Third Year PhD Presentation Series Ki Beom Lee

-­ Background Document for 4th March 2011 Presentation -­

The Flexibility of the Rules Applied

in Maritime Boundary Delimitation

Ki Beom Lee
School of Law, the University of Edinburgh

This paper attempts to provide an overview of my research for discussion among those
who will be kindly attending my presentation on 4th March 2011. Firstly, I will present
background information in the first section of this paper. I will then address the structure
of my thesis and illustrate key points relating to its original contribution to public
international law in the following section, entitled Development of the Thesis. Lastly, I
will confirm more precisely what that original contribution to international law is in the
third section of the paper, headed Original Contribution to Public International Law.

I. Introduction

1. The Meaning of a Maritime Boundary

“The land dominates the sea” is a famous maxim in international law.1 According to
this saying, a State having sovereignty over its own territory can, undoubtedly, claim a
right to a maritime zone connected with its coastline. Therefore, one of the major
concerns of States was how far the territorial sea could extend under the pre-­1945
international law of the sea which only recognised a dichotomy between the territorial
X
I.C.J. Reports 2001, p.97, para.185.

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sea and the high seas.

Since the issuing of the 1945 Truman Proclamation, coastal States have started to
actively claim new maritime zones different from the territorial sea. These contentions
have led to the development of novel concepts like the continental shelf and the
exclusive economic zone (hereinafter called “EEZ”) in international law.2 Consequently,
the boundary of the territorial sea no longer functions as the one and only maritime
boundary. Currently, States can establish several maritime boundaries, such as the
boundary of the continental shelf or that of the EEZ.
Why is the concept of a maritime boundary important? The reason is that a maritime
boundary functions as the limit of the extent in which a State can enjoy maritime rights
pertinent to a maritime zone.
At the moment, it should be noted that maritime boundaries are different from
maritime limits.3 A maritime limit means the limit of the maritime spaces over which a
State can exercise the relevant jurisdiction. A State can establish its own maritime limits
relating to the territorial sea or the EEZ under the principles and rules of international
law. As a result, a maritime limit has a kind of ‘unilateral’ character.4 On the other hand,
a maritime boundary indicates a sort of ‘division’ in relation to the maritime zones of
another State. As such, it is said that maritime boundaries entail a ‘bilateral’ or
‘multilateral’ nature.5

2. The Meaning of Maritime Boundary Delimitation

2.1. The Need for Maritime Delimitation

States can establish their own maritime limits (except for the outer limits of the
continental shelf beyond 200 nautical miles (hereinafter called “NM”)), in the absence
of adjacent or opposite States, under the principles and rules of international law.
However, since almost all States (except for land-­locked States) have adjacent or

Y
R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester: Manchester University Press,
1999), pp.142-­145, 160-­162.
Z
Nuno Marques Antunes, Towards the Conceptualisation of Maritime Delimitation (Leiden: Martinus
Nijhoff Publishers, 2003), pp.6-­7.
[
Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (Portland: Hart
Publishing, 2006), p.8.
\
Ibid.

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opposite States, there is a strong possibility that the ‘overlapping’ of maritime

entitlements between two or more States can exist. What is more, States are likely to
claim their maritime zones towards maximising their own interests.6 Thus, maritime
boundaries need to be completely clear.

2.2. The Characteristics of Maritime Delimitation

Maritime delimitation means to establish a maritime relationship between two or more
States where their maritime entitlements overlap. If such overlapping did not exist, our
concerns would be limited to the establishment of maritime limits. In this respect, it is
said that maritime delimitation has an ‘international’ character.7
Furthermore, the delimitation of maritime boundaries is ‘constitutive.’8 In other
words, the aim of international courts and tribunals dealing with the matter of maritime
delimitation is not to declare a priori one and only one delimitation line but to arrive at
an ‘equitable result’ through the application of equity. This indicates that there could be
many delimitation lines that are unseen at sea.

