-
2
-
-
85022352718
-
-
Art. 2(1); Arbitration Agreement, Art. 1(1). The arbitrators appointed were, for Eritrea, Judge Stephen M. Schwebel and Judge Rosalyn Higgins; for Yemen, Dr. Ahmed Sadek El-Kosheri and Mr Keith Highet. It was agreed between them that the fifth appointee be Sir Robert Y. Jennings, who also served as President of the Tribunal. Thus, at the time of the awards, two members of the Tribunal were serving judges of the ICJ (Schwebel and Higgins), one (Jennings) had previously served as a member of the ICJ, another (El-Kosheri) had acted as a judge ad hoc on the ICJ whilst the final member (Highet) had appeared very frequently before the ICJ as counsel. Indeed, Mr. Highet was appearing before Judges Schwebel and Higgins in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, which raised not wholly dissimilar issues, albeit that procedural rather than substantive matters were then at issue before the court. See, for example, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, 11 June 1998, ICJ Rep.
-
See Agreement on Principles, Art. 2(1); Arbitration Agreement, Art. 1(1). The arbitrators appointed were, for Eritrea, Judge Stephen M. Schwebel and Judge Rosalyn Higgins; for Yemen, Dr. Ahmed Sadek El-Kosheri and Mr Keith Highet. It was agreed between them that the fifth appointee be Sir Robert Y. Jennings, who also served as President of the Tribunal. Thus, at the time of the awards, two members of the Tribunal were serving judges of the ICJ (Schwebel and Higgins), one (Jennings) had previously served as a member of the ICJ, another (El-Kosheri) had acted as a judge ad hoc on the ICJ whilst the final member (Highet) had appeared very frequently before the ICJ as counsel. Indeed, Mr. Highet was appearing before Judges Schwebel and Higgins in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, which raised not wholly dissimilar issues, albeit that procedural rather than substantive matters were then at issue before the court. See, for example, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, 11 June 1998, 1998 ICJ Rep. 275.
-
(1998)
See Agreement on Principles
, pp. 275
-
-
-
3
-
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85022419401
-
-
Art. 2(2), (3). This differed from the May Agreement on Principles which had envisaged the first stage being limited to the determination of the scope of the dispute and the second dealing with both the territorial sovereignty and maritime delimitation issues. The nub of the issue to be determined regarding the scope of the award was whether the Tribunal was to consider title to the ‘northern islands’, the Eritrean position. Yemen argued that this was not within the contemplation of the parties at the time of the Agreement on Principles. Eliding this question with that of the sovereignty issue itself in the Arbitration Agreement virtually assured that the Eritrean view would be adopted, and this proved to be the case.
-
See Arbitration Agreement, Art. 2(2), (3). This differed from the May 1996 Agreement on Principles which had envisaged the first stage being limited to the determination of the scope of the dispute and the second dealing with both the territorial sovereignty and maritime delimitation issues. The nub of the issue to be determined regarding the scope of the award was whether the Tribunal was to consider title to the ‘northern islands’, the Eritrean position. Yemen argued that this was not within the contemplation of the parties at the time of the Agreement on Principles. Eliding this question with that of the sovereignty issue itself in the Arbitration Agreement virtually assured that the Eritrean view would be adopted, and this proved to be the case.
-
(1996)
See Arbitration Agreement
-
-
-
4
-
-
85022403875
-
-
Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), 9 October [hereinafter: Award, Phase I].
-
Award of the Arbitral Tribunal in the First Stage of the Proceedings, Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), 9 October 1998 [hereinafter: Award, Phase I].
-
(1998)
Award of the Arbitral Tribunal in the First Stage of the Proceedings
-
-
-
6
-
-
84962572773
-
-
see N. Antunes, The Eritrea-Yemen Arbitration: First Stage-The Law of Title to Territory Re-Averred, 48 ICLQ 362. See also C. Johnson, Eritrea-Yemen Arbitration, 13 LJIL 427 (2000).
-
For a more comprehensive presentation and analysis of the Phase I Award, see N. Antunes, The Eritrea-Yemen Arbitration: First Stage-The Law of Title to Territory Re-Averred, 48 ICLQ 362 (1999). See also C. Johnson, Eritrea-Yemen Arbitration, 13 LJIL 427 (2000).
-
(1999)
For a more comprehensive presentation and analysis of the Phase I Award
-
-
-
7
-
-
85022354707
-
-
Phase I, para.
-
Award, Phase I, para. 467.
-
Award
, pp. 467
-
-
-
8
-
-
85022427485
-
-
Id., para. The award is, however, somewhat ambiguous since it is not entirely clear whether ‘the islands’ whose ownership needs to be at issue refers to the islands to be claimed on the basis of the presumption or to the islands from which the territorial sea is drawn. If the Tribunal was referring to territorial seas generated by islands, sovereignty over which is itself acquired on the basis of this presumption, then this might be considered acceptable. If, however, this precludes the operation of such a presumption in respect of islands located within a territorial sea generated from an island the sovereignty of which is uncontested, then this might seem unnecessarily restrictive. After all, and as the Tribunal itself acknowledged, “it would be no more than a presumption, capable of being rebutted by evidence of a superior title;” id. It is not obvious that an analogy with the ‘leapfrogging’ rules pertaining to the generative capacity of low-tide elevations found in Article 13 of the LOSC would be well-founded.
-
Id., para. 474. The Tribunal went on to state that “there is no like presumption outside the coastal belt, where the ownership of the islands is plainly at issue.” In so saying, the Tribunal was rejecting the ‘leapfrogging’ argument, advanced by Eritrea, that since islands located within the territorial sea themselves generate a territorial sea, a similar presumption applies to islands located in territorial seas generated from them as well. The award is, however, somewhat ambiguous since it is not entirely clear whether ‘the islands’ whose ownership needs to be at issue refers to the islands to be claimed on the basis of the presumption or to the islands from which the territorial sea is drawn. If the Tribunal was referring to territorial seas generated by islands, sovereignty over which is itself acquired on the basis of this presumption, then this might be considered acceptable. If, however, this precludes the operation of such a presumption in respect of islands located within a territorial sea generated from an island the sovereignty of which is uncontested, then this might seem unnecessarily restrictive. After all, and as the Tribunal itself acknowledged, “it would be no more than a presumption, capable of being rebutted by evidence of a superior title;” id. It is not obvious that an analogy with the ‘leapfrogging’ rules pertaining to the generative capacity of low-tide elevations found in Article 13 of the LOSC would be well-founded.
-
The Tribunal went on to state that “there is no like presumption outside the coastal belt, where the ownership of the islands is plainly at issue.” In so saying, the Tribunal was rejecting the ‘leapfrogging’ argument, advanced by Eritrea, that since islands located within the territorial sea themselves generate a territorial sea, a similar presumption applies to islands located in territorial seas generated from them as well.
, pp. 474
-
-
-
9
-
-
0003250207
-
-
Award, Phase I, para. 472. The Tribunal supports this by reference to D. Bowett
-
Award, Phase I, para. 472. The Tribunal supports this by reference to D. Bowett, The Legal Regime of Islands in International Law 48 (1979).
-
(1979)
The Legal Regime of Islands in International Law
, pp. 48
-
-
-
10
-
-
85022443991
-
-
Phase I, para.
-
Award, Phase I, para. 475.
-
Award
, pp. 475
-
-
-
12
-
-
85022424540
-
-
Phase I, paras.
