The International Court of Justice holds that a maritime delimitation between states with opposite or adjacent coasts should be effected through application of equitable criteria and the use of practical methods, which will ensure an equitable result. Delimitation of the Maritime Boundary in the Gulf of Maine Area (U.S. v. Can.), 1984 I.C.J. No 67
The notion of equity is at the heart of the delimitation of the CS(continental shelf) and entered into the delimitation process with the 1945 proclamation of US President Truman, concerning the delimitation of the CS between the Unites States and adjacent States. The Truman proclamation inspired the Court during the 1969 North Sea case, when the Court stated that “delimitation is to be effected by agreement in accordance with equitable principles, and taking into account all the relevant circumstances.” This idea became doctrine and was reiterated and confirmed by the ICJ and arbitral tribunals in subsequent cases. Articles 74 and 83 of the 1982 LOS Convention concerning the delimitation of the EEZ and the CS provides for effecting the delimitation by agreement, in accordance with international law and in order to achieve an equitable result.
The Court further stated that “It is not a question of applying equity simply as a meter of abstract justice, but of applying a rule of law” during the 1969 North Sea case, and later, during the 1985 Libya/Malta case, it reiterated that “the Justice of which equity is an emanation, is not abstract justice but justice according to the rule of law.”
It thus appears that equity is applied by the Courts as a part of international law and as a rule of law for the delimitation of the CS. To explain why the law made equity its own, and perhaps to give it greater force, the Judgments emphasize that law and equity are close because they start from, and give expression to, the same idea: the idea of justice. The Court’s jurisprudence shows that in disputes relating to maritime delimitation, equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation.
The problem with the idea of equity is that it does not provide any precise principle or criteria for the achievement of an equitable result. With respect to the delimitation of EEZ and CS 1982 LOS Convention sets only a goal which must be achieved and stipulates nothing on how to achieve the result. This vagueness gives some scholars the possibility to assert that there is a loss of normatively in the idea of equity and this idea allows the level of normatively to rise and fall.
The definition of equitable principles is closely related to the idea of unicum, which means that geographical features of each delimitation case varied so greatly that it is difficult, if not impossible, to posit any fixed principles applicable for the establishment of maritime boundaries between States. The idea of the uniqueness of each boundary finds significant support in the jurisprudence of the ICJ and arbitral tribunals.
In 1985 Guinea/Guinea-Bissau arbitration, the tribunal expressed the same idea: “the factors [the equitable principles] and methods result form the legal rules, however none of them is obligatory for the Tribunal since each of delimitation is unicum.”
It seems that there is no equitable principle in maritime delimitation which is applicable for all cases; but rather an equitable result must be sought for each case. It is the idea that Judge Jimenes de Arechaga had in mind when he noted that “the judicial application of equitable principles means that a court should render justice in the concrete case.”
Indeed, there were cases when the Court cited several equitable principles, such as the principle of non-encroachment; the principle not to refashion the geography; and not to seek to make equal what nature has made unequal. Even the use of those principles is not obligatory for the Courts and arbitral tribunals, because of their highly variable adaptability to each specific case. The use of those principles is also not obligatory for States.
This idea that it is difficult to define an equitable principle applicable for all maritime delimitation cases raises suspicions about the wide power and judicial discretion of the Courts. But it is not the fault of the Court or judge, it was the international community that opted the judges this wide power because it found it difficult, even impossible, to define a universally applicable principle. Even the Court and tribunal find it difficult to elaborate such a principle. This situation increases the responsibility of the Court in dealing with disputes concerning the delimitation of maritime boundaries, as the line of delimitation produced by a judicial organ must constitute an equitable result not only in the view of the Court, but also must appear equitable in the eyes of the litigants.
With respect to the idea that there is a lack of normativity regarding the concept of equity, the continuing series of judgments and awards may progressively refine the legal rules and principles, and refinements in the application of law may improve the normative situation. The improved situation, in turn, should produce results that are relatively consistent, fair and responsive to the variety of circumstances in which maritime boundaries must be delimited. It should also encourage the settlement of maritime boundaries.
Finally, concerning the equity and equitable principles, one may conclude that at present it is not possible to produce a structured system of equity and a clear body of equitable principles. The choice of, and weight to be attributed to, any equitable principle are too dependent upon the vagaries of geography to allow any systematic body of such principles to develop. It is more prudent to rely on the idea expressed by the Chamber in the 1984 Gulf of Maine case with respect to the role equitable criteria (principle) that “their equitableness can only be assessed in relation to the circumstances of each case, and for one and the same criterion it is quite possible to arrive at different, or even opposite, conclusions in different cases.”
EQUITY AS A PRINCIPLE AND RULE IN THE LAW OF MARITIME DELIMITATION
Aristotle was the first great philosopher to explain the functioning of the process of equity in law. Equity is not better than law, it is simply better law and goes beyond the text of the regulations only to the extent necessary for the rectification of some imperfection, the root of which lies in the generality of the regulations – which is almost always inevitable, since it is practically impossible to formulate a text to encompass and predict all situations occurring in real life.
