Izvorni znanstveni članak
Maritime delimitations in the practice of international courts and tribunals
Vladimir-Đuro Degan
; Jadranski zavod HAZU, Zagreb, Hrvatska
Sažetak
This article is a critical review with comments of the practice of international tribunals on maritime delimitations in the period between 1982 and 1993. However its final conclusions relate to all this practice since 1969.
In all these cases but one, judges and arbitrators had in mind a median line, provisionally drawn. Only the Judgement of the Hague Court of 1982 (Tunisia / Libya) is different mainly because both disputing parties agreed that the equidistance method would result in an inequitable delimitation (ICJ Reports 1982, p.79, par.110). But special circumstances in the delimitation process are always assessed in relation to the median line which is provisionally drawn.
That confirms the appropriateness of the equidistance - special circumstances rule, as provided in Article 6 of the 1958 Geneva Convention on the Continental Shelf, as well as in all conventional provisions relating to the delimitation of territorial sea. In fact it cannot be different in regard to delimitations of exclusive economic zone and of fisheries zones.
In order to describe the role of equity in judicial decisions on this subject-matter, one should start from the simplest geographical situations and proceed to those which are more complicated. It has been proved that delimitation of maritime area situated between states whose coasts are opposite each other, is an easier task than that one between states with adjacent coasts. And if the cases were presented before international tribunals in this order, there would be certainly less misunderstandings, especially in respect to the so-called ''equitable principles''.
In an ideal geographical situation of opposite coasts of two states on the same distance and with equal length of their ''relevant coast'', the median line should be the most equitable delimitation line in all possible respects. There are no special circumstances justifying deviations from it.
The excessive disproportion in the length of relevant parts of coast of parties in the main special circumstance justifying the adjustment or translation of median line in favour of the party with longer coast. In the Jan Mayen case of 1993, equitable access to the fishing resources of both parties was for the Hague Court another circumstance important for drawing the line in one zone delimitation.
The delimitation of maritime areas between states with adjacent coasts is faced with quite particular problems. Ideal situation consists in a straight coastal line without presence of any island, islets, rocks, banks or low-tide elevations in its proximity. The median line will coincide here with a line perpendicular to the line of general direction of the coast.
The strong concave or convex shape of coastal line, the presence of islands, islets, rocks or low-tide elevations, can therefore justify an adjustment of the median line or even its abandonment in order to attribute an equitable part of the area to both parties.
However it seems that the delimitation process should start even here with drawing a provisional median line, just in order to assess all special circumstances of the area to be delimited. But a judge can seldom adjust or translate this line in favour of one party. When he finds necessary he can reject it and adopt a quite different method of delimitation.
Especially in delimitations of maritime areas of a gulf or bay, it will sometimes be necessary to determine several zones of delimitation, and to draw a broken line under different angles.
Equity of a judge consists in the weight to be given to special circumstances which he himself ascertains, either in adjustment or translation of median line, or in drawing of a quite different line.
In geographical situations closer to these described as ideal, the role of equity of a judge will be modest. But it is highly unlikely that a judge or arbitrator will deal with such cases. In simple geographical circumstances the states concerned will agree on a median line or on a slightly modified median line as their maritime border, and the dispute will not arise at all.
Judges and arbitrators are charged to settle difficult cases only, what they cannot do without a resort to equity. This situation can create a false impression that the equidistance principle has been generally rejected by international courts and tribunals, what is not true at all.
In complicated situations, in particular when the judge must trace a broken line in several zones of delimitation, his responsibility becomes higher and higher. There will never be enough legal rules sufficiently precise, that can facilitate his job in these cases. Therefore maritime, as well as land, delimitations will always be fabric of judicial art rather than the strict application of legal rules.
It can be finally asked whether an operation of maritime delimitation, strictly speaking, consists in establishing of a maritime boundary, or rather in an apportionment of areas concerned by a line between disputing parties, However that is not a problem of our primary concern. Even a genuine apportionment based on distributive justice would not be contrary to the primary goal of almost all delimitations as it is set out in the 1982 Law of Sea Convention, and which consists in achieving of an ''equitable solution''.
Ključne riječi
delimitation of maritime areas; practice of international courts and tribunals; inequitable delimitation; equidistance method; median line; territorial sea; exclusive economic zone; fisheries zone; coastal states; UN Law of the Sea Convention (1982);
Hrčak ID:
203146
URI
Datum izdavanja:
22.12.1994.
Posjeta: 1.291 *