Volume VIII - Annexes 186-197
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Annex 186

B. H. Oxman, “International Maritime Boundaries: Political, Strategic and Historical

Considerations”, The University of Miami Inter-American Law Review, 1994/1995

243

INTERNATIONAL MARITIME

BOUNDARIES: POLITICAL, STRATEGIC,

AND HISTORICAL CONSIDERATIONS

Bernard H. Oxman*

I. Introduction

A. Substantial Activities Being Conducted

B. Desire to Stimulate Uses

C. No Significant Activity or Interest

II. Political Factors

A. Introduction

B. Related Accommodations

C. Effect of Political Factors

D. Legal Factors

E. Effect on Third States

F. Sovereignty Disputes

III. Strategic Factors

A. Introduction

* Professor his A.B. and J.Law Division General; Affairs at the and Conference on the Law of the Sea. This article was originally published in 1993

and is reproduced with permission from International Maritime Boundaries, published

by the American Society of International Law.

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244 INTER-AMERICAN LAW REVIEW [Vol. 26:2

B. Types of Security Concerns

C. Exclusionary Interest

D. Access to and from the Open Sea

E. Enclavement

F. Specific Clauses Protecting Navigation

IV. Historical Factors

A Introduction

B. Land Boundaries

1. Rivers Flowing into the Sea

2. Direction of the Land Boundary

3. Lines at Sea

C. Prior Maritime Boundaries

D. Informal or De Facto Lines

E. Unilateral Claims

F. Prior Seabed Concessions

G. Traditional Fisheries

V. Conclusion

I. Introduction

Why do states seek to agree on maritime boundaries? Three

typical situations might be distinguished in this regard:

* substantial activities subject to coastal state jurisdiction are

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1994-95] INTERNATIONAL MARITIME BOUNDARIES 245

being conducted or are likely to be conducted in an area of

actual or potential dispute;

* one or both states wish to stimulate uses, particularly fixed

uses, of the area in question;

* there is no significant activity or interest in the area requiring

a boundary.

A. Substantial Activities Being Conducted

The first situation arises where substantial activities subject

to coastal state jurisdiction are being conducted or are likely to

be conducted in an area of actual or potential dispute. In this

case, if either or both states attempt to enforce their jurisdiction,

particularly against each other's nationals or licensees, there is

a risk of serious escalation of the dispute. The consequences

might include a decline in useful economic activity, inability to

apply meaningful environmental or economic regulations, political

animosity extending beyond those persons whose livelihoods

are affected, private violence, or demands for escort with the

attendant risk of direct confrontations between the armed forces

of the two states.

The transfer of control over vast high seas fisheries to coastal

states by virtue of extensions of fisheries jurisdiction to 200

nautical miles presents the typical case. Once jurisdiction is

extended, both coastal and distant-water fishermen who visited

the area yesterday (and perhaps many yesterdays) need to know

where they may fish tomorrow. The basic choices governments

have for avoiding confrontation arising from overlapping claims

are explicit or tacit agreement on a permanent or interim boundary,

explicit or tacit joint management within a defined area,

explicit or tacit agreement on mutual restraint with respect to

the exercise of jurisdiction over at least each other's nationals

within a defined area, or unreciprocated unilateral restraint.1

This probably explains the reasons for a significant number

of delimitation agreements concluded after one or both states

extended jurisdiction over fisheries to 200 miles, in most cases

1. Absent express or tacit agreement on geographic limits roughly defining the

disputed area, the "defined area" for joint management or mutual restraint might

encompass areas extending well beyond those likely to be in dispute, potentially

embracing the full economic zones of both parties.

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246 INTER-AMERICAN LAW REVIEW [Vol. 26:2

during or following the Third United Nations Conference Law of the Sea.2 From this perspective, the delimitation can be seen as a response to a need to agree on something

and an inability or unwillingness to rely on restraint or arrangements at least over the long term.

In almost all cases, the agreement also reflects a preference

for a unilateral rather than joint management regime in principle,

notwithstanding the practical need for joint arrangements conserve and manage migrating fish stocks and transboundary

ecosystems and the probable transboundary effort patterns fishermen. The overwhelming majority of states has responded

to the fisheries problem with defined geographic boundaries. state appears to have entrusted a court or arbitral tribunal delimitation dispute with the authority to impose biologically

and economically inspired fisheries management and allocation

arrangements as part of a boundary regime in lieu of or in to a fixed boundary.

This suggests the continuing influence of the dominant

political and legal approach to formal accommodation of competing claims to use and control on land: geographic with fixed, preferably precisely defined, geographic boundaries.

To put it differently, while the extension of coastal jurisdiction over fisheries places a mobile resource exploited mobile vessels under the potential control of more than state, the choice of a geographic boundary as the preferred means for accommodating and partitioning the respective

interests, even where that boundary divides single stocks, and effort patterns, may well reflect the dominance political factors and legal habits over ostensibly dominant and economic concerns.3

2. United Nations Convention on the Law of the Sea, opened for signature

Dec. 10, 1982, U.N. Doc. A/CONF.62/122, 21 I.L.M. 1261 [hereinafter U.N. Convention

on the Law of the Sea]. For example, Mexico wished to settle its maritime

boundary with Cuba prior to the effective date of its decree establishing an exclusive

economic zone that extended its fisheries jurisdiction to 200 miles. See Agreement

Concerning the Delimitation of Sea Space, July 26, 1976, Cuba-Mex., Limits in the

Seas, No. 104 (1985). The relatively rapid agreement between the United States and

Cuba may be due in part to the fact that a dispute over fisheries enforcement could

have been quite nasty, particularly if it involved Cuban exiles residing in Florida.

See Maritime Boundary Agreement, Dec. 16, 1977, U.S.-Cuba, S. Exec. Doc. H., 96th

Cong., 1st Sess. 1 (1979) [hereinafter U.S.-Cuba Maritime Agreement].

3. The history of the Gulf of Maine adjudication is instructive. Two agree-

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1994-95] INTERNATIONAL MARITIME BOUNDARIES 247

Apologists for this system may argue that after, or at least

in connection with, agreement on the boundary it becomes easier

to address the problem of mutual cooperation in management in

a formal manner. They might point to the Australia-Papua New

Guinea agreement with respect to fisheries.4 They might also

point to the practice of arriving at unitization agreements where

a fluid nonliving resource such as an oil or gas deposit is traversed

by a political boundary or concession limit.

B. Desire to Stimulate Uses

The second situation prompting a delimitation agreement

arises where one or both states wish to stimulate uses, particularly

fixed uses, of the area in question. The classic example

would be exploration and exploitation of the continental shelf for

oil and gas, preceded perhaps by prospecting or scientific research.

The organization of the oil and gas industry generally

assumes an exclusive legal right to extract the resources of an

area with respect to which major site-specific investments are to

be made.5 A dispute between neighboring states over the area

casts doubt on that right.

As compared with fishing, exploitation of seabed hydrocarbons

is a relatively recent development. By the middle of the

Twentieth century, virtually all of the world's seabed hydrocarbons

were still unexplored and unexploited. There was plenty of

room for the new industry outside boundary regions. The rapid

emulation by other states of the Truman Proclamation's claim to

the continental shelf did not pose an immediate practical need

ments were presented to the United States Senate. One submitted the question of a

single maritime boundary to a Chamber of the International Court of Justice. The

second dealt with fisheries, moderating the effect of an adjudicated boundary on the

fishing interests of the parties. The Senate approved the first but not the second

agreement. The first agreement was not amended to permit the Chamber to impose

measures to moderate the effect of the boundary on fisheries' interests and the parties

did not commit themselves to do so before the Chamber. However, Canada described

the general bilateral fisheries management relationship between the parties

in glowing terms. It should surprise no one that the line drawn by the Chamber

appears in effect to be sensitive to certain fisheries' allocation problems.

4. Treaty Concerning Sovereignty and Maritime Boundaries in the Area

Known as Torres Strait, Dec. 18, 1978, Austl.-Papua N.G., 1978 Austl. T.S. No. 4

[hereinafter Australia-Papua New Guinea Treaty].

5. Indeed, it would seem that this need for exclusivity was a major driving

force behind the formulation of the legal doctrine of the continental shelf.

6. Proclamation No. 2667, 10 Fed. Reg. 12,303 (1945).

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248 INTER-AMERICAN LAW REVIEW [Vol. 26:2

for delimitation agreements in most areas. Not surprisingly, need was first perceived in oil-rich shallow semi-enclosed such as the Persian Gulf.

While the lure of potential seabed riches has a significant

political impact on governments, it would appear that potential

boundary disputes with respect to the seabed are more manageable

than fisheries disputes, and pose less of a political risk of

escalation. Governments that wish to avoid provoking their

neighbors may refrain from taking affirmative actions necessary

to authorize oil and gas activities, or may make them subject to

future boundary arrangements.7 Legal uncertainty will itself

have some restraining effect on the oil and gas investor, typically

a transnational company with substantial alternatives for investment.

Put simply, in the case of oil and gas, it will usually take

some affirmative governmental action to trigger an escalation.

In the case of fisheries, the fishermen may well force the issue.

This is particularly so because those with the fewest alternative

economic options are likely to be the coastal fishermen of the

states concerned and the coastal communities they help support.

This is not to suggest that governments are unmoved by the

risk of an escalating dispute in seeking to agree on seabed

boundaries in areas of potential economic interest. The fear of

an unfavorable status quo and the desire to achieve a favorable

status quo are omnipresent in politics and diplomacy. Governments

are under constant pressure to take potentially provocative

actions designed to reinforce their claims. Lawyers trained

in the influence of history and possession upon legal rights and

in doctrines of estoppel may themselves add to this pressure.

Taken together, the opinions of the Court in the Eastern Greenland?

Temple of Preah Vihearfand Tunisia-Libya Continental

7. In theory, the coastal state's rights with respect to the continental shelf

including commercial prospecting and scientific research should accelerate the pressure

for reaching a boundary agreement. These activities, however, are conducted

from ships over broad areas and generally do not require economic exclusivity. To

some degree, satellite data obviates the need for on-site observation. Thus, either

neglect or mutual restraint can postpone the pressure to agree on precise delimitation.

8. Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (Ser. A/B)

No. 53 (April 5).

9. Concerning the Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J. 6

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Shelf0 cases may have some unforeseen, arguably unjustified,

but nevertheless unsettling effects in this regard.

The argument for a fixed boundary as opposed to a joint

management arrangement may be stronger in the case of fixed

uses such as oil and gas development than in the case of fisheries.

