documents, Vol. II, 32–36 (1975). For early state practice and developments at the Latin American continent, see D.J. Attard, The Exclusive Economic Zone in International Law 1–31 (1987); K. Hjertonsson, The New Law of the Sea: Influence of the Latin American States on Recent Developments of the Law of the Sea. A study of the law on coastal jurisdiction as it has emerged in Latin America and its impact on present and future law (1973); R. Zacklin, The Changing Law of the Sea: Western Hemisphere Perspectives (1974); F.V. Garcia Amador, The Latin American Contribution to the Development of the Law of the Sea, 68 AJ1L 33–50 (1974).

4. See also the Resolution Concerning the Law of the Sea and Political Declaration Relating to the Questions of the Sea-Bed of Sept. 9, 1973. Adopted at the Fourth Conference of Heads of State or Government of Non-Aligned Countries, Algiers, Sept. 5–9, 1973, reprinted in Oda, supra note 3, at 41–44. The attitude and positions of (developing) land-locked and so-called geographically disadvantaged states (LL/GDS) with respect to the propagation and content of the EEZ regime as an expression of a NIEO-objecti ve falls outside the scope of this article. For acritical analysis of this aspect, see W.D. Verwey. Het nieuwe zeerecht en de beginselen van een nieuwe internationale orde: de rol van de exclusieve economische zone. (The New Law of the Sea and NIEO Principles: the Function of the EEZ, Public Lecture, the Netherlands) (1980). The words ‘present EEZ regime’ refer to the EEZ regime as it has found written expression in Part V of the 1982 LOSC.

5. Already in 1982 it was noted by the ICJ that the EEZ had. as a concept, become “part of modern international law”. This was repeated in the 1984 Gulf of Maine case and most recently confirmed in the 1985 Libya/Malta judgment. See the Case Concerning the Continental Shelf (Tunisia v.Libyan Arab Jamahiriya), 1982 I.C.J. Rep 100, at 74; the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), 1984 I.C.J. Rep 19, at 265; the Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), 1985 I.C.J. Rep 34, at 33.

6. See, B. Kwiatkowska, supra note 2, at 246–272 for relevant national legislation. See also, R.W. Smith, Exclusive Economic Zone Claims, An Analysis and Primary Documents 61 –498 (1986); ST/LEG/SER.B/16, 18, 19, U.N. Sales No. E.87.V.3. (1986). Furthermore, most states in the region have acknowledged the rather drastic effects of the EEZ-concept on the legal regime of the continental shelf (cf., Part VI of the 1982 LOSC) and have incorporated these changes in their maritime legislation. Article 76( 1) of the 1982 LOSC refers to either the distance criterion of 200 miles or, beyond this limit, to the natural prolongation of the land territory to the outer edge of the continental margin as the source of legal title to the continental shelf. 200 Nautical miles is, therefore, the maximum permissable breadth for an EEZ, but is the minimum for the legal continental shelf. For the legal relationship between the EEZ and continental shelf regimes see, inter alia, the dissenting opinions of Judge Oda in the case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), supra note 5, at 217–220, Paras. 126–130 and the Continental Shelf Case between Libya and Malta, supra note 5, at 141 –147, Paras. 49–60 where he elaborated upon his theory of ‘EEZ-Continental Shelf parallelism’, making a plea for the incorporation of the continental shelf regime into that of the EEZ. Dissenting opinion Oda, 19821.C.J. Rep. 150, at 219. See also, D.N. Hutchinson, The Seaward Limit to Continental Shelf Jurisdiction in Customary International Law, 56 Brit. Y. B. Int'l L. 169 (1986). Apparently, the ICJ has accepted the legal validity of the distance criterion with respect to continental shelf title, for what it did observe, in the 1985 Libya v. Malta case, 19851.C.J. Rep. 34 at 33. Legislative data with respect to Sierra Leone, Liberia and Benin were not available to the author. In the case of The Gambia and Senegal the exercise of ‘sovereign rights’ are limited to living resources, although there are indications that these states are, in fact and in law, implementing legislation with respect to both living and non-living resources. It should be remembered, in this respect, that especially states in the West African region were confronted with the deleterious effects which resulted from the activities of longrange foreign fishing fleets.

