Introduction.
Everything we do has a limit. Limits are put to define the extent to which we can do certain things or even the extent to which we can move from a particular point. Boundaries are physical barriers which separate different areas. They are usually in the form of walls, roads, paths and so on. Therefore, maritime boundaries and limits are connected with the ownership of valuable resources and coastal state jurisdiction over foreign shipping. Inaccuracies and uncertainties over such sensitive issues are best avoided. There are numerous international disputes over limits and boundaries, some of which could endanger peace and security. In order to minimise the risks caused by legal uncertainties, there is a need to reach consensus on some legal principles and practical methods.
My case study in this paper will be our case study in this paper will be New Zealand. New Zealand was settled much later than most other areas in the world, because it is surrounded by sea for thousands of kilometres. Any explorer sailing to New Zealand had to be an extremely skilful navigator and have a well-constructed craft. It is possible that there were Polynesian visitors to New Zealand in the first century A.D., but it is unlikely that there were significant numbers of settlers.
New Zealand has a coastline of 15,000 km, comprising two main islands and numerous smaller islands scattered throughout the southern Pacific Ocean, from the sub-tropical Kermadec Islands to the sub-Antarctic Campbell Island. New Zealand’s maritime boundaries are defined by the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977. The Act asserts New Zealand sovereignty over the territorial sea (12 nm). The Act also establishes a contiguous zone (a further 12 nm beyond the territorial sea), and an exclusive economic zone (EEZ) (200 nm). The Continental Shelf Act 1964 regulates the economic exploitation of New Zealand’s continental shelf, which includes the seabed and the subsoil up to the EEZ limit, and extends to the outermost edge of the continental margin where this falls beyond EEZ limits.
New Zealand ratified the United Nations Convention on the Law of the Sea (UNCLOS) in 1996. In order to define the extent of its continental shelf as described in article 76 of that convention, New Zealand has undertaken the Continental Shelf Project, a multi-phase, multi-disciplinary project to identify submarine areas that are the prolongation of the New Zealand land mass.
These web documents discuss technical issues related to the application of UNCLOS article 76 that have arisen during the course of the Continental Shelf Project, and some of the practical aspects of managing the project. Discussion of the documents is encouraged, and comments can be viewed on each page
These documents present the New Zealand Continental Shelf Project team’s current understanding of the nature of the New Zealand continental margin in terms of the principles and interpretation of article 76. The opinions are solely those of the technical members of the project team and do not represent the official policy of the New Zealand government. A representation of the New Zealand coastline is shown below.
Over the past half century, efforts overlapping the understanding of maritime spaces under national jurisdiction with another neighbouring state made at intergovernmental conferences and in international courts and tribunals, have met with mixed reactions. The UN Convention on the Law of the Sea set out the modern law, but its boundary provisions were less specific than those in the Geneva Convention on the Continental Shelf. International courts have developed some case law, but the decisions have not always followed a consistent line. Recently, in an effort to clarify the relevant considerations, a systematic analysis of the practice of States has been made. However, it is inescapable that governments enjoy freedom of contract, with the result that practice is an uncertain guide. Despite some progress in this different forum, legal uncertainties over the principles of boundary-making persist and the need to reach a wide consensus remains outstanding. Today, increasing attention is focusing on the question of the outer limit of the continental shelf beyond the 200 mile limit.
In these circumstances, there may remain scope for technical bodies such as the IHO/ABLOS, academic legal bodies and practising lawyers to attempt to draw together some of the different threads. The present Conference is a timely opportunity. In this case, this paper attempts to identify some basic legal principles, notably the basic principles of the UN Charter, including the principle of the sovereign equality of states, the ever-present international aspect of maritime limits and boundaries, and the relationship between territorial sovereignty and maritime rights. There are several sources of uncertainty in the law governing maritime spaces, affecting both boundaries between neighbours and national limits which include change, differences in charting, and, most importantly, natural diversity.