The resource is not mobile. The exploitation activity is not

mobile. Judge Jessup's observation in the North Sea Continental

Shelf cases11 that the real issue in continental shelf delimitation

is allocation of valuable resource deposits seems not to have

stimulated very much interest in joint management regimes. It

is also not clear that the imposition of a direct joint management

system on a disputed field or resource deposit is the best

way to stimulate new investment or manage the resource. Some

joint arrangements provide for geographic division of management

authority between the states concerned.

The environmental effects of oil and gas development, however,

are not necessarily localized. Pollution in a boundary region

may affect several coastal states. While the United States

made some arguments in this regard in support of its position

concerning the location of the maritime boundary in the Gulf of

Maine,12 as in the case of fisheries there appears as yet to be

no significant tendency to deviate for environmental reasons

from the political tradition of a fixed boundary, except perhaps

in the unusually sophisticated agreement between Australia and

Papua New Guinea.13

C. No Significant Activity or Interest

The third situation is perhaps the most intriguing. It arises

when governments seek to agree on a maritime boundary despite

the absence of significant activity or interest in the region

requiring a boundary.

(June 15).

10. Concerning the Continental Shelf (Tunis, v. Libyan Arab Jamahiriya), 1982

I.C.J. 18 (June 24) [hereinafter Tunisia-Libya Continental Shelf Case].

11. North Sea Continental Shelf (F.R.G. v. Den.), 1969 I.C.J. 3 (separate opinion

of Jessup, J.); North Sea Continental Shelf (F.R.G. v. Neth.), 1969 I.C.J. 3 (separate

opinion of Jessup, J.) [hereinafter North Sea Continental Shelf Cases].

12. Concerning Delimitation of the Maritime Boundary in the Gulf of Maine

Area, Oct. 12, 1984, 23 I.L.M. 1197.

13. See supra note 4, at 4.

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250 INTER-AMERICAN LAW REVIEW [Vol. 26:2

In this regard one might bear in mind that, with the notable

exception of areas where the land boundary divides a navigable

river at its mouth or an otherwise important navigation channel

or route is involved, navigation and overflight are activities do not normally require a precise determination of which has jurisdiction in a particular area, especially when that area beyond the territorial sea. Freedom of navigation and overflight

beyond twelve miles from the coast is generally respected. within the territorial sea, ships of all states enjoy a right innocent passage. Ships and aircraft are frequently able to disputed boundary regions close to shore. It would appear extended coastal state jurisdiction over pollution from ships sea is too new (and the potential source of pollution too transitory)

to generate much pressure for a maritime boundary for regulation purposes.

If there is no significant activity requiring a boundary, do governments negotiate boundaries in such circumstances?

A possible answer can be found in the desire to avoid potential

disputes in the future where there are now none.14 unclear whether this objective, in and of itself, often explains

the behavior of governments. It is nevertheless likely to influence

lawyers, and lawyers are likely to influence maritime

boundary policy.

There may also be something special about boundaries that

strengthens the desire to settle them even in the absence of a

significant problem. Biologists might point out that some other

mammals mark their territory, and that this marking has the

effect of controlling disputes. Scope of jurisdiction lies at the

heart of administrative law. Bureaucracies are preoccupied with

jurisdictional limits. There is an almost palpable desire to demonstrate

clearly (in this case, on a map) where power and responsibility

do, and do not, exist.

Thus, it is not surprising to discover that some governments

have embarked on a general program for the purpose of settling

maritime boundaries in areas of extended maritime jurisdiction.

14. Canada and Denmark are said to have been motivated by the desire to

avoid future disputes in a largely unsettled area where Greenland faces the Canadian

Arctic. See Agreement Relating to the Delimitation of the Continental Shelf between

Greenland and Canada, Mar. 13, 1974, Den.-Can., 950 U.N.T.S. 147.

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Such a program is most evident in the case of states that must

negotiate boundaries with a significant number of other states.

Colombia, France, Indonesia, the United Kingdom, and the United

States are among the examples.

When one examines these examples, one is struck by the

amount of activity related to islands and dependencies located at

some considerable distance from the continental mainland or

main islands. The United States has concluded a substantial

number of maritime boundary agreements with respect to its islands

in the Caribbean Sea and the Pacific Ocean, but has yet to

agree on three of its four extended maritime boundaries with

Canada or its boundary with the Bahamas. Colombia's boundary

dispute with Venezuela remains unresolved.

The most obvious explanation is that it is easiest to reach

agreement in the case of small islands surrounded by the deep

waters of the Caribbean Sea or the Pacific Ocean where the

boundary regions are unlikely to contain hydrocarbons or localized

fisheries.15 While the interest of small Pacific island states

in regulating foreign tuna fleets may explain some of their interest

in maritime boundaries, the highly migratory patterns of

tuna greatly reduce the significance of the location of any particular

boundary. There is little to inspire attempts to deviate

significantly from equidistance in areas between small islands of

comparable size where few if any resources are at stake.

There may however be other political factors at work. One

possible implication of a maritime boundary agreement is recognition

of the right of the state party to the agreement to conclude

the agreement on behalf of the land territory from which

the maritime jurisdiction extends.16 The studies of Colombia's

15. Not much is known about commercial concentrations of high grade manganese

modules in most places, not to mention subsurface hard mineral deposits. In

light of factors such as alternative sources of supply, market demand and cost of

extraction, their present economic value, if any, is not regarded as great.

16. Delimitation negotiations between Australia and the Solomon Islands began

within three months of Solomon independence. See Agreement Establishing Certain

Sea and Sea-bed Boundaries, Sept. 13, 1988, Austl.-Solom. Is., 12 LOS Bull. 19

(1988). The delimitation agreement between Bahrain and Iran was concluded shortly

after Iran abandoned its claim to Bahrain. See Agreement Concerning Delimitation

of the Continental Shelf, June 17, 1971, Iran-Bahr., 826 U.N.T.S. 227. The boundary

studies dealing with the Baltic Sea and the former German Democratic Republic

suggest that the GDR may have seen maritime boundary agreements as reinforcing

its position as a sovereign independent state. Especially in light of the long period

of non-recognition of the GDR by the Federal Republic of Germany and other

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252 INTER-AMERICAN LAW REVIEW [Vol. 26:2

attempts to negotiate maritime boundaries in the Western suggest a close link between these efforts and

Colombia's dispute with Nicaragua over sovereignty with respect

to the islands in question. One assumes Indonesia was not unaware

of the political implications of a delimitation agreement

with Australia dealing with the so-called Timor Gap in light of

the controversy surrounding Indonesia's annexation of the former

Portuguese colony.17

It is possible that extra-regional metropolitan powers are

particularly interested in reinforcing the recognition of their

territorial role in a region even in the absence of a specific territorial

dispute,18 bearing in mind that a potential boundary dispute

in the future might be more difficult to resolve if the issue

of the right to represent the territory in question was raised in

that context. Conversely, a state may wish to provide a dependency

with established maritime boundaries as a prelude to

independence in order to protect the interests of the inhabitants

and minimize foreign policy problems for the newly independent

state.19

Western states prior to the pursuit of the so-called Ostpolitik of the Federal Republic

in the early 1970s. The delimitation agreement between the GDR and the FRG is

considered a direct result of detente between the parties. See Protocol Note between

the Federal Republic of Germany and the German Democratic Republic Concerning

the Boundary in Lubeck Bay, Oct. 1, 1974, F.R.G.-G.D.R., G Bl. II, 438 (1974)

(G.D.R.) [hereinafter F.R.G.-G.D.R. Protocol Note].

17. These considerations apparently were not sufficient to persuade Indonesia to

yield to Australia, in respect of Timor, as much as it had yielded geographically

years earlier in respect of other areas. However, it may explain Indonesian willingness

to accept a joint management arrangement as the basis of the settlement on

the Australian side of the Timor Trough. Sec Treaty on Zone of Cooperation in an

Area between the Indonesian Province of East Timor and Northern Australia, Dec.

11, 1989, Indon.-Austl., 29 I.L.M. 475. On the other hand, Indonesia yielded even

less in geographic terms in the provisional fisheries delimitation agreement in which

Timor was not as prominent an issue. See Memorandum of Understanding Concerning

the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement,

Oct. 29, 1981, Austl.-Indon. (on file with Dep't of Foreign Affairs and

Trade, Canberra, Australia) [hereinafter Provisional Fisheries Surveillance].

18. It is curious that the text of the boundary agreement between France and

Saint Lucia does not refer to Martinique, the French island concerned. See Delimitation

Convention, Mar. 4, 1981, Fr.-St. Lucia, I Can. Annex. 675 (1983).

19. For example, the United Kingdom sought to establish offshore boundaries

among the Trucial States while it was still responsible for their foreign affairs.

Sharjah and Umm al Qaywayn accepted. See Seabed Boundary Agreement, 1964,

Sharjah-Umm al Qaywayn, I Can. Annex 99 (1983); see also Orders in Council, Sept.

11, 1958, Sarawak-North Boreo-Brunei, U.K Stat. Inst. (Nos. 1517-18), describing a

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In a similar vein, one possible way to obtain or enhance

recognition of baselines is to enter into a delimitation agreement

based on equidistance in which the boundary is clearly measured

from those baselines.20 This factor might influence

archipelagic states such as Indonesia.21 Although the difference

is not always easy to establish, this situation should be distinguished

from one in which the primary purpose of the baselines

is to influence the maritime boundary negotiations.

A related factor is the desire to "consolidate" coastal state

jurisdiction newly acquired under international law.22 This ap-

1958 United Kingdom line drawn with respect to North Borneo and Sarawak and

Brunei. Australia, on behalf of Papua New Guinea, settled the land boundary and

completed a missing segment of the maritime boundary with Indonesia in contemplation

of New Guinea's scheduled independence in 1975. See Agreements between Australia

and Indonesia Concerning Certain Boundaries between Papua New Guinea and

Indonesia, Feb. 12, 1973, Papua N.G.-Indon., 975 U.N.T.S. 4 [hereinafter Australia-

Indonesia Certain Boundaries Agreements].

