The Aegean continental shelf dispute mostly involves legal elements in its conception.[1] In a period which witnesses increasing prospects for a judicial settlement of the Aegean disputes, the continental shelf dispute is inevitably in the forefront for submission to the ICJ.[2] This has been a further and stronger indication that the settlement will be depended basically on the relevant rules and principles of international law.

Aware of that fact, the two States have developed quite sophisticated legal arguments to support their respective stances. Part V reviews firstly the legal arguments raised by the two States as to the delimitation law and its application to the Aegean Sea. Secondly, it reviews the way in which the delimitation law, which has already been identified,[3] is applied by international courts. This will establish framework of a maritime delimitation which will guide delimitation in the Aegean Sea.

A. Legal Arguments over the Aegean Continental Shelf Delimitation

1. Arguments Raised by Greece

From the early years of the dispute until it was submitted to the ICJ in 1976,[4] Greece established its legal arguments on an assumption that Turkey had unilaterally delimited the Aegean continental shelf by granting exploration licences in 1974 as shown in the attached map.[5] According to Greece, the delimitation was both unacceptable and contrary to law since the concessions did not give continental shelf areas to Greek islands of Samothrace, Limnos, Aghios Eustaritos, Lesvos, Chios, Psara, and Antipsara. It argued that some areas licensed were Greek continental shelf areas under international law.[6]

Greece pointed to some provisions of the 1958 Convention on the Continental Shelf as the relevant delimitation law. It specifically referred to Article 1, paragraph (b) of the Convention, which provides in part that “For the purpose of these Articles, the term ‘continental shelf’ is used as referring…b) to the sea-bed and subsoil of similar submarine areas adjacent to the coasts of islands.”[7] What was also significant in the Greek view was that this rule was not only a conventional, but also a customary rule[8] and it should therefore bind Turkey although it was not a party to the Convention.

Having explained that islands should have a continental shelf of their own, Greece moved on to indicate the rules that it depended on to delimit the continental shelf areas between the Greek islands in the eastern Aegean Sea and Turkey’s mainland. As far as the conventional rule was concerned, Greece again referred to the 1958 Convention and argued that the Convention provided that if parties failed to agree on any other boundary, the delimitation line for the continental shelf should be the median line between opposite coasts, whether the territory concerned was continental or insular.[9] It specifically referred to Article 6, paragraph 2, which provides in part:

In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.[10]

Greece argued regarding the customary law of delimitation that the rules and principles regulating the delimitation of the continental shelf were the same as the conventional rules, as developed in both State practice and the ICJ judgment in the North Sea Cases (1969).[11] Those rules provided the delimitation between the two opposite coasts, whether continental or insular, be the median line, unless another boundary was justified by special circumstances.[12] Greece stated furthermore that the islands did not constitute special circumstances. Only some low-tide elevations such as small islets and rocks could be ignored as special circumstances in the course of a delimitation.

Greece emphasised that there was a logic behind such a rule of conventional and customary law that since the islands formed “an intrinsic geographic unit” of the continental territory, whether it was an archipelagic State or a State which had continental territory, their weight in a delimitation process should be the same as that of continental territories.[13]

Greece has carried all its above observations directly to the delimitation in the Aegean Sea. The boundary line between the continental shelf of Greece and Turkey should follow the median line between the Greek islands and the Turkish mainland.[14] The Greek islands, even those that are in the vicinity of the Turkish mainland, should be entitled to their own continental shelf in the same way as the Turkish mainland.[15]

In addition to the delimitation law and the way in which it is reflected on the Aegean Sea, Greece raised a practical point. It argued that the median line was further confirmed by the fact that it would also preserve the political and geographical unity between the Greek mainland and its islands.[16]

Therefore, in the Greek view, delimitation law provides that the delimitation line between two or more States should be the median line, unless they agree on another line. It moreover argues that the delimitation law does not differentiate between insular and continental territories in this sense. Only some low-tide elevations could be ignored as special circumstances. Accordingly, the delimitation line between Greece and Turkey in the Aegean Sea should be the median line between the Greek islands and the Turkish mainland. This is in fact the only delimitation line in Greece’s view which would also preserve the political and geographical unity of Greece.