7. Already in 1970 the Asian-African Legal Consultative Committee (AALCC) decided, at its Accra Session, in 1970 to put the topic on its agenda to be discussed at subsequent meetings. In 1971 the Rapporteur of the Sub-Committee on the Law of the Sea felt able to conclude that: “[…] a state had the right to claim certain exclusive rights to economic exploitation of the resources in the waters adjacent to the territorial sea […]”. One year later the delegation of Kenya prepared a working paper on “The Exclusive Economic Zone Concept' at the Thirteenth Session of the AALCC, which was, after some redrafting, also submitted to the Sea-Bed Committee, as Draft Articles on the Exclusive Economic Zone, sponsored by fourteen African states among which Ghana, Ivory Coast, Liberia and Senegal. See, U.N. Doc. A/AC. 138/ SC.II/L.40 (1972). The proposals spoke of a 200-mile zone and formed the basis for the discussions which took place at the African States Regional Seminar on the Law of the Sea, held in Yaounde1 in June, 1972. At the Yaounde' Seminar the participating states agreed, inter alia, that: “[t]he African states have […] the right to establish […] an Economic Zone […]”. Probably the most important African pre-UNCLOS III document on a future economic zone regime, however, was the Declaration of the Organisation of African Unity on the Issues of the Law of the Sea of 1973. In the Preamble of the Declaration, the African states pointed at their absence during the 1958 and 1960 Conferences and the privileged legal position of relatively few states, as sanctioned by the four 1958 Conventions. Part C of the Declaration stressed the legitimate interests of African coastal states in the exploitation of all natural resources in an exclusive economic zone “whose limits shall not exceed 200 nautical miles”. Addis Ababa, Ethiopia, July 2,1973. At the 1958 Conference only Egypt, Ghana and Liberia represented the African continent. In 1960 these countries were joined by Cameroon, Ethiopia, Guinea, Sudan, Tunisia and Marocco. theory of ‘EEZ-Continental Shelf parallelism’, making a plea for the incorporation of the continental shelf regime into that of the EEZ. Dissenting opinion Oda, 19821.C.J. Rep. 150, at 219. See also, D.N. Hutchinson, The Seaward Limit to Continental Shelf Jurisdiction in Customary International Law, 56 Brit. Y. B. Int'l L. 169 (1986). Apparently, the ICJ has accepted the legal validity of the distance criterion with respect to continental shelf title, for what it did observe, in the 1985 Libya v. Malta case, 19851.C.J. Rep. 34 at 33. Legislative data with respect to Sierra Leone, Liberia and Benin were not available to the author. In the case of The Gambia and Senegal the exercise of ‘sovereign rights’ are limited to living resources, although there are indications that these states are, in fact and in law, implementing legislation with respect to both living and non-living resources. It should be remembered, in this respect, that especially states in the West African region were confronted with the deleterious effects which resulted from the activities of longrange foreign fishing fleets.

7. Already in 1970 the Asian-African Legal Consultative Committee (AALCC) decided, at its Accra Session, in 1970 to put the topic on its agenda to be discussed at subsequent meetings. In 1971 the Rapporteur of the Sub-Committee on the Law of the Sea felt able to conclude that: “[…] a state had the right to claim certain exclusive rights to economic exploitation of the resources in the waters adjacent to the territorial sea […]”. One year later the delegation of Kenya prepared a working paper on “The Exclusive Economic Zone Concept' at the Thirteenth Session of the AALCC, which was, after some redrafting, also submitted to the Sea-Bed Committee, as Draft Articles on the Exclusive Economic Zone, sponsored by fourteen African states among which Ghana, Ivory Coast, Liberia and Senegal. See, U.N. Doc. A/AC. 138/ SC.II/L.40 (1972). The proposals spoke of a 200-mile zone and formed the basis for the discussions which took place at the African States Regional Seminar on the Law of the Sea, held in Yaounde1 in June, 1972. At the Yaounde' Seminar the participating states agreed, inter alia, that: “[t]he African states have […] the right to establish […] an Economic Zone […]”. Probably the most important African pre-UNCLOS III document on a future economic zone regime, however, was the Declaration of the Organisation of African Unity on the Issues of the Law of the Sea of 1973. In the Preamble of the Declaration, the African states pointed at their absence during the 1958 and 1960 Conferences and the privileged legal position of relatively few states, as sanctioned by the four 1958 Conventions. Part C of the Declaration stressed the legitimate interests of African coastal states in the exploitation of all natural resources in an exclusive economic zone “whose limits shall not exceed 200 nautical miles”. Addis Ababa, Ethiopia, July 2,1973. At the 1958 Conference only Egypt, Ghana and Liberia represented the African continent. In 1960 these countries were joined by Cameroon, Ethiopia, Guinea, Sudan, Tunisia and Marocco.