3. Efforts to Make Rules Governing Maritime Boundary Delimitation

3.1. Law-­making by Treaties in Relation to Rules Governing Maritime Delimitation

The delimitation of maritime boundaries has been carried out through ‘bilateral’
agreements between the States involved. It is true that quite a few bilateral agreements
concerning maritime delimitation can be found. 9 However, in seeking to discover
customary international law with regard to maritime delimitation, many analyses of
these agreements have provided disappointing indications. Firstly, there is no
overwhelmingly accepted rule relating to maritime delimitation between adjacent
States.10 Secondly, even in the case of opposite States, it is not easy to identify the

]
Ibid., p.2.
^
Ibid., p.8;; I.C.J. Reports 1982, pp.66-­67, para.87.
_
Tanaka, supra note 4, pp.12-­14;; Antunes, supra note 3, p.7.
`
Malcolm D. Evans, “Maritime Boundary Delimitation: Where Do We Go from Here?,” in David
Freestone, Richard Barnes and David M. Ong (eds.), The Law of the Sea: Progress and Prospects
(Oxford: Oxford University Press, 2006), p.137.
XW
Tanaka, supra note 4, pp.134-­136.

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existence of opinio juris.11 Lastly and more importantly, States are reluctant to consider
a particular rule as obligatory because they argue for the ‘peculiarity’ of relevant
circumstances, including geographical factors, in the course of negotiations to conclude
an agreement.12
States have also endeavoured to make rules dealing with maritime delimitation
through ‘multilateral’ treaties, such as the 1958 Geneva Convention on the Continental
Shelf and the 1982 United Nations Convention on the Law of the Sea (hereinafter called
“UNCLOS”). Nevertheless, the International Court of Justice (hereinafter called “ICJ”)
was reluctant to admit that the rule governing maritime delimitation included in the
1958 Geneva Convention on the Continental Shelf had been transformed into a rule of
customary international law. Moreover, the UNCLOS only states that the final aim of
maritime delimitation with respect to the continental shelf and the EEZ is an ‘equitable
solution (equitable result)’ despite the lengthy discussions of the Third United Nations
Conference on the Law of the Sea.

3.2. Law-­making by International Courts and Tribunals in Relation to Rules Governing

Maritime Delimitation
For the reasons listed above, the finding (or the making) of rules concerning maritime
delimitation has been actively undertaken by international courts and tribunals rather
than through State practice. In fact, not only have there been many international
judgments or awards since 1969, but some cases are still pending in international courts
or tribunals.13
However, the making (beyond the finding) of rules by international courts and
tribunals may bring about many criticisms because the role of international courts and
tribunals is, basically, to make an interpretation and application of an applicable law in a
specific case.14

XX
Ibid., pp.137-­138;; Antunes, supra note 3, p.412.
XY
Prosper Weil, “Geographic Considerations in Maritime Delimitation,” in Jonathan I. Charney and
Lewis M. Alexander (eds.), International Maritime Boundaries (Dordrecht: Martinus Nijhoff
Publishers, 1993), Vol.I, pp.123, 130.
XZ
Territorial and Maritime Dispute case (Nicaragua/Colombia) and Maritime Dispute case (Peru/Chile).
The former was submitted to the ICJ on 6 December 2001 and the latter was submitted to the ICJ on 16
January 2008. See http://www.icj-­cij.org/docket/index.php?p1=3&p2=1.
X[
Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press,

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Indeed, it is controversial whether the ICJ found or made a rule governing maritime
delimitation in the 1969 North Sea Continental Shelf cases. In these cases, the Court
implied that a rule of customary international law with respect to maritime delimitation
included the concept of ‘equitable principles.’ This rule, as defined by the ICJ, differed
from the rule stipulated in the 1958 Geneva Convention on the Continental Shelf.

3.3. Two Rules Governing Maritime Delimitation

As has been mentioned above, there have been considerable attempts to make rules
governing maritime delimitation. Unfortunately, these attempts led to the formulation of
two rules in relation to the delimitation of maritime boundaries: the Equidistance-­
Special Circumstances rule and the Equitable Principles-­Relevant Circumstances rule.15
The conflict between these two rules has interfered with consistent State practice and
the identification of opinio juris.