2. Arguments Raised by Turkey

There seemed to be no disagreement between Greece and Turkey on the view that islands are entitled to their own continental shelf areas.[17] During UNCLOS III, Turkey tried to secure a provision in the forthcoming convention to the effect that islands with a certain location and geographical and sociological characteristics should be excluded from generating a continental shelf of their own.[18] Apart from these efforts, there was no expressed Turkish view to the effect that islands could not have a continental shelf of their own under the relevant rules of the contemporary international law.

The diversion between views of Greece and Turkey emerges when it comes to the issue of delimitation rather than to entitlement. It was the initial opinion of Turkey that in the course of a delimitation, what was dominant was the concept of natural prolongation., the geomorphological concept of the continental shelf should be given priority within the process as it is the source of title to the continental shelf rights.[19] In this sense, the equidistant line between the Greek islands and the Turkish mainland which was argued by Greece as the delimitation line in the Aegean was not the mandatory method and would not be used as it would cut off the natural prolongation of Turkey.[20] It considered that the continental shelf of the Turkish mainland, the Anatolia, extended in geomorphological terms under the Aegean Sea to midway between the mainlands.[21]

However, it would be misleading to take such an initial statement as what Turkey understood from the customary rule of delimitation. The Turkish approach seems to be more sophisticated. As it expressed at UNCLOS III, Turkey took the view that for both adjacent and opposite coasts, two or more States, failing an agreement on a delimitation line, should delimit their respective continental shelf area “in accordance with equitable principles by taking into account of all the relevant factors, including, inter alia, the geomorphological and geological structure of the shelf up to the outer limit of the continental margin, and special circumstances such as the general configuration of the respective coasts, the existence of islands and islets or rocks of one State on the continental shelf of the other.”[22]

This was, according to Turkey, the rule that in fact reflected the customary law on the continental shelf delimitation.[23] Turkey expressed specifically that the equity of delimitation should be judged according to the circumstances of the area to be delimited in the light of “equitable principles”.[24] No method, including the equidistance, could be mandatory. One or a combination of methods and principles which could be regarded as equitable according to the circumstances of the area should be applied.[25] Moreover, the circumstances to be taken into account are not limited to those expressed in the previous paragraph. What Turkey understood from the term “relevant circumstances” seemed to be an even wider list of factors, as indicated by the phrase “inter alia”.[26]

In this context, Turkey does not see any difference between Article 6 of the 1958 Convention on the Continental Shelf and the delimitation rule of customary international law. According to Turkey, Article 6 did not consider the equidistance as the mandatory method after the parties failed to agree. It rather introduced the equidistance method as only one of the possible methods of delimitation that could be used to arrive at an equitable solution in the light of the special circumstances of the case.[27] This was, according to Turkey, apparent from the reference to the special circumstances in the Article, although they were left unexplained by the Article itself.[28]

The reflection of Turkey’s opinions on the Aegean Sea has been that it would not be equitable to give continental shelf areas to many Greek islands in the Aegean. The line indicated on the maps published to show concession areas seemed to be regarded by Turkey as the equitable delimitation line.[29] This is a median line between the mainlands rather than between the Greek islands and the Turkish mainland.

In order to justify such a delimitation line as equitable, Turkey argued that the Aegean Sea is a semi-enclosed sea with many Greek islands located all around in such a small area, many of which are located very near the Turkish mainland, some just 3 miles off.[30] It is apparent that attributing them continental shelf areas would, according to Turkey, create an inequitable result as it would deprive the Turkish mainland almost completely of a continental shelf area of its own.

Many other factors have been raised by Turkish officials as further justification. It was argued that the balance of interests which was established between Turkey and Greece in the Aegean Sea by the Lausanne Peace Treaty[31] should not be disturbed by granting the continental shelf areas to the said Greek islands. In fact, the term “balance of interests” implies a comprehensive list of relevant circumstances such as security, navigational and commercial interests.[32] Moreover, the geomorphological factors, as mentioned in the previous paragraphs, are still considered by Turkey as another justification for its proposed delimitation line.