-
Award, Phase I, paras. 483-484.
-
Award
, pp. 483-484
-
-
-
13
-
-
85022359709
-
-
para.
-
Id., para. 491.
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Id.
, pp. 491
-
-
-
14
-
-
85022351438
-
-
Phase I, para.
-
Award, Phase I, para. 504.
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Award
, pp. 504
-
-
-
15
-
-
85022432575
-
-
para.
-
Id., para. 505.
-
Id.
, pp. 505
-
-
-
16
-
-
85022379442
-
-
para. 508. It should be noted that included in the group was Three Foot Rock, situated approximately three nautical miles from South-West Haycock, which was awarded to Eritrea. Id., para.
-
Id., para. 508. It should be noted that included in the group was Three Foot Rock, situated approximately three nautical miles from South-West Haycock, which was awarded to Eritrea. Id., para. 476.
-
Id.
, pp. 476
-
-
-
17
-
-
85022451696
-
-
para.
-
Id., para. 523.
-
Id.
, pp. 523
-
-
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18
-
-
85022432573
-
-
para.
-
Id., para. 524.
-
Id.
, pp. 524
-
-
-
19
-
-
85022391203
-
-
The Tribunal did, however, note that “they are slightly nearer to the Yemeni coastal islands than they are to the coast and coastal islands of Eritrea.”
-
Id., para. 509. The Tribunal did, however, note that “they are slightly nearer to the Yemeni coastal islands than they are to the coast and coastal islands of Eritrea.”
-
Id.
, pp. 509
-
-
-
20
-
-
85022409323
-
-
para.
-
Id., para. 486.
-
Id.
, pp. 486
-
-
-
21
-
-
85022356229
-
-
This recalled the Award, Phase I, paras. 389-439, in which the petroleum agreements and activities of the parties were examined. For the consequences of this discussion for the second stage. See Award, Phase II, paras.
-
See Award, Phase II, Annex II, for the exchange. This recalled the Award, Phase I, paras. 389-439, in which the petroleum agreements and activities of the parties were examined. For the consequences of this discussion for the second stage. See Award, Phase II, paras. 75-86.
-
See Award, Phase II, Annex II, for the exchange.
, pp. 75-86
-
-
-
22
-
-
85022360156
-
-
Having acquired title on the basis of such practice, it would be quite cogent to argue that the starting point for delimiting the resulting maritime boundary should be the sovereign territory thus acquired. Indeed, this turned out to be what happened. See Award, Phase I, para. 438, where the Tribunal observed that the petroleum contracts “lend a measure of support to a median line between the opposite coasts of Eritrea and Yemen, drawn without regard to the islands, dividing the respective jurisdictions of the parties.” The Tribunal found itself unable-or unwilling-to fully distance itself from the consequences of this, despite implying that it was attempting to do so. See Award, Phase II, paras. 81-83, and text at note 122, infra.
-
It is equally easy, however, to see that this concern might be misplaced. Having acquired title on the basis of such practice, it would be quite cogent to argue that the starting point for delimiting the resulting maritime boundary should be the sovereign territory thus acquired. Indeed, this turned out to be what happened. See Award, Phase I, para. 438, where the Tribunal observed that the petroleum contracts “lend a measure of support to a median line between the opposite coasts of Eritrea and Yemen, drawn without regard to the islands, dividing the respective jurisdictions of the parties.” The Tribunal found itself unable-or unwilling-to fully distance itself from the consequences of this, despite implying that it was attempting to do so. See Award, Phase II, paras. 81-83, and text at note 122, infra.
-
It is equally easy, however, to see that this concern might be misplaced.
-
-
-
23
-
-
85022452226
-
-
para.
-
Id., para. 113.
-
Id.
, pp. 113
-
-
-
24
-
-
84920164014
-
-
Art. 2(3); Award, Phase II, para.
-
Arbitration Agreement, Art. 2(3); Award, Phase II, para. 5.
-
Arbitration Agreement
, pp. 5
-
-
-
26
-
-
85022372518
-
-
See Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment, 1984 ICJ Rep. 246, paras. 26-27 [hereinafter: Gulf of Maine case]. Cf. Dissenting Opinion of Judge Gros for trenchant criticism of this approach, id., at. See also P. Weil, The Law of Maritime Delimitation-Reflections 122-124, who points out that the Chamber did reject the idea advanced by the parties that the single maritime boundary should be envisaged as a “synthetic” line, and adopted a “two zone-one common line” approach. However, given their preference for so-called “neutral factors” to bring this about, it is difficult to see the difference.
-
These being, at the time, the continental shelf and exclusive fishing zone. See Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment, 1984 ICJ Rep. 246, paras. 26-27 [hereinafter: Gulf of Maine case]. Cf. Dissenting Opinion of Judge Gros for trenchant criticism of this approach, id., at p. 360. See also P. Weil, The Law of Maritime Delimitation-Reflections 122-124 (1989), who points out that the Chamber did reject the idea advanced by the parties that the single maritime boundary should be envisaged as a “synthetic” line, and adopted a “two zone-one common line” approach. However, given their preference for so-called “neutral factors” to bring this about, it is difficult to see the difference.
-
(1989)
These being, at the time, the continental shelf and exclusive fishing zone.
, pp. 360
-
-
-
27
-
-
84922886971
-
-
These being, at the time, the continental shelf and exclusive fishing zone. note 29, paras. 192-194. For a critical examination of this aspect of the Gulf of Maine case and the quest for ‘neutral’ factors, see M.D. Evans, Delimitation and the Common Maritime Boundary, 64 BYIL 283, at
-
Gulf of Maine case, These being, at the time, the continental shelf and exclusive fishing zone. note 29, paras. 192-194. For a critical examination of this aspect of the Gulf of Maine case and the quest for ‘neutral’ factors, see M.D. Evans, Delimitation and the Common Maritime Boundary, 64 BYIL 283 (1993), at 304-309.
-
(1993)
Gulf of Maine case
, pp. 304-309
-
-
-
28
-
-
85022404805
-
-
Phase II, para.
-
Award, Phase II, para. 114.
-
Award
, pp. 114
-
-
-
29
-
-
85022415976
-
-
LOSC provides: “The delimitation of the exclusive economic 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.” Id., Art. 83(1), is in identical terms except for its referring to the continental shelf.
-
Art. 74(1) LOSC provides: “The delimitation of the exclusive economic 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.” Id., Art. 83(1), is in identical terms except for its referring to the continental shelf.
-
Art.
, vol.74
, Issue.1
-
-
-
30
-
-
85022429754
-
-
Phase II, para.
-
Award, Phase II, para. 125.
-
Award
, pp. 125
-
-
-
31
-
-
85022406324
-
-
para.
-
Id., para. 132.
-
Id.
, pp. 132
-
-
-
32
-
-
85022452908
-
-
para. where the Award notes that “[i]n this part of the boundary there is added to the problem of delimiting continental shelves and EEZ the question of delimitating an area of overlapping territorial seas.”
-
Id., para. 154, where the Award notes that “[i]n this part of the boundary there is added to the problem of delimiting continental shelves and EEZ the question of delimitating an area of overlapping territorial seas.”
-
Id.
, pp. 154
-
-
-
33
-
-
85022349576
-
-
para.
-
Id., para. 130.
-
Id.
, pp. 130
-
-
-
34
-
-
85022394986
-
-
74 and 83 LOSC “were consciously designed to decide as little as possible;” id., para. 116. See R.R. Churchill & V. Lowe, The Law of the Sea 190, where they are described as “not very meaningful.”