20. As a strictly legal matter, absent more specific references in the agreement,

an equidistant line measured from a baseline does not necessarily imply recognition

of the baseline as such, but merely acknowledgement that the claimed baseline represents

an appropriate point of departure for applying equidistance principles (for example,

a construction line representing the general direction of the coast). Of course,

regardless of the effect of the claim on the boundary, a state may obtain recognition

of its claim in connection with the boundary agreement. Panama obtained recognition

of its claim that the Gulf of Panama is historic waters in its boundary

agreements with Colombia and Costa Rica; only in the former case did the baseline

affect the delimitation. See Treaty on the Delimitation of Marine and Submarine

Areas and Associated Matters, Nov. 20, 1976, Pan.-Colom., I Can. Annex. 417 (1983)

[hereinafter Panama-Colombia Treaty]; see also Agreement Relating to the Delimitation

of their Marine and Submarine Areas in the Pacific Ocean and to their Maritime

Cooperation, Apr. 6, 1984, Colom.-Costa Rica, Diario Oficial de Colom. (June

18, 1985). There is speculation that North Korea may have obtained Soviet recognition

of its unusually long 300-mile baseline in exchange for a maritime boundary

favorable to the Soviet Union. See Agreement on the Delimitation of the Soviet-Korean

National Border, Apr. 17, 1985, U.S.S.R.-Korea [hereinafter Soviet-Korea National

Border Agreement], reprinted in INTERNATIONAL MARITIME BOUNDARIES 1135 (Jonathan

I. Charney & Lewis M. Alexander eds., 1993).

21. It is interesting that the maritime boundary between Indonesia and Singapore,

which generally follows the deep draught tanker route, moves within the

Indonesia archipelagic baselines at one point. See Agreement Stipulating the Territorial

Sea Boundary Lines in the Strait of Singapore, May 25, 1973, Indon.-Sing.,

Limits in the Seas, No. 60 (1974) [hereinafter Indonesia-Singapore Sea Boundary

Agreement].

22. In some sense, it would appear to reflect a feeling that the existence of the

close is tentative or inchoate until it is actually enclosed and precisely separated

from the neighboring close. One way to identify a thing is to describe its perimeter

(a circle for example). Perhaps looming in the background is Grotius' (in this context

disconcerting) observation that because the vagrant waters of the sea cannot be

enclosed they are necessarily free. The U.N. Conference on the Law of the Sea did

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254 INTER-AMERICAN LAW REVIEW [Vol. 26:2

pears to be particularly true in enclosed and semi-enclosed where the peaceful enjoyment of extended maritime jurisdiction

is especially dependent upon arrangements with one's 23 The series of British and other delimitation agreements

in the North Sea followed immediately upon the entry into force

of the Continental Shelf Convention on 10 June 1964, designed

in part to consolidate the conventional regime in the North

Sea.24 A similar process occurred in the Caribbean Sea respect to the exclusive economic zone. A desire to consolidate

200-nautical-mile limits is identified as one reason for the delimitation

agreement between Denmark and Norway.25

The decision to conclude a maritime boundary agreement

may be influenced by political factors extraneous to the boundary

itself. The objective need for agreement, particularly where

relations are already strained, may become a convenient basis

for governments to take tentative steps toward improving their

relations. One notes, for example, that the United States negotiated

a maritime boundary agreement with Cuba at a time when

broader attempts were being made to improve bilateral relations.

26

not pursue a United States proposal to establish coastal state jurisdiction over fishing

for stocks that reside in coastal areas beyond the territorial sea without fixing

distance limits.

23. It is interesting to note that many states, while implementing the continental

shelf doctrine and delimiting their respective continental shelves in the area,

have thus far refrained from implementing exclusive economic zones or 200-mile

fisheries zones in the Mediterranean Sea, even when the same states have asserted

such jurisdiction outside the Mediterranean Sea.

24. This point is made in a number of North Sea boundary studies, especially

Netherlands-United Kingdom (1965). See Agreement Relating to the Delimitation of

the Continental Shelf under the North Sea, Together with Amending Protocol, Oct.

6, 1965, Neth.-U.K, 595 U.N.T.S. 105. For the states concerned, the consolidation of

the regime of the Continental Shelf Convention in the North Sea included not only

the principles and rules of coastal state jurisdiction, but the delimitation rules set

forth in Article 6. Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T.

471, T.I.A.S. No. 5578, 499 U.N.T.S. 311 [hereinafter Convention on the Continental

Shelf].

25. See Agreement Concerning the Delimitation of the Continental Shelf in the

North Sea/Norwegian Sea and Establishing the Boundary between the Faroes Fishing

Zone and the Norwegian Economic Zone, June 15, 1979, Den.-Nor., I Can. Annex

603 (1983).

26. Because of strained political relations between the parties, the U.S. Senate

has yet to approve the treaty. Provisional application has been renewed periodically

by the parties. See U.S.-Cuba Maritime Agreement, supra note 2.

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II. Political Factors

A. Introduction

Four important political decisions can be identified in connection

with maritime boundaries: the decision to negotiate, the

decision to propose a particular boundary,27 the decision to

make concessions with a view to reaching agreement,28 and the

decision to agree on a particular boundary. Even the decision to

respect a tribunal's legally binding determination of a boundary

is political.

The study of factors potentially influencing the location of

maritime boundaries is a study of the influence of these different

factors on the ultimate political decisions of governments.

Unless it influences the decisions of those with political authority,

any given factor is irrelevant to a particular boundary. The

"objective" importance of any given factor - assuming such a

thing could be measured - does not necessarily explain its political

impact.29

When a tribunal is asked to decide a dispute regarding a

maritime boundary under international law, the tribunal will

limit itself to examining factors it regards as legally relevant to

27. Some states have announced a public position related to the location of the

boundary prior to negotiation, whether for tactical or political reasons or because of

the need to define some (temporary) geographic limit on domestic regulatory or enforcement

actions.

28. The temporal relationship among the first three decisions involves complex

questions of subjective intent, information regarding the other side's attitudes, management

of domestic political pressures, and negotiating strategy and style. Some

seasoned negotiators would argue that, once sufficient information is available regarding

the other party's interests, the best approach to reaching agreement is to

collapse the second and third decisions into one "reasonable" position around which

one is prepared to negotiate at the margins but from which one is not prepared to

retreat in principle. They would presumably regard as unfortunate the possible implication

in the North Sea Continental Shelf cases that this approach might not

satisfy the duty to negotiate in good faith. The International Court of Justice noted

that the parties "are under an obligation so to conduct themselves that the negotiations

are meaningful, which will not be the case when either of them insists upon

its own position without contemplating any modification of it." North Sea Continental

Shelf Cases, supra note 11, 11 85.

29. For example, the ocean policies of a major industrialized maritime state

with global economic and strategic interests like the United States can be substantially

influenced by local coastal fishing industries that represent a very small proportion

of its economy.

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256 INTER-AMERICAN LAW REVIEW [Vol. 26:2

the resolution of the issues in dispute. Much has been written

about the rich and growing jurisprudence of the International

Court of Justice and other tribunals in this connection. However

flexible the articulated legal standard of "equitable principles,"

"relevant circumstances," and "equitable results" may be, there

can be no doubt that while the parties are free to take into account

virtually anything they wish in fashioning their negotiating

positions, a tribunal asked to apply international law is

more limited.

The law of maritime delimitation may require the parties to

negotiate in good faith. But it places few if any limitations on

the location of an agreed boundary or related arrangements.

Provided they agree, the parties are largely free to divide as

they wish control over areas and activities subject to their jurisdiction

under international law. They may be guided principally,

in some measure, or not at all by legal principles and legally

relevant factors a court might examine, and by a host of other

factors a tribunal might well ignore such as relative power and

wealth, the state of their relations, security and foreign policy

objectives, convenience, and concessions unrelated to the boundary

or even to maritime jurisdiction as such.30

From this perspective, it is difficult and arguably misleading

to isolate political from other factors when analyzing agreed

boundaries. Yet it would make little sense even to attempt to

replicate here what is so ably presented by other authors elsewhere

in this field of study.

This being said, it should be noted that maritime boundary

issues do not normally seem to engage the same level of political

attention as many disputes over land territory. The resultant

agreements are often viewed as economic or technical. Indeed, it

can be argued that few maritime boundary agreements are regarded

as overwhelmingly political, with the notable exception of

the agreement between Argentina and Chile.31

30. It is said that Italy settled for less than full effect for its islands in exchange

for a wider package on various political and economic questions, including

Italian fishing in exchange for one billion lire per year. See Agreement Relating to

the Delimitation of the Continental Shelf, Aug. 20, 1971, Italy-Tunis., I Can. Annex

(1983).

31. The agreement followed the Beagle Channel Arbitration, Argentina's refection

of the result, fears of armed conflict, and mediation by the Vatican. Its title is

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1994-95] INTERNATIONAL MARITIME BOUNDARIES 257

In addition to the difficulty of isolating political considerations

from other considerations affecting maritime boundaries,

one must add the difficulty of accumulating relevant data on

political factors. Virtually every boundary agreement is described,

often in its preamble, as designed to foster good relations

between the parties.32 Yet governments may be reluctant

to state publicly that for reasons of good relations they accepted

a less favorable boundary than they might otherwise have obtained.

33 Governments could almost never be expected to assert

that they received more because they had greater overall leverage

in the bilateral relationship.34

Treaty of Peace, Friendship and Maritime Delimitation. The treaty was submitted to

a plebiscite in Argentina. Agreement between the Government of Argentina and the

Government of Chile Relating to the Maritime Delimitation between Argentina and

Chile, Nov. 29, 1984, Arg.-Chile, 24 I.L.M. 1 [hereinafter Argentina-Chile Agreement].

32. It might be noted that maritime boundary lines are frequently simplified by

reducing the number of turning points, using a long line perpendicular to the general

direction of the coast, or in other ways. The primary reason is to simplify compliance

and enforcement. In order to avoid problems with inadvertent violations by

fishermen, Chile, Ecuador, and Peru agreed to permit the neighboring state's national

to fish in a ten-mile zone on either side of the maritime boundary beyond twelve

miles from the coast. Agreement between the Government of Chile and the Government

of Peru Relating to the Maritime Boundary between Chile and Peru, Aug. 18,

1952, Chile-Peru, Limits in the Seas, No. 86 (1979) [hereinafter Chile-Peru Agreement];

Agreement between the Government of Ecuador Relating to the Maritime

Boundary between Peru and Ecuador, Aug. 22, 1985, Peru-Ecuador, Limits in the

Seas, No. 88 (1979) [hereinafter Peru-Ecuador Agreement].

33. There are exceptions. The rapporteur of the France-Monaco treaty is quoted

as stating to the French Senate, "Because of the close and exceptional nature of

French-Mone'gasque relations, France has accepted provisions that the rules of international

law did not oblige it to accept." The reference was to the Mon^gasque relations,

France has accepted provisions that the rules of international law did not

oblige it to accept. The reference was to the Monegasque corridor leading out into

the Mediterranean in a shore. See Maritime Delimitation Agreement between Monaco

and France, Feb. 16, 1984, Fr.-Monaco, No. 8-3, J.O. 6 July 1985, p. 11,600 (French)

[hereinafter Monaco-France Delimitation Agreement]. Some readers of the opinions in

the North Sea Continental Shelf cases, supra note 11, and the Guinea-Guinea-Bissau

arbitration might question the statement. Award of 14 February 1985 of the Arbitration

Tribunal for the Delimitation of the Maritime Boundary between Guinea and

Guinea-Bissau, 25 I.L.M. 252 (English translation of official French text) [hereinafter

Guinea-Guinea-Bissau Award]. Senegal was no less generous to The Gambia. See

Agreement between The Gambia and the Republic of Senegal, June 4, 1975, Gam.-

Senegal, Limits in the Seas, No. 85 (1979) [hereinafter Gambia-Senegal Agreement].