Therefore, there appears to be a fundamental difference between the opinions of Greece and Turkey as to the delimitation law and its practical application to the Aegean Sea. First of all, Turkey refuses to accept that the equidistant line is the mandatory method provided by both the conventional and customary law. It rather argues that both conventional and customary law provide that the delimitation should be, unless decided otherwise by the States concerned, conducted in accordance with equitable principles in order to achieve an equitable result by taking into account all the relevant circumstances.

Secondly, unlike Greece, Turkey does not establish a direct link between the entitlement of islands to their own continental shelf areas, and the role of islands in a delimitation process. Islands, according to Turkey, could be ignored altogether in a delimitation process if they cause an inequitable result despite the fact that they are entitled to the continental shelf of their own. The circumstances in the Aegean Sea, according to Turkey, necessitate the ignoring of such Greek islands to be able to achieve an equitable delimitation..

3. Views Concerning the Area Relevant to the Delimitation

Determination of the area relevant to delimitation is a significant matter within a delimitation process.[33] In its submissions to the Aegean Continental Shelf Case, Greece declared that the “areas in dispute” were restricted to certain places in the Aegean Sea. First of all, Greece did not seem to be making a distinction between the concepts of the “relevant area” and the “area in dispute”. It was implied that the only area relevant to the delimitation was the area in dispute. Greece made it clear that the rights “which are entitled to the protection” were “the sovereign rights of Greece for the purpose of researching, exploring and exploiting the continental shelf” appertaining only to those Greek islands which were situated closer to the Turkish mainland.[34]

On the other hand, Turkey accepted that the disputed areas were only those around the eastern Aegean islands. However, it argued that the area relevant to the delimitation in the Aegean Sea covered the Aegean Sea as a whole.[35] The only problem in this context according to Turkey was that the Aegean Sea as a whole needed to be defined properly by the two countries for the purpose of the continental shelf delimitation.[36] This meant that the Aegean Sea needed to be differentiated in the south from the rest of the Mediterranean.

All this demonstrates that there is a fundamental difference between the views of the two countries on the definition of the relevant area for the continental shelf delimitation. According to Greece it is only the areas claimed by Turkey as its own continental shelf areas. Turkey, however, argues that all the Aegean Sea should be considered as relevant for the delimitation purposes.

The issue of the relevant area needs to be settled before any progress on the delimitation can be possible, because it will be detrimental in shaping the list of relevant factors to be taken into account.[37] The issue in relation to the Aegean Sea will be taken up in Part VI.[38]

4. Legal Arguments over the Delimitation of the Exclusive Economic Zone

Since there is no declared EEZ in the Aegean Sea, there are no expressed legal or political arguments of the two States over its delimitation. It is, however, quite reasonable to assume that there would be a considerable overlap between their arguments as to the continental shelf delimitation and those which would concern the EEZ delimitation. The main indication of this is the fact that the applicable rules for the delimitation of the continental shelf are identical to those for the delimitation of the continental shelf and EEZ, both in conventional and customary international law.[39]

The only significant difference in their arguments as to the possible EEZ may however concern the relevant factors. Some of the factors that are relevant to the concept of the continental shelf are not relevant to the EEZ. Thus, one factor relevant to the delimitation of the former may not be relevant to the delimitation of the latter.[40] This may accordingly cause the emergence of divergent factors in the arguments of the two States.

The difference is not, however, as significant as it may seem. There has been a gradual unification between the factors that are relevant to these two maritime areas. This is particularly the case if the delimitation concerns a single line for both areas.[41] If the two States declare EEZ in the Aegean Sea, the delimitation would most likely concern a single line even if the parties did not particularly request it.[42] Thus, it is likely that the views of the two States as to the factors relevant to the delimitation of the continental shelf would also be considerably similar to those relevant to the delimitation of the EEZ.[43]

B. The Delimitation Law as Applied in Practice

The disagreements between Greece and Turkey on the formulation of the customary delimitation law require a reference to Part III where the rules and principles of law on this subject have been identified.