-
The Tribunal itself accepted that Arts. 74 and 83 LOSC “were consciously designed to decide as little as possible;” id., para. 116. See R.R. Churchill & V. Lowe, The Law of the Sea 190 (1999), where they are described as “not very meaningful.”
-
(1999)
The Tribunal itself accepted that Arts.
-
-
-
35
-
-
85022370243
-
-
Phase II, para.
-
Award, Phase II, para. 116.
-
Award
, pp. 116
-
-
-
36
-
-
85022385353
-
-
para.
-
Id., para. 131.
-
Id.
, pp. 131
-
-
-
37
-
-
85022386380
-
-
See also text at note 81, infra. The significance of this case for maritime boundary delimitation is evidenced both by the content and volume of the literature. See, e.g., the case notes by J.I. Charney, 88 AJIL 105 (1994); and M.D. Evans, 43 ICLQ 697 (1994). See also R.R. Churchill, The Greenland-Jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation, 9 IJMCL 1 (1994); G.P. Politakis, The 1993 Jan Mayen Judgment: The End of Illusions, 41 NILR 1 (1994); B. Kwiatkowska, Equitable Maritime Boundary Delimitation, as Exemplified in the Work of the International Court of Justice During the Presidency of Sir Robert Yewdall Jennings and Beyond, 28 ODIL 91, at 101-107 (1997); M.D. Evans, Maritime Delimitation after Denmark v. Norway: Back to the Future? in G. Goodwin-Gill and S. Talmon, The Reality of International Law 153 (1999). The judgment is fully appraised, and its general significance for maritime boundary delimitation considered (despite its title), in the seminal examination of the court's jurisprudence. See H.W.A. Thirlway, 65 BYIL
-
See also text at note 81, infra. The significance of this case for maritime boundary delimitation is evidenced both by the content and volume of the literature. See, e.g., the case notes by J.I. Charney, 88 AJIL 105 (1994); and M.D. Evans, 43 ICLQ 697 (1994). See also R.R. Churchill, The Greenland-Jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation, 9 IJMCL 1 (1994); G.P. Politakis, The 1993 Jan Mayen Judgment: The End of Illusions, 41 NILR 1 (1994); B. Kwiatkowska, Equitable Maritime Boundary Delimitation, as Exemplified in the Work of the International Court of Justice During the Presidency of Sir Robert Yewdall Jennings and Beyond, 28 ODIL 91, at 101-107 (1997); M.D. Evans, Maritime Delimitation after Denmark v. Norway: Back to the Future? in G. Goodwin-Gill and S. Talmon, The Reality of International Law 153 (1999). The judgment is fully appraised, and its general significance for maritime boundary delimitation considered (despite its title), in the seminal examination of the court's jurisprudence. See H.W.A. Thirlway, Law and Procedure of the International Court of Justice 1960-1989 Part Six, 65 BYIL 1 (1994).
-
(1994)
Law and Procedure of the International Court of Justice 1960-1989 Part Six
, pp. 1
-
-
-
38
-
-
85022439246
-
-
See also Thirlway, who says that “[e]quidistance thus finally received from the court recognition of the status which it should have had, and did in fact have in state practice, from onwards;” id., at 83. For an expression of this view prior to the Jan Mayen case, see Weil, Law and Procedure of the International Court of Justice 1960-1989 Part Six note 29, at 203-208
-
This has long been the position in state practice and it is a matter of some regret that the ICJ took so long to recognize this. See also Thirlway, who says that “[e]quidistance thus finally received from the court recognition of the status which it should have had, and did in fact have in state practice, from 1958 onwards;” id., at 83. For an expression of this view prior to the Jan Mayen case, see Weil, Law and Procedure of the International Court of Justice 1960-1989 Part Six note 29, at 203-208, 282-283.
-
(1958)
This has long been the position in state practice and it is a matter of some regret that the ICJ took so long to recognize this.
, pp. 282-283
-
-
-
39
-
-
85022444358
-
-
(Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), Judgment, 1969 ICJ Rep. 3, paras. 82-85. See the Dispositif, para. 101C(a). This conclusion was subject to criticism from the outset. See, e.g., E.D. Brown, The Legal Regime of Hydrospace 47-62 (1971), a view from which he has never wavered. See also, more recently, E.D. Brown, The International Law of the Sea, vol. I, at
-
North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), Judgment, 1969 ICJ Rep. 3, paras. 82-85. See the Dispositif, para. 101C(a). This conclusion was subject to criticism from the outset. See, e.g., E.D. Brown, The Legal Regime of Hydrospace 47-62 (1971), a view from which he has never wavered. See also, more recently, E.D. Brown, The International Law of the Sea, vol. I, at 168, 205 (1994).
-
(1994)
North Sea Continental Shelf Case
, vol.168
, pp. 205
-
-
-
40
-
-
85022414522
-
-
(United Kingdom of Great Britain and Northern Ireland v. The French Republic), Award, Misc. No. 15 Cmnd. 7438, para. 70 [hereinafter: Anglo-French case].
-
Delimitation of the Continental Shelf (United Kingdom of Great Britain and Northern Ireland v. The French Republic), Award, Misc. No. 15 (1978) Cmnd. 7438, para. 70 [hereinafter: Anglo-French case].
-
(1978)
Delimitation of the Continental Shelf
-
-
-
41
-
-
79952217812
-
-
(Libyan Arab Jamahirya/Malta), Judgment, ICJ Rep. 3, para.
-
Continental Shelf (Libyan Arab Jamahirya/Malta), Judgment, 1985 ICJ Rep. 3, para. 43.
-
(1985)
Continental Shelf
, pp. 43
-
-
-
42
-
-
33847251179
-
-
Continental Shelf note 28, para. 46. Cf. the Separate Opinion of Judge Shahabuddeen, who argued that there was a difference between the effect of applying customary international law and Article 6; id., at
-
Jan Mayen case, Continental Shelf note 28, para. 46. Cf. the Separate Opinion of Judge Shahabuddeen, who argued that there was a difference between the effect of applying customary international law and Article 6; id., at 130-159.
-
Jan Mayen case
, pp. 130-159
-
-
-
43
-
-
85022385254
-
-
para.
-
Id., para. 51.
-
Id.
, pp. 51
-
-
-
44
-
-
85022419877
-
-
paras.
-
Id., paras. 64-65.
-
Id.
, pp. 64-65
-
-
-
45
-
-
85022415387
-
-
Id. note 39, who rather cautiously express the view that “in the case of delimitations between opposite (as opposed to adjacent) coasts, there is an increasing tendency for court and tribunals, even when applying customary law, to begin the process by drawing an equidistance line as a provisional boundary and then considering whether it requires modification in the light of the relevant circumstances” (emphasis added).
-
Cf. Churchill & Lowe, Id. note 39, at 187, who rather cautiously express the view that “in the case of delimitations between opposite (as opposed to adjacent) coasts, there is an increasing tendency for court and tribunals, even when applying customary law, to begin the process by drawing an equidistance line as a provisional boundary and then considering whether it requires modification in the light of the relevant circumstances” (emphasis added).
-
Cf. Churchill & Lowe
, pp. 187
-
-
-
46
-
-
85022430481
-
-
Award, Phase II, para. 14. id., para.