8. Guinea/Guinea-Bissau Maritime Delimitation case, Award of the Court of Arbitration, Febr. 14,1985, reprinted in 77 I.L.R. 635 (1988).

9. Affaire Rélative à la Sentence Arbitrate du 31 juillet 1989 (Guineé-Bissau c. Sénégal), reprinted in Annexe à la requete introductive d'instance du gouvernement de la République de Guineé-Bissau, 1989 l.CJ. 1–209.

9A. See, I.C.J. Communiqué No. 90/5 and Annexes of March 2,1990. See also I.C.J. Communiqué No. 90/2 of Feb. 5, 1990. For a discussion, see infra.

10. Report of the President on the Consultations on Delimitation, Resumed Tenth Session. UNCLOS III, Off. Rec, XV, at 39 (1985). See also, U.N. Doc. A/Conf.62/WP 11.

11. For a discussion of the pro-equidistance views, see G.J. Tanja, The Legal Determination of International Maritime Boundaries 92–116 (1990). See also, M.E. Evans, Relevant Circumstances and Maritime Delimitation (1989).

12. At UNCLOS III discussions on items 5.3. (delimitation of the continental shelf) and 6.7.2. (delineation of the EEZ) coincided, U.N. Doc. A/Conf.62/C.2/WP. 1 (Main Trends).

13. Article 6 states, inter alia: 1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite toeach other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. 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 from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. For the drafting history and travaux préparatoires of Article 6, see G.J. Tanja, supra note 11, at 24–45. See also, J.A.C. Gutteridge, The 1958 Convention on the Continental Shelf, 35 Brit. Y. B. Int'l L. 102–123 (1959); R. Young, The Geneva Convention on the Continental Shelf: A First Impression, 52 AJ1L 737 (1958). The above-mentioned examples of special circumstances were also consistently identified by the ILC. See Yb I.L.C., II216 (1953). Cf., on the term ‘combined rule’ also the observations of the ICJ in the North Sea Continental Shelf Cases, see supra note 14 at 24,28–29, Paras. 21,34,37. More specific, the Arbitration Award between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf. Decision of the Court of Arbitration, June 30,1977, reprinted in 18 ILM, at 421, Para. 70.

14. The representative of The Gambia observed, at the second session in Caracas, that a median line solution was a “fair means of establishing boundaries”. UNCLOS III, Off. Rec, Vol II, at 160 (1975). Nigeria pointed at the parallelism of territorial sea and EEZ delimitations, id.. Nigeria acceded to the 1958 CSC on April 28,1971; The Gambia has neither signed nor ratified the 1958 CSC. See, ST/LEG/SER.E/8, at 771. Nigeria later changed its position. See infra.

15. 1969 I.C.J. Rep. 92, 101, at 51, 54. In order to arrive at such an equitable result, parties should take account of unusual geographical features, coastal configurations, geology, geomorphology and the existence of natural resources. Furthermore, the ICJ pointed at the “element of a reasonable degree of proportionality” between the extent of continental shelf and respective lengths of coastline. Id..