3.3.1. The Equidistance-­Special Circumstances rule

The Equidistance-­Special Circumstances rule was first articulated in the 1958 Geneva
Convention on the Continental Shelf. Article 6(2) of the Convention declared that:

“Where the same continental shelf is adjacent to the territories of two adjacent States, the
boundary of the continental shelf shall be determined by agreement between them. In the
absence of agreement, and unless another boundary line is justified by special
circumstances, the boundary shall be determined by application of the principle of
equidistance from the nearest points of the baselines from which the breadth of the
territorial sea of each State is measured. (Italics added.)”

At this point, it should be noted that, in the absence of an agreement between the States
involved, the equidistance method cannot be applied without regard to special
circumstances. That is why this rule has been called ‘the Equidistance-­Special
Circumstances rule.’16
In spite of the codification of the Equidistance-­Special Circumstances rule, the ICJ

2007), pp.266, 272.

X\
Evans, supra note 9, pp.143-­147.
X]
See I.C.J. Reports 2001, p.111, para.231.

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Third Year PhD Presentation Series Ki Beom Lee

refused to regard this rule as a rule of customary international law in the 1969 North Sea
Continental Shelf cases.17 Following these decisions, there were a number of opinions
contesting and attempts to oppose the mandatory application of this rule in maritime
delimitation, particularly with regard to the continental shelf and the EEZ.
Disagreements and debates between effected States during the Third United Nations
Conference on the Law of the Sea explicitly evidence this objection.18 One group called
the ‘Equidistance Group’ was an ardent supporter of the Equidistance-­Special
Circumstances rule, whereas another group called the ‘Equitable Principles Group’
strongly disagreed with this rule.19 Despite lengthy debates, the two groups could not
reach a conclusion. Accordingly, the President of the Conference had no choice but to
propose a new formula which did not refer to the two terms, ‘equidistance’ and
‘equitable principles’ with regard to the delimitation of the continental shelf and the
EEZ.20 The formula only established the ‘final’ aim of maritime delimitation, which it
termed the achievement of an ‘equitable solution (equitable result).’
In fact, some States did not accept the Equidistance-­Special Circumstances rule
because the equidistance method might produce an inequitable result in a certain case.
In contrast, other States argue that this rule can guarantee ‘predictability’ concerning
maritime delimitation.

3.3.2. The Equitable Principles-­Relevant Circumstances rule

The term, ‘equitable principles’ can be found in the 1945 Truman Proclamation. The
Proclamation provided that:

“In cases where the continental shelf extends to the shores of another State, or is shared
with an adjacent State, the boundary shall be determined by the United States and the
State concerned in accordance with equitable principles. (Italics added.)”21

X^
I.C.J. Reports 1969, pp.46-­47, para.85.
X_
Antunes, supra note 3, pp.84-­87.
X`
Tanaka, supra note 4, pp.44-­46.
YW
Antunes, supra note 3, p.87.
YX
Presidential Proclamation No.2667 (28 September 1945) concerning the Policy of the United States
with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, in United
Nations Legislative Series, Laws and Regulations on the Regime of the High Seas, Vol.I (New York:
United Nations Publications, 1951), pp.38-­40.

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However, the meaning of equitable principles was equivocal at that time.