The review has shown that the customary law provides that delimitation be affected by the concept of “equity” or “equitable principles” through an agreement between the States concerned. Articles 74 and 83 of the 1982 Convention refer to the same principles.[44] The early conventional rule of delimitation, namely Article 6 of the Geneva Convention on the Continental Shelf, does approve the same principles although it makes an explicit reference to the “principle of equidistance”.[45] It is therefore clear without any detailed examination that Greece is not justified in its argument since the equidistance method is not given priority either by the conventional or customary delimitation law.

According to the review of the Greek and Turkish arguments, the disagreement between Greece and Turkey concerns not only the issue of what are the applicable rules of law in general, but also how these rules should be applied in practical cases and in the specific context of the Aegean Sea. This is a complicated aspect of the dispute which accordingly deserves a detailed examination.

The following section will address primarily the way in which the ICJ and by many ad hoc arbitral tribunals have applied the delimitation law in actual cases.[46] Part VI, on the other hand will concern the application of these rules to the specific case of the Aegean Sea.[47]

1. Formulating the Equity in the Delimitation of Maritime Areas

The functions and meaning of the concept of equity in its relation to the law in general have been explored in the Part V. That part briefly notes that equity should be regarded as “constitutive” as far as its function within the delimitation law is concerned.[48] This is not, however, a conflict-free matter given the fact that some still consider the role of equity as “corrective” within the delimitation law.[49] The divergence in opinions signifies that equity might either mitigate the already established delimitation law to make it “equitable” in its application, or constitute the applicable law itself.[50] It has however been noted in Part V that due to the fact that there had not been a previously established delimitation law or mandatory delimitation method as could have been provided by law, it is really difficult to accept the contention that equity, as applied to the delimitation cases, operates as corrective.[51] It should rather be taken as constitutive, i.e., the law to be applied.

Within this broad context, international courts have undertaken to clarify the equity in relation to delimitation of maritime areas. They disappointingly placed a strong emphasis on the “equitable solution” rather than on “equitable principles” in the actual formulation.[52] This seems to have prevented the emergence of a clear set of “equitable principles” to be applied to the delimitation cases. The ICJ suggested in the first judgment on the subject in the North Sea Cases that rather than being independent legal principles, the equitable principles were only the function of an “equitable delimitation” or the “equitable solution” in a particular case.[53] In the Court’s view, equity was not something that should be provided only by certain principles whatever the circumstances of the case.[54] In this context, the Court of Arbitration in the UK-France Arbitration was in complete agreement with the ICJ.[55]

In its later decision in the Tunisia-Libya Case, although the ICJ confirmed that equity or equitable principles are part of the law applicable to the delimitation,[56] it did not similarly consider the equitable principles as a defined set of legal principles that would, regardless of the outcome in a particular context, be applied. The Court in this case rather emphasised that it was “the result which is predominant, the principles are subordinate to the goal.” [57] In its latest decision in the Jan Mayen Case, the ICJ again emphasised the “result”.[58]

This state of delimitation law should be taken as legally unsatisfactory since it lacked, to a significant extent, legal precision, as the “result” determines the applicable principles.[59] It simply resembles a decision ex aequo et bono, rather than a determination on the basis of precise legal rules and principles.[60]

However, it also seems to be how the judgments and awards should be viewed. The observations that emphasize the result do not in fact deny the existence of certain equitable principles. The Court in the Libya-Malta Case enumerated certain equitable principles that would be applicable to delimitation cases.[61] The existence of certain general principles was also confirmed by the ICJ Chamber’s judgment in the Gulf of Maine Case. The Chamber accepted that there were at least certain general principles despite the fact that they did not provide the practical methods to be applied.[62] The Tribunal in the Eritrea-Yemen Arbitration settled the case in hand on the principles which had been established as equitable by the previous judgments.[63]

Therefore, the judgments do not deny the existence of certain principles which are applicable in general to delimitation cases as equitable principles. They rather imply the selection of the applicable principles depends on its result as equitable within the circumstances of the case in hand. The ICJ in the Libya-Malta Case clearly enumerated certain equitable principles and implied that selecting the principle or principles among them to apply to a particular case depends on the particular circumstances of the case.[64]

The Arbitration Court in the UK-France Arbitration further emphasised that the circumstances of particular cases would determine what principles would be applicable as the equitable principle or principles.[65] The Chamber in the Gulf of Maine Case and the Tribunal in the Guinea-Guinea Bissau Arbitration accepted the existence of some “guidelines” or “a few basic legal principles”, some of which would be applicable in accordance with the particular circumstances of every case.[66]

It is no surprise to see that the practical methods that have been applied to a particular case in related judgments have been chosen in accordance with the peculiar circumstances of the case and are among those already approved. It is a method or a combination of methods that are indicated by the principles found applicable in a given case, which would produce an equitable result.[67] It is consequently possible to establish a legal pattern that could be applicable to a future delimitation case including the Aegean Sea.