Norway may have accepted a result that gave Iceland all of its 200-mile zone in

part because Iceland is highly dependent on fishing. See Agreements between Iceland

and Norway Establishing Maritime Boundaries between Iceland and Jan Mayen (1)

Agreement Concerning Fishery and Continental Shelf Questions, May 28, 1980, Ice.-

Nor., Official Gazette C9/1980 [hereinafter Iceland-Norway Agreement].

34. Two authors suggest that the relative strength of the parties was a factor

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258 INTER-AMERICAN LAW REVIEW [Vol. 26:2

B. Related Accommodations

A further analytical difficulty relates to the question of

when a factor is deemed to have influenced the location of the

boundary. The easy case is one in which the actual location of

the boundary represents the accommodation of the interest concerned,

for example where a boundary follows a navigation channel.

A more difficult problem arises when the interest of a state

is accommodated not by adjusting the position of the boundary,

but by concurrent agreement that imposes an obligation on the

other state with respect to areas on the latter's side of the

boundary.

It seems reasonable to assume that in such cases the interest

did indeed influence the location of the boundary in the

sense that agreement might not have been reached on such a

boundary absent the related accommodation. For example, a

state concerned about navigation rights in a channel that is

closer to its neighbor's coast than its own might prefer to use the

channel as the boundary, but might in some circumstances settle

for an equidistant line boundary in exchange for treaty guarantees

of free navigation. That same state presumably would resist

an equidistant line boundary absent related navigation guarantees.

The relationship between boundaries and related accommodations

is sometimes overlooked in analyses of maritime boundary

law because it does not form part of the formal jurisprudence.

The reason for this is that the International Court of

Justice and arbitral tribunals have not been asked by the parties

to fashion a broader boundary region regime that accommoin

determining the location of the line. Its perception of Indian power may have

influenced the Maldives government not to argue that Minicoy Island should be given

reduced effect. See Agreement between India and Maldives on Maritime Boundary

in the Arabian Sea and Related Matters, Dec. 28, 1976, India-Maldives, Limits in

the Seas, No. 78 (1978) [hereinafter India-Maldives Maritime Agreement]. The delimitation

line in the Bay of Biscay, more favorable to France than an equidistant

line, was concluded at a time when Spain, under Franco, may have been in a somewhat

weaker position diplomatically. See Conventions between France and Spain (1)

Concerning the Delimitation of the Territorial Sea and Contiguous Zone and (2) Concerning

the Delimitation of the Continental Shelf of the Bay of Biscay, Jan. 25,

1974, Fr.-Spain, (U.N. Legislative Series) U.N. Doc. No. ST/LEG/SER/B/19, 395

(1980) (France-Spain).

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dates their interests. Determining the location of a maritime

boundary has generally been the sole means at the disposal of

judges and arbitrators for accommodating relevant interest.35

C. Effect of Political Factors

It is often difficult to discern what, if any, effect political

considerations had on the location of an agreed maritime boundary.

36 A state's desire to maximize the areas subject to its jurisdiction

and its interest in achieving agreement on a maritime

boundary may well conflict. It stands to reason that if dispute

avoidance is a primary purpose for seeking agreement, then a

government is unlikely to maintain a position on the location of

the boundary that itself stimulates a dispute. This proposition

is, however, difficult to document from public sources.

Authors with knowledge of the factors influencing the U.S.

decision to give full effect to Aves Island in the delimitation

agreement with Venezuela point out that "as a political matter,

there was little to gain and potentially much to lose in asserting

a broader U.S. boundary interest, particularly in light of the

marginal resource interest in the area."37 One is struck by the

comment that "France was so accommodating as to allow Australia

to use Middleton Reef, a low-tide elevation 125 nautical

miles offshore, as a basepoint" for determining the location of

the equidistant line.38 One of the reasons cited for Norwegian

35. The Iceland-Norway Conciliation Commission recommended a joint development

zone with respect to the continental shelf. It should be noted that the Commission

included prominent Icelandic and Norwegian diplomats and made a unanimous

recommendation as requested. See Iceland-Norway Agreement, supra note 33,

at C9; Evensen, La Delimitation du Plateau Continental entre la Norvege et

Tlslande dans le Secteur de Jan Mayen, 27 Ann. Fr. Dr. Int. 711 (1981).

36. Political factors may sometimes influence even technical questions, such as

the issue of which chart to use to depict the agreed boundary. National prestige

may account for the fact that both Italian and Yugoslav charts were used by the

parties, giving rise to differences in numerical identification and location of points.

See Agreement between Italy and Yugoslavia Concerning the Delimitation of the

Continental Shelf between the Two Countries, Jan. 8, 1968, Italy-Yugo., Gazz. Uff.,

Supp. to No. 302 of 29 Nov. 1968 (Italy).

37. Feldman & Colson, The Maritime Boundaries of the United States, 75 AM.

J. INT'L L. 729, 747 (1981). One notes that the U.S. did more than just avoid a

fight; it negotiated a treaty giving Venezuela what it wanted, to the chagrin of some

some of Venezuela's other neighbors. Two additional factors are potentially relevant.

First, the U.S. had a general practice of giving full effect to islands in agreements

applying equidistance. Second, Venezuela concluded its agreements with the U.S. and

The Netherlands at the same time.

38. Agreement on Marine Delimitation between the Government of Australia

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260 INTER-AMERICAN LAW REVIEW [Vol. 26:2

acceptance of a full 200-mile zone for Iceland was avoidance fishing dispute over capelin.39 The boundary studies Indonesia's generally accommodating attitude toward the of its maritime boundaries with its neighbors.40 It clear whether the fact that most of the joint development falls on the Japanese side of a hypothetical equidistant line South Korea is related in some measure to historical problems

in Japanese-Korean relations.

In those situations in which the desire for agreement actual or potential interest in areas that might be a state is likely to propose a boundary primarily view to facilitating negotiation. The proposal therefore is to be one that the negotiating partner would regard as acceptable,

at least in principle.

In theory, all one need do is split the pie (that is the areas

of overlapping jurisdiction) in half. In practice, geographic of the respective coasts and their geographic relationship

to each other make delimitation a more difficult task where states are not focusing on particular resources or areas.

The case of delimitation between relatively small islands

usually presents the most notable exception. There an equidistant

line will often halve the pie quite nicely. Thus it is surprising that equidistant lines between islands have been extensively in deeper parts of the Caribbean Sea and Pacific

Ocean.

A rarer exception arises where relatively regular coasts of

adjacent states face in the same general direction. In that case,

either an equidistant line or a line perpendicular to the general

direction of the coast (in effect an equidistant line modified to

ignore coastal irregularities) will also often halve the pie quite

nicely. Given the great depths off the Pacific coast of South

America, rendering disputes over specific resources in seaward

regions less likely, and the political desire of the states conand

the Government of the French Republic, Jan. 4, 1982, Austl.-Fr., 1983 Austl.

T.S. No. 2.

39. Iceland-Norway Agreement, supra note 33.

40. See, e.g., the discussion of political strategic, and historical considerations in

the Agreement between Australia and Indonesia Establishing Certain Seabed

Boundaries, May 18, 1971, Austl.-Indon., 974 U.N.T.S. 307 (1975) [hereinafter Australia-

Indonesia Seabed Agreement].

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cerned to maintain solidarity in support of their new and controversial

claims of 200-mile zones, it is not surprising that this

general type of approach was used by Chile, Ecuador and Peru

in the 1952 Santiago Declaration, albeit in the somewhat unusual

form of parallels of latitude that are not precisely perpendicular

to the general directions of the coasts at the land frontiers.41

What this indicates is that equidistance or some simple

equivalent is likely to be used where the desire to agree on both

sides is stronger than the interest in maximizing claims, where

specific resources or areas are not a major issue, and where the

coastal characteristics are such that the resultant division of

overlapping claims seems fair. In other situations, it cannot be

asserted either that the use of equidistance necessarily reveals

the existence of a dominant political interest in reaching agreement

on the part of one or both parties or that the failure to use

equidistance necessarily represents the absence of a dominant

political interest in reaching agreement on the part of at least

one of the parties. The reason is that in those situations, the

question of fairness is more complex; equidistance may well

represent a victory for one party and a defeat for the other.

D. Legal Factors

Whatever its relative interest in achieving rapid agreement,

a government must take into account the effect of any proposals

it makes on its relations with its neighbors. Powerful states may

be loath to appear like bullies. Strong and weak alike have an

interest in credibility. Unless a state is prepared to expend unrelated

resources (whether as carrots or sticks) to obtain a favorable

maritime boundary, its proposal must be grounded in more

than unrestrained self-interest. The search for a platform of

principle will entail, at least in part, a search for a proposal that

has a plausible legal and equitable foundation.

In this context, as in many others, governments can be

expected to consult legal sources that are likely to be regarded

as authoritative or at least persuasive by both parties. Thus, to

some degree, maritime boundary agreements may be analyzed in

41. One is tempted to wonder whether the use of parallels of latitude may

have been related to the fact that the jurisdiction asserted in the declaration extended

"not less than" 200 miles from the coast. See Chile-Peru Agreement, supra note

32; Peru-Ecuador Agreement, supra note 32.

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262 INTER-AMERICAN LAW REVIEW [Vol. 26:2

terms of the chronology of major developments in the law maritime delimitation as articulated by multilateral conferences

and international tribunals.

Following the entry into force of the Continental Shelf Convention,

42 the United Kingdom and other North Sea states set

about implementing the Convention, including the delimitation

rule in Article 6. A few years later, however, in direct response

to this effort, the International Court of Justice in the North Sea

Continental Shelf cases refused to apply Article 6 to a nonparty,

and enunciated a broader set of equitable principles, with substantial

emphasis on the nature of the continental shelf as a

natural prolongation of the land territory of the coastal state.43

The impact of the Court's dictum was unmistakable.44 The

United States for the first time made clear its view that the

maritime boun dary in the Gulf of Maine should place all of

Georges Bank on the U.S. side.45 Australia was driven by the

"natural prolongation" language in the opinion to seek, and in

large measure obtain, a continental shelf boundary extending to

the deep trench off the Indonesian coast.46 The summary report

on North Europe notes that the 1969 opinion marks the turning

42. Convention on the Continental Shelf, supra note 24.

43. North Sea Continental Shelf cases, supra note 11.

44. Perhaps its most wide-ranging effect is the new alternative definition of the

continental shelf in the U.N. Convention on the Law of the Sea as the natural prolongation

of the land territory for a state extending to the outer edge of the continental

margin. U.N. Convention on the Law of the Sea, supra note 2, at 10.