The 1958 Geneva Convention on the Continental Shelf entered into force on 10 June
1964. In the 1969 North Sea Continental Shelf cases, it was an important issue to decide
the legal character of the equidistance method because Germany was not a party to this
Convention at that time. The ICJ concluded that the application of the equidistance
method was not obligatory in all given cases, pointing out as part of its main reasoning
that such a method could produce an inequitable result.22 Instead, the Court willingly
accepted the concept of equitable principles as part of customary international law.23
According to the Court, the concept of equitable principles is an element ‘within’ a rule
of customary international law governing the delimitation of the continental shelf
between adjacent States.24 However, the concept of equitable principles did not have
any content at that time.
The ICJ went on to state that “… in short, it is not a question of applying equity
simply as a matter of abstract justice, but of applying a rule of law which itself requires
the application of equitable principles, … , (b) … taking all the circumstances into
account, equitable principles are applied, … (Italics added.)”25 The Court implied that
the ‘application’ of equitable principles should be carried out by ‘taking all the
circumstances into account.’26
In addition, the ICJ distinguished equitable principles from equity, referring to
“giving some degree of indication as to the possible ways in which it [equity] might be
applied in the present case. (Italics added.)”27 It provided ‘some degree of indication,’
such as some factors to be taken into account. The Court then suggested three factors to
be taken into account in arriving at an equitable result: (a) the general configuration of
the coasts, as well as the presence of any special or unusual features;; (b) the physical
and geological structure, as well as the natural resources, of the continental shelf
concerned;; and (c) proportionality.28

YY
I.C.J. Reports 1969, p.37, para.59.
YZ
I.C.J. Reports 1969, pp.46-­47, para.85.
Y[
Hugh Thirlway, “The Law and Procedure of the International Court of Justice (Part One),” BYIL, Issue
60 (1989), p.52.
Y\
I.C.J. Reports 1969, pp.46-­47, para.85.
Y]
I.C.J. Reports 1969, pp.46-­47, para.85.
Y^
I.C.J. Reports 1969, p.50, para.92.
Y_
I.C.J. Reports 1969, pp.53-­54, para.101.

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In sum, in the 1969 North Sea Continental Shelf cases, the ICJ concluded that
maritime delimitation can be performed by the application of the Equitable Principles-­
Relevant Circumstances rule.29

3.3.3. The Assimilation of the Two Rules

Starting from the 1993 Jan Mayen case, the ICJ has taken less and less consideration of
the meaning of equitable principles. The reason is that the Court concluded that, with
regard to the delimitation of the continental shelf between opposite States, the
Equidistance-­Special Circumstances rule formulated in Article 6 of the 1958
Convention on the Continental Shelf is not materially different from the Equitable
Principles-­Relevant Circumstances rule which existed in customary international law.30
Furthermore, the ICJ assimilated the two rules regarding the delimitation of the EEZ,
stating that “That statement of an ‘equitable solution’ as the aim of any delimitation
process reflects the requirements of customary law as regards the delimitation both of
continental shelf and of exclusive economic zones.”31 Thus, whereas the earlier cases
had rejected the obligatory character of the equidistance method and tried to clarify the
meaning of equitable principles, the 1993 Jan Mayen case intended to deny the
substantial difference between the two rules and to justify the ‘provisional’ use of the
equidistance method.32
Subsequently, both the 2001 Maritime Delimitation and Territorial Questions
(Qatar/Bahrain) case and the 2002 Land and Maritime Boundary (Cameroon/Nigeria)
case crystallised this logic of assimilation. For instance, in the 2001 Maritime
Delimitation and Territorial Questions (Qatar/Bahrain) case, the ICJ stated 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

Y`
I.C.J. Reports 1969, pp.53-­54, para.101.
ZW
I.C.J. Reports 1993, pp.58-­59, para.46.
ZX
I.C.J. Reports 1993, p.59, para.48.
ZY
Malcolm D. Evans, “Maritime Delimitation after Denmark v. Norway: Back to the future?” in Guy S.
Goodwin-­Gill and Stefan Talmon (eds.), The Reality of International Law (Essays in Honour of Ian
Brownlie) (Oxford: Oxford University Press, 1999), p.160.

