Annex 186
B. H. Oxman, “International Maritime Boundaries: Political, Strategic and Historical
Considerations”, The University of Miami Inter-American Law Review, 1994/1995
243
INTERNATIONAL MARITIME
BOUNDARIES: POLITICAL, STRATEGIC,
AND HISTORICAL CONSIDERATIONS
Bernard H. Oxman*
I. Introduction
A. Substantial Activities Being Conducted
B. Desire to Stimulate Uses
C. No Significant Activity or Interest
II. Political Factors
A. Introduction
B. Related Accommodations
C. Effect of Political Factors
D. Legal Factors
E. Effect on Third States
F. Sovereignty Disputes
III. Strategic Factors
A. Introduction
* Professor his A.B. and J.Law Division General; Affairs at the and Conference on the Law of the Sea. This article was originally published in 1993
and is reproduced with permission from International Maritime Boundaries, published
by the American Society of International Law.
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244 INTER-AMERICAN LAW REVIEW [Vol. 26:2
B. Types of Security Concerns
C. Exclusionary Interest
D. Access to and from the Open Sea
E. Enclavement
F. Specific Clauses Protecting Navigation
IV. Historical Factors
A Introduction
B. Land Boundaries
1. Rivers Flowing into the Sea
2. Direction of the Land Boundary
3. Lines at Sea
C. Prior Maritime Boundaries
D. Informal or De Facto Lines
E. Unilateral Claims
F. Prior Seabed Concessions
G. Traditional Fisheries
V. Conclusion
I. Introduction
Why do states seek to agree on maritime boundaries? Three
typical situations might be distinguished in this regard:
* substantial activities subject to coastal state jurisdiction are
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being conducted or are likely to be conducted in an area of
actual or potential dispute;
* one or both states wish to stimulate uses, particularly fixed
uses, of the area in question;
* there is no significant activity or interest in the area requiring
a boundary.
A. Substantial Activities Being Conducted
The first situation arises where substantial activities subject
to coastal state jurisdiction are being conducted or are likely to
be conducted in an area of actual or potential dispute. In this
case, if either or both states attempt to enforce their jurisdiction,
particularly against each other's nationals or licensees, there is
a risk of serious escalation of the dispute. The consequences
might include a decline in useful economic activity, inability to
apply meaningful environmental or economic regulations, political
animosity extending beyond those persons whose livelihoods
are affected, private violence, or demands for escort with the
attendant risk of direct confrontations between the armed forces
of the two states.
The transfer of control over vast high seas fisheries to coastal
states by virtue of extensions of fisheries jurisdiction to 200
nautical miles presents the typical case. Once jurisdiction is
extended, both coastal and distant-water fishermen who visited
the area yesterday (and perhaps many yesterdays) need to know
where they may fish tomorrow. The basic choices governments
have for avoiding confrontation arising from overlapping claims
are explicit or tacit agreement on a permanent or interim boundary,
explicit or tacit joint management within a defined area,
explicit or tacit agreement on mutual restraint with respect to
the exercise of jurisdiction over at least each other's nationals
within a defined area, or unreciprocated unilateral restraint.1
This probably explains the reasons for a significant number
of delimitation agreements concluded after one or both states
extended jurisdiction over fisheries to 200 miles, in most cases
1. Absent express or tacit agreement on geographic limits roughly defining the
disputed area, the "defined area" for joint management or mutual restraint might
encompass areas extending well beyond those likely to be in dispute, potentially
embracing the full economic zones of both parties.
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246 INTER-AMERICAN LAW REVIEW [Vol. 26:2
during or following the Third United Nations Conference Law of the Sea.2 From this perspective, the delimitation can be seen as a response to a need to agree on something
and an inability or unwillingness to rely on restraint or arrangements at least over the long term.
In almost all cases, the agreement also reflects a preference
for a unilateral rather than joint management regime in principle,
notwithstanding the practical need for joint arrangements conserve and manage migrating fish stocks and transboundary
ecosystems and the probable transboundary effort patterns fishermen. The overwhelming majority of states has responded
to the fisheries problem with defined geographic boundaries. state appears to have entrusted a court or arbitral tribunal delimitation dispute with the authority to impose biologically
and economically inspired fisheries management and allocation
arrangements as part of a boundary regime in lieu of or in to a fixed boundary.
This suggests the continuing influence of the dominant
political and legal approach to formal accommodation of competing claims to use and control on land: geographic with fixed, preferably precisely defined, geographic boundaries.
To put it differently, while the extension of coastal jurisdiction over fisheries places a mobile resource exploited mobile vessels under the potential control of more than state, the choice of a geographic boundary as the preferred means for accommodating and partitioning the respective
interests, even where that boundary divides single stocks, and effort patterns, may well reflect the dominance political factors and legal habits over ostensibly dominant and economic concerns.3
2. United Nations Convention on the Law of the Sea, opened for signature
Dec. 10, 1982, U.N. Doc. A/CONF.62/122, 21 I.L.M. 1261 [hereinafter U.N. Convention
on the Law of the Sea]. For example, Mexico wished to settle its maritime
boundary with Cuba prior to the effective date of its decree establishing an exclusive
economic zone that extended its fisheries jurisdiction to 200 miles. See Agreement
Concerning the Delimitation of Sea Space, July 26, 1976, Cuba-Mex., Limits in the
Seas, No. 104 (1985). The relatively rapid agreement between the United States and
Cuba may be due in part to the fact that a dispute over fisheries enforcement could
have been quite nasty, particularly if it involved Cuban exiles residing in Florida.
See Maritime Boundary Agreement, Dec. 16, 1977, U.S.-Cuba, S. Exec. Doc. H., 96th
Cong., 1st Sess. 1 (1979) [hereinafter U.S.-Cuba Maritime Agreement].
3. The history of the Gulf of Maine adjudication is instructive. Two agree-
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Apologists for this system may argue that after, or at least
in connection with, agreement on the boundary it becomes easier
to address the problem of mutual cooperation in management in
a formal manner. They might point to the Australia-Papua New
Guinea agreement with respect to fisheries.4 They might also
point to the practice of arriving at unitization agreements where
a fluid nonliving resource such as an oil or gas deposit is traversed
by a political boundary or concession limit.
B. Desire to Stimulate Uses
The second situation prompting a delimitation agreement
arises where one or both states wish to stimulate uses, particularly
fixed uses, of the area in question. The classic example
would be exploration and exploitation of the continental shelf for
oil and gas, preceded perhaps by prospecting or scientific research.
The organization of the oil and gas industry generally
assumes an exclusive legal right to extract the resources of an
area with respect to which major site-specific investments are to
be made.5 A dispute between neighboring states over the area
casts doubt on that right.
As compared with fishing, exploitation of seabed hydrocarbons
is a relatively recent development. By the middle of the
Twentieth century, virtually all of the world's seabed hydrocarbons
were still unexplored and unexploited. There was plenty of
room for the new industry outside boundary regions. The rapid
emulation by other states of the Truman Proclamation's claim to
the continental shelf did not pose an immediate practical need
ments were presented to the United States Senate. One submitted the question of a
single maritime boundary to a Chamber of the International Court of Justice. The
second dealt with fisheries, moderating the effect of an adjudicated boundary on the
fishing interests of the parties. The Senate approved the first but not the second
agreement. The first agreement was not amended to permit the Chamber to impose
measures to moderate the effect of the boundary on fisheries' interests and the parties
did not commit themselves to do so before the Chamber. However, Canada described
the general bilateral fisheries management relationship between the parties
in glowing terms. It should surprise no one that the line drawn by the Chamber
appears in effect to be sensitive to certain fisheries' allocation problems.
4. Treaty Concerning Sovereignty and Maritime Boundaries in the Area
Known as Torres Strait, Dec. 18, 1978, Austl.-Papua N.G., 1978 Austl. T.S. No. 4
[hereinafter Australia-Papua New Guinea Treaty].
5. Indeed, it would seem that this need for exclusivity was a major driving
force behind the formulation of the legal doctrine of the continental shelf.
6. Proclamation No. 2667, 10 Fed. Reg. 12,303 (1945).
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for delimitation agreements in most areas. Not surprisingly, need was first perceived in oil-rich shallow semi-enclosed such as the Persian Gulf.
While the lure of potential seabed riches has a significant
political impact on governments, it would appear that potential
boundary disputes with respect to the seabed are more manageable
than fisheries disputes, and pose less of a political risk of
escalation. Governments that wish to avoid provoking their
neighbors may refrain from taking affirmative actions necessary
to authorize oil and gas activities, or may make them subject to
future boundary arrangements.7 Legal uncertainty will itself
have some restraining effect on the oil and gas investor, typically
a transnational company with substantial alternatives for investment.
Put simply, in the case of oil and gas, it will usually take
some affirmative governmental action to trigger an escalation.
In the case of fisheries, the fishermen may well force the issue.
This is particularly so because those with the fewest alternative
economic options are likely to be the coastal fishermen of the
states concerned and the coastal communities they help support.
This is not to suggest that governments are unmoved by the
risk of an escalating dispute in seeking to agree on seabed
boundaries in areas of potential economic interest. The fear of
an unfavorable status quo and the desire to achieve a favorable
status quo are omnipresent in politics and diplomacy. Governments
are under constant pressure to take potentially provocative
actions designed to reinforce their claims. Lawyers trained
in the influence of history and possession upon legal rights and
in doctrines of estoppel may themselves add to this pressure.
Taken together, the opinions of the Court in the Eastern Greenland?
Temple of Preah Vihearfand Tunisia-Libya Continental
7. In theory, the coastal state's rights with respect to the continental shelf
including commercial prospecting and scientific research should accelerate the pressure
for reaching a boundary agreement. These activities, however, are conducted
from ships over broad areas and generally do not require economic exclusivity. To
some degree, satellite data obviates the need for on-site observation. Thus, either
neglect or mutual restraint can postpone the pressure to agree on precise delimitation.
8. Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (Ser. A/B)
No. 53 (April 5).
9. Concerning the Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J. 6
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Shelf0 cases may have some unforeseen, arguably unjustified,
but nevertheless unsettling effects in this regard.
The argument for a fixed boundary as opposed to a joint
management arrangement may be stronger in the case of fixed
uses such as oil and gas development than in the case of fisheries.
The resource is not mobile. The exploitation activity is not
mobile. Judge Jessup's observation in the North Sea Continental
Shelf cases11 that the real issue in continental shelf delimitation
is allocation of valuable resource deposits seems not to have
stimulated very much interest in joint management regimes. It
is also not clear that the imposition of a direct joint management
system on a disputed field or resource deposit is the best
way to stimulate new investment or manage the resource. Some
joint arrangements provide for geographic division of management
authority between the states concerned.
The environmental effects of oil and gas development, however,
are not necessarily localized. Pollution in a boundary region
may affect several coastal states. While the United States
made some arguments in this regard in support of its position
concerning the location of the maritime boundary in the Gulf of
Maine,12 as in the case of fisheries there appears as yet to be
no significant tendency to deviate for environmental reasons
from the political tradition of a fixed boundary, except perhaps
in the unusually sophisticated agreement between Australia and
Papua New Guinea.13
C. No Significant Activity or Interest
The third situation is perhaps the most intriguing. It arises
when governments seek to agree on a maritime boundary despite
the absence of significant activity or interest in the region
requiring a boundary.
(June 15).
10. Concerning the Continental Shelf (Tunis, v. Libyan Arab Jamahiriya), 1982
I.C.J. 18 (June 24) [hereinafter Tunisia-Libya Continental Shelf Case].
11. North Sea Continental Shelf (F.R.G. v. Den.), 1969 I.C.J. 3 (separate opinion
of Jessup, J.); North Sea Continental Shelf (F.R.G. v. Neth.), 1969 I.C.J. 3 (separate
opinion of Jessup, J.) [hereinafter North Sea Continental Shelf Cases].
12. Concerning Delimitation of the Maritime Boundary in the Gulf of Maine
Area, Oct. 12, 1984, 23 I.L.M. 1197.
13. See supra note 4, at 4.
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In this regard one might bear in mind that, with the notable
exception of areas where the land boundary divides a navigable
river at its mouth or an otherwise important navigation channel
or route is involved, navigation and overflight are activities do not normally require a precise determination of which has jurisdiction in a particular area, especially when that area beyond the territorial sea. Freedom of navigation and overflight
beyond twelve miles from the coast is generally respected. within the territorial sea, ships of all states enjoy a right innocent passage. Ships and aircraft are frequently able to disputed boundary regions close to shore. It would appear extended coastal state jurisdiction over pollution from ships sea is too new (and the potential source of pollution too transitory)
to generate much pressure for a maritime boundary for regulation purposes.
If there is no significant activity requiring a boundary, do governments negotiate boundaries in such circumstances?
A possible answer can be found in the desire to avoid potential
disputes in the future where there are now none.14 unclear whether this objective, in and of itself, often explains
the behavior of governments. It is nevertheless likely to influence
lawyers, and lawyers are likely to influence maritime
boundary policy.
There may also be something special about boundaries that
strengthens the desire to settle them even in the absence of a
significant problem. Biologists might point out that some other
mammals mark their territory, and that this marking has the
effect of controlling disputes. Scope of jurisdiction lies at the
heart of administrative law. Bureaucracies are preoccupied with
jurisdictional limits. There is an almost palpable desire to demonstrate
clearly (in this case, on a map) where power and responsibility
do, and do not, exist.
Thus, it is not surprising to discover that some governments
have embarked on a general program for the purpose of settling
maritime boundaries in areas of extended maritime jurisdiction.
14. Canada and Denmark are said to have been motivated by the desire to
avoid future disputes in a largely unsettled area where Greenland faces the Canadian
Arctic. See Agreement Relating to the Delimitation of the Continental Shelf between
Greenland and Canada, Mar. 13, 1974, Den.-Can., 950 U.N.T.S. 147.
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Such a program is most evident in the case of states that must
negotiate boundaries with a significant number of other states.
Colombia, France, Indonesia, the United Kingdom, and the United
States are among the examples.
When one examines these examples, one is struck by the
amount of activity related to islands and dependencies located at
some considerable distance from the continental mainland or
main islands. The United States has concluded a substantial
number of maritime boundary agreements with respect to its islands
in the Caribbean Sea and the Pacific Ocean, but has yet to
agree on three of its four extended maritime boundaries with
Canada or its boundary with the Bahamas. Colombia's boundary
dispute with Venezuela remains unresolved.
The most obvious explanation is that it is easiest to reach
agreement in the case of small islands surrounded by the deep
waters of the Caribbean Sea or the Pacific Ocean where the
boundary regions are unlikely to contain hydrocarbons or localized
fisheries.15 While the interest of small Pacific island states
in regulating foreign tuna fleets may explain some of their interest
in maritime boundaries, the highly migratory patterns of
tuna greatly reduce the significance of the location of any particular
boundary. There is little to inspire attempts to deviate
significantly from equidistance in areas between small islands of
comparable size where few if any resources are at stake.
There may however be other political factors at work. One
possible implication of a maritime boundary agreement is recognition
of the right of the state party to the agreement to conclude
the agreement on behalf of the land territory from which
the maritime jurisdiction extends.16 The studies of Colombia's
15. Not much is known about commercial concentrations of high grade manganese
modules in most places, not to mention subsurface hard mineral deposits. In
light of factors such as alternative sources of supply, market demand and cost of
extraction, their present economic value, if any, is not regarded as great.
16. Delimitation negotiations between Australia and the Solomon Islands began
within three months of Solomon independence. See Agreement Establishing Certain
Sea and Sea-bed Boundaries, Sept. 13, 1988, Austl.-Solom. Is., 12 LOS Bull. 19
(1988). The delimitation agreement between Bahrain and Iran was concluded shortly
after Iran abandoned its claim to Bahrain. See Agreement Concerning Delimitation
of the Continental Shelf, June 17, 1971, Iran-Bahr., 826 U.N.T.S. 227. The boundary
studies dealing with the Baltic Sea and the former German Democratic Republic
suggest that the GDR may have seen maritime boundary agreements as reinforcing
its position as a sovereign independent state. Especially in light of the long period
of non-recognition of the GDR by the Federal Republic of Germany and other
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252 INTER-AMERICAN LAW REVIEW [Vol. 26:2
attempts to negotiate maritime boundaries in the Western suggest a close link between these efforts and
Colombia's dispute with Nicaragua over sovereignty with respect
to the islands in question. One assumes Indonesia was not unaware
of the political implications of a delimitation agreement
with Australia dealing with the so-called Timor Gap in light of
the controversy surrounding Indonesia's annexation of the former
Portuguese colony.17
It is possible that extra-regional metropolitan powers are
particularly interested in reinforcing the recognition of their
territorial role in a region even in the absence of a specific territorial
dispute,18 bearing in mind that a potential boundary dispute
in the future might be more difficult to resolve if the issue
of the right to represent the territory in question was raised in
that context. Conversely, a state may wish to provide a dependency
with established maritime boundaries as a prelude to
independence in order to protect the interests of the inhabitants
and minimize foreign policy problems for the newly independent
state.19
Western states prior to the pursuit of the so-called Ostpolitik of the Federal Republic
in the early 1970s. The delimitation agreement between the GDR and the FRG is
considered a direct result of detente between the parties. See Protocol Note between
the Federal Republic of Germany and the German Democratic Republic Concerning
the Boundary in Lubeck Bay, Oct. 1, 1974, F.R.G.-G.D.R., G Bl. II, 438 (1974)
(G.D.R.) [hereinafter F.R.G.-G.D.R. Protocol Note].
17. These considerations apparently were not sufficient to persuade Indonesia to
yield to Australia, in respect of Timor, as much as it had yielded geographically
years earlier in respect of other areas. However, it may explain Indonesian willingness
to accept a joint management arrangement as the basis of the settlement on
the Australian side of the Timor Trough. Sec Treaty on Zone of Cooperation in an
Area between the Indonesian Province of East Timor and Northern Australia, Dec.
11, 1989, Indon.-Austl., 29 I.L.M. 475. On the other hand, Indonesia yielded even
less in geographic terms in the provisional fisheries delimitation agreement in which
Timor was not as prominent an issue. See Memorandum of Understanding Concerning
the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement,
Oct. 29, 1981, Austl.-Indon. (on file with Dep't of Foreign Affairs and
Trade, Canberra, Australia) [hereinafter Provisional Fisheries Surveillance].
18. It is curious that the text of the boundary agreement between France and
Saint Lucia does not refer to Martinique, the French island concerned. See Delimitation
Convention, Mar. 4, 1981, Fr.-St. Lucia, I Can. Annex. 675 (1983).
19. For example, the United Kingdom sought to establish offshore boundaries
among the Trucial States while it was still responsible for their foreign affairs.
Sharjah and Umm al Qaywayn accepted. See Seabed Boundary Agreement, 1964,
Sharjah-Umm al Qaywayn, I Can. Annex 99 (1983); see also Orders in Council, Sept.
11, 1958, Sarawak-North Boreo-Brunei, U.K Stat. Inst. (Nos. 1517-18), describing a
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In a similar vein, one possible way to obtain or enhance
recognition of baselines is to enter into a delimitation agreement
based on equidistance in which the boundary is clearly measured
from those baselines.20 This factor might influence
archipelagic states such as Indonesia.21 Although the difference
is not always easy to establish, this situation should be distinguished
from one in which the primary purpose of the baselines
is to influence the maritime boundary negotiations.
A related factor is the desire to "consolidate" coastal state
jurisdiction newly acquired under international law.22 This ap-
1958 United Kingdom line drawn with respect to North Borneo and Sarawak and
Brunei. Australia, on behalf of Papua New Guinea, settled the land boundary and
completed a missing segment of the maritime boundary with Indonesia in contemplation
of New Guinea's scheduled independence in 1975. See Agreements between Australia
and Indonesia Concerning Certain Boundaries between Papua New Guinea and
Indonesia, Feb. 12, 1973, Papua N.G.-Indon., 975 U.N.T.S. 4 [hereinafter Australia-
Indonesia Certain Boundaries Agreements].
20. As a strictly legal matter, absent more specific references in the agreement,
an equidistant line measured from a baseline does not necessarily imply recognition
of the baseline as such, but merely acknowledgement that the claimed baseline represents
an appropriate point of departure for applying equidistance principles (for example,
a construction line representing the general direction of the coast). Of course,
regardless of the effect of the claim on the boundary, a state may obtain recognition
of its claim in connection with the boundary agreement. Panama obtained recognition
of its claim that the Gulf of Panama is historic waters in its boundary
agreements with Colombia and Costa Rica; only in the former case did the baseline
affect the delimitation. See Treaty on the Delimitation of Marine and Submarine
Areas and Associated Matters, Nov. 20, 1976, Pan.-Colom., I Can. Annex. 417 (1983)
[hereinafter Panama-Colombia Treaty]; see also Agreement Relating to the Delimitation
of their Marine and Submarine Areas in the Pacific Ocean and to their Maritime
Cooperation, Apr. 6, 1984, Colom.-Costa Rica, Diario Oficial de Colom. (June
18, 1985). There is speculation that North Korea may have obtained Soviet recognition
of its unusually long 300-mile baseline in exchange for a maritime boundary
favorable to the Soviet Union. See Agreement on the Delimitation of the Soviet-Korean
National Border, Apr. 17, 1985, U.S.S.R.-Korea [hereinafter Soviet-Korea National
Border Agreement], reprinted in INTERNATIONAL MARITIME BOUNDARIES 1135 (Jonathan
I. Charney & Lewis M. Alexander eds., 1993).
21. It is interesting that the maritime boundary between Indonesia and Singapore,
which generally follows the deep draught tanker route, moves within the
Indonesia archipelagic baselines at one point. See Agreement Stipulating the Territorial
Sea Boundary Lines in the Strait of Singapore, May 25, 1973, Indon.-Sing.,
Limits in the Seas, No. 60 (1974) [hereinafter Indonesia-Singapore Sea Boundary
Agreement].
22. In some sense, it would appear to reflect a feeling that the existence of the
close is tentative or inchoate until it is actually enclosed and precisely separated
from the neighboring close. One way to identify a thing is to describe its perimeter
(a circle for example). Perhaps looming in the background is Grotius' (in this context
disconcerting) observation that because the vagrant waters of the sea cannot be
enclosed they are necessarily free. The U.N. Conference on the Law of the Sea did
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254 INTER-AMERICAN LAW REVIEW [Vol. 26:2
pears to be particularly true in enclosed and semi-enclosed where the peaceful enjoyment of extended maritime jurisdiction
is especially dependent upon arrangements with one's 23 The series of British and other delimitation agreements
in the North Sea followed immediately upon the entry into force
of the Continental Shelf Convention on 10 June 1964, designed
in part to consolidate the conventional regime in the North
Sea.24 A similar process occurred in the Caribbean Sea respect to the exclusive economic zone. A desire to consolidate
200-nautical-mile limits is identified as one reason for the delimitation
agreement between Denmark and Norway.25
The decision to conclude a maritime boundary agreement
may be influenced by political factors extraneous to the boundary
itself. The objective need for agreement, particularly where
relations are already strained, may become a convenient basis
for governments to take tentative steps toward improving their
relations. One notes, for example, that the United States negotiated
a maritime boundary agreement with Cuba at a time when
broader attempts were being made to improve bilateral relations.
26
not pursue a United States proposal to establish coastal state jurisdiction over fishing
for stocks that reside in coastal areas beyond the territorial sea without fixing
distance limits.
23. It is interesting to note that many states, while implementing the continental
shelf doctrine and delimiting their respective continental shelves in the area,
have thus far refrained from implementing exclusive economic zones or 200-mile
fisheries zones in the Mediterranean Sea, even when the same states have asserted
such jurisdiction outside the Mediterranean Sea.
24. This point is made in a number of North Sea boundary studies, especially
Netherlands-United Kingdom (1965). See Agreement Relating to the Delimitation of
the Continental Shelf under the North Sea, Together with Amending Protocol, Oct.
6, 1965, Neth.-U.K, 595 U.N.T.S. 105. For the states concerned, the consolidation of
the regime of the Continental Shelf Convention in the North Sea included not only
the principles and rules of coastal state jurisdiction, but the delimitation rules set
forth in Article 6. Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T.
471, T.I.A.S. No. 5578, 499 U.N.T.S. 311 [hereinafter Convention on the Continental
Shelf].
25. See Agreement Concerning the Delimitation of the Continental Shelf in the
North Sea/Norwegian Sea and Establishing the Boundary between the Faroes Fishing
Zone and the Norwegian Economic Zone, June 15, 1979, Den.-Nor., I Can. Annex
603 (1983).
26. Because of strained political relations between the parties, the U.S. Senate
has yet to approve the treaty. Provisional application has been renewed periodically
by the parties. See U.S.-Cuba Maritime Agreement, supra note 2.
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II. Political Factors
A. Introduction
Four important political decisions can be identified in connection
with maritime boundaries: the decision to negotiate, the
decision to propose a particular boundary,27 the decision to
make concessions with a view to reaching agreement,28 and the
decision to agree on a particular boundary. Even the decision to
respect a tribunal's legally binding determination of a boundary
is political.
The study of factors potentially influencing the location of
maritime boundaries is a study of the influence of these different
factors on the ultimate political decisions of governments.
Unless it influences the decisions of those with political authority,
any given factor is irrelevant to a particular boundary. The
"objective" importance of any given factor - assuming such a
thing could be measured - does not necessarily explain its political
impact.29
When a tribunal is asked to decide a dispute regarding a
maritime boundary under international law, the tribunal will
limit itself to examining factors it regards as legally relevant to
27. Some states have announced a public position related to the location of the
boundary prior to negotiation, whether for tactical or political reasons or because of
the need to define some (temporary) geographic limit on domestic regulatory or enforcement
actions.
28. The temporal relationship among the first three decisions involves complex
questions of subjective intent, information regarding the other side's attitudes, management
of domestic political pressures, and negotiating strategy and style. Some
seasoned negotiators would argue that, once sufficient information is available regarding
the other party's interests, the best approach to reaching agreement is to
collapse the second and third decisions into one "reasonable" position around which
one is prepared to negotiate at the margins but from which one is not prepared to
retreat in principle. They would presumably regard as unfortunate the possible implication
in the North Sea Continental Shelf cases that this approach might not
satisfy the duty to negotiate in good faith. The International Court of Justice noted
that the parties "are under an obligation so to conduct themselves that the negotiations
are meaningful, which will not be the case when either of them insists upon
its own position without contemplating any modification of it." North Sea Continental
Shelf Cases, supra note 11, 11 85.
29. For example, the ocean policies of a major industrialized maritime state
with global economic and strategic interests like the United States can be substantially
influenced by local coastal fishing industries that represent a very small proportion
of its economy.
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256 INTER-AMERICAN LAW REVIEW [Vol. 26:2
the resolution of the issues in dispute. Much has been written
about the rich and growing jurisprudence of the International
Court of Justice and other tribunals in this connection. However
flexible the articulated legal standard of "equitable principles,"
"relevant circumstances," and "equitable results" may be, there
can be no doubt that while the parties are free to take into account
virtually anything they wish in fashioning their negotiating
positions, a tribunal asked to apply international law is
more limited.
The law of maritime delimitation may require the parties to
negotiate in good faith. But it places few if any limitations on
the location of an agreed boundary or related arrangements.
Provided they agree, the parties are largely free to divide as
they wish control over areas and activities subject to their jurisdiction
under international law. They may be guided principally,
in some measure, or not at all by legal principles and legally
relevant factors a court might examine, and by a host of other
factors a tribunal might well ignore such as relative power and
wealth, the state of their relations, security and foreign policy
objectives, convenience, and concessions unrelated to the boundary
or even to maritime jurisdiction as such.30
From this perspective, it is difficult and arguably misleading
to isolate political from other factors when analyzing agreed
boundaries. Yet it would make little sense even to attempt to
replicate here what is so ably presented by other authors elsewhere
in this field of study.
This being said, it should be noted that maritime boundary
issues do not normally seem to engage the same level of political
attention as many disputes over land territory. The resultant
agreements are often viewed as economic or technical. Indeed, it
can be argued that few maritime boundary agreements are regarded
as overwhelmingly political, with the notable exception of
the agreement between Argentina and Chile.31
30. It is said that Italy settled for less than full effect for its islands in exchange
for a wider package on various political and economic questions, including
Italian fishing in exchange for one billion lire per year. See Agreement Relating to
the Delimitation of the Continental Shelf, Aug. 20, 1971, Italy-Tunis., I Can. Annex
(1983).
31. The agreement followed the Beagle Channel Arbitration, Argentina's refection
of the result, fears of armed conflict, and mediation by the Vatican. Its title is
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In addition to the difficulty of isolating political considerations
from other considerations affecting maritime boundaries,
one must add the difficulty of accumulating relevant data on
political factors. Virtually every boundary agreement is described,
often in its preamble, as designed to foster good relations
between the parties.32 Yet governments may be reluctant
to state publicly that for reasons of good relations they accepted
a less favorable boundary than they might otherwise have obtained.
33 Governments could almost never be expected to assert
that they received more because they had greater overall leverage
in the bilateral relationship.34
Treaty of Peace, Friendship and Maritime Delimitation. The treaty was submitted to
a plebiscite in Argentina. Agreement between the Government of Argentina and the
Government of Chile Relating to the Maritime Delimitation between Argentina and
Chile, Nov. 29, 1984, Arg.-Chile, 24 I.L.M. 1 [hereinafter Argentina-Chile Agreement].
32. It might be noted that maritime boundary lines are frequently simplified by
reducing the number of turning points, using a long line perpendicular to the general
direction of the coast, or in other ways. The primary reason is to simplify compliance
and enforcement. In order to avoid problems with inadvertent violations by
fishermen, Chile, Ecuador, and Peru agreed to permit the neighboring state's national
to fish in a ten-mile zone on either side of the maritime boundary beyond twelve
miles from the coast. Agreement between the Government of Chile and the Government
of Peru Relating to the Maritime Boundary between Chile and Peru, Aug. 18,
1952, Chile-Peru, Limits in the Seas, No. 86 (1979) [hereinafter Chile-Peru Agreement];
Agreement between the Government of Ecuador Relating to the Maritime
Boundary between Peru and Ecuador, Aug. 22, 1985, Peru-Ecuador, Limits in the
Seas, No. 88 (1979) [hereinafter Peru-Ecuador Agreement].
33. There are exceptions. The rapporteur of the France-Monaco treaty is quoted
as stating to the French Senate, "Because of the close and exceptional nature of
French-Mone'gasque relations, France has accepted provisions that the rules of international
law did not oblige it to accept." The reference was to the Mon^gasque relations,
France has accepted provisions that the rules of international law did not
oblige it to accept. The reference was to the Monegasque corridor leading out into
the Mediterranean in a shore. See Maritime Delimitation Agreement between Monaco
and France, Feb. 16, 1984, Fr.-Monaco, No. 8-3, J.O. 6 July 1985, p. 11,600 (French)
[hereinafter Monaco-France Delimitation Agreement]. Some readers of the opinions in
the North Sea Continental Shelf cases, supra note 11, and the Guinea-Guinea-Bissau
arbitration might question the statement. Award of 14 February 1985 of the Arbitration
Tribunal for the Delimitation of the Maritime Boundary between Guinea and
Guinea-Bissau, 25 I.L.M. 252 (English translation of official French text) [hereinafter
Guinea-Guinea-Bissau Award]. Senegal was no less generous to The Gambia. See
Agreement between The Gambia and the Republic of Senegal, June 4, 1975, Gam.-
Senegal, Limits in the Seas, No. 85 (1979) [hereinafter Gambia-Senegal Agreement].
Norway may have accepted a result that gave Iceland all of its 200-mile zone in
part because Iceland is highly dependent on fishing. See Agreements between Iceland
and Norway Establishing Maritime Boundaries between Iceland and Jan Mayen (1)
Agreement Concerning Fishery and Continental Shelf Questions, May 28, 1980, Ice.-
Nor., Official Gazette C9/1980 [hereinafter Iceland-Norway Agreement].
34. Two authors suggest that the relative strength of the parties was a factor
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B. Related Accommodations
A further analytical difficulty relates to the question of
when a factor is deemed to have influenced the location of the
boundary. The easy case is one in which the actual location of
the boundary represents the accommodation of the interest concerned,
for example where a boundary follows a navigation channel.
A more difficult problem arises when the interest of a state
is accommodated not by adjusting the position of the boundary,
but by concurrent agreement that imposes an obligation on the
other state with respect to areas on the latter's side of the
boundary.
It seems reasonable to assume that in such cases the interest
did indeed influence the location of the boundary in the
sense that agreement might not have been reached on such a
boundary absent the related accommodation. For example, a
state concerned about navigation rights in a channel that is
closer to its neighbor's coast than its own might prefer to use the
channel as the boundary, but might in some circumstances settle
for an equidistant line boundary in exchange for treaty guarantees
of free navigation. That same state presumably would resist
an equidistant line boundary absent related navigation guarantees.
The relationship between boundaries and related accommodations
is sometimes overlooked in analyses of maritime boundary
law because it does not form part of the formal jurisprudence.