-
Award, Phase II, para. 14. The Tribunal notes that “Yemen, like Eritrea, was prepared to treat the Dahlaks as being part of the Eritrean coast;” id., para. 114.
-
The Tribunal notes that “Yemen, like Eritrea, was prepared to treat the Dahlaks as being part of the Eritrean coast;”
, pp. 114
-
-
-
47
-
-
85022388278
-
-
para.
-
Id., para. 127.
-
Id.
, pp. 127
-
-
-
48
-
-
85022428837
-
-
This was rejected by the Tribunal on the grounds that the arbitration agreement referred to the provisions of LOSC, which in Art. 5 makes it clear that it is the low-water line that is to be used. Id., paras.
-
Yemen even went so far as to claim that, whilst the equidistance line should be drawn from the low water line on the Yemen side, it should be drawn from the high waterline on the Eritrean mainland coast, since this was the manner in which the territorial sea was to be determined under Eritrean domestic law. This was rejected by the Tribunal on the grounds that the arbitration agreement referred to the provisions of LOSC, which in Art. 5 makes it clear that it is the low-water line that is to be used. Id., paras. 134-135.
-
Yemen even went so far as to claim that, whilst the equidistance line should be drawn from the low water line on the Yemen side, it should be drawn from the high waterline on the Eritrean mainland coast, since this was the manner in which the territorial sea was to be determined under Eritrean domestic law.
, pp. 134-135
-
-
-
49
-
-
85022356446
-
-
para.
-
Id., para. 17.
-
Id.
, pp. 17
-
-
-
50
-
-
85022427578
-
-
para.
-
Id., para. 18.
-
Id.
, pp. 18
-
-
-
51
-
-
85022386703
-
-
In other words, Eritrea sought the benefit of sharing in the resources of the territorial seas of the islands awarded to Yemen in the first phase of the arbitration whilst reserving for itself the use of the resources of the territorial seas of those islands that had been awarded to it, as far as the equidistance line between those islands and the Yemen mainland coast; id., para.
-
In general terms, the joint resource area would extend from the ‘median’ line as envisioned by Eritrea in the west to the limits of the 12 nautical mile territorial sea drawn from Yemen's islands to the east. In other words, Eritrea sought the benefit of sharing in the resources of the territorial seas of the islands awarded to Yemen in the first phase of the arbitration whilst reserving for itself the use of the resources of the territorial seas of those islands that had been awarded to it, as far as the equidistance line between those islands and the Yemen mainland coast; id., para. 46.
-
general terms, the joint resource area would extend from the ‘median’ line as envisioned by Eritrea in the west to the limits of the 12 nautical mile territorial sea drawn from Yemen's islands to the east.
, pp. 46
-
-
-
52
-
-
85022379136
-
-
para.
-
Id., para. 131.
-
Id.
, pp. 131
-
-
-
53
-
-
85022387208
-
-
para. 132 (emphasis added).
-
Id., para. 132 (emphasis added).
-
Id.
-
-
-
54
-
-
85022379879
-
-
para. 139. There was a related problem flowing from the Eritrean claim to have a straight baseline system in the area. The Tribunal did not consider it necessary to use such a system, assuming it to be in existence, since it was free to determine its own baselines. A further issue concerned the Eritrean claim that the ‘Negileh Rock’ formed a part of such a baseline system. This appears to be a submerged feature and so was considered ineligible for inclusion in a straight baseline system or as a basepoint, taking into accounts LOSC Arts. 6 and 7. Id., paras. 140-146. This would appear to be quite correct.
-
Id., para. 139. There was a related problem flowing from the Eritrean claim to have a straight baseline system in the area. The Tribunal did not consider it necessary to use such a system, assuming it to be in existence, since it was free to determine its own baselines. A further issue concerned the Eritrean claim that the ‘Negileh Rock’ formed a part of such a baseline system. This appears to be a submerged feature and so was considered ineligible for inclusion in a straight baseline system or as a basepoint, taking into accounts LOSC Arts. 6 and 7. Id., paras. 140-146. This would appear to be quite correct.
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Id.
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55
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85022355038
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para.
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Id., para. 147.
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Id.
, pp. 147
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56
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85022406763
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para.
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Id., para. 119.
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Id.
, pp. 119
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57
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85022353671
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As with the Eritrean ‘mainland,’ the Tribunal found that a number of fringing islands existed that were capable of being included within a straight baseline system and in consequence considered it appropriate to utilize them as basepoints for the construction of the ‘mainland’ median. It is not clear whether the Tribunal would have been prepared to use them had they not fallen within the potential scope of Art. 7 LOSC, but it seems possible that it would not. There was, in addition, the “relatively large, inhabited and important island of Kamaran,” which the Tribunal was, once again, prepared to use as a part of the ‘mainland’ coast, since it contributed to the formation of an important bay and “there can be no doubt that these features are integral to the coast of Yemen and part of it should therefore control the median line;” id., paras. 149-152. This suggests that even comparatively significant islands could well be ignored if they cannot be seen as forming a part of mainland coast. A fortiori, smaller features would be excluded unless capable of fulfilling such a test, and compatibility with Art. 7 LOSC would seem to provide a reasonable basis upon which to make such an assessment, although it is itself somewhat opaque. For consideration of this topic see W.M. Reisman & G.S. Westerman, Straight Baselines in International Maritime Boundary Delimitation 71-104. See also J.A. Roach & R.W. Smith, 31 ODIL 47 (2000).
-
As with the Eritrean ‘mainland,’ the Tribunal found that a number of fringing islands existed that were capable of being included within a straight baseline system and in consequence considered it appropriate to utilize them as basepoints for the construction of the ‘mainland’ median. It is not clear whether the Tribunal would have been prepared to use them had they not fallen within the potential scope of Art. 7 LOSC, but it seems possible that it would not. There was, in addition, the “relatively large, inhabited and important island of Kamaran,” which the Tribunal was, once again, prepared to use as a part of the ‘mainland’ coast, since it contributed to the formation of an important bay and “there can be no doubt that these features are integral to the coast of Yemen and part of it should therefore control the median line;” id., paras. 149-152. This suggests that even comparatively significant islands could well be ignored if they cannot be seen as forming a part of mainland coast. A fortiori, smaller features would be excluded unless capable of fulfilling such a test, and compatibility with Art. 7 LOSC would seem to provide a reasonable basis upon which to make such an assessment, although it is itself somewhat opaque. For consideration of this topic see W.M. Reisman & G.S. Westerman, Straight Baselines in International Maritime Boundary Delimitation 71-104 (1992). See also J.A. Roach & R.W. Smith, Straight Baselines: The Need for Universally Applied Norms, 31 ODIL 47 (2000).
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(1992)
Straight Baselines: The Need for Universally Applied Norms
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58
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Phase II, para.
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Award, Phase II, para. 153
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Award
, pp. 153
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59
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para.
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Id., para. 154.
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Id.
, pp. 154
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60
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paras.
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Id., paras. 158-159.
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Id.
, pp. 158-159
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61
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85022399975
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where the Tribunal says it decided to continue the line “until the presence of Yemen's Zuqar-Hanish group compels a diversion westwards” (emphasis added); id.
-
Cf. para. 123, where the Tribunal says it decided to continue the line “until the presence of Yemen's Zuqar-Hanish group compels a diversion westwards” (emphasis added); id.
