Den endelige delelinje; Russland-Norge avtale av 15 · Web viewPeter Ørebech, University of...

Peter Ørebech, University of Tromsø, 9037 Tromsø, Norway, peter.orebech@uit

Dividing the Oceans by the Equity Principle of “Half-Way Solutions”?

– From Geographical Base-Points to Political Pretention Lines

“… the law of maritime boundary delimitation has undergone a remarkable - almost circular - evolution”

David Colson1

ContentsIntroduction and Summary.......................................................................................................2

1. The Problems at Stake......................................................................................................5

2. The Law of International Negotiations: Some Introductory Remarks..............................7

3. An Illustration: the 2010 Norway-Russia Agreement.......................................................9

4. Coming to Terms: Delimitation Procedures....................................................................12

5. The 2010 Norway-Russia Negotiation Platform and Compromise.................................18

6. The Basic Principle of Equitable Delimitation................................................................21

7. Is the Norway-Russia Result Influenced by the Grey Zone Arrangement?.....................23

8. The “Half-Way Instrument” - jurisdictione ratio materiae............................................26

A. General Introduction...................................................................................................27

B. The Irrelevant Argument of Resources Utilization.....................................................28

C. The Role of the Proportionality Principle...................................................................29

D. Delimitation Practices: The Reinstatement of a “half-way instrument”?....................31

E. Resulting in Customary Law or General Principles of Law?......................................43

9. The “Half-Way Principle” - A Conclusion.....................................................................45

1 David A. Colson; The Delimitation of the Outer Continental Shelf between Neighboring States, 97 AM. J. INT’L LAW 91, 99 (2003)..

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Introduction and Summary

This article considers two basic delimitation issues. First, is the delimitation

geographical or geopolitical? The second issue is jurisdictione ratione materiae.

What is the correct delimitation principle for delimiting adjacent and opposite coasts

belonging to two different nation states? Has the state practices observed in the

neighbouring delimitation cases created new international law reaching out beyond

the two parties involved in the dispute? Have we seen a development of general

principles of law or perhaps customary law (see this article section 8E)?

Geodetic points and geographical co-ordinates are a thing of the past when it

comes time to measure maritime delimitation. Despite that many may think that this

method is the less subjective, it embraces uncertainties of which many disputes

erupts; “Similarly, international forums have been unable to delimit maritime

boundaries on the basis of geologic considerations because of the uncertainties of that

science, the difficulty of adapting it to international maritime boundaries that require

relatively precise delimitation, and the minimal relevance of such considerations to

contemporary international relations”. 2

Today, geopolitical considerations are the instrument of choice.3 Political

bargaining and bilateral negotiations based on physical configurations rule the day.

Some have criticized that this solution produces nothing but vagueness and

uncertainty. The equity objective is all that matters according to Articles 74 and 83 of

the Law of the Sea Convention (1982) UNCLOS. Thus, half-way instruments seem

to be an easy fix in maritime borderline cases. As this study will demonstrate,

negotiation principles, bargaining and half-way instruments – broadly construed to

mean “mid-way,” “half-angle,” and “middle-point” principles - are vital ingredients to

2 Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, AM. J. INT’L LAW, Vol. 88, No. 2 (1994), pp. 227-256, at p. 239.3 There are perhaps some controversies here. See Tore Henriksen & Geir Ulfstein, Maritime Delimitation in the Arctic: The Barents Sea Treaty, 42 OCEAN DEVELOP. & INT’L LAW 1, 7 (2011). These authors seem to subscribe to a reinstatement of geomorphological instruments of delimitation view. ”It is difficult to assess whether geographical or geological factors have been applied.” (italics added). No focus is at the geopolitical issues.

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achieving the equitable solution. Is this observed development nothing but loose

practices or does it tend to develop principles of law, or rules (see paragraph 8E)?

From the standpoint of a purely geographical system, the “median line” is the

borderline between two opposite States. The “equidistance line” is the name of the

borderline between two adjacent states. Thus, a border occurs as “a “geological fact.”

It extends, in nature, as a prolongation of the terrestrial border. It has “geographical

as well as geological and geomorphological aspects.”4 Russian lawyers have

promoted a geopolitical view of border. They claim that the position of sector-line is

the valid principle of delimitation close to the poles.5 The Antarctic Treaty of 1959

embraces the sector-line border.6 The sector-line is the natural prolongation northward

bound of the Russian land base. The Upper Soviet declared this in 1926. 7 On the

other hand, in the North Sea Continental Shelf Case, the ICJ supported the border as

geological fact, i.e. a line that “linked the doctrine of the continental shelf as an

extension of the coastal state’s landmass to the criteria for delimitation”.8 Thus it

seems reasonable to claim that the sector line drawn from the eastern- and

westernmost corners of its land territory, to the North Pole, encompasses the coastal

state realm and jurisdiction. However, as stated by Keith Highet the natural

prolongation was a position that endured defeat in the Libya- Malta case.9

The “natural prolongation” was also challenged in an ICJ (1969) separate

statement: “[F]or example the appropriation of large areas of the Arctic Ocean and the

Antarctic Continent, an appropriation which also relies on the doctrine of sectors,

which doctrine, in certain of its elements, is reminiscent of the abandoned concept of

spheres of influence”.10 Even so, I cannot agree with the assertion that “the sector

4 Libya’s position, see Libya-Malta, Judgment, 1985 ICJ Rep 31, para. 29.5 For a broad survey of the polar delimitation issues, see Alex G Oude Elferink & Donald R Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. Publications on Ocean Development, Vol 37. (Kluwer Law International 2001).6 See Antarctic Treaty, June 23, 1961, 402 U.N.T.S. 71. 7 For a comprehensive presentation of the Russian Arctic positions, see ERIK FRANCKX, MARITIME CLAIMS IN THE ARCTIC: CANADIAN AND RUSSIAN PERSPECTIVES (Dordrecht : M. Nijhoff 1993).8 Colson, supra note 1 at 99.9 Keith Highet, Whatever Became of Natural Prolongation? In Dorinda G. Dallmeyer & Louis De Vorsey, Jr. (eds.) RIGHTS TO OCEANIC RESOURCES 87 (1989); see also Keith Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries, in Jonathan I. Charney & Lewis M. Alexander (eds.) 1 INTERNATIONAL MARITIME BOUNDARIES 1649 (1993) at 163.10 1969 ICJ Rep.116 (Judge Ammoun).

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theory which is implicit in the formulation of this taking of possession is of no legal

value as a basis for a claim of sovereignty in international law, even if such claim is

restricted to lands and islands”.11 As I show in the next section of this article, the

sector-line base for claiming sovereignty – Russia’s pretention lines – is of vital

importance in a bilateral setting (see Section 2).

The present legal status, as I understand it, does not embrace either one of these

positions. I conclude, after studying both bilateral agreements and third-party

solutions, that the negotiation principle is the actual rule. And in deciding the matter,

negotiating parties enjoy a discretionary, if constrained power as long as they achieve

their objective of reaching an “equitable solution,” taking the special circumstances

into consideration. Equitable solutions build upon the equitable principle.

International law recognizes this. In this article, I reveal some of the main ingredients

necessary to reaching an equitable solution. These include the negotiating platform,

positions and compromise. This article investigates, in particular, whether “the half-

way instrument” is more applicable than the pure geographical or geodesic method.

“The half-way instrument” is a case law doctrine that the 2010 Norway-Russia

Agreement has also adopted.

Negotiating parties enjoy a discretionary power to achieve a peaceful solution to

the borderline conflict within the limits of Jus Cogens.12

As this study reveals, “the half way instrument” is considered a valid principle of

international law that solves borderline conflicts from time to time. The disputants’

competing claims, i.e. the Russia sector-line v. the Norway median line, which they

asserted in the negotiations that concluded the 2010 agreement, are not anticipatory

positions of law. Instead, they are nothing more than pretention lines which the

antagonists threw down at the start of the negotiations.

1. The Problems at Stake11 Donat Pharand, The Legal Régime of the Arctic: Some Outstanding Issues, Vol 39 (1984) p. 742-799, at p. 766.12 See Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AM. J. INT’L LAW 55 (1966). On present development, see Dinah Shelton, Normative Hierarchy in International Law, 100 AM. J. INT’L LAW 291–323 (2006).

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“While all these examples are an encouragement

to those who prefer accord to discord, none of them

provides … a model from which objective criteria

may be deduced for application in other cases or

other circumstances… Neither do these cases give

us a means of measuring equity, and until someone

discovers how to do that, we shall all have to

struggle along with negotiation”.

Peter B. Beazley13

How can we determine the “objective criteria” of maritime delimitation between

adjacent and opposite coasts? In 1493, Pope Alexander VI allegedly divided the

Atlantic Ocean in two between Spain and Portugal. 14 The leap from this papal bull to

Peter Beazley’s statement is a long one. Nonetheless, throughout that entire time, no

fixed principles have existed for how to divide the waters. We are still riding a wave

of legal uncertainty. The whole thing is a nightmare.

Is it even possible to discover – or generate – legal principles? Could it be that all

we have are the “living fabric of life” and concrete and discretionary solutions? I am

interested in the principles of maritime delimitation, in particular, Articles 74 (the

Exclusive Economic Zone) and 83 (the Continental Shelf) of the Law of the Sea

Convention (UNCLOS) 1982. According to quite a few cases, half-way instruments

seem to have a bearing on the principle of equity. The puzzle is whether the half-way

practices have evolved into a legal norm. If these practices are not yet infra legem,

could they represent a praeter legem position?

What is the status of “half-way instruments?” I use the term “half-way

instruments” in this article to mean concepts such as “mid-way,” “half-angle” and

13 Peter B. Beazley, Commentary in Thomas Clingan, Jr. (ed.) LAW OF THE SEA: STATE PRACTICE IN ZONES OF SPECIAL JURISDICTION 320 (The Law of the Sea Institute Hawaii 1982) .14 For the view that the 1493 papal edict governs sovereignty issues, see EDGAR GOLD, MARITIME TRANSPORT; THE EVOLUTION OF INTERNATIONAL MARINE POLICY AND SHIPPING LAW 35 (Lexington Books, Mass 1981). Philip E. Steinberg rejects that position, and claims that “the pope clearly states that the purpose of the grant is for missionary activities.” Philip E. Steinberg, Lines of Division, Lines of Connection: Stewardship in the World Ocean, 89 GEOGRAPHICAL REV. 254, 256 (1999).