16. See, inter alia, 1982 l.C.J. Rep. 70–71, at 45–47; Separate opinion of Judge Jimenez de Arechaga. Id. at 92; 1984 l.C.J. Rep. 112, at 57–58 (the ‘reformulated’ fundamental rule); 1985 I.CJ. Rep. 28,45–46, 71, at 21 –22,29–31,46. See also, the Arbitral Award between France and the United Kingdom, 18 ILM, supra note 13, at 426–427, Para 97.

17. Statement on behalf of Senegal, Aug. 5, 1974. UNCLOS III, Off. Rec, Vol II, at 199–200. This statement may be regarded as a first indication of a Senegalese policy change. Although at that moment still a party to the 1958 CSC, Senegal communicated on March 1, 1976, to the Secretary-General that it would denounce the CSC. Senegal had acceded to the CSC on April 25,1961. See, ST/LEG/SER.E/8, at 771–775.

18. 1969 I.CJ. Rep. 93, at 51.

19. UNCLOS III, Off. Rec, X, a.t 1 (1980). In 1978 the Conference established Negotiating Group 7 (NG 7) to discuss the delimitation of maritime boundaries between adjacent and opposite states. See, U.N. Doc. A/Conf.62/61; U.N Doc. A/Conf.62/62; U.N. Doc. A/Conf.62/63; UNCLOS III, Off. Rec, X, at 124; UNCLOS III, Off. Rec, IX, at 173 (1980).

20. U.N. Doc. A/Conf.62/C.2/L.82. Among the supporters of the African proposal the following states belong to the West African region: The Gambia, Ghana, Ivory Coast, Liberia. This is reprinted in R. Platzöder, Third United Nations Conference on the Law of the Sea, Documents, Vol. V, 184–185 (1984). This formula was, with some modifications, taken from Proposal D (Main Trends) which had been prepared by Committee II under provision 6.7.2.. See, U.N. Doc. A/Conf.62/C.2/WP. 1, reprinted in Platzöder, Vol. Ill, 42 (1983). In Formula D the words ‘equitable dividing line’ appeared instead of ‘principles of equity’.

21. See, U.N. Doc. A/Conf.62/61–62. See also, M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982. A Commentary, Vol. 1,94 (1985). All states “[…] which had a special interest in the subject should be free to inform the Chairman of the Group of their desire to participate […]”, UNCLOS III, Off. Rec, IX, at 173. The Group consisted of 99 delegations under the chairmanship of Manner (Finland). In his First Report on the Work of the Group Manner revealed that “[…] positions differed markedly between those in support of the equidistance solution and those favoring delimitation in accordance with equitable principles”. See, UNCLOS III, Rec, X, at 124.

22. U.N. Doc. NG 7/2 of April 28, 1978, reprinted in Platzoder, Vol. IX, 392–393 (1986). According to Platzöder 20 states sponsored this document, but Manner refers to twenty-two states in his First Report. Nordquist refers to twenty-four states. See, Nordquist, infra note 21, at 78.

23. U.N. Doc. NG 7/10 of May 1,1978, UNCLOS 111, Off. Rec, IX, at 61. Platzöder refers to twenty-six states originally sponsoring U.N. Doc. 7/10, but Manner and Nordquist speak of twenty-nine states. Id., at 78–79.

24. Nigeria acceded to the 1958 CSC on April 28, 1971; Sierra Leone on Nov. 25, 1966; Ghana signed on April 29,1958; Liberia signed on May 27,1958. ST/LEG/SER.E/8, at 771. For the position of Senegal, supra. Neither Ghana and Sierra Leone did, at an official level at least, supported the pro-equidistance or pro-equity proposals.

25. The Nigerian position is rather obscure. Nordquist and Platzböder refer to Nigeria as a pro-equity state, but from a statement of the Nigerian representative at the 35th Plenary Meeting of Aug. 25, 1980 one may conclude that Nigeria agreed with the text of Articles 74 and 83 of ICNT/Rev.2 which still included a reference to equidistance. U.N. Doc. A/Conf.62/WP.20/Rev. 2 of April 11,1980. UNCLOS III, Off. Rec, XIV, at 27 (1982).