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interrelated. (Italics added.)” 33 Likewise, the 2002 Land and Maritime Boundary
(Cameroon/Nigeria) case of the Court mentioned that “They [The applicable criteria,
principles and rules of delimitation] are expressed in the so-­called equitable
principles/relevant circumstances method. 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.’ (Italics added.)”34
It is true that attempts to understand the meaning of equitable principles have
declined since the 1993 Jan Mayen case because the difference between the two rules is
not remarkable. However, it should not be overlooked that international delimitation
cases since 1993 have also produced an equitable result by ‘taking into account all the
relevant circumstances’ despite the fact that research into the meaning of equitable
principles seems to have diminished at a glance. In addition, it is noteworthy that the
name of the rule called the Equidistance-­Special Circumstances rule for a long time has
been changed into the Equidistance–Relevant Circumstances rule since the 2002 Land
and Maritime Boundary (Cameroon/Nigeria) case.
The legal reasoning of the ICJ since 1993 suggests that the construction of the
equidistance line is no more than a first step in the delimitation process, rather than the
mandatory method for delimitation. As indicated in the 1969 North Sea Continental
Shelf cases, the equidistance method is just a method which can be employed in the
course of the application of equitable principles. Thus, it is certain that the application
of equitable principles has also been performed by taking account of all the relevant
circumstances since the 1993 Jan Mayen case as in the earlier cases, irrespective of the
provisional employment of the equidistance method.
In consequence, the two rules were assimilated towards refining the Equitable
Principles-­Relevant Circumstances rule. The assimilated rule will be called the ‘refined’
Equitable Principles-­Relevant Circumstances rule in my thesis.

ZZ
I.C.J. Reports 2001, p.111, para.231.
Z[
I.C.J. Reports 2002, p.441, para.288.

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II. Development of the Thesis

1. The Objective of the Two Rules: Predictability v. Flexibility

Some scholars have firmly upheld the equidistance method because they considered this
method as the most effective method of guaranteeing ‘predictability’ in maritime
delimitation.35 At this point, it is possible to put several questions to the supporters of
the equidistance method. Which should be regarded as more important, predictability or
flexibility with respect to the delimitation of maritime boundaries? Does an equitable
result ensue from the predictability of the delimitation process? Or does an equitable
result reflect flexibility?
In fact, it has been strongly urged that the equidistance method conflicts with the
concept of equitable principles. This assertion seemed to be exaggerated during the
heated disputes between the Equidistance Group and the Equitable Principles Group at
the Third United Nations Conference on the Law of the Sea.36 What is worse, it has
been believed that the equidistance method only stands for predictability whereas the
concept of equitable principles pursues flexibility.
At this point, a word might be said as to how international courts and tribunals reach
their decisions regarding maritime delimitation. Since the mid-­1980s, it has been
general practice for international courts and tribunals to draw the provisional
equidistance line and then take special or relevant circumstances into consideration to
adjust that line.37 The equidistance method became one method of constructing the
‘provisional’ line in the delimitation process.
In fact, opposition to the equidistance method implies that an ‘equitable result’ is
much more important than the obligatory force of a specific method in a given case. It
follows that the final aim of maritime delimitation is not to guarantee predictability
through the compulsory employment of a specific method but to arrive at an equitable

Z\
Prosper Weil, The Law of Maritime Delimitation – Reflections (Cambridge: Grotius Publications LTD.,
1989), pp.79-­81;; Antunes, supra note 3, pp.411-­421.
Z]
Weil, supra note 35, p.204.
Z^
Ibid., pp.83, 191-­192, 205-­208;; Yoshifumi Tanaka, “Case Concerning Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (8 October 2007),” IJMCL, Vol.23 (2008),
p.338.

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result by taking special or relevant circumstances into account. Hence, it can be said that
the drawing of the equidistance line is just a ‘starting point’ to obtain ‘flexibility’ in the
final stage of maritime delimitation.