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“half-effect” solutions. As a starting point, I support the ICJ’s holding in the Tunisia-

Libya Case:

“The Court would recall however that a number of examples are to be found

in State practice of delimitations in which only partial effect has been given to

islands situated close to the coast; the method adopted has varied in response to

the varying geographical and other circumstances of the particular case. One

possible technique for this purpose, in the context of a geomorphological method

of delimitation, is that of the "half-effect" or "half-angle". Briefly, the technique

involves drawing two delimitation lines, one giving to the island the full effect

attributed to it by the delimitation method in use, and the other disregarding the

island totally, as though it did not exist. The delimitation line actually adopted is

then drawn between the first two lines, either in such a way as to divide equally

the area between them, or as bisector of the angle which they make with each

other, or possibly by treating the island as displaced toward the mainland by half

its actual distance therefrom.”15

Half-way instruments are more than just practical adaptation to the urgency of the

situation, as I will demonstrate. Instead, half-way instruments are more or less fixed

principles of maritime delimitation upon which reasonable, equity based divisions are

made. While maritime division often results from a half-way measured line, the

starting point for the alignment varies. Sometimes the borderline is measured by the

antagonists’ pretention lines. In other instances imaginary lines – such as a

perpendicular on the direction of the coast 16 – are points of departure.

My interest in this topic is heightened by the Norway-Russia 2010 Agreement.17

The Agreement is the most recent non-third party example of a half-way instrument.

Does this bilateral pact satisfy international law? 18 Its alleged negotiators, in fact, its

15 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep.89, para. 129.16 As was the case in the Tunisia-Libya conflict, see Id. at para. 86.17 For a comprehensive analysis, see Henriksen & Ulfstein, supra note 2 at 1-2. 18 Id. at 4 ff. Henriksen & Ulfstein have a slightly different approach: “to identify the applicable law and to assess … the extent to which international law may have affected the outcome.” My article is purely descriptive, however, so I do not conclude on the matter.

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antagonists, claim that it does. The Agreement is allegedly “based on international

law in order to achieve an equitable solution.” 19

Another issue raised in this article is whether this solution is derived from a

concrete rule? Is the international society of states driven entirely by discretionary,

non-predictable power? Do the deals brokered by the states rely on and result in

irregularity and random solutions, rather than fixed principles of law?

The third issue on which I focus is how to make delimitations? In what situations

are unilateral or bilateral agreements appropriate instruments? Who should make the

decision? 20

My analytical method is grounded in legal dogma. This is a de lege lata question.

I have focused my study on Articles 15, 74 and 83 of the United Nations Convention

on the Law of the Sea (UNCLOS 1982). In particular, I examine the process of

reaching “an equitable solution”. Since these provisions per se give very limited

guidance, the coastal state practice as well as case law has a role to play (see Section

8). Some of these cases have been decided by the International Court of Justice.

Others involve decisions handed down by Arbitration Courts.

2. The Law of International Negotiations: Some Introductory Remarks

“This doctrine on the process of negotiation is a

fundamental principle which underlies all

international relations, and therefore applies equally

to the delimitation of the exclusive economic zone.”

Satya N. Nandan & Shabtai Rosenne 21

The primary focus of this article is on the law of bilateral negotiations and the

rules that govern how to obtain agreement on outstanding issues such as maritime

19 See the Joint Statement on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (June 2010) paragraph 4.20 For an interesting overview of the remaining questions related to the Arctic, not yet settled in international law, see Pharand, supra note 9. 21 Satya N. Nandan & Shabtai Rosenne (eds.); UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982. A COMMENTARY, VOL. II 814 (Martinus Nijhoff Publishers 1993).

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delimitation: “duty of Parties to seek first a delimitation by agreement.” 22 My

underlying claim is that legal provisions, whether conventional or customary, govern

third party solutions. They do not bind bilateral negotiations. “[I]t must be

emphasised that the law provides norms for the behavior of the courts, and not of

private individuals.” 23 I agree with Alf Ross on this. I note that Alf Ross’s position

relates directly to domestic law. I would add that this position is relevant to

international law as well. This approach has been called the import of private law

institutions to public law. I do not seek to impose it, however, “lock, stock and

barrel,” 24 onto international law.

Legal positions that go against judicial interpretations of the law may be

successfully adopted by disputants as they struggle to find a viable solution to

conflict. I hasten to add that I do not support the contention that “Governments may in

fact be more flexible about agreeing to practical arrangements in specific instances

that are somewhat in derogation of the relevant principles if those principles are

firmly established by treaty.” 25 Instead, my position with regards to international law

is analogous to Alf Ross’s position with regards to domestic law. States in search of

a peaceful settlement are flexible regardless of whether principles are established by

treaty.

The states parties’ legal power arises from the sovereignty principle. States may

enter into agreements if not contradictory to jus cogens rules. While parties to an

agreement may derogate from conventional and customary international law, “it is

well understood that, in practice, rule of international law can, by agreement, be

derogated from in particular cases, or between particular parties.” 26 Third party

mediators, courts and arbitrary panels, on the one hand, should follow the law. The

only exception is where the parties provide otherwise in the writ of summons, and ask

the court to decide a case ex aequo et bono, under article 38, paragraph.2, of the ICJ

Statute.

22 Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 39, para. 4623 ALF ROSS, ON LAW AND JUSTICE. 35 (Berkeley: University of California Press, 1959).24 See Judge McNair, 1950 ICJ Rep. 148. 25 See Bernhard Oxman & Anatolyi Kolodkin in Lori F. Damrosch, et al. (eds.), BEYOND CONFRONTATION: INTERNATIONAL LAW FOR THE POST-COLD WAR ERA 171 (Westview Press/American Society of International Law, 1995).26 1969 ICJ Rep. 42.

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Thus, states are free to enter into agreements such as treaties, covenants, and

pacts which subsequently lead to sovereignty limitations. One illustration is the

limitation of self-determination to which states parties consent when they join

UNCLOS 1982. Article 74(1) sets this forth. Accordingly, delimitations shall be

reached by agreement within the framework of international law and with the view of

reaching an “equitable solution.”

By dint of acceding to the UNCLOS, coastal states adhere to the negotiation

principle of Article 74. This article does not prescribe any particular delimitation line,

however. Parties to the UNCLOS must negotiate a solution to their maritime

delimitations. In seeking their agreement, the parties must achieve an equitable

solution. While the direction is mandatory, the exact result is not prescribed in detail.

Parties to a border conflict not only enjoy the right, but have the affirmative duty to

deviate from a median line in case “special circumstances” so decides.

Disputants are under a dyadic obligation to bilaterally prescribe an “equitable

solution.” “[I]f there is an agreement between the states there is nothing to say about

any factors which should be taken into account. They can take into account any factor

that they like if they don’t encroach upon the continental shelf of a third state.” 27

Thus, it seems to be a common understanding that “the legal debate concerning the

location of a maritime boundary, was open to any factor that might help achieve, or

identify, an equitable solution.” 28

3. An Illustration: the 2010 Norway-Russia Agreement

Norway and Russia negotiated the Agreement for almost 40 years. One reason

why the negotiations languished was the problem posed by the practical implications

of each party’s respective position.29 It was clear to the antagonists that “in certain

27 Rainer Lagoni, Discussion and Questions, in Thomas Clingan, Jr. (ed.) LAW OF THE SEA: STATE PRACTICE IN ZONES OF SPECIAL JURISDICTION 341 (The Law of the Sea Institute Hawaii 1982).28 David A. Colson, Environmental Factors: Are they Relevant to Delimitation? in E.D.Bown & R.R. Churchill (eds.), THE UN CONVENTION ON THE LAW OF THE SEA: IMPACT AND IMPLEMENTATION 220 (The Law of the Sea Institute Hawaii 1987).29 For a broader look into the legal and political environment, see ROBIN CHURCHILL & GEIR ULFSTEIN, MARINE MANAGEMENT IN DISPUTED AREAS: THE CASE OF THE BARENTS SEA (Routledge. 1992).

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geographical circumstances which are quite frequently met with, the equidistance

method, despite its known advantages, leads unquestionably to inequity, in the

following sense … The slightest irregularity in a coastline is automatically magnified

by the equidistance line as regards the consequences for the delimitation of the

continental shelf… in the case of concave or convex coastlines … then the greater the

irregularity and the further from the coastline the area to be delimited, the more

unreasonable are the results produced”.30 The Varanger peninsula “juts out” sharply

into the Barents Sea. Even though the coastal area on the Norwegian side is relatively

small, the sharp, irregular configuration on the northeastern tip of the country results

in a tremendous offshore area that greatly benefits Norway.

The equidistance method is not the only problematic approach to dividing the sea.

The Sector-line method is also imperfect.

Geographic and geometrical peculiarities close to the Poles support the claim that

the Sector-line is better adapted to Polar Regions. This geometrical fact is one reason

why comparing the Antarctic and the Arctic areas is fruitful.31 Whether “a” sector

line is the better way to divide polar regions is an open question. “The” Russia

Sector-line, as an alleged line used to determine the prolongation of the landward

mass of Russia,32 is decidedly not an option. In 1926 the Upper Soviet decreed 33 the

westernmost point of the Soviet Union to be at Cap Niemtsky. Russia has a new

border today, as a resultof the Soviet occupation of former Finnish land. Now the

country extends to the Border river of Grense-Jakob. The revised sector line – moved

from Cap Niemtsky to the river and the terminus 415 (see map figure 2), would cut

30 North Sea Continental Shelf Case, 1969 ICJ Rep. 49, para. 89. See also Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 44, para. 56, where the court states “it may yield a disproportionate result where a coast is markedly irregular or markedly concave or convex.”31 DONALD R. ROTHWELL, THE POLAR REGIONS AND THE DEVELOPMENT OF INTERNATIONAL LAW (Cambridge University Press, 1996).32 ”It is solely by virtue of the coastal State's sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law.” The Aegean Sea Continental Shelf Case, 1978 ICJ Rep. 36, para. 86.33 1926 Decree of the Presidium of the Central Executive Committee of the USSR, On the Proclamation of Lands and Islands Located in the Northern Arctic Ocean as Territory of the USSR, 32 SOBRAINIE UZAKONENII I RASPORIAZHENII RABOCHE-KREST’IANSKOGO PRAVITEL’STVA SSSR [COLLECTED LAWS AND DECREES OF THE WORKERS AND PEASANTS GOVERNMENT OF THE USSR] 203 (Apr. 15, 1926) (Rus.), translated in N.D. KOROLEVA ET AL., Pravovoi rezhim sudochodstva v Rossiiskoi Artktike [Legal Regimeof Navigation in the Russian Arctic] 4, 61 (Moscow, Soiuzmorniiproekt 1995). For further details, see FRANCKX, supra note 6.