-
Cf. para. 123
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62
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para. 160. Surprisingly, the Tribunal appears to qualify this by pondering whether these islands are entitled a territorial sea at all. It says “that they ought be regarded as having a territorial sea seems reasonable.” It is difficult to see what reasonableness has to do with it. The Tribunal had already noted that the Haycocks-very much smaller than the Zuqar-Hanish islands-were entitled to generate a full 12 nautical mile territorial sea entitlement and it is virtually impossible to imagine how any tribunal could conclude otherwise. It might be noted, however, that for some quite inexplicable reason the Tribunal referred to the territorial sea generated from the Haycocks as part of the “Eritrean mainland coast territorial sea,” which it is most certainly is not; id., para. 158. It does, however, overlap with the mainland coast territorial sea and so provides a continuous belt extending from the mainland. The territorial sea drawn from the Zuqar-Hanish group does not overlap with the Yemen mainland coast territorial sea. But even this provides no rational justification for the suggestion that they might not have an entitlement to a territorial sea. The capacity of even the smallest and more isolated of islets to generate entitlement to territorial seas is too well established to admit of any doubt. See R. Jennings & A. Watts, Oppenheim's International Law, Vol I, Part II
-
Id., para. 160. Surprisingly, the Tribunal appears to qualify this by pondering whether these islands are entitled a territorial sea at all. It says “that they ought be regarded as having a territorial sea seems reasonable.” It is difficult to see what reasonableness has to do with it. The Tribunal had already noted that the Haycocks-very much smaller than the Zuqar-Hanish islands-were entitled to generate a full 12 nautical mile territorial sea entitlement and it is virtually impossible to imagine how any tribunal could conclude otherwise. It might be noted, however, that for some quite inexplicable reason the Tribunal referred to the territorial sea generated from the Haycocks as part of the “Eritrean mainland coast territorial sea,” which it is most certainly is not; id., para. 158. It does, however, overlap with the mainland coast territorial sea and so provides a continuous belt extending from the mainland. The territorial sea drawn from the Zuqar-Hanish group does not overlap with the Yemen mainland coast territorial sea. But even this provides no rational justification for the suggestion that they might not have an entitlement to a territorial sea. The capacity of even the smallest and more isolated of islets to generate entitlement to territorial seas is too well established to admit of any doubt. See R. Jennings & A. Watts, Oppenheim's International Law, Vol I, Part II, 604 (1992).
-
(1992)
Id.
, pp. 604
-
-
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63
-
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85022377301
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Phase II, para. 162. There was a degree of inevitability in the manner in which the remainder of the international boundary was determined south of the overlapping areas of territorial seas. A geodesic line was used to link the end of the ‘Article 15’ median line with the coastal median; id., para.
-
Award, Phase II, para. 162. There was a degree of inevitability in the manner in which the remainder of the international boundary was determined south of the overlapping areas of territorial seas. A geodesic line was used to link the end of the ‘Article 15’ median line with the coastal median; id., para. 163.
-
Award
, pp. 163
-
-
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64
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For more general examinations, see S. Jagota, Maritime Boundary (1985); Weil, Award note 29; see also M.D. Evans, Relevant Circumstances and Maritime Delimitation 63-94 (1989); G.J. Tanja, The Legal Determination of International Maritime Boundaries (1990); D. Pharand & U. Leanza, The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime (1993); G. Despeux, Droit de la délimitation maritime (2000). From the perspective of the EEZ, see D. Attard, The Exclusive Economic Zone in International Law (1987); B. Kwiatowska, The 200 Miles Exclusive Economic Zone in the New Law of the Sea (1989); F. Orrego Vicuna, The Exclusive Economic Zone: Regime and Legal Nature under International Law
-
Much literature exists on this topic. For more general examinations, see S. Jagota, Maritime Boundary (1985); Weil, Award note 29; see also M.D. Evans, Relevant Circumstances and Maritime Delimitation 63-94 (1989); G.J. Tanja, The Legal Determination of International Maritime Boundaries (1990); D. Pharand & U. Leanza, The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime (1993); G. Despeux, Droit de la délimitation maritime (2000). From the perspective of the EEZ, see D. Attard, The Exclusive Economic Zone in International Law (1987); B. Kwiatowska, The 200 Miles Exclusive Economic Zone in the New Law of the Sea (1989); F. Orrego Vicuna, The Exclusive Economic Zone: Regime and Legal Nature under International Law (1989).
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(1989)
Much literature exists on this topic.
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66
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the works cited in note, This was the logic of the argument presented by this author in Evans.
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See, generally, the works cited in note 42, This was the logic of the argument presented by this author in Evans.
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See, generally
, Issue.42
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67
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85022447160
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(1955-II); YbILC 300 (-II).
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E.g. YbILC 216 (1955-II); YbILC 300 (1956-II).
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(1956)
, pp. 216
-
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YbILC, E.g.1
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68
-
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85022416435
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whilst Venezuela referred to the “particular circumstances of each region and each state,” by which economic and political, as well as geographical, factors were meant. See UN General Assembly 6th Committee, Summary Records, 490th meeting, para. 22; 493rd meeting, para.
-
Iran raised the question of oil installations, whilst Venezuela referred to the “particular circumstances of each region and each state,” by which economic and political, as well as geographical, factors were meant. See UN General Assembly 6th Committee, Summary Records, 490th meeting, para. 22; 493rd meeting, para. 44.
-
Iran raised the question of oil installations
, pp. 44
-
-
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69
-
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85022412141
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See UNCLOS I, Official Records, I, 31st meeting, para. 9; 32nd meeting, para.
-
Islands received much consideration, but attention was also drawn to exposed mud flats and sand cays. See UNCLOS I, Official Records, I, 31st meeting, para. 9; 32nd meeting, para. 3.
-
Islands received much consideration, but attention was also drawn to exposed mud flats and sand cays.
, pp. 3
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70
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85022396335
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See UNCLOS I, Official Records, I, 32nd meeting, para.
-
The UK delegate, Commander Kennedy, remarked that apart from geographical factors, “other types of special circumstances were the possession […] of special mineral exploration rights, or the presence of a navigable channel.” See UNCLOS I, Official Records, I, 32nd meeting, para. 3.
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The UK delegate, Commander Kennedy, remarked that apart from geographical factors, “other types of special circumstances were the possession […] of special mineral exploration rights, or the presence of a navigable channel.
, pp. 3
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-
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72
-
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85022397484
-
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Arbitral Award, 25 ILM 252, at para. 89 [hereinafter: Guinea/Guinea-Bissau case].
-
Maritime Delimitation case (Guinea/Guinea-Bissau), Arbitral Award, 25 ILM 252 (1986), at para. 89 [hereinafter: Guinea/Guinea-Bissau case].
-
(1986)
Maritime Delimitation case (Guinea/Guinea-Bissau)
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73
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85022436642
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6 to the continental shelf the court said that “it is appropriate to begin by taking provisionally the median line […] and then inquiring whether ‘special circumstances’ require another boundary line.” See Jan Mayen case, Maritime Delimitation case (Guinea/Guinea-Bissau) note 28, para.
-
When applying Art. 6 to the continental shelf the court said that “it is appropriate to begin by taking provisionally the median line […] and then inquiring whether ‘special circumstances’ require another boundary line.” See Jan Mayen case, Maritime Delimitation case (Guinea/Guinea-Bissau) note 28, para. 49.
-
When applying Art.