1. Natural and Legal Change.
The first cause of uncertainty is change: Low water lines may advance or retreat and low tide elevations may appear or disappear as a result of natural changes. Changes can also be man-made: New harbour works may be built on the coast and then marked on large scale charts. Another type of change is legal change at both the national and the international levels. New national claims may be made up to the maxima allowed by international law: for example, three mile limits may be extended to twelve miles, thereby creating new base points on low-tide elevations lying between three and twelve miles of the coast
2. Variation in charts.
A second, minor cause of uncertainty is variations in state practice charting which may affect the drawing of outer limits and the processes of boundary-making. In particular, there is no uniformity concerning the chart datum: some charts use the lowest astronomical low water line, whilst others use the mean lower low water springs. In the negotiations between Belgium and France, for example, a feature which was shown as a low tide elevation on French and British charts was not more than a submerged bank on Belgian charts. The problem which was caused by this difference in the negotiations was finally solved by a compromise. For the future, similar problems in boundary-making could be averted by greater standardisation of charts.
3. Natural Diversity.
Finally, a great deal of uncertainty is the inevitable consequence of the natural diversity of the Earth and its coasts. Every coast and every delimitation is unique. The facts of geography are always different. As a result, it is difficult to frame rules which are precise.
BOUNDARIES.
The international community has been wrestling for a long time with the problem of how best to formulate the legal principles governing boundary-making. It would clearly be beyond the scope of this paper to attempt to cover the entire topic, so I will lay my focus on the formulation of the basic principles. Over the past 50 years, specific formulations of some principles applicable to boundary making have been advanced by different bodies, for example the International Law Commission (ILC), the First UN Conference on the Law of the Sea, the ICJ (especially in the North Sea Continental Shelf Cases), and the Third UN Conference on the Law of the Sea and by arbitral tribunals. Some key stages in this search for principles can be singled out.
The work of the ILC was done during the 1950s when there were few decisions by courts and minimal in the way of state practice. Delimitation between neighbours was approached in the context of limits, thou wider than those of 1945; they were still much narrower than those of today. The Commission's final draft articles did put forward three elements: agreement, equidistance and "special circumstances". The Commission stated in its commentary that it had adopted "the same principles" for both territorial sea and Continental shelf. However, its proposals amounted less to a statement of legal principles compared to the process or method of delimitation. Exceptions had simply to be "justified by special circumstances" but what circumstances would justify an exception? It was recognised that equidistance "might not infrequently result in an unreasonable or inequitable delimitation, but neither the principle of equity nor the idea of seeking an equitable result was included in the actual terms of the proposal.
The Geneva Conference made one improvement in the proposals. On the basis of a proposal by Norway, the rules for the delimitation of the territorial sea in article 12 of the Convention on the Territorial Sea were recast by the First Committee not as statements of what was the boundary but rather as a rule that States were not to exceed the median line in the absence of agreement. This was a much better approach of regulating the situation whilst agreement on a line remained outstanding. However, parallel changes were not made in the Convention on the Continental Shelf. The term "special circumstances" remained undefined in the texts of the two Conventions. The rationale of the agreement/equidistance/special circumstances approach and the underlying principle of equity remained hidden.
In the North Sea Continental Shelf Cases, the International Court of Justice produced a judgment containing many important points, including the key concept of
equity; the factor of proportionality between areas of shelf and lengths of coasts, the
concept of minor coastal features which “distort” a median line and the idea of the
"natural prolongation" of the land mass. At the same time, the Court made findings which marked a break in the law which led to uncertainty. The Court held by a majority of 11 to 6 that the method of equidistance was not binding upon the parties, that article 6 of the Convention on the Continental Shelf (CCS) was not part of customary law, and that under the applicable customary law delimitation was to be effected by equitable principles, the precise content of which was far from clear. Those findings meant that the States Parties to the Convention were bound inter se by one set of rules and non-parties were bound by a different set of rules. In other words, States were divided into two groups. In his separate opinion, Judge Lachs dissented (a rare event) on the grounds that in his view the elements in article 6 did constitute part of customary law, but he then went on to conclude that "there are no special circumstances which justify any departure from" the equidistance line.