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off Norway’s territorial sea and parts of Norway’s main land. Because any solution

must be practical, the sector line cannot solve the problem.

Neither the equidistant nor the sector line methods were viable because both

lacked technical authority. It became clear that neither one of these extreme positions

would prevail. Thus, a compromise was necessary and inevitable.

The 2010 Norway-Russia Agreement incorporates the following: First, it is a

single maritime line, delimiting both the Exclusive Economic Zone and the

continental shelf.34 Second, the border is the “half-way instrument” between the

Norwegian and Russian pretention lines. Third, in cases involving trans-boundary

reservoirs of oil and gas; a joint venture scheme is established between the parties

based on the ratio of the geographical distribution of the reservoirs. Fourth, the

fisheries allocation between Norway and Russia is not affected by the agreement. The

Bilateral Norway-Russia Fisheries Commission will continue to negotiate the

common stocks every year pursuant to the terms of the 1976 Norway-Russia

Agreement on Reciprocal Fisheries Relations.35 In practice, the common stocks are

the Norwegian Arctic cod, haddock and capelin. Fifth, regarding the EEZ

jurisdiction, the two parties came to a special arrangement. A pendent area of 3400

km2 (Grey triangle east of the borderline and west of the median line) has been

transferred to Russia.36 Sixth, the two countries’ jurisdiction is settled, both in the

Barents Sea and in the Polar Sea. And finally, the 2011 Norway-Russia delimintation

agreement terminated the Interim Agreement governing the Grey Zone Fisheries

Management System. (See figure 4).

34 For an overview, see Donald M. McRae, The Single Maritime Boundary: Problems in Theory and Practice, in E.D.Bown & R.R. Churchill (eds.), THE UN CONVENTION ON THE LAW OF THE SEA: IMPACT AND IMPLEMENTATION 225-234 (The Law of the Sea Institute Hawaii 1987).35 See St.prp.nr.74 (1976-1977) Avtale mellom Norge og Sovjetunionen om gjensidige fiskeriforbindelser, see the Norwegian Parliament (Storting) decision of December 15, 1976, Innst.S.nr.138 (1976-1977) .36 Henriksen & Ulfstein, supra note 2 refer to this fact, but do not criticize or comment upon its legality under international law.

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http://www.regjeringen.no/id/STP197619770074000DDDEPIS



Figure 1: the 2010 Norway –Russia delimitation line with terminus positions

Norway’s position is that the Agreement is “based on modern principles of

international law.”37 My focus here is on the delimitation principles solely. The

purpose of this article is to describe what these principles entail, not to describe the

substantive content of the 2010 Agreement.

4. Coming to Terms: Delimitation Procedures

In this section we will examine how to solve borderline delimitations, some of

which provoke conflicts. The starting point is the nation state’s right to unilateral

decision. This right arises from the basic principle of exclusive autonomy over one’s

own territory. Then there are the residual rights of all members of the international

society of states to execute their sovereign rights, with the exception of those curtailed

by membership in international organizations or conventions.

There are several options with regards to geographic area. First of all, are the

instruments under exclusive coastal state autonomy? These relate to the areas closest

37 Press release 15. September 2010, No. 118/10: Treaty on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean Signed Today (Oslo October 2010)

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to the coast. Exclusive coastal state autonomy is limited to the territorial sea only; it

does not apply to Exclusive Economic Zone (EEZ) or the continental shelf. All

coastal states enjoy – within strict limits – unilateral decision-making power. Under

Article 15(1) of UNCLOS, “neither of two States is entitled, failing agreement

between them to the contrary, to extend its territorial sea beyond the median line.”

Thus, if it does not extend beyond the median line, a coastal state may unilaterally

declare a boundary towards opposite or adjacent states. Principles of international

law underpin this decision. “Although it is true that the act of delimitation is

necessarily a unilateral act, because only the coastal state is competent to undertake it,

the validity of the delimitation with regard to other States depends upon international

law.” 38 Thus, the ICJ acknowledges the coastal state’s unilateral competency, within

the framework of international law.

The coastal state’s unilateral competency is limited, however. In disputes over

how to construe the nearest points on the baselines: “The Court would therefore

observe at the outset that an attempt by a unilateral act to establish international

maritime boundary lines regardless of the legal position of other States is contrary to

recognized principles of international law, as laid down, inter alia, in the Geneva

Conventions of 1958 on the Law of the Sea”.39 This was demonstrated by the

unsuccessful British claim that 10 nautical miles was the maximum distance between

two base lines points. 40 This claim was rejected in the 1951 Anglo-Norwegian

fisheries case. 41 Where two states disagree as to whether the distance between two

points is too great, which results in the median line being extended toward the other

state, one state cannot unilaterally decide the line. Where a nation state’s position is

disputed, the dispute per se suspends the unilateral competency of the neighbouring

state. A bilateral regime takes over at that point. The two disputing adjacent or

opposite states are under an obligation to come to terms by negotiation.

Norway and the Soviet Union anticipated a possible borderline dispute in the

Varanger fjord. This is why the two states came up with the 1957 solution, which

38 The Anglo-Norway Fisheries Case, 1951 ICJ Rep 132. 39 The Tunisia-Libya Case, 1982 ICJ Rep. 66, para. 87.

40 See 1951 ICJ Rep,, especially at 131.41 Id.

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drew the borderline from the nearest offshore terminus, No 415 (see figure 2). The

unclear legal situation with regards to the procedure of maritime delimitation caused

Norway and the Soviet Union to opt for a bilateral commission to fix the

geographically appropriate points upon which the median line should be drawn.

Second, beyond the territorial sea, into the EEZ and the continental shelf, bilateral

solutions are a must. Article 74 of UNCLOS 1982 provides that Parties may agree

upon one or another solution with the objective of reaching an “equitable solution,”

provided that the solution does not contravene international law. The negotiation

principle governs the area beyond 12 nautical miles. According to general principles

of international law, (see i.e. the UN Charter, Article 33.1), parties do not have a mere

duty to “sit at the table,” but must also seriously search for a viable and equitable

solution.

The parties to a maritime dispute enjoy the exclusive, unanimous power to decide

the length of the negotiation obligation, that is, how long the negotiations will last.

Parties then decide whether a “reasonable period of time” has passed. (Article 74.2)

Thus, there is no maximum limit. No international law subject or third party may

overrule the decision made by timid disputants to continue on with talks. The

Norway-Russia borderline dispute benefited from this international law position. The

countries talked for 40 years. This time was considered reasonable, and thus satisfied

international law.

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Terminus 415; at the mouth of

Grense-Jakobs river (maritime

border point # 1)

Maritime border # 2 intersection

between Norway 4 n. mile and

Russia 12 n. mile territorial sea

Maritime border # 3; median

point on the closing line Cape

Kiberg – Cape Niemtsky

The line is a ”selective utilization

of the equidistance principle”

Figure 2: the 1957 Norway-Russia agreement on the territorial sea

Where the parties have exhausted all avenues of bilateral negotiations, it is

necessary to bring in a third party to solve the dispute. Articles 15, 74 and 293 of the

UNCLOS set forth the third party solution as the necessary “next step.” When the

third party comes in, the conflict is taken out of the disputants’ hands. One issue is

whether courts have any jurisdiction at all over delimitation disputes because the

UNCLOS provisions do not set forth any clear rules or principles on this issue.

Norway’s position in the Greenland-Jan Mayen Case was that the only international

law duty imposed on the parties is a duty to negotiate.42 When Denmark (on behalf of

Greenland) and Norway failed to agree, Norway contended that the court could not

decide the case. The court rejected this argument. “To give only a broad indication of

the manner in which the definition of the delimitation line should be fixed, and to

leave the matter for further agreement of the Parties, as urged by Norway, would in

the Court’s view not be a complete discharge of its duty to determine the dispute. The

court is satisfied that it should define the delimitation line in such a way that any

questions which might still remain would be matter strictly relating to hydrographic

technicalities which the Parties, with the help of their experts, can certainly resolve.”

42 Maritime Delimitation in the Area between Greenland and Jan Mayen, 1993 ICJ Rep.77, para. 88.

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The Court also refused Norway’s alternative position of “no right to judicial

legislation.” The Russian Judge Vereshchtin is the proponent of this position. 43

Because there was no existing legal rule available to decide the dispute, Norway

insisted that the Court in the Jan Mayen case could only indicate, in a general way, the

relevant arguments, elements and considerations that the parties to the dispute should

take to obtain a peaceful solution. Norway’s position is flawed.