, pp. 49
-
-
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74
-
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85022362633
-
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para. Alone among the judges, the relevance of these factors to the delimitation was accepted in the Dissenting Opinion of Judge ad hoc Fischer, id., para. 14. It would, therefore, seem that although the resources of the area to be delimited are relevant, the economics of the areas to which they are to appertain are not. The cogency of this distinction is, to say the least, questionable.
-
Id., para. 80. Alone among the judges, the relevance of these factors to the delimitation was accepted in the Dissenting Opinion of Judge ad hoc Fischer, id., para. 14. It would, therefore, seem that although the resources of the area to be delimited are relevant, the economics of the areas to which they are to appertain are not. The cogency of this distinction is, to say the least, questionable.
-
Id.
, pp. 80
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-
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75
-
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85022380079
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para.
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Id., para. 81.
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Id.
, pp. 81
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76
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85022388186
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paras.
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Id., paras. 82-86.
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Id.
, pp. 82-86
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77
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85022438406
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paras.
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Id., paras. 77-78.
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Id.
, pp. 77-78
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-
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78
-
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85022388834
-
-
Decision of 10 June 1992, 31 ILM 1149 (1992), paras. 46-47 [hereinafter: Canada/France case], although, since the Court of Arbitration accepted that the area was a geological continuum this was not, strictly speaking, the point; id., para. 23. See K. Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries in J.I. Charney & L.M. Alexander, International Maritime Boundaries, 163 (1993), who points out that whilst geophysical features have been used sparingly in negotiated settlements, they have been not used at all in adjudicated/third party settlements. On the other hand, he points out that beyond 200 miles they form the basis of title and so “will be of the essence;” id., at 196. Cf. H. Ruiz Fabri, Sur La Délimitation des Espaces Maritimes entre le Canada et la France, 97 RGDIP 67, at 75, who considers that this decision finally put paid to the potential relevance of the physical characteristics of the area to be delimited.
-
Cf. Case Concerning the Delimitation of the Maritime Areas between Canada and France, Decision of 10 June 1992, 31 ILM 1149 (1992), paras. 46-47 [hereinafter: Canada/France case], although, since the Court of Arbitration accepted that the area was a geological continuum this was not, strictly speaking, the point; id., para. 23. See K. Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries in J.I. Charney & L.M. Alexander, International Maritime Boundaries, Vol. I, 163 (1993), who points out that whilst geophysical features have been used sparingly in negotiated settlements, they have been not used at all in adjudicated/third party settlements. On the other hand, he points out that beyond 200 miles they form the basis of title and so “will be of the essence;” id., at 196. Cf. H. Ruiz Fabri, Sur La Délimitation des Espaces Maritimes entre le Canada et la France, 97 RGDIP 67, at 75 (1993), who considers that this decision finally put paid to the potential relevance of the physical characteristics of the area to be delimited.
-
(1993)
Cf. Case Concerning the Delimitation of the Maritime Areas between Canada and France
, vol.I
-
-
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79
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85022430529
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However, the court said that “[s]o far as the continental shelf is concerned, there is no requirement that the line be shifted eastwards consistently throughout its length: if other considerations might point to another form of adjustment, to adopt it would be within the measure of discretion conferred on the court by the need to arrive at an equitable result;” Jan Mayen case, para.
-
Since access to fishery resources is irrelevant to position of a continental shelf boundary, the court could have produced separate but divergent lines. However, the court said that “[s]o far as the continental shelf is concerned, there is no requirement that the line be shifted eastwards consistently throughout its length: if other considerations might point to another form of adjustment, to adopt it would be within the measure of discretion conferred on the court by the need to arrive at an equitable result;” Jan Mayen case, para. 90.
-
Since access to fishery resources is irrelevant to position of a continental shelf boundary, the court could have produced separate but divergent lines.
, pp. 90
-
-
-
80
-
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85022402300
-
-
Since access to fishery resources is irrelevant to position of a continental shelf boundary, the court could have produced separate but divergent lines. note 29, at 203. See also M.D. Evans, Less than an Ocean Apart: The St. Pierre and Miquelon and Jan Mayen Islands and the Delimitation of Maritime Zones, 43 ICLQ 679, in which the proposition tested in the light of the Jan Mayen and Canada/France case. This theme was further revisited in Evans, Since access to fishery resources is irrelevant to position of a continental shelf boundary, the court could have produced separate but divergent lines. note
-
A point made some time ago by Weil, Since access to fishery resources is irrelevant to position of a continental shelf boundary, the court could have produced separate but divergent lines. note 29, at 203. See also M.D. Evans, Less than an Ocean Apart: The St. Pierre and Miquelon and Jan Mayen Islands and the Delimitation of Maritime Zones, 43 ICLQ 679 (1994), in which the proposition tested in the light of the Jan Mayen and Canada/France case. This theme was further revisited in Evans, Since access to fishery resources is irrelevant to position of a continental shelf boundary, the court could have produced separate but divergent lines. note 42.
-
(1994)
A point made some time ago by Weil
, pp. 42
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81
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85022350102
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See, e.g., Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Rep. 18, para. 70, where the court stressed that “[t]he result of the application of equitable principles must be equitable […]. It is, however, the result which is predominant; the principles are subordinate to the goal.”
-
Paradoxically, this is more akin to the ICJ cases in the mid-1980s when the use of equidistance was at its most unfashionable, than to the approach in the Jan Mayen case in which equidistance was substantially rehabilitated. See, e.g., Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, 1982 ICJ Rep. 18, para. 70, where the court stressed that “[t]he result of the application of equitable principles must be equitable […]. It is, however, the result which is predominant; the principles are subordinate to the goal.”
-
(1982)
Paradoxically, this is more akin to the ICJ cases in the mid-1980s when the use of equidistance was at its most unfashionable, than to the approach in the Jan Mayen case in which equidistance was substantially rehabilitated.
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-
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82
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85022412068
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Award, Phase II, para. 61. id. They were summarized by the Tribunal in para. 49 as being “advanced essentially in order to demonstrate that the delimitation line proposed by that party would not alter the existing situation and historical practices, that it would not have a catastrophic effect on local fishermen or on the local or national economy of the other Party or a negative effect on the regional diet of the population of the other Party and, conversely, that the delimitation line proposed by the other Party would indeed alter the existing situation and historical practices, would have a catastrophic or at least a severely adverse effect on the local fishermen or on the first Party's regional economy, and would also have a negative effect on the diet of the population of the first party.”
-
Award, Phase II, para. 61. The detailed arguments of the Parties are set out in paras. 52-60; id. They were summarized by the Tribunal in para. 49 as being “advanced essentially in order to demonstrate that the delimitation line proposed by that party would not alter the existing situation and historical practices, that it would not have a catastrophic effect on local fishermen or on the local or national economy of the other Party or a negative effect on the regional diet of the population of the other Party and, conversely, that the delimitation line proposed by the other Party would indeed alter the existing situation and historical practices, would have a catastrophic or at least a severely adverse effect on the local fishermen or on the first Party's regional economy, and would also have a negative effect on the diet of the population of the first party.”
-
The detailed arguments of the Parties are set out in paras.
, pp. 52-60
-
-
-
83
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85022374301
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para.
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Id., para. 73.
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Id.
