what is the meaning of Special Circumstances and Relevant Circumstances in delimitation process at law of the sea

Special Circumstance:

(a) Small islands
Special circumstances are those circumstances which might modify the results produced by an unqualified application of the equidistance principles. Small islands and maritime features are arguably the archetypical special circumstances as much in the delimitation of the territorial sea as in the delimitation of the continental shelf/EEZ. The Court has recognized in numerous cases, including the North Sea Continental Shelf, Tunisia/Libya, Libya/Malta and Qatar v. Bahrain cases that the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain islets, rocks and minor coastal projections. It is difficult to state from the Court’s decisions any simple rule on how the disproportionate effect of such features is to be eliminated. Indeed, much depends on the circumstances of the case. The effect that a small island has on the equidistance line will vary depending on whether the island is located far from, or close to, the coast and on whether the coastlines of the parties are adjacent or opposite. In light of this the Court has adopted a variety of ways of addressing any disproportionate effect. In most cases, however, the Court will give the maritime feature a partial effect on the delimitation line (for example by adjusting the equidistance line as if the island were located closer to the coast of the State which has sovereignty over it, as occurred in the Gulf of Mainecase in respect of Canada’s Seal Island) – generally the further out to sea an island is located, the more partial will be the effect given because of the greater potential for distortion of the boundary. In some cases, such as the Qatar v. Bahrain case, the island will be given almost no effect.

(b) Geography of coastline
When engaged in the task of delimiting the territorial sea, the Court will generally seek to remove any inequitable effect of special circumstances by modifying the equidistance line. However, in some cases, modification of the provisional equidistance line will not be sufficient to achieve an equitable result. Thus in the Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, the Court, while maintaining that equidistance remains the general rule in delimiting the territorial sea, formed the opinion that it would not be sufficient simply to adjust the provisional equidistance line but that special circumstances required the use of a different method of delimitation known as the bisector method (i.e., the line formed by bisecting the angle created by a linear approximation of coastlines). In the view of the Court, the bisector method, like equidistance, is a geometrical approach that can be used to give effect to “[the] criterion long held to be as equitable as it is simple, namely that in principle, while having regard to the special circumstances of the case, one should aim at an equal division of areas where the maritime projections of the coasts of the States … converge and overlap”. The special circumstances in the above-mentioned Nicaragua v. Honduras case related to the geography of the coastline. The land boundary between Nicaragua and Honduras ends at Cape Gracias a Dios which is a sharply convex territorial projection abutting upon a concave coastline on either side to the north and south-west. This meant that the pair of base points to be identified on either bank of the boundary River Coco would assume a considerable dominance in constructing the equidistance line. The Court stated, “Given the close proximity of these base points to each other any variation or error in situating them would become disproportionately magnified in the resulting equidistance line”. Moreover, continued sedimental accretion at sea brought about by River Coco caused its delta to exhibit a very active morpho-dynamism, especially as it travels out from the coast. Under the circumstances, the Court considered that these factors taken together had the result that any equidistance line constructed today could become arbitrary and unreasonable in the near future.

Relevant Circumstance:

(a) Coastal geography
One crucial concept in maritime delimitation relevant to coastal geography is the concept of proportionality. Proportionality is based upon the relationship between the relative lengths of the coasts of the Parties abutting the maritime area to be delimited, and the relative areas of maritime space allocated to each of the Parties by means of delimitation. In the North Sea Continental Shelf cases, the Court described proportionality as follows: “the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines, – these being measured according to their general direction … ” The concept of proportionality is also employed as an ex post facto verification of the equitableness of a maritime delimitation, i.e. a disproportionality test. Another crucial aspect of coastal geography is the configuration of the coastline. For instance, in the North Sea Continental Shelf cases, the concave nature of the coasts of Germany, sandwiched between The Netherlands and Denmark was held to be a relevant circumstance because: “where two such [equidistance] lines are drawn at different points on a concave coast, they will, if the curvature is pronounced, inevitably meet at a relatively short distance from the coast, thus causing the continental shelf area they enclose, to take the form approximately of a triangle with its apex to seaward and, as it was put on behalf of the Federal Republic, ‘cutting off’ the coastal State from the further areas of the continental shelf outside of and beyond this triangle.” The Court considered that a failure to take this into account would lead to inequity in a situation where each of the Parties’ coastlines was of similar length.