2. Equitable Principles and their Application

2.1. Dominant delimitation principles; principles respecting geography

As clarified, the ICJ and ad hoc tribunals in some cases referred to certain fundamental principles relevant or applicable to maritime delimitation. They have further clarified the principles in general terms and the principles which are relatively more referred to than others.

In some cases, the delimitation concerned only the continental shelf. The ICJ in the North Sea Cases referred to a specific principle when it observed that “there can never be any question of completely refashioning nature”.[68] The judgment given by the Arbitration Court on the UK-France Arbitration confirmed that “it is the geographical circumstances which primarily determine the appropriateness of the equidistance or any other method of delimitation in any given case”.[69] The ICJ in the Tunisia-Libya Case similarly emphasised in clear terms that “land dominates the sea”.[70] According to the Court, the coast of each of the parties constituted the starting line for delimitation of submarine areas appertaining to each of them.[71] When enumerating certain equitable principles, the ICJ in the Libya-Malta Case reiterated that it is “the coast of each of the Parties which constitutes the starting line”.[72]

In the cases that concerned the delimitation of both the continental shelf and the EEZ, the emphasis was again on the geography, as represented by circumstances that are common to both concepts.[73]. The Chamber in the Gulf of Maine Case[74] observed that it is “towards an application to the present case of criteria more especially derived from geography that it feels bound to run.”[75] The Tribunal in the Canada-France Arbitration had to establish a single delimitation line between the Parties for both the continental shelf and the fisheries zone. It similarly considered the “geographical features” as being “at the heart of the delimitation process.”[76] In the Jan Mayen Case, the Court observed that the delimitation was to be based on the geographical context of the area.[77]

In some judgments, the fact that the principles which respect the geography of the area are dominant principles[78] has been emphasised rather indirectly. The Court in the Libya-Malta Case emphasised the principle of distance.[79] In the Guinea-Guinea Bissau Arbitration, the Tribunal emphasised the principle of “coastal vicinity” or “non-encroachment”.[80] However, the principles of distance and non-encroachment are those which primarily respect the coasts of the parties in a dispute.[81]

The dominance of the principles which respect the geography of coastal States has also been reflected in the fact that almost all of the delimitation processes in practice have started with the application of the equidistant or median line as the provisional and main delimitation line. It is clear that if Article 6 of the 1958 Convention is to be applied, the starting line is inevitably the median line, as required by the Article. However, the situation was, as emphasised in the UK-France judgment, the same in the application of customary law due to the dominance of geography of the area to be delimited.[82]

Secondly, it has clearly been reflected in the judgments on delimitation that it is the same principle in the application of customary delimitation law. In the North Sea Cases, for instance, although the ICJ dealt with adjacent coasts, it observed with regard to the opposite coasts that the median line is in general the equitable delimitation line between them.[83] The Court had a similar situation in the Tunisia-Libya Case and repeated the same observation as to the opposite coasts.[84]

The emphasis placed by the ICJ in the Libya-Malta Case on the distance principle resulted in a starting line that was inevitably an equidistant or median line which best reflected the coastal geography.[85] According to the Chamber in the Gulf of Maine Case, “The delimitation line to be drawn in a given area, will depend upon the coastal configuration.”[86] Thus, the provisional delimitation line, which is also the main delimitation line, constructed by the Chamber was the median line, as indicated by the coastal geography.[87] The ICJ in the Jan Mayen Case considered the median line as the initial line and confirmed that it was the dominance of geography that led to the choice.[88]