, pp. 73
-
-
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84
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85022443138
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para. where it was stated “[i]t is not possible or necessary for the Tribunal to reach a conclusion that either Eritrea or Yemen is economically dependent on fishing to such an extent as to suggest any particular line of delimitation” (emphasis added). This suggests that had the evidence been otherwise, this might have been a possible factor. However, it should also be noted that the Tribunal balanced the pre-existing dependency of Yemen against the prospective Eritrean activity. This is most unusual and leads one to suppose that it would only be as a consequence of an almost total disregard for fishing on the part of one of the states to a dispute that such a factor would come into play; cf. Tunisia/Libya case, Id. note 89, para. 107, and Libya/Malta case, Id. note 46, para. 50 where such prospective arguments are rejected.
-
Id., para. 64, where it was stated “[i]t is not possible or necessary for the Tribunal to reach a conclusion that either Eritrea or Yemen is economically dependent on fishing to such an extent as to suggest any particular line of delimitation” (emphasis added). This suggests that had the evidence been otherwise, this might have been a possible factor. However, it should also be noted that the Tribunal balanced the pre-existing dependency of Yemen against the prospective Eritrean activity. This is most unusual and leads one to suppose that it would only be as a consequence of an almost total disregard for fishing on the part of one of the states to a dispute that such a factor would come into play; cf. Tunisia/Libya case, Id. note 89, para. 107, and Libya/Malta case, Id. note 46, para. 50 where such prospective arguments are rejected.
-
Id.
, pp. 64
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-
-
85
-
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85022427149
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72. The origins of this, in the context of maritime boundary delimitation, is in the Gulf of Maine case, where it was said that “What the Chamber would regard as a legitimate scruple lies […] in concern lest the overall result, even achieved through the application of equitable criteria and the use of appropriate methods for giving them concrete effect, should unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the likelihood and economic well-being of the population of the countries concerned;” Id. note 29, para. 237. This in turn resonates with the Anglo-Norwegian Fisheries case (United Kingdom v. Norway), Judgment, ICJ Rep. 116, at 142. See also the Tribunal's presentation of the arguments of the parties, Id. note
-
Award, Phase II, para. 72. The origins of this, in the context of maritime boundary delimitation, is in the Gulf of Maine case, where it was said that “What the Chamber would regard as a legitimate scruple lies […] in concern lest the overall result, even achieved through the application of equitable criteria and the use of appropriate methods for giving them concrete effect, should unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the likelihood and economic well-being of the population of the countries concerned;” Id. note 29, para. 237. This in turn resonates with the Anglo-Norwegian Fisheries case (United Kingdom v. Norway), Judgment, 1951 ICJ Rep. 116, at 142. See also the Tribunal's presentation of the arguments of the parties, Id. note 91.
-
(1951)
Award, Phase II, para.
, pp. 91
-
-
-
86
-
-
85022440291
-
-
Thus it did not treat it as an ‘ex post facto’ test of equity of the solution as had the Chamber of the ICJ in the Gulf of Maine case. This tends to confirm the approach of the ICJ in the Jan Mayen case, where this was used as an element in the generation of the appropriate line of delimitation for the fishing zone. It should also be noted that the Tribunal speaks of an “inequitable effect”, suggesting that a less than “catastrophic” outcome would be sufficient to cause a proposed line to fall short of being an “equitable solution”. See Jan Mayen case, Award, Phase II, para. note 28, para.
-
It should be noted that the Tribunal did not test its own solution to ensure that it did not produce such consequences. Thus it did not treat it as an ‘ex post facto’ test of equity of the solution as had the Chamber of the ICJ in the Gulf of Maine case. This tends to confirm the approach of the ICJ in the Jan Mayen case, where this was used as an element in the generation of the appropriate line of delimitation for the fishing zone. It should also be noted that the Tribunal speaks of an “inequitable effect”, suggesting that a less than “catastrophic” outcome would be sufficient to cause a proposed line to fall short of being an “equitable solution”. See Jan Mayen case, Award, Phase II, para. note 28, para. 75.
-
It should be noted that the Tribunal did not test its own solution to ensure that it did not produce such consequences.
, pp. 75
-
-
-
87
-
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85022408107
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-
Phase I, para. 526. For further consideration see Antunes, It should be noted that the Tribunal did not test its own solution to ensure that it did not produce such consequences. note 6, at
-
Award, Phase I, para. 526. For further consideration see Antunes, It should be noted that the Tribunal did not test its own solution to ensure that it did not produce such consequences. note 6, at 383-384.
-
Award
, pp. 383-384
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-
-
88
-
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85022431552
-
-
Phase I, Dispositif, para. (vi).
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Award, Phase I, Dispositif, para. 527 (vi).
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Award
, pp. 527
-
-
-
89
-
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85022356801
-
-
and 101. These paragraphs reflect profound and provocative thinking, the consequences of which are considerable. Unfortunately, reflection upon them is beyond the limited scope of this article.
-
Award, Phase II, paras. 92-94 and 101. These paragraphs reflect profound and provocative thinking, the consequences of which are considerable. Unfortunately, reflection upon them is beyond the limited scope of this article.
-
Award, Phase II, paras.
, pp. 92-94
-
-
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90
-
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85022422108
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paras. 103
-
Id., paras. 103, 109, 110.
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Id.
, vol.109
, pp. 110
-
-
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91
-
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85022419357
-
-
para. This reflects the orthodoxy following on from the North Sea and Anglo-French cases.
-
Id., para. 39. This reflects the orthodoxy following on from the North Sea and Anglo-French cases.
-
Id.
, pp. 39
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-
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93
-
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85022407640
-
-
where it is stated that “[s]uffice to say that whereas Yemen calculated that its own claimed line neatly divided the sea areas into almost equal areas, which according to Yemen's measurements of the length of the coasts was the correct proportion, Eritrea found, in a final choice of one of its several different methods of calculation, that its won historic median line between the mainland coasts would produce respective areas favouring Eritrea by a proportion of 3 to 2, which again was said to reflect accurately the proportion of the lengths of coast according to Eritrea's method of measuring them”.
-
See Award, Phase II, para. 42, where it is stated that “[s]uffice to say that whereas Yemen calculated that its own claimed line neatly divided the sea areas into almost equal areas, which according to Yemen's measurements of the length of the coasts was the correct proportion, Eritrea found, in a final choice of one of its several different methods of calculation, that its won historic median line between the mainland coasts would produce respective areas favouring Eritrea by a proportion of 3 to 2, which again was said to reflect accurately the proportion of the lengths of coast according to Eritrea's method of measuring them”.
-
See Award, Phase II, para.
, pp. 42
-
-
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94
-
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85022418189
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Phase II, para.
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Award, Phase II, para. 165.
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Award
, pp. 165
-
-
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95
-
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85022444982
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para.
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Id., para.167.
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Id.
, pp. 167
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-
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96
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85022389960
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-
para.
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Id., para. 168.
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Id.
, pp. 168
-
-
-
99
-
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85022404348
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para. where these arguments are summarized.
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Id., para. 40, where these arguments are summarized.
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Id.
, pp. 40
-
-
-
100
-
-
85022417244
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para. See also para. 125, which speaks of the “advantage of avoiding the need for awkward enclaves in the vicinity of a major shipping route.”
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Id., para. 155. See also para. 125, which speaks of the “advantage of avoiding the need for awkward enclaves in the vicinity of a major shipping route.”
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Id.
, pp. 155
-
-
-
101
-
-
85022421662
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-
para.
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Id., para. 128.
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Id.
, pp. 128
-
-
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102
-
-
85022356181
-
-
para. where it is said that “this makes for a neater and more convenient international boundary.”
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Id., para. 162, where it is said that “this makes for a neater and more convenient international boundary.”