(b) Geomorphology of the delimitation area
In the North Sea Continental Shelf, Tunisia/Libya and Gulf of Maine cases, the Court in each instance considered the geomorphology of the area to be delimited, in particular to establish whether there were any features interrupting the continuity of the continental shelf. In those cases, the Court clearly considered that any such discontinuities may be relevant to the delimitation of the continental shelf/single maritime boundary ultimately adopted, although no such discontinuities were found in those cases.

(c) Historic Rights
While an argument based on historic rights has not yet resulted in an adjustment of the provisional delimitation line before the Court, historic rights are a recognized special circumstance and receive a special mention in UNCLOS in respect of delimitation of the territorial sea. It is, however, debatable as to whether they can exist in the continental shelf/EEZ which until the 1950s were considered to be high seas. However, “the traditional character of the different types of fishing carried out by the populations concerned” was given some weight in arriving at the final delimitation line in the Greenland/Jan Mayen (Denmark v. Norway) case.

(d) Fisheries
In the Greenland/Jan Mayen case, in the context of delimiting the fisheries zone (now known as the EEZ), the Court adjusted the provisional equidistance line to ensure that each Party had equitable access to capelin stocks.

(e) Oil deposits/oil concessions and oil wells
In contrast to the approach in relation to fisheries, in the Cameroon v. Nigeria case the Court stated that “oil concessions and oil wells are not in themselves to be considered as relevant circumstances justifying the adjustment or shifting of the provisional delimitation line.”

(f) Socio-economic factors
The Court will only take socio-economic factors into account as a relevant circumstance where a – delimitation would otherwise have catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned, as in the Gulf of Maine case. In other cases, the Court has taken the position that delimitation should not be influenced by the relative economic position of the two States in question, e.g., the Libya/Malta case.

(g) Security
In Greenland/Jan Mayen and Libya/Malta, the Court recognized that, in certain cases, security may be a relevant consideration, but only in a situation where a delimitation line passes very close to the coast of one State.

Special Versus Relevant Circumstance
Further, while the rule pertaining to the territorial sea refers to special circumstances and the rule pertaining to the EEZ and continental shelf refers to relevant circumstances, the Court recognized in the Greenland/Jan Mayen delimitation that these are one and the same. In respect of what can constitute a special/relevant circumstance, the Court stated in the North Sea Continental Shelf cases: “In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures … ” However, in the Libya/Malta case the Court added the following caveat: “For a court, although there is assuredly no closed list of considerations, it is evident that only those that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation, will qualify for inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally changed by the introduction of considerations strange to its nature.”This holds equally true for the other maritime zones. Thus while ecological characteristics constitute potentially relevant circumstances in the context of delimiting the EEZ, they will not be so relevant in the context of the continental shelf. Similarly, geological characteristics, while relevant to the continental shelf, could not be determinative for delimitation of the EEZ. In the Gulf of Maine case, however, the Court noted that coastal geography will be equally relevant to the delimitation of the EEZ and continental shelf. This is important in the context of the delimitation of a single-maritime boundary because in such cases the Court’s position is that preference should be given to the criteria that, because of their neutral character, are best suited for use in a multi-purpose delimitation.

Then, Whilst the relationship between equidistance and equitable principles within the maritime delimitation process is much discussed, the nature and role of relevant circumstances receives little attention. They are a broad range of factors, which contribute to the identification of the appropriate method of delimitation to be applied and/or influencing the manner in which the appropriate method is applied in practice. These are not mutually exclusive alternatives and attempts in recent case-law to restrict the role of relevant circumstances to the ‘second’ stage of the delimitation process are misplaced. Whilst it is neither possible nor desirable to construct a definitive list, the potential relevance of factors related to coastal geography is well attested. The role of natural prolongation remains disputed but is best understood as reflecting the idea of ‘cut-off’, and thus also linked to the question of coastal geography, reflecting the idea that ‘the land dominates the sea’. Factors related in activities and interests within the area to be delimited – related to resources, security and conduct – tend not to be acknowledged but have a powerful influence and so, in their own way, ought to be seen as such.