The Tribunal in the Eritrea-Yemen Arbitration did not have to establish an equidistant line because there was already an historical line agreed upon by the parties as a reference point. The historical line was not really an equidistant line as it also took into account the many coastal islands of Eritrea. In this context, the Tribunal did not ignore the islands even at the outset. This was not because the Tribunal did not attribute the dominant role to coastal geography but because both parties made it clear at the outset that they accepted the existence of that historic line for fisheries purpose.[89]

It seemed that even in the cases where the courts did not actually draw a median line as the initial line, they at least had the median line in mind when judging the effects of other relevant factors. The Court in the North Sea Cases would not have chosen the median line as the initial delimitation line on the basis of geography even if it had been asked to establish the actual delimitation line. It observed that a median line would not be equitable in that case since it would magnify the effects of certain geographical configurations such as the convex and concave shapes of the coastlines.[90] However, the Court, by this observation, had the median line in mind as an initial line, and then found it inequitable on the basis of some other geographical elements, namely the coastal configurations and lengths.

All these observations do not still mean that the delimitation line is solely determined by the geographical factors and the principles respecting them.[91] In order to establish a truly “equitable” delimitation line, it is, as further suggested by the judgments, necessary to take into account many other factors in the light of the principles respecting them.[92]

2.2. The secondary principles; principles respecting other factors

2.2.1. Sea-bed features

The Court in the North Sea Cases implied that natural prolongation would be the dominant factor in a delimitation case. The Court placed considerable emphasis on this element that as long as it is identifiable, the continental shelf area of one State should not be cut off by others.[93] However, the role of natural prolongation has been played down by later judgments and awards.

The Court in the UK-France Arbitration gave the impression that even if they were identifiable, the sea-bed features could only have a relative rather than an absolute effect on the delimitation line.[94] It was the Court’s stand that, the legal concept of the continental shelf in legal terms was not “determined exclusively by the physical facts of geography.”[95] The Arbitration Court in the Canada-France Arbitration similarly did not see the basis of title in the physical structure of the sea-bed, since the continental shelf concept had become a rather “juridical concept”.[96]

When the case concerned single line delimitation, the role of the sea-bed features would be even more limited. The ICJ in the Libya-Malta Case considered the issue in a different context and denied the relevance of sea-bed features in a single-line delimitation on the basis that the law applicable in such a case was based on the distance principle rather than on geological or geomorphological criteria.[97] The Court in the Canada-France Arbitration agreed with that decision when it observed that “the physical structure of the sea-bed ceases to be important when the object, as in this case, is to establish a single, all-purpose delimitation both of the sea-bed and the superjacent waters.”[98]

Moreover, the Court in the Guinea-Guinea Bissau Arbitration ruled that “the rule of natural prolongation can be effectively invoked for purposes of delimitation only where there is a separation of continental shelves”. It still, however, pointed to the relative or secondary role of the sea-bed features on a delimitation line which was already indicated by coastal geography.[99]

The observations of the international courts in the previous paragraphs obviously diminished, to a significant degree, the effect of the sea-bed features on the delimitation line.[100] These observations further suggested that the sea-bed features will have only a limited impact on the delimitation line which is indicated by coastal geography. In the Tunisia-Libya Case, the ICJ clearly approved that statement when it observed that the identified sea-bed features could only be “one of several circumstances considered to be the elements of an equitable solution”.[101] In the Canada-France Arbitration, for example, the Tribunal clearly accepted at least the possible effect of sea-bed features in the areas where the continental margin extends beyond 200 miles.[102]

Therefore, these observations could be interpreted to mean that although they do not play a dominant role as suggested by the ICJ in the North Sea Cases, sea-bed features could constitute one of the non-geographical relevant factors that could affect the initial delimitation line in varying degrees.