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Id.
, pp. 162
-
-
-
103
-
-
85022392290
-
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para. 157, quoting the Guinea/Guinea-Bissau award, the Tribunal associating this particularly with Judge Lachs, the President in the earlier award; Id. note 79, para.
-
Id., para. 157, quoting the Guinea/Guinea-Bissau award, the Tribunal associating this particularly with Judge Lachs, the President in the earlier award; Id. note 79, para. 125.
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Id.
, pp. 125
-
-
-
104
-
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85022403174
-
-
para.
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Id., para. 131.
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Id.
, pp. 131
-
-
-
105
-
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85022440747
-
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Id. note 45, para.
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Anglo-French case, Id. note 45, para. 182.
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Anglo-French case
, pp. 182
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-
-
106
-
-
85022351111
-
-
Rather, the argument was that their entitlement to a continental shelf merged with that the mainland coasts in the middle of the English Channel so as to produce a continuous belt, and this proposition was accepted by the Court of Arbitration; id., para. 169, 190. This is similar to the position taken by the Tribunal with regard to the Eritrean territorial seas of the Haycocks and South West Rocks but it is not reflected in its handling of the Hanish-Zuqar group; see text to notes 65-68, Anglo-French case.
-
It should also be recalled that the UK did not argue that the Channel Islands formed the appropriate ‘opposite coast’ for the purposes of constructing a median line. Rather, the argument was that their entitlement to a continental shelf merged with that the mainland coasts in the middle of the English Channel so as to produce a continuous belt, and this proposition was accepted by the Court of Arbitration; id., para. 169, 190. This is similar to the position taken by the Tribunal with regard to the Eritrean territorial seas of the Haycocks and South West Rocks but it is not reflected in its handling of the Hanish-Zuqar group; see text to notes 65-68, Anglo-French case.
-
It should also be recalled that the UK did not argue that the Channel Islands formed the appropriate ‘opposite coast’ for the purposes of constructing a median line.
-
-
-
107
-
-
85022409693
-
-
” See Anglo-French case, It should also be recalled that the UK did not argue that the Channel Islands formed the appropriate ‘opposite coast’ for the purposes of constructing a median line. note 45, para. 196. In other words, it was the result of granting them effect that was objectionable.
-
It was, of course, concluded that “[t]he presence of these British Islands close to the French coast, if they are given full effect in delimiting the continental shelf, will result in a substantial diminution of the area of continental shelf which would otherwise accrue to France […] the presence of the Channel Islands must be considered, prima facie, as constituting a special circumstance.” See Anglo-French case, It should also be recalled that the UK did not argue that the Channel Islands formed the appropriate ‘opposite coast’ for the purposes of constructing a median line. note 45, para. 196. In other words, it was the result of granting them effect that was objectionable.
-
It was, of course, concluded that “[t]he presence of these British Islands close to the French coast, if they are given full effect in delimiting the continental shelf, will result in a substantial diminution of the area of continental shelf which would otherwise accrue to France […] the presence of the Channel Islands must be considered, prima facie, as constituting a special circumstance.
-
-
-
108
-
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85022434754
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Court of Arbitration, 19 October 1981, 91 ILR 543, at 675-677. For an examination of the award see D. Bowett, The Dubai/Sharjah Boundary Arbitration of 1981, 65 BYIL
-
Dubai/Sharjah Border Arbitration, Court of Arbitration, 19 October 1981, 91 ILR 543, at 675-677. For an examination of the award see D. Bowett, The Dubai/Sharjah Boundary Arbitration of 1981, 65 BYIL 103 (1994).
-
(1994)
Dubai/Sharjah Border Arbitration
, pp. 103
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-
-
109
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85022403349
-
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The boundaries referred to were the Iran-Saudi Arabia Agreement of January 1969 and the Qatar-UAE (Abu Dhabi) agreement of March, for which see Charney and Alexander, Dubai/Sharjah Border Arbitration note 85, Vol II, at 1519 and 1541 respectively.
-
Id. The boundaries referred to were the Iran-Saudi Arabia Agreement of January 1969 and the Qatar-UAE (Abu Dhabi) agreement of March 1969, for which see Charney and Alexander, Dubai/Sharjah Border Arbitration note 85, Vol II, at 1519 and 1541 respectively.
-
(1969)
Id.
-
-
-
111
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85022417607
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Phase II, para.
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Award, Phase II, para. 117.
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Award
, pp. 117
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-
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112
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85022396923
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See, e.g., Jayewardene, who concludes from his analysis of state practice that “[a]n island lying immediately adjacent to and on the right side of an equidistance line which disregards it, should be disregarded unless its size and significance warrant a full value, or some effect on the boundary;” Award note 88, at 389. But cf. Bowett, who, surveying the same practice points out that “there are agreements under which islands have been given full weight despite their proximity to a mainland-to-mainland equidistant line” and concludes that this is merely “one method for reducing the effect of an island;” Award note 88. At
-
Arguably, it might find more support in state practice. See, e.g., Jayewardene, who concludes from his analysis of state practice that “[a]n island lying immediately adjacent to and on the right side of an equidistance line which disregards it, should be disregarded unless its size and significance warrant a full value, or some effect on the boundary;” Award note 88, at 389. But cf. Bowett, who, surveying the same practice points out that “there are agreements under which islands have been given full weight despite their proximity to a mainland-to-mainland equidistant line” and concludes that this is merely “one method for reducing the effect of an island;” Award note 88. At 141-144.
-
Arguably, it might find more support in state practice.
, pp. 141-144
-
-
-
113
-
-
85022389422
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Phase II, para. 132, quoting Award, Phase I, para.
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Award, Phase II, para. 132, quoting Award, Phase I, para. 438.
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Award
, pp. 438
-
-
-
114
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85022451149
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Award note
-
Award note 25.
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, Issue.25
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-
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115
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85022403578
-
-
(3). For a comprehensive examination of the consequences of these provisions for maritime boundary delimitation, see J.I. Charney, Rocks that Cannot Sustain Human Habitation, 93 AJIL 863. His conclusion is that although such features when located within the territorial sea can potentially be used as basepoints for delimitation, notwithstanding their own inability to ‘generate’ an entitlement and so have a role to play in delimitation but that their role “will depend on the factors considered in such delimitations;” id., In other words, their potential relevance is not be excluded in limine. If this is true of such features located within a territorial sea, a fortiori, islands which fall outside of the scope of Art. 121(3) and which are located outside of the territorial sea should be treated no more harshly.
-
Arts. 121(2), (3). For a comprehensive examination of the consequences of these provisions for maritime boundary delimitation, see J.I. Charney, Rocks that Cannot Sustain Human Habitation, 93 AJIL 863 (1999). His conclusion is that although such features when located within the territorial sea can potentially be used as basepoints for delimitation, notwithstanding their own inability to ‘generate’ an entitlement and so have a role to play in delimitation but that their role “will depend on the factors considered in such delimitations;” id., at 875. In other words, their potential relevance is not be excluded in limine. If this is true of such features located within a territorial sea, a fortiori, islands which fall outside of the scope of Art. 121(3) and which are located outside of the territorial sea should be treated no more harshly.
-
(1999)
Arts.
, vol.121
, Issue.2
, pp. 875
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-
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116
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85022355122
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para.
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See, e.g., para. 119.
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-
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117
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85022402277
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Arts. note
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Arts. note 79.
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, Issue.79
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