The court, arbitration tribunal or other mediators should take the equidistance

principle as a starting point to solve the dispute. The third party decision makers

should adjust the equidistance principle, however, in accordance with the principle of

equitable solution if special circumstances occur. This principle is customary

international law as developed by the ICJ 44 and Arbitration Awards. As the ICJ

clarified in the Libya-Malta Case; “The Court is unable to accept that, even as a

preliminary provisional step towards drawing of at delimitation line, the equidistance

method is one which must be used, or that the Court is ‘required, as a first step, to

examine the effects of a delimitation by application of the equidistance method’ …

Such a rule would come near to an espousal of the idea of ‘absolute proximity’,

which was rejected by the Court in 1969 … and which has since, moreover, failed of

acceptance at the Third United Nations Conference of the Law of the Sea.”45

As argued in the next section, this rule governs courts and other third party mediators,

but it does not necessarily bind negotiations between disputants. In 2007, Russia and

Norway resolved the third borderline agreement based on the equidistance line. The

new line follows the median line direction beyond the territorial sea by crossing the

median point of the closing line between Cape Kiberg and Cape Niemtsky. It then

continues into the Barents Sea towards the point 6, which is the intersection between

the Norwegian median line – i.e. the Norwegian pretention line and the Sector line of

Russia, i.e. the Russia pretention line. Russia bases its claim in the “doctrine of

natural prolongation” 46 from its land base to the geographic North Pole. Taken at

face value, the 1926 Upper Soviet Decree is nothing more than a claim based on

might. 43 Nuclear Weapons Advisory Opinion, 1996 ICJ Rep. 279-80.44 As stated by the International Court of Justice in the Hague (ICJ). 45 Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 37, para. 43.46 As was the case of Libya, see Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 33, para. 34.

16



• The prolongation of the 1957

borderline beyond the Cap Kiberg-

Cape Niemtsky closing line

• The 2007 Agreement Article 2:

borderline delimits the territorial sea,

the EEZ, the continental shelf and

other zones according to the law of the

sea.

• The terminus at point 6 is the

intersection between the sector and

median line

17



Figure 3: The Norway-Russia borderline beyond the territorial sea

Eo ipso it is scarcely valid under international law. It includes both discovered

and undiscovered lands, which is why it is legally baseless. As it happens, Russia

rejects that the “decree made any indication as to the status of water space adjacent to

those islands. In the following years, the Soviet government never applied the decree

of 1926 to assert that the whole triangular shaped area between the Northern Coast

and the North Pole was part of the Soviet territory or of Soviet internal or territorial

waters.” 47 We need to weigh all these factors when defining the Russia-Norway

delimitation line.

Figure 3 illustrates the 2007 Norway Russia Agreement. The line drawn there

results from the negotiation principle and is a practical adaptation to two facts: first,

that Russia maintained its claim to a Sector line; and second, that the Norwegian

median claim met at an intersection named “Point 6.” In the 2010 Agreement, the

former Point 6 is the new Point No. 1. As such, it was the starting point for the final

solution to the parties’ conflict.

5. The 2010 Norway-Russia Negotiation Platform and Compromise

How to characterize the Norway-Russia solution? Is it “best described as a

modified median line or a modified sector line”? 48 My answer is that neither one of

these positions is accurate. The law of the sea does not prescribe any pre-determined

solution as the one and only one relief or deliverance. Parties to a dispute may opt for

whatever solution they choose, provided that it is “equitable.” (Article 74.1) Clearly

the Norwegians and Russians opted for a “half-way instrument” as their solution.

47 Daniel Magraw, Suzanne Lalonde, Bakhtiyar Tuzmukhamedov and David D. Caron, Polar Politics: Change in The Arctic, Proceedings of the Annual Meeting, AM. SOC. INT’L LAW 151, 155 (2008).48 Henriksen & Ulfstein raise this issue, supra note 2 at 7.

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"Due to the practicalities of the case, the number of boundary posts at the

delimitation line is limited. This does not to corrupt the overall distribution of the

area, however. In the final calculation, the parties agreed upon a solution that

split the disputed area into two approximately equally sized parts."49

Before considering whether the “half-way instrument” qualifies as an equitable

delimitation, the actual half-way instrument developed in the Norway-Russia case

needs qualification. What is it? The understanding of the Norwegian government is

that the half-way instrument is “the split of the disputed area into two approximately

equally sized parts".50 Is it possible to clarify what this means?

Figure 4: Norway and Russia disputed area and pretention lines

The following analysis results from studies into the history of border agreements,

preparatory works (some of which I discuss in the the next section), and the 49 Prop. 43 S (2010–2011) Proposisjon til Stortinget [Proposition to the Norwegian Parliament on the ratification of the bilateral agreement between Norway and Russia on the marine delimitation and cooperation in the Barents Sea and Polar Sea] p. 6 col. 2.50 Prop. 43 S (2010–2011) Proposisjon til Stortinget [Proposition to the Norwegian Parliament on the

ratification of the bilateral agreement between Norway and Russia on the marine delimitation and

cooperation in the Barents Sea and Polar Sea] p. 6 col. 2.

M

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proposition to the Storting.51 The substance of the parties’ negotiating platform,

positions and compromise is the following: Even though Russia disregarded the

median line as the proper principle of delimitation in this particular case, Russia did

recognize the median line proposed by Norway as the Norwegian pretention line. The

reverse is also true. Norway recognizes the Russia sector line as a Russian pretention

line. These lines close the disputed area at their point of intersection. The equally

sized parts are measured from this point. Thus the half-way instrument is not related

to the baselines. Instead, the solution comes out of the historical facts over which the

disputants have been clashing for approximately 40 years.

Article 74.1 provides that the parties’ solution must build on international law.

The issue, therefore, is whether the half-way instrument, as set forth in the Norway-

Russia 2010 Agreement, is a valid delimitation principle under the Law of the Sea?

Conventional international law does not provide for this outcome. However, rules

compulsory to third party solutions do not necessarily prescribe the outcome of

bilateral solutions. Article 74.1 does not impose any particular solution with regards

to bilateral negotiations. The discretionary power of the negotiating parties is limited

by jus cogens only. This is why I fully support Rainer Lagoni’s claim that disputants

have the legal power to bilaterally prescribe “the equitable solution” under Article

74.1. Thus, “if there is an agreement between the states there is nothing to say about

any factors which should be taken into account. They can take into account any factor

that they like if they don’t encroach upon the continental shelf of a third state.”52

Bernhard Oxman also gets it right. “When states negotiate with each other, they can

generally consider any factors that they wish, and the International Court of Justice

recently made that quite clear”.53 Thus, international law does not require the

negotiating parties to choose between a sector or a median line solution. Parties are

free to opt for a wide range of solutions, such as “non- encroachment; proportionality;

and natural prolongation in its geographic sense, or coastal-front extension.”54 Of

51 Id. 52 Lagoni, supra note 25 at 341.53 Bernard Oxman, Introduction in E.D.Bown & R.R. Churchill (eds.), THE UN CONVENTION ON THE LAW OF THE SEA: IMPACT AND IMPLEMENTATION 215 (The Law of the Sea Institute Hawaii 1987). 54 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v.United States), 1984 ICJ Rep. 261.

20



course, nothing prohibits parties from following ICJ judgments or Arbitration

Awards. Parties choose to do so, however, of their own free will.

I conclude, therefore, that the 2010 Norway-Russia Agreement is in accordance

with international law. Whether it should be characterized as a modified median-line

or modified sector-line is a false dichotomy.55 The agreement could best be described

as a “half-way” solution, the substance of which will be investigated in the next

section. In the following sections, I will discuss whether the Agreement represents a

one-time practical solution, or whether it adheres to a customary principle of

international law, instead. We urgently need clear cut and predictable solutions. It is

not easy to come up with them, however. Up till now, no one has discovered how to

do so.56

6. The Basic Principle of Equitable Delimitation

“As a result of compromise, Articles 74(1) and 83(1) are

intentionally opaque. They do not provide a privileged

position to any criteria or methodology to be used by

States.”

Ted L. McDorman 57

Case law has developed the principle of equity. The purpose of negotiation is to

achieve a delimitation that is equitable, not an equal apportionment of maritime

areas.58 Thus, the parties do not come to the table to insist upon equally divided

marine basins – in casu the Barents Sea in a ratio close to 1:1. Instead, disputants

negotiate to find solutions that both sides can live with. The very purpose of the

median line, however, is to split the adjacent waters into two approximately identical

55 As discussed by Henriksen & Ulfstein, supra note 2 at 7.56 As stated by Peter B. Beazley, Commentary in Thomas Clingan, Jr. (ed.) LAW OF THE SEA: STATE PRACTICE IN ZONES OF SPECIAL JURISDICTION 320 (The Law of the Sea Institute Hawaii 1982).57 TED L. MCDORMAN, SALT WATER NEIGHBORS — INTERNATIONAL OCEAN LAW RELATIONS BETWEEN THE UNITED STATES AND CANADA (Oxford University Press 2009).58 As stated by ICJ in: The North Sea Continental Shelf Case, 1969 ICJ Rep. para. 18; Maritime Delimitation in the Area between Greenland and Jan Mayen, 1993 ICJ Rep. para. 64; and Marine Delimitation in the Black Sea (Romania-Ukraine), 2009 ICJ Rep. 100, para. 111.

21



sized areas. This is why I agree with David A. Colson, who has stated that “[t]he

provisional equidistant line does not imply a legal presumption in its favor.” 59

What is the jurisdictione ratione materiae of the equity principle? As a starting

point, we need to agree that the sources that bind the International Court of Justice are

not only those principles already recognized as law. In addition, the ICJ must adhere

to principles that many consider to be extra-legal principles. As the court stated in

the 1950 Advisory Opinion on Namibia: “International law recruited … many of its

rules and institutions from private systems of law… The way in which international

law borrows from the source is not by means of importing private law institutions

’lock, stock and barrel’ … [T]he true view … is to regard any features or terminology

which are reminiscent of the rules … of private law as an indication of policy or

principle rather than as directly importing these rules and institutions.” 60

Both Norway and Russia are parties to UNCLOS 1982. As such, both are bound

by Articles 74 and 83. Under the terms of these articles, both parties must agree upon

delimitation lines that fulfill the objective of an “equitable solution.” The reference to

equity in the legal language refers to the institution of equity and its principles. Both

are incorporated into international law. “Equity as a legal concept is a direct

emanation of the idea of justice. The Court whose task is by definition to administer

justice is bound to apply it.” 61

That said, what is the equity principle all about? Does the Norway-Russia “half-

way instrument” qualify as equitable delimitation? If it is a legally binding

instrument, then the parties must be equally bound by equity because in international

law, “the legal concept of equity is a general principle directly applicable as law.” 62

The ICJ has maintained this principle when deciding a wide range of cases. In the

Barcelona Traction Case, for example, the Court defined its role as existing “to

confirm and endorse the most elementary principles of morality”.63 Equity forms part

of both third party solutions and bilateral agreements. Therefore, the importance of

59 Colson, supra note 1 at 101.

60 See Judge McNair, 1950 ICJ Rep. 148. 61 1982 ICJ Rep. 60, para. 71.62 Id. 63 1970 ICJ Rep. 23.

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the equitable principle, as construed by the International Court of Justice and

Arbitration Awards, is not limited to its value for judicial precedent. It also serves as

a guideline to states parties in future delimitation conflicts.