2.2.2. Natural resources of the delimitation area

In the North Sea Cases, the ICJ referred to “the idea of unity of deposits”[103] which has, in any account, nothing to do with the geography of the area. The relevance of this factor was based on the fact that “the natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal regime established subsequent to the Truman Proclamation.”[104] These factors could well be relevant during the course of delimitation to be carried out by the parties.[105]

As introduced by the North Sea judgments, factors related to the resources of the area like minerals and fishing resources have been found relevant to the delimitation line for the continental shelf or to a single line delimitation. In establishing the legal framework for the delimitation of the continental shelf boundary around the British Isles, the Court in the UK-France Arbitration also included the “coastal fisheries” into the legal frame.[106] The Court considered all these elements as affecting the delimitation of the continental shelf boundary around the Channel Islands.[107]

The ICJ accepted in the Tunisia-Libya Case the oil-wells in the delimitation area as a relevant factor.[108] The ICJ Chamber in the Gulf of Maine Case emphasised so much the exploration and exploitation of the natural resources of the area that it would not allow any method which could complicate the boundary by producing “a zigzag path”. It further observed that “there would seem to be far less justification for adopting such a line as a limit appropriate to maritime fisheries zone” for the same reason of clarity and practicality.[109] The fisheries were emphasised as a significant element in the Eritrea-Yemen Arbitration.[110]

In later judgments, the decisions were in that natural resources should have a role in the delimitation in order to be equitable. While the ICJ, in the Libya-Malta Case, confirmed the relevance of the natural resources to the continental shelf and the EEZ in general,[111] the Court in the Canada-France Arbitration confirmed it with a clear reference to the establishment of a delimitation line which should not be “radically inequitable” in terms of delimiting the natural resources of the area.[112] Similarly, the natural resources and access to them were considered by the ICJ in the Jan Mayen Case as a significant aspect of an equitable delimitation.[113]

However, general economic factors that could be regarded as being within the framework of the natural resources, have been found to be irrelevant to delimitation. Tunisia in the Tunisia-Libya Case referred to both its “relative poverty” vis-à-vis Libya and its historical dependence on fishing resources.[114] The Court however rejected them as irrelevant.[115] In the face of Malta’s arguments regarding its absence of energy resources and the fact that it is a developing country, the ICJ said that “The Court does not however consider that a delimitation should be influenced by the relative economic position of the two States in question.”[116] There were arguments in the Guinea-Guinea Bissau Arbitration to the effect that some economic factors such as the parties’ lack of resources and their development plans should affect the delimitation. The Tribunal similarly found them irrelevant.[117]

The reasons why these factors are not relevant have been explained on the basis of the fact that they are changeable over time.[118] The ICJ in the Libya-Malta Case introduced another reason by observing that “Such considerations are totally unrelated to the underlying intention of the applicable rules of international law.”[119] Socio-economic factors have only been found relevant to the delimitation when the effect of islands on the delimitation between mainlands is considered. This is a matter that will be considered separately later in Part V.[120]

Although the relevance of the natural resources within the delimitation process has been approved on the basis of their being the very subject of such maritime areas, it was again a repeated pattern in the judgments that these factors would not necessarily affect the delimitation line in actual sense. In the Canada-France Arbitration, the facts, according to the Tribunal, indicated that the proposed demarcation line would not have a radical impact on the existing pattern of fishing in the area.[121] Thus, the initial line might already be considered as equitable as far as the natural resources in the areas were concerned. Another reason to find them ineffective was their status as being “potential” rather than existing elements.[122] Moreover, the resources which were in the sea-bed area would have little prospect for affecting the delimitation line for both the continental shelf and the EEZ.[123]

Although such circumstances in the Gulf of Maine did not seem to have finally affected the initially indicated delimitation line,[124] they would have done so if fishing activities had been regarded as historically exclusive to any of the parties. As to the mineral resources, the Chamber’s refusal to acknowledge their relevance was based on the proposed delimitation line “not having catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned.”[125] Moreover, the Chamber thought that the line already indicated prevented such repercussions and left broad expanses on either side.[126]

The principle that the delimitation line should not have a catastrophic effect on the local fishing population played significant role in the award of the Tribunal in the Eritrea-Yemen Arbitration. The Tribunal concluded that fishing constituted an important part of the economies of both Yemen and Eritrea and impacted the livelihood of the population of both parties.[127] Since it allowed the both parties to fish even in the territorial waters of the islands which were given to Yemen in the first phase of the award.[128] The Tribunal observed that “fishing and fisheries could have no significant effect on the Tribunal’s determination that would be appropriate under international law in order to produce an equitable solution between the Parties.”[129] However, it seemed that the Tribunal would respect, as much as possible, the historic fishing areas to avoid any catastrophic effect.[130]

Therefore, while the natural resources are significant relevant factors, they do not practically affect the delimitation line, unless the initial line based on the geography of the area, has a “catastrophic” effect on the livelihood of the community.