The reason for this is that the International Court of
Justice and arbitral tribunals have not been asked by the parties
to fashion a broader boundary region regime that accommoin
determining the location of the line. Its perception of Indian power may have
influenced the Maldives government not to argue that Minicoy Island should be given
reduced effect. See Agreement between India and Maldives on Maritime Boundary
in the Arabian Sea and Related Matters, Dec. 28, 1976, India-Maldives, Limits in
the Seas, No. 78 (1978) [hereinafter India-Maldives Maritime Agreement]. The delimitation
line in the Bay of Biscay, more favorable to France than an equidistant
line, was concluded at a time when Spain, under Franco, may have been in a somewhat
weaker position diplomatically. See Conventions between France and Spain (1)
Concerning the Delimitation of the Territorial Sea and Contiguous Zone and (2) Concerning
the Delimitation of the Continental Shelf of the Bay of Biscay, Jan. 25,
1974, Fr.-Spain, (U.N. Legislative Series) U.N. Doc. No. ST/LEG/SER/B/19, 395
(1980) (France-Spain).
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dates their interests. Determining the location of a maritime
boundary has generally been the sole means at the disposal of
judges and arbitrators for accommodating relevant interest.35
C. Effect of Political Factors
It is often difficult to discern what, if any, effect political
considerations had on the location of an agreed maritime boundary.
36 A state's desire to maximize the areas subject to its jurisdiction
and its interest in achieving agreement on a maritime
boundary may well conflict. It stands to reason that if dispute
avoidance is a primary purpose for seeking agreement, then a
government is unlikely to maintain a position on the location of
the boundary that itself stimulates a dispute. This proposition
is, however, difficult to document from public sources.
Authors with knowledge of the factors influencing the U.S.
decision to give full effect to Aves Island in the delimitation
agreement with Venezuela point out that "as a political matter,
there was little to gain and potentially much to lose in asserting
a broader U.S. boundary interest, particularly in light of the
marginal resource interest in the area."37 One is struck by the
comment that "France was so accommodating as to allow Australia
to use Middleton Reef, a low-tide elevation 125 nautical
miles offshore, as a basepoint" for determining the location of
the equidistant line.38 One of the reasons cited for Norwegian
35. The Iceland-Norway Conciliation Commission recommended a joint development
zone with respect to the continental shelf. It should be noted that the Commission
included prominent Icelandic and Norwegian diplomats and made a unanimous
recommendation as requested. See Iceland-Norway Agreement, supra note 33,
at C9; Evensen, La Delimitation du Plateau Continental entre la Norvege et
Tlslande dans le Secteur de Jan Mayen, 27 Ann. Fr. Dr. Int. 711 (1981).
36. Political factors may sometimes influence even technical questions, such as
the issue of which chart to use to depict the agreed boundary. National prestige
may account for the fact that both Italian and Yugoslav charts were used by the
parties, giving rise to differences in numerical identification and location of points.
See Agreement between Italy and Yugoslavia Concerning the Delimitation of the
Continental Shelf between the Two Countries, Jan. 8, 1968, Italy-Yugo., Gazz. Uff.,
Supp. to No. 302 of 29 Nov. 1968 (Italy).
37. Feldman & Colson, The Maritime Boundaries of the United States, 75 AM.
J. INT'L L. 729, 747 (1981). One notes that the U.S. did more than just avoid a
fight; it negotiated a treaty giving Venezuela what it wanted, to the chagrin of some
some of Venezuela's other neighbors. Two additional factors are potentially relevant.
First, the U.S. had a general practice of giving full effect to islands in agreements
applying equidistance. Second, Venezuela concluded its agreements with the U.S. and
The Netherlands at the same time.
38. Agreement on Marine Delimitation between the Government of Australia
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260 INTER-AMERICAN LAW REVIEW [Vol. 26:2
acceptance of a full 200-mile zone for Iceland was avoidance fishing dispute over capelin.39 The boundary studies Indonesia's generally accommodating attitude toward the of its maritime boundaries with its neighbors.40 It clear whether the fact that most of the joint development falls on the Japanese side of a hypothetical equidistant line South Korea is related in some measure to historical problems
in Japanese-Korean relations.
In those situations in which the desire for agreement actual or potential interest in areas that might be a state is likely to propose a boundary primarily view to facilitating negotiation. The proposal therefore is to be one that the negotiating partner would regard as acceptable,
at least in principle.
In theory, all one need do is split the pie (that is the areas
of overlapping jurisdiction) in half. In practice, geographic of the respective coasts and their geographic relationship
to each other make delimitation a more difficult task where states are not focusing on particular resources or areas.
The case of delimitation between relatively small islands
usually presents the most notable exception. There an equidistant
line will often halve the pie quite nicely. Thus it is surprising that equidistant lines between islands have been extensively in deeper parts of the Caribbean Sea and Pacific
Ocean.
A rarer exception arises where relatively regular coasts of
adjacent states face in the same general direction. In that case,
either an equidistant line or a line perpendicular to the general
direction of the coast (in effect an equidistant line modified to
ignore coastal irregularities) will also often halve the pie quite
nicely. Given the great depths off the Pacific coast of South
America, rendering disputes over specific resources in seaward
regions less likely, and the political desire of the states conand
the Government of the French Republic, Jan. 4, 1982, Austl.-Fr., 1983 Austl.
T.S. No. 2.
39. Iceland-Norway Agreement, supra note 33.
40. See, e.g., the discussion of political strategic, and historical considerations in
the Agreement between Australia and Indonesia Establishing Certain Seabed
Boundaries, May 18, 1971, Austl.-Indon., 974 U.N.T.S. 307 (1975) [hereinafter Australia-
Indonesia Seabed Agreement].
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cerned to maintain solidarity in support of their new and controversial
claims of 200-mile zones, it is not surprising that this
general type of approach was used by Chile, Ecuador and Peru
in the 1952 Santiago Declaration, albeit in the somewhat unusual
form of parallels of latitude that are not precisely perpendicular
to the general directions of the coasts at the land frontiers.41
What this indicates is that equidistance or some simple
equivalent is likely to be used where the desire to agree on both
sides is stronger than the interest in maximizing claims, where
specific resources or areas are not a major issue, and where the
coastal characteristics are such that the resultant division of
overlapping claims seems fair. In other situations, it cannot be
asserted either that the use of equidistance necessarily reveals
the existence of a dominant political interest in reaching agreement
on the part of one or both parties or that the failure to use
equidistance necessarily represents the absence of a dominant
political interest in reaching agreement on the part of at least
one of the parties. The reason is that in those situations, the
question of fairness is more complex; equidistance may well
represent a victory for one party and a defeat for the other.
D. Legal Factors
Whatever its relative interest in achieving rapid agreement,
a government must take into account the effect of any proposals
it makes on its relations with its neighbors. Powerful states may
be loath to appear like bullies. Strong and weak alike have an
interest in credibility. Unless a state is prepared to expend unrelated
resources (whether as carrots or sticks) to obtain a favorable
maritime boundary, its proposal must be grounded in more
than unrestrained self-interest. The search for a platform of
principle will entail, at least in part, a search for a proposal that
has a plausible legal and equitable foundation.
In this context, as in many others, governments can be
expected to consult legal sources that are likely to be regarded
as authoritative or at least persuasive by both parties. Thus, to
some degree, maritime boundary agreements may be analyzed in
41. One is tempted to wonder whether the use of parallels of latitude may
have been related to the fact that the jurisdiction asserted in the declaration extended
"not less than" 200 miles from the coast. See Chile-Peru Agreement, supra note
32; Peru-Ecuador Agreement, supra note 32.
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262 INTER-AMERICAN LAW REVIEW [Vol. 26:2
terms of the chronology of major developments in the law maritime delimitation as articulated by multilateral conferences
and international tribunals.
Following the entry into force of the Continental Shelf Convention,
42 the United Kingdom and other North Sea states set
about implementing the Convention, including the delimitation
rule in Article 6. A few years later, however, in direct response
to this effort, the International Court of Justice in the North Sea
Continental Shelf cases refused to apply Article 6 to a nonparty,
and enunciated a broader set of equitable principles, with substantial
emphasis on the nature of the continental shelf as a
natural prolongation of the land territory of the coastal state.43
The impact of the Court's dictum was unmistakable.44 The
United States for the first time made clear its view that the
maritime boun dary in the Gulf of Maine should place all of
Georges Bank on the U.S. side.45 Australia was driven by the
"natural prolongation" language in the opinion to seek, and in
large measure obtain, a continental shelf boundary extending to
the deep trench off the Indonesian coast.46 The summary report
on North Europe notes that the 1969 opinion marks the turning
42. Convention on the Continental Shelf, supra note 24.
43. North Sea Continental Shelf cases, supra note 11.
44. Perhaps its most wide-ranging effect is the new alternative definition of the
continental shelf in the U.N. Convention on the Law of the Sea as the natural prolongation
of the land territory for a state extending to the outer edge of the continental
margin. U.N. Convention on the Law of the Sea, supra note 2, at 10.
45. The position taken by the U.S. in 1970 diplomatic discussions was that "a
boundary in accordance with equitable principles should follow the line of deepest
water through the Northeast Channel, which would bring all of Georges Bank under
U.S. jurisdiction." Feldman & Colson, supra note 37, at 755. For its part, Canada,
which had consistently emphasized equidistance in the Gulf of Maine, later extended
its claim to give reduced effect to Cape Cod and associated islands, relying on the
opinion in the Anglo-French arbitration. It is possible this move was a largely tactical
one related to the forthcoming litigation regarding the Gulf of Maine; it is also
possible this move was not unrelated to the dispute regarding delimitation with
respect to the French islands of St. Pierre and Miquelon off the Canadian coast.
46. The analysis of the 1972 Australia-Indonesia seabed boundary agreement
points out that not much was known about the resource potential of the seabed
areas in question at the time. See Agreement between Australia and Indonesia Establishing
Certain Seabed Boundaries in the Area of the Timor and Arafura Seas,
Oct. 9, 1972, Austl.-Indon., 974 U.N.T.S. 319 (1957) [hereinafter Australia-Indonesia
Timor and Arafura Seabed Agreement]. The study does not advert to contemporaneous
rumors that Indonesia reaped certain political benefits in connection with this
agreement.
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point from equidistance to equitable principles in the region. As
tribunals made clear in subsequent opinions, any legal presumption
in favor of equidistance, if it ever existed, was gone.
The International Court of Justice subsequently retreated
from natural prolongation in the Tunisia-Libya41 case and especially
in the Libya-Malta case.48 The provisional continental
shelf agreement between Australia and Indonesia establishing a
zone of cooperation in the so-called Timor Gap49 as well as their
provisional fisheries surveillance and enforcement arrangement50
reveal a substantial retreat from the influence of geomorphology
in the earlier continental shelf agreement.
The impact of the opinion in the Guinea-Guinea-Bissau
arbitration is not limited to Africa. A specific reaction to that
decision is noted in the study of the Colombia-Honduras delimitation.
51
The foregoing are mere illustrations of the fact that while
states are free to ignore their legal rights inter se in reaching
agreement with each other, legal sources may well influence
their claims and expectations, sometimes decisively.52
47. Tunisia-Libya Continental Shelf Case, supra note 10 .
48. Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985
I.C.J. Rep. 13 [hereinafter Libya-Malta Continental Shelf Case].
49. Treaty between Australia and Indonesia on the Zone of Cooperation in an
Area between East Timor and Northern Australia, Dec. 11, 1989, Austl.-Indon., 29
I.L.M. 469.
50. Memorandum of Understanding between Indonesia and Australia Concerning
Fisheries Surveillance and Enforcement Arrangement, Oct. 29, 1981, Austl.-Indon.
(unpublished).
51. See Maritime Delimitation Treaty, Aug. 2, 1986, Colom.-Hond., (Rep. 2-4),
reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra note 20, at 502.
52. One might compare the comments of knowledgeable American and British
foreign ministry lawyers in this regard. The former state that U.S. maritime boundary
treaties "are not agreements of maximum advantage for either side. Nor are
they driven by particular theories of international law. They are negotiated agreements
based on mutual interest and applying methodologies suitable to expressing
that interest in the particular circumstance" See Feldman & Colson, supra note 37,
at 742. The latter (Anderson) states that the Irish-United Kingdom agreement "has
been cited as a model for reaching pragmatic solutions to previously intractable
boundary disputes. Geographical and legal factors played an important part in a
successful effort to reach an equitable solution, acceptable to the respective governments
and legislatures." Agreement on the Delimitation of the Continental Shelf
between the Two Countries, Nov. 7, 1988, Ir.-U.K., U.K.T.S. No. 20 (1990) [hereinafter
Ireland-United Kingdom Agreement].
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264 INTER-AMERICAN LAW REVIEW [Vol. 26:2
E. Effect on Third States
A state faced with the negotiation of several maritime
boundaries will need to consider the effect of its approach to one
boundary on the others. Thus, for example, the United States
has demonstrated a consistent practice of giving full effect to
islands in agreements in which equidistance is used.
At the simplest level - influenced in part by debates of the
issue during the Third U.N. Conference on the Law of the Sea -
the text of delimitation agreements may expressly recite the
reliance of the parties on equitable principles53 or on equidistance.
54 Governments may regard such statements as a means
of reinforcing their position of principle with respect to a third
state; they may also be attempting to deal with arguable inconsistencies
between the result they accepted in the agreement
and the result they propose elsewhere.
In an effort to retain flexibility, some states will wish to
avoid too precise or consistent an articulation of the underlying
rules. Legal and advocacy considerations apart, it is not surprising
that while Canada, in the Gulf of Maine dispute, was adhering
fairly closely to an equidistance approach, it articulated the
underlying rules in terms of equitable principles and relevant
circumstances. At the time, other Canadian maritime boundaries
remained to be determined. France and the United States have
taken similar approaches in explaining the various equidistance
boundaries that they negotiated.
53. For example, the Dominican Republic- Venezuela agreement refers to equitable
principles, arguably reflecting Venezuela's underlying position in other contexts.
See Treaty on the Delimitation of Marine and Submarine Areas, Mar. 3, 1979, Dom.
Rep.-Venez., G.O., No. 1634, Extraordinario July 28, 1980 (Venez.) [hereinafter Dominican
Republic-Venezuela Treaty! The Turkey-U.S.S.R. agreement similarly refers
to equitable principles, presumably reflecting the underlying position of both parties
in other areas, including the Turkish position with respect to Greece in the Aegean.
See Agreement on the Delimitation of the Continental Shelf in the Black Sea, June
23, 1978, Turk.-U.S.S.R., T.C. Resmi Gazete No. 17226 (1981) (Turkey-U.S.S.R.).
54. For example, the agreement between Greece and Italy refers to the "principle
of the median line" and "mutually approved minor adjustments" thereto. Both
parties may have had other delimitations in mind where they favor equidistance and
full effect for islands. It is interesting that the agreement gives reduced effect to
some islands. See Agreement on the Delimitation of the Zones of the Continental
Shelf Belonging to Each of the Two States, May 24, 1977, Greece-Italy, Limits in
the Seas, No. 96 (1982) [hereinafter Greece-Italy Delimitation Agreement].
Annex 186
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Others may wish to use one or more agreements to influence
an outstanding delimitation either directly or indirectly.
The classic example of this approach is the equidistant line
drawn by Denmark and the Netherlands as part of a more general
implementation of the equidistance principle in Article 6 of
the Convention on the Continental Shelf in the North Sea that
included, in addition to these two states, Norway and the United
Kingdom. It represented not only an attempt to reinforce the use
of equidistance in the North Sea but, by extending the line to a
point equidistant from their coasts and the German coast, an
effort to apply equidistance directly to their respective boundaries
with Germany. Similarly, the Denmark-U.K. and Netherlands-
U.K. equidistant lines in practice met at a tri-junction
point, a result inconsistent (except perhaps in mathematical
theory) with Germany's view that its continental shelf extended
to the middle of the North Sea.
The fact that this effort failed has not necessarily deterred
others. In reaching their continental shelf delimitation agreement
with each other, Ireland and the United Kingdom "had
common cause in opposing claims to part of the area by third
States," presumably Denmark and Iceland.55 The equidistant
line between Sicily and Tunisia was drawn as if Malta did not
exist.56
Agreements delimiting areas claimed by third states are
not, however, common. There is ample evidence of restraint.
Numerous bilaterally drawn boundaries are terminated short of
the tri-junction point with a third state even in the absence of
any known dispute.57
In both the Tunisia I Libya58 and Libya I MaZfo59cases, the
Court took care to protect the interests of a concerned third
state that, in each case, was unsuccessful in its efforts to inter-
55. Ireland-United Kingdom Agreement, supra note 52, at 20.
56. Agreement of the Delimitation of the Continental Shelf between Two Countries,
Aug. 20, 1971, Italy-Tunis, Limits in the Seas, No. 89 (1980). The boundary
terminates in the southeast at a point roughly equidistant between Malta and the
Italian island of Lampedusa; the latter was accorded only a thirteen-mile zone as
against Tunisia.
57. An example is the Greece-Italy boundary, which stops short of the tri-junction
points with Albania in the north and Libya in the south. Greece-Italy Delimitation
Agreement, supra note 54.
58. Tunisia-Libya Continental Shelf case, supra note 10.
59. Libya-Malta Continental Shelf Case, supra note 48.
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266 INTER-AMERICAN LAW REVIEW [Vol. 26:2
vene. In the first case, the Court did not specify the northeast
terminus of the final segment of the boundary running in direction of Malta. In the second case, the Court did not specify
a boundary between the parties in areas claimed by Italy.
Efforts at indirectly influencing the boundaries with third
states nevertheless persist:
* the boundary studies suggest that Venezuela embarked strategy of entering into delimitation agreements giving
Aves Island full, or substantial effect in hopes of influencing
other governments to do the same, choosing to conclude initial agreements with The Netherlands and the United
States simultaneously,60 and with France two years laterf
* Colombia appears to have attempted to structure its delimitation
agreements with Costa Rica,62 Honduras63 and Panama64
to be consistent with its position with regard to the
use of the 82 degrees W meridian under a 1930 exchange of
notes in connection with its dispute with Nicaragua;
* Denmark and Sweden apparently felt that agreeing to give
full effect to Bornholm in their agreement with each other
would strengthen the Danish position vis-a-vis the GDR and
Poland and the Swedish position in support of full effect for
Gotland vis-a-vis Poland and the U.S.S.R.;65
60. Delimitation Treaty between Netherlands and Venezuela, Dec. 15, 1978,
Neth.-Venez., Tractenblad van Het Koninkrijk der Nederlanden, Jaargang 1978, No.
61.
61. Delimitation Treaty between Venezuela and France, July 17, 1980, Fr.-
Venez., G.O., No. 3026, Jan. 28, 1983 (Venez.).
62. Treaty on the Delimitation of Marine and submarine Areas and Maritime
Cooperation, Mar. 17, 1977, Colom.-Costa Rica, Limits in the Seas, No. 79 (1978).
63. Maritime Delimitation Treaty, Aug. 2, 1986, Colom.-Hond., U.N., Oficina de
Oceanicos y del Derecho del Mar. Boletin No. 10, (Nov. 1987).
64. Treaty on the Delimitation of Marine and Submarine Areas, Nov. 20, 1976,
Colom.-Pan., Limits in the Seas, No. 79 (1978). Colombia's recognition of Panama's
historic claim to the Gulf of Panama was apparently phrased not only to protect its
nonrecognition of Venezuela's claim in the Gulf of Venezuela but, according to the
boundary study, to advance Colombia's position that Venezuela's claim must be recognized
by Colombia in order to influence the delimitation.
65. Eric Franckx, Baltic Sea Maritime Boundaries, in INTERNATIONAL MARITIME
BOUNDARIES 345, supra note 20. See also Agreement between Denmark and Sweden
on the Delimitation of the Continental Shelf and Fishing Zones, Nov. 9, 1984, Den-
Annex 186
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* in advance of reaching agreement on a precise boundary,
Brazil and Uruguay issued a joint declaration supporting
the use of equidistance. This may have been intended to
counter an Argentine desire to duplicate the practice on the
west coast of South America and use a parallel of latitude in
its delimitation with Uruguay.66
The tribunal in the Guinea-Guinea-Bissau arbitration67
devoted a great deal of attention to the problem of cut-off or
enclavement, which occurs when a state's boundaries with
neighboring (usually adjacent) states join at a point off its coast.
This problem can be avoided if the boundaries on either side are
coordinated so as to avoid a cut-off effect. The difficulty is that
only the boundary between the parties to the arbitration is at
issue. By emphasizing the need to avoid enclavement, determining
the broad general direction of the coast with reference to the
coasts of the immediate neighbors of both parties, and establishing
the longest seaward segment of the boundary as a perpendicular
to that general direction, the tribunal in effect was taking
an approach of broader utility in West Africa, and appears to
have been aware of this.
F. Sovereignty Disputes
In principle, all areas of land, including small islands and
rocks above water at high tide, are entitled to some maritime
jurisdiction.68 If strict equidistance is the method of delimitation,
they will have the same effect as promontories on much
larger islands or longer continental coasts. Accordingly, the
mark-Sweden, Sveriges overenskommelser med frammande makter 1985:54 (Sweden).
Neither party was completely successful.
66. Agreement Relating to the Maritime Delimitation between Brazil and Uruguay,
July 21, 1972, Braz.-Uru., 1120 U.N.T.S. 133. Given the generally northeastward
direction of the coast, the use of a parallel of latitude by Argentina and Uruguay
would either have disadvantaged Brazil were such a parallel to be used between
Brazil and Uruguay, or would have resulted in a substantial enclavement of
the Uruguayan zone between the parallel to the south and an equidistant line with
Brazil to the north.
67. Guinea-Guinea-Bissau Award, supra note 33.
68. See U.N. Convention on the Law of the Sea, supra note 2, art. 21. That
article specifies by way of exception "rocks which cannot sustain human habitation
or economic life of their own shall have no exclusive economic zone or continental
shelf."
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268 INTER-AMERICAN LAW REVIEW [Vol. 26:2
existence of sovereignty dispute over insular or other coastal
territory in an area requiring delimitation is likely to affect delimitation agreement including, in many cases, the boundary
itself.
If only one party to the negotiations is affected, the other
may be reluctant to get involved. For example, the boundary
drawn by Australia and France is terminated to the east point that avoids involving Australia in the territorial dispute
between France and Vanuatu over certain islands controlled France and also claimed by Vanuatu.69 The same problem apparently delayed Fiji's ratification of its delimitation agreement
with France.70 The terminus of the Atlantic maritime
boundary between Trinidad and Tobago and Venezuela was
shifted slightly to the north of a hypothetical tri-junction point
with Guyana in order to avoid involving Trinidad and Tobago in
any dispute between Guyana and Venezuela.71
If the sovereignty dispute is between the two states establishing
the maritime boundary, they may use the same technique
employed in the Australia-France agreement, namely
terminating the boundary at a point where they agree that the
disputed territory would not influence the location of the boundary.
For example, this approach has been used with respect to
disputed islands by Japan and South Korea72 as well as France
and Mauritius.73 It was also used by Canada and the United
States in the Gulf of Maine, where the landward terminus of the
boundary the Chamber was asked to draw was located at sea in
a manner designed to avoid the issue of sovereignty over
Machias Seal Island and North Rock.74 Italy and Yugoslavia's
69. Agreement on Marine Delimitation, Jan. 4, 1982, Austl.-Fr., 1983 Austl.
T.S. No. 2.
70. Agreement Relating to the Delimitation of an Economic Zone, Jan. 19, 1983,
Fr.-Fiji,(Rep. 5-6), reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra note 20,
at 995.
71. Treaty on the Delimitation of Marine and Submarine Areas, Apr. 18, 1990,
Trin. & Tobago-Venez., G.O., No. 34745, July 23, 1991 (Venez.).
72. Agreement Concerning the Establishment of Boundary in the Northern Part
of the Continental Shelf, Jan. 30, 1974, Japan-S. Korea, Limits in the Seas, No. 75
(1979).
73. Agreement on the Delimitation of the French and Mauritian Economic
Zones, Apr. 2, 1980, Fr.-Mauritius, Limits in the Seas, No. 75 (1979).
74. Treaty to Submit to Binding Dispute Settlement on the Delimitation of the
Maritime Boundary in the Gulf of Maine Area, Mar. 29, 1979, Can.-U.S., 23 I.L.M.
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maritime boundary originally stopped short of the Gulf of
Trieste because the land border in the Trieste region was not
settled.75 It appears that the extensive delimitations agreed by
the Irish Republic and the United Kingdom do not include delimitations
measured from Northern Ireland.76
Another approach is to resolve the sovereignty dispute and
the maritime boundary simultaneously. Perhaps the best known
examples are the treaty between Italy and Yugoslavia settling
both their land and territorial sea boundary in the Trieste region77
and the Treaty of Peace, Friendship, and Maritime Delimitation
between Argentina and Chile following the Beagle
Channel arbitration, Argentina's rejection of the award, and
mediation by the Vatican.78 There are others.79 In some cases,
the maritime boundary is expressly identified as the line dividing
sovereignty over islands as well;80 there may even be spe-
1197. It might also be noted that Art. 298(l)(a)(i) of the U.N. Convention on the
Law of the Sea, supra note 2, permits a party to exclude from arbitration, adjudication
or conciliation a maritime boundary dispute "that necessarily involves the concurrent
consideration of any unsettled dispute concerning sovereignty or other rights
over continental or insular land territory." Id.
75. Agreement on the Delimitation of the Continental Shelf between the Two
Countries, Jan. 8, 1968, Italy-Yugo., 7 I.L.M. 547.
76. Ireland-United Kingdom Agreement, supra note 52.
77. Treaty between Italy and Yugoslavia, Nov. 10, 1975, Italy-Yugo., Gazz. Uff.,
Supp. to No. 77 of Mar. 21, 1977 (Italy) [hereinafter Italy-Yugoslavia Treaty].
78. Argentina-Chile Agreement, supra note 31, at 11.
79. The following are some examples. Because of its desire not to inhibit
friendly relations, the United States abandoned its insular sovereignty clams in its
delimitation agreements with the Cook Islands and with New Zealand with respect
to Tokelau. See Treaty on the Delimitation of the Maritime Boundary between the
United States of America and the Cook Islands, June 11, 1980, Cook Islands-U.S.,
T.I.A.S. No. 10774; Treaty on the Maritime Boundary between Tokelau and the
United States of America, Dec. 2, 1980, N.Z.-U.S., T.I.A.S. No. 10775. New Zealand
acknowledged that Swains Island is part of American Samoa. Bahrain and Saudi
Arabia simultaneously divided disputed islands. See Agreement Concerning Delimitation
of the Continental Shelf, Feb. 22, 1958, Bahr.-Saudi Arabia, 409 (U.N. Legislative
Series), U.N. Doc. ST/LEG/SER. B/16 (1974). The 1973 agreement between
Australia and Indonesia settling the land boundary between Indonesia and Papua
New Guinea (which Australia then represented) also settled a landward gap in the
maritime boundary. Australia-Indonesia Certain Boundaries Agreements, supra note
19. North Korea and the U.S.S.R. simultaneously settled their boundary in the
Tumen River and their territorial sea boundary. Soviet-Korea National Border Agreement,
supra note 20. Interestingly, Abu Dhabi and Dubai simultaneously moved
their land frontier and their previously agreed maritime boundary ten kilometers to
the west. Offshore Boundary Agreement between Abu Dhabi and Dubai, Feb. 18,
1968, Abu Dhabi-Dubai, I Can. Annex 151 (1983) [hereinafter Abu Dhabi-Dubai Offshore
Boundary Agreement].
80. The following are some examples: The division of sovereignty over islands
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270 INTER-AMERICAN LAW REVIEW [Vol. 26:2
cific reference to islands that may emerge in the future.some cases, the islands with respect to which sovereignty resolved are given reduced effect in the maritime delimitation.III. Strategic Factors
A. Introduction
While it is reasonably clear that at least some maritime
boundaries were influenced by security interests, those interests
are almost never adverted to in the text of the agreement and
only rarely, and then often obliquely, in related commentary of
governments. In this connection, it should be borne in mind that
defense ministries are often consulted as governments develop
their maritime boundary positions.83 At times those ministries
are represented on negotiating delegations. It seems reasonable
to conclude that, whatever the apparent factors influencing its
location, the acceptability of the boundary may well be reviewed
from a security perspective.
between Australia and Papua New Guinea under article 2 of the agreement is in
part based on the seabed delimitation line. See Australia-Indonesia Certain
Boundaries Agreements, supra note 19. The same approach was used by Abu Dhabi
and Qatar. See Agreement on Settlement of Maritime Boundary Lines, Mar. 20,
1969, Qatar-U.A.E., 403 (U.N. Legislative Series) U.N. Doc. No. ST/LEG/SER.B/16
(1974).
81. See Agreement on the Delimitation of the Maritime Boundary in the
Adaman Sea, Dec. 23, 1986, Burma-India, art. 5, 27 I.L.M. 1144 [hereinafter Burma-
India Agreement].
82. Burma abandoned its claim to Narcondam Island and India did not insist
on the maximum possible claims from either Narcondam Island or Barren Island.
See Agreement on the Boundary in Historic Waters between India and Sri-Lanka,
June 26-28, 1974, India-Sri Lanka, 13 I.L.M. 1442 [hereinafter India-Sri-Lanka
Agreement]. In the agreement regarding Palk Strait and Bay, the island is not
counted at all in the delimitation, and there is provision for access to the island for
fishermen and pilgrims. The Iran-Saudi Arabia agreement limits the effect of the
islands to twelve miles. See Agreement Concerning the Delimitation of the Boundary
Line Separating Submarine Areas, Oct. 24, 1968, Iran-Saudi Arabia, 696 U.N.T.S.
189. It is not clear what influence a 1927 Icelandic letter reserving rights to the resources
of Jan Mayen, prior to the formal Norwegian claim to Jan Mayen in 1929,
had on the agreement to accord Iceland a full 200-mile exclusive economic zone in
areas where the distance between the coasts is less than 400 miles, or on the Conciliation
Commission's decision to establish a substantial joint management area with
respect to seabed resources, mostly on the Jan Mayen side of that 200-mile line.
Iceland-Norway Agreement, supra note 33.
83. In some cases, the navy is the primary internal source of charts, technical
data, or maritime expertise.
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A number of economic and other factors dealt with in other
chapters of this study may engage the perceived security interests
of a particular state. In a narrow sense, the term "security"
might refer to the right to conduct and, conversely, the right to
restrict military activities at sea, principally by warships, coast
guard vessels, and state aircraft. Yet even in that narrow sense,
it is difficult to distinguish commercial navigation interests from
security interests. Moreover, governments have asserted that
the movement of international trade, and access to and control
over mineral and hydrocarbon resources of the seabed, engage
not only their economic but their security interests.84 In the
broadest sense, a state's efforts to accumulate friends and control
the emergence or leverage of adversaries are fundamentally
tied to its security.
B. Types of Security Concerns
Two different aspects of security are potentially affected by
maritime delimitation. One is the desire of a state to exclude or
control activities of foreign states off its coast that it perceives to
be prejudicial to its security.85 The other is the desire of a state
to be able to ensure that its own or foreign activities that are
important to its security may be conducted without foreign interference,
including protection of its access to the open sea and
communications by sea and air with foreign states.
Under the regimes set forth in the United Nations Convention
on the Law of the Sea,86 these interests are unquestionably
affected in waters subject to the sovereignty of the coastal state,
namely internal waters, archipelagic waters, and the territorial
sea. That sovereignty is qualified by the right of innocent passage,
which is subject to certain coastal state regulatory powers
as well as the power to take measures to prevent passage that is
not innocent and the power to suspend innocent passage outside
straits. That sovereignty is also qualified by the right of ships
84. Soviet experts have spoken of environmental security, using the same Russian
word that is used in "Security Council" and "Committee on State Security"
(KGB). The cognates for "security" in many Romance languages may share the arguably
broader meaning of "safety."
85. The political reality of this perception of security is to be distinguished
from its substantive merits. Some might argue that, in certain situations, demagogy,
paranoia, or xenophobia are better explanations for the perception.
86. U.N. Convention on the Law of the Sea, supra note 2.
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272 INTER-AMERICAN LAW REVIEW [Vol. 26:2
and aircraft to transit passage of straits and archipelagic lanes passage.
As the tribunal in the Guinea-Guinea-Bissau arbitration
observed,87 the continental shelf and the exclusive economic
zone are not zones of sovereignty, but rather areas in which the
coastal state exercises more limited sovereign rights and jurisdiction
for specific purposes. These are identified in detail in the
United Nations Convention. In particular, freedom of navigation
and overflight are expressly protected in the provisions dealing
with the exclusive economic zone as well as the continental
shelf. There are nevertheless aspects of these regimes that
states may perceive as affecting their security interests:
* The United Nations Convention provides that artificial installations
used for resource or other economic purposes are
subject to coastal state control in the exclusive economic
zone and on the continental shelf. The same is true of. scientific
installations as well as any other installations that may
interfere with the exercise of the rights of the coastal
state.88
* The coastal state largely has a free hand in determining
where it will permit installations (and the safety zones
around them) to be placed in its exclusive economic zone
and on its continental shelf, subject to a somewhat narrowly
phrased duty to avoid recognized sea lanes essential to international
navigation,89 supplemented in the U.N. Convention,
by a general duty to avoid interference with navigation.
90 A neighboring state could be concerned about its
87. Guinea-Guinea-Bissau Award, supra note 33, at 124.
88. U.N. Convention on the Law of the Sea, supra note 2, arts. 60, 80, 81.
89. U.N. Convention on the Law of the Sea, supra note 2, art. 60, ^ 7, repeating
art. 5, H 6 of the Convention on the Continental Shelf, supra note 24.