26. According to Prescott the “slight deviation near the coast was designed to prevent the boundary from passing too close to the Gambian shore”. J.R.V. Prescott, The Maritime Political Boundaries of the World 324 (1985). Maritime Boundary: The Gambia/Senegal, done at Banjul, 4 June, 1975, reprinted in U.N. Sales Publ. E.87.V.12, at 100–102. Entering into force, Aug. 27, 1976. At the Resumed Ninth Session (1980; Geneva July 28 – Aug. 29) Senegal made clear that it considered a reference to equidistance in a Draft Article superfluous and contrary to international law. See, UNCLOS III, Off. Rec, XIV, at 26.

27. See, Tanja, supra note 11, at 306–307. See also P. Weil, The Law of Maritime Delimitation – Reflections 7 (1989). Already in 1977 the Court of Arbitration in the France/United Kingdom case had observed that “[…] in the circumstances of the present case, the rules of customary law lead to much the same result as the provisions of Article 6”. Reprinted in 18 ILM, supra note 13, at 420, Para. 65. For a commentary on this ‘merger’ of customary and conventional law, see D.A. Colson, The United Kingdom - France Continental Shelf Arbitration, 72 AJIL 11 (1978).

28. Nigeria, Sierra Leone, Ghana and Liberia are either parties or Signatories to the 1958 CSC. Supra. All other West African states have neither signed nor ratified the Convention.

29. Most of the NG's at UNCLOS III consisted of a “nucleus of those countries principally concerned”. This did not apply to NG 7 “as the problems relating to this issue were essentially of a bilateral nature […]”- U.N. Doc. A/Conf.62/63. UNCLOS HI, Off. Rec, X, at 6. At the 92nd Plenary Meeting it had been observed that the topic of delimitation was “principally of interest to pairs of States […]”. UNCLOS III, Off. Rec, IX, at 19. It should also be pointed out, however, that various countries which share a lateral boundary, like Mauritania and Senegal and Nigeria and Benin, all belonged to the pro-equity group. Guinea and Sierra Leone are, apparently also negotiating their lateral maritime boundary, but neither state belonged to either the pro-equidistance or pro-equity group. See supra notes 22 and 23.

30. For the Award of the Court of Arbitration of Feb. 14, 1985, supra note 8. The Arbitral Tribunal consisted of Judges Lachs (President), Mbaye, Bedjaoui (Members) and had its seat in The Hague (the Netherlands).

31. Decree, June 3,1964.

32. Decree, Dec. 32,1965.

33. 77 I.L.R., supra note 8, at 654.

34. Id. at 655.

35. Id.: established July 30, 1980. In its legislation Guinea referred to the ‘boundary’ of 1886.

36. Id. at 655.

37. Id. at 655–656.

38. Feb. 18, 1983. See also, Complementary Agreement, Bissau, October 18, 1983. Id. at 646.

39. Id. at 643.

40. Id. at 659–675.

41. Id. at 681.

42. Id. at 686

43. This was confirmed by the Court, id. at 679.

44. Id. at 685. For the rejection of this theory see, inter alia, 1982 I.C.J. Rep. 44–48,61,133, at 32–35, 39–40, 78–80; 1984 I.C.J. Rep. 193, at 84–85. In the Libya/Malta case the Court was most outspoken, see 1985 I.C.J. Rep. 39, at 26. See also, at 26–27, Paras. 40–41. With respect to natural limits, see the observations of the Chamber in the Gulf of Maine Case with respect to the contentions of the United States and the refusal of the Chamber to take account of these features. 1984 I.C.J. Rep. 51 –52, 54, at 34–35. See also, J. Schneider, The Gulf of Maine Case: The Nature of an Equitable Result, 79 AJIL 562–563 (1985). According to Schneider Canada considered these American arguments as ‘mythical’.

45. 77 I.L.R., supra note 8, at 688–689. See also, 1985 I.C.J. Rep. 51, at 33.