As the ICJ has stated explicitly, the “[a]pplication of equitable principles is to be

distinguished from a decision ex aequo et bono.”64The Statute of the International

Court of Justice (1945) also distinguishes the two in Article 38. Thus, our task here is

to consider whether the “half-way-solution” enjoys the status of valid international

law (as discussed in Section 8).

Let’s look at some of the factors the court has taken into consideration when

deciding delimitation cases. This is a non-exhaustive list of considerations. 65 First

and foremost, are there any disparities in the relevant coastal lengths? Great

disparities, like the ones in the case of Jan Mayen-Greenland (1:9) 66 and Tunisia-

Malta (1:8) are relevant. Lesser disparities, like the ones in the Romania-Ukraine

(1:2.8) 67 case are not. Second, what about any cut-off effect? Should it be

considered? Disparities and cut offs are particularly relevant to the Barents Sea

delimitation. The Norway-Russia coastal zone ratio is approximately 1:6. According

to the ICJ, this is a major disparity. However, if implemented as the final borderline,

the unmodified sector line would create impossible cut off effects not only to the

territorial sea, but also to the undisputed territory of Norway at Spitsbergen according

to the Svalbard Treaty of 9th February 1920.

Third, are there any special circumstances surrounding other maritime

delimitations in the area? Special circumstances include the nature of the sea and land,

concavity, convexity, and direction of the current land base. Are they any islands

located in the area?

Fourth, should the parties’ conduct be the “line arising from a tacit agreement or

a modus vivendi?” 68 As explained earlier, the court has explicitly refused to weigh the

parties’ conduct in earlier decisions. Fifth, has a particular borderline created special

64 1982 ICJ Rep. 60.65 For an overview and discussion of the present development, see Colson, supra note 1 at 91-107.66 See Jonathan I. Charney, Maritime Delimitation in the Area between Greenland and Jan Mayen, 88 AM. J. INT’L LAW, 105, 105-109 (1994).67 2009 ICJ Rep. 98, para. 104.68 Romania-Ukraine Case, 2009 ICJ Rep. 123, para. 189.

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security considerations? This has been a relevant factor in the equity inquiry in the

above referred cases.

Leaving aside the third party solutions and the factors that are relevant to the

principle of equity, under a bilateral scheme, any other factors considered appropriate

by the disputants to obtain “an equitable solution” are also relevant as long as they do

not contravene Jus Cogens principles.

7. Is the Norway-Russia Result Influenced by the Grey Zone Arrangement?

Does the Grey Zone Agreement limit the Norway-Russia options? Has either

Norway or Russia acquiesced in a particular line of division as the principle of

delimitation pursuant to this intermediate agreement?

The Grey Zone Agreement does not suggest such a position. The background to

this intermediate solution was fisheries concerns. Both parties put petroleum

explorations on hold when negotiating the Grey Zone Agreement. Because Norway

and Russia were afraid that foreign fishing fleets were emptying the fish-rich fishing

grounds of the Barents Sea, both countries introduced the Exclusive Economic Zone

in 1977. In the interregnum before the countries were able to settle a final delimitation

line, IUU fishing in the loop holes and the high sea continued unabated. Both parties

were anxious about this situation. Thus, even though the two countries disagreed on

the adjacent and opposite delimitation, they were both able to agree that they needed

several rounds of negotiations before they could ultimately resolve their differences.

The so-called Grey Zone Agreement was reached against this background to serve as

an interim and practical agreement for the time being. 69 Its purpose was in no way

intended to delimit the continental shelf. It cannot qualify as a tacit acknowledgment

by the parties to any particular future solution.

This is not the place to present or discuss the many aspects of this

arrangement. Because the Grey Zone Agreement is no longer valid, I am mainly

interested in discussing whether there are any Grey Zone influences on the final 2010 69 St.prp.nr.70 (1977-1978) Avtale mellom Norge og Sovjetunionen om en midlertidig praktisk ordning for fisket i et tilstøtende område i Barentshavet med tilhørende protokoll og erklæring (Grey Zone Agreement) and the Norwegian Parliament (the Storting) decision of March 9, 1978, see Innst.S.nr. 190 (1977-1978).

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Norway-Russia Agreement. As explicitly stated in the intermediate agreement, the

Grey Zone is a practical solution to fisheries management in an adjoining area of the

Barents Sea (map in figure 5, see the dotted area). Flag state jurisdiction governed the

respective coastal state’s fishing vessels. Third state vessels applied for and were

issued licenses by the relevant coastal state, but the coastal state’s licensing terms and

procedures were governed by the Norway-Russia Grey Zone Agreement. Clearly, this

now-terminated zone agreement did not affect the allocation of fish between two

countries.70

Figure 5: The dotted area is covered by the Grey Zone Agreement

De jure understanding is that the intermediate solution shall not “jeopardize or

hamper the reaching of the final agreement”.71 Both parties emphasized this

70 This is regulated by two agreements on fisheries cooperation of 11th April 1975 and 15th October 1976.71 St.prp.nr.70 (1977-1978) Avtale mellom Norge og Sovjetunionen om en midlertidig praktisk ordning for fisket i et tilstøtende område i Barentshavet med tilhørende protokoll og erklæring (Grey Zone Agreement) and the Norwegian Parliament (the Storting) decision of March 9, 1978, see Innst.S.nr. 190 (1977-1978).

Sector line

Median line

Grey zone

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repeatedly for more than 30 years during the annual negotiations that took place to

prolong the 1978 Agreement. The parties also stated this explicity to the UN

Commission on the Limits of the Continental Shelf (UNCLOS 1982, Annex II). The

Commission’s work on the acknowledgment of the outer borders of the coastal state

shelves should not prejudice in any sense the remaining bilateral questions on

overlapping claims.72

De facto one cannot disregard such a long lasting intermediate solution and claim

that it had no influence upon the agreement that finally solved the dispute. My

understanding is that the Grey Zone necessarily delimits the direction that the final

line of delimitation would take. Because the Grey Zone extended from a line west of

the Sector Line and also extended, in part, from a line east of the median line, this

“bottleneck” was not particularly severe or burdensome. I would thus conclude, as did

the ICJ in the Libya-Malta Case, that the “history of the dispute, and of the legislative

and exploratory activities in relation to the continental shelf, do not require to be set

out at length, since the Court does not find that anything of moment turns on

considerations derived from this history.”73

8. The “Half-Way Instrument” - jurisdictione ratio materiae

As a starting point, we have to agree on the sources of equity as a delimitation

principle. Equity is codified law of the sea and was previously customary

international law.74 “The combined ‘equidistance-special circumstances rule’, in

effect, gives particular expression to a general norm that, failing agreement, the

boundary between States abutting on the same continental shelf is to be determined on

equitable principles.” 75 The puzzle here is whether a discretionary equity law of

delimitation can include a more or less fixed half-way-principle? If it can, what is the

72 Prop. 43 S (2010–2011) Proposisjon til Stortinget [Proposition to the Norwegian Parliament on the ratification of the bilateral agreement between Norway and Russia on the marine delimitation and cooperation in the Barents Sea and Polar Sea] p. 4 col. 2.73 Case Concerning the Continental Shelf; Libya-Malta, 1985 ICJ Rep. 28, para. 24.74 For a general account, see PETER ØREBECH & FRED BOSSELMAN, ET AL, THE ROLE OF CUSTOMARY LAW IN SUSTAINABLE DEVELOPMENT, in particular, Chapter 9 (Cambridge University Press 2005).75 Anglo-French Delimitation Case (1977) UN Rep. of International Arbitral Awards (RIAA) Vol. XVIII, p. 45, paragraph 70

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substantive rule? As to the “half-way” solution, what are its parameters? In other

words, “half way” between what? Are these social, political or geographic factors?

Clearly, they cannot be economic factors because they are not relevant to the equity

inquiry: “The Court is, however, of the view that these economic considerations

cannot be taken into account for the delimitation of the continental shelf areas

appertaining to each Party.” 76

The intricate question is whether the half-way solution is a customary law

principle at all. The question is two-fold. First, is it indeed a practical, concrete, and

periodically adjusted “equitable solution” upon which no firm line of normative

structure is set forth? If it is, then what is its substantive content?

The disputants’ agreements do not preclude any particular solution, nor do case

law or the “teachings of the most highly qualified publicists of the various nations” 77

prohibit the parties from taking into account any concern they find relevant.78 Thus,

any “half way instrument” of whatever kind is appropriate if the parties so decide.

The main purpose of this section is to consider evolving delimitation practices.

Does the “half-way” method, as practiced by nation states or reached in third party

solutions, satisfy international law? Does the equity principle acknowledge a half-

way-solution in order to solve delimitations conflicts?

A. General Introduction

Before discussing state practices on the delimitation of disputed areas, I must

make some general comments upon the position of “half-way-solutions” under

international law. The “half-way” solution is widely recognized in most fields of

diplomacy and international law. See, for instance, the U.S – India Civil Nuclear

Deal, which, according to the former U.S. Secretary of State, Condoleezza Rice,

represents a halfway instrument that is the best way to preserve international

safeguards and peace.79 In relation to the Iraq sanctions approved by the U.N.,

political theory studies show the bargaining model as a “halfway point between 76 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 77, para. 107.77 Statute of the International Court of Justice, art. 38, para. 3(d), June 26, 1945, T.S. 993.78 See Lagoni, supra note 25 at 341. See also, Colson, supra note 26 at 220.