45. The position taken by the U.S. in 1970 diplomatic discussions was that "a

boundary in accordance with equitable principles should follow the line of deepest

water through the Northeast Channel, which would bring all of Georges Bank under

U.S. jurisdiction." Feldman & Colson, supra note 37, at 755. For its part, Canada,

which had consistently emphasized equidistance in the Gulf of Maine, later extended

its claim to give reduced effect to Cape Cod and associated islands, relying on the

opinion in the Anglo-French arbitration. It is possible this move was a largely tactical

one related to the forthcoming litigation regarding the Gulf of Maine; it is also

possible this move was not unrelated to the dispute regarding delimitation with

respect to the French islands of St. Pierre and Miquelon off the Canadian coast.

46. The analysis of the 1972 Australia-Indonesia seabed boundary agreement

points out that not much was known about the resource potential of the seabed

areas in question at the time. See Agreement between Australia and Indonesia Establishing

Certain Seabed Boundaries in the Area of the Timor and Arafura Seas,

Oct. 9, 1972, Austl.-Indon., 974 U.N.T.S. 319 (1957) [hereinafter Australia-Indonesia

Timor and Arafura Seabed Agreement]. The study does not advert to contemporaneous

rumors that Indonesia reaped certain political benefits in connection with this

agreement.

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point from equidistance to equitable principles in the region. As

tribunals made clear in subsequent opinions, any legal presumption

in favor of equidistance, if it ever existed, was gone.

The International Court of Justice subsequently retreated

from natural prolongation in the Tunisia-Libya41 case and especially

in the Libya-Malta case.48 The provisional continental

shelf agreement between Australia and Indonesia establishing a

zone of cooperation in the so-called Timor Gap49 as well as their

provisional fisheries surveillance and enforcement arrangement50

reveal a substantial retreat from the influence of geomorphology

in the earlier continental shelf agreement.

The impact of the opinion in the Guinea-Guinea-Bissau

arbitration is not limited to Africa. A specific reaction to that

decision is noted in the study of the Colombia-Honduras delimitation.

51

The foregoing are mere illustrations of the fact that while

states are free to ignore their legal rights inter se in reaching

agreement with each other, legal sources may well influence

their claims and expectations, sometimes decisively.52

47. Tunisia-Libya Continental Shelf Case, supra note 10 .

48. Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985

I.C.J. Rep. 13 [hereinafter Libya-Malta Continental Shelf Case].

49. Treaty between Australia and Indonesia on the Zone of Cooperation in an

Area between East Timor and Northern Australia, Dec. 11, 1989, Austl.-Indon., 29

I.L.M. 469.

50. Memorandum of Understanding between Indonesia and Australia Concerning

Fisheries Surveillance and Enforcement Arrangement, Oct. 29, 1981, Austl.-Indon.

(unpublished).

51. See Maritime Delimitation Treaty, Aug. 2, 1986, Colom.-Hond., (Rep. 2-4),

reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra note 20, at 502.

52. One might compare the comments of knowledgeable American and British

foreign ministry lawyers in this regard. The former state that U.S. maritime boundary

treaties "are not agreements of maximum advantage for either side. Nor are

they driven by particular theories of international law. They are negotiated agreements

based on mutual interest and applying methodologies suitable to expressing

that interest in the particular circumstance" See Feldman & Colson, supra note 37,

at 742. The latter (Anderson) states that the Irish-United Kingdom agreement "has

been cited as a model for reaching pragmatic solutions to previously intractable

boundary disputes. Geographical and legal factors played an important part in a

successful effort to reach an equitable solution, acceptable to the respective governments

and legislatures." Agreement on the Delimitation of the Continental Shelf

between the Two Countries, Nov. 7, 1988, Ir.-U.K., U.K.T.S. No. 20 (1990) [hereinafter

Ireland-United Kingdom Agreement].

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264 INTER-AMERICAN LAW REVIEW [Vol. 26:2

E. Effect on Third States

A state faced with the negotiation of several maritime

boundaries will need to consider the effect of its approach to one

boundary on the others. Thus, for example, the United States

has demonstrated a consistent practice of giving full effect to

islands in agreements in which equidistance is used.

At the simplest level - influenced in part by debates of the

issue during the Third U.N. Conference on the Law of the Sea -

the text of delimitation agreements may expressly recite the

reliance of the parties on equitable principles53 or on equidistance.

54 Governments may regard such statements as a means

of reinforcing their position of principle with respect to a third

state; they may also be attempting to deal with arguable inconsistencies

between the result they accepted in the agreement

and the result they propose elsewhere.

In an effort to retain flexibility, some states will wish to

avoid too precise or consistent an articulation of the underlying

rules. Legal and advocacy considerations apart, it is not surprising

that while Canada, in the Gulf of Maine dispute, was adhering

fairly closely to an equidistance approach, it articulated the

underlying rules in terms of equitable principles and relevant

circumstances. At the time, other Canadian maritime boundaries

remained to be determined. France and the United States have

taken similar approaches in explaining the various equidistance

boundaries that they negotiated.

53. For example, the Dominican Republic- Venezuela agreement refers to equitable

principles, arguably reflecting Venezuela's underlying position in other contexts.

See Treaty on the Delimitation of Marine and Submarine Areas, Mar. 3, 1979, Dom.

Rep.-Venez., G.O., No. 1634, Extraordinario July 28, 1980 (Venez.) [hereinafter Dominican

Republic-Venezuela Treaty! The Turkey-U.S.S.R. agreement similarly refers

to equitable principles, presumably reflecting the underlying position of both parties

in other areas, including the Turkish position with respect to Greece in the Aegean.

See Agreement on the Delimitation of the Continental Shelf in the Black Sea, June

23, 1978, Turk.-U.S.S.R., T.C. Resmi Gazete No. 17226 (1981) (Turkey-U.S.S.R.).

54. For example, the agreement between Greece and Italy refers to the "principle

of the median line" and "mutually approved minor adjustments" thereto. Both

parties may have had other delimitations in mind where they favor equidistance and

full effect for islands. It is interesting that the agreement gives reduced effect to

some islands. See Agreement on the Delimitation of the Zones of the Continental

Shelf Belonging to Each of the Two States, May 24, 1977, Greece-Italy, Limits in

the Seas, No. 96 (1982) [hereinafter Greece-Italy Delimitation Agreement].

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Others may wish to use one or more agreements to influence

an outstanding delimitation either directly or indirectly.

The classic example of this approach is the equidistant line

drawn by Denmark and the Netherlands as part of a more general

implementation of the equidistance principle in Article 6 of

the Convention on the Continental Shelf in the North Sea that

included, in addition to these two states, Norway and the United

Kingdom. It represented not only an attempt to reinforce the use

of equidistance in the North Sea but, by extending the line to a

point equidistant from their coasts and the German coast, an

effort to apply equidistance directly to their respective boundaries

with Germany. Similarly, the Denmark-U.K. and Netherlands-

U.K. equidistant lines in practice met at a tri-junction

point, a result inconsistent (except perhaps in mathematical

theory) with Germany's view that its continental shelf extended

to the middle of the North Sea.

The fact that this effort failed has not necessarily deterred

others. In reaching their continental shelf delimitation agreement

with each other, Ireland and the United Kingdom "had

common cause in opposing claims to part of the area by third

States," presumably Denmark and Iceland.55 The equidistant

line between Sicily and Tunisia was drawn as if Malta did not

exist.56

Agreements delimiting areas claimed by third states are

not, however, common. There is ample evidence of restraint.

Numerous bilaterally drawn boundaries are terminated short of

the tri-junction point with a third state even in the absence of

any known dispute.57

In both the Tunisia I Libya58 and Libya I MaZfo59cases, the

Court took care to protect the interests of a concerned third

state that, in each case, was unsuccessful in its efforts to inter-

55. Ireland-United Kingdom Agreement, supra note 52, at 20.

56. Agreement of the Delimitation of the Continental Shelf between Two Countries,

Aug. 20, 1971, Italy-Tunis, Limits in the Seas, No. 89 (1980). The boundary

terminates in the southeast at a point roughly equidistant between Malta and the

Italian island of Lampedusa; the latter was accorded only a thirteen-mile zone as

against Tunisia.

57. An example is the Greece-Italy boundary, which stops short of the tri-junction

points with Albania in the north and Libya in the south. Greece-Italy Delimitation

Agreement, supra note 54.

58. Tunisia-Libya Continental Shelf case, supra note 10.

59. Libya-Malta Continental Shelf Case, supra note 48.

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266 INTER-AMERICAN LAW REVIEW [Vol. 26:2

vene. In the first case, the Court did not specify the northeast

terminus of the final segment of the boundary running in direction of Malta. In the second case, the Court did not specify

a boundary between the parties in areas claimed by Italy.

Efforts at indirectly influencing the boundaries with third

states nevertheless persist:

* the boundary studies suggest that Venezuela embarked strategy of entering into delimitation agreements giving

Aves Island full, or substantial effect in hopes of influencing

other governments to do the same, choosing to conclude initial agreements with The Netherlands and the United

States simultaneously,60 and with France two years laterf

* Colombia appears to have attempted to structure its delimitation

agreements with Costa Rica,62 Honduras63 and Panama64

to be consistent with its position with regard to the

use of the 82 degrees W meridian under a 1930 exchange of

notes in connection with its dispute with Nicaragua;

* Denmark and Sweden apparently felt that agreeing to give

full effect to Bornholm in their agreement with each other

would strengthen the Danish position vis-a-vis the GDR and

Poland and the Swedish position in support of full effect for

Gotland vis-a-vis Poland and the U.S.S.R.;65

60. Delimitation Treaty between Netherlands and Venezuela, Dec. 15, 1978,

Neth.-Venez., Tractenblad van Het Koninkrijk der Nederlanden, Jaargang 1978, No.

61.

61. Delimitation Treaty between Venezuela and France, July 17, 1980, Fr.-

Venez., G.O., No. 3026, Jan. 28, 1983 (Venez.).

62. Treaty on the Delimitation of Marine and submarine Areas and Maritime

Cooperation, Mar. 17, 1977, Colom.-Costa Rica, Limits in the Seas, No. 79 (1978).

63. Maritime Delimitation Treaty, Aug. 2, 1986, Colom.-Hond., U.N., Oficina de

Oceanicos y del Derecho del Mar. Boletin No. 10, (Nov. 1987).