90. U.N. Convention on the Law of the Sea, supra note 2, arts. 56(3), 58, 78(2),
87. While Article 87 of the U.N. Convention includes among the express freedoms of
the high seas the freedom to lay submarine cables and pipelines, this freedom is
"subject to Part VI" dealing with the continental shelf. Pursuant to Part VI, Article
79, the coastal state duty not to impede the laying or maintenance of cables and
pipelines is subject to its right to take reasonable measures for the exploration of
the continental shelf, the exploration of its natural resources and the prevention,
reduction, and control of pollution from pipelines. Moreover, the delineation of the
course for the laying of pipelines on the continental shelf is subject to the consent of
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access routes.
* The U.N. Convention accords the coastal state enforcement
rights over foreign ships in its exclusive economic zone with
respect to pollution in contravention of international standards
or internationally approved coastal state standards
(and, in limited circumstances such as dumping or ice-covered
areas, unilateral coastal state standards). The complex
and carefully balanced provisions of the Convention on this
matter are sometimes omitted from national laws on the
exclusive economic zone that nevertheless contain a generalized
assertion of jurisdiction with respect to control of pollution.
* The trend in the twentieth century has been one of expanding
coastal state jurisdiction in both a geographic and a
functional sense. This trend may continue, either in terms
of a gradual coastal shift in the balance between coastal and
other interests in the exclusive economic zone or in some
other way. Governments concerned with protecting their
access to the sea may consider it prudent to deal with that
contingency. In this connection it remains unclear whether
the United Nations Convention on the Law of the Sea will
eventually receive widespread adherence and, in any event,
precisely how it will be interpreted and exactly how much of
a restraining influence it will be.
C. Exclusionary Interest
There is very little evidence of boundaries being drawn to
reflect a security interest of the coastal state in excluding or
controlling foreign activities off its coast.91 That security interthe
coastal state.
91. It is said that strategic considerations influenced the strong position taken
by Sweden in favor of full effect for Gotland in its negotiations with the U.S.S.R.
Sweden eventually settled for seventy-five percent effect. Agreement on the Delimitation
of the Continental Shelf and of the Swedish Fishing Zone and the Soviet
Economic Zone in the Baltic Sea, Apr. 18, 1988, Swed.-U.S.S.R., 27 I.L.M. 295. It is
possible that traditional Soviet sensitivity concerning the security of the Arctic coast,
at times associated with the so-called sector principle, was a factor that encouraged
the Soviet Union to regard the line set forth in the 1867 U.S. -Russia Convention
ceding Alaska as the maritime boundary; north of the Bering Strait, the line follows
a meridian of longitude due north into the Arctic Ocean. See Maritime Boundary
Agreement, June 15, 1990, U.S.-U.S.S.R., 29 I.L.M. 941 (1990) [hereinafter U.S.-
U.S.S.R. Boundary Agreement].
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274 INTER-AMERICAN LAW REVIEW [Vol. 26:2
est is sometimes perceived in terms of proximity to the coast.An equidistant line, usually regarded as based exclusively geographic factors, or some other line reasonably far from coast might accordingly commend itself to some parties appropriate accommodation of their respective coastal security
interests. Since the security factor is masked, it is difficult whether it actually influenced the behavior of governments.
In the Libya-Malta case, the Court noted that the delimitation
resulting from its judgement is "not so near to the coasts either Party as to make questions of security a particular in the present case."93 The tribunal in the Guinea-Bissau arbitration made a similar point, noting that security
implications are avoided under its proposed solution by the that each state controls the maritime territories opposite coasts and in their vicinity.94 It may well be that governments,
like these two tribunals, are more likely to test particular results against this security concern than to shape a specifically in response to this concern.
It is also sometimes difficult to tell whether a boundary
drawn to maximize access to and from a naval base, for example,
is not - at least in the territorial sea - also designed to
maximize that state's control over foreign activities near the
base. It is reported that Soviet strategic interests with respect to
the main Pacific fleet naval base at Vladivostok produced a
territorial sea boundary more favorable to the U.S.S.R. than a
hypothetical equidistant line.95 There can be no doubt that access
to and from the base was a primary strategic concern. It is
92. Malta associated security interests with proximity to the coast in its arguments
before the International Court of Justice regarding the delimitation of its
continental shelf with Libya. See Libya-Malta Continental Shelf Case, supra note 48.
Guinea-Bissau did much the same in its arbitration with Guinea-Guinea-Bissau Arbitration,
supra note 33. The Truman Proclamation on the Continental shelf, supra
note 6, might suggest an analogous view of security (however unlikely the provenance
of that limited vision from the world's dominant maritime power might appear
to some observers). The preamble includes, as the final item in the list of justifications
for the assertion of jurisdiction over the resources of the continental shelf, the
statement, "since self-protection compels the coastal nation to keep close watch over
activities off its shores which are of the nature necessary for utilization of these
resources." Id.
93. Libya-Malta Continental Shelf Case, supra note 48, <fl 51.
94. See Guinea-Guinea-Bissau Award, supra note 33, at 251.
95. Soviet-Korea National Border Agreement, supra note 20.
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not clear that this was the only strategic concern.
D. Access to and from the Open Sea
There is ample evidence that concerns about access to and
from the sea have influenced maritime boundaries either directly
by altering or confirming their location or indirectly by
prompting simultaneous agreement on substantive provisions
protecting navigation rights. The summary report with respect
to the Baltic Sea notes that only navigation interests were
strong enough to prevail over the general use of equidistance in
that region.
It is often difficult to tell whether a state's preoccupation
with navigation derives primarily from economic or security
concerns. In this connection, it must be borne in mind that security
concerns regarding access relate not only to the naval and
air forces of the particular coastal state, but to access for the
forces of friendly states and, beyond that, to the protection of
trading and communications routes fundamental to the economy
of the state.
One would expect most explicit concerns with naval access
to be manifested by major naval powers. It is nevertheless interesting
that Soviet boundaries figure prominently in the references
in the boundary studies to maritime boundaries configured in
response to concerns about naval access.96 This may reflect the
circumstances of Soviet geography, the historic Russian and
96. See Id.; see also Agreement Concerning the Sea Frontier in the
Varangerfjord of 15 February 1957 and Protocol of 29 November 1957, Feb. 15,
1957; Nov. 29, 1957, Nor.-U.S.S.R., Limits in the Seas, No. 17 (1970) in the "strategically
and politically sensitive" area of the Varangerfjord, where the "boundary
runs, broadly speaking, across the broad mouth of the Gulf leaving plenty of water
on either side for access from the Qord to the Barents Sea"; see also Agreement
Concerning the Boundaries of Sea Areas and of the Continental Shelf in the Gulf of
Finland, May 25, 1966, Fin.-U.S.S.R., 566 U.N.T.S. 37, where the territorial sea
boundary in the Gulf of Finland established by the 1940 and 1947 peace treaties
between the parties was heavily influenced by Soviet security concerns, and where
Gogland (Suursaari) Island was given only limited effect to safeguard free navigation
north of it. The elaborate provisions in the Turkey-Soviet Union territorial sea agreement
for range markers and for situations where the markers are seen as overlapping
(possibly causing a vessel to cross the line inadvertently) presumably reflect an
underlying concern about protecting navigation in an area of zealous coastal security
enforcement. See Protocol Concerning the Territorial Sea Boundary Between the Two
States in the Black Sea, Apr. 17, 1973, Turk.-U.S.S.R., Limits in the Seas, No. 59
[hereinafter Turkey-U.S.S.R. Protocol].
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276 INTER-AMERICAN LAW REVIEW [Vol. 26:2
Soviet preoccupation with access to the sea, greater emphasis security concerns in Soviet policy-making, or a tendency by observers to emphasize security factors in their analyses Soviet motives.
The Soviet Union is not, however, alone. While it is common
in connection with base rights agreements to provide for rights
of access through the waters and air space of the host state, the
Cyprus-United Kingdom agreement went further. It established
lines extending seaward from the U.K. bases between which Cyprus
may not claim territorial waters.97 The United States' desire
to protect transit routes to and from San Diego, where it
has a major naval base, is cited as a factor supporting the decision
to give full effect to islands in a delimitation based on equidistance.
98 France made strategic arguments, particularly regarding
access to the port of Cherbourg, in the Anglo-French
arbitration. In effect, the tribunal gave priority to French interests
in navigation and security between the eastern and western
parts of the English Channel.99
States may desire to ensure that specific navigation routes
are within their own waters, or at least outside the waters of the
neighboring state. The Soviet, U.K., U.S., and French examples
already cited are generally of this type. There are, however,
others.
The practice of dividing the deep channel continues to be
used close to shore. This may be done when the channel extends
seaward from a land boundary in a river: the inner part of the
line used in the Guinea-Guinea-Bissau arbitration follows an
97. Treaty Concerning the Establishment of the Republic of Cyprus, Annex A.,
Aug. 16, 1960, Cyprus-U.K, 382 U.N.T.S. 10 [hereinafter Cyprus Treaty].
98. Exchange of Notes Effecting Agreement on the Provisional Maritime Boundary,
Nov. 24, 1976, Mex.-U.S., T.I.A.S. 8805 [hereinafter Mexico-United States Exchange
of Notes]; Treaty about Maritime Boundaries, May 4, 1978, Mex.-U.S., 17
I.L.M. 1073.
99. Agreement on the Shelf Boundary in the Eastern Channel and Southern
North Sea, June 24, 1982, Fr.-U.K, U.K.T.S. No. 20 [hereinafter United Kingdom-
France Shelf Boundary Agreement]. While navigation factors apparently did not
affect the negotiated boundary as such, in general the east-west lane of the traffic
separation scheme is on the U.K side while the west-east lane is on the French
side. Agreements between France and United Kingdom Relating to the Delimitation
of the Continental Shelf in the English Channel, July 10, 1975, U.K.T.S. No. 20
(1983).
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"historic" boundary using the thalweg.100 It may also be done
when the channel lies between the opposite coasts of the parties:
the Indonesia-Singapore boundary generally follows the deep
draught tanker route, even extending within the Indonesian
archipelagic baselines at one point.101 In other cases, the channel
may be of principal concern to one state. The boundary between
the Federal Republic of Germany and the former German
Democratic Republic in Liibeck Bay located the entire shipping
route to the FRG ports on the FRG side.102
On occasion, a state may limit its objectives to ensuring that
a navigation route or other areas, although not within its own
waters, are outside the waters, or at least the territorial sea, of
the neighboring state.103 The Argentina-Chile treaty limits the
territorial sea, as between the parties, to three miles in some
areas.104 The Australia-Papua New Guinea treaty limits the
territorial sea of certain islands to three miles, and in other
respects limits the territorial seas and archipelagic waters of the
parties.105 The agreement between Poland and the former German
Democratic Republic is specifically designed to protect the
northern access route to Polish ports, in part by limiting the
territorial sea and other jurisdiction of the GDR.106
Two interesting agreements specifically limit certain types
of coastal state jurisdiction in the exclusive economic zone and
on the continental shelf. The Netherlands-Venezuela agreement
places limits on the exercise of jurisdiction to prevent pollution
from ships and requires mutual agreement for emplacing struc-
100. Guinea-Guinea-Bissau Award, supra note 33, n 45, HI-
101. Indonesia-Singapore Sea Boundary Agreement, supra note 21.
102. F.R.G.-G.D.R. Protocol Note, supra note 16. The boundary study notes that
the FRG may also have considered its submarine testing areas near Nuestadt in
connection with this boundary.
103. The Cyprus-U.K. Agreement discussed above is an example. See Cyprus
Treaty, supra note 97.
104. Argentina-Chile Agreement, supra note 31, at 11.
105. See Australia-Papua New Guinea Treaty, supra note 4.
106. Treaty between German Democratic Republic and Poland Concerning the
Delimitation of the Sea Areas in the Oder Bight, May 22, 1989, G,D.R.-Pol., GB1. II,
No. 9, 28 July 1989, at 150-151 (G.D.R.) (discarding Treaty between the German
Democratic Republic and Poland Concerning the Delimitation of the Continental
Shelf in the Baltic Sea, Oct 29, 1968, G.D.R.-Poland, 768 U.N.T.S. 260 (1971). In the
interim, a dispute over navigation erupted between the parties that was extensively
debated in the polish parliament. See Treaty between Germany and Poland Concerning
the Confirmation of the Frontier Existing between Them, Nov. 14, 1990, F.R.G.-
Pol., reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra note 20, at 2023.
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278 INTER-AMERICAN LAW REVIEW [Vol. 26:2
tures that may obstruct recognized sea lanes.107 The Australia-
Papua New Guinea agreement defines an area within the central
Torres Strait, where the fisheries and seabed delimitation
lines diverge, in which the exercise of "residual jurisdiction"
requires the concurrence of the other party. "Residual jurisdiction"
is defined as jurisdiction other than seabed and fisheries
jurisdiction as well as seabed and fisheries jurisdiction not related to the exploration or exploitation of resources.108
A number of agreements are structured so that each party's
vessels can travel to and from its ports on its own side of boundary. In many situations this objective can be achieved any of several plausible maritime boundaries, and thus may be evident in the specific location or discussion of the boundary.
With respect to the France-Italy delimitation in the Straits
of Bonifacio, it is suggested that the "desire of both parties reach a delimitation which would permit passage through Mouths without entering the territorial sea of the other party
might have influenced the negotiations/'109 A similar consideration
is said to have influenced the Italy- Yugoslavia territorial
sea boundary in the Gulf of Trieste; in this connection, the Foreign Minister referred to the navigation of large tonnage
ships without the necessity of passing through Yugoslav
waters.110 Navigation interests prevailed over effect for the island
of Ven in the 1932 territorial sea delimitation in the Sound
between Denmark and Sweden.111
107. Delimitation Treaty between the Netherlands and Venezuela, Mar. 31, 1978,
Neth.-Venez., 1978 Tractenblad va het Koninkrijk der Nederlanden No. 61 (Neth.)
[hereinafter Netherlands- Venezuela Agreement].
108. Australia-Papua New Guinea Treaty, supra note 4.
109. Convention between Italy and France Relating to the Delimitation of the
Maritime Boundaries in the Area of the Mouths of Bonifacio, Nov. 28, 1086, Fr.-
Italy, Gazz. Uff., Suppl. to No. 48 of 27 Feb. 1989 (Italy) [hereinafter Italy-France
Convention].
110. Italy- Yugoslavia Treaty, supra note 77.
111. Agreement between Denmark and Sweden on the Delimitation of the Continental
Shelf and Fishing Zones, Nov. 9, 1984, Den.-Swed., Sveriges
overenskommelser med frammande makter 1985:54 (Swed.).
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E. Enclavement
A particular problem is posed by the so-called cut-off or
enclavement effect that can arise when the maritime boundaries
between a state and its neighbors meet at a point off its coast.
In the case of enclosed and semi-enclosed seas, some cut-off
effects are unavoidable. Despite this fact, extension of a state's
jurisdiction so as to avoid enclavement by its boundaries with
some states (e.g., adjacent states) can minimize the number of
states whose zones stand between the "enclaved" state and the
open sea. Thus, for example, as a result of the agreements implementing
the decision in the North Sea Continental Shelf
cases, the German continental shelf connects directly with the
British for a small distance.112
The concern about enclavement may engage both types of
perceived security interests. States prefer not to be surrounded
by their neighbors. In some measure this concern may be political
and psychological. States have articulated security concerns
about their capacity to conduct and control activities off their
coast. More concretely, states may be concerned about access
between their territory and the open sea.
In three cases, the maritime zones of small states with the
same coastal neighbor on either side were protected from
enclavement by the use of parallel lines defining the small
state's zones.113 With respect to The Gambia, parallels of latitude
were extended out into the open Atlantic.114 Monaco received
a corridor up to the outer limit of the territorial sea, as
well as a corridor beyond extending up to an equidistant line
with the opposite coast on the island of Corsica.115 The boundary
lines between Dominica, on the one hand, and Martinique
and Guadaloupe on the other, were extended in quasi-parallel
fashion up to 200 miles on the Atlantic side.116
112. Agreement between the Federal Republic of Germany and the United Kingdom
Relating to the Delimitation of the Continental Shelf under the North Sea between
the Two Countries, Nov. 25, 1971, F.R.G.-U.K, 880 U.N.T.S. 185. See U.N.
Convention on the Law of the Sea, supra note 2 and accompanying text.
113. The land territory of the state concerned is itself surrounded by the other
state in the first two cases.
114. Gambia-Senegal Agreement, supra note 33.
115. Monaco-France Delimitation Agreement, supra note 33. As Corsica is part of
France, some "enclavement" by French zones was ultimately unavoidable.
116. Agreement on Maritime Delimitation between Dominica and France, Sept. 7,
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280 INTER-AMERICAN LAW REVIEW [Vol. 26:2
Where a state's boundaries with more than one state pose
the risk of enclavement, one cannot be certain the risk has avoided absent agreement on maritime boundaries with all the neighboring states concerned. Boundaries between only states nevertheless can be drawn so as to minimize the risk of
enclavement when future boundaries are completed, thereby
attempting as far as possible to assure each state access to the
open ocean through its own zones and to avoid the presence of a
foreign zone opposite a state's coast. This is precisely what the
arbitral tribunal did in the Guinea-Guinea-Bissau arbitration.
117 Parallels of latitude were apparently used for this purpose
in the seaward segments of the Kenya-Tanzania118 and
Mozambique-Tanzania119 delimitations. 120
F. Specific Clauses Protecting Navigation
Delimitation agreements sometimes contain specific clauses
protecting navigation interests. A number of these arise in a
context where the clause appears to be related to the navigation
implications of the particular maritime boundary. Others seem
to reflect a more general concern about navigation that is not
necessarily associated with any particular boundary location or
configuration. It is not always easy to tell the difference.
The Argentina-Chile treaty makes elaborate provision for
1987, Dominica-Fr., Rev. Gen. D.I. Pub. 486-90 (1989).
117. Guinea-Guinea-Bissau Award, supra note 33.
118. Agreement between Kenya and Tanzania on Delimitation of the Maritime
Boundary between the Two States, July 9, 1976, Kenya-Tanz., (U.N. Legislative Series)
U.N. Doc. ST/LEG/SER.B/19 (1980).
119. Agreement between Tanzania and Mozambique, Dec. 28, 1988, Tanz.-
Mozam. (Rep. 4-7), reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra note
20, at 893.
120. The 1969 Brazil-Uruguay joint declaration supporting equidistance may have
been prompted by a desire to demonstrate to Argentina that the use of a parallel of
latitude between Uruguay and Argentina would have an enclavement effect when
coupled with a Brazil-Uruguay equidistant line, that the acceptability of a parallel of
latitude method to Uruguay was therefore (apart from other objections) rationally
dependent upon its acceptability to Brazil, and that Brazilian agreement was not
likely. See Agreement between Brazil and Uruguay Relating to the Maritime Delimitation
between the Two Countries, July 21, 1972, Braz.-Uru., 1120 U.N.T.S. 133
(1978). Although Argentina was not threatened with enclavement as such, the Argentina-
Chile treaty reflects Argentine concerns about any cut-off of its extension into
the Atlantic Ocean, and offers some support for the so-called bi-oceanic principle
defended by Argentina. See Argentina-Chile Agreement, supra note 31.
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the protection of navigation, including a reaffirmation of freedom
of navigation in and in the approaches to the Strait of Magellan.
121 The Australia-Papua New Guinea treaty contains extensive
provisions designed to protect navigation and overflight in
the Torres Strait area.122 In the Maroua Declaration extending
the maritime boundary between Cameroon and Nigeria, the "two
Heads of State further reaffirmed their commitment to freedom
and security of navigation in the Calabar/Cross River channel of
ships of the two countries as defined by International Treaties
and Conventions/'123 In these cases, there appears to be a fairly
close substantive link between these provisions and the underlying
delimitation issues.
There are strong navigation and overflight provisions in the
Netherlands-Venezuela agreement,124 and a guarantee of transit
passage between the islands of Trinidad and Tobago in the
Trinidad and Tobago-Venezuela agreement.125 More general
clauses protecting navigation rights can be found in other agreements.
126 These clauses may have facilitated agreement either
by constituting a quid pro quo for a particular boundary or in a
more general sense.
IV. Historical Factors
A. Introduction
Historical factors are perhaps easier to isolate than political
factors. Yet in the context of maritime boundaries, there is a
great deal of overlap with other factors. Historic fishing may be
121. Argentina-Chile Agreement, supra note 31.
122. Australia-Papua New Guinea Treaty, supra note 4.
123. Agreement between Cameroon and Nigeria, June 1, 1975, Cameroon-Nig.,
Maritime Boundary Agreements (1970-84) 97 (1987).
124. Netherlands-Venezuela Agreement, supra note 107.
125. Treaty between Trinidad and Tobago and Venezuela on the Delimitation of
Marine and Submarine Areas, April 18, 1990, Trin. & Tobago-Venez., G.O., No.
34745, June 28, 1991 (Venez.).
126. See, e.g., Agreement between Argentina and Uruguay Relating to the Delimitation
of the River Plate and the Maritime Boundary between the Two Countries,
Nov. 19, 1973, Arg.-Uru., U.N.T.S., No. 21424; Panama-Colombia Treaty, supra note
20; Dominican Republic- Venezuela Treaty, supra note 53, at 1634 (preambular reference
to Venezuelan navigation interests); India-Maldives Maritime Agreement,
supra note 34. France and the United Kingdom made a separate joint declaration on
navigation contemporaneously with their 1982 delimitation agreement. United Kingdom-
France Shelf Boundary Agreement, supra note 99.
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282 INTER-AMERICAN LAW REVIEW [Vol. 26:2
viewed as a resource or economic factor. The question of or extending, an "historical" boundary (or even a prior modus
vivendi) for maritime delimitation purposes is laden with as well as legal content.127 In a strict sense, questions historic bays or waters frequently may be regarded as baseline
questions.
B. Land Boundaries
In the normal case, a land boundary is better viewed as a
geographic rather than an historic factor. The land boundary
determines the allocation of coastlines from which maritime
jurisdiction extends. In the case of adjacent states, the intersection
of the land boundary with the sea constitutes the starting
point for the maritime boundary. There are, however, some
situations in which the land boundary takes on a broader historic
significance with respect to a maritime boundary.
127. Article 15 of the U.N. Convention on the Law of the Sea, supra note 2, like
art. 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone,
specifies with respect to delimitation of the territorial sea that the equidistance rule
applicable in the absence of agreement to the contrary "does not apply . . . where it
is necessary by reason of historic title or other special circumstances to delimit the
territorial sea of the two States in a way which is at variance" therewith. Convention
on the Territorial Sea and Contiguous Zone, April 29, 1958, 15 U.S.T. 1606, 516
U.N.T.S. 205. The delimitation rule in Article 6 of the 1958 Convention on the Continental
Shelf specifies that the equidistance rule applies "[i]n the absence of agreement,
and unless another boundary line is justified by special circumstances;" there
is no mention of historic title. Convention on the Continental Shelf, supra note 24.
The delimitation rules articulated in Arts. 74 and 83 of the U.N. Convention on the
Law of the Sea with respect to the exclusive economic zone and the continental shelf
do not address the location of the boundary in the absence of the agreement: they
require that delimitation "be effected by agreement on the basis of international
law ... in order to achieve an equitable solution," that the States concerned resort
to the dispute settlement procedures provided for in the Convention "[i]f no agreement
can be reached within a reasonable period of time," and that pending agreement
"the States concerned . . . shall make every effort to enter into provisional
arrangements of a practical nature and, during this transitional period, not to jeopardize
or hamper the reaching of the final agreement." Article 298(l)(a) permits
either party, at a minimum, to submit a maritime boundary dispute to conciliation.
Article 298(l)(a) permits a party to declare that it does not accept arbitration or
adjudication of disputes "relating to sea boundary delimitations, or those involving
historic bays or titles," but in that event requires acceptance of submission of the
matter to conciliation at the request of any party to the dispute. See U.N. Convention
on the Law of the Sea, supra note 2.
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1. Rivers Flowing into the Sea
One such situation arises in an essentially technical context,
namely where the center or thalweg of a river that flows into the
sea constitutes the land boundary. Either the shore line at the
mouth of the river in the case of a center-line boundary, or the
channel in the case of a thalweg, may change position over time.
Mexico and the U.S. had to deal with this problem in establishing
their territorial sea boundary in the Gulf of Mexico beyond
the mouth of the Rio Grande.128 The position of the Rio
Grande at its mouth, as indeed in other places, changes over
time. It is evident that the parties attached significant political,
historical, and practical importance to the maintenance of the
Rio Grande as the boundary: in contemporaneous settlements of
outstanding disputes regarding their land boundary, their solution
to the problem was cession of territories that fell on opposite
sides of the river and agreement to attempt to stabilize the
course of the river in the future.129 In the case of the maritime
boundary, a fixed point was established somewhat seaward of
the mouth of the Rio Grande. Seaward of that point, a fixed
maritime boundary was established. However, landward of that
point, the boundary will migrate over time, connecting the fixed
point with the center of the mouth of the river.
In the Guinea-Guinea-Bissau arbitration, the tribunal was
faced with a similar problem of linking a fixed maritime boundary
with the land boundary, namely the thalweg of the Cajet
River. Noting that the thalweg might migrate, the tribunal began
the fixed boundary seaward of the mouth of the river, and
specified that landward of that point the boundary would extend
in the direction of the thalweg.130
128. Mexico-United States Exchange of Notes, supra note 98.
129. Treaty to Resolve Pending Boundary Differences and Maintain the Rio
Grande and the Colorado River as the International Boundary between the United
States and Mexico, Nov. 23, 1970, 23 U.S.T. 371. Mexico-United States Exchange of
Notes, supra note 98; see also Convention for the Solution of the Chamizal Problem,
Aug. 29, 1963, 15 U.S.T. 21, 505 U.N.T.S. 185.
130. Guinea-Guinea-Bissau Award, supra note 33, ^ 129.
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284 INTER-AMERICAN LAW REVIEW [Vol. 26:2
2. Direction of the Land Boundary
Adjacent states sometimes argue that a maritime boundary
should be established by extending the land boundary in same direction out to sea. The territorial sea boundary prolongs
the last segment of the land boundary between Turkey and U.S.S.R. in the same direction.131
The International Court of Justice rejected the Libyan argument
that the maritime boundary should continue in the northward
direction of the land frontier in the Tunisia I Libya
case.132 In the Gulf of Maine case, the United States argued
that the general orientation of the continental boundary between
the two countries suggested a generally east-west orientation of
the maritime boundary, while Canada argued that the general
orientation of the land boundary in the coastal region between
Maine and New Brunswick suggested a generally north-south
orientation of the maritime boundary. The Chamber appeared
unimpressed by both arguments, and established the orientation
of the maritime boundary seaward of the Gulf of Maine as a
perpendicular to the generally northeast-southwest orientation
of the coast.133
3. Lines at Sea
It is not uncommon for treaties dealing with cessions or
allocations of sovereignty over islands or other territory to define
the areas ceded or allocated between those states on the basis of
lines drawn at sea. The essential purpose of those lines is to
provide a convenient reference for determining which islands
and territories are ceded or allocated to a particular party.
Among other things, this approach avoids the need to identify
precisely all islands and other territory ceded.
The question posed is whether those same lines (in light of
131. Turkey-U.S.S.R. Protocol, supra note 96.
132. Tunisia-Libya Continental Shelf Case, supra note 10, H 85. The Court did
not however identity "the factor of perpendicularity to the coast and the concept of
the prolongation of the general direction of the land boundary" as "relevant criteria
to be taken into account." Id. \ 120.
133. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v.
U.S.), 1984 I.C.J. 246 (Oct. 12) [hereinafter Gulf of Maine Case].
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the precise text of the relevant treaty, the original intent of the
parties134 or subsequent practice, or otherwise as a relevant
historical circumstance) are also to be used as maritime boundaries.
For newly independent states, in particular, this issue
may be linked to the importance they attach to the principle of
uti possidetis as a means of avoiding boundary disputes and
maintaining stable and peaceful relations.135
In the Guinea-Guinea-Bissau arbitration, after extensive
analysis of the text of the treaty, its negotiating history, and
subsequent practice, the tribunal rejected Guinea's argument
that the line extending far out to sea drawn in an 1866 Franco-
Portuguese treaty dividing their West African territories constituted
a maritime boundary as such.136 It nevertheless used
this line, deeming it a relevant factor and otherwise equitable,
for determining the location of the maritime boundary in a fairly
significant area in the vicinity of the coast up to a point twelve
miles seaward of Guinea's Alcatraz Island.137 The tribunal
pointed out that use of the seaward portions of the line as a
maritime boundary would aggravate the problem of enclavement
it was trying to find means to solve in the broader context of the
West African coast.
The 1990 U.S.-U.S.S.R. agreement expressly identifies the
maritime boundary as the line identifying the areas ceded in the
1867 U.S.-Russia Convention regarding the purchase of Alas-
134. It should be borne in mind that while at least parts of the lines in question
may be great distances from the nearest land, many of the treaties in question
were concluded at a time when the territorial sea was the only generally accepted
form of coastal state jurisdiction, and prevailing views regarding the maximum permissible
breath of the territorial sea revolved around the traditional three-mile limit
or little more. On the other hand, this circumstance does not in itself resolve the
question of whether a cession or allocation was so defined as to constitute a limit of
such maritime jurisdiction as might be claimed by a party or permitted by international
law at the time or in the future.
135. The Solemn of 1964 by the Heads of State and Governments of the Organization
of African Unity honoring existing boundaries at the time of independence is
unquestionably regarded as fundamental by African experts who recognize the chaos
that could result from challenges to the legitimacy of boundaries on grounds such as
their imperial provenance or demographic rationality. It should be noted Guinea-
Bissau unsuccessfully challenged a 1960 maritime boundary agreed to by Portugal
and France (on behalf of Senegal). Guinea-Guinea-Bissau Award, supra note 33; see
also Application of Guinea-Bissau to the I.C.J., 1989, (Aug. 23 Annex).
136. Since the tribunal decided that the treaty did not establish a maritime
boundary as such, it was able to avoid considering the effect of the uti possidetis
principle. Guinea-Guinea-Bissau Award, supra note 33, ^ 85.
137. Guinea-Guinea-Bissau Award, supra note 33, n 105, 106, lll(a).
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286 INTER-AMERICAN LAW REVIEW [Vol. 26:2
ka.138 The line drawn in the 1867 Convention is located entirely
at sea and extends across the Bering Sea and due north into
the Arctic Ocean.139 It is the longest single maritime boundary
in the world between two states, and delimits the territorial sea,
the exclusive economic zone, and the continental shelf beneath
and beyond the 200-mile exclusive economic zone. The agreement
includes a transfer by each party to the other of coastal
state jurisdiction beyond the maritime boundary to which the
transferor but not the transferee would otherwise be entitled
under international law.140
There are a number of other situations in which both parties
may regard similar lines as constituting their maritime
boundaries. These are not free from uncertainty.141 An example
is the following comment from the study of the maritime boundary
between Burma (Myanmar) and Thailand:142
The eastern terminus [of the boundary defined in the agreement]
is about forty-seven nautical miles from the mouth of
the Pakchan River which marks the boundary between Burma
and Thailand; it is suspected that the line joining this
138. U.S.-U.S.S.R. Boundary Agreement, supra note 91. The text of the 1867
Convention contains a comprehensive cession of all "territory and dominion" east of
the line. Convention Ceding Alaska, Mar. 18/30, 1867, 15 Stat. 539.
139. Some historical features of the 1867 line may be of interest. It was originally
drawn by the Russian Imperial Navy in connection with the Russian proposal
to sell Alaska to the United States. The report of the Chairman of the Foreign Relations
Committee to the U.S. Senate in connection with its consideration of the 1867
Convention identifies as one of the benefits of the purchase the rich fisheries resources
in extensive relatively shallow areas above what we would now call the
continental shelf.
140. The 1990 agreement followed an exchange of notes in the late 1970s in
which each state indicated that it intended to respect the 1867 line in connection
with its extension of fisheries jurisdiction to 200 miles. Subsequent to that exchange
of notes, the parties found that they differed as to the proper depiction of the 1867
line and needed to address aspects of its effect. The precise line drawn in the 1990
agreement coincides with the 1867 line where the parties agreed on its depiction
and, in the Bering Sea, is composed of segments all of which lie between or coincide
with the differing depictions of the 1867 line as a loxodromic or a geodetic line.
141. The regional summary report refers to the apparent use in the vicinity of
the adjacent coasts of Malaysia and Thailand of a line drawn on a rough sketch in
the protocol attached to a 1909 treaty which separated the territories of British Malaya
from Thailand. The report also refers to the apparent use between Malaysia
and Singapore of the line agreed in 1924 by Britain and the Sultan of Johore to
define the extent of Singapore; that line coincided with the deep channel of Johore
Strait.
142. Burma-India Agreement, supra note 81.
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river mouth to the eastern terminus is the line shown on a
map which was part of the boundary agreement [dividing
islands] between Britain and Thailand dated 30 April and 3
July 1868, when Britain ruled Burma.
An analogous situation is presented by the maritime boundary
between Finland and Sweden. Three turning points and one
terminal point of the continental shelf boundary coincide with
points established in the 1921 Convention concerning the nonfortification
and neutralization of the Aland Islands.143 However,
subsequent fishing lines drawn by each of the parties do not
use those points.