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continuing and ending sanctions”.80 This is difficult to prove in situations of mismatch

between disputants, cf. the “American Empire Debate”.81

While half-way instruments are complicated in non-quantifiable conflicts, they

are much more straightforward where the disputants’ positions are clear and where the

conflict relates to measurable discrepancies. This is the context in maritime

delimitation matters. Under the law of the sea, the negotiation principle, grand

bargaining and half-way instruments all have a role to play. Since the early

discussions on the UNCLOS I, which ultimately concluded the four 1958 Geneva

Conventions on the Law of the Sea, the International Law Commission (ILC) has

included the half-way solution as a possible conflict solving instrument. For instance,

in the ILC discussion on the regime of the high seas,82 a half-way instrument was

discussed in relation to the coastal state’s regulatory competence beyond its territorial

sea. In the end, however, it “did not seem feasible” even though “the true

requirements of equality were met” (paragragh 27). Granted, these problems were

somewhat different from the borderline problems discussed here. Nonetheless, the

ILC has determined that the half-way instrument satisfies equity law. This general

observation is important. My understanding is that a half-way instrument may be

invoked in most law of the sea conflicts.

Focusing on maritime delimitation, it is clear that the “half-way instrument” is a

function of the factual context: namely, the political situation of overlapping claims

and the discontinuous, conflicting jurisdiction over seabed and waters. This is why

the parties have to solve these disputes in legal and political forums. In this context,

grand bargain theories play a role. Parties also share the basic understanding of “the

principle that although all States are equal before the law and are entitled to equal

treatment, ‘equity does not necessarily imply equality’ (I. C. J. Reports 1969, p. 49,

79 Kate Heinzelman, Note: Towards Common Interests and Responsibilities: The U.S.-India Civil Nuclear Deal and the International Nonproliferation Regime, 33 YALE J. INT'L L. 447, 460 (2008).80 Euclid A. Rose, From a Punitive to a Bargaining Model of Sanctions: Lessons from Iraq, 49 INT’L STUDIES QUARTERLY, 459, 461 (2005). 81 See Daniel H. Nexon & Thomas Wright,; What's at Stake in the American Empire Debate, 101 AM. POL. SCI. REV.253 (2007), with further references.82 Yearbook of the International Law Commission, ‘Vol. I: New Draft Articles on Fisheries, A/CN4/79,/CONF.10/6 (301st meeting – 31 May 1955) p. 109.

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Section 9l).” 83 This is the special circumstances discussion. What are special

circumstances? What situations trigger a modification to the equidistance method?

B. The Irrelevant Argument of Resources Utilization

Third parties who adjudicate borderline disputes treat the following factors as

relevant. Are there any disparities in relevant coastal lengths? Would one or the other

borderline produce any possible cut-off effects?84 Are there any special circumstances,

such as barren reefs, remote, uninhabited islands or other maritime delimitations in

the area (see Section C)? What is the nature of the disputed waters? Is an agreement

already in place based on the parties’ conduct, i.e. binding tacit or Modus Vivendi

solutions? Should security considerations be taken into consideration?85

Sometimes resources utilization arguments are listed among the special

circumstances that justify a departure from the equidistance principle. Resources

utilization is one of the special circumstances listed as relevant to the adjustment of

pure geographic and geomorphological measurement. At the same time, however,

“[r]esource-related criteria have been treated more cautiously by the decisions of

international courts and tribunals, which have not generally applied this factor as a

relevant circumstance”.86

Instead of applying such complicated and complex reasoning, would it be better

to apply the proportionality principle somewhat mechanically? Perhaps reinstating

the principle of half-way instrument would suffice (see Section D)?

C. The Role of the Proportionality Principle

Before discussing the position and role of “half-way instruments,” I will consider

the position of the proportionality principle in the delimitation process. The half-way

83 See Libya-Malta Continental Shelf Case, 1985 ICJ Rep. 39, para. 46. 84 Weighed as a relevant factor in the ICJ’s holding in Romania-Ukraine Case 2009 ICJ Rep. para. 199-201.85 A relevant factor for the ICJ in the Romania-Ukraine Case, Id. at para. 202-20486 Arbitral Tribunal in the case between Barbados and Trinidad and Tobago Award of 11 April 2006, RIAA, Vol. XXVII, p. 214, para. 241

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option that Norway and Russia chose complies with the most recent case law

development. The parties departed from fixed, treaty-prescribed principles in favour

of a case-by-case view where the ultimate objective was to reach an “equitable

solution.” This is very similar to the equidistance/special circumstances method

applicable in delimitation of the territorial sea. It involves first drawing an

equidistance line, then considering whether there are factors calling for an adjustment

or shifting of that line in order to achieve “an equitable result.” 87 Shifting from the

equidistance line to another more equitable line does not require or imply a shift in

principles. Instead, it involves only a shift in methodology.

“The Court observes that … the relevant area is pertinent to checking

disproportionality. This will be done as a final phase of methodology. The

purpose of delimitation is not to apportion equal shares of the area, nor indeed

proportional shares. The test of disproportionality is not in itself a method of

delimitation. It is rather a means of checking whether the delimitation line arrived

at by other means needs adjustment because of a significant disproportionality in

the ratios between the maritime areas which would fall to one party or other by

virtue of the delimitation line arrived at by other means, and the lengths of their

respective coasts”.88

Thus the equidistance line is the starting point which may then be adjusted by

such relevant factors as the disparity, or the disproportion, of coastlines. However, the

proportionality method is not the easy fix that replaces the vague, discretionary and

unpredictable “equity solution.”

“Its weakness as a basis of argument, however, is that the use of proportionality

as a method in its own right is wanting of support in the practice of States, in the

public expression of their views at (in particular) the Third United Nations

Conference on the Law of the Sea, or in the jurisprudence.”89

87 Cameroon-Nigeria Case 2002 ICJ Rep. para. 288.88 Romania-Ukraine Case, 2009 ICJ Rep. Para. 110.89 Libya-Malta Case 1985 ICJ Rep. 45, para. 58.

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The ICJ took a similar position recently. “This is not to suggest that these

respective areas should be proportionate to coastal lengths”.90 Only “a substantial

difference in the lengths of the parties’ respective coastlines may be a factor to be

taken into consideration in order to adjust or shift the provisional delimitation line”.91

Accordingly, I agree with Ted L. McDorman when he says that “In light of the recent

case law, both of these roles for proportionality are questionable”.92 Thus, we need

alternative principles to better predict how to solve future delimitation conflicts.

D. Delimitation Practices: The Reinstatement of a “half-way instrument”?

Do emerging state practices and third party solutions evidence new legal

developments? The task is to consider the 2010 Norway-Russia solution in light of

state practices. As mentioned earlier, several maritime space conflicts have

successfully sought out half-way principles to obtain the prescribed “equal solution”

of UNCLOS Articles 74 and 83.93 The puzzle is whether these solutions qualify as

international customary law, or do they constitute evolving law, i.e. the praeter legem

position? Is the half-way option an evolving principle of law based on its proven

success rate at solving conflicts?

In 1909 a half-way instrument in maritime delimitation was introduced as a

preview to the instrument’s more recent success. The successful introduction took

place in the Arbitration Award in the Norway-Sweden border case.

90 Romania-Ukraine Case, 2009 ICJ Rep. 103, para. 122.91 The Cameroon-Nigeria Case, 2002 ICJ Rep. 446, para. 30.92 MCDORMAN, supra note 55. 93 See the list of cases modifying the full effect of equidistance principle, in Id. at 201.

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Figure 6: Norway- Sweden maritime delimitation of 1909

“From point 18 situated as indicated on the chart annexed to the

project of the Norwegian and Swedish commissioners of August 18,

1897, a straight line is traced to point 19, constituting the middle point

of a straight line drawn from the northernmost reef of the Roskaren to

the southernmost reef of the Svartskjar, the one which is provided with

a beacon;

From point 19 thus fixed, a straight line is traced to point 20,

which constitutes the middle point of a straight line drawn from the

northernmost reef of the group of reefs called Stora Drammen to the

Hejeknub situated to the southeast of Heja Islands; from point 20 a

straight line is drawn in a direction of west 19 degrees south, which

line passes midway between the Grisbadarna and the Skjottegrunde

south and extends in the same direction until it reaches the high sea”.94

Thus; the delimitation principle upon which the tribunal based its Award is the

“middle point of a straight line” and a line drawn “midway” between two important

fishing grounds over which both Norway and Sweden claimed sovereignty. The basis 94 The Hague Court Report, The Arbitration Award; The Grisbadarna Case (1909) p. 133.

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for the tribunal’s consideration was the two overlapping pretention lines that Norway

and Sweden presented to the Court, as indicated by the above map.

The Libya-Malta Case, decided under customary international law,95 produces

fruitful understanding on the role and importance of state practice. “The Court for its

part has no doubt about the importance of State practice in this matter.” The practices

are relevant factors of interpretation. Nevertheless, because the practices are rather

ambiguous, it is unclear which principle of law governs in conflicts between states on

opposite or adjacent, overlapping, geographical claims:

“Yet that practice, however interpreted, falls short of providing the existence of a

rule prescribing the use of equidistance, or indeed of any method, as obligatory.

Even the existence of such a rule as is contended for by Malta, requiring

equidistance simply to be used as a first stage in any delimitation, but subject to

correction, cannot be supported solely by the production of numerous examples

of delimitations using equidistance or modified equidistance, though it is

impressive evidence that the equidistance method can in many different situation

yield an equitable result”.96

Thus, the equidistance principle – which is identical to the median line “since the

method of delimitation is the same for both”97 – may in some instances fully adapt to

the equitable result, as held by the ICJ in the Cameroon-Nigeria Case.98 In the Libya-

Malta Case, the parties seemed to agree that special circumstances existed that

justified a modified principle however: “Parties have indicated that the consequences

of the application of any method initially adopted are to be tested against certain

criteria in order to check the equitableness of the result”.99 Libya argued that neither

party faced a problem of overlapping continental shelves due to a “rift zone.” The ICJ

rejected this claim “since the distance between the coasts of the Parties is less than

95 Case Concerning the Continental Shelf; Libya-Malta, 1985 ICJ Rep. 29, para. 26.96 Id. at 38, para. 44.97 Marine Delimitation in the Black Sea (Romania-Ukraine), 2009 ICJ Rep. 101 para. 116.98 Case Concerning theLand and Maritime Boundary between Cameroon and Nigeria, 2003 ICJ Rep. 448, para. 306.99 Case Concerning the Continental Shelf; Libya-Malta, 1985 ICJ Rep. 24, para. 19.