64. Treaty on the Delimitation of Marine and Submarine Areas, Nov. 20, 1976,

Colom.-Pan., Limits in the Seas, No. 79 (1978). Colombia's recognition of Panama's

historic claim to the Gulf of Panama was apparently phrased not only to protect its

nonrecognition of Venezuela's claim in the Gulf of Venezuela but, according to the

boundary study, to advance Colombia's position that Venezuela's claim must be recognized

by Colombia in order to influence the delimitation.

65. Eric Franckx, Baltic Sea Maritime Boundaries, in INTERNATIONAL MARITIME

BOUNDARIES 345, supra note 20. See also Agreement between Denmark and Sweden

on the Delimitation of the Continental Shelf and Fishing Zones, Nov. 9, 1984, Den-

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* in advance of reaching agreement on a precise boundary,

Brazil and Uruguay issued a joint declaration supporting

the use of equidistance. This may have been intended to

counter an Argentine desire to duplicate the practice on the

west coast of South America and use a parallel of latitude in

its delimitation with Uruguay.66

The tribunal in the Guinea-Guinea-Bissau arbitration67

devoted a great deal of attention to the problem of cut-off or

enclavement, which occurs when a state's boundaries with

neighboring (usually adjacent) states join at a point off its coast.

This problem can be avoided if the boundaries on either side are

coordinated so as to avoid a cut-off effect. The difficulty is that

only the boundary between the parties to the arbitration is at

issue. By emphasizing the need to avoid enclavement, determining

the broad general direction of the coast with reference to the

coasts of the immediate neighbors of both parties, and establishing

the longest seaward segment of the boundary as a perpendicular

to that general direction, the tribunal in effect was taking

an approach of broader utility in West Africa, and appears to

have been aware of this.

F. Sovereignty Disputes

In principle, all areas of land, including small islands and

rocks above water at high tide, are entitled to some maritime

jurisdiction.68 If strict equidistance is the method of delimitation,

they will have the same effect as promontories on much

larger islands or longer continental coasts. Accordingly, the

mark-Sweden, Sveriges overenskommelser med frammande makter 1985:54 (Sweden).

Neither party was completely successful.

66. Agreement Relating to the Maritime Delimitation between Brazil and Uruguay,

July 21, 1972, Braz.-Uru., 1120 U.N.T.S. 133. Given the generally northeastward

direction of the coast, the use of a parallel of latitude by Argentina and Uruguay

would either have disadvantaged Brazil were such a parallel to be used between

Brazil and Uruguay, or would have resulted in a substantial enclavement of

the Uruguayan zone between the parallel to the south and an equidistant line with

Brazil to the north.

67. Guinea-Guinea-Bissau Award, supra note 33.

68. See U.N. Convention on the Law of the Sea, supra note 2, art. 21. That

article specifies by way of exception "rocks which cannot sustain human habitation

or economic life of their own shall have no exclusive economic zone or continental

shelf."

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268 INTER-AMERICAN LAW REVIEW [Vol. 26:2

existence of sovereignty dispute over insular or other coastal

territory in an area requiring delimitation is likely to affect delimitation agreement including, in many cases, the boundary

itself.

If only one party to the negotiations is affected, the other

may be reluctant to get involved. For example, the boundary

drawn by Australia and France is terminated to the east point that avoids involving Australia in the territorial dispute

between France and Vanuatu over certain islands controlled France and also claimed by Vanuatu.69 The same problem apparently delayed Fiji's ratification of its delimitation agreement

with France.70 The terminus of the Atlantic maritime

boundary between Trinidad and Tobago and Venezuela was

shifted slightly to the north of a hypothetical tri-junction point

with Guyana in order to avoid involving Trinidad and Tobago in

any dispute between Guyana and Venezuela.71

If the sovereignty dispute is between the two states establishing

the maritime boundary, they may use the same technique

employed in the Australia-France agreement, namely

terminating the boundary at a point where they agree that the

disputed territory would not influence the location of the boundary.

For example, this approach has been used with respect to

disputed islands by Japan and South Korea72 as well as France

and Mauritius.73 It was also used by Canada and the United

States in the Gulf of Maine, where the landward terminus of the

boundary the Chamber was asked to draw was located at sea in

a manner designed to avoid the issue of sovereignty over

Machias Seal Island and North Rock.74 Italy and Yugoslavia's

69. Agreement on Marine Delimitation, Jan. 4, 1982, Austl.-Fr., 1983 Austl.

T.S. No. 2.

70. Agreement Relating to the Delimitation of an Economic Zone, Jan. 19, 1983,

Fr.-Fiji,(Rep. 5-6), reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra note 20,

at 995.

71. Treaty on the Delimitation of Marine and Submarine Areas, Apr. 18, 1990,

Trin. & Tobago-Venez., G.O., No. 34745, July 23, 1991 (Venez.).

72. Agreement Concerning the Establishment of Boundary in the Northern Part

of the Continental Shelf, Jan. 30, 1974, Japan-S. Korea, Limits in the Seas, No. 75

(1979).

73. Agreement on the Delimitation of the French and Mauritian Economic

Zones, Apr. 2, 1980, Fr.-Mauritius, Limits in the Seas, No. 75 (1979).

74. Treaty to Submit to Binding Dispute Settlement on the Delimitation of the

Maritime Boundary in the Gulf of Maine Area, Mar. 29, 1979, Can.-U.S., 23 I.L.M.

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maritime boundary originally stopped short of the Gulf of

Trieste because the land border in the Trieste region was not

settled.75 It appears that the extensive delimitations agreed by

the Irish Republic and the United Kingdom do not include delimitations

measured from Northern Ireland.76

Another approach is to resolve the sovereignty dispute and

the maritime boundary simultaneously. Perhaps the best known

examples are the treaty between Italy and Yugoslavia settling

both their land and territorial sea boundary in the Trieste region77

and the Treaty of Peace, Friendship, and Maritime Delimitation

between Argentina and Chile following the Beagle

Channel arbitration, Argentina's rejection of the award, and

mediation by the Vatican.78 There are others.79 In some cases,

the maritime boundary is expressly identified as the line dividing

sovereignty over islands as well;80 there may even be spe-

1197. It might also be noted that Art. 298(l)(a)(i) of the U.N. Convention on the

Law of the Sea, supra note 2, permits a party to exclude from arbitration, adjudication

or conciliation a maritime boundary dispute "that necessarily involves the concurrent

consideration of any unsettled dispute concerning sovereignty or other rights

over continental or insular land territory." Id.

75. Agreement on the Delimitation of the Continental Shelf between the Two

Countries, Jan. 8, 1968, Italy-Yugo., 7 I.L.M. 547.

76. Ireland-United Kingdom Agreement, supra note 52.

77. Treaty between Italy and Yugoslavia, Nov. 10, 1975, Italy-Yugo., Gazz. Uff.,

Supp. to No. 77 of Mar. 21, 1977 (Italy) [hereinafter Italy-Yugoslavia Treaty].

78. Argentina-Chile Agreement, supra note 31, at 11.

79. The following are some examples. Because of its desire not to inhibit

friendly relations, the United States abandoned its insular sovereignty clams in its

delimitation agreements with the Cook Islands and with New Zealand with respect

to Tokelau. See Treaty on the Delimitation of the Maritime Boundary between the

United States of America and the Cook Islands, June 11, 1980, Cook Islands-U.S.,

T.I.A.S. No. 10774; Treaty on the Maritime Boundary between Tokelau and the

United States of America, Dec. 2, 1980, N.Z.-U.S., T.I.A.S. No. 10775. New Zealand

acknowledged that Swains Island is part of American Samoa. Bahrain and Saudi

Arabia simultaneously divided disputed islands. See Agreement Concerning Delimitation

of the Continental Shelf, Feb. 22, 1958, Bahr.-Saudi Arabia, 409 (U.N. Legislative

Series), U.N. Doc. ST/LEG/SER. B/16 (1974). The 1973 agreement between

Australia and Indonesia settling the land boundary between Indonesia and Papua

New Guinea (which Australia then represented) also settled a landward gap in the

maritime boundary. Australia-Indonesia Certain Boundaries Agreements, supra note

19. North Korea and the U.S.S.R. simultaneously settled their boundary in the

Tumen River and their territorial sea boundary. Soviet-Korea National Border Agreement,

supra note 20. Interestingly, Abu Dhabi and Dubai simultaneously moved

their land frontier and their previously agreed maritime boundary ten kilometers to

the west. Offshore Boundary Agreement between Abu Dhabi and Dubai, Feb. 18,

1968, Abu Dhabi-Dubai, I Can. Annex 151 (1983) [hereinafter Abu Dhabi-Dubai Offshore

Boundary Agreement].

80. The following are some examples: The division of sovereignty over islands

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270 INTER-AMERICAN LAW REVIEW [Vol. 26:2

cific reference to islands that may emerge in the future.some cases, the islands with respect to which sovereignty resolved are given reduced effect in the maritime delimitation.III. Strategic Factors

A. Introduction

While it is reasonably clear that at least some maritime

boundaries were influenced by security interests, those interests

are almost never adverted to in the text of the agreement and

only rarely, and then often obliquely, in related commentary of

governments. In this connection, it should be borne in mind that

defense ministries are often consulted as governments develop

their maritime boundary positions.83 At times those ministries

are represented on negotiating delegations. It seems reasonable

to conclude that, whatever the apparent factors influencing its

location, the acceptability of the boundary may well be reviewed

from a security perspective.

between Australia and Papua New Guinea under article 2 of the agreement is in

part based on the seabed delimitation line. See Australia-Indonesia Certain

Boundaries Agreements, supra note 19. The same approach was used by Abu Dhabi

and Qatar. See Agreement on Settlement of Maritime Boundary Lines, Mar. 20,

1969, Qatar-U.A.E., 403 (U.N. Legislative Series) U.N. Doc. No. ST/LEG/SER.B/16

(1974).

81. See Agreement on the Delimitation of the Maritime Boundary in the

Adaman Sea, Dec. 23, 1986, Burma-India, art. 5, 27 I.L.M. 1144 [hereinafter Burma-

India Agreement].

82. Burma abandoned its claim to Narcondam Island and India did not insist

on the maximum possible claims from either Narcondam Island or Barren Island.

See Agreement on the Boundary in Historic Waters between India and Sri-Lanka,

June 26-28, 1974, India-Sri Lanka, 13 I.L.M. 1442 [hereinafter India-Sri-Lanka

Agreement]. In the agreement regarding Palk Strait and Bay, the island is not

counted at all in the delimitation, and there is provision for access to the island for

fishermen and pilgrims. The Iran-Saudi Arabia agreement limits the effect of the

islands to twelve miles. See Agreement Concerning the Delimitation of the Boundary

Line Separating Submarine Areas, Oct. 24, 1968, Iran-Saudi Arabia, 696 U.N.T.S.