The Jan Mayen Case was a good example where the element of natural resources actually affected the delimitation line. The Court was provided with sufficient information regarding the fisheries in the area and was persuaded to accept the existence of a “capelin stock” in an area where the fish stocks were distinctively significant.[131] The Court contemplated whether it should shift or adjust “the line, as fishery zone boundary,…to ensure equitable access to the capelin fishery resources for the vulnerable fishing communities concerned.”[132] The Court, by depending on the relatively stable nature of capelin stocks, ruled that the initial line was too far to the west for Denmark to be assured of an equitable access, since it would attribute to Norway the whole area of overlapping claims. Accordingly, the line was shifted and adjusted eastwards.[133]

2.2.3. Actual and possible boundaries

The international courts took account of certain elements that are related to the actual and possible boundaries. These elements could be termed “political geography”, which the ICJ introduced in the Gulf of Maine Case.[134] These are basically the boundary matters that had an actual or potential effect on the geography of the area. In the Tunisia-Libya Case, the Court accepted the relevance of various boundaries such as the “existing or potential delimitations” between each of the parties and third States, the position of the land frontier,[135] or a line employed de facto by each party dividing their concessions areas.[136]

Another concern is whether such elements really did affect the actual delimitation boundary. It is a known fact that some of the actual boundaries such as the land boundary between adjacent States and the existing maritime boundaries actually affect the delimitation line for the continental shelf and the EEZ. However, some of the existing maritime boundaries and possible maritime boundaries seem to affect the delimitation line indirectly. In the Tunisia-Libya Case, the Court had in mind the test of proportionality when it provided that “How far the delimitation line will extend north-eastwards will...depend on the delimitations ultimately agreed with third States on the other side of the Pelagian Sea.”[137] It is therefore apparent from the judgments that their relevance was considered mostly in relation to the calculation of the areas relevant for the test of proportionality.

2.2.4. Supporting factors

The Arbitration Court in the UK-France Arbitration regarded inter alia the “navigational defence and security interests” of the parties in the region as factors that could support or strengthen the line indicated by the other factors.[138] Although the Court took a very restrained attitude in the Libya-Malta Case against the factors that it considered alien to the concept of the maritime area in dispute, it nevertheless said that “security considerations are of course not unrelated to the concept of the continental shelf.”[139]

But, the Court in the UK-France Arbitration clearly said that security considerations cannot have a “negative” or a “decisive influence” on the conclusion reached according to other factors.[140] The deliberation of the Arbitration Court in the Guinea-Guinea Bissau Arbitration handled the argument of “security” in a very similar fashion when it used that argument as further support to the principle of “coastal vicinity” which ensures that “each State controls the maritime territories situated opposite its coast and in their vicinity...” The Tribunal pointed out that such a concern for security should have been satisfied by the application of that principle.[141]

The Court in the Libya-Malta Case observed that “the delimitation which will result from the application of the present Judgment is...not so near to the coast of either Party as to make questions of security a particular consideration in the present case.”[142] The Court’s treatment in the Jan Mayen Case was no different as it observed that although security matters might not be relevant in the present case, they were satisfied with the delimitation line indicated.[143] These observations demonstrate that security matters are not the elements that change the direction of the delimitation line in one way or another. However, they support or strengthen the delimitation line reached.

Another element that was indicated to support this conclusion was introduced by the ICJ in the Tunisia-Libya Case. Tunisia argued that fishing activities by its nationals on the mobile fish stocks and on sponge on the sea-bed had been carried out from time immemorable. It argued that it had historic fishing rights in the continental shelf areas off its coasts and that these areas should not be cut off by the continental shelf of Libya.[144] The Court pointed out that historic rights should be respected. However, it further observed that there was no need to raise the argument of historic rights since they were in contradiction of the fundamental fact that continental shelf rights exist ipso facto and ab initio.[145]