Rules of Delimitation in International Law of the Sea

Seas and Oceans are primary medium for international commerce and communication including rich living and non-living natural resources such as fish, oil, gas and other minerals. Considering the increasing interdependency of states on marine resources and its utility, there must be some rules governing it regarding state jurisdiction, state sovereignty, rights and privileges, etc. The maritime delimitation is a principle with regard to aspect of territorial sovereignty between states, which can be useful for the international sea territorial disputes resolving.

The sea laws are mainly governed by the international agreements and conventions, customary laws, directory decisions of International Court of Justice (hereunder mentioned as “ICJ”) which may not be binding in nature. It is notable that after the Second World War, the maritime law has been undergoing tremendous changes by peaceful and consensual procedures. Various factors in areas of territorial and contiguous zone, exclusive economic zone, continental shelf, deep sea bed, high seas, etc are to be considered on various rules and principles of delimitation. The major sources of law which governs the overall segment of law of the sea are amalgamation of customary and treaty law which are bilateral and multilateral in nature of which the one which plays vital role is the Convention of the Law of the Sea, 1982. Prior to this, the various Geneva Conventions of Territorial and Contiguous Zone, The Continental Shelf, The High Seas and on The Fishing and Conservation of Living Resources of High Seas, 1958 was utilized and the matters on which the 1982 Convention is silent, the Geneva Conventions of 1958 are applied. For the states which are not parties to any of the above convention can be governed by the principles of customary international law.

The delimitation on various territorial extensions is discussed hereunder:

(i) The Territorial Zone:

The sovereignty over the territorial sea is similar to complete legislative jurisdiction on the land territory. The states can make laws and regulate the area by utilizing all the resources in the territorial zone. Initially, in the 1958 Convention, there was no specific provision on the width of the territorial sea of a state. Many coastal states claimed different limits for their territorial boundaries such as United Kingdom had claimed three miles wide territorial sea whereas Latin-American nations claimed territorial boundaries up to 200 miles. The controversies were unending until Article 3, Law of the Sea Convention, 1982 [2] (hereafter mentioned as “LOSC, 1982″) came to effect which states for the territorial sea of 12 nautical miles from the baseline for every state.

Due to this, the customary law principles of UK were now codified and confirmed. This view of the LOSC, 1982 has also been applied in Guinea/ Guinea-Bissau Maritime Delimitation Case [3] . It is notable that for states claiming for more than 12 nautical mile territorial boundary, it should be recognized by those states against whose such rights are claimed.

The wider aspect for the initial starting point of the baselines has to be considered with respect to the geographical locations of various states. The usual method is the ‘trace parallele’ method of delimitation wherein the landward edge of the territorial sea would be the low-water mark on the coast and it will extend towards sea from this point. The limitation of this method arises for calculation of baselines for such nations which have rugged or severely indented coastlines which makes the tracing of the baseline impossible. The solution can be straight baseline method wherein straight lines are drawn between fixed points from the coast providing a geometric base to calculate the seaward limit ultimately providing more territorial waters to the states concerned.

Due to the increased territorial waters by straight baseline method, this method was challenged in Anglo-Norwegian Fisheries Case [4] . United Kingdom had alleged this against Norway whereby the ICJ decided that it was against international law principles and this method is only valid in appropriate cases. The majority decision opined that if the coast is deeply indented, then the method of straight baseline is permissible only when if the lines didn’t depart to an appreciable extent from the general direction of the coast and the waters on the landward side must be sufficiently connected to the land properly to be correctly regarded as internal waters. In the allied judging criteria, the ICJ also opined to check the historic economic interest of the region and its utility related to the coastal state. Lastly, the principle has been incorporated in Article 4, Territorial Sea Convention, 1958 (hereunder mentioned as “TSC, 1958). This has been also incorporated in LOSC, Article 7 with modifications for ‘low tide elevations’.

As regards with the delimitation of the territorial sea with opposite and adjacent states, Article 15, LOSC, 1982 governs it providing that the territorial sea may not extend beyond the median line which is equidistant from the nearest points of the baselines of the coastal states, except by an agreement between the parties by reason of historic title or other special circumstances. In such cases, agreement shall be done and tribunal may be setup to decide such case as in St Pierre and Miquelon Case (Canada/France) [5] where the ad hoc arbitration court was asked to setup single maritime line for the division of the territorial sea.

(ii) The Contiguous Zone:

The Contiguous zone comprises of 12 nautical miles from the baseline of the territorial waters. The main aim behind the formation of this zone is the privileges for coastal states to exercise control for preventing infringement of customs, fiscal, immigration and sanitary regulations. [6] It is notable that the Contiguous zone is co-extensive with the territorial zone of 12 nautical miles. It is also notable that two different zones are co-extensive in same area and this defect has been cured by the extension of the contiguous zone to 24 nautical miles according to Article 33, LOSC, 1982. As regard to the privileges, in St Vincent and the Grenadines v. Guinea [7] , the International Tribunal for Law of the Sea opined that a coastal state has the power to enforce customs law in its contiguous zone. Hence, the contiguous zone can give a coastal state certain additional jurisdiction. However, the dispute arises when the coastal state claims contiguous zone for security purposes which can cover a broader view to increase the jurisdiction of the coastal state. Overall, moreover the delimitation rules apply to the contiguous zone as of the territorial zone between the opposite and adjacent states.

