The establishment of continental shelf zones and exclusive economic zones
(EEZs) considerably increased the number and length of the maritime
boundaries between coastal states. A 1983 survey identified some 376
international maritime boundaries between 137 coastal states around the
globe. In 1988, the US Department of State gave a figure of 412 demarcations
required. Eventually, additional boundaries arose due to the advent
of new states and the breaking-up of the Soviet Union. Yet another
generation of boundaries will result from climate change and accessibility
to resources in the Arctic waters. Moreover, many of the already agreed
boundaries relate only to the continental shelf and may be subject to review
and renegotiation in the context of EEZ delimitation. Given the political
and economic sensitivity of international boundary delimitation, guiding
rules and principles on the subject remain as essential as before. The task
has become even more difficult with the enclosure movement expanding
its scope from territorial seas to EEZ and ultimately to continental shelves
up to and beyond 200 nautical miles (nm).
Ever since the first attempts to formulate general rules on the subject in
the 1930 Hague Codification Conference, and despite a substantial number
of publications on the subject, the issue of the appropriate rules and
principles applicable to maritime boundary delimitation has remained a
controversial issue of the law of the sea. This problem was further
aggravated by the enclosure of the seas and the large-scale partitioning
of ocean spaces. At the Third United Nations Conference on the Law of
the Sea (UNCLOS III), maritime boundary delimitation between coastal
states ranked amongst the most difficult and contentious issues. The
difficulty has lain in finding and agreeing upon clear and predictable
rules of delimitation, which, at the same time, enable justice to be
achieved. An old dilemma of law has found yet another example in point.
On the one hand, states are interested in framing general and
predictable rules for maritime boundary delimitation because of political
and economic sensitivity related to boundary problems. It is in the
interests of the international community as a whole that clear, precise
and effective standards are developed based upon which boundary
problems can be solved and, if need be, adjudicated on peacefully. In
addition, small and less powerful nations derive protection from such
rules against the expansionist aspirations of their stronger neighbours.
On the other hand, each case of delimitation between states has its
own individual characteristics due to the particular features of the
coastal configurations, configurations of islands, seabed geomorphology,
particularities of the water column (habitat of living resources), and
finally the social, economic and legal backgrounds of the states and
regions concerned. Importantly, states negotiate general rules on the
basis of their particular and pre-existing coastal configurations. Of
course, they press for those rules that are of the utmost advantage for
their own geographical profile. As their interests are defined on the basis
of a stable and pre-existing situation, it is generally not of concern to
them, with regard to their own maritime zones, to find truly general rules
that would be applicable to all situations, because such rules could
potentially work to their disadvantage. In other words, states do not
have an interest in finding generally balanced rules that provide for
adequate and intermediate solutions in both favourable and unfavourable
cases and under different circumstances. They have no basic interest
in having specific rules providing complete or even partial security and
safeguards for as yet unknown future situations. The following summary
of a statement by the chairman of the Second Committee of UNCLOS III
illustrates this particular aspect of states’ defined and stable interests.
Made in 1974, it anticipates the great difficulties that are inherently
linked to the achievement of agreement on the rules related to longdistance
boundaries between states in the second half of the Conference:
The Chairman explained that, although the aim of the Third United
Nations Conference on the law of the sea was to consider and to adopt
general rules, every delegation was free to refer to its won special
geographic situation and also, where appropriate, exercise its rights to
reply in order to explain its own situation.
This situation, and the tension between the multitude of defined interests
and the will to find general rules on the subject, is evident throughout the
history of maritime boundary law. Long-range boundaries, however,
have considerably increased the problems and added new dimensions
to it. The experience gained from the delimitation of internal waters and
the 3-mile territorial sea, and from the demarcation in narrow straits and
bays, remains important, but is limited in terms of guidance.
‘Irregularities’ in coastal configurations or islands produce an increasing
and multiplying impact in the context of long-distance boundaries. They
render the formulation and application of general rules much more
difficult. In addition, it should be recalled that the problem of co-existing
and overlapping zones from different historical origins further
complicates the task of formulating precise rules on the subject. Rules
must take into account that the principle and presumption of a 200-mile,
all-purpose boundary of the shelf and the EEZ, suggested previously,
may not always lead to appropriate arrangements.
The existence of clearly defined and country-specific interests of individual
coastal states, on the one hand, and the need to define general rules on
the subject in order to prevent and control what may escalate into sensitive
international conflicts, on the other hand, defines the bottom line of the
problem explored by this book. Such a dichotomy of interests poses a
dilemma that is difficult to overcome. It will be seen that the recourse to
equity has its roots in that very dilemma. It is in the interests of legal theory
and law in general to scrutinize the processes and approaches adopted in
maritime boundary law, for the simple reason that the dilemma we find in
maritime boundary law is not unique and can also be found in many other
areas. Therefore, the solutions developed may, mutatis mutandis, equally
provide guidance to regulation of other areas. They are of general interest
to the theory of law, methodology and jurisprudence.