C. Prior Maritime Boundaries
While widespread assertion and acceptance of coastal state
jurisdiction over the continental shelf generally occurred in the
decade or so following the 1945 Truman Proclamation on the
continental shelf, widespread assertion and acceptance of coastal
state jurisdiction over fisheries, or a more comprehensive exclusive
economic zone, extending to 200 miles did not occur for
another thirty years or so, in many cases in conjunction with the
emerging consensus at the Third United Nations Conference on
the Law of the Sea. Thus, states that established a maritime
boundary beyond the territorial sea for one purpose, for example
delimitation of the continental shelf, may face the question of
whether to use the same boundary to delimit jurisdictions
claimed subsequent to the establishment of the maritime boundary,
for example fisheries or exclusive economic zone jurisdiction.
The agreements between Finland and the U.S.S.R. illustrate
an affirmative response to that question. The parties used the
two previously established continental shelf boundaries for fisheries
delimitation purposes.144 Subsequently they converted
143. Agreement between Finland and Sweden Concerning the Delimitation of the
Continental Shelf in the Gulf of Bothnia, the Aland Sea and the Northernmost Part
of the Baltic Sea, Sept. 29, 1972, Fin.-Swed., (U.N. Legislative Series) U.N. Doc.
ST/LEG/SER.B/18, 49 (1976). The history can be traced further back to the 1809
Peace Treaty of Fredrikshavn between Russia and Sweden.
144. Agreement between Finland and U.S.S.R. on the Delimitation of the Economic
Zone and Fishery Zone in the North Eastern Baltic Sea, Feb. 25, 1980, Fin.-
U.S.S.R., 33 Vedomosti Verkhovnogo Soveta S.S.S.R. (Communications of the Supreme
Soviet of the U.S.S.R.) 676 (1987).
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288 INTER-AMERICAN LAW REVIEW [Vol. 26:2
those continental shelf and fisheries jurisdiction boundaries all-purpose single maritime boundaries, including the exclusive
economic zone.145 Similarly, Turkey and the U.S.S.R. used
their previously established continental shelf boundary to delimit
their respective exclusive economic zones.146 The line drawn
in the historic 1942 seabed delimitation agreement between United Kingdom and Venezuela with respect to the Gulf of has been used, with some technical changes, in the single maritime
boundaries drawn in the 1989 and 1990 agreements between
Trinidad and Tobago and Venezuela.147 On the other
hand, the provisional fisheries surveillance and enforcement agreed by Australia and Indonesia, for example, is substantially
different from their earlier continental shelf boundary.148
History or prior practice may not alone explain the decision
to use a previous line drawn within the 200-mile zone. That
decision may be related to the recent practice of drawing a single
maritime boundary for all purposes. Attempts to use different
lines for different purposes within the zone raise a number
of practical problems of allocation of jurisdiction demonstrated,
for example, by the treatment of "residual jurisdiction" in the
145. Economic Zone, Fishery Zone, and Continental Shelf in the Gulf of Finland
and the North Eastern Baltic Sea, Feb. 5, 1985, Fin.-U.S.S.R., 25 Vedomosti
Verkhovnogo Soveta S.S.S.R. (Communications of the Supreme Soviet of the U.S.S.R.)
1 (1987).
146. Delimitation of the Exclusive Economic Zones in the Black Sea, Dec. 23,
1986 - Feb. 6, 1987, Turk.-U.S.S.R., T.C. Resmi Gazete No. 19386 (1987) (Turkey-
U.S.S.R.).
147. Treaty between the United Kingdom and the United States of Venezuela
Relating to the Submarine Areas of Gulf Paria, Feb. 26, 1942, Trin. & Tobago-
Venez., Limits in the Seas, No. 11 (1970). Delimitations of Marine and Submarine
Areas, Trin. & Tobago- Venez., G. O., No. 34645, Apr. 18, 1990 (1991) (Venezuela).
148. Understanding between Indonesia and Australia Concerning Implementation
of a Provisional Fisheries Surveillance and Enforcement Arrangement, Oct. 29, 1981,
Austl.-Indon., (Rep. 6-2(4)), reprinted in INTERNATIONAL MARITIME BOUNDARIES, supra
note 20, at 1238. It might be noted that the earlier continental shelf boundary between
Australia and Indonesia in the area, presumably in partial response to Australian
reliance on the concept of natural prolongation, was influenced by
geomorphological factors. See Australia-Indonesia Timor and Arafura Seabed Agreement,
supra note 46. Opinions of the International Court of Justice subsequent to
that time placed substantially less emphasis on the concept of natural prolongation
in continental shelf delimitation. The change in the Court's approach was itself influenced
by the fact that the U.N. Conference on the Law of the Sea included sovereign
rights over the resources of the seabed and subsoil within the concept of the
200-mile exclusive economic zone and defined the outer limit of the continental shelf
alternatively in terms of natural prolongation or a 200-mile limit.
Annex 186
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Australia-Papua New Guinea agreement.149
A similar question may be presented where the territorial
sea is extended to twelve miles in areas that were previously
subject to claims of more limited jurisdiction. Some segments of
the territorial sea boundary between France and Italy in the
Straits of Bonifacio follow the alignment of a 1908 fishing delimitation
agreement.150 The boundary between Poland and Sweden
in part follows a previous provisional fisheries boundary.151
Following extension of the territorial sea to twelve miles, France
and the U.K. agreed to modify the status of the boundary in the
Straits of Dover from a continental shelf boundary to a territorial
sea boundary.152
In the Guinea-Bissau-Senegal arbitration, the tribunal, by a
vote of 2-1, agreed with Senegal that the 1960 Franco-Portuguese
agreement delimiting the territorial sea, contiguous zone,
and continental shelf bound the parties. The President, who
voted in the majority, declared separately that because the 1960
agreement did not delimit the exclusive economic zone, the tribunal
should have addressed that delimitation question. Guinea-
Bissau instituted proceedings in the International Court of Justice
to void the award. The Court declined to do so.153
An interesting variant of this issue involves the treatment
of essentially the same question in successive maritime boundary
agreements with different states. Thus, for example, the
issue of reduced effect for Gotland was resolved between Poland
and Sweden on the same basis that it was previously resolved
between Sweden and the U.S.S.R., namely seventy-five percent
effect.154 The North Sea Continental Shelf cases nevertheless
provide ample evidence of the limits of any strategy designed to
impose such a result on a reluctant party.
149. See discussion preceding supra note 109.
150. Italy-France Convention, supra note 109.
151. Agreement on the Delimitation of the Continental Shelf and the Fishery
Zones, Feb. 10, 1989, Pol.-Swed., Regeringens Proposition 1988/89:97 (Swed.) [hereinafter
Continental Shelf and Fishery Zones Agreement].
152. Agreement on the Territorial Sea Boundary in the Straits of Dover, Nov. 2,
1988, Fr.-U.K, 1989 Gr. Brit. T.S. No. 26 (Cmnd. 1732).
153. Award of Arbitral Tribunal (Guinea-Bissau), 1989 (July 31), Application of
Guinea-Bissau to the I.C.J., 1989, (Aug. 23 Annex); Case Concerning the Arbitral
Award (Guinea-Bissau v. Senegal) 1989 (July 31), 1990 I.C.J. 64 (Request for Indication
of Provisional Measures Order).
154. Continental Shelf and Fishery Zones Agreement, supra note 151.
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290 INTER-AMERICAN LAW REVIEW [Vol. 26:2
D. Informal or De Facto Lines
In some instances, an informal or de facto line used by parties may become the basis for a maritime boundary. The
maritime boundary agreed between Abu Dhabi and Dubai in
1965 was initially established as an administrative frontier for
oil concession purposes in 195 1.155 In the Tunisia / Libya case,
the International Court of Justice used a 1919 line drawn by
Italian authorities when they were in control of Libya, noting
that this was the de facto line respected by the parties as dividing
their oil concessions.156
Determining the political or juridical effect of informal or de
facto lines poses a delicate problem. It is desirable to encourage
parties that are unable to reach agreement on a maritime
boundary for the time being to find some interim modus vivendi.
151 Fears that a modus vivendi may, for political or juridical
reasons, evolve into a permanent boundary or boundary regime
may limit the ability of the parties to find means to control the
scope and intensity of their dispute.158
E. Unilateral Claims
Whatever their effect on baselines used for purposes of measuring
equidistant lines159 - which appears to be scant -
there is no evidence that the limits of historic claims determine
the location of modern maritime boundaries as such. In the
Tunisia I Libya case, the International Court of Justice noted the
distinction between historic rights or waters and rights over the
continental shelf which arise ipso facto and ab initio.160 It re-
155. Abu Dhabi-Dubai Offshore Boundary Agreement, supra note 79.
156. Tunisia-Libya Continental Shelf Case, supra note 10, n 93-96, 117, 120. It
should be noted that this line is roughly perpendicular to the coast at the land
boundary.
157. See U.N. Convention on the Law of the Sea supra note 2, common H 3,
arts. 74, 83 (1983).
158. See U.N. Convention on the Law of the Sea supra note 2, arts. 74 and 83
(specifying that provisional arrangements "shall be without prejudice to the final
delimitation").
159. See generally Louis B. Sohn, Baseline Considerations, in INTERNATIONAL
Maritime Boundaries, supra note 20.
160. Tunisia-Libya Continental Shelf Case, supra note 10, <fl 100.
Annex 186
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jected use of a unilateral Tunisian fishing line and noted that
the Libyan northward line on its official petroleum regulation
map was insufficient even to constitute a formal claim.161
In connection with the influence of geomorphology in the
Australia-Indonesia continental shelf boundary, one might note
the earlier reference to a 100-fathom limit in the Australian
Pearl Fisheries Act of 1952-53, as well as the limits specified in
the 1967 continental shelf legislation in Australia dealing with
the problem of competing state and federal assertions of jurisdiction.
162 Even if these references were not designed to deal with
delimitation, but only with the general question of the definition
and seaward limit of the continental shelf,163 it is possible that
the legislation, including the state-federal settlement, added to
the political pressure on the Australian government to achieve a
delimitation rooted in geology or geomorphology.
It is interesting to note that the agreement between India
and Sri Lanka establishing a maritime boundary in Palk Strait
and Bay deals with an area that the parties both regarded as
historic waters originally appertaining to the United Kingdom
prior to the independence of the two states concerned. The
agreement provides for reciprocal recognition of traditional
rights in that area.164
F. Prior Seabed Concessions
Related to the question of unilateral claims, but distinguishable
therefrom, is the problem posed by prior authorizations by
a state for exploration or exploitation of the seabed. Absent
acceptance or some adequate manifestation of acquiescence by
the neighboring state concerned, unilateral seabed concessions
do not establish maritime boundaries. The problem of private
investment and expectations based on such authorizations nevertheless
persists. The state that issued the authorizations may
161. Id. 1 92.
162. Australia-Indonesia Timor and Arafura Seabed Agreement, supra note 46.
163. See 4 Whiteman DIG. OF INT'L. L. at 757, 758. Australian authorities were
doubtless aware that the press release accompanying the 1945 Truman Proclamation
on the continental shelf referred to the continental shelf as extending to a depth of
approximately 100 fathoms. The Australian legislation in question was enacted prior
to the decision in the North Sea Continental Shelf cases, supra note 11.
164. India-Sri-Lanka Agreement, supra note 82.
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292 INTER-AMERICAN LAW REVIEW [Vol. 26:2
be responding to a variety of factors, including political pressure
from its licensees, fear of liability to its licensees, or general
considerations of fairness.
Denmark and the Federal Republic of Germany adjusted the
line designed to implement the Court's decision in the North Sea
Continental Shelf cases so as to permit some existing Danish
licensees to remain on the Danish continental shelf.165 Abu
Dhabi and Qatar agreed to share ownership and revenues from
a disputed field, but under the existing Abu Dhabi concession
agreement.166 The agreement between Australia and Papua
New Guinea provides for certain protections under the laws of
Papua New Guinea for holders of Australian exploration permits.
167
G. Traditional Fisheries
There are some cases where traditional fisheries might be
regarded as an historic factor influencing the boundary agreement.
Since some of these arrangements involve artisanal fisheries
by indigenous peoples who are culturally or ethnically distinct
or at least geographically isolated from the general populations
of the states concerned, a political (if not juridical) factor
relating to the protection of such peoples may also be discerned.
The most elaborate arrangement is to be found in the agreement
between Australia and Papua New Guinea. It establishes a
Protected Zone in the Torres Strait area providing for the continuation
not only of traditional fishing but other traditional
activities. Paragraph 3 of Article 10 provides:
The principal purpose of the Parties in establishing the Protected
Zone, and in determining its ... boundaries, is to ac-
165. North Sea Continental Shelf (Den.-F.R.G.) 1969 I.C.J. 81 (Feb. 20) (separate
opinion of Jessup, J.) (suggesting some arrangement in this regard).
166. Agreement on Settlement of Maritime Boundary Lines and Sovereign Rights
over Islands between Qatar and Abu Dhabi, Mar. 20, 1969, Qatar-U.A.E., (U.N.
Legislative Series) U.N. Doc. ST/LEG/SER.B/16 (1974). The agreement between
Sharjah and Iran regarding Abu Masa (claimed by both) provides that offshore petroleum
will continue to be produced by Sharjah's concessionaire with governmental
revenues being shared equally by the parties. See Agreement on Seabed Boundary
between the Rulers of Sharjah and Umm al Qaywayn, 1964, Sharjah-Umm al
Qaywayn, I Can. Annex 99 (1983).
167. Australia-Papua New Guinea Treaty, supra note 4.
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knowledge and protect the traditional way of life and livelihood
of the traditional inhabitants including their traditional
fishing and free movement.
Pursuant to Article 11, "each Party shall continue to permit
free movement and the performance of lawful traditional activities
in and in the vicinity of the Protected Zone by the traditional
inhabitants of the other Party."168
Prior settlement of issues related to the control of Indonesian
traditional fishing apparently facilitated the negotiation of
the provisional fisheries enforcement line between Australia and
Indonesia.169 In the case of the India-Sri Lanka boundary in
the Gulf of Manaar and Bay of Bengal, Sri Lankan claims of historic
fishing rights in Wedge Bank did not alter the location of
the line, but did result in agreement on respect for Sri Lankan
fishing rights for three years and a Sri Lankan right to purchase
fish thereafter.170
In North America, the negotiation of a maritime boundary
was regarded as part of a larger attempt to settle historic
French rights to fish off Canada.171 On the other hand, United
States efforts to demonstrate historic fishing patterns and other
historic activities in support of its position that it should receive
all of Georges Bank did not succeed in the Gulf of Maine case. It
should be noted, however, that the line drawn by the Chamber
was more favorable to the United States than a hypothetical
equidistant line, and that the Chamber implied that a line totally
unresponsive to Canadian fisheries activities in the northeastern
part of the bank would not be equitable.172
168. Id.
169. Provisional Fisheries Surveillance, supra note 17.
170. Agreement between India and Sri Lanka on the Maritime Boundary between
the Two Countries in the Gulf of Manaar and the Bay of Bengal, Mar. 23,
1976, India-Sri Lanka, (U.N. Legislative Series) U.N. Doc. ST/LEG/SER.B/19 (1980).
171. Agreement between Canada and France Concerning Mutual Fishing Relations
off the Atlantic Coast of Canada, Mar. 27, 1972, Can.-Fr., 862 U.N.T.S. 209
(1973).
172. Gulf of Maine Case, supra note 133, n 237-38; Treaty between Canada
and United States to Submit to Binding Dispute Settlement the Delimitation of the
Maritime Boundary in the Gulf of Maine Area, Mar. 29, 1979, Can.-U.S., 1984 I.C.J.
246.
Annex 186
294 INTER-AMERICAN LAW REVIEW [Vol. 26:2
V. Conclusion
There is no doubt that political factors influence the question
of whether, and if so when, a maritime boundary will negotiated or submitted to a tribunal for determination. The
question of timing alone may influence the location of the boundary
in response to an evolving jurisprudence in the field of maritime
boundaries and changes in the regimes of the law of sea more generally.
It is often difficult to demonstrate what particular influence
political factors have on the precise location of a specific boundairy.
In this regard, however, it must be borne in mind that interests governments seek to protect are frequently the result
of a political analysis that may or may not reflect a hypothetical
"objective" analysis of those interests. A government's reasons
for taking into account its neighbor's interests and perceptions
in the context of a negotiated boundary are, at least in some
respects, different in kind and degree from its reasons for doing
so in its presentations before a tribunal.
There is no direct evidence that tribunals take political
factors as such into account in determining maritime boundaries.
It can be argued that the broader regional analysis of the
problem faced by the tribunal in the Guinea-Guinea-Bissau
arbitration was to some, widely regarded as felicitous, degree
"political." This author would be among those who believe the
tribunal was, in effect, sensitive to the broader principles and
purposes of the U.N. Charter and the OAU Charter in seeking
means to promote peaceful relations among states.
The fact that adjudicated or arbitrated maritime boundaries
tend to fall between those proposed by the parties may or may
not reflect a tendency to strike a compromise. It can be argued
that such results are inevitable where parties take maximum or
extreme positions. At all events, the issue is merely one aspect
of the broader question of whether arbitrators are prone to seek
compromise results and, if so, whether that tendency is properly
characterized as political.
Security factors are most prominent in dealing with maritime
boundaries close to the coast, but they have influenced
Annex 186
1994-95] INTERNATIONAL MARITIME BOUNDARIES 295
some boundary arrangements beyond the territorial sea. The
evidence that states take security factors into account in negotiating
maritime boundaries is probably insufficient to indicate
the extent to which this is in fact done. In many situations security
interests and other interests (such as commercial navigation
or resource interests) coincide, and in many situations a variety
of maritime boundaries may accommodate perceived security
interests.
While states have raised security interests in arbitrations or
adjudications, the arguments appear to have had different effects.
In the Libya I Malta and Guinea-Guinea-Bissau cases, the
tribunals tested the lines arrived at for other reasons against
the coastal security concerns raised by the parties and found
them sufficient. In the Anglo-French arbitration, the result was
arguably responsive to France's security concerns about access
in the English Channel. In the Gulf of Maine case, the United
States, having noted that an equidistant line would extend as
far south as Philadelphia, outlined its perception of Canadian
tendencies to expand coastal state jurisdiction both geographically
and functionally; the point had no explicit effect on the
Chamber's analysis.
Historical factors can influence both negotiated and adjudicated
boundaries. The most significant effect occurs in the use of
lines primarily drawn for some other purpose, such as delimitation
of a different form of maritime jurisdiction or allocation or
cession of islands and other land territory. There is evidence of
some tendency to use continental shelf boundaries to delimit
fisheries or exclusive economic zones. On the whole, however,
there is no consistent pattern. Each case must be examined
closely in terms of the legal significance of the historical factor
as well as the political, security, geographic, and economic impact
of taking it into account or failing to do so.
Annex 186
Annex 187
D. P. Riesenberg, “Recent Jurisprudence Addressing Maritime Delimitation Beyond
200 Nautical Miles from the Coast”, The American Society of International Law, 2014
/
(/)
Volume: 18 Issue: 21
By: David P. Riesenberg
Date: September 22, 2014
Home (/) / Insights (/insights) /
Recent Jurisprudence Addressing Maritime Delimitation Beyond 200 Nautical Miles from the Coast
Recent Jurisprudence Addressing Maritime
Delimitation Beyond 200 Nautical Miles from the
Coast
The past two-and-a-half years have witnessed considerable development in the international
law of maritime boundary delimitation.[1] In particular, this brief period has seen the historic
emergence of jurisprudence addressing delimitation of a state’s maritime entitlements located
beyond 200 nautical miles (M) from the state’s coastal baselines. In a string of recent disputes
involving maritime jurisdiction in the Bay of Bengal, the Caribbean Sea, and the Pacific Ocean,
international courts and tribunals—including the International Court of Justice (ICJ), the
International Tribunal for the Law of the Sea (ITLOS), and an arbitral tribunal constituted under
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Annex VII of the UN Convention on the Law of the Sea (UNCLOS)[2]—have begun to address
the unique and critical issues arising in such delimitations.[3] This Insight briefly describes
three of the theoretical and practical problems revealed by this emerging jurisprudence.[4]
Background
In accordance with UNCLOS and customary international law, states have generally exercised
sovereign rights and jurisdiction over two types of maritime entitlements beyond the 12-M
territorial sea.[5] First, a state may declare entitlement to an Exclusive Economic Zone (EEZ)
up to 200 M from its coastal baselines.[6] Throughout its EEZ, a state may exercise sovereign
rights to exploit all “living or non-living” natural resources of the “seabed and its subsoil” and
“the waters superjacent to the seabed.”[7] The coastal state also exercises jurisdiction in the
EEZ with regard to environmental protection[8] and must have due regard for the rights of
other states including, among others, the freedoms of navigation and overflight.[9]
Second, a state may exercise jurisdiction over the living and non-living resources of the
continental shelf’s seabed and subsoil, including hydrocarbon resources and sedentary living
species.[10] Although a coastal state’s sovereign rights with respect to the continental shelf
“exist ipso facto and ab initio” under customary international law,[11] Article 76(8) of UNCLOS
requires coastal states to establish the outer limits of the continental shelf on the basis of
recommendations from the Commission on the Limits of the Continental Shelf (CLCS)
regarding the geomorphological, bathymetric, and distance criteria set forth under Article 76(4)
and 76(5).[12] Where the shelf does extend beyond 200 M, the state exercises the same
sovereign rights as within 200 M. But entitlement to the outer continental shelf entails no
rights to and does not affect the legal status of the superjacent water column.[13]
Where two or more states’ maritime entitlements overlap, the claimant states may divide the
overlapping area by agreement or by submitting to the jurisdiction of an international court or
tribunal. In accordance with UNCLOS and customary international law, such boundaries are
often delimited along an “equidistance” line, every point of which is equidistant from the
nearest points on the claimant states’ coastal baselines.[14] Where coastal geography or
other factors would render an equidistance boundary inequitable, however, the boundary may
diverge from equidistance. For example, international courts and tribunals have concluded
that factors such as disparities in coastal length, the concavity of one state’s coast, or the
presence of islands may necessitate divergence from equidistance.[15]
In sum, the allocation of maritime space is governed by interrelated but, at times,
disharmonious rules. The extent of the EEZ is based purely on distance, whereas the outer
limit of the continental shelf may be based on a combination of distance, bathymetry,
geomorphology, and the thickness of the seabed’s sedimentary layer. Delimitation, finally, is
often based on distance (or, more precisely, equidistance), but may diverge from equidistance
based on coastal geography. The tension between such rules is heightened in maritime
spaces beyond 200 M, as revealed in the recent jurisprudence.
Demonstrating the Existence of an Outer Continental Shelf
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A threshold question in delimitation of maritime space beyond 200 M from the coast is
whether any claimant state is entitled to the outer continental shelf based on the natural
prolongation of its land mass. Whether maritime space beyond 200 M can be delimited before
the CLCS has issued final recommendations is controversial.[16] As demonstrated in a 2013
survey, states often have not waited for a CLCS recommendation before delimiting their
entitlements to the continental shelf beyond 200 M by treaty.[17]
Similarly, the 2012 judgment by ITLOS in Bangladesh/Myanmar and the 2014 award by the
Annex VII tribunal in Bangladesh v. India both explained that it was unnecessary to wait for
CLCS recommendations before delimiting the continental shelf beyond 200 M in the Bay of
Bengal.[18] Importantly, none of the three coastal states—India, Bangladesh, and Myanmar—
disputed that an extended continental margin existed in the Bay of Bengal.[19] Indeed, all
three states had already made full CLCS submissions and were awaiting recommendations.
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[20] Moreover, ITLOS and the Annex VII tribunal were in no doubt, given the sediment
thickness in the Bay of Bengal, that all three states could satisfy the criteria of Article 76(4) and
76(5).
A more cautious approach was followed in the 2012 judgment in Nicaragua v. Colombia I by
the ICJ, which declined to delimit any maritime spaces beyond 200 M from Nicaragua’s coast.
[21] In that case, Nicaragua claimed entitlement to the outer continental shelf due to the
presence of the “Nicaraguan Rise,” a shallow area of continental shelf extending from
Nicaragua’s mainland and allegedly overlapping with maritime areas within 200 M of
Colombia’s mainland.[22] On this basis, Nicaragua asked the ICJ to delimit a maritime
boundary midway between the outer limit of Nicaragua’s continental shelf and the outer limit
of Colombia’s EEZ. Such a delimitation between opposite coasts would likely have required
the ICJ to determine not only whether Nicaragua was entitled to a continental shelf beyond
200 M, but also the location of Nicaragua’s outer limit.[23]
The ICJ declined, however, to delimit this alleged area of overlap.[24] As the ICJ explained,
whereas both parties in Bangladesh/Myanmar had made full CLCS submissions, neither party
in Nicaragua v. Colombia I had done so.[25] Colombia was not a party to UNCLOS, and
Nicaragua had produced “only ‘Preliminary Information’ which, by its own admission, f[ell]
short of meeting the requirements” of the CLCS process.[26] The ICJ therefore rejected
Nicaragua’s request. As the ICJ explained, “the fact that Colombia is not a party thereto does
not relieve Nicaragua of its obligations” under Article 76(8) of UNCLOS.[27] Accordingly, the
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ICJ performed no outer continental shelf delimitation “since Nicaragua, in the present
proceedings, ha[d] not established . . . a continental margin that extends far enough to
overlap” with the EEZ projected by Colombia’s mainland.[28]
Writing separately, Judge Donoghue, Judge ad hoc Mensah, and Judge ad hoc Cot each
agreed with the ICJ’s conclusion, but disagreed with the majority’s explanation of its
reasoning. According to these three judges, the critical flaw in Nicaragua’s claim was not
procedural noncompliance with Article 76(8), but rather the failure to produce sufficient
evidence regarding the existence and extent of the Nicaraguan Rise.[29] In these judges’
view, Nicaragua’s procedural failures under UNCLOS could not be invoked in a bilateral
proceeding involving Colombia, which was not party to UNCLOS.[30]
Accordingly, Nicaragua v. Colombia I may be distinguished from the cases decided in the Bay
of Bengal based on four factors: (1) Nicaragua had not complied with the procedural
requirements of UNCLOS, (2) Nicaragua failed to prove its entitlement with sufficient evidence,
(3) the opponent state, Colombia, had not conceded the existence of a Nicaraguan continental
margin beyond 200 M, and (4) the ICJ would likely have been required to determine the
precise location of Nicaragua’s outer limit to perform the requested delimitation. Future
jurisprudence may provide guidance as to which of these factors are necessary or sufficient
threshold conditions for delimitation of the outer continental shelf.
More answers will likely emerge from Nicaragua v. Colombia II.[31] After judgment was
rendered in Nicaragua v. Colombia I, Nicaragua made a full CLCS submission in June 2013
regarding the continental margin in the Caribbean and filed a new application with the ICJ
requesting delimitation in September 2013.[32] Although no final judgment will be forthcoming
in Nicaragua v. Colombia II for several years, it is clear that a central issue will be the ICJ’s
approach to evidence regarding the Nicaraguan Rise.
Division of Rights in the “Gray Area”
A second complexity arising in delimitations beyond 200 M is the division of rights within the
so-called “gray area.” A gray area constitutes any maritime space situated beyond 200 M
from State A’s coast, within 200 M of State B’s coast, and on State A’s side of the two states’
maritime boundary.[33] Such areas exist wherever a boundary deviates from equidistance
beyond 200 M. Because relevant sections of the boundary in Bangladesh/Myanmar (which
partially followed a 215º azimuth)[34] and the boundary in Bangladesh v. India (which partially
followed a 177° 30′ azimuth)[35] deviate from equidistance beyond 200 M, both delimitations
create gray areas.[36]
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A difficult question arises as to the allocation of rights and responsibilities in the water column
within any gray area. Because both gray areas in the Bay of Bengal are located more than 200
M from Bangladesh, Bangladesh’s EEZ does not encompass the water column in the gray
areas.[37] However, because both gray areas fall on Bangladesh’s side of its maritime
boundaries with India and Myanmar, Bangladesh is entitled to jurisdiction over the continental
shelf in the gray areas. Neither India nor Myanmar can exploit the seabed and its subsoil
within the gray areas, because their respective continental shelf boundaries with Bangladesh
restrict them from doing so.
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The result is that while the seafloor in the gray areas is unequivocally under Bangladesh’s
jurisdiction, the water column in the same maritime spaces must either belong (1) to the
opposing states as residual EEZ or (2) to the global common space known as the “high seas.”
International lawyers have long recognized both possibilities in theory. If the former is correct,
then a regime of bifurcated national jurisdiction emerges—one state exercises jurisdiction over
the natural resources of the seafloor, while another exercises jurisdiction over the natural
resources of the water column. If the second option is correct, then the water column in the
gray area becomes an area of high seas in which all states share equal rights.[38]
The majorities in Bangladesh/Myanmar and Bangladesh v. India preferred bifurcation and
allocated jurisdiction over the water column to Myanmar and India respectively.[39] Essentially
the same reasoning was followed in both decisions. First, these decisions concluded that a
tribunal’s “power to delimit the respective entitlements of the Parties exists only where those
entitlements overlap,” such that a boundary delimiting rights to the continental shelf can have
no effect on the superjacent water column.[40] The premise underlying this conclusion is that
the two components of the EEZ—the water column and the seafloor—constitute
fundamentally severable layers, such that one state’s jurisdiction over the water-column layer
and another state’s jurisdiction over the seafloor layer cannot overlap in a manner susceptible
to delimitation. Second, both majorities concluded that UNCLOS and customary international
law have long recognized areas where states may have “shared rights” in certain maritime
space.[41] For example, before the emergence of the EEZ in international law, most
continental shelf entitlements were situated beneath the high seas.[42] Third, the two
majorities were confident that the parties could resolve any practical awkwardness caused by
bifurcation through negotiation.[43]
The decisions in Bangladesh/Myanmar and Bangladesh v. India were each accompanied by
dissents voicing essentially similar concerns. First, the water column and the seafloor within
200 M may be conceptualized as “indispensable and inseparable parts” of a unitary EEZ,
enabling delimitation where one state’s EEZ jurisdiction overlaps with another state’s
continental shelf jurisdiction.[44] Second, the inherent practical difficulties of sharing a
maritime space might weigh meaningfully against bifurcation, even if states can ultimately
negotiate around such difficulties.[45] Indeed, the ICJ reasoned in Nicaragua v. Colombia I
that “the public order of the oceans” tends to require “a simpler and more coherent division”
of maritime space and maritime resources.[46]
Today, however, bifurcation enjoys the support of the only two decisions yet rendered by
international courts and tribunals addressing gray areas. Bangladesh’s two gray areas actually
overlap with one another—such that, in a small area of the Bay of Bengal, the seafloor falls
under Bangladesh’s continental shelf jurisdiction while the water column remains subject to
the overlapping EEZ entitlements of India and Myanmar.[47] Meanwhile, if the Nicaraguan
Rise does allow Nicaragua to extend its continental shelf beyond 200 M and into the EEZ
projected by Colombia’s islands or mainland, the ICJ may also soon be obliged to consider
the status of another gray area.[48]
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Redistribution of Sovereign Rights Where Entitlements Do Not Overlap
A third emerging question is whether and how states might validly redistribute their maritime
jurisdiction in areas where their entitlements do not actually overlap. Indeed, although the
majorities concluded in Bangladesh/Myanmar and Bangladesh v. India that the “power to
delimit the respective entitlements of the Parties exists only where those entitlements
overlap,”[49] states have occasionally concluded treaties purporting to reallocate and
rearrange the placement of their maritime jurisdiction even where the states’ entitlements have
not overlapped.
For example, in a 2010 treaty, Norway explicitly conferred on the Russian Federation “the
sovereign rights and jurisdiction arising out of the jurisdiction in the exclusive economic zone
that Norway would otherwise be entitled to exercise” in a section of the Barents Sea
designated as “the Special Area.”[50] As Article 3 of the Barents Sea treaty explains, this
Special Area is beyond 200 M from Russia’s coast, within 200 M of Norway’s coast, and on
Russia’s side of the maritime boundary. Two more such “Special Areas” are identified in the
Bering Sea under the 1990 maritime boundary treaty between the Soviet Union and the United
States.[51] As did the Barents Sea treaty, the Bering Sea treaty also purported to transfer
portions of each state’s 200-M EEZ to the other state even though the transferee state would
ordinarily be considered too remote to extend its EEZ to encompass that maritime space.
At first glance, these innovative agreements are difficult to reconcile with the recent
pronouncements by ITLOS and the Annex VII tribunal that the water column can only be
delimited where two states’ entitlements to EEZ jurisdiction overlap. On the other hand, such
state practice arguably suggests that states are able to redistribute their sovereign rights by
arrangements that cannot be imposed upon them by international courts and tribunals, whose
jurisdiction is based fundamentally on the parties’ consent.[52] The Barents Sea and Bering
Sea treaties may also provide examples of what ITLOS called “appropriate cooperative
arrangements,” by which states can circumvent the impracticalities of the bifurcated gray
area.[53] In any event, no international court or tribunal has yet analyzed the effects of such
innovative treaties or attempted to reconcile this state practice with recent jurisprudence.