46. 77 I.L.R., supra note 8, at 675–676. Cited from 19841.C.J. Rep. 81, at 48. Determination of the macrogeographical delimitation area is required in order to be able to identify and balance all relevant circumstances. Guinea had signed the 1982LOSConOct.4,1984; Guinea-Bissau on Dec. 10,1982. Both states ratified the LOSC after the Court of Arbitration delivered its judgment: Guinea on Sept. 6,1985; Guinea-Bissau on Aug. 24,1986. C/., ST/LEG/SER.E/8, at 779.

47. 77 I.L.R., supra note 8, at 677. For the determination of the relevant area, see infra. The relevant coastline was identified by the Court as running from Cape Roxo to Sallatouk Point.

48. 1985 I.C.J. Rep. 22, at 17–19. The Court of Arbitration also observed, however, that it could not “take into consideration a delimitation which did not result from negotiations or an equivalent act in accordance with international law”. In view of the foregoing a rather unfortunate remark.

49. 1984 I.C.J. Rep. at 85, Para. 194. This meant that the Chamber excluded circumstances which “would be suitable for delimiting the one but not for delimiting the other”. Id., at 75, Para. 168. In his Dissenting opinion Judge Gros severely criticized this part of the judgment arguing that the Chamber had not indicated the legal grounds for this finding. Dissenting Opinion Judge Gros, id. at 134–135, Para. 25. In the Guinea/Guinea-Bissau case the Court referred to geomorphological circumstances as ‘other’ circumstances, but rejected its validity in the present case because both states abutted on a continuous continental shelf. 77 I.L.R., supra note 8, at 687. However, based on geographical circumstances the Court felt able to indicate a provisional line of delimitation. It was only thereafter that the Court went on to identify these ‘other’ circumstances and examined “whether the chosen line effectively leads to an equitable result”. Id. at 685.

5O. Id. at 679. The mainland coastline of Guinea-Bissau had u length of 128 miles. Together with the baselines around the Archipelago the total length of the coastline was approximately 154 miles which was identical to the length of the coastline of Guinea. For the effects to be attributed to islands, see, inter alia, the Award of Arbitration between the United Kingdom and France, reprinted in 18 ILM, supra note 24, at 442, Paras. 84–87. See also, M.E.Evans, supra note 1 l, at 135–145; D.E.Kar, Islands and the Delimitation of the Continental Shelf: A Framework for Analysis, 71 AJIL 642–673 (1973).

51. 77 I.L.R., supra note 8, at 683. To a certain extent this may be compared to the observations made by the ICJ in the Libya/Malta case where the ICJ introduced the “wider geographical context”. See supra. In the Gulf of Maine case, however, the Chamber refused to go beyond the ‘relevant’ area. 19841.C.J. Rep. at 30–31, Para. 41.

52. Id. at 684. It should be noted that the equitable principle to take account of all relevant circumstances operates within the “precise area concerned”; i.e., the macro-geographical delimitation area. Extension of this area will, therefore, introduce legal uncertainty and arbitrariness.

53. The Court seems, furthermore, to imply that equity as it operates within the framework of state practice, will most likely lead to the same (delimitation) result as equity infra legem ! Since delimitation law is of a dispositive nature and states are free to conclude any type of agreement -both under customary and treaty law-, this is highly questionable.

54. 77 I.L.R., supra note 8, at 683. This segment was, in fact, part of the territorial frontier established in 1886. The Court confirmed, therefore, the view already expressed in case law that the position of the land frontier qualifies as a relevant circumstance. See also, 1982 I.C.J. Rep at 51, Para 82. For a contrary opinion, see the dissenting opinion of Judge Evensen in that judgment, id. at 294. In the Gulf of Maine case the Chamberdid not touch upon the position of the land frontier, presumably because the parties had agreed that its location was “without influence on the issues to be decided”, though the United States had referred to the “international boundary terminus” in its Memorial. 1984 I.C.J. Rep. at 31, Para. 42; Memorial of the United States, id., at 17.

55. 77 I.L.R., supra note 8, at 689.

56. Id.. See also, 1982 I.C.J. Rep. at 69–70, Para. 107.

57. 77 I.L.R., supra note 8, at 689. Apparently the word ‘modifying’ is used because the Court classified economic circumstances among the ‘other’ circumstances. It implicitly confirms of course the predominance of geography.