The concept of equidistance/relevant circumstances in the development of the law of maritime delimitation

Having analyzed the historical background of the law of maritime delimitation, it can be asserted that the concept of Equidistance/Relevant Circumstances originated neither from early customs of maritime delimitation nor from treaty law established under the 1958 Geneva Convention and the subsequent 1982 UNCLOS. The concept has been developed by the tribunal in the Greenland/Jan Mayen case (1993) with reference to principles drawn under the Anglo-French Continental Shelf case. It is a judge-made law considered as customary international law.
In the Greenland/Jan Mayen case, the Court, in order to draw a coincident boundary between the continental shelf and the FZ, assimilated Article 6 of the 1958 Geneva Convention to customary law, considering that both are intended to achieve an equitable result in the delimitation of two opposite coasts. Therefore, the Court held that it was appropriate to begin with a provisional equidistance line and then ask if relevant factors call for its adjustment. In so doing, the Court concluded that relevant factors employed under customary law equate to special circumstances used under Article 6 of the Geneva convention, both aiming at an equitable solution. In that way, the Court achieved a single delimitation line for the continental shelf and the FZ.
This legal concept recognized as Equidistance/Relevant Circumstances has been consistently applied by international courts and tribunals in the subsequent cases, such as Eritrea/Yemen (1999), Qatar/Bahrain (2001), Cameroon/ Nigeria (2002), Barbados/Trinidad and Tobago (2006), Guyana/Suriname (2007) and Romania/Ukraine (2009), with exception of the Nicaragua/Honduras case (2007) where the Court provided compelling reasons to derogate from it. With this level of consistency reached by international courts and tribunals in the law of maritime delimitation, it may be considered that the concept of Equidistance/Relevant Circumstances might be established as the primary rule of maritime delimitation. However, the prior requirements should be that this concept satisfies the criteria of consistency, certainty and predictability

An in-depth analysis of case law from 1993 to 2009 reveals that the concept of Equidistance/Relevant Circumstances has enjoyed a consistent application by the ICJ and arbitral tribunals in the delimitation of various maritime zones, and under different treaty law. Under negotiated boundary agreements, the Equidistance/Relevant Circumstances approach enjoys as well a substantial practice through the method of equidistance applied as least at the first stage of delimitation. This consistent practice combined with the prima facie evidence of opinio juris establishes the concept of Equidistance/Relevant Circumstances as a rule of customary law. It has become a unification factor between customary law and treaty law.
In addition, the principle of Equidistance/Relevant Circumstances shows a higher level of predictability grafted onto the settled jurisprudence and treaty law. This predictability is the result of three factors. First, international courts and tribunals are inclined to observe the principle of Jurisprudence Constante as regards the concept of Equidistance/Relevant Circumstances. Second, the equidistance method per se is a predictable method, based on mathematical formulae, and third, more and more predictable rules are being generated from the selection and consideration of relevant circumstances divided into geographical and non geographical factors. Having reached a higher level of unity, consistency, legal certainty and predictability, the concept of Equidistance/Relevant circumstances deserves to be erected as the primary rule of maritime delimitation. However, several challenges of a legal, technical, political and socio-economic nature need to be faced in order to achieve that objective.
From a legal point of view, those challenges are related to the vagaries of the jurisprudence illustrated by the Nicaragua/Honduras case, with the confusion contained in the Equidistance/Special Circumstances rule (Article 15, UNCLOS), and the dichotomy between the jurisprudential trend of Equidistance/Relevant Circumstances and treaty law, firmly attached to any equitable method. From a technical standpoint, the shortcomings of this new concept are linked to the

subjective methods used to assess the adjustment of the equidistance line in specific geographical circumstances, to determine the relevant coastlines and to appreciate the proportionality between those coasts and the delimited area. Lastly, political and socio-economic factors have yet to be taken thoroughly into account in the assessment of relevant circumstances under the settled jurisprudence, meanwhile under State practice those have become very influential factors of delimitation. Those negative factors need to be overcome in order to arrive at a significant norm of maritime delimitation based on the Equidistance/Relevant Circumstances concept, which has the merit to combine a higher degree of consistency, certainty and predictability. International peace, economic development, environmental sustainability and unity of international law of delimitation are at stake. Therefore, a combined action of legal, technical and political dimensions between international judicial bodies and the Community of States are imperative in order to reach this final outcome.