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An agreement of this general sort was alleged in the recent case of Peru v. Chile before the
ICJ. Chile argued that the 1952 Santiago Declaration delimited a maritime boundary between
Peru and Chile along a line of latitude running due westward.[54] This alleged boundary, in
Chile’s view, prevented Peru from exercising any jurisdiction over a large, triangular maritime
space (roughly the size of Albania)[55] located south of the boundary and within 200 M of
Peru’s coast—although Chile itself possessed no entitlement overlapping with this “outer
triangle.”[56] In its 2014 judgment, the ICJ rejected Chile’s argument[57] and concluded
instead that Peru and Chile had tacitly agreed to a boundary extending only 80 M along the
parallel of latitude.[58] The ICJ therefore was not obliged to address any issues relating to the
outer triangle.[59]
Dissenting from the majority’s conclusion regarding the extent of the boundary, five of the
individual judges concluded that Peru and Chile had delimited a boundary extending to Chile’s
200-M limit either by tacit agreement or by treaty.[60] Each of these five judges also agreed
that the 1952 Santiago Declaration did not constitute a transfer or waiver of Peru’s rights in the
outer triangle.[61] As the ICJ’s President, Judge Tomka, wrote in his individual declaration,
“[t]here [wa]s no evidence that Peru ha[d] relinquished any entitlements under customary
international law in areas . . . within 200 nautical miles of its coast.”[62] Neither President
Tomka nor the other dissenters provided any further reasoning on the subject.
It therefore remains somewhat uncertain whether and how a state might validly, to use
President Tomka’s expression, “relinquish” its sovereign rights and jurisdiction in an area
where the parties’ maritime entitlements do not overlap. While the Barents Sea and Bering
Sea treaties are both particularly explicit about transferring maritime jurisdiction over the
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“Special Areas” from one state to the other, it is also conceivable that states might create
similar arrangements by tacit agreement. In this regard, the ICJ has observed that “[e]vidence
of a tacit legal agreement must be compelling,” because “the establishment of a permanent
maritime boundary is a matter of grave importance and agreement is not easily to be
presumed.”[63]
Conclusion
As demonstrated by this recent jurisprudence, a variety of theoretical and practical problems
arise from the dissonant rules governing maritime jurisdiction beyond 200 M. As the case law
develops further, new answers will likely materialize to resolve these tensions.
About the Author: David P. Riesenberg is a law clerk to the Hon. Judge W. Eugene Davis of
the United States Court of Appeals for the Fifth Circuit. He has previously worked for White &
Case LLP and also assisted Myanmar’s legal team in Bangladesh/Myanmar. He is a member
of ASIL’s International Environmental Law Interest Group and ASIL’s Law of the Sea Interest
Group. Both ASIL interest groups sponsored this Insight. The author thanks Professor
Coalter Lathrop and Professor Bjarni Már Magnússon for their invaluable comments and
guidance. All errors are the author’s own.
[1] For additional analysis on recent maritime delimitation jurisprudence, see Naomi Burke,
Annex VII Arbitral Tribunal Delimits Maritime Boundary Between Bangladesh and India in the
Bay of Bengal, ASIL Insights (Sept. 22, 2014),
http://asil.org/insights/volume/18/issue/20/annex-vii-arbitral-tribunal…-
between (http://asil.org/insights/volume/18/issue/20/annex-vii-arbitral-tribunal…-
maritime-boundary-between).
[2] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397
[hereinafter UNCLOS].
[3] See Bay of Bengal Maritime Boundary Arbitration (Bangl. v. India), Award (July 7, 2014),
available at http://www.pca-cpa.org/showpage.asp?pag_id=1376; (http://www.pcacpa.
org/showpage.asp?pag_id=1376;) Maritime Dispute (Peru v. Chile), Judgment (Jan. 27,
2014), available at http://www.icj-cij.org/docket/files/137/17930.pdf; (http://www.icjcij.
org/docket/files/137/17930.pdf;) Territorial and Maritime Dispute (Nicar. v. Colom.), 2012
I.C.J. 624 (Nov. 19); Delimitation of the Maritime Boundary in the Bay of Bengal (Bangl./Myan.),
Case No. 16, Judgment of Mar. 14, 2012, 12 ITLOS Rep. 4.
[4] See Bangl. v. India, supra note 3, ¶ 339 (“The ensuing—and still developing—international
case law constitutes . . . an acquis judiciaire, a source of international law under article 38(1)(d)
of the Statute of the International Court of Justice, and should be read into articles 74 and 83
of [UNCLOS].”).
Annex 187
/
[5] See Yoshifumi Tanaka, The International Law of the Sea 5–8 (2012). Although Article 33 of
UNCLOS also provides for another type of zone under national jurisdiction, the contiguous
zone, this maritime space in a sense “becomes part of the EEZ where it is established” for the
purposes of exploiting and protecting natural resources. See id. at 6, 123. In any event,
neither states nor international courts and tribunals have generally spoken of “delimiting” their
contiguous zones. Another type of entitlement, the Fishery Zone, has been replaced to a
considerable extent by the EEZ since the adoption of UNCLOS. See Robin Rolf Churchill &
Alan Vaughan Lowe, The Law of the Sea 145 (2d ed. 1988). On at least one occasion, the ICJ
has delimited a Fishery Zone using the same principles that are applicable in EEZ
delimitation. See Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den.
v. Nor.), 1993 I.C.J. 38, 59 ¶ 47 (June 14).
[6] Tanaka, supra note 5, at 124–31; Churchill & Lowe, supra note 5, at 133–52.
[7] UNCLOS, supra note 2, art. 56.
[8] See id., arts. 56, 61.
[9] See id., art. 58.
[10] Tanaka, supra note 5, at 132–46; Churchill & Lowe, supra note 5, at 120–32.
[11] See North Sea Continental Shelf (F.R.G./Neth.; F.R.G./Den.), 1969 I.C.J. 3, 23 ¶ 19 (Feb.
20). States have frequently announced these rights explicitly in proclamations or
declarations. See Proclamation No. 2667, 10 Fed. Reg. 12303 (Sept. 28, 1945); Peru v. Chile,
supra note 3, ¶¶ 26, 113.
[12] UNCLOS, supra note 2, art. 76(8).
[13] See id., art. 78.
[14] See, e.g., id., art. 15 (defining an equidistance-based boundary for the purposes of
delimiting the territorial sea).
[15] See, e.g., Bangl. v. India, supra note 3, ¶ 408; Nicar. v. Colom., supra note 3, ¶¶ 211, 215.
[16] See generally Bjarni Már Magnússon, Is There a Temporal Relationship Between the
Delineation and the Delimitation of the Continental Shelf Beyond 200 Nautical Miles?, 28 Int’l
J. Marine & Coastal L. 465 (2013); Bjørn Kunoy, Admissibility of a Plea to an International
Adjudicative Forum to Delimit the Outer Continental Shelf Prior to the Adoption of Final
Recommendations by the Commission on the Limits of the Continental Shelf, 25 Int’l J. Marine
& Coastal L. 237 (2010); see also Bjørn Kunoy, The Delimitation of an Indicative Area of
Overlapping Entitlement to the Outer Continental Shelf, 83 Brit. Y.B. Int’l L. 61, 77–78 (2013)
(“In the absence of relevant recommendations of the Commission, it is not possible to
determine the seaward extent of entitlement, unless a forum assumes those functions of the
Commission, which is rather unlikely given . . . the complementary role of the Commission and
relevant forums competent in outer continental shelf disputes.”).
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[17] Bjarni Már Magnússon, Outer Continental Shelf Boundary Agreements, 62 Int’l & Comp.
L.Q. 345 (2013).
[18] Bangl. v. India, supra note 3, ¶¶ 76–83; Bangl./Myan., supra note 3, ¶¶ 406–13.
[19] See Bangl. v. India, supra note 3, ¶ 78; Bangl./Myan., supra note 3, ¶¶ 440–41.
[20] Bangl. v. India, supra note 3, ¶¶ 81, 457; Bangl./Myan., supra note 3, ¶ 445.
[21] See Pieter Bekker, The World Court Awards Sovereignty Over Several Islands in the
Caribbean Sea to Colombia and Fixes a Single Maritime Boundary between Colombia and
Nicaragua, ASIL Insights (Jan. 15, 2013),
http://www.asil.org/insights/volume/17/issue/3/world-court-awards-sover…-
caribbean-sea (http://www.asil.org/insights/volume/17/issue/3/world-court-awardssovere…-
over-several-islands-caribbean-sea).
[22] Nicar. v. Colom., supra note 3, Verbatim Record, 12 ¶ 8 (April 24, 2012, 10 a.m.),
http://www.icj-cij.org (http://www.icj-cij.org) (Scientific and Technical Adviser for Nicaragua)
(“This extensive shallow area is known as the Nicaraguan Rise. In Nicaragua’s case this
physical continental shelf extends in a triangular shape about 180 miles towards Jamaica.”).
[23] But see Nicar. v. Colom., supra note 3, ¶ 128 (recounting Nicaragua’s argument that “the
Court could make that delimitation by defining the boundary in words such as ‘the boundary is
the median line between the outer edge of Nicaragua’s continental shelf fixed in accordance
with UNCLOS Article 76 and the outer limit of Colombia’s 200-mile zone’”). While delimitation
by such an open-ended formula would have been possible, it would have been difficult for an
international court or tribunal to evaluate whether the relevant area delimited by the formula
was allocated equitably.
[24] Id. ¶ 129.
[25] See id. ¶¶ 125–26.
[26] Id. ¶ 127.
[27] Id. ¶ 126.
[28] Id. ¶ 129.
[29] Id. ¶¶ 17–20 (declaration of Judge ad hoc Cot); id. ¶¶ 3–30 (separate opinion of Judge
Donoghue); id. ¶¶ 2–12 (declaration of Judge ad hoc Mensah).
[30] Id. ¶¶ 19–20 (declaration of Judge ad hoc Cot) (“I remain sceptical of the Court’s finding
that Nicaragua is bound, vis-à-vis Colombia, to respect its obligations under Article 76,
paragraph 8, of the Convention, in order to delineate the outer limit of its continental shelf
beyond 200 nautical miles . . . .”); id. ¶¶ 15, 25–28 (separate opinion of Judge Donoghue)
(“The Court has not been presented with sufficient evidence in these proceedings to conclude
that there is an area of continental shelf beyond 200 nautical miles of Nicaragua’s coasts . . . .
[But i]t goes without saying that [States that are non-parties to UNCLOS] have no duty to
make submissions to the Commission, so the Court’s observations regarding Nicaragua’s
Annex 187
/
obligations to States parties to UNCLOS cannot be extended to them.”); id. ¶ 9 (declaration of
Judge ad hoc Mensah) (“[T]he procedural requirements for obtaining a positive
recommendation from the Commission under Article 76, paragraph 8, of UNCLOS . . . are only
applicable where the States concerned are all parties to UNCLOS.”).
[31] See Question of the Delimitation of the Continental Shelf between Nicaragua and
Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicar. v. Colom.), Application
Instituting Proceedings (Sept. 16, 2013), http://www.icj-cij.org/docket/files/154/17532.pdf
(http://www.icj-cij.org/docket/files/154/17532.pdf).
[32] See id. ¶¶ 5–10. Although Colombia withdrew from the ICJ’s jurisdiction under the Pact
of Bogotá on November 27, 2012, Nicaragua argues that Colombia’s denunciation of the Pact
of Bogotá had not yet taken effect at the time when Nicaragua’s second application was filed
due to a one-year notice provision under Article LVI of the Pact. See id. ¶ 9.
[33] David Colson, The Delimitation of the Outer Continental Shelf Between Neighboring
States, 97 Am. J. Int’l L. 91, 104–05 (2003); Alex G. Oude Elferink, Does Undisputed Title to a
Maritime Zone Always Exclude Its Delimitation: The Grey Area Issue, 13 Int’l J. Marine &
Coastal L. 143, 143–44 (1998).
[34] Bangl./Myan., supra note 3, ¶ 340.
[35] Bangl. v. India, supra note 3, ¶ 509.
[36] Bangl. v. India, supra note 3, ¶¶ 498–508; Bangl./Myan., supra note 3, ¶¶ 471–76.
[37] See Bangl. v. India, supra note 3, ¶¶ 498, 503; Bangl./Myan., supra note 3, ¶ 463.
[38] See UNCLOS, supra note 2, arts. 87, 89.
[39] Bangl. v. India, supra note 3, ¶ 505; Bangl./Myan., supra note 3, ¶ 474.
[40] Bangl. v. India, supra note 3, ¶ 503; Bangl./Myan., supra note 3, ¶ 471.
[41] Bangl. v. India, supra note 3, ¶ 507.
[42] Bangl./Myan., supra note 3, ¶ 475.
[43] Bangl. v. India, supra note 3, ¶ 508; Bangl./Myan., supra note 3, ¶ 476.
[44] Bangl. v. India, supra note 3, ¶ 31 (dissenting opinion of Dr. Rao) (“[S]overeign rights of a
coastal State over the water column and the seabed and its subsoil are considered as two
indispensable and inseparable parts of the coastal State’s rights in the EEZ . . . .”); see also
Bangl./Myan., supra note 3, at 287 (dissenting opinion of Judge Lucky) (“It seems to me that
continental shelf rights in the special circumstances of this case have priority over EEZ
rights.”).
[45] Bangl. v. India, supra note 3, ¶¶ 35–37 (dissenting opinion of Dr. Rao) (“[A]s a matter of
policy, international courts and tribunals should avoid delimiting boundaries in a way that
leaves room for potential conflicts between the parties. . . . The grey area also has the
potential to exacerbate bilateral relations and pose avoidable security problems.”);
Annex 187
/
Bangl./Myan., supra note 3, at 285–86 (dissenting opinion of Judge Lucky) (“[A]ll of the
foregoing may lead to further problems and issues and may be regarded as a failure on the
part of the Tribunal to determine the issue.”).
[46] Nicar. v. Colom., supra note 3, ¶ 230; see also Continental Shelf (Tunis./Libya), 1982 I.C.J.
18, 232 ¶ 126 (Feb. 24) (dissenting opinion of Judge Oda) (“Is it congruous or conceivable that
the same marine/submarine column should be placed under different national jurisdictions . . .
and that the same area of the ocean be consequently policed by two different States? One is
entitled to enquire whether [such a situation] is tolerable as a matter of international ordre
public.”).
[47] Bangl. v. India, supra note 3, ¶ 506.
[48] See Nicar. v. Colom., supra note 3, Verbatim Record, 25–26 ¶¶ 49–51 (May 1, 2012, 3
p.m.), http://www.icj-cij.org (http://www.icj-cij.org) (Counsel for Nicaragua) (“In other words,
where State A’s natural prolongation continental shelf lies under State B’s EEZ, State A has the
continental shelf ‘seabed’ rights, and State B has the EEZ rights in the water column . . . . And
that, in our respectful submission, is . . . the correct approach in the present case.”).
[49] Bangl. v. India, supra note 3, ¶ 503; Bangl./Myan., supra note 3, ¶ 471.
[50] Treaty Concerning Maritime Delimitation and Cooperation in the Barents Sea and the
Arctic Ocean, Nor.-Russ., art. 3, Sept. 15, 2010, 2791 U.N.T.S. ___, I-49095. See also Thilo
Neumann, Norway and Russia Agree on Maritime Boundary in the Barents Sea and the Arctic
Ocean, ASIL Insights (Nov. 10, 2010), http://www.asil.org/insights/volume/14/issue/34/norwayand-
russia-agree-maritime-boundary-barents-sea-and-arctic-ocean
(http://www.asil.org/insights/volume/14/issue/34/norway-and-russia-agree…-
barents-sea-and-arctic-ocean).
[51] Agreement on the Maritime Boundary, U.S.-U.S.S.R., art. 3, June 1, 1990, 29 I.L.M. 941.
[52] See Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K., U.S.), 1954 I.C.J. 19,
32 (June 15) (referring to the “well-established principle of international law embodied in the
Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its
consent”).
[53] See Bangl./Myan., supra note 3, ¶ 476.
[54] Peru v. Chile, supra note 3, ¶¶ 14, 22–23; Declaration on the Maritime Zone (Santiago
Declaration), Aug. 18, 1952, 1006 U.N.T.S. 326. See also Uzma S. Burney, International Court
of Justice Defines Maritime Boundary Between Peru and Chile, ASIL Insights (Feb. 10, 2014),
http://www.asil.org/insights/volume/18/issue/3/international-court-just…-
between-peru-and-chile
(http://www.asil.org/insights/volume/18/issue/3/international-court-just…-
between-peru-and-chile).
Annex 187
/
[55] See Peru v. Chile, supra note 3, Verbatim Record, 58 ¶ 35 (Dec. 4, 2012, 3 p.m.),
http://www.icj-cij.org (http://www.icj-cij.org) (Counsel for Peru) (referring to the disputed area
as “une superficie équivalente à celle de l’Albanie”).
[56] See id., Verbatim Record, 37–38 ¶¶ 6.1–6.2 (Dec. 7, 2012, 3 p.m.), http://www.icj-cij.org
(http://www.icj-cij.org) (Counsel for Chile) (“Let me turn to Peru’s claim to the area Chile refers
to as the ‘alta mar’ or what Peru refers to as the ‘outer triangle’ . . . . [T]he alta mar is an area
of high seas. . . . Chile makes no jurisdictional claim to the alta mar under the Law of the Sea
Convention.”).
[57] Peru v. Chile, supra note 3, ¶¶ 70, 91.
[58] Id. ¶¶ 104–51.
[59] Id. ¶ 189.
[60] See Peru v. Chile, supra note 3, ¶ 4 (declaration of President Tomka); id. ¶¶ 2, 9
(dissenting opinion of Judges Xue, Gaja, and Bhandari, and Judge ad hoc Orrego Vicuna).
[61] See id. ¶ 26 (declaration of President Tomka); id. ¶ 35 (dissenting opinion of Judges Xue,
Gaja, and Bhandari, and Judge ad hoc Orrego Vicuna).
[62] See id. ¶ 26 (declaration of President Tomka).
[63] Territorial and Maritime Dispute (Nicar. v. Hond.), 2007 I.C.J. 659, 735 ¶ 253 (Oct. 8).
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Annex 187
Annex 188
T. M. Franck and D. M. Sughrue, “The International Role of Equity-as-Fairness”,
Georgetown Law Journal, 1993
The International Role of Equity-as-Fairness
THOMAS M. FRANCK*
AND DENNIS M. SUGHRUE**
In law we must beware of petrifying the rules of yesterday and thereby
halting progress in the name of process. If one consolidates the past and
calls it law he may find himself outlawing the future.
Judge Manfred Lachs 1
In the post-Cold War international system, international law's role is
both enlarged and more secure. One implication of this change is lawyers'
renewed interest in the quality of international law. Whereas it had been
common practice for international lawyers to devote much effort to defending
the "lawlikeness" of their subject, that battle has long been won. The
newly widespread recourse to legal principles in the conduct of global
systemic relations has both made it possible, and imperative for lawyers to
turn professional attention to the law's fairness. One way-at present the
most highly developed way-to embark on such an inquiry is by studying
the emerging role of equity in international law.
Equity is sometimes derided as a "content-less" norm amounting to
little more than a license for the exercise of judicial caprice. This criticism,
while addressing a potential problem, ignores the very real "content" given
to equity by scholars and international courts, arbitral proceedings, and
organizations. Just as the notion of justice in jurisprudential thinking
commonly embodies a set of principles designed to critique the law and to
promote fairness among individuals, so too has equity come to represent a
set of principles designed to critique the law and ensure fairness among
nations, particularly in situations of moderate scarcity.
This study surveys the development of equity in the international system
since the turn of the century. First, it will discuss equity as a general
principle of law-as-fairness, encompassing the elementary concepts of
unjust enrichment, estoppel, and acquiescence. Second, it will discuss the
difference between equitable decisions and decisions ex aequo et bono, that
*Professor of Law and Director, Center for International Studies, New York University
School of Law. This essay is an early version of what will eventually become one lecture in
the 1993 General Course on Public International Law of the Hague Academy of International
Law.
**Former Fellow, Center for International Studies, New York University School of Law;
Associate, Chadbourne & Parke, New York City.
1. Judge Manfred Lachs, President of the International Court of Justice, Commemorative
Speech at the United Nations General Assembly (Oct. 12, 1973).
Annex 188
THE GEORGETOWN LAW JOURNAL
is, rendered outside the framework of the law. Finally, it will discuss
equity as a tool for the allocation of scarce resources among states.
I. EOUITY AS A GENERAL PRINCIPLE OF LAW-AS-FAIRNESS:
HISTORICAL ORIGINS
Most municipal legal systems accommodated themselves to principles of
fairness only gradually, in a process involving three stages. First, the
sovereign granted dispensations to subjects exposed to inordinate hardship
in a specific situation. Second, precedents accumulated, evolving into a
system of equitable norms parallel to the main body of the law and
displacing the system of royal dispensation. In the last stage, equitable
principles became a part of the law.2
When the victorious powers established the Permanent Court of International
Justice (P.C.I.J.) in the aftermath of World War I, the world's major
municipal systems had largely completed this evolution.3 This evolution,
moreover, had left most municipal legal systems with a shared set of
principles of law-as-fairness, most prominently, unjust enrichment, estoppel,
and acquiescence. Given the universality of these principles, the
establishing powers thought it appropriate to graft them onto international
law. Accordingly, article 38(1)(c) of the P.C.I.J. statute,4 which later came
to govern the sources of law to be applied by the International Court of
Justice (I.C.J.),5 allowed the Court to refer to "general principles of law as
recognized by civilized nations" as a subsidiary source of international
law.6 Although the P.C.I.J. and the I.C.J. have avoided making explicit
reference to the authority conferred on them by this article, they have had
frequent recourse to general principles of law-as-fairness. These principles
also have a long history as an issue in international arbitration.7
2. Ralph A. Newman, The Principles of Equity as a Source of World Law, 1 ISR. L. REV 616,
619 (1966).
3. See, e.g., Norwegian Claims (Nor. v. U.S.), Hague Ct. Rep. 2d (Scott) 39, 65 (Perm. Ct.
Arb. 1922) (noting that most international lawyers agreed that "law and equity" represented
"general principles of justice as distinguished from any particular system of jurisprudence or
the municipal law of any State").
4. Permanent Court of International Justice, Dec. 16, 1920, 6 L.N.T.S. 390.
5. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 38 (1)(c) (1945).
6. See, e.g., Oscar Schacter, International Law in Theory and in Practice, 178 RECUEIL DES
COURS D'ACADEMIE DE DROIT INTERNATIONAL [R.D.C.A.D.I.] 9, 74-82 (1982) (describing
general principles of law and equity).
7. See, e.g., Indo-Pakistan Western Boundary (Rann of Kutch) (India v. Pak.) 50 I.L.R. 2,
3, 18, 27-30, 38-39, 41 (1976) (discussing the primary contentions of the parties regarding the
role of equity). In the decision itself, however, the judgment relegates the equity issue to a
very minor role, giving "due regard to what is fair and reasonable as to details." Id. at 519.
In making one adjustment, the tribunal ruled that strategic reasons require it to deviate from
strict application to the boundary of the prevailing legal principle because:
[I]t would be inequitable to recognize these inlets as foreign territory. It would be
[Vol. 81:563
Annex 188
EQUITY-AS-FAIRNESS
A. UNJUST ENRICHMENT
"Unjust enrichment" stands for the proposition that a party should not
enrich itself, without legal cause, at the expense of another.8 Courts and
arbitral tribunals have invoked the principle chiefly in the context of
calculating damages resulting from expropriation of the property of foreign
nationals. The Factory at Chorzow9 case is one example. After
determining in 1926 that Poland's expropriation of a German-owned nitrate
concern violated the terms of a convention on Upper Silesia,' ° the
P.C.I.J. in 1928 turned to unjust enrichment for guidance in calculating
damages. Under general international law, damages in cases of expropriation
would have been based on the book value of the property at the time
of its dispossession plus interest.1" The Court held that, although this
standard might be appropriate for a legal expropriation, it did not adequately
remedy an illegal one. Because the value of the property as a
going-concern could well have exceeded its book value, the general standard
would have left Poland with a gain to which it was not entitled. The
true measure of damages, the Court continued, should thus reflect not
merely the value of the property at the time of dispossession, but the loss
sustained because of the expropriation. 12
The arbitral tribunal that decided the 1932 Norwegian Claims3 case also
departed from strict law, applying a standard like unjust enrichment to its
calculation of damages. The case arose from the United States's decision,
after entering World War I, to expropriate ships being built in U.S.
shipyards for foreign parties. 4 After Norway and the United States failed
to agree on the sum due Norwegian nationals whose contracts had been
expropriated, they referred the matter to the Permanent Court of International
Arbitration. 5 After determining the fair market values of the
conducive to friction and conflict. The paramount consideration of promoting
peace and stability in this region compels the recognition and confirmation that this
territory, which is wholly surrounded by Pakistan territory, also be regarded as
such.
Id. at 520. This recourse to equity in drawing the boundary, however, was exceptional in the
context of the overall award.
8. Wolfgang Friedmann, The Uses of "General Principles" in the Development of International
Law, in INTERNATIONAL LAW IN THE TWENTIETH CENTURY 246, 263 (L. Gross ed.,
1969).
9. Factory at Chorzow (Ger. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17 (Sept. 13).
10. Certain German Interests in Polish Upper Silesia (Ger. v. Pol.), 1926 P.C.I.J. (ser. A)
No. 7, at 24 (May 25).
11. Factory at Chorzow, 1928 P.C.I.J. at 47.
12. Id.
13. Norwegian Claims (Nor. v. U.S.), Hague Ct. Rep. 2d (Scott) 39, 65 (Perm. Ct. Arb.
1922).
14. Id. at 46-50.
15. Id. at 41.
1993]
Annex 188
THE GEORGETOWN LAW JOURNAL
contracts, the Court turned to a claim brought on behalf of an American
firm that had acted as broker between a Norwegian purchaser and an
American shipyard. 16 Once the ship had been requisitioned, the United
States failed to pay the remainder of the commission, in violation of the
terms of the contract. The firm sought to blame the Norwegians for this
lapse, arguing that the purchaser's assignee was contractually bound to pay
the remainder.17
The Court rejected the firm's claim for fulfillment of a contractual
obligation, holding that the expropriation had terminated any contractual
relationship between the firm and the Norwegian purchaser. It reasoned,
however, that had the United States paid the amount due the broker, that
amount would have been deducted from the fair market value of the
contract. 18 "In these circumstances," the Court wrote, "it appears to be
equitable ... to give the United States the right to retain [the amount due
the firm] out of the amount awarded," on the condition that the United
States pay that sum to the broker.19 The reasoning was not based on
actual costs incurred by the United States, but on the unjust enrichment of
Norway that would have resulted had the loss to the U.S. broker not been
offset.
B. ESTOPPEL
Equitable estoppel imposes a duty on states to refrain from engaging in
inconsistent conduct vis-a-vis other states.2a This norm figured prominently
in the Diversion of Water from the Meuse case. 1 The Netherlands
complained that Belgium's construction of a lock to take water from a river
violated a conventional regime governing access to that river's waters.22 A
few years earlier, however, the Netherlands had constructed a lock remarkably
similar to the one of which it complained. 3 After concluding that the
Belgian lock did not violate any of the terms of the convention,24 the Court
suggested that, even had it found the lock in violation, a principle closely
akin to estoppel would have impelled it to reject the Dutch claim. 5
16. Id. at 78.
17. Id.
18. Id. at 78-79.
19. Id. at 79.
20. Oscar Schacter, Non-Conventional Concerted Acts, in INTERNATIONAL LAW: ACHIEVEMENTS
AND PROSPECTS 265, 267-68 (Mohammed Bedjaoui ed., 1991).
21. Diversion of Water from the Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No. 70
(June 28).
22. Id. at 18.
23. Id. at 15.
24. Id. at 25.
25. Id. at 25; see Friedmann, supra note 8, at 255 (noting that the Court applied the
equitable principle: "[H]e who seeks equity must do equity. This is closely akin to the
[Vol. 81:563
Annex 188
EQUITY-AS-FAIRNESS
"[T]he Court finds it difficult to admit," it wrote, "that the Netherlands are
now warranted in complaining of the construction and operation of a lock
of which they themselves set an example in the past."2 6
Historically, a party invoking equitable estoppel had to demonstrate
detrimental reliance on the other party's conduct.27 As the P.C.I.J. noted
in the Diversion of Water from the Meuse, the Dutch, having "set an
example" through the construction of their lock, ought not to have been
surprised when the Belgians followed suit.2" The earlier Tinoco Claims2 9
arbitration had similarly illustrated the importance of this element of
reliance. In 1917, Tinoco, the Costa Rican Minister of War, overthrew the
government. Two years later, his government fell, after which the new
Costa Rican Congress nullified all contracts made and all currency issued
by the Tinoco regime.3" Britain brought a claim on behalf of two nationals
injured by this move.31 Costa Rica responded that Britain's failure to
recognize the Tinoco government during its incumbency should estop it
from championing such a claim by its nationals.32 United States Supreme
Court Chief Justice Taft, the sole arbitrator, rejected Costa Rica's defense
on the ground that it had not relied to its detriment on Britain's failure to
recognize Tinoco's regime.33 "An equitable estoppel to prove the truth
must rest on previous conduct of the person to be estopped, which has led
the person claiming the estoppel into a position in which the truth will
injure him," he wrote. "There is no such case here. 34
International tribunals no longer appear to require such narrow detrimental
reliance on the part of those seeking to invoke equitable estoppel.
Even in the absence of detrimental reliance, a nation may be estopped,
under an implied principle of "good faith," from contesting the legally
binding effect of its promises. In the 1974 Nuclear Tests cases,3 5 Australia
and New Zealand asked the I.C.J. to order France to cease atmospheric
common law principle of estoppel.").
26. Diversion of Water from the Meuse, 1937 P.C.I.J. at 25.
27. See, e.g., Thomas M. Franck, Word Made Law: The Decision of the ICJ in the Nuclear
Test Cases, 69 AM. J. INT'L L. 612, 617-20 (1975) (discussing the difficulty of defining reliance
in international law disputes, as evidenced in the Nuclear Test cases).
28. Id.
29. Tinoco Claims (Gr. Brit. v. Costa Rica) (William H. Taft, Sole Arbitrator, 1923),
reprinted in 18 AM. J. INT'L L. 147 (1924).
30. Id. at 148.
31. Id. at 148-49.
32. Id. at 149.
33. Id. at 156-57.
34. Id. at 157.
35. Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253 (Dec. 20); Nuclear Tests (N.Z. v. Fr.),
1974 I.C.J. 457 (Dec. 20). The judgments in the two cases are essentially identical. Page
references, hereinafter, are made to the Australia case.
1993] 567
Annex 188
THE GEORGETOWN LAW JOURNAL
testing in the South Pacific.3 6 Before the Court issued its judgment,
French officials announced that the 1974 set of tests would be the last.37
These declarations, the Court held, were legally cognizable as a promissory
commitment, rendering the case moot.38 The principle of good faith, the
Court explained, can confer a binding character on unilateral declarations.39
Detrimental reliance, at least in the traditional sense, was not part of this
decision because Australia had dismissed the French declaration as
"inconclusive" and persevered with the litigation.n To overcome this lack
of reliance, the Court wrote that it would "form its own view of the
meaning and scope" of the declaration.4 ' In effect, this suggested that
what mattered was not the promisee's reliance, but the Court's.4 2 Thus
the Court, relying on France's promise, declared the case moot.
C. ACQUIESCENCE
Acquiescence, or prescription, is another form of equitable estoppel
recognized as a general principle of law-as-fairness. Silence or absence of
protest may preclude a state from later challenging another state's claim. 43
To succeed in a defense of acquiescence, a state must prove that the
second state had knowledge of its claim. 4 As the 1951 Fisheriesn5 case
demonstrates, this knowledge usually can be inferred from the circumstances.
Fisheries arose out of a dispute over the boundary of Norway's
continental shelf. To erase the irregularities that would have been caused
by its fjord-indented coast, Norway had for decades used straight baselines
to delimit its fisheries zone, rejecting the general practice of using a
line based on a coastal low-water mark.46 Holding in Norway's favor partly
on grounds of acquiescence, the I.C.J. rejected Britain's argument that it
had not known of this system of delimitation. Because Britain was a
maritime power with a strong interest in Norwegian waters, the Court
36. Nuclear Tests (Austi. v. Fr.), 1974 I.C.J. at 256.
37. See Work of the Court in 1974-1975, 1974-75 I.C.J.Y.B. 108, 110 (1975) (discussing the
French government's decision to end testing).
38. Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. at 269-70.
39. Id. at 268.
40. Franck, supra note 27, at 617-18.
41. Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. at 269.
42. See Franck, supra note 27, at 618.
43. I.C. MacGibbon, The Scope of Acquiescence in International Law, 31 BRIT. Y.B. INT'L
L. 143, 147-48 (1954).
44. Id. at 173 ("The proposition that the possession on which title by prescription rests
must fulfil [sic] the requirement of notoriety is scarcely in doubt.").
45. Fisheries (U.K. v. Nor.), 1951 I.C.J. 116 (Dec. 18).
46. See Fisheries Case, 1951-52 I.C.J.Y.B. 78-79 (discussing the underlying dispute between
the United Kingdom and Norway).
[Vol. 81:563
Annex 188
EQUITY-AS-FAIRNESS
reasoned, it must have known of Norway's practice and thus could not
excuse its failure to protest.47
The principle of acquiescence, as the 1962 Temple of Preah Vihear48 case
illustrates, is predicated on the notion that finality has an equitable dimension.