2. Equity and Equitable Principles

Since the two aforementioned rules were assimilated into the ‘refined’ Equitable
Principles-­Relevant Circumstances rule, the meaning of ‘equitable principles’ needs to
be examined. (As pointed out above, the provisional employment of the equidistance
method seemed to lead to a lack of concern about equitable principles.) The concept of
equitable principles is a concept that is necessary to pursue the flexibility of the rules
governing maritime delimitation. In this context, the research on the concept, role and
application of ‘equity’ in international law is a starting point to understand what is
meant by ‘equitable principles’ which brings the concept of flexibility into maritime
delimitation.
Basically, it can be said that equity in international law does not correct or modify
the existing legal system. The 1982 Continental Shelf (Tunisia/Libya) case of the ICJ
stated that “It [equity] was often contrasted with the rigid rules of positive law, the
severity of which had to be mitigated in order to do justice. In general, this contrast has
no parallel in the development of international law;; the legal concept of equity is a
general principle directly applicable as law.”38 In other words, equity is not a means to
correct or modify the existing law but is a legal principle directly applicable ‘as law.’
Therefore, one ‘practical’ application of equity in international law may be the concept
of equitable principles found in the rules governing maritime delimitation.
What is the concept of equitable principles? A study of the relationship between
equitable principles and relevant circumstances is an essential step in understanding the
meaning of equitable principles in international law. The concept of equitable principles
is a concept which can only be meaningful in relation to its ‘application,’ not its own
meaning or content. In other words, the application of equitable principles is a ‘process’
intended to arrive at an equitable result in some areas of international law. In the course
of applying equitable principles, it must therefore be asked how it deals with relevant

Z_
I.C.J. Reports 1982, p.60, para.71.

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circumstances.
In its three cases of the 1980s, the ICJ (or its Chamber) tried to present a number of
concrete examples of equitable principles. It did so under the misconception that
equitable principles are a set of ascertainable norms. In spite of the ICJ’s effort to
present five concrete examples of equitable principles in the 1985 Continental Shelf
(Libya/Malta) case, there was no way to explain the application of equitable principles
except by identifying and weighing-­up relevant circumstances in a delimitation case.
Since the 1993 Jan Mayen case, almost all maritime delimitation cases have
employed the equidistance line as a starting point in the delimitation process.
Nevertheless, the identification and weighing-­up of relevant circumstances have still
been essential steps in the delimitation of maritime boundaries, irrespective of the
provisional use of the equidistance method. In other words, the application of equitable
principles, which is a core element of the rules governing maritime delimitation, still
requires all the relevant circumstances to be taken into consideration.
Therefore, the relationship between equitable principles and relevant circumstances
can be understood in the sense that the application of equitable principles as a process is
to take account of all the relevant circumstances in a concrete delimitation case. After
the identification and weighing-­up process of relevant circumstances, the result which
international courts and tribunals would arrive at cannot be anticipated in a predictable
way. This point brings us to the concept of flexibility.
In sum, in the case of maritime delimitation, equitable principles are not a body of
ascertainable principles. Rather, equitable principles are meaningful when they are
applied as a process for arriving at an equitable result. This process requires taking into
account all the relevant circumstances. In some areas of international law, such as the
law of maritime delimitation and the law of international watercourses, equitable
principles are applied. Here, the consequent outcome would not be predictable. The
reason is that the list of relevant circumstances is open-­ended and that the weighing-­up
process of assessing relevant circumstances would allow international courts and
tribunals to exercise discretion to some extent. (However, even though each delimitation
case has its own peculiarity, this does not mean that international courts and tribunals
have the absolute discretion to cut out the case in their own way.)

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3. The Application of Equitable Principles

When applying the ‘refined’ Equitable Principles-­Relevant Circumstances rule to
maritime delimitation, the most important issue is to define what the application of
equitable principles is. As has been mentioned above, the application of equitable
principles means to take into account all the relevant circumstances in a given
delimitation case. In order to clearly understand the application of equitable principles,
three phases found in the process of the application of equitable principles need to be
examined.

3.1. The Identification of Relevant Circumstances

The first phase of the application of equitable principles is the identification of relevant
circumstances. The 1969 North Sea Continental Shelf cases only referred to some
factors which ‘might’ be relevant because these cases did not aim to construct an actual
delimitation line. However, all international delimitation cases except for the 1969
North Sea Continental Shelf cases have tried to identify relevant circumstances in each
case. The reason is that the common goal of international delimitation disputes is to
actually draw a delimitation line.
In the 1993 Jan Mayen case, the ICJ defined the concept of relevant circumstances
as a concept which “can be described as a fact necessary to be taken into account in the
delimitation process.”39 The concept of relevant circumstances only means ‘facts’ that
need to be taken into consideration to produce an equitable result. These facts do not
necessarily mean all facts. Only facts that are deemed to be relevant in the course of the
delimitation operation can be included in the category of relevant circumstances.