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400 miles”.100 Because the court fully rejects the geological principles of delimitation,

factors relevant to a legal solution include only socio-political principles. “As the

Court has found above, the law applicable to the present dispute, that is, to claims

relating to continental shelves located less than 200 miles from the coasts of the States

in question, is based not on geological or geomorphological criteria, but on a criterion

of distance from the coast or, to use the traditional term, on the principle of adjacency

as measured by distance.” [Italics added.] 101

The Court then turned its attention to the actual principle to apply in the case of

the Libya-Malta delimitation, which involved a “delimitation as between rival

claims.”102 In this holding, the Court refrained from considering base-points along the

straight baseline of Malta. This would have included an uninhabited island. Thus,

Malta’s equidistance claim came out differently when measured from the straight

baseline, including the uninhabited island, and whether the perpendicular through

base-points along the Tunisian coast was taken as basis than it did when this

perpendicular was not taken into account. On these two different starting points, two

different lines were imposed: “Once it is contemplated that the boundary requires to

be shifted northward of the median line between Libya and Malta, it seems

appropriate first to establish what might be the extreme limit of such a shift.” 103

The 1977 Arbitration Award between Great Britain and France relied on the

importance of “special circumstances." As stated by the panel;

“A number of examples are to be found in State practice of delimitations in which

only partial effect has been given to offshore islands situated outside territorial

sea of the mainland. The method adopted has varied in response to the varying

geographical and other circumstances of the particular cases, but in one instance,

at least, the method employed was to give half, instead of full, effect to the

offshore island in delimiting the equidistance line. The method of giving half

effect consists in delimiting the line equidistant between the two coasts, first,

without the use of the offshore island as a base-point and, secondly, with its use 100 Id. at 35, para. 39.101 Id. at 46, para. 61.102 Id. at 47, para. 62.103 Id. at 51, para. 71.

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as a base-point; a boundary giving half-effect to the island is then the line drawn

mid-way between those two equidistance lines. The method appears to the Court

to be an appropriate and practical method of abating the disproportion and

inequity…”104

Figure 7: The half-way of the Great Britain-France overlapping pretention lines

Several aspects of this award are illustrative. The two overlapping approximation

claims – the southern UK claim which took the Scilly Islands into consideration, and

the northern French claim, which overlooked these UK islands – are taken as the

boundaries upon which the half-way instrument is drawn.

The British and French pretentions were taken as a fait accompli upon which the

award was given. The 1982 ICJ holding in the Tunisia and Libya continental shelf

delimitation applied the “half-effect” principle. The court drew two lines – one east

of the Kerkennah Islands, and another as the perpendicular from Gulf of Gabes and

the Cape of Ras Kabodia as illustrated by the following map (figure 8):

104 Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Arbitration Award Decision of 30th June 1977.

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“The Court would recall however that a number of examples are to be found in

State practice of delimitations in which only partial effect has been given to

islands situated close to the coast; the method adopted has varied in response to

the varying geographical and other circumstances of the particular case. One

possible technique for this purpose, in the context of a geometrical method of

delimitation, is that of the "half-effect" or "half-angle".”105

The court chose the “half-effect” or “half-angle” principle reasoning that Libya’s

domestic regulation sea border lines were not “opposable to Tunisia, that the ZV 45o

line is not opposable to Libya … neither can be taken into consideration for the

purposes of this Judgment”.106 On the other hand,

“It is to be noted that in the present case Tunisia, having previously argued in

favour of a delimitation by the equidistance method for at least some of the area

in dispute, contended in its Memorial that the result of using that method would

be inequitable to Tunisia; and that Libya has made a formal submission to the

effect that in the present case the equidistance method would result in an

inequitable delimitation. The Court must take this firmly expressed view of the

Parties into account.” 107

105Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep.79, para. 110.106Id. at 69, para. 92.107 Id. at 79, para. 110.

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Figure 8: The Tunisia and Libya pretention lines (left) and borderline and half-

effect principle of islands (right).

On this basis, the Court’s holding resulted de facto – as indicated by the map in

figure 7 – in two, close to half-way instruments between the Tunisian pretention lines

from Ras Agir indicated by the left map, and the Libyan pretention line from that

same land based terminus. Perhaps one might see this as an early sign of the mid-way

instruments to come?

The next case that has a bearing on our investigation into the “half-way-solution”

is the Gulf of Maine Case.108 This Court decision considers not onlythe “half-effect”

of a particular Island (Machias Seal Island), but also “half-effect” of some

geographical peculiarities (Chebogue Point). The Court was unwilling to give full

effect to the geographic configuration of Nova Scotia with its southernmost island.

“The Chamber however considers that it would be excessive to treat the coastline of

Nova Scotia as transferred south-westwards by the whole of the distance between Seal

Island and that coast, and therefore thinks it appropriate to give the island half

108 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v.United States), 1984 ICJ Rep. 246.

37

Tunisia ZV 45o

Final borderline

Libya pretentio

n line



effect.”109 As indicated by the two maps in the figure, the judicially determined

borderline is politically motivated and not a mechanical solution resulting from pure

geodetic and geometrical factors.

While the decision seems rather technical because it takes geodetic and geometric

methods into consideration, the Court did not reject the relevance of the political or

human geography. Instead, it found both factors to “be relevant to assessment of the

equitable character of a delimitation first established on the basis of criteria borrowed

from physical and political geography.” 110 Both factors related to fishing and

exploration and exploitation of possible petroleum resources. The court did not reject

them out of hand, but instead considered them fully before finding them without

relevance to the objective of an “equitable solution.” These findings of fact led the

court to the following legal conclusion:

“In short, the Chamber sees in the above findings confirmation of its conviction

that in the present case there are absolutely no conditions of an exceptional kind

which might justify any correction of the delimitation line it has drawn. The

Chamber may therefore confidently conclude that the delimitation effected in

compliance with the governing principles and rules of law, applying equitable

criteria and appropriate methods accordingly, has produced an equitable overall

result”.111

This judgment confirms the existence of a principle of “half-effect” to geographical

peculiarities such as islands that cannot sustain human habitation. “Half-effect” can

also apply to configurations of nature which, if the equidistance principle were to be

given full effect, would result in unequal distribution of maritime space. As the maps

indicate, the settled border is a delimitation line that de facto divides the disputed area

by means of a line in between the two pretention lines even if it does not divide them

exactly in half.

109 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States), 1984 ICJ Rep. 337, para. 222. 110 Id. at 340, para. 232 .111 Id.

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Figure 9: Canada- U.S. Pretention Lines vs. Final Border Line

The Court’s emphasis on the relevance of the human and political geography to

its decision is also important. These factors are relevant to an equity solution.

Equidistance, on the other hand, measures only a set of base points, that is, the

“physical” geography.112 Physical geography is not a factor of relevance to the

“equitable solution” inquiry.

The ICJ also considered geopolitical factors in the 1993 Greenland-Jan Mayen

Case. Denmark (on behalf of Greenland) argued for a full-fledged EEZ reaching 200

n. miles from baselines on the East-Greenland coast. Norway asserted a non-modified

median line. The court rejected both parties’ claims. “The Court has come to the

conclusion that the median line adopted provisionally for both, as first stage in the

delimitation, should be adjusted or shifted to become a line such as to attribute a

larger area of maritime space to Denmark than would the median line. The line drawn

by Denmark 200 nautical miles from the baselines of eastern Greenland would

however be excessive as an adjustment, and would be inequitable in its effects. The

112 Romania-Ukraine Case, 2009 ICJ Rep. 101, para. 117.

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delimitation line must therefore be drawn within the area of overlapping claims,

between the lines proposed by each Party.”113

This reasoning takes the disputants’ asserted pretention lines as a point of

departure when seeking the equitable solution. On the one hand, the court weighed

Denmark’s claim to full extension of its EEZ without taking into consideration that

the Greenland-Jan Mayen distance was closer than 400 n.miles. By that very decision,

the median line as delimitation principle was relinquished. On the other hand, the

court also weighed Norway’s contention that it follow the median line irrespective of

any special circumstances that might occur. Consequently, the Court sought a “half-

way-solution,” that is, a line closely related to the parties’ asserted line, which the

Court deemed equitable.

As demonstrated by the circumstances, the Court opted for a modified “half-way

instrument” drawn between the Norwegian pretention line – the median line – and the

full-fledged EEZ of Greenland. In the southern area – Zone 1 – capelin fishing takes

place. Here, the Court chose to grant the parties equal fishing opportunities through

the delimitation it chose. To do so, it “divide[d] zone 1 into two parts of equal

area.”114 This delimitation line, splitting Zone 1 into two equally sized areas, was

modified, however, when it continued into Zones 2 and 3. In those circumstances, a

straight half way instrument “would give too great a weight to this [the marked

disparity in coastal lengths] circumstance.”115 In Zones 2 and 3, the western section of

Greenland is nearly half the size of the eastern part of Norway. Here one can say that

the Court implemented the “method of giving half effect” to an extreme ratio of

coastal line. The reason for that was simply that neither Jan Mayen nor this north-

eastern part of Greenland did really “sustain human habitation.” Since the harvesting

argument was not available under the facts, the court could not justify granting the

full-fledged EEZ of Greenland. This distinguished Greenland from Iceland, which de

facto sustained human habitation on the relevant coastline. This modified half-way

instrument is similar to the one held in the Anglo French Arbitration Award of 1977.

113 Maritime Delimitation in the Area between Greenland and Jan Mayen, 1993 ICJ Rep. 77, para. 87.114 Id. at para. 92.115 Id..

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The only difference is that the award did not dismiss the effect of any islands, unlike

the Jan Mayen decision.

As I see it, the arbitral and judicial decisions granting half effect to peculiarities

which produce full effect under other circumstances are all fact driven. Coastal line

length is generally weighed in light of the number of inhabitants living on it or its

harvesting potential. Under the equity principle, only similar facts should result in

similar decisions.