49 That case had its origins in a border dispute between Cambodia
and Thailand.50 Shortly after the turn of the century, two Franco-Siamese
commissions delimited the frontier between French Indochina and Siam
(Thailand). 51 As the Siamese lacked the necessary technical expertise, the
French were assigned the task of preparing maps of the frontier.52 Those
maps pertaining to the area in which the temple was located placed it on
the French side of the border.53 During the fifty-year period following its
reception of the map, the Siamese government registered no objection.54
The I.C.J. held that Siam's failure to object to the content of the maps
amounted to acquiescence.55 In so doing, it discounted evidence that this
acquiescence may have been coerced.56 Rather, the Court emphasized the
importance of stable borders: "[W]hen two countries establish a frontier
between them, one of the primary objects is to achieve stability and
finality. This is impossible if the line so established can, at any moment
...b e called in question ... .
II. THE DISTINCTION BETWEEN EQUITY AND Ex AEQUO ET BoNo
To understand what equity is, it is important to understand also what it
is not. Under article 38(2) of its statute, the I.C.J. is empowered, with the
consent of the parties appearing before it, to decide cases ex aequo et
bono, 58 that is, outside the framework of the law. While there is no "bright
line" between ex aequo et bono and equity,59 these two modes of decision
are quite distinct. "[Aidjudication ex aequo et bono amounts to an avowed
47. Fisheries, 1951 I.C.J. at 138-39.
48. Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J. 6 (June 15).
49. For a discussion of the equitable dimensions of finality, see Paul Reuter, Quelques
Reflexions sur l'Equite en Droit International, 15 REVUE BELGE DE DROIT INTERNATIONAL
[R.B.D.I.] 165, 179-84 (1981).
50. Temple ofPreah Vihear, 1962 I.C.J. at 14.
51. Id. at 17, 19.
52. Id. at 20.
53. Id. at 20-21.
54. Case Concerning the Temple of Preah Vihear, 1961-62 I.C.J.Y.B. 75, 76-77.
55. Temple ofPreah Vihear, 1962 I.C.J. at 32-33.
56. See id. at 28-29 (Spender, J., dissenting) (concluding that Siam's silence "might
otherwise have been expected of her").
57. Id. at 34.
58. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 38(2) (1945).
59. Mark Janis, Equity in International Law, Remarks Before The American Society of
International Law (1988), in 82 AMERICAN SOCIETY OF INTERNATIONAL LAW, PROCEEDINGS
OF THE ANNUAL MEETING 277, 284 (1988).
1993]
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creation of new legal relations between the parties," Sir Hersch Lauterpacht
has written, "It differs clearly from the application of rules of
equity ... [which] form part of international law as, indeed, of any system
of law.' 61
Although the I.C.J. has endorsed another U.N. tribunal's ex aequo et
bono calculation of damages after the establishment of liability,61 neither it
nor the P.C.I.J. has ever decided a case ex aequo.62 This failure to use
article 38(2) is attributable not only to the unwillingness of parties to
confer unbridled discretion on the Court, but also to the trepidation with
which the judges themselves approach the exercise of this discretion. The
Free Zones63 case, which the P.C.I.J. refused to decide ex aequo et bono in
spite of an arbitration agreement that arguably called on it to do so,
provides an excellent illustration of this judicial wariness. Free Zones
turned on a provision of the Treaty of Versailles 64 that had designated the
regime of the free zones-under which the Swiss were able to trade in the
French territory surrounding Geneva without payment of customs duties-
"no longer consistent with present conditions."65 France argued that this
clause abrogated the regime; Switzerland argued that it did not.66 The two
countries formed a special agreement whereby the P.C.I.J. would first
determine the meaning of the clause and then, failing a private resolution
of the dispute, "settle... all the questions" involved in its execution.67
The Court concluded in 1929 that the clause did not abolish the regime
and accorded the parties a period of time in which to solve their differences
privately.68 After this period elapsed, a sharply divided Court in
1930 rejected France's contention that the special agreement, by empowering
the Court to "settle ... all the questions," had also empowered it to
ignore the clause and settle the affair ex aequo. A grant of such jurisdiction,
the Court held, must be unambiguous: "[S]uch power, which would
be of an absolutely exceptional character, could only be derived from a
60. HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL
COURT 213 (1958).
61. Judgments of the Administrative Tribunal of the Labor Organization, 1956 I.C.J. 77,
100 (Oct. 23) ("[A]s the precise determination of the actual amount to be awarded could not
be based on any specific rule of law, the Tribunal [through resort to calculations ex aequo et
bono] fixed what the Court ... has described as the true measure of compensation.").
62. Wolfgang Friedmann, The North Sea Continental Shelf Cases-A Critique, 64 AM. J.
INT'L L. 229, 235 (1970).
63. Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1930 P.C.I.J..(ser.
A) No. 24, at 5 (Dec. 6).
64. Treaty of Versailles, June 28, 1919, 225 Consol. T.S. 188.
65. Id. at 388.
66. Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1929 P.C.I.J. (ser.
A) No. 22, at 5-6 (Aug. 19).
67. Id. at 7.
68. Id. at 20-21.
570 [Vol. 81:563
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EQUITY-AS-FAIRNESS
clear and explicit provision to that effect, which is not to be found in the
5569 Special Agreement ....
Judge Kellogg, in his concurrence, adopted the extreme position that
the Court could never decide a case solely on pragmatically determined
merits, article 38(2) notwithstanding. "[I]t is scarcely possible that it was
intended that, even with the consent of the Parties, the Court should.. . decide
questions upon grounds of political and economic expediency," he
wrote.70 "The authority given to the Court to decide a case ex aequo et
bono merely empowers it to apply the principles of equity and justice ....
Should the Court come to base its decisions on extra-legal considerations,
Judge Kellogg warned, it would be indistinguishable from an arbitral
tribunal, with disastrous consequences for its jurisdiction. "It very frequently
happens," he wrote, "that a nation which would be very willing to
submit its differences to an impartial judicial determination is unwilling to
subject them" to the diplomatic give and take of arbitration.72
Judge Kellogg's view might have, but did not, give rise to the Court's
resorting to equity only with the specific consent of the parties. It did,
however, signal a cautious judicial approach not only to ex aequo et bono,
but more important, to equitable principles. His warning-that the resort
to extra-legal considerations would lead to an erosion of the Court's
authority-has resonated throughout the jurisprudence of the I.C.J. When
it has relied on equity, the Court has taken pains to emphasize that equity
is rule-based and complements, rather than conflicts with, the law.73 In
one case in which it did resort to equity, the Court explained that, "the
decision finds its objective justification in considerations lying not outside
but within the rules.... There is consequently no question in this case of
any decision ex aequo et bono .... "7 As the next section illustrates, such
cautious pronouncements have not always sufficed to erase doubts about
the Court's reliance on equity.
69. Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1930 P.C.I.J. (ser.
A) No. 24, at 10 (Dec. 6).
70. Id. at 34 (Kellogg, J., concurring).
71. Id. at 40.
72. Id. at 36 (quoting Elihu Root's instructions to the U.S. delegation to the 1907 Hague
Conference).
73. See Shabtai Rosenne, The Position of the International Court of Justice on the Foundation
of the Principle of Equity in International Law, in FORTY YEARS INTERNATIONAL COURT
OF JUSTICE 85, 88-89 (A. Bloed & P. van Dijk eds., 1988) ("[Tlhe International Court has
been very careful ... to formulate its resort to 'equity' not in terms of 'opposition' to 'law,'
but in terms of fulfilling the law and if necessary supplementing it."); see also R.Y. Jennings,
Equity and Equitable Principles, 42 ANNUAIRE SUISSE DE DROIT INTERNATIONAL 27, 35 (1986)
(asserting that the Court's application of equity is "very different from the decision ex aequo
et bono").
74. North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3, 48 (Feb.
19931
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III. EQUITY AS A MODE OF SCARCE RESOURCE ALLOCATION
Since World War I, equity-as-fairness has become relevant to one of the
most vexing problems confronting international courts: the allocation of
scarce resources among states. This problem arises primarily from the
failure of the earth's system of territorial boundaries to resolve satisfactorily
the attribution of certain resources, such as the riches of the continental
shelf.75 Equity brings important advantages to this task, affording
judges a measure of discretion, within a flexible structure, commensurate
with the uniqueness of each dispute and the rapid evolution of new
resource recovery and management technology. 76
International lawyers are engaged in a debate as to the proper role of
equity in this context. This debate shows that at least three approaches to
equitable allocation have emerged. In the first model, which may be
labelled "corrective equity," equity occupies the important, but fringe, role
of tempering the gross unfairness that sometimes results from the application
of strict law. In the second model, "broadly conceived equity," equity
displaces strict law but is still rule-based, evolving into a set of principles
for the accomplishment of an equitable allocation. In the third model,
"common heritage equity," equity serves a dual creative function: determining
the conditions for exploitation and ensuring conservation of humankind's
common patrimony.
A. CORRECTIVE EQUITY
Corrective equity is the most conservative model of equitable allocation.
Operating around the margins of strict law, it embraces a notion of
fairness but seeks to contain this impulse within a conservative rule. It
invokes equitable considerations only exceptionally, when the letter of the
rule would kill its spirit. This mode of allocation has found broadest
application in two contexts: preferential trading arrangements for developing
states and continental shelf allocations.
1. Corrective Equity in Trading Arrangements
Equity is not a concept limited to judicial decisionmaking. It may also
be the basis for mitigating the legal parameters established by a treaty
system, if not the basis for an altogether new legal-institutional regime.
Some instances of both the former and latter are found in the laws
established to create a global market for commodities. The basic law of
the trading system is that of supply and demand within a free trade regime.
75. Reuter, supra note 49, at 173.
76. See L.D.M. Nelson, The Role of Equity in the Delimitation of Maritime Boundaries, 84
AM. J. INT'L L. 837, 840-41 (1990) (discussing the notion of "autonomous equity").
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EQUITY-AS-FAIRNESS
While the system recognizes the paramount importance of this law to the
efficient operation of the global marketplace, it has also come to accommodate
principles of equity to remedy the harsher effects of supply and
demand on the weakest parties.
The General Agreement on Tariffs and Trade (GATT)7 7 includes a
mechanism, the Generalized System of Preferences (GSP),78 to introduce
a notion of fairness into the international trading system. The GATT's
most basic provision, the "Most Favored Nation" clause, guards against
trade wars and cartelization by prohibiting members from giving "any
advantage ... to any product originating in or destined for any other
country" that is not also accorded "unconditionally to the like product
originating in or destined for the territories of all contracting parties., 79
After it became clear that such a regime would incidentally produce
further erosion of the developing world's share of world trade, GATT
parties agreed to the GSP. 80
Under the GSP, preferences may be given to specified goods of developing
countries "without according such treatment to other contracting
parties.",8' The GSP, however, includes a set of principles intended to
ensure that such preferential treatment serves GATT's primary purpose:
the promotion of free world trade. Developed states may not use the GSP
to obtain reciprocal preferential treatment in gaining access to the markets
of developing states. Moreover, the GSP is cast in transitional language
based on short-term needs. Upon the "progressive development of their
economies," developing states are expected "to participate more fully in
the framework of rights and obligations under the General Agreement., 82
The Lom6 Convention 83 and the United Nations Common Fund for
Commodities 84 similarly seek to inject equity into the global commodities
market. Commodities are particularly susceptible to dramatic price fluctuations
in an unregulated market. When the price of a particular commodity
rises, production tends to shift rapidly to that product, creating an
77. General Agreement on Tariffs and Trade, Oct. 30, 1947, T.I.A.S. No. 1700, 55
U.N.T.S. 187 [hereinafter GATT].
78. Differential and More Favorable Treatment Reciprocity and Fuller Participation of Developing
Countries, GATT Doc. L/4903 (Nov. 28, 1979) (contracting parties decision) [hereinafter
GSP].
79. GATT, supra note 77, 55 U.N.T.S. at 198.
80. See THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 178-80 (1990).
81. GSP, supra note 78, at 203.
82. Id. at 205.
83. Fourth ACP-EEC Convention and Final Act, Dec. 15, 1989, 29 I.L.M. 783. There are
four versions of the Convention. They will be referred to hereinafter as Lomd I, Lom6 II,
Lom6 III, and Lom6 IV.
84. Agreement Establishing the Common Fund for Commodities, June 27, 1980 U.KT.S.
(Cmnd. 8192).
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574 THE GEORGETOWN LAW JOURNAL [Vol. 81:563
oversupply. Under the weight of this oversupply, prices may collapse, with
disastrous consequences for developing nations inordinately dependent on
the product for foreign exchange earnings. 85 The Lom6 Convention between
the European Economic Community (EEC) and African, Caribbean,
and Pacific (ACP) states seeks to palliate the effects of these
swings through the creation of a compensatory fund for the stabilization of
export earnings. This fund, known as "STABEX," covers forty-eight agricultural
products.86 Eligibility for STABEX funding is determined by
reference to two criteria, both of which must be met. A country is eligible
for a transfer if a product represents at least 5% of its total export earnings
in the year preceding application. 87 The export earnings of the product
must also drop at least 4.5%88 from the average calculated over a six-year
reference period. 89
In Lom6 IV, the latest Lom6 Convention, the EEC pledged $1.7 billion
ECUs ($1.5 billion) to STABEX to be disbursed over five years. 90 If a
state succeeds in procuring STABEX funding, payment is made in the
form of an outright grant.91 These payments range from the significant to
the nearly trifling. In 1991, for instance, the EEC gave Uganda $51.8
million to compensate for a drop in earnings from its coffee crop,92 while
in 1990, Nepal received $840,000 to compensate for a cut in income from
lentil and leather exports.93
The Common Fund for Commodities, 94 implemented in 1991, also operates
on the margins of the commodities marketplace, but represents a
85. See Paul Lewis, Commodity Stockpile Fund, N.Y. TIMES, June 27, 1983, at D9 (reviewing
the viability of a commodity stockpile fund as a mechanism for price stabilization).
86. Commission Rejects Requests for STABEX Seminars in ACP Countries, European Information
Service, July 3, 1991, available in LEXIS, Nexis Library, European Report File.
87. Lom6 IV, supra note 83, 29 I.L.M. 850, art. 196(1).
88. Id. at 73, art. 197(3).
89. Id. at 73, art. 197(2).
90. Stabex Debts to be Canceled, European Information Service, Nov. 9, 1991, available in
LEXIS, Nexis Library, European Report File. The EEC's outlay is regrettably insufficient to
meet ACP entitlements. In 1990, the 484 million European Currency Units (ECUs, $534
million) made available for STABEX transfers amounted to only 39% of the funds necessary
to accommodate eligible transfer applications. ACP Countries Step Up Demands for Extra
Funds from EC, Inter Press Service, Oct. 14, 1991, available in LEXIS, Nexis Library, Inter
Press Service File.
91. Stabex Debts to be Canceled, supra note 90. Prior to Lom6 IV, only transfers made to
the least developed ACP states were considered grants, with the remainder considered
potentially repayable in the event of a sustained recovery in the price of the commodity for
which the transfer was made. Lom6 IV canceled all potential debts that had arisen under
the previous three conventions. Id.
92. Uganda Coffee Output to Rise, Reuters News Service, Dec. 15, 1991, available in
LEXIS, Nexis Library, Reuters News Service File.
93. EC Gives Aid to Make Up for Lost Export Earnings, Reuters News Service, July 5, 1990,
available in LEXIS, Nexis Library, Reuters News Service File.
94. Agreement Establishing the Common Fund for Commodities, supra note 84.
Annex 188
EQUITY-AS-FAIRNESS
more ambitious approach to the problems wrought by the price swings that
result from the unfettered operation of the law of supply and demand.
Unlike the Lom6 Convention, the Fund serves a corrective, not a compensatory,
purpose. 95 While accepting the inevitability, and even the desirability,
of market-driven price fluctuations, the Fund seeks to keep these
fluctuations within certain parameters.
The Fund is primarily intended to help international commodities organizations
(ICOs), comprised of both producer and consumer states, purchase
buffer stocks when prices fall below fairly wide (and sometimes
flexible) parameters established for that commodity by the ICO.96 After
prices rebound, ICOs are to sell these stocks, helping to ensure that the
prices do not exceed the prescribed limit and also generating the cash
necessary to repay their debt to the Fund with interest. The Fund has
identified ten core commodities for priority support: cocoa, coffee, tea,
sugar, copper, tin, rubber, cotton, jute, and hard fiber.97 It may also
extend protection to eight other products, ranging from bananas to bauxite.
98
Out of a potential capital of $750 million, $470 million has been earmarked
for the buffer account (the remainder will be devoted to research
and development).9 9 After the Fund negotiates borrowing entitlements
with individual ICOs, member states will be required to deposit one-third
of the agreed amount in the Fund. To make up the difference between
ICO contributions and borrowing entitlements, the Fund will borrow on
international capital markets, pledging ICO buffer stocks as security.100
Taken together, the GSP, Lom6 IV, and the Common Fund for Commodi-
95. See Robin T. Tait & George N. Spear, The Common Fund for Commodities, 16 GEO.
WASH. J. INT'L L. & ECON. 483, 486-87 (1982) (primary benefit is stabilizing commodity
prices).
96. See, e.g., The International Natural Rubber Agreement, Oct. 6, 1979, 1983 U.K.T.S. 30
(Cmnd. 8929) (regulating balanced growth in the supply and demand for natural rubber, and
stabilizing conditions in the natural rubber trade).
97. UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, AN INTEGRATED PROGRAMME
FOR COMMODITIES 7, U.N. Doc. TD/B/c.1/166 (Dec. 9, 1974); see also Tait &
Spear, supra note 95, at 496 n.81.
98. U.N. Commodities Fund Prepares for an Uphill Struggle, Reuters News Service, Mar. 20,
1990, available in LEXIS, Nexis Library, Reuters News Service File.
99. Id.
100. See Tait & Spear, supra note 95, at 508-11 (emphasizing that the primary function of
the fund is to finance buffer stocks). The fund has its work cut out for it. Due to the
chronically depressed condition of much of the commodities market, most ICOs are in
disarray, with only the rubber organization still playing an actively interventionist role in the
market. The Fund's success depends in no small measure on its ability to infuse these
organizations with new life. See U.N. Commodities Fund Prepares for an Uphill Struggle, supra
note 98 (noting that most Fund aid will be used to finance research and development to
reverse the declines of most commodity pacts).
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THE GEORGETOWN LAW JOURNAL
ties demonstrate the increasingly important role that equity plays in trading
arrangements.
2. Corrective Equity in Continental Shelf Allocation
Continental shelf allocation has proved to be the most fertile field for
the application of equitable principles. Initially, the international community
sought to resolve disputes over this allocation through resort to a
conventional rule. Under article 6(2) of the 1958 Geneva Convention on
the Law of the Continental Shelf,1"1 states unable to delimit their overlapping
shelves "by agreement" were directed to set boundaries by an equidistance
line.10 2 This rule, however, came with an escape clause: a delimitation
could depart from the equidistance line under "special circumstances., 1 0 3
This rule exemplifies corrective equity. While the equidistance rule was
paramount, it was not sacrosanct and could be departed from in the event
that it produced grossly unfair results.
This equity formulation was implemented in the 1969 North Sea Continental
Shelf1"4 cases. The parties-Denmark, the Netherlands, and West
Germany-asked the I.C.J. to determine the principles applicable to negotiations
to determine sovereignty over the resources of the North Sea shelf.
The Court first determined whether the Geneva Convention, ratified by
the Netherlands and Denmark but not by West Germany, governed the
dispute. The Danes and the Dutch argued for application; the Germans
argued against it. Geography accounted for these respective stances.10 5
Endowed, respectively, with a straight and a convex coast, the Dutch and
Danes stood to profit handsomely from application of the equidistance
principle, at the expense of West Germany, whose coast was concave. To
justify enforcement of the equidistance principle against West Germany,
the nonparty, Denmark and the Netherlands argued first that equidistance
follows naturally from the nature of the continental shelf, and alternatively,
that the principle had crystallized into a norm of customary international
law. West Germany, in response, argued that each state ought to
receive a "just and equitable share" of the shelf, which it defined as a
share proportionate to the length of its coast.10 6
The Court dismissed the Danish and Dutch argument that it had no
choice but to apply the principle set out in article 6(2) of the convention.
101. Convention on the Continental Shelf, opened for signature Apr. 29, 1958, 15 U.S.T.
471, 499 U.N.T.S. 311.
102. Id., 15 U.S.T. at 474, 499 U.N.T.S. at 316.
103. Id., 15 U.S.T. at 474, 499 U.N.T.S. at 316.
104. North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb.
20).
105. Id. at 19-20.
106. Id. at 20.
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EQUITY-AS-FAIRNESS
It held that equidistance had no inherent link either to the nature of the
shelf or to any principle of proximity or adjacency. °7 It further found that
state practice was too sparse and inconclusive to merit a conclusion that
the principle had crystallized into a customary norm.1"8 The Court also
rejected West Germany's claim to a "just and equitable share," which it
equated with a request for apportionment. There could be no question of
apportioning the shelf, the Court held, because in theory, there was
nothing to apportion. The Court's task was only to delimit. "Delimitation
is a process which involves establishing boundaries of an area already... appertaining
to the coastal State," the Court wrote, "and not the determination
de novo of such an area." 10 9
Thus the Court refused to enter formally into a process of dividing the
shelf into just and equitable portions and distributing them among the
litigant states. Instead, it chose to engage only in the more modest task of
delimiting a disputed boundary. Nevertheless, the Court wrote, such
delimitation must "be effected by agreement in accordance with equitable
principles.., taking account of all the relevant circumstances."110 Although
the Court maintained that "there is no legal limit"' 1' 1 to the
number of factors that can be considered relevant to an equitable delimitation,
it named only a few. These principles were: (1) geology (that is, the
similarity of a piece of shelf to state territory), (2) the desirability of
maintaining the unity of natural resource deposits, and (3) proportionality,
which it defined as the attainment of a reasonable relationship between
the extent of a state's continental shelf and the length of its coastline.1 2
This judgment, in spite of its seemingly capacious nature, nevertheless
reflected a preference for the legal norm codified in article 6(2) of the
Geneva Convention. When the parties entered into negotiations to divide
the shelf following the judgment, the first factor prescribed by the Courtgeology-
proved unhelpful. The area in dispute did not resemble the
shelf of one party any more than it did those of the others. The second
factor-the maintenance of the unity of deposits-proved similarly irrelevant
because the location of these deposits had yet to be fully determined.
(The parties did, however, provide for negotiated resolution of disputes
resulting from the later discovery of trans-boundary deposits.) The parties
were thus left with proportionality. As the basis for the delimitation, they
drew provisional median lines, which they adjusted to account for the
107. Id. at 29-32.
108. Id. at 41-45.
109. Id. at 22.
110. Id. at 53.
111. Id. at 50.
112. Id. at 51-52.
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concavity of the West German coast. 1 13 The delimitation thus comported
with article 6(2)'s command to adhere to the equidistance line except in
the face of special circumstances. The Court, through the parties, had
completed an exercise in corrective equity, introducing a notion of fairness
into the allocation without departing from the conventional rule.
In 1977, when an arbitral tribunal decided the Anglo-French Continental
Shelf" 4 arbitration, it also considered equitable factors. Charged by the
parties with the task of dividing the English Channel, the five-member
tribunal,'15 like the Court in the North Sea cases, first determined the
effect to be given the Geneva Convention. Because both Britain and
France had ratified the Convention, Britain argued that it was enforceable
against France." 6 With the Channel Islands much closer to the French
mainland than to England, the U.K. stood to gain significantly from a
delimitation placing the boundary equidistant between its islands and the
French mainland. France argued that the Convention, or at least article 6
and its equidistance principle, did not apply inter se because France had
registered objections to that article, reservations to which Britain had
objected." 7 France further argued that, even if the Convention were in
effect, the tribunal should instead resolve the dispute not by equidistance
but by applying equitable principles in the light of "special circumstances."
Alternatively, France maintained that customary law required the tribunal
to establish a boundary equidistant from the two parties' mainlands, with a
six nautical-mile enclave accorded to the Channel Islands. 18
The tribunal rejected France's argument that the Convention did not
apply, holding that Britain's objection to the French reservation had not
prevented the treaty from entering into force between the parties." 9 It
then turned to a provisional application of the equidistance rule between
the Islands and France, concluding that this exercise resulted in a "radically"
distorted boundary.12 The tribunal also drew a provisional equidistance
line between the two parties' mainlands, which would have located the
113. Treaty Between the Kingdom of Denmark and the Federal Republic of Germany
Concerning the Delimitation of the Continental Shelf of the North Sea; Oct. 6, 1965,
Kolketings bes lutning, Folketing saret 1970-71, reprinted in 1970-71 I.C.J.Y.B. 117; Treaty
Between the Kingdom of the Netherlands and the Federal Republic of Germany Concerning
the Delimitation of the Continental Shelf of the North Sea, Jan. 28, 1971, 1971 Tractatenblad
van het KoninKrijk der Nederlanden No. 53, reprinted in 1970-71 I.C.J.Y.B. 122.
114. Continental Shelf (U.K. v. Fr.), 54 I.L.R. 6 (Ct. Arb. 1975).
115. Each party selected one member of the tribunal. Arbitration Agreement, art. (1).
The French choice, Andre Gros, later served on the I.C.J.
116. Continental Shelf, 54 I.L.R. at 19-21 (U.K. Counter Memorial).
117. Id. at 17-19 (Memorial of France).
118. Id.
119. Id. at 47.
120. Id. at 102.
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EQUITY-AS-FAIRNESS
Channel Islands on the French side of the line.121 The tribunal then
turned to equity.
Seeking to "balance the equities" presented by the dispute, the arbitrators
attached relevance to a number of factors not present in the North Sea
cases. They concluded that defense considerations weighed in favor of an
adjustment benefiting France.' 22 Although the tribunal, like the I.C.J.,
claimed only to be delimiting and not apportioning the shelf, it nevertheless
accepted Britain's contention that the populousness and political and
economic importance of the islands ought to be accorded "a certain
weight.
123
These considerations led the tribunal to apply an equidistance line
between the two mainlands while also according the islands a twelve
nautical-mile enclave. 124 In devising this novel solution, the tribunal sought
shelter in the Geneva Convention's article 6(2) formula for corrective
equity. By interpreting "special circumstances" to include such factors as
the islands' populousness and political and economic importance, as well
as defense considerations, the arbitrators were still able to claim that they
were applying the law. 1 25 In particular, they asserted their reliance on the
equidistance rule, from which departure could only be made in special
circumstances.1
26
Considerations of creative fairness also arose in another aspect of the
Continental Shelf arbitration. Having thus decided that the median line
would play a role in the delimitation, the tribunal faced the problem of
selecting the line's basepoints. Britain argued that these must include the
Scilly Isles, located off Cornwall, and Ushant, a French island located off
Britanny. The French objected because the Scillies project considerably
further into the Channel than Ushant. The delimitation, France argued,
should follow the "general direction" of the coasts of the two countries,
with the Scillies and Ushant treated as special features. 127
To resolve this dispute, the tribunal turned to the equitable principle of
proportionality. In so doing, it sought to clear up some of the ambiguity
surrounding the I.C.J.'s treatment of this principle in the North Sea cases:
"[P]roportionality" in the delimitation of the continental shelf does not
relate to the total partition of the area of shelf among the coastal states
concerned, its role being rather that of a criterion to assess the distorting
121. Id.
122. Id. at 98.
123. Id. at 101.
124. Id. at 102-03.
125. Id. at 103.
126. Id.
127. Id. at 109.
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effects of particular geographic features and the extent of the resulting
inequity. In the present instance, "proportionality" comes into account
only in appreciating whether the Scilly Isles are to be considered "special
circumstances" having distorting effects on the equidistance boundary as
between the French Republic and the United Kingdom and, if so, the
extent of the adjustment appropriate to abate the inequity.128
Putting proportionality into practice, the tribunal remedied the "disproportionate
effects" of the projection of the Scillies into the Channel by
according these islands a "half-effect." 129 At least one commentator has
criticized the tribunal for resorting to this device, noting that it found no
support either in the parties' special agreement or in any convention. 130
Nevertheless, the decision again seems to comport with the Geneva Convention's
article 6(2) command to adhere to the equidistance line absent a
compelling reason not to. The marked disproportionality created by the
projection of the Scillies seems to represent exactly the sort of "special
circumstance" that, under the convention, triggers a correction of the
median line. In stressing that the proportionality principle should not
govern, but merely correct, a delimitation, the tribunal seemed to adopt a
notion of fairness and yet contain it within the rule of equidistance.
B. BROADLY CONCEIVED EQUITY
In the broadly conceived equity model, equity is not a corrective aspect
of another legal rule, but rather, is itself a rule of law. While still rulebased,
it is not an exception to a nonequitable rule, but is itself the
dominant applicable rule for the accomplishment of resource allocation.
This model of allocation affords the tribunal more discretion than does
corrective equity for ensuring that considerations of fairness determine the
outcome. Consequently, decisions according to this model of equity are
apt to be more openly distributive than those following from corrective
equity.
1. Broadly Conceived Equity in Continental Shelf Allocation
The Third United Nations Conference on the Law of the Sea (UNCLOS
III), which began in 1973,131 spurred courts and tribunals to abandon
narrower corrective equity in the realm of shelf delimitation and to rely on
a more broadly conceived notion of equity. Even so, the change was
128. Id. at 124.
129. Id.
130. See Rosenne, supra note 73, at 97.
131. TWENTY-THIRD REPORT OF THE COMMISSION TO STUDY THE ORGANIZATION OF
PEACE, THE UNITED NATIONS AND THE OCEANS 7 (1973).
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evolutionary. The early equity jurisprudence of the I.C.J. informed UNCLOS
III's discussion of maritime delimitation, leading it to give equity a
more explicit role in the negotiating text. 132 The Conference, however,
ultimately went somewhat further the I.C.J. It produced a formula for
maritime delimitation in which equitable principles became the principal
designated standard.
The eventual triumph of equity at UNCLOS III ended a lengthy battle
between its proponents and the champions of equidistance. This result,
however, was only reached after painstaking negotiations. Although there
was early agreement that equity should play some role in shelf delimitation-
-indeed, the American delegation early realized that the North Sea cases
had made it impractical to attempt to rely on the language of the earlier
Continental Shelf Convention 133 -conferees found it more difficult to
agree on the weight equitable principles should be accorded in the new
instrument. They first tried to strike a balance between equity and equidistance.
The 1975 Informal Single Negotiating Text (ISNT)"' proposed
that "[d]elimitation of the continental shelf between adjacent or opposite
States shall be effected by agreement in accordance with equitable principles,
employing, where appropriate, the median or equidistance line, and
taking account of all the relevant circumstances." 135 This compromise
failed to satisfy a small number of states, most of which had small islands
located off their coasts. Fearing that the reference to equity would jeopardize
their position in shelf delimitations, these states argued for greater
emphasis on equidistance, although they conceded that this method may
not apply in the event of special circumstances. 36 The opposition of these
states "stimulated a measure of hostility to, and partisan enthusiasm for,
the text." 137 This discord made it impossible to agree on a suitable
revision of the ISNT. The provision, however, was retained intact in the
1976 Revised Single Negotiating Text (RSNT) 138 and the 1977 Informal
Composite Negotiating Text (ICNT).
132. Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The
Eighth Session (1979), 74 AM. J. INT'L L. 1, 32 (1980).
133. Id.
134. U.N. Third Conference on the Law of the Sea: Informal Single Negotiating Text,
May 7, 1975, 14 I.L.M. 682, 728 [hereinafter Informal Single Negotiating Text]. The
reference to equitable principles in this provision was understood to refer to the criteria
discussed by the I.C.J. in the Continental Shelf cases. Oxman, supra note 132, at 30.
135. Informal Single Negotiating Text, supra note 134, at 728.
136. Oxman, supra note 132, at 30.
137. Id. at 32.
138. See U.N. Third Conference on the Law of the Sea, Explanatory Memorandum on the
Informal Composite Negotiating Text, May 23-July 15, 1977, 16 I.L.M. 1099, 1105:
On the question of the delimitation of the ... continental shelf between adjacent or
opposite States, the Chairman [of the Second Committee] decided that the relevant
articles as appearing in the revised single negotiating text should be retained as it
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At the ninth session, a negotiating group introduced a revision that,
although slight, inspired opposition from partisans of both equity and
equidistance. 139 The draft convention that emerged from the session read:
The delimitation of the continental shelf between States with opposite or
adjacent coasts shall be effected by agreement in conformity with intermational
law. Such an agreement shall be in accordance with equitable
principles, employing the median or equidistance line, where appropriate,
and taking account of all circumstances prevailing in the area concerned.
140
At the Conference's tenth and last session, advocates of greater emphasis
on equity finally prevailed. Ireland and Spain, each involved in a
delimitation dispute with a neighboring country, succeeded in striking the
draft convention's reference to equidistance." When it was opened for
signature in 1982, article 83(1) of the U.N. Convention on the Law of the
Sea 142 read: "The delimitation of the continental shelf between States
with opposite or adjacent coasts shall be effected by agreement on the
basis of international law, as referred to in Article 38 of the Statute of the
International Court of Justice, in order to achieve an equitable solution.' 143
The victory of the equity camp at UNCLOS III had profound implications
for judicial interpretation of equity. In the 1982 Tunisia-Libya Continental
Shelf'44 case, the I.C.J. held that the Conference's omission of any
reference to equidistance meant that there was no longer formal textual
guidance as to the content of an equitable solution. 145 In the absence of
such guidance, the goal of reaching an equitable result must determine the
means for achieving it. "The equitableness of a principle," the Court
wrote, "must be assessed in the light of its usefulness for the purpose of
arriving at an equitable result.' 1 46
had not been possible to devise a formula which would narrow the differences
between the opposing points of view.