189. It is not clear what influence a 1927 Icelandic letter reserving rights to the resources

of Jan Mayen, prior to the formal Norwegian claim to Jan Mayen in 1929,

had on the agreement to accord Iceland a full 200-mile exclusive economic zone in

areas where the distance between the coasts is less than 400 miles, or on the Conciliation

Commission's decision to establish a substantial joint management area with

respect to seabed resources, mostly on the Jan Mayen side of that 200-mile line.

Iceland-Norway Agreement, supra note 33.

83. In some cases, the navy is the primary internal source of charts, technical

data, or maritime expertise.

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A number of economic and other factors dealt with in other

chapters of this study may engage the perceived security interests

of a particular state. In a narrow sense, the term "security"

might refer to the right to conduct and, conversely, the right to

restrict military activities at sea, principally by warships, coast

guard vessels, and state aircraft. Yet even in that narrow sense,

it is difficult to distinguish commercial navigation interests from

security interests. Moreover, governments have asserted that

the movement of international trade, and access to and control

over mineral and hydrocarbon resources of the seabed, engage

not only their economic but their security interests.84 In the

broadest sense, a state's efforts to accumulate friends and control

the emergence or leverage of adversaries are fundamentally

tied to its security.

B. Types of Security Concerns

Two different aspects of security are potentially affected by

maritime delimitation. One is the desire of a state to exclude or

control activities of foreign states off its coast that it perceives to

be prejudicial to its security.85 The other is the desire of a state

to be able to ensure that its own or foreign activities that are

important to its security may be conducted without foreign interference,

including protection of its access to the open sea and

communications by sea and air with foreign states.

Under the regimes set forth in the United Nations Convention

on the Law of the Sea,86 these interests are unquestionably

affected in waters subject to the sovereignty of the coastal state,

namely internal waters, archipelagic waters, and the territorial

sea. That sovereignty is qualified by the right of innocent passage,

which is subject to certain coastal state regulatory powers

as well as the power to take measures to prevent passage that is

not innocent and the power to suspend innocent passage outside

straits. That sovereignty is also qualified by the right of ships

84. Soviet experts have spoken of environmental security, using the same Russian

word that is used in "Security Council" and "Committee on State Security"

(KGB). The cognates for "security" in many Romance languages may share the arguably

broader meaning of "safety."

85. The political reality of this perception of security is to be distinguished

from its substantive merits. Some might argue that, in certain situations, demagogy,

paranoia, or xenophobia are better explanations for the perception.

86. U.N. Convention on the Law of the Sea, supra note 2.

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272 INTER-AMERICAN LAW REVIEW [Vol. 26:2

and aircraft to transit passage of straits and archipelagic lanes passage.

As the tribunal in the Guinea-Guinea-Bissau arbitration

observed,87 the continental shelf and the exclusive economic

zone are not zones of sovereignty, but rather areas in which the

coastal state exercises more limited sovereign rights and jurisdiction

for specific purposes. These are identified in detail in the

United Nations Convention. In particular, freedom of navigation

and overflight are expressly protected in the provisions dealing

with the exclusive economic zone as well as the continental

shelf. There are nevertheless aspects of these regimes that

states may perceive as affecting their security interests:

* The United Nations Convention provides that artificial installations

used for resource or other economic purposes are

subject to coastal state control in the exclusive economic

zone and on the continental shelf. The same is true of. scientific

installations as well as any other installations that may

interfere with the exercise of the rights of the coastal

state.88

* The coastal state largely has a free hand in determining

where it will permit installations (and the safety zones

around them) to be placed in its exclusive economic zone

and on its continental shelf, subject to a somewhat narrowly

phrased duty to avoid recognized sea lanes essential to international

navigation,89 supplemented in the U.N. Convention,

by a general duty to avoid interference with navigation.

90 A neighboring state could be concerned about its

87. Guinea-Guinea-Bissau Award, supra note 33, at 124.

88. U.N. Convention on the Law of the Sea, supra note 2, arts. 60, 80, 81.

89. U.N. Convention on the Law of the Sea, supra note 2, art. 60, ^ 7, repeating

art. 5, H 6 of the Convention on the Continental Shelf, supra note 24.

90. U.N. Convention on the Law of the Sea, supra note 2, arts. 56(3), 58, 78(2),

87. While Article 87 of the U.N. Convention includes among the express freedoms of

the high seas the freedom to lay submarine cables and pipelines, this freedom is

"subject to Part VI" dealing with the continental shelf. Pursuant to Part VI, Article

79, the coastal state duty not to impede the laying or maintenance of cables and

pipelines is subject to its right to take reasonable measures for the exploration of

the continental shelf, the exploration of its natural resources and the prevention,

reduction, and control of pollution from pipelines. Moreover, the delineation of the

course for the laying of pipelines on the continental shelf is subject to the consent of

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access routes.

* The U.N. Convention accords the coastal state enforcement

rights over foreign ships in its exclusive economic zone with

respect to pollution in contravention of international standards

or internationally approved coastal state standards

(and, in limited circumstances such as dumping or ice-covered

areas, unilateral coastal state standards). The complex

and carefully balanced provisions of the Convention on this

matter are sometimes omitted from national laws on the

exclusive economic zone that nevertheless contain a generalized

assertion of jurisdiction with respect to control of pollution.

* The trend in the twentieth century has been one of expanding

coastal state jurisdiction in both a geographic and a

functional sense. This trend may continue, either in terms

of a gradual coastal shift in the balance between coastal and

other interests in the exclusive economic zone or in some

other way. Governments concerned with protecting their

access to the sea may consider it prudent to deal with that

contingency. In this connection it remains unclear whether

the United Nations Convention on the Law of the Sea will

eventually receive widespread adherence and, in any event,

precisely how it will be interpreted and exactly how much of

a restraining influence it will be.

C. Exclusionary Interest

There is very little evidence of boundaries being drawn to

reflect a security interest of the coastal state in excluding or

controlling foreign activities off its coast.91 That security interthe

coastal state.

91. It is said that strategic considerations influenced the strong position taken

by Sweden in favor of full effect for Gotland in its negotiations with the U.S.S.R.

Sweden eventually settled for seventy-five percent effect. Agreement on the Delimitation

of the Continental Shelf and of the Swedish Fishing Zone and the Soviet

Economic Zone in the Baltic Sea, Apr. 18, 1988, Swed.-U.S.S.R., 27 I.L.M. 295. It is

possible that traditional Soviet sensitivity concerning the security of the Arctic coast,

at times associated with the so-called sector principle, was a factor that encouraged

the Soviet Union to regard the line set forth in the 1867 U.S. -Russia Convention

ceding Alaska as the maritime boundary; north of the Bering Strait, the line follows

a meridian of longitude due north into the Arctic Ocean. See Maritime Boundary

Agreement, June 15, 1990, U.S.-U.S.S.R., 29 I.L.M. 941 (1990) [hereinafter U.S.-

U.S.S.R. Boundary Agreement].

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274 INTER-AMERICAN LAW REVIEW [Vol. 26:2

est is sometimes perceived in terms of proximity to the coast.An equidistant line, usually regarded as based exclusively geographic factors, or some other line reasonably far from coast might accordingly commend itself to some parties appropriate accommodation of their respective coastal security

interests. Since the security factor is masked, it is difficult whether it actually influenced the behavior of governments.

In the Libya-Malta case, the Court noted that the delimitation

resulting from its judgement is "not so near to the coasts either Party as to make questions of security a particular in the present case."93 The tribunal in the Guinea-Bissau arbitration made a similar point, noting that security

implications are avoided under its proposed solution by the that each state controls the maritime territories opposite coasts and in their vicinity.94 It may well be that governments,

like these two tribunals, are more likely to test particular results against this security concern than to shape a specifically in response to this concern.

It is also sometimes difficult to tell whether a boundary

drawn to maximize access to and from a naval base, for example,

is not - at least in the territorial sea - also designed to

maximize that state's control over foreign activities near the

base. It is reported that Soviet strategic interests with respect to

the main Pacific fleet naval base at Vladivostok produced a

territorial sea boundary more favorable to the U.S.S.R. than a

hypothetical equidistant line.95 There can be no doubt that access

to and from the base was a primary strategic concern. It is

92. Malta associated security interests with proximity to the coast in its arguments

before the International Court of Justice regarding the delimitation of its

continental shelf with Libya. See Libya-Malta Continental Shelf Case, supra note 48.

Guinea-Bissau did much the same in its arbitration with Guinea-Guinea-Bissau Arbitration,

supra note 33. The Truman Proclamation on the Continental shelf, supra

note 6, might suggest an analogous view of security (however unlikely the provenance

of that limited vision from the world's dominant maritime power might appear

to some observers). The preamble includes, as the final item in the list of justifications

for the assertion of jurisdiction over the resources of the continental shelf, the

statement, "since self-protection compels the coastal nation to keep close watch over

activities off its shores which are of the nature necessary for utilization of these

resources." Id.

93. Libya-Malta Continental Shelf Case, supra note 48, <fl 51.

94. See Guinea-Guinea-Bissau Award, supra note 33, at 251.

95. Soviet-Korea National Border Agreement, supra note 20.

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not clear that this was the only strategic concern.

D. Access to and from the Open Sea

There is ample evidence that concerns about access to and

from the sea have influenced maritime boundaries either directly

by altering or confirming their location or indirectly by

prompting simultaneous agreement on substantive provisions

protecting navigation rights. The summary report with respect

to the Baltic Sea notes that only navigation interests were

strong enough to prevail over the general use of equidistance in

that region.

It is often difficult to tell whether a state's preoccupation

with navigation derives primarily from economic or security

concerns. In this connection, it must be borne in mind that security

concerns regarding access relate not only to the naval and

air forces of the particular coastal state, but to access for the

forces of friendly states and, beyond that, to the protection of

trading and communications routes fundamental to the economy

of the state.

One would expect most explicit concerns with naval access

to be manifested by major naval powers. It is nevertheless interesting

that Soviet boundaries figure prominently in the references

in the boundary studies to maritime boundaries configured in

response to concerns about naval access.96 This may reflect the

circumstances of Soviet geography, the historic Russian and

96. See Id.; see also Agreement Concerning the Sea Frontier in the

Varangerfjord of 15 February 1957 and Protocol of 29 November 1957, Feb. 15,

1957; Nov. 29, 1957, Nor.-U.S.S.R., Limits in the Seas, No. 17 (1970) in the "strategically

and politically sensitive" area of the Varangerfjord, where the "boundary

runs, broadly speaking, across the broad mouth of the Gulf leaving plenty of water

on either side for access from the Qord to the Barents Sea"; see also Agreement

Concerning the Boundaries of Sea Areas and of the Continental Shelf in the Gulf of

Finland, May 25, 1966, Fin.-U.S.S.R., 566 U.N.T.S. 37, where the territorial sea

boundary in the Gulf of Finland established by the 1940 and 1947 peace treaties

between the parties was heavily influenced by Soviet security concerns, and where

Gogland (Suursaari) Island was given only limited effect to safeguard free navigation

north of it. The elaborate provisions in the Turkey-Soviet Union territorial sea agreement

for range markers and for situations where the markers are seen as overlapping

(possibly causing a vessel to cross the line inadvertently) presumably reflect an

underlying concern about protecting navigation in an area of zealous coastal security

enforcement. See Protocol Concerning the Territorial Sea Boundary Between the Two

States in the Black Sea, Apr. 17, 1973, Turk.-U.S.S.R., Limits in the Seas, No. 59

[hereinafter Turkey-U.S.S.R. Protocol].