It seems to me that the half effect results from factual circumstances that deviate

from the general situation. Generally there are connections between length of coastal

line, number of inhabitants and harvesting capacity. Subsistence and industrial needs

tend to mirror the size of the coastal line. If they do not, the coastal length cannot

equitably be given full account.

Figure 10: Greenland-Jan Mayen Pretention Lines and Final Delimitation A-M

In the Romania-Ukraine Black Sea judgment,116 the Court made no explicit reference

to half-way, half-effect, or other similar principles. Of course, the parties’ positions 116 Marine Delimitation in the Black Sea (Romania-Ukraine) 2009 ICJ Rep. 100, para. 111

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did not require the Court to respond in this way.

Figure 11: Romania-Ukraine Pretention Lines (left map) and Final Borderline

(right map)

What is clear is that the court did not consider the half-effect principle, or any

other factor that might be relevant to a finding of “special circumstances” that would

modify the equidistance principle. First of all, the court rejected the contention that

the disproportionality between the ratio of coastline (1:2,8) versus the ratio of the

divided waters (1:2,1) constituted a special circumstance that would justify an

alternative borderline. “The Court is not of the view that this suggests that the line as

constructed, and checked carefully for any relevant circumstances that might have

warranted adjustment, requires any alteration.”117

Secondly, the equidistance line, according to the ICJ, fully satisfied the “equitable

solution” required under Articles 74 and 83 of the UNCLOS. See Figure 11:

Romania-Ukraine Pretention Lines (left map) and Final Borderline (right map).

Comparing the two, one may easily see that the equidistance line closely follows a de

facto half-way instrument between the two pretention lines of Romania and Ukraine,

117 Id. at 130, para. 216.

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respectively. This solution is perhaps unintended. At the very least, it does not result

from a rational line of thought. Whatever the case, my reflection is that equitable

solutions should, in real life, allocate space that is in a reasonable ratio to the

disputants’ pretentions. This is the only way to keep it equitable. As indicated by the

maps in Figure 11, the the Court divided the disputed seas between Romania and

Ukraine into relatively equally sized divisions of the disputed maritime areas between

the two pretention lines. The Court did not expressly perform a half-effect analysis in

its holding, nor did it provide any language to that effect in its reasoning. Nonetheless,

the court’s decision created a half-way instrument. Since Termini 4 and 5 follow the

median line as proposed by Romania, there is no half-way instrument in this portion.

The more or less half-way instrument relates to the northern part of the disputed area,

as illustrated by Termini 1- 3.

E. Resulting in Customary Law or General Principles of Law?

The international law is dynamic: As told by the Swedish professor of

international law Torstein Gihl: The international customary law is clearly not static,

to the contrary dynamic and ever changing and a state intervention contrary to past

practice which in the first hand seems to express a breach of international law is

simply the first step into a brand new rule of law.118

Sometimes new customary rules are practice driven, whether its development is

monistic, dualistic or mediator either by unilateral, bilateral or trilateral approach. In

other instances new principles of law are established or resurrecting from . In this

section some main considerations are launched to materialize possible solutions to the

puzzles on which are the switches that form new international law. First one need to

consider the bottom-up production of law, the more or less concerted state practice

118 Torsten Gihl: ”Aktuella problem inom folkrätt och allmän rättslära”. [Contemporary Challenges of International Law and Theory of Law] Svensk juristtidning [Swedish Journal of Jurisprudence] 1953 p. 356, at p. 366: “Den internationella sedvanerätten står ju icke stilla utan befinner sig i ständig utveckling, och en statsåtgärd, som strider mot tidligare praxis och följaktligen i första hand ter sig som en folkrättsbrott kan ju helt enkelt betyda uppkomsten av en ny folkrättsregel” (translation by this author).

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that produces customary laws. Secondly a top-down transformation of political,

moral, religious or other extralegal principles into general principles of law.

1. Sometimes experience tells us that the world of factual acts constitutes

normative structures. The theoretical platform is found in the Georg Jellinek position

on “Die Normative Kraft des faktischen”. There are several routes here: One

illustration is the Indian Passage Rights Case” (India and Portuguese colony Dão): a

“constant and continual practice between two nations”. This does necessarily not

create principles of law nor international customary law. The mechanics is as

follows; For state No 1 an action is carried out because it is believed to be a legal

obligation; or said otherwise; since this is believed to be the law, therefore this action!

For state No 2 things appear differently: since states per definition are law abiding;

the State No 1 action is the visible sign of the law; or said otherwise; this is observed

by state No 2 as an action uncovering underlying norms; the practice unveils the

underlying law! Such practices or changes in practices may have an instant character.

It is important to state that “a passage of only a short period of time is not necessarily,

or of itself, a bar to the formation of a new rule of customary international law”

(North Sea Continental Shelf Case, 1969). A practice followed and found reasonable

over time and by many may result in customary laws. “To constitute the opinio

juris… two conditions must be fulfilled. Not only must the acts concerned amount to

a settled practice, but they must also be such, or be carried out in such a way, as to be

evidence of a belief that this practice is rendered obligatory by the existence of a rule

of law requiring it. The need for such a belief, i.e., the existence of a subjective

element, is implicit in the very notion of the opinio juris sive necessitates (North Sea

Continental Shelf Case (1969) § 76-77).

Such a practice is sometimes unilateral and undisputed; i.e. the well-known tacit

and explicit recognition by the international societies of states with regard to the 1945

Truman Proclamation on the Continental Shelf. Common to all these instances is the

need for acknowledgment by the international societies of states.’

Other solutions results from negotiations and bilateral agreements, like the

Norway-Russia Delimitation Agreement of 2010. No one seems to have challenged

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that the delimitation principle is contradictory to international law (which has to some

legal scientists been a topic of interest).

As displayed here, several arbitration awards and court decisions opt for

geopolitical solutions and several of which points in the direction of “half way

solutions”. Whether these practices have resulted in new customary law or perhaps we

are on route towards a new principle – a praeter legem position – is impossible to say.

If such new customary law rules are in its coming, one certainly need to stress that the

half way solution rely upon the basic justification of equitable solution, which

indicated that quite odd or exorbitant pretention lines taken by the proponents as their

starting points inflates the platform for any half way solution. Thus, only well-

conceived and recognizable positions do qualify for the “half-way solution”.

2. However; not all repeatedly copied activities result in customary laws: “There

are many international acts, e.g., in the field of ceremonial and protocol, which are

performed almost invariably, but which are motivated only by considerations of

courtesy, convenience or tradition, and not by any sense of legal duty”.119 Sometimes

developments end up in general principles of law and not customary law. We are here

oriented towards either 1. Something that the courts acknowledges as such; i.a.

Rebus sic santibus & pacta sunt servanda or 2. Something that the international

societies of states recognizes as such; 3. On the other hand: International Court of

Justice rejected arguments that because most legal systems follow a particular rule

that acknowledge a right, this fact alone does not establishes a principle of

international law.(Right of Passage over Indian Territory (India v Portugal 1960 ICJ

6): The division between extra-legal and legal norms: Nicaragua Case, ICJ 1986, 100

§.187: A general practice, necessarily not uniform & uninterrupted with a

considerable degree of consistency in addition to Opinio juris sive necessitates.

9. The “Half-Way Principle” - A Conclusion

119 North Sea Continental Shelf Case ( ICJ. Rep. 1969) § 76-77.

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The idea of a “circular history”120 points at the possible reinstatement of ancient

concepts and principles. This study has shown that the legal language codified in

Articles 74 and 83 of UNCLOS has changed meaning even though the words

themselves have not been changed. The test that started out as basically a geometric

measurement has been reconfigured as a mainly political test. The development of

half-way outcomes of overlapping and contradictory diplomatic pretentions represents

a dramatic change in the understanding of “equitable solution.” This study, therefore,

supports Hans Kelsen in his view that modern legal systems are dynamic 121 to keep

up with the changing living fabric of life.

As this study reveals, there are subtle signs of a new development in the law. At

the start of the second decade of the new millennium “conflict aversion,” negotiation

and peaceful solutions to disputes encourage diplomatic and political outcomes. This

seems to swell the sails of half-way instruments.

State practice and case law provide no clear picture of the role of half-way

principles. However, because negotiating parties enjoy a high degree of discretionary

power and a wide range of relevant factors, parties are free to achieve a peaceful

solution to the borderline conflict within the framework of Jus Cogens.

Delimitation agreements and third party solutions are seldom based on the

equidistance method. Instead, parties and courts reply on special circumstances to

correct the purely geodetic method of division.

There is no fixed connection between the proportionality of the coastlines and the

allocated size of the waters and continental shelf. The coastline ratio was 1:8 in the

Libya-Malta case, and 1:9 in the Jan Mayen-Greenland case. These ratios influenced

the ICJ’s holdings. Smaller disparities are considered irrelevant, however. For

instance, the ratio of 1:2.8 measured along the relevant coasts compared to the ratio of

1:2.1 in the distribution of off shore areas was insufficient to cause the court to find

disproportionality in the Romania-Ukraine case.

In the case of Norway-Russia, the ratio is approximately 1:6, disfavoring

Norway. The parties do not mention the ratio in the 2010 Agreement, however.

Instead, the parties have chosen to follow “a solution by which the division of the 120 Colson, supra note 1 at 99 .121 HANS KELSEN, PURE THEORY OF LAW 193-278 (1970).

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disputed area was split into two approximately equally sized parts."122 In this

particular instance, the Norway-Russia Agreement chooses to attribute to Russia half

of the area which Russia would have lost by a strict application of the equidistance

method.

Political principles, and not just geomorphological principles, clearly govern.

Seeking the “equitable solution,” parties to the dispute or a third party mediator resort

to what are considered just divisions. These are often grounded in the “half-way”

principle, whose point of departure is not geodetic or geomorphological base points,

but politically defined pretention lines.

122 Prop. 43 S (2010–2011) Proposisjon til Stortinget (forslag til stortingsvedtak) Samtykke til ratifikasjon av overenskomst av 15. september 2010 mellom Norge og Russland om maritim avgrensning og samarbeid i Barentshavet og Polhavet [Proposition to the Norwegian Parliament on the ratification of the bilateral agreement between Norway and Russia on the marine delimitation and cooperation in the Barents Sea and Polar Sea] p. 6 col. 2.

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