Id.
139. Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The
Ninth Session (1980), 75 AM. J. INT'L L. 211, 231 (1981).
140. U.N. Third Conference on the Law of the Sea, Draft Convention on the Law of the
Sea, July 28-Aug. 29, 1980, 19 I.L.M. 1129, 1174.
141. Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The
Tenth Session (1981), 76 AM. J. INT'L L. 1, 14-15 (1982).
142. Third U.N. Conference on the Law of the Sea, 11th Sess., Dec. 10, 1982, 21 I.L.M.
1261, 1286 [hereinafter LOS Convention].
143. Id.
144. Continental Shelf (Tunis. v. Libya), 1982 I.C.J. 18 (Feb. 24).
145. Id. at 49.
146. Id. at 59.
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Giving effect to this doctrinal shift, the Court exercised a remarkable
degree of discretion, first in selecting the principles relevant to an equitable
delimitation, then in drawing the line to give effect to these principles.
To arrive at an equitable result, the Court concluded, it had to account for
the following factors: the general configuration of the coasts,147 the existence
and position of a group of islands off the Tunisian coast, 148 the land
frontier, 149 and the conduct of the parties in the granting of petroleum
concessions. 150 The Court also took proportionality into account. Unlike
the previous use of that factor by the tribunal in the Anglo-French Continental
Shelf arbitration,' 5' however, the I.C.J. did not confine its application to
a post hoc check on the equitableness of a result reached by some other
means. Instead, the Court assigned an independent role to proportionality.
152 In practice, however, this approach had little bearing on the case,
because the coasts adjacent to the disputed zone happened to be of
roughly equal length.
To give effect to the principles that it had deemed relevant, the linedrawing
became an unusual exercise in judicial creativity, with bisected
angles used to account for the configuration of the coasts' and a halfeffect
accorded to the Tunisian islands. 15 4 Plainly, the principles designated
as "equitable" by the Court had a considerably greater distributive
effect than had the rule-based principle applied in the North Sea cases"'
and the Anglo-French Continental Shelf arbitration. 156
While the Court exercised great discretion in its selection of principles
for inclusion in an equitable calculation, it also articulated one very important
principle of exclusion. It openly refused openly to attach legal significance
to economic need.157 Tunisia placed great weight on need-based
factors, arguing that it was equitably entitled to more shelf than its relatively
oil-rich neighbor.'58 The Court rejected this claim on the ground
that the applicable rules cannot change depending on who is rich and who
is poor at the litigious moment. 159 In the Court's opinion, a "country
147. Id. at 86-87.
148. Id. at 88-89.
149. Id. at 84-85.
150. Id. at 83-84.
151.. See supra text accompanying notes 114-126.
152. Continental Shelf, 1982 I.C.J. at 75-76.
153. Id. at 87.
154. Id. at 89.
155. See supra text accompanying notes 104-112.
156. See supra text accompanying notes 114-121.
157. Continental Shelf, 1982 I.C.J. at 77-78.
158. Id. at 77.
159. Louis B. Sohn, Equity in International Law, in 82 AMERICAN SOCIETY FOR INTERNATIONAL
LAW, PROCEEDINGS OF THE ANNUAL MEETING 277, 286 (1988).
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might be poor today and become rich tomorrow as a result of an event
such as the discovery of a valuable economic resource., 1 60
This refusal to consider economic criteria failed to placate the Court's
conservative wing, which believed that the judgment was suffused with
what Judge Oda, in his dissent, called "an implicit purpose of
apportionment. 1 61 Oda also chastised the Court for its preference for
bisected angles and half-effects. These represented attempts, he wrote,
"to split the difference."1 62 Judge Evensen similarly condemned what he
considered the arbitrariness of the judgment, which he likened to a decision
ex aequo et bono.163
In the 1984 Delimitation of the Maritime Boundary in the Gulf of Maine
Area164 case, which involved delimitation of fisheries zones and shelf
subsoil, proportionality became the primary tool for the application of
broadly conceived equity. The case arose from the parties' failure to
apportion the Gulf's resources by negotiation. In 1977, both the United
States and Canada declared exclusive two hundred nautical-mile fishing
zones, resulting in a substantial area of overlap in the rich fisheries in the
vicinity of the Georges Bank shelf. To resolve the resultant conflict, the
two countries entered into negotiations that led to two interdependent
agreements: the Maritime Boundary Settlement Treaty165 and the Fisheries
Agreement.1 66 Under the Boundary Settlement Treaty, the parties
agreed to submit the delimitation of the maritime boundary to binding
dispute settlement, 167 while under the Fisheries Treaty, they agreed permanently
to share East Coast fisheries resources according to a system of
variable quotas. 168 Although neither agreement was to enter into force
without the other, the parties decoupled them after the U.S. Senate,
succumbing to the pressure of New England fishing interests, failed to
ratify the Fisheries Treaty. 169 Shortly after the Boundary Settlement Treaty
160. Continental Shelf, 1982 I.C.J. at 77.
161. Id. at 270 (Oda, J., dissenting).
162. Id.
163. Id. at 296 (Evensen, J., dissenting).
164. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.),
1984 I.C.J. 246 (Oct. 12).
165. Special Agreement of the Maritime Boundary in the Gulf of Maine Area, Mar. 29,
1979, U.S.-Can., 33 U.S.T. 2802 (entered into force Nov. 20, 1981) [hereinafter Gulf of
Maine Agreement].
166. Agreement on East Coast Fisheries Resources, S. EXEC. Doc. V, 96th Cong., 1st
Sess. (1979).
167. Gulf of Maine Agreement, supra note 165, at 2807-08.
168. Agreement on East Coast Fisheries Resources, supra note 166, at 22.
169. See David R. Robinson et al., Some Perspectives on Adjudicating before the World
Court, 79 AM. J. INT'L L. 578, 579-80 (1985) (describing the delinkage of the two treaties).
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EQUITY-AS-FAIRNESS
entered into force in 1981, the parties submitted the dispute to a chamber
of the I.C.J. for binding adjudication.170
In its judgment, the chamber appeared to follow the I.C.J.'s reasoning in
the Tunisia-Libya Continental Shelf case. 17' "[D]elimitation is to be effected
by the application of equitable criteria," the chamber held, "and by
the use of practical methods capable of ensuring... an equitable result., 172
The judges devised a theory of proportionality to satisfy this formula: the
delimitation should reflect the "particularly notable" difference in the
length of the parties' coasts. 173 Applying this principle, the chamber
adjusted a provisional median line using a calculation based on all of the
Gulfs coasts. 174
The concept of proportionality, as applied in the Gulf of Maine case, no
longer bore much resemblance to that used earlier in the North Sea case 175
and Anglo-French Continental Shelf arbitration. 176 In those disputes, the
principle was used to correct dramatic disproportionality resulting from
rigid recourse to equidistance, not to draw a new line that would reflect
directly the relative coastline lengths of the parties. Absent the presence
of a significant distorting feature, such as the concavity of the German
coast or the projection of a small set of islands into the English Channel,
proportionality would have played no role in the earlier jurisprudence. In
contrast, the chamber in the Gulf of Maine case, assigned proportionality a
leading role, without first tying that principle to any distorting geographical
feature. In so doing, the chamber gave itself considerable power to
allocate the Gulf according to considerations of fairness.
In spite of the distributive effect of the decision, the chamber affirmed
the I.C.J.'s rejection in the Tunisia-Libya Continental Shelf case of the
relevance of economic factors to an equitable delimitation.1 77 Had the
chamber wished to break from the I.C.J.'s refusal to acknowledge the
legitimacy of these criteria, it could have pointed to the special agreement
as a justification. Although the parties asked the chamber to draw only
one line, they asked that this line divide not only their continental shelves,
but also their fisheries. 78 This reference to fisheries could have been
170. Gulf of Maine Agreement, supra note 165, at 2807, Annex I, art. II.
171. Continental Shelf (Tunis. v. Libya), 1982 I.C.J. 18, 59 (Feb. 24).
172. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.),
1984 I.C.J. 246, 300 (Oct. 12).
173. Id. at 332.
174. Id. at 336.
175. See supra text accompanying notes 104-112.
176. See supra text accompanying notes 114-121.
177. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.),
1984 I.C.J. 246, 267 (Oct. 12).
178. Id. at 253.
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interpreted as inviting the chamber to add economic considerations to its
equitable calculation.1 79
Canada placed great emphasis on economic considerations, arguing that
any delimitation should reflect the special dependence of certain Nova
Scotian communities on fishing. 8 ' The chamber rejected this claim. It did
not, however, entirely banish economic factors from the judgment, but
rather assigned them a subordinate, corrective role similar to that which
the tribunal in the Anglo-French Continental Shelf arbitration had once
assigned to proportionality. Economic factors were to be used only as a
post hoc check on the equitableness of a result achieved by other means:
What the Chamber would regard as a legitimate scruple lies.., in concern
lest the overall result.., should unexpectedly be revealed as radically
inequitable, that is to say, as likely to entail catastrophic
repercussions for the livelihood and economic well-being of the population
of the countries concerned.... Fortunately, there is no reason to
fear that any such danger will arise in the present case ......8
The I.C.J. adhered to the same conception of equitable allocation in the
1985 Libya-Malta Continental Shelf,82 case. The Court again stressed the
need to arrive at an equitable result, citing Article 83(1) of the Law of the
Sea (LOS) treaty.'83 To achieve this result, the Court turned to proportionality,
which it called "intimately related ... to the governing principle of
equity.' ' 184 In defining proportionality, the Court sought to forge a compromise
between the conceptions of this principle advanced by the tribunal in
the Anglo-French Continental Shelf arbitration and the I.C.J. chamber in
the Gulf of Maine case. Proportionality, it held, has two roles: it is both a
factor to be considered in the delimitation and a post hoc check on the
equitableness of the result, whatever the means by which it was reached.'85
The former confers upon a court the discretion to allocate resources
according to considerations of fairness, while the latter allows a court to
ensure that the result, achieved by reference to a range of considerations,
is not unfairly influenced by the effect given to any one of them. (There is,
however, likely to be less need to remedy disproportion, in this second
179. See id. at 368-77 (Gros, J., dissenting) (arguing that the chamber should have drawn
two lines: one delimiting the continental shelves, the other the fisheries).
180. Id. at 341.
181. Id. at 342-43.
182. Continental Shelf (Libya v. Malta), 1985 I.C.J. 13 (June 3).
183. Id. at 30-31.
184. Id. at 43.
185. Id. at 49
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sense, when the drawing of the line is itself influenced by considerations of
proportionality.)
The problems inherent in the Court's attempt at compromise manifested
themselves in the delimitation: as in the Gulf of Maine case,
proportionality became the dominant consideration, in spite of the absence
of any natural feature creating the sort of serendipitous disproportionality
evident in the North Sea cases. After drawing an equidistant line
between the two countries-one that, in the Court's opinion, need have no
determinative relevance to the outcome186 -the Court adjusted it to reflect
the "considerable disparity" in the parties' respective lengths of
coastline. Broadening its frame of reference to treat the delimitation as
one between the northern and southern seaboards of the Mediterranean,
the Court noted that Malta represented a "minor feature" of the northern
seaboard, located substantially to the south of most of it. This geographical
context, the Court concluded, warranted a further adjustment in Libya's
favor. 187 Finally, the Court determined that the resulting line met the
requirements of overall equitable proportionality. 188
Again, in spite of the distributive effect of the application of these
equitable principles, the Court continued to deny the legitimacy of needbased
resource distribution. There could be no question, the Court wrote,
of entertaining either Libya's claim that the vastly larger size of its landmass
was a factor relevant to the delimitation,1 89 or Malta's claim that its
lack of energy resources, its requirements as an island developing state,
and the range of its fisheries should influence the outcome.' 9°
Proportionality, although now evidently the preferred means by which to
reify the abstract notion of equity, is not indispensable to a delimitation
according to broadly conceived equity. Faced with a situation in which the
parties enjoyed relatively equal coastline lengths adjacent to the disputed
zone, the arbitration tribunal that decided the 1985 Guinea-Guinea-
Bissau Maritime Delimitation'9' case, delimited the shelf through reference
to two equitable considerations largely absent from previous delimitations.
First, the tribunal cited the need "to ensure that, as far as possible, each
State controls the maritime territories opposite its coasts and in their
vicinity."' 92 Second, the tribunal cited the need to ensure that other
maritime delimitations already made, or those still to be made, in the area-
186. Id. at 47.
187. Id. at 50.
188. Id. at 55.
189. Id. at 40-41.
190. Id. at 41.
191. Maritime Delimitation (Guinea v. Guinea-Bissau), 77 I.L.R. 636 (Ct. of Arb. 1988).
192. Id. at 676.
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be given their due regard. 93 The equidistance method had no priority in
accommodating these factors, the tribunal wrote, because it threatened
both countries with a "cut-off effect"' 9 4 (the loss of maritime areas opposite
or adjacent to their coasts) and Guinea with "enclavement" (the
deprivation, through the intersection of the maritime boundaries of neighboring
states, of access to the open ocean).' 95 To guard against these
dangers, the tribunal drew a boundary that departed considerably from the
equidistance line.'9 6 Once again, the application of broadly conceived
equity produced a significantly redistributive result.
The tribunal nevertheless also dismissed the idea that economics had
any role to play in the delimitation. In language reminiscent of that used
by the I.C.J. in the Tunisia-Libya Continental Shelf case,' 9 7 it declared that
economic factors did not rise to the level of manifest certainty required to
warrant a revision of the line. "[I]t would be neither just nor equitable,"
the tribunal wrote, "to base a delimitation on the evaluation of data which
changes in relation to factors that are sometimes uncertain."' 98 It remains
to be seen whether this opens, if only a little, the door to economic
considerations when the effect is more certain and permanent and more
profoundly disturbing to the judges' sense of fairness.
2. Broadly Conceived Equity in Conventional Arrangements
Broadly conceived equity is not confined to continental shelf delimitation.
A number of conventional schemes also provide for distribution of
scarce resources according to such equitable allocation. Prominent among
them are the LOS Convention's provisions regarding access to the exclusive
economic zone (EEZ),' 99 and the Draft Convention on the Non-
Navigational Uses of Watercourses. 200 But these conventions take broadly
conceived equity a step further than the jurisprudence relating to continental
shelf delimitation, explicitly calling on states to take economic need
into account in resource allocation.
In its provisions dealing with state access to the EEZs of other states,
the LOS Convention seeks to provide for the distribution of the area's
surplus resources in accordance with equitable principles that take ac-
193. Id. at 677.
194. Id. at 681.
195. Id. at 682.
196. Id. at 685.
197. See supra notes 157-160 and accompanying text.
198. Maritime Delimitation, (Ginea v. Ginea-Bissau), 77 I.L.R. 636, 689 (Ct. of Arb.,
1988).
199. LOS Convention, supra note 142, at 29-31, 21 I.L.M. at 1283-84.
200. Draft Convention on the Non-Navigational Uses of Watercourses, U.N. GAOR, 42d
Sess., Supp. No. 10, at 33, 53-88, U.N. Doc. A/42/10 (1987) [hereinafter Draft Watercourses
Convention].
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count, inter alia, of economic need. The Convention confers on landlocked
states "the right to participate, on an equitable basis, in the
exploitation of an appropriate part... of the exclusive economic zones of
coastal States of the same subregion or region."'2° States are directed to
determine the terms of such participation by taking into account: (1) "the
need to avoid effects detrimental to fishing communities or fishing industries
of the coastal State"; (2) the extent to which the land-locked state is
already entitled, through agreement, to exploit the "living resources of the
exclusive economic zone of the coastal State"; (3) the need to avoid
disadvantaging any one coastal state in particular; and (4) "the nutritional
needs of the populations of the respective States., 20 2 The Convention
further provides preferential rights of access, determined by the same
criteria, to "geographically disadvantaged states," which the Convention
defines as coastal states that can claim no EEZ of their own or are
dependent on the EEZs of other states for adequate nutrition.20 3
The Draft Convention on the Non-Navigational Uses of Watercourses204
similarly seeks to provide for distribution of a scarce resource through
the application of broadly conceived equity. 205 Drafted by the U.N. International
Law Commission (ILC), an elected body of experts charged with
the codification and progressive development of international law,206 the
Convention includes a doctrine for the "equitable use" of river water. It
directs watercourse states to utilize international watercourse systems in
their respective territories "in an equitable and reasonable manner., 207
This right to an equitable share of river water is coupled with an obligation
to participate in the "use, development, and protection" of the watercourse
in "an equitable and reasonable manner., 2 8
The Convention further articulates the principles relevant to an equitable
apportionment of river water. Nature itself-"geographic, hydrographic,
hydrological, climatic, and other factors of a natural character"29-
tops the list, followed by the "social and economic needs of the watercourse
201. LOS Convention, supra note 142, at 1283.
202. Id. at 1283-84.
203. Id. at 1283.
204. Draft Watercourses Convention, supra note 200.
205. See Stephen C. McCaffrey, The Law of International Watercourses, 17 DENV. J. INT'L
L. & POL'Y 505, 508-09 (1989) (discussing article 6, "equitable and reasonable utilization
and participation" as one of the "twin cornerstones" of the entire watercourses draft).
206. See Statute of the International Law Commission, G.A. Res. 174(11), U.N. GAOR, 2d
Sess., at 105, U.N. Doc. A/519 (1947) (describing the objectives of the International Law
Commission).
207. Draft Watercourses Convention, supra note 200, at 69.
208. Id. at 69-70.
209. Id. at 82.
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States concerned."21 Other factors are also listed as relevant to an
equitable allocation: (1) "the effects of the use ...in one watercourse
State on other watercourse States"; (2) "existing and potential uses" of the
system; (3) "conservation, protection, development and economy of use of
water resources"; and (4) "[t]he availability of alternatives ... to a particular
planned or existing use., 2 11
The draft watercourse convention thus exemplifies the manner in which
broadly conceived model of equity strives to accommodate values or interests
which had once been excluded from the realm of law. By incorporating
such values into a legal regime, the draft convention and other
manifestations of broadly conceived equity, both judge-made and conventional,
ensure that law remains relevant to even the most complex and
seemingly intractable problems of resource distribution.
C. COMMON HERITAGE EQUITY
Although they differ in their approach to allocation, both corrective
equity and broadly conceived equity share the assumption that resources
belong ab initio to states. The fairness issue comes to the fore in allocation
among state claimants. Common heritage equity, first promoted in the
1950s with regard to global commons such as outer space, 212 departs
dramatically from this view. It assumes instead that certain resources are
the patrimony of all humankind. A number of principles proceed from
this assumption, namely: nonownership of the heritage, shared management,
shared benefits, use exclusively for peaceful purposes, and conservation
for future generations. 213 These principles, however, are not ranged
in a fixed hierarchy of importance, but vary in importance from management
regime to regime. Two conventional arrangements-the LOS Convention's
provisions relating to the deep seabed,214 and the U.N. Moon
Agreement 215-adopt a mercantile model of common heritage equity, in
which equitable resource allocation is given higher priority than conservation.
The Madrid Protocol to the Antarctica Treaty, 216 by contrast, adopts
210. Id.
211. Id.
212. See EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS 48 (1989)(noting
that after 1950 commentators began to stress the relevance of the "common heritage of
mankind" doctrine to common environments, such as outer space).
213. Id.
214. LOS Convention, supra note 142, at 1292-98.
215. Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies, Nov. 12, 1979, 18 I.L.M. 1434 (entered into force July 11, 1984) thereinafter Moon
Agreement].
216. Protocol on Environmental Protection to the Antarctica Treaty, June 22, 1991, S.
TREATY Doc. No. 22, 102d Cong., 2d Sess. 18 (1992), 30 I.L.M. 1455 [hereinafter Madrid
Protocol].
590 [Vol. 81:563
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EQUITY-AS-FAIRNESS
an "in trust" model of common heritage equity, in which conservation is
not simply the first, but the sole, priority.2 17
The LOS Convention established a Deep Seabed Mining Authority to
manage and distribute equitably the benefits derived from the exploitation
of the common heritage element of the marine environment.1 8 The
Authority is analogous to a corporation, having been established to facilitate
exploitation of an asset (the deep seabed) for the benefit of its owner
(humankind). In the Convention's provisions regarding exploitation of the
continental shelf within the two hundred mile EEZ, the Authority plays a
relatively passive role. The LOS Convention affirms the exclusive jurisdiction
of coastal states over this area. 21 9 Nevertheless, the Convention does
require coastal states to contribute to the Authority at least a fraction of
the benefit derived from mining in these areas. After five years of production,
this amounts to one percent of the value or volume of production,
increasing by one percent each subsequent year until the twelfth year,
after which it stabilizes at seven percent.220 The Authority is to disburse
these payments to states party to the Convention according to "equitable
sharing criteria, taking into account the interests and needs of developing
States, particularly the least developed and the land-locked among them., 22 1
To ensure that this scheme of equitable allocation does not itself produce
inequitable results, developing states that are net importers of a mineral
resource produced from its continental shelf are exempt from making such
payments.
222
In its provisions relating to the seabed beyond the limits of national
jurisdiction, the LOS Convention assigns the Authority a much more
important role, involving not simply the right to oversee, but also to
participate in, exploitation. 223 Because this area and its resources are the
common heritage of humankind,224 the Authority controls all exploration
and exploitation "on behalf of mankind as a whole. 225 Producers seeking
to mine the seabed must submit a proposed work plan to the Authority.226
217. See id. at 21, 30 I.L.M. at 1462 (defining the objective of the protocol as a commitment
to "the comprehensive protection of the Antarctic environment and dependent and
associated ecosystems" and designating Antarctica as a "natural reserve, devoted to peace
and science").
218. LOS Convention, supra note 142, at 1298-99.
219. Id. at 1285.
220. Id. at 1286.
221. Id.
222. Id.
223. For a discussion of this regime, see Katherine Dixon, Recent Development, Law of
the Sea-Deep Seabed Mining, 18 GA. J. INT'L & COMp. L. 497, 500-01 (1988).
224. LOS Convention, supra note 142, at 1293.
225. Id. at 1297.
226. Id. at 1297.
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The proposal must include plans for the exploitation of two equally workable
mining sites. If the plan is approved, the Authority can mine one of
the sites through its own production unit, while the successful applicant
may mine the other site, subject to the Authority's regulations and production
limits.227 The applicant, moreover, must make an annual financial
contribution to the Authority in the form of a production fee, which is tied
to the producer's return on investment and amounts to a percentage of the
market value of the processed metals extracted from the ocean floor.228
The Authority is to distribute these payments to states party to the convention
according to the same terms prescribed for the allocation of payments
collected from states exploiting their continental shelves beyond the EEZ:
according to "equitable sharing criteria, taking into account the interests
and needs of developing States, particularly the least developed and the
land-locked among them. ' 229
The LOS Convention, to a limited degree, is also concerned with conservation
of deep-seabed resources. It stipulates that all objects "of an
archeological and historical nature" shall be preserved or disposed of for
the benefit of humankind 230 and directs the Authority to promulgate
measures to lessen the polluting effects of exploration and exploitation.231
But the Convention's emphasis is on exploitation. While it does contemplate
mineral production ceilings, 232 they are not meant to ensure resource
availability for future generations, but rather, to protect commoditiesexporting
developing nations from the price-depressing effect of overpro-
213 duction.
234 The U.N. Moon Agreement, which opened for signature in 1991, also
includes elements of common heritage equity. The Agreement places
heightened emphasis on conservation, although it seeks to facilitate the
exploitation and equitable allocation of the moon's resources. Affirming
that "[t]he moon and its natural resources are the common heritage of
mankind, ' 235 the Agreement stipulates that all "exploration and use of the
moon... shall be carried out for the benefit and in the interests of all
227. Id. at 1295-97.
228. Id. at 1334-37.
229. Id. at 1293-94.
230. Id. at 1295.
231. Id. at 1294.
232. See id. at 1295 (describing the method for calculating the production ceiling).
233. See MARKUS G. SCHMIDT, COMMON HERITAGE OR COMMON BURDEN? THE U.S.
POSITION ON THE DEVELOPMENT OF A REGIME FOR DEEP SEABED MINING IN THE LAW OF
THE SEA CONVENTION 191-96 (1989) (describing the negotiations on production controls
from 1974-1977).
234. Moon Agreement, supra note 215, at 1434.
235. Id. at 1438.
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EQUITY-AS-FAIRNESS
countries. ' ' 23 The Agreement further calls on states to devise a regime to
govern the exploitation of the moon with the purpose of facilitating the
orderly development, rational management, and equitable sharing of the
moon's resources.237 The Agreement's promotion of exploitation, however,
is tempered by a concern for conservation. States are commanded
not simply to refrain from polluting or disrupting the moon's environment,
238 but to pay "due regard" to the needs of future generations.239
Special protection is accorded to regions of the moon possessed of "special
scientific interest. 2 40
The 1991 Madrid Protocol to the Antarctica Treaty,241 signed by twentyfour
states with environmental or scientific interest in the continent, 24 2
represents a form of common heritage equity in which conservation is
paramount. The signatories to the pact departed from the mercantile
model of common heritage equity, assuming the role of a trustee pledged
to hold this asset in trust for the benefit of humankind. The pact takes the
form of a protocol to the 1959 Antarctica Treaty,24 3 which banned nuclear
and military activity, suspended competing claims by seven southern hemisphere
states, and established rules for scientific research. 2
' The Protocol
establishes environmental protection as a "fundamental consideration" in
the planning and conduct of all activities on the continent.245 To this end,
it bans all mineral and oil exploration for at least fifty years, 2 4
' reflecting a
sentiment that mineral exploitation is fundamentally incompatible with the
protection of the Antarctic environment. 247 The Protocol further includes
236. Id. at 1435.
237. Id. at 1438.
238. Id. at 1438.
239. Id. at 1435.
240. Id. at 1437.
241. Madrid Protocol, supra note 216. For a comprehensive discussion of the protocol,
see S.K.N. Blay, Current Developments, New Trends in the Protection of the Antarctic
Environment: The 1991 Madrid Protocol, 86 AM. J. INT'L L. 377 (1992).
242. Alan Riding, Pact Bans Oil Exploration in Antarctica, N.Y. TIMES, Oct. 5, 1991, at A3.
243. Antarctica Treaty, Dec. 7, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71.
244. For a discussion of the regime established under this treaty, see Patrick T. Bergin,
Antarctica, The Antarctica Treaty Regime, and Natural Resource Exploration and Exploitation, 4
FLA. J. INT'L L. 1 (1988); Blay, supra note 241, at 378-79.
245. Madrid Protocol, supra note 216, at 22, 30 I.L.M. at 1462.
246. Id. at 29, 30 I.L.M. at 1464. The moratorium may be reversed upon the vote of a
three-fourths majority of the states that were signatories to the Protocol at the time 'of its
adoption. Id. arts. 25(3), 25(4); see Blay, supra note 241, at 396-97 (describing amendment
process); Riding, supra note 242, at 3 (describing negotiations leading to amendment
formula).
247. For a discussion of the development of this consensus, see Christopher C. Joyner,
The Future of the Antarctic Regimes New Direction, in 85 AMERICAN SOCIETY OF INTERNATIONAL
LAW, PROCEEDINGS OF THE ANNUAL MEETING 464 (1991).
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THE GEORGETOWN LAW JOURNAL
new regulations for wildlife protection,248 waste disposal,249 marine pollution,"'
and continued monitoring of the continent. The signatories to the
pact have thus moved decisively in the direction of preserving Antarctica
as an unexploited international preserve for the benefit of future generations.
CONCLUSION
Far from content-less, equity in the international system is developing
into an important, redeeming aspect of a legal system that, because it still
primarily pertains to sovereign states, tends to be somewhat inflexible.
The case for a degree of flexibility and fairness is based on two important
current conditions of global society: (1) the revolutionary pace of technological
and scientific innovation and (2) the great and widening chasm
between rich and poor.
The fast rate of technological and scientific progress demands of any
legal system a degree of flexibility if it seeks to impose principles of general
application upon human endeavors that constantly redefine the reality and
transform the context in which they occur. The growing inequality in the
distribution of desired goods indicates that the formal equality of states
before the law must be tempered by some recourse to notions of fairness.
Fairness, as an augmentation of law, is also needed when deference must
be given to interests not ordinarily recognized by traditional law, such as
the well-being of future generations and the "interests" of the biosphere.
Finally, fairness has a tempering role to play when the apportionment of
goods (as in a continental shelf) occurs in the context of an infinite number
of geographical, geological, topographical, economic, political, strategic,
demographic, and scientific variables, where "hard and fast" rules are
likely to produce a reductio ad absurdum.
The international legal system does not include a jury to introduce an
element of flexibility and fairness-disguised as "common sense"-into its
judicial process. This has made it more urgent for judges to introduce
these elements. Mindful of the frailty of the fledgling international judiciary,
the judges have been quite cautious about introducing notions of
equity. Increasingly, however, they have been mandated to do so by the
use of the term in law-making treaties. This constitutes a deliberate
delegation of power to the judiciary from which they cannot, and have not
sought to, escape.
248. Madrid Protocol, supra note 216, at 72-74, 30 I.L.M. at 1476-77.
249. Id. at 79-86, 30 I.L.M. at 1479-82.
250. Id. at 87-95, 30 I.L.M. at 1483-86.
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Annex 188
1993] EQUITY-AS-FAIRNESS 595
As judicial recourse to equitable principles increases, the outlines of the
rules of equity become clearer, as is appropriate in any source of law
applied by judges. Nevertheless, it is inevitable that as international law
grows in its coverage and impact, equity's capacity to introduce elements
of flexibility and fairness will play an increasing role in manifesting the
system's legitimacy.
Annex 188
Annex 189
S. Reinhold, “Good Faith in International Law”, UCL Journal of Law and
Jurisprudence, 2013
GOOD FAITH IN INTERNATIONAL LAW
Steven Reinhold*
Abstract – As a ‘general principle’, good faith forms part of the sources of international
law. Still not widely examined in relation to rights and obligations, the aim here is to
demonstrate the specific characteristics of the principle. In general, international law rules
such as pacta sunt servanda, abuse of rights, estoppel and acquiescence and the
negotiation of disputes are grounded, to some extent, in good faith. In treaty law, good
faith has various manifestations from the time prior to signature through to interpretation.
These are outlined here. The article argues that good faith acts to mediate the effects of
States’ rights in international law, in order to achieve acceptable results when competing
interests exist. Fundamentally, good faith is a limitation of State sovereignty, albeit one
that is necessary, as it protects other States and their trust and reliance in international
law.
A. INTRODUCTION AND SCOPE OF THE TOPIC
According to Art. 38 (1) (c) of the ICJ Statute, the Court “shall apply the
general principles of law recognised by civilised nations”. When treaties or
customary law cannot yield a result, recourse is made to the general
principles of law,1 of which good faith is perhaps the most important, as it
underpins many international legal rules.2 The nature of good faith as an
overarching legal principle makes it difficult to define in absolute terms.3
This brings to mind the (in)famous quote of Justice Stewart of the US
Supreme Court, who stated: “I shall not today attempt to define [it]...But I
know it when I see it.”4 In this article the aim will not be to attempt an allencompassing
definition of good faith, 5 but rather to describe and
exemplify its place in international law.
This article is in five parts. Firstly, it starts with an assessment of the
* Ph.D. candidate and Research Assistant to Professor Stefan Talmon, D.Phil., LL.M.,
M.A., Institute for Public International Law of the University of Bonn.
1 Hersch Lauterpacht, International Law Vol. 1, (ed Elihu Lauterpacht, CUP 1970) 68;
Malcolm N Shaw, International Law, (6th edn, CUP 2008) 98; James Crawford,
Brownlie’s Principles of Public International Law, (8th edn, OUP 2012) 134.
2 Nuclear Tests Case (Australia v France) (Merits) [1974] ICJ Rep 253; Shaw (n 1)
103; Michel Virally, ‘Review Essay: Good Faith in Public International Law’ (1983) 77
AJIL 130.
3 William Tetley, ‘Good Faith in Contract: Particularly in the Contracts of Arbitration
and Chartering’ (2004) 35 J Mar L & Com 561, 563.
4 Jacobellis v State of Ohio 378 US 184, 197 (1964) (Supreme Court, per J Stewart),
while actually referring to obscene material.
5 Georg Schwarzenberger and Edward D Brown, A Manual of International Law, (6th edn,
Professional 1976). 118, 119, and Bin Cheng, General Principles of Law as applied by
International Courts and Tribunals (Stevens 1953) 105, have also desisted; cf JF
O'Connor, Good Faith in International Law (Aldershot 1991) 36.
10.14324/111.2052-1871.002
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UCL Journal of Law and Jurisprudence
41
legal value of the principle of good faith in municipal legal systems, the
means of transmuting this understanding of good faith into international
law, and the differences and difficulties of this undertaking. Secondly,
specific aspects of good faith are examined with particular reference to the
jurisprudence of international courts and tribunals. Thirdly, the relation
between the principle of good faith and sovereignty is assessed. The
argument is that good faith acts as a means of limiting state sovereignty
that is inherent in international law. Then, the impact of good faith is
examined in the law of treaties, before the final conclusion.