At the Third UN Conference on the Law of the Sea, there was a marked
polarisation amongst coastal states over the rules for the delimitation of the EEZ and the continental shelf. There were two opposed groups of approximately the same numbers: the "median line group" which generally supported the approach in article 6 of the CCS and the "equitable principles group" which supported the approach adopted by the Court in the North Sea Cases. The positions adopted were greatly influenced by outstanding delimitations and actual disputes between pairs of neighbours and members of different groups. Delegations were not prepared to make the mental adjustments needed to reach consensus at the global level because of fears over possible repercussions for outstanding bilateral issues. The outcome of long debates was, in effect, the rejection as treaty law of article 6 of the CCS in what became articles 74 and 83 of the LOS Convention. As the learned editors of Oppenheim's International Law point out, the debate between those who wanted equity to be the guiding principle and those who wanted equidistance can be
regarded as having been “based on a false antithesis”.
Recent decisions of courts and tribunals.
During the twenty years following the decision in the North Sea cases, the different courts and tribunals were preoccupied with the two concepts of natural prolongation and equitable principles, as well as the interplay of customary and conventional law. A learned commentator noted in 1989 that the law on delimitation had acquired a bad reputation. Certainly, it was difficult at that time to give confident legal advice to governments as to the outcome of boundary litigation and at least one dispute which had been destined in 1982 for arbitration was settled by agreement in 1988.
The three most recent decisions have gone some way towards reducing uncertainty in the law. In the case between Denmark and Norway concerning the boundaries between Greenland and Jan Mayen, the Court found in 1993 that the line for fisheries purposes under customary law coincided at all points with the line produced by article 6 CCS, thereby in effect bringing customary and conventional law together. The Court adopted a two stage process of first drawing a provisional median line and then reviewing its fairness with a view to making adjustments if appropriate. The Court found there existed a legally significant disparity in coastal lengths, and shifted the provisional line towards the shorter coasts in order to achieve an equitable result. The Court also followed Mr. Thamsborg's approach to defining the "box" for the purpose of ascertaining the extent of the respective areas. However, on other points, the decision has not escaped criticism. It has been argued that:
(a) In determining what was equitable in the area, an actual precedent -in the form of Norway’s agreement of 1981 with Iceland (based on the report of the Conciliation Commission) to the effect that Jan Mayen's 200 mile zone should not intrude into Iceland’s zone - was not followed.
(b) The shift appeared to be insufficient to ensure proportionality.
(c) In applying that factor, the frame of reference appeared to have been the area of the overlapping claims, not the whole relevant area as defined by Mr. Thamsborg.
THE PRESENT SITUATION.
The LOS Convention is in force for its 137 parties and its package of rules represents the modern law. Now that over three-quarters of coastal states are parties to the Convention, it is prevailing more and more over the Geneva Conventions. The preamble to the LOS Convention states the aim of the negotiating governments as being “to settle in a spirit of mutual understanding and cooperation all issues relating to the law of the sea." It is striking that the LOS Convention contains detailed rules on most issues, but not on the delimitation of the EEZ and continental shelf. However, it did establish the Commission on the Limits of the Continental Shelf (CLCS) in order to review claims to the continental shelf beyond 200 nautical miles. And even more significantly, the Convention also contains provisions in Part XV for the peaceful settlement of disputes by means of conciliation, arbitration or litigation, albeit with some qualifications. Potentially, these provisions cover disputes about baselines, national limits and boundaries between states. These provisions in Part XV also apply in principle to disputes over the outer limits of the continental shelf in article 76, whether or not the CLCS has been engaged
Conclusion.
Various conclusions can be withdrawn from this paper. These conclusions are as follows: Lawyers and technical experts both have parts to play in the processes of delimitation. Courts and tribunals perform best when they appoint an expert hydrographer, something that has been provided for in article 289 of the LOS Convention. Each court or tribunal, when considering a case, should do its utmost to maintain the consistency of the chain of decisions. The outcome of a case can never be totally predictable, but a reasonable degree of predictability should be the target. Recent decisions are consistent on several points. Predictability would also be enhanced by paying greater regard to State practice where it exists in the vicinity of a delimitation, as opinio aequitatis.
In the present climate, it is hoped that governments may be more willing in the future than in the past to submit delimitation questions to international courts and
tribunals. Relatively few states parties have made the declaration provided for in article 298(1) (a) reserving on the question of delimitation. The legal uncertainties which have Manifested themselves in this topic on delimitation from the outset have somewhat diminished as a result of recent decisions by courts and tribunals and the growth in state practice. It should not be forgotten that delimitation is intimately linked with the remainder of the Convention, including the rules on baselines as well
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