58. Id..

59. Id.. As both states are developing nations it is difficult to imagine how the Court has interpreted this ‘circumstance’. See also M.E. Evans, who (correctly) states: “[i]f noted that in this case both states were developing nations, suffering similar financial and economic difficulties. If only one had been a developing nation this might have weighed with the Tribunal”. M.E. Evans, supra note 11, at 188.

60. 77 I.L.R., supra note 8, at 685.

61. Id..

62. Id. at 688. The Court confirmed the observation made by the ICJ in the Libya/Malta judgment that proportionality relates to the ratio between the length of the respective coastlines and sea areas involved and not to the ‘landmasses’ behind the coastlines.

63. I.C.J., the case concerning the Arbitral Award of July 31,1989 (Guinea-Bissau v. Senegal), Annex to the Application Instituting Proceedings of the Government of the Republic of Guinea-Bissau, Aug. 24, 1989 I.CJ. Rep. at 13.

64. Id.. See also, ICJ, Communiqué, No. 89/17 of Aug. 24,1989. The Agreement was signed in Dakar. The Tribunal consisted of three arbitrators: Guinea-Bissau appointed Judge Bedjaoui; former ICJ member Gros was appointed by the Republic of Senegal. Judge Barberis was appointed President.

65. I.C.J., Annex, infra note 63, at 72, Para. 88.

66. See, however, infra for the (disputed) Declaration of Barberis.

67. Dissenting Opinion Bedjaoui, I.C.J. Annex, infra 63, at 78, Para. 3.

68. 1.C.J., Application, General List, No. 82, at 14–15.

69. ST/LEG/SER.E/8, at 779. See also, dissenting opinion Bedjaoui, infra note 63, at 146–147, Para. 80.

70. Id. at 148.

71. As far as case law is concerned Bedjaoui is right; the rule of equity infra legem was developed mainly in ICJ judgments. However, as Weil has correctly remarked the crystallization and development of customary law normally takes place in state practice. He, therefore, speaks of a “reversal of the respective roles of treaty and customary law” and the “capitis diminutio of the treaty source”. Weil, supra note 27, at 7. This has resulted in a rather paradoxical situation as the agreements with respect to continental shelf delimitations concluded between 1958 and 1988 disclose a pronounced preference for the system of the combined rule. After examining more than 100 delimitation agreements the present author came to the conclusion that the “rule as laid down in article 6 has a norm-creative character” which is in “the process of becoming a general rule governing opposite and lateral continental shelf delimitations”. Tanja, supra note 11, at 152. On the other hand, recent case law seems to interpret the rule of equity infra legem along the lines of the system of the combined rule, so that the apparent duality between case law and state practice is more a “difference in words than a fundamental difference of opinion with respect to the legal content of the principles and rules involved”. Id..

72. See, inter alia, 1982 I.C.J. Rep. at 46–47, Para. 72; 1984 I.C.J. Rep. at 30–31, 35–36, Paras. 39–41, 57–59. 1985 I.C.J. Rep. at 15–19, Paras. 39–41, 57–59. See also, supra note 46.

73. See, inter alia, 1982,1.C.J. Rep. at 15–17, Paras. 74–75, at 47–48; 1984 I.C.J. Rep. at 30–31, Paras. 39, 41.

74. This seems correct; to adopt a more southern limit would violate well-established principles of international delimitation law, since it would mean an infringement of the rights of a third state. See, 1985 I.C.J. Rep. at 15–17, Paras. 20–21. See also, M.E. Evans, supra note 11, at 234. In the opinion of Evans: “[t]he existence of a third State is part of the general geographical and political framework of the region and will have consequences for the extent of the relevant area and the lengths of the relevant coasts”.