Aristotle’s influence on European legal tradition is significant. Equity in international law is not the same as the concept of equity in domestic law and can be defined and identified in various forms and in many societies. Equity which is the subject of study in international law is mostly related to western legal traditions. The principles of equity developed over time both in Roman law and English common law due to the need to improve the corpus of legal rules. In Roman law, equity was contained in jus honorarium by means of which praetors, based on the advice of judges, issued edicts in order to complement or rectify jus civile. Resorting to equity is particularly characteristic for early phases of development of branches of law, when practice is not sufficiently developed and enables the full expression and formulation of legal rules. Two great 17th century theoreticians, who had an impact on the creation and development of international law, Grotius and Pufendorf, assigned a significant role to equity. These theoreticians held that a judge who needed to use his/her right of discretion as opposed to the word of law, demonstrated certain tension.
The texts of important decisions and the Conventions on the Law of the Sea state and stipulate that maritime boundaries need to be established and delimited by applying the principle of equity, simultaneously taking into account all the relevant circumstances so as to arrive at a fair result. To acknowledge the great importance of equity in the process of delimitation of maritime zones, the legal function of equity in the fulfillment of such role needs to be defined. Two positions were formulated in the international Law of the Sea. The first position is that the application of equity would result in the change of the general legal rule if required by special case-related circumstances.
The second approach gives greater autonomy to equity, treating it as an integral part of the Law of the Sea on its own. The starting point, that the uniqueness of every maritime boundary dispute prevents the establishment and application of general rules of delimitation, is in favor of the notion of autonomous equity, leading us to conclude that equity has a key role in the process of delimitation. The role of equity is to supplement the rules in a particular case and these rules should differ on a case to case basis. A judge of the International Court of Justice (ICJ) and professor of international law Jiménez de Aréchaga, in the continental shelf dispute between Tunis and Lybia (Continental Shelf (Tunis/Libyan Arab Jamahiriya), 1982), defined the principle of equity as follows: „… to resort to equity means, in fact, to assess and to balance the relevant circumstances of a case, with the aim of enforcing justice, not through a rigid application of general rules and principles, but through adjustment and adaptation of such principles, rules and concepts to the facts, realities and circumstances of each case …“ According to the Court’s reasoning in the case of Tunis/Libya, equity applicable to maritime delimitations is primarily the equity of results, instead of equity of principles and rules. In this case, the International Court of Justice (ICJ) indicated that the Court „is obliged to observe the principles of equity as a part of the international law and to weigh various considerations that the Court deems relevant with the purpose of achieving a fair result (Continental Shelf (Tunis/Libyan Arab Jamahiriya), 1982).The generality of the norm prescribed by the Convention on the Law of the Sea for maritime delimitations leaves a lot of space for the discretionary role of a judge, while to the same extent, reinforcing the role of the courts and tribunals dealing with the issues of delimitation.
Equidistance Versus Equitable Principle
Historically, the jurisprudence of the Court, such as the North Sea Continental Shelf cases and the Gulf of Maine, Tunisia/Libya and Libya/Malta delimitations, suggests that the rule of equidistance and that of equitable principles are different in that the equitable principles rule gave no primacy to equidistance as a method of delimitation. It can be seen that in the early jurisprudence of the Court, under the “equitable principles – relevant circumstances approach” regard must be had to the relevant circumstances and equitable principles simultaneously at a first stage, in order to decide which method of delimitation to apply.
However, the recent jurisprudence of the Court has tended to minimize the difference between the two rules. In the Qatar v. Bahrain case, the Court noted that: “the equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable principles/relevant circumstances rule, as it has been developed since 1958 in case-law and State practice with regard to the delimitation of the continental shelf and the exclusive economic zone, are closely interrelated.” Further, in the Cameroon v. Nigeria case, the Court, speaking of the equitable principle/relevant circumstances method, stated that: “This method, which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result’.” Thus, in delimiting the continental shelf and the EEZ of both adjacent and opposite coasts, the Court will generally now first provisionally draw an equidistance line, or at least consider the appropriateness of such an equidistance line, and then consider whether there are circumstances which must lead to an adjustment of that line, or indeed, in extreme cases, to the use of another delimitation technique in order to achieve an equitable solution. This approach was adopted in Qatar v. Bahrain as well as in the Greenland/Jan Mayen and Cameroon v. Nigeria cases where the final delimitations were modified equidistance lines, and in the Nicaragua v. Honduras case where the Court ultimately concluded that an equidistance line could not produce an equitable outcome in light of the particular circumstances of the case, and applied the bisector method. I would like to add that in the most recent case of Maritime Delimitation in the Black Sea (Romania v. Ukraine), the Court, after a careful consideration of the various relevant circumstances in the dispute between the Parties, decided that there was no need to adjust the provisional equidistance line drawn by the Court.