(iii) Exclusive Economic Zones (EEZ’s) and Continental Shelf:

The EEZ’s is the area adjacent to the coast extending to 200 nautical miles from the baselines of the territorial sea. Article 56 of the LOSC, 1982 provides the powers of the coastal state in EEZ’s such as sovereign rights for exploring and exploiting living and non-living resources, other economic activities, artificial islands, marine scientific research, etc. Whereas the continental shelf is the extension of the territorial sea throughout the natural prolongation if the land to the outer edge of continental margin and to a distant of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The continental shelf shall not exceed 350 nautical miles from the baselines of territorial sea at maximum or 100 nautical miles from the 2500 metre isobath i.e: depth line.

As far as delimitation is regarded, it shall be on the basis of international law to achieve an equitable solution. [8] Even, a common maritime boundary can be made between the adjacent and opposite states with regard to continental shelf and EEZ’s as held in dissenting opinion of Judge Oda in Tunisia v. Libya [9] . But as per, Judge Gros in Canada v. USA [10] , the method of common maritime boundary might not be appropriate according to different legal regimes of each area. The crux of the matter lies that the continental shelf extends in law to 200 nautical mile limit with the EEZ’s creating a geographical overlap of the same area. In Denmark v. Norway [11] , it was held in dissenting opinion of Vice-President Oda that a common maritime boundary shall never be presumed as both the EEZ’s and the continental shelf have separate legal regimes and is juridically different which according to him the majority had overlooked. It is important that an equitable result is achieved and the resources are not exhausted by the coastal state having wider jurisdiction on the 200 nautical mile zone creating amicable benefits between the states concerned.

The continental shelf if analyzed without considering EEZ’s, then it would be notable that according to Article 1, TSC,1958 the shelf is the adjacent area to the coast and deep ocean floor can be a part of the shelf. Therefore, for an amicable result it is necessary that if the physical extent goes beyond 200 nautical miles then the coastal state shall make payments to the International Sea Bed Authority for proper distribution of resources collected which may exhausts the resources.

The continental shelf can also fall between two or more states on parallel land. In North Sea Continental Shelf case [12] , it was decide by the ICJ that under Article 6 of the Continental Shelf Convention, 1958 delimitation must be done by an agreement or in absence of it, it shall be done by median line equidistant from the nearest points of the baselines of the territorial sea, subject to exceptions in special circumstances. Therefore, a state with concave coast could distort a median line resulting to unequal delimitation, for which it must be by natural prolongation of the land territory by an equitable mode of bifurcation. As a general rule, in Tunisia v. Libya the ICJ was asked to identify the rules of delimitation in continental shelves where the ICJ contended that in absence of any agreement, the delimitation must be by equidistant principles to achieve equitable result for the opposite and adjacent nations considering the overall geographical aspects of the coasts of Tunisia and Libya. According to Article 83(1) of LOSC, 1982 states have to go for an equitable approach but the limitation lies in the mode of executing it as the statutory provision does not provide for it. Due, to this a flexible approach has been adopted in the delimitation rules and procedure. To sum up, it can be said that in multi-zone areas having disputes, common maritime boundary must be made whereas in other cases equitable solution must be made for the delimitation in absence of agreement; at last everything shall be in accordance with the principles of customary and conventional international law.

(iv) Deep Sea Bed and High Seas:

The deep sea bed is defined as the sea bed, ocean floor and subsoil thereof beyond the limits of national jurisdiction as per Article 1(1) of LOSC, 1982. Geographically, it is found at the outer edge of the continental shelf which is governed by the International Sea Bed Authority. All the states at the international level which may be coastal or landlocked can access the deep sea bed under Article 141 of LOSC, 1982. The profits carved out of the utility of natural resources may be shared with the international community by the distribution if income from the International Sea Bed Authority which regulates the area.

The high seas are also open to the enjoyment of every state without any sovereignty which shall be used for peaceful purposes only. High seas have been defined as those areas of the seas which are not parts of the internal waters or territorial sea of any state. The possible dispute that can occur on high seas is of sovereignty over the ships. The answer to this problem is provided in Article 92, LOSC, 1982 which states that the state in which the ship is registered shall have jurisdiction over it. If the cases of piracy are found then, all states share jurisdiction on equal footing as international principles shall apply for the common good of the mankind.

Conclusion:

The law of the sea, a wide aspect of international law shall be as per proper rules and procedures to be adopted from the available sources of law which may be treaty or customary in nature. The 1982 LOS Convention almost is a comprehensive code covering almost all the aspects of delimitation and possible solutions for various categories of disputes between the states. Different modes of delimitation such as principles of equitable distance approach with modification in special circumstantial cases, respecting the geographical structure of the place with natural prolongation, and creating baselines on the low water mark on the coasts with regard to all type of geographical coasts with geometrical models to be followed for equal benefits for the adjoining nations, etc shall be followed according to the customary and conventional international law principles keeping in mind the various decisions of the ICJ. Hence, with the Convention of 1982 and landmark customary laws evolved after years of practice, there can be a great scope for comprehensive and realistic international regime for the salubrious governing and management of the oceans and allied resources in salubrious manner.

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