75. Dissenting opinion Bedjaoui, at 154–155, Para. 90, Supra note 63.

76. Id. at 154–156, Paras. 90–91.

77. Id., at 149–151, Paras. 84–85. This distinction between the macro-geographical delimitation area and the contested or disputed area is an interesting aspect of the dissenting opinion of Bedjaoui. Apparently he wants to steer a middle course between the observations made in the Tunisia/Libya judgment and those made in the Libya/Malta case. In the Tunisia/Libya judgment the Court gave the impression that relevant delimitation area and disputed area are synonymous when it comes to the identification of equitable principles and relevant circumstances. In the Libya/Malta case, however, the Court introduced the rather unfortunate distinction between the proper delimitation area and the “wider geographical context”: “In the present case, the Court has also to look beyond the area in the case, and consider the general geographical context in which the delimitation will have to be effected (emphasis added)”. 1985 I.C.J. Rep. at 41, Para. 69; See also at 33, Para. 53. See in this respect also the Dissenting Opinion of Judge Mossier who criticized the Court's conclusions: “It could have been answered -and, in my view, the Court should have answered it- by an assessment of the geographical relationship between the coasts of the Parties. According to this criterion, the relevant area would extend to all maritime zones lying between coasts facing each other, including those zones in which the coasts of third States are also situated in an opposite position”. Dissenting opinion Mossier, id. at 106. See also supra. It has been suggested that the Court made its observations in order to leave open the possibility to ‘adjust’ or ‘modify’ a provisionally determined boundary in the light of the operation of the ex post principle of proportionality. See, Tanja, supra note 11, at 240–241. See also, 1982 I.CJ. Rep. at 47–48, Para. 75, where the ICJ stated that the determination of the seaward limits of the delimitation area should be “considered only in relation to the criteria of proportionality, for the purpose of which such boundaries will have to be defined”. Bedjaoui did not touch upon the seaward limit of the relevant area, but this can be established in accordance with Articles 57 and 76 of the 1982 LOSC.

78. Dissenting opinion Bedjaoui, at 179–180, Para. 121, supra note 63.

79. For a comprehensive list of geographical circumstances, see his observation at 164 et seq. in Para. 102. He includes the enclaved location of The Gambia, the 1975 Agreement and the fact that Senegal has not yet concluded a delimitation agreement with Mauritania. Furthermore, he refers to the 1986 boundary between Guinea and Guinea-Bissau.

80. Id. at 172–173, Para. 111.

81. Id. at 196, Paras. 145–146.

82. Id. at 197–198, Paras. 147–148.

83. Id., at 200, Paras. 149. For Che Libya/Malta judgment, see 1985 I.C.J. Rep. at 34–36, Paras. 55–56,58. In Para. 66 of the latter judgment the Court stated that the function of proportionality is limited to “a verification of the equitableness of the result arrived at by other means”. Id. at 39–40. For the importance and function of the lengths of the respective coasts in relation to proportionality, see 1984 I.C.J. Rep. at 92–93, Para. 218; 1985 I.C.J. Rep. at 39–40,44–46, Paras. 66,74. See also, separate opinion Judge Sette- Camara in this judgment: ‘The striking difference in the lenghts of the relevant coasts, […], could not be ignored by the Court. […]; and this flagrant disproportionality was recognized as an important special circumstance for the correction of the equidistance line. The principle of proportionality itself was retained only for its normal a posteriori use to test the equity of the final result [empasis added GT]’.

84. Declaration Barberis, ICJ Annex, at 74–75. The content of the Declaration of the President led Bedjaoui to the observation that it violated object and purpose of the Compromis and justified serious doubts concerning the legality of the ‘majority’ vote. Dissenting Opinion Bedjaoui, at 208–209, Para. 161.

85. 1989, ICJ, Application of Guinea-Bissau, 1989, at 7.

86. Id. at 15.

87. ICJ, Communiqué No. 90/2, Feb. 5,1990, at 2. According to Guinea-Bissau these “acts of sovereignty by Senegal […] prejudge both the Judgment on the merits and the maritime delimitation to be affected subsequently between the states; […] [emphasis added GT]. ICJ, Communiqué, No. 90/5, March 2,1990.

88. Id., at 4.

89. 1976 I.C.J. Rep. at 9, Para. 25.