3.2. The Weighing-­up Process of Relevant Circumstances

The second stage of the application of equitable principles in maritime delimitation is
the weighing-­up process of relevant circumstances. In international case-­law regarding
the delimitation of the continental shelf, the weighing-­up process of relevant
circumstances only raised the issue of how much weight a certain relevant circumstance

Z`
I.C.J. Reports 1993, p.62, para.55.

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(such as the existence of islands) should be given on the premise that coastal geography
or objective geographical context should be accorded more weight.
Commencing from the 1984 Gulf of Maine case of the Chamber of the ICJ, the
establishment of a Single Maritime Boundary (hereinafter called “SMB”) has been
generally carried out in maritime delimitation. However, the 1984 Gulf of Maine case,
the 1985 Guinea/Guinea-­Bissau case and the 1992 Saint Pierre and Miquelon case did
not take on a different aspect in comparison with the previous cases which had only
dealt with the delimitation of the continental shelf. The reason for this is that these cases
did not consider circumstances other than the circumstances which are commonly
pertinent to both the continental shelf and the EEZ as relevant.40 Thus, the weighing-­up
process of relevant circumstances until the 1992 Saint Pierre and Miquelon case had
only two significant implications: (a) to grant coastal geography more weight and (b) to
open up a possibility that an ‘economic catastrophe’ could be a relevant circumstance.
However, the 1993 Jan Mayen case of the ICJ raised a different issue in the
weighing-­up process of relevant circumstances. It was questioned whether a
circumstance pertinent ‘only’ to the FZ between the continental shelf and the FZ could
be a relevant circumstance in the course of establishing a SMB. The essence of this case
is that the access to the capelin fishery resources was given more weight in the first zone,
which was distinguishable from the fact that coastal geography had been granted more
weight in the earlier cases. Thus, the 1993 Jan Mayen case showed that an economic
factor can be regarded as a relevant circumstance, thereby holding more significance
than as one of the auxiliary criteria in the delimitation operation.
In consequence, if two or more relevant circumstances, which need to be weighed
up, are found in a certain delimitation case, the weighing-­up process of the delimitation
case leads to a certain flexibility in the result produced. The reason for this is that it is
not certain how much weight a relevant circumstance would be given. What is more, it
is also flexible how an economic factor other than coastal geography would be assessed.

3.3. The Indication and Application of Practical Methods

The third stage of the application of equitable principles is the indication and

[W
I.C.J. Reports 1984, pp.326-­327, paras.192-­195.

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application of practical methods or, more precisely, the application of practical methods
indicated by relevant circumstances. Except for the 1969 North Sea Continental Shelf
cases, all international delimitation cases should actually construct the delimitation line
of each case. In order to draw the final delimitation line, relevant circumstances are
identified and then weighed up. Practical methods are then indicated through the
identification and weighing-­up of relevant circumstances and applied to the case at hand.

4. The Meaning of Flexibility

Simply put, the flexibility of rules in the context of maritime delimitation is a concept
used to indicate the flexibility of ‘result.’ Although the delimitation process is
predictable, the result then obtained through the application of the ‘refined’ Equitable
Principles-­Relevant Circumstances rule governing maritime delimitation is not
predictable. The mandatory use of the equidistance method had been challenged for two
reasons, as will be described below, and, as a result, the predictability of result in
maritime delimitation -­ which should have been guaranteed by the obligatory character
of the equidistance method -­ was not achieved.
The first reason preventing predictability is that any method other than the
equidistance method can be employed according to the reasoning of the 1969 North Sea
Continental Shelf cases.41 It can be said that there is a need for flexibility with regard to
maritime delimitation because international courts and tribunals have failed to derive a
particular method on the basis of entitlement (for example, natural prolongation or the
criterion of distance).42 Furthermore, the 1993 Jan Mayen case accepted that there is an
‘area of overlapping potential entitlement.’43 It follows that the flexibility of result can
be pursued in the delimitation of maritime boundaries in the sense that there is the
possibility of a sharing-­out process with regard to an equitable result.44
The second reason is that, as the 1977 Anglo-­French Continental Shelf case declared,
special (or relevant) circumstances may qualify the equidistance method even though