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276 INTER-AMERICAN LAW REVIEW [Vol. 26:2

Soviet preoccupation with access to the sea, greater emphasis security concerns in Soviet policy-making, or a tendency by observers to emphasize security factors in their analyses Soviet motives.

The Soviet Union is not, however, alone. While it is common

in connection with base rights agreements to provide for rights

of access through the waters and air space of the host state, the

Cyprus-United Kingdom agreement went further. It established

lines extending seaward from the U.K. bases between which Cyprus

may not claim territorial waters.97 The United States' desire

to protect transit routes to and from San Diego, where it

has a major naval base, is cited as a factor supporting the decision

to give full effect to islands in a delimitation based on equidistance.

98 France made strategic arguments, particularly regarding

access to the port of Cherbourg, in the Anglo-French

arbitration. In effect, the tribunal gave priority to French interests

in navigation and security between the eastern and western

parts of the English Channel.99

States may desire to ensure that specific navigation routes

are within their own waters, or at least outside the waters of the

neighboring state. The Soviet, U.K., U.S., and French examples

already cited are generally of this type. There are, however,

others.

The practice of dividing the deep channel continues to be

used close to shore. This may be done when the channel extends

seaward from a land boundary in a river: the inner part of the

line used in the Guinea-Guinea-Bissau arbitration follows an

97. Treaty Concerning the Establishment of the Republic of Cyprus, Annex A.,

Aug. 16, 1960, Cyprus-U.K, 382 U.N.T.S. 10 [hereinafter Cyprus Treaty].

98. Exchange of Notes Effecting Agreement on the Provisional Maritime Boundary,

Nov. 24, 1976, Mex.-U.S., T.I.A.S. 8805 [hereinafter Mexico-United States Exchange

of Notes]; Treaty about Maritime Boundaries, May 4, 1978, Mex.-U.S., 17

I.L.M. 1073.

99. Agreement on the Shelf Boundary in the Eastern Channel and Southern

North Sea, June 24, 1982, Fr.-U.K, U.K.T.S. No. 20 [hereinafter United Kingdom-

France Shelf Boundary Agreement]. While navigation factors apparently did not

affect the negotiated boundary as such, in general the east-west lane of the traffic

separation scheme is on the U.K side while the west-east lane is on the French

side. Agreements between France and United Kingdom Relating to the Delimitation

of the Continental Shelf in the English Channel, July 10, 1975, U.K.T.S. No. 20

(1983).

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"historic" boundary using the thalweg.100 It may also be done

when the channel lies between the opposite coasts of the parties:

the Indonesia-Singapore boundary generally follows the deep

draught tanker route, even extending within the Indonesian

archipelagic baselines at one point.101 In other cases, the channel

may be of principal concern to one state. The boundary between

the Federal Republic of Germany and the former German

Democratic Republic in Liibeck Bay located the entire shipping

route to the FRG ports on the FRG side.102

On occasion, a state may limit its objectives to ensuring that

a navigation route or other areas, although not within its own

waters, are outside the waters, or at least the territorial sea, of

the neighboring state.103 The Argentina-Chile treaty limits the

territorial sea, as between the parties, to three miles in some

areas.104 The Australia-Papua New Guinea treaty limits the

territorial sea of certain islands to three miles, and in other

respects limits the territorial seas and archipelagic waters of the

parties.105 The agreement between Poland and the former German

Democratic Republic is specifically designed to protect the

northern access route to Polish ports, in part by limiting the

territorial sea and other jurisdiction of the GDR.106

Two interesting agreements specifically limit certain types

of coastal state jurisdiction in the exclusive economic zone and

on the continental shelf. The Netherlands-Venezuela agreement

places limits on the exercise of jurisdiction to prevent pollution

from ships and requires mutual agreement for emplacing struc-

100. Guinea-Guinea-Bissau Award, supra note 33, n 45, HI-

101. Indonesia-Singapore Sea Boundary Agreement, supra note 21.

102. F.R.G.-G.D.R. Protocol Note, supra note 16. The boundary study notes that

the FRG may also have considered its submarine testing areas near Nuestadt in

connection with this boundary.

103. The Cyprus-U.K. Agreement discussed above is an example. See Cyprus

Treaty, supra note 97.

104. Argentina-Chile Agreement, supra note 31, at 11.

105. See Australia-Papua New Guinea Treaty, supra note 4.

106. Treaty between German Democratic Republic and Poland Concerning the

Delimitation of the Sea Areas in the Oder Bight, May 22, 1989, G,D.R.-Pol., GB1. II,

No. 9, 28 July 1989, at 150-151 (G.D.R.) (discarding Treaty between the German

Democratic Republic and Poland Concerning the Delimitation of the Continental

Shelf in the Baltic Sea, Oct 29, 1968, G.D.R.-Poland, 768 U.N.T.S. 260 (1971). In the

interim, a dispute over navigation erupted between the parties that was extensively

debated in the polish parliament. See Treaty between Germany and Poland Concerning

the Confirmation of the Frontier Existing between Them, Nov. 14, 1990, F.R.G.-

Pol., reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra note 20, at 2023.

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278 INTER-AMERICAN LAW REVIEW [Vol. 26:2

tures that may obstruct recognized sea lanes.107 The Australia-

Papua New Guinea agreement defines an area within the central

Torres Strait, where the fisheries and seabed delimitation

lines diverge, in which the exercise of "residual jurisdiction"

requires the concurrence of the other party. "Residual jurisdiction"

is defined as jurisdiction other than seabed and fisheries

jurisdiction as well as seabed and fisheries jurisdiction not related to the exploration or exploitation of resources.108

A number of agreements are structured so that each party's

vessels can travel to and from its ports on its own side of boundary. In many situations this objective can be achieved any of several plausible maritime boundaries, and thus may be evident in the specific location or discussion of the boundary.

With respect to the France-Italy delimitation in the Straits

of Bonifacio, it is suggested that the "desire of both parties reach a delimitation which would permit passage through Mouths without entering the territorial sea of the other party

might have influenced the negotiations/'109 A similar consideration

is said to have influenced the Italy- Yugoslavia territorial

sea boundary in the Gulf of Trieste; in this connection, the Foreign Minister referred to the navigation of large tonnage

ships without the necessity of passing through Yugoslav

waters.110 Navigation interests prevailed over effect for the island

of Ven in the 1932 territorial sea delimitation in the Sound

between Denmark and Sweden.111

107. Delimitation Treaty between the Netherlands and Venezuela, Mar. 31, 1978,

Neth.-Venez., 1978 Tractenblad va het Koninkrijk der Nederlanden No. 61 (Neth.)

[hereinafter Netherlands- Venezuela Agreement].

108. Australia-Papua New Guinea Treaty, supra note 4.

109. Convention between Italy and France Relating to the Delimitation of the

Maritime Boundaries in the Area of the Mouths of Bonifacio, Nov. 28, 1086, Fr.-

Italy, Gazz. Uff., Suppl. to No. 48 of 27 Feb. 1989 (Italy) [hereinafter Italy-France

Convention].

110. Italy- Yugoslavia Treaty, supra note 77.

111. Agreement between Denmark and Sweden on the Delimitation of the Continental

Shelf and Fishing Zones, Nov. 9, 1984, Den.-Swed., Sveriges

overenskommelser med frammande makter 1985:54 (Swed.).

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E. Enclavement

A particular problem is posed by the so-called cut-off or

enclavement effect that can arise when the maritime boundaries

between a state and its neighbors meet at a point off its coast.

In the case of enclosed and semi-enclosed seas, some cut-off

effects are unavoidable. Despite this fact, extension of a state's

jurisdiction so as to avoid enclavement by its boundaries with

some states (e.g., adjacent states) can minimize the number of

states whose zones stand between the "enclaved" state and the

open sea. Thus, for example, as a result of the agreements implementing

the decision in the North Sea Continental Shelf

cases, the German continental shelf connects directly with the

British for a small distance.112

The concern about enclavement may engage both types of

perceived security interests. States prefer not to be surrounded

by their neighbors. In some measure this concern may be political

and psychological. States have articulated security concerns

about their capacity to conduct and control activities off their

coast. More concretely, states may be concerned about access

between their territory and the open sea.

In three cases, the maritime zones of small states with the

same coastal neighbor on either side were protected from

enclavement by the use of parallel lines defining the small

state's zones.113 With respect to The Gambia, parallels of latitude

were extended out into the open Atlantic.114 Monaco received

a corridor up to the outer limit of the territorial sea, as

well as a corridor beyond extending up to an equidistant line

with the opposite coast on the island of Corsica.115 The boundary

lines between Dominica, on the one hand, and Martinique

and Guadaloupe on the other, were extended in quasi-parallel

fashion up to 200 miles on the Atlantic side.116

112. Agreement between the Federal Republic of Germany and the United Kingdom

Relating to the Delimitation of the Continental Shelf under the North Sea between

the Two Countries, Nov. 25, 1971, F.R.G.-U.K, 880 U.N.T.S. 185. See U.N.

Convention on the Law of the Sea, supra note 2 and accompanying text.

113. The land territory of the state concerned is itself surrounded by the other

state in the first two cases.

114. Gambia-Senegal Agreement, supra note 33.

115. Monaco-France Delimitation Agreement, supra note 33. As Corsica is part of

France, some "enclavement" by French zones was ultimately unavoidable.

116. Agreement on Maritime Delimitation between Dominica and France, Sept. 7,

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280 INTER-AMERICAN LAW REVIEW [Vol. 26:2

Where a state's boundaries with more than one state pose

the risk of enclavement, one cannot be certain the risk has avoided absent agreement on maritime boundaries with all the neighboring states concerned. Boundaries between only states nevertheless can be drawn so as to minimize the risk of

enclavement when future boundaries are completed, thereby

attempting as far as possible to assure each state access to the

open ocean through its own zones and to avoid the presence of a

foreign zone opposite a state's 