[X
I.C.J. Reports 1969, pp.46-­47, para.85.
[Y
Hugh Thirlway, “The Law and Procedure of the International Court of Justice (Part Five),” BYIL, Issue
64 (1993), p.31.
[Z
I.C.J. Reports 1993, p.47, para.19.
[[
Thirlway, supra note 42, pp.35-­36.

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the employment of the equidistance method may be obligatory.45 Thus, predictability -­

as the very notion that lies behind the equidistance method -­ was undermined by the
flexibility of result, at which the two rules relating to maritime delimitation aimed.
The concept of the flexibility of result can be explained in three ways. Firstly, in the
sense that the result would be considered as equitable unless the provisional result
(achieved through the drawing of the provisional equidistance line and the identification
and weighing-­up of relevant circumstances) proves inequitable, all results which remain
within some limits can be equitable. For example, even if the ratio between the relevant
areas of two States is either 49:51 or 51:49 on the assumption that each State has the
same length of relevant coastline, both ratios can be equitable. Similarly, in the 2007
Maritime Delimitation (Guyana/Suriname) case, the ratio of the relevant areas (Guyana
51%: Suriname 49%) was considered as equitable in relation to the ratio of the coastal
frontages (Guyana 54%: Suriname 46%).46 In other words, the term, equitable does not
mean mathematical. How can the equitable limits of the provisional result be
determined? At this moment, the ‘disproportionality test’ can be invoked.47 According
to the judicial and arbitral case law, a provisional result finally becomes an equitable
result unless it is disproportionate. Therefore, it should not be overlooked that the
discretion of international courts and tribunals can be exercised with regard to the
disproportionality test.48
Secondly, on the premise that the provisional line can be adjusted, the end result of
maritime delimitation cannot be predicted. Depending on which circumstances are
relevant or how much weight the relevant circumstances are given, the final result
would be determined.
Thirdly, the concept of flexibility can be discussed with respect to the contents
(elements) of an equitable result. If a result in conformity with the contents (elements)
of an equitable result is achieved, the result can be considered as equitable. Since the
contents (elements) of an equitable result in a certain delimitation case are not
predictable on a case-­by-­case basis, the flexibility of result can be supported. For

[\
The Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern
Ireland, and the French Republic (Geneva, 30 June 1977), UNRIAA, Vol.XVIII, pp.45-­46, para.70.
[]
Award of the Arbitral Tribunal (The Hague, 17 September 2007), p.127, para.392.
[^
See I.C.J. Reports 2009, pp.129-­130, paras.210-­216.
[_
I.C.J. Reports 2009, p.129, para.213.

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Third Year PhD Presentation Series Ki Beom Lee

example, whilst non-­encroachment on natural prolongation can be the most important

content (element) of an equitable result in a delimitation case, proportionality can be the
most decisive one in another delimitation case.

III. Original Contribution to Public International Law

My thesis demonstrates new knowledge for public international law in three ways.

Firstly, as the result of an analysis of the Equidistance-­Special Circumstances rule

and the Equitable Principles-­Relevant Circumstances rule, it is submitted that these two
rules were assimilated into the ‘refined’ Equitable Principles-­Relevant Circumstances
rule.
Secondly, it is submitted that the rules governing maritime delimitation, unlike other
rules of international law, pursue the flexibility of result because equitable principles are
applied.
Thirdly, since my thesis discovers several contents (elements) of an equitable result
and it does not discover any priority order among them, it is submitted that the
achievement of an equitable result is flexible on a case-­by-­case basis.

Thank you very much for reading this paper!

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