1. Good faith as a principle, a rule, or something altogether different?
In his Hague Academy Lecture in 1957, Sir Gerald Fitzmaurice stated:
“By a principle, or general principle, as opposed to a rule, even a
general rule, of law is meant chiefly something which is not itself a
rule, but which underlies a rule, and explains or provides a reason for
it. A rule answers the question ‘what’: a principle in effect answers the
question ‘why’.”6
Ronald Dworkin distinguishes rules from principles by the fact that rules
always apply in an unconditional, all-or-nothing way, whereas a principle
will only act as a guide in a decision-making process.7 This distinction will
provide a useful aid in determining the scope of good faith in its specific
forms: while good faith can have an important role in the determination of
obligations, it will generally not be the source of such obligations. This
article argues that good faith serves a mediatory role between a rule and a
principle.
2. Good faith in municipal legal systems; recognition by "civilised
nations"
Even though the interests of States and individuals are very different with
regard to the application of good faith, the jurisprudence of international
law has borrowed the methodology of the municipal legal systems: the
indefinability of the term ‘good faith’ has led to certain concretisations8 of
6 Gerald Fitzmaurice, ‘The General Principles of International Law considered from the
Standpoint of the Rule of Law’ (1957) 92 Recueil des Cours de l’Academie de Droit
International 7.
7 Ronald Dworkin, Taking Rights Seriously, (Harvard UP 1977) 25 f.
8 The term is borrowed from Robert Kolb, ‘Principles as Sources of International Law’
(2006) 53 NILR 19 ff; a similar approach: Saul Litvinoff, ‘Good Faith’ (1997) 71 Tul L
Rev 1997 1645, 1659 f, who calls the normative structures the ‘critical areas’.
Annex 189
Good Faith in International Law
42
the abstract notion of the principle. This is necessary, as good faith has
limited practical application unless a court is in a position to examine and
assess the conduct of the State concerned, and apply the principle
accordingly.9 In order to identify common traits in three municipal legal
systems, basic structures of this process can be identified in German,
French, and English law.
In Germany good faith is most prominently codified in § 242 of the Civil
Code (Bürgerliches Gesetzbuch, hereafter ‘BGB’), which states: “[t]he
debtor has a duty to perform according to the requirements of good faith,
taking customary practice into consideration.” As a ‘general clause’
(Generalklausel), the judiciary and legal scholars have crafted and refined
distinct legal precepts that can be applied to individual cases.10 Since a
general clause is an open-ended legal provision, § 242 BGB requires
balancing diverging interests in an individual case, in order to find the legal
value of the provision and to make it applicable to a factual scenario. The
direct application of good faith has therefore been limited to casuistry, i.e.
an application of corrective justice tailored to the individual case.11 Some
particular aspects that have developed are the prohibition of an abuse of
rights (Rechtsmissbrauch),12 equitable estoppel (based on the principle of
venire contra factum proprium),13 and acquiescence due to lapse of time
(Verwirkung).14 The judiciary has had a prominent role in shaping the
foundations of good faith: from a public law standpoint, the Lüth decision
of the German Constitutional Court (Bundesverfassungsgericht)15 paved
the way for aspects of fundamental rights to be read into the general
9 Cf Case of Certain Norwegian Loans (France v Norway) (Merits) [1957] ICJ Rep 9,
para 54 (Sep Op Lauterpacht); Gerald Fitzmaurice, ‘Hersch Lauterpacht: The Scholar as
Judge: Part 1’(1961) 37 British Ybk Intl L 35.
10 Dirk Looschelders and Dirk Olzen ‘§ 242 BGB’ in Julius von Staudinger, Kommentar
zum Bürgerlichen Gesetzbuch Buch 2, (Sellier 2009) paras 211, 82.
11 Looschelders and Olzen (n 10) para 102; Claudia Schubert and Günther H Roth ‘§
242 BGB’ in Franz Jürgen Säcker, Roland Rixecker and Hartmut Oetker (eds),
Münchener Kommentar zum Bürgerlichen Gesetzbuch (6th edn, CH Beck 2012 ) para 14
f.
12 BGHZ 30, 140, 140; Schubert and Roth (n 11) para 235; Looschelders and Olzen (n
10) para 214.
13 BGHZ 50, 191, 196; Schubert and Roth (n 11) para 319; Looschelders and Olzen (n
10) para 286.
14 BGHZ 105, 290, 298; Schubert and Roth (n 11) para 329; Looschelders and Olzen (n
10) para 302.
15 BVerfGE 7, 198.
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UCL Journal of Law and Jurisprudence
43
clauses of law.16 It thus made § 242 BGB receptive to an objective valuebased
paradigm, 17 which demonstrates the judicial activism in the
application of good faith.
In France, good faith (bonne foi) is codified in Art. 1134(3) of the Civil
Code (Code civil), which states that: "[Les conventions] doivent être
exécutées de bonne foi".18 Even though bonne foi does not have the same
elevated standing as in the BGB in Germany, the concept has recently
acquired increasing importance. 19 Indeed, French jurisprudence has
developed alternative means of achieving similar results by resorting to
other, related concepts, such as waiver and abus de droit20 - concepts that
fall under § 242 in Germany. The reason why the ‘general clause’ idea has
not been embraced can be explained by the fact that French law, similarly
to English law, placed the creation of new cases of good faith into the
hands of the legislature, rather than the judiciary.21
Turning now to English law, although Lord Mansfield stated in 1766
that good faith is "the governing principle... applicable to all contracts and
dealings,"22 there is no general obligation to act in good faith. No single
statutory provision or rule of English law clearly formulates the principle
of good faith. Rather, the common law has developed what has been
described as ‘piecemeal solutions’.23 Instead of one overarching provision,
16 Achim Seifert, ‘Die Horizontale Wirkung von Grundrechten. Europarechtliche und
rechtsvergleichende Überlegungen (2011) 14 Europäische Zeitschrift für Wirtschaftsrecht
696 f.
17 Hans D Jarass, ‘Die Grundrechte: Abwehrrechte und objektive Grundsatznormen.
Objektive Grundrechtsgehalte‘ in Peter Badura and Horst Dreier (eds) Festschrift 50
Jahre BVerfG (Vol 2 Mohr Siebeck, 2001) 35 ff; Thomas Ritter, ‘Neue Werteordnung
für die Gesetzesauslegung durch den Lissabon-Vertrag (2010) Neue Juristische
Wochenschrift 1110, 1114.
18 “[Agreements] must be performed in good faith” (own translation). Cf generally:
François Terré, Philippe Simler and Yves Lequette, Droit Civil: Les obligations, (9th edn,
Dalloz 2005) para 439 f.
19 Terré, Simler and Lequette (n 18) para 43 ff; Peter Jung, ‘Die Generalklausel im
deutschen und französischen Vertragsrecht‘ in Christian Baldus and Peter-Christian
Müller-Graff (eds), Die Generalklausel im Vertragsrecht: Zur Leistungsfähigkeit der
deutschen Wissenschaft aus romanischer Perspektive, (Sellier 2006) 37, 53; Reinhard
Zimmermann/ Simon Whittaker, ‘Good Faith in European contract law: surveying the
legal landscape‘ in Reinhard Zimmermann and Simon Whittaker (eds), Good Faith in
European Contract Law, (CUP 2000) 39.
20 Looschelders and Olzen (n 10) para 1127 f.
21M Filippo Ranieri, ‘Bonne foi et exercise de droit‘ (1998) 50 RIDC 1058.
22 Carter v Boehm [1766] 97 ER (KB) 1162, cited by Tetley (n 3) 567; cf Patrick S
Atiyah, The Rise and Fall of Freedom of Contract, (Clarendon Press, 1979) 168.
23 Interfoto Pictures Ltd v Stiletto Visual Programmes [1989] QB 326, 439.
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Good Faith in International Law
44
there are several legal mechanisms that can deal with instances of
perceived unfairness; these include misrepresentation and mistake, undue
influence, estoppel24 and so on, as well as developments in equity.25
Lord Denning attempted (albeit obiter), in Lloyds Bank v Bundy, the
introduction of a general doctrine of unequal bargaining power.26 However,
this approach was rejected by the House of Lords in National Westminster
v Morgan, where it was held that Denning's approach was neither justified,
nor necessary, nor even desirable.27 The reasons for the reluctance of
English courts to develop and apply a standard of good faith in contract law
have been described as being threefold: firstly, the English courts adhere to
the strongly individualistic nature of bargaining for one's own end, which
necessitates the shunning of elements of social justice.28 Secondly, the
courts have been reluctant to introduce a general principle of fairness. The
competence to make such an encroachment into the law of contract is
believed to lie with Parliament.29 The favoured piecemeal approach can be
applied case-by-case, in order to select instances of manifest injuriousness
and apply corrective means on an individual basis.30 Lastly, the elements of
predictability and stability of the common law are seen as factors for the
rejection of a general clause of good faith: as such a clause would be
difficult to define, it would risk being too ambiguous to be enforced.31
24 Stephen Smith, Contract Theory, (OUP 2004) 366 f (misrepresentation and mistake),
348 (undue influence), 234 (estoppel); Guenter Treitel, The Law of Contract, (Edwin Peel
ed, 12th edn, Sweet & Maxwell 2007) 310 f (mistake), 361 (misrepresentation), 446
(undue influence), 146 (estoppel).
25 For aspects of equity in international law, see Hugh Thirlway, ‘The Law and
Procedure of the International Court of Justice 1960- 1989: Part One (1989) 59 British
Ybk Intl L 49 f; very instructive: Vaughan Lowe, ‘The Role of Equity in International
Law’ (1988) 12 Aust Ybk Intl L 54.
26 Lloyds Bank v Bundy [1974] QB 326, 339-340 (CA) (per L Denning MR).
27 National Westminster Bank Plc v Morgan [1985] AC 686, 692, 707 (HL).
28 Maud Piers, ‘Good Faith in English Law – Could a Rule become a Principle?’ (2011)
26 Tul Eur & Civ L F 123, 130.
29 Harbutts 'Plasticine' Ltd v Wayne Tank Pump Co Ltd [1970] 1 QB 447 (CA); Photo
Production Ltd v Securicor Transport Ltd [1980] AC 827 (HL); Reinhard Zimmermann
and Simon Whittaker, ‘Coming to terms with good faith" in Zimmermann and
Whittaker (n 19) 688, 690. Parliament did intervene with the Unfair Contract Terms Act
1977.
30 Luigi Russi, ‘Substance or mere Technique: A précis on Good Faith performance in
England, France and Germany’ (2009) 5 Hanse L Rev 21, 28.
31 Cf Walford v Miles [1992] 2 AC 128, 138 (HL); Ewan McEndrick, ‘The Meaning of
Good Faith’ in Mads Andenas, Silvia Diaz Alabart, Basil Markesinis, Hans Micklitz
and Nello Pasquini (eds), Private Law Beyond National Systems Liber Amicorum Guido
Alpha (BICL, 2007) 687, 691; Hugh Collins, Law of Contract, (4th edn, CUP 2003) 181;
Looschelders and Olzen (n 10) para 1149, 1150.
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UCL Journal of Law and Jurisprudence
45
3. Importing municipal law into the Law of Nations "lock, stock and
barrel"?
When international courts and tribunals look to general principles of law,
the private law institutions are not imported into international law ‘lock,
stock, and barrel’.32 Rather, in the words of Judge McNair, "the duty of
international tribunals is to regard any features or terminology which are
reminiscent of the rules and institutions of private law as an indication of
policy and principles rather than as directly importing these rules and
institutions."33 Accordingly, two levels have to be distinguished at which
good faith has a legal value. Even though the principle of good faith has a
well-defined municipal law counterpart, the international legal system has
not imported these in its totality. Rather, a nuanced approach has been
favoured.
The International Court of Justice (ICJ) has been reticent to turn directly
to municipal law, in order to determine aspects of good faith.34 Yet, the
general principles of municipal law require some mechanism in order to be
‘elevated’ into international law.35 Since an undifferentiated transmutation
of municipal into international law is not applied, a different method has to
be discerned. The method favoured by the Court seems to be a careful
process of analogy. The municipal legal systems are examined in order to
find a general legal rule that can be defined and stated in a 'pure form',
which is achieved by making it widely applicable to the special interests
that States have in their legal relations. By replacing the parties with
algebraic forms, i.e. x and y, which are then replaced with State A and State
B, the distilled rule is found and applied; if the general principle can still be
applied in congruity with the aspects that are specific to international law,
32 For a different phrasing of the question, cf RD Kierney, ‘Sources of Law and the ICJ’
in Leo Gross (ed), The Future of the International Court of Justice Vol. 2, (Oceana
1976) 701: "But wherein lies the magic of this philosophers stone that transmutes
municipal into international law?”.
33 International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 148
(Sep. Op. McNair); cf Hersch Lauterpacht, Private Law Sources and Analogies of
International Law, (Longmans 1927) 83.
34 Hermann Mosler, ‘To What Extent Does the Variety of Legal Systems of the World
influence the Application of General Principles of Law?’ in TMC Asser Institute (eds)
International Law and the Grotian Heritage (TMC Asser Instituut 1985) 180.
35 Cf Hugh Thirlway, ‘The Law and Procedure of the ICJ: Part Two’ (1990) 62 British
Ybk Intl L 114 f.
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Good Faith in International Law
46
then the general principle is applied in the given case.36
4. Differences between national and international conceptions of good
faith
As municipal legal systems display different means of applying good faith,
no single method can be identified.37 International law differs markedly
from municipal law through its lack of comparable norm-creating and
enforcement institutions. The system of international law is based on a
voluntarist and co-operative character, best exemplified by the acceptance,
for the most part, of customary international law; i.e. the law created and
observed by the States themselves.38
There is, by and large, no central legislative body in international law.39
Without a central body to legislate in this area, an all-pervading obligation
of good faith in international law is difficult to establish.40 The ICJ's case
law is defined enough to act as a central source of guidance in applying the
principle of good faith, but it is not competent to act as a law-generating
institution.41 Indeed, it is questionable whether the international judiciary,
made up of courts and tribunals, is best placed to serve an active role in the
creation of good faith casuistry. The differing attitudes to the desirability of
judicial activism in municipal legal systems would be greatly amplified in
international law.
In municipal law, good faith acts to balance out unequal sides of a
bargain.42 In international law this asymmetrical power balance, whether
real or perceived, is absent. The principle of sovereign equality of nations
dictates that there is no 'weak party' to a bargain in international law: by
36 South-West Africa Cases (Liberia v South Africa) (Second Phase: Judgments) [1966]
ICJ Rep 250, paras 296-297 (Diss Op Tanaka); Thirlway (n 35) 118. The methodology
of the court is slightly controversial and cannot be fully examined here; for example
Akehurst makes the point that it would be more efficacious only to apply the general
principles that apply between the parties, rather than those of all civilised nations;
Michael Akehurst, ‘Equity and General Principles of Law’ (1976) 25 ICLQ 801, 824.
37Cf O' Connor (n 5) 41.
38 Cf Crawford (n 1) 16.
39 Robert Jennings and Arthur Watts, Oppenheim’s International Law Vol 1, (9th edn,
Longman 1992) 114; however, a trend is emerging whereby the UN Security Council is
seen to be acting legislatively, cf Stefan Talmon, ‘The Security Council as World
Legislature’ (2005) 99 AJIL 175.
40 See generally Yuval Shany, ‘Towards a General Margin of Appreciation Doctrine in
International Law?’(2005) 16 EJIL 907, 920 f.
41 Cf Thirlway (n 25) 58 (on the ICJ's reluctance to be seen as "legislating").
42 Looschelders and Olzen (n 10) para 147; Klaus Adomeit, ‘Die gestörte
Vertragsparität- Ein Trugbild‘ (1994) 38 Neue Juristische Wochenschrift 2467, 2468.
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"entering the Family of Nations a State comes as an equal to equals".43 This
does not necessarily mean that States are completely equal as regards
power, territory, and the like. But as States, they are legally equal, at least
in principle, whatever differences between them may otherwise exist.44 As
a result, even though sovereign equality can still serve to protect weaker
States from the hegemony of stronger States,45 the fundamental conception
of good faith as a means of corrective justice is not directly applicable to
the relations between States.
B. SPECIFIC ASPECTS OF GOOD FAITH IN INTERNATIONAL LAW
Like municipal law, good faith in international law has been subject to
concretisations. In order for the international legal order to be predictable
and consistent, scholars have examined and clarified the doctrinal aspects
of these concretisations, while judicial bodies have applied them to factual
scenarios. Though far from conclusive, four main concretisations are
examined here, namely the maxim pacta sunt servanda, abuse of rights and
discretion, estoppel and acquiescence, and negotiations in good faith. These
have been subject to important judicial decisions and are recognised as
sources of international law.
1. Pacta sunt servanda
The maxim ‘pacta sunt servanda’ has been said to relate solely to the law
of treaties.46 However, based on good faith, the ICJ has found that that a
State can be bound by a unilateral act alone: a public statement made by a
State, with an intention to be bound, can create legal obligations, which
could otherwise only be created through a treaty.
The rationale behind the maxim is seemingly self-evident: a need by the
international community for a system that can ensure international order
43Hersch Lauterpacht, Oppenheim's International Law, (8th edn, Longmans 1955) 263;
Crawford (n 1) 449.
44 Jennings and Watts (n 39) 339; this is described as the ‘orthodoxy’ by Gerry Simpson,
Great Powers and Outlaw States, (CUP 2004) 26 f.
45 Juliane Kokott, ‘States, Sovereign Equality’ in Max Planck Encyclopaedia of Public
International Law (MPEPIL) (April 2011, online edn), para 43 ff, available at
www.mpepil.com.
46 Anthony Aust, ‘Pacta sunt Servanda’ in MPEPIL (February 2007, online edn) para 2,
available at www.mpepil.com; Richard Hyland, ‘Pacta Sunt Servanda: A Meditation’
(1993) 34 Va J Intl L 405, 406. The maxim translates as “binding agreements must be
kept”.
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and prevent arbitrary behaviour and chaos.47 In the Nuclear Tests Case, the
ICJ held that:
"One of the basic principles governing the creation and
performance of legal obligations... is good faith. Trust and
confidence are inherent in international cooperation, in
particular in an age when this cooperation in many fields is
becoming increasingly essential. Just as the very rule of pacta
sunt servanda in the law of treaties is based on good faith, so
also is the binding character of an international obligation.
Thus interested States may take cognisance of unilateral
declarations and place confidence in them, and are entitled to
require that the obligation thus created be respected."48
The French Government declared that no more nuclear tests would be
conducted in the Pacific. In this case the Court gave these statements by a
State (the declaring State) the same legal effects that can usually only be
attributed to a binding synallagmatic treaty towards the receiving State. The
Court found that if some prerequisites were met, then a unilateral
declaration can bind a State; these are: the context of the statement, the
intention of the declaring State, no necessary acceptance by the receiving
State or observance of formal requirements.49 For present purposes, the
context and intent are most important.
The statement's context is important: it must be made publicly; a
receiving State must be able to take cognisance of the declaration. The
most important aspect of the binding nature is the (subjective) intention of
the declaring State, as this distinguishes the statement from other, nonbinding
statements. However, the (objective) trust and confidence that is
placed in the statement by the receiving State is paramount to the creation
of an obligation; here good faith acts as the norm regulating the legal effect
of the act.50 The Court’s reasoning shows that good faith can be a basis for
47 Igor Ivanovich Lukashuk, ‘The Principle Pacta Sunt Servanda and the Nature of
Obligation under International Law’ (83) AJIL 1989 513.
48 Nuclear Tests Case (n 2) para 46 (emphasis added).
49 The element of a form requirement is negligible, as international law imposes no
strict requirements, therefore the statement may be made orally or in writing; cf Nuclear
Tests Case (n 2) para 45. The fact that no formal acceptance is necessary seems to
demarcate the unilateral statement from a formal agreement, Nuclear Tests Case (n 2)
paras 43-50; cf Thirlway (n 25) 10-17; Camille Goodman, ‘Acta Sunt Servanda? A
Regime for Regulating the Unilateral Acts of States at International Law’ (2006) 25
Aust Ybk Intl L 43, 53-59.
50 Goodman (n 49) 57; Martti Koskenniemi, From Apology to Utopia, (CUP 1989) 308.
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legal obligations in the same way as the maxim pacta sunt servanda is for
treaty obligations.51 However, some elements and the terminology of the
case are contentious and there is no general rule to determine which
unilateral acts give rise to legal rights and duties.52
2. Abuse of rights and abuse of discretion
Possibly the most contentious aspect of good faith in international law is
the prohibition on the abuse of rights. The aspect of abuse of right and the
arbitrary exercise of a right are closely related and not clearly
distinguishable. An abuse of right is said to occur when a State exercises its
rights in such a way as to encroach on the rights of another State, and that
the exercise “... is unreasonable, and pursued in an arbitrary manner,
without due consideration of the legitimate expectations of the other
State.”53 The basis that prohibits this behaviour is good faith. If a State is
able to exercise discretion, the arbitrary and unreasonable exercise of this
discretion is said to amount to an abuse of rights,54 which a State can be
held internationally responsible for.55 Abuse of rights may take place in
three distinct sets of circumstances:56
(a) a State exercises its right in such a way as to hinder another
State enjoying its own rights;
(b) a State exercises a right for an end which it was not
intended for (improper purposes);
(c) arbitrary exercise of a right causing injury to another party.
As a result, the concept of abuse of right is often discussed in
conjunction with the element of discretion that a State has in the exercise of
51 Cf Vaughan Lowe, International Law, (OUP 2007) 74.
52 Jennings and Watts (n 39) 1190; The ILC has undertaken the task of examining the
unilateral acts of state as a topic of appropriate for codification (cf ILC, ‘Yearbook of the
International Law Commission Vol II Part 2 (1996) A/CN.4/SER.A/1996/add.1 (Part 2)
141); Thirlway is critical of the Court's use of terminology here (cf Thirlway (n 25) 10).
In his opinion the ICJ wanted to enunciate the principle to the effect that the giving of
consent (consent to be bound) creates legal obligations. It is submitted, however, that,
even if this were the case, the Court made itself clear in assigning trust and confidence a
pronounced role in its judgment.
53 Cf Lauterpacht (n 43) 345.
54 Tariq Hassan, ‘Good Faith in Treaty Formation’ (1980) 21 Va J Intl L 448; Gerald
Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’ (1953) 30
British Ybk Intl L 1, 53.
55 Cf Trail Smelter Arbitration (United States of America v Canada) (1938/ 1941) III
RIAA 1904, 1965; Cheng (n 5) 130.
56 Alexandre Kiss, ‘Abuse of Rights’ in MPEPIL (December 2006, online edn) para 4 f,
available at www.mpepil.com.
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its rights.57 Subsets (b) and (c) above borrow aspects from municipal
administrative law,58 and there is some academic dispute as to whether they
can be transmuted into international law.59 It is especially contentious
whether international law has a comparable level of subordination 60
between States. This would be a necessary prerequisite for the application
of the ICJ’s careful analogy of municipal administrative principles.61 For
the careful analogous application of aspects of municipal law, based on the
methodology of the ICJ, a level of subordination would need to be evident,
i.e. a State would have to be in a position to be able to exercise rights over
another State without prior consent.
The discretion left to States in the exercise of their rights is very
wide.62 In order to meet the threshold of an abuse of that right an element
of bad faith is necessary. This is difficult to prove in front of a judicial
body,63 as bad faith is never to be presumed but, rather, always has to be
proven.64 As a whole, the Courts have not been forthcoming in holding
States responsible for acts of abuse of right. However, two cases
demonstrate how elements of abuse of rights can have an impact on the
relations between States at the level of international law.
i. Admission of a State to the UN
In its Advisory Opinion on whether States were allowed to vote on the
57 Michael Byers, ‘Abuse of Rights: An Old Principle, A New Age’ (2002) 47 McGill L
J 389, 423; GDS Taylor, ‘Content and Rule against Abuse of Rights in International
Law’ (1972) 46 British Ybk Intl L 323, 324 ff.
58 For example: "détournement de pouvoir in France (see BO Iluyomade, ‘Abuse of
Right in International Law’ (1975) 16 Harv Intl L J 47, 51), Willkürverbot in Germany
(for the term cf Gerhard Leibholz, ‘Ermessensmißbrauch im Völkerrecht’ (1929) 1
ZäoRV 78 ff); see also Taylor (n 57) 336 f, 342 f for English administrative law.
59 Cf part 0.
60 Cf Rupert Klaus Neuhaus, Rechtsmißbrauchsverbot im heutigen Völkerrecht, (Duncker
& Humblot 1984) 86. Subordination is here meant to denote a vertical power balance of
one State over another, as opposed to the horizontal balance dogmatically rooted in the
sovereign equality of States.
61 Cf Neuhaus (n 60) 88-90; Leibholz (n 58) 80-82.
62 Cheng (n 5) 132; for a discussion of whether a general margin of appreciation is
developing, see Shany (n 40) 931 f, who interprets the ICJ’s jurisprudence as rejecting a
margin of appreciation.
63 Nevertheless, the abuse of rights has been advanced as a basis of claim in the
Barcelona Traction Case, see Case concerning the Barcelona Traction, Light and
Power Company, Limited (Belgium v Spain) (Judgment: Second Phase) [1970] ICJ Rep
17; cf Iluyomade (n 58) 70 f.
64 Case concerning certain German Interests in Polish Upper Silesia (Germany v
Poland) (Merits) [1926] PCIJ Rep 30; Virally (n 2) 132.
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admission of a new Member State to the UN, the Court was faced with Art.
4 (1) UN Charter. This provision laid out the prerequisites which a State
must meet in order to be admitted to the UN. The question was whether the
list of five conditions set out in Art. 4 (1) UN Charter were conclusive, or
whether other (political) considerations could be taken into account. The
conditions are that the candidate must be a State, which is peace-loving,
accepts the obligations of the Charter, and is both able and willing to carry
out these obligations.65
The Court concluded that no other conditions could be taken into
account.66 The interesting aspect to note here is that the Court stated that,
while discretion could be used by the voting State, it was curtailed by the
limits set by Art. 4 (1) UN Charter.67 The dissenting judges agreed to the
extent that the discretion was curtailed, but by the object and purpose of the
UN Charter generally. For the evaluation of the relevance of good faith in
determinations of this kind, it has to be noted that the judges all agreed that
the discretion inherent in the right to vote must be guided by considerations
of justice68 and must be "exercised in good faith",69 a duty that is also
codified in Art. 2 (2) of the Charter.
ii. Environmental cases
Abuse of rights can also become particularly relevant when environmental
resources are shared.70 Two cases highlight how an abuse of rights can
arise between neighbouring States. The Trail Smelter Arbitration dealt with
the fumes and air pollution produced by a Canadian smelter situated on the
border of the US state of Washington.71 In the Pulp Mills Case, the ICJ had
to decide a case brought by Argentina against Uruguay. Here a pulp mill
had been built on the banks of the shared Uruguay River, which created
65 Conditions of Admission of a State to Membership in the United Nations (Advisory
Opinion) [1948] ICJ Rep 62.
66 Ibid para 65.
67 See also Taylor (n 57) 343.
68 Conditions of Admission (n 65) para 71 (Diss Op Judge Alvarez).
69 Ibid para 63.
70 Cf Kiss (n 56) para 4; this is based on the maxim sic utere tuo ut alienum non laedas or
"use your property so as not to harm another"; Lauterpacht (n 43) 346.
71 Trail Smelter Arbitration (n 55) 1905-1982; see Russell A Miller, ‘Trail Smelter
Arbitration’ in MPEPIL (May 2007, online edn) para 2 f, available at www.mpepil.com;
cf Lowe (n 51) 240.
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pollution and affected Argentina's use of the river.72 In both cases a State
had built, or was planning to build, an industrial plant (the utilising State)
that was going to cause some measure of environmental damage to
neighbouring territory. Both developments were subject to international
treaties outlining the obligations that the States had in relation to the
undertaking.
The territorial sovereignty of a State allows for the exploitation of
natural resources. However, this right is limited when the rights of another
State are at stake. The cases have both focussed on the balancing act to be
conducted by the utilising State. Cheng calls this the “interdependence” of
rights: "every right is subject to such limitations as are necessary to render
it compatible both with a party's contractual obligations and with his
obligations under the general law".73 If the utilising State uses its resources
in a way that is suited to deprive the neighbouring State of its own right, an
abuse of right by the utilising State may occur. However, an abuse of rights
would require some element of positive bad faith, e.g. when the damage
caused by the utilising State is greater than its own gain.74 It is submitted,
therefore, that there is a duty based on good faith, but under the threshold
of abuse of rights, to the extent that a State may only use an absolute right
in a way that does not cause damage to another. Both judgments also dealt
extensively with the duty to negotiate the effects of the industrial
production, an aspect of good faith that will be examined below.75
iii. Criticisms by Schwarzenberger/ Brown and Lowe
The broadness of the definition and the difficulty in applying abuse of right
has brought it substantial criticism as a general principle. 76
Schwarzenberger and Brown have stated that it is difficult to establish what
constitutes an abuse of rights as opposed to a harsh, yet justified use of a
right.77 The determination is necessarily one that is subjective, along with
being case-dependent, so that there is no place for the concept as a general
72 Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits)
[2010] ICJ Rep 18, para 14; Paula Maria Vernet, ‘Pulp Mills on the River Uruguay’ in
MPEPIL (July 2010, online edn) para 7 f, available at www.mpepil.com.
73 Cheng (n 5) 130.
74 Kiss (n 56) para 4.
75 See also: Cameron Hutchison, ‘Coming in from the Shadow of the Law: The Use of
Law by States to Negotiate International Environmental Disputes in Good Faith (2005)
43 Can Ybk Intl L 101, 105 ff.
76 Neuhaus (n 60) 180.
77 Schwarzenberger and Brown (n 5) 84.
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principle of law.78 However, they go on to state that good faith has its place
in treaty relations between States.79 On the other hand, Lowe states that
concepts like abuse of rights are interstitial rights; as such they do not have
an independent normative function, but are to be seen as concomitant with
the obligations that they underpin.80 Even if abuse of right is not in itself a
general principle, it can act as a yardstick for the extent of rights and
obligations, especially in relation to other States that may be affected as a
result. Finally, the modern jurisprudence of the ICJ suggests that the Court
will be slow to assume an abuse of rights, unless the evidence is explicitly
clear, and that it will favour the interpretation of the parties’ acts or
agreements, in order to determine the scope of the right or obligation,
before reaching such a conclusion.81
Abuse of rights still remains relatively loosely defined and needs to be
"pruned of its exuberances",82 if it is to become a specific rule of customary
international law. A lack of consistent State practice means it is not likely a
rule of customary international law. However, it can be helpful in
determining the use and scope of rights in situations of interdependence.
The doctrinal groundwork, particularly in relation to the uses of abuse of
rights in municipal law, can work to shed some light on how to approach
this conflict between States in international law.
3. Estoppel and acquiescence
Further aspects of good faith in international law, which have fairly well
established private law counterparts, are the principles of estoppel and
acquiescence. A considerable weight of authority supports the view that
estoppel is a general principle of international law, resting on principles of
good faith and consistency.83 Even though private law, particularly the
78 So too, Neuhaus (n 60) 183.
79 Schwarzenberger and Brown (n 5) 118.
80 Vaughan Lowe, ‘The Politics of Law-Making: Are the Method and Character of
Norm Creation Changing’ in Michael Byers (ed) The Role of Law in International
Politics: Essays in international Relations and international Law (OUP 2000) 207, 212-
221.
81 Case concerning Military and Paramilitary activities in and against Nicaragua
(Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 para 127; Case
concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya) (Merits) [1982]
ICJ Rep 13 para 42; Thirlway (n 25) 28.
82 Georg Schwarzenberger, International Law and Order, (Stevens 1971) 88.
83 Crawford (n 1) 421; IC MacGibbon, ‘Estoppel in International Law’ (1958) 7 ICLQ
468, 471; ILC, Yearbook of the International Law Commission Vol 2 (1953)
A/CN.4/63 (per SR Lauterpacht) 144.
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common law, has developed a very multi-faceted approach with variations
of estoppel (promissory, equitable, by silence etc.), international law also
has its own (albeit more basic) conception. Under the principle of estoppel,
a party is not permitted to take up a legal position that is in contradiction
with its own previous representations or conduct, when another party has
been led to assume obligations towards, or attribute rights to the former
party in reliance upon such representations or conduct.84
Even though municipal law, particularly contract law, has many
different formulations of this behaviour (such as the notion of venire contra
factum proprium85 ), in international law the remit is broader. 86 The
legitimate reliance of one State (State A) on the conduct of another (State
B) precludes this State from acting contrary to its representations. If State
B then acts contrary to this representation, it is acting without good faith
and therefore in contravention of international law. The principle helps to
safeguard a State's legitimate reliance on the actions of other States, in the
sense that faith and confidence are protected when they are placed
reasonably on the actions of another. This constitutes one of the most
important aspects of good faith.87
A related, yet distinguishable, aspect is acquiescence, which can be
described as the inaction of a State, which is faced with a situation
constituting a threat to, or infringement of, its rights.88 The two defining
differences between estoppel and acquiescence are the components of time
and reliance: estoppel hinges on previous presentations; while acquiescence
is that passivity in relation to a right of another State to the extent that good
84 ILC, Yearbook of the International Law Commission Vol 2 (1963).
A/CN.4/SER.A/1963/ADD.1 (per SR Waldock) 40; cf for the aspect of reliance:
Thomas M Franck, ‘Fairness in the International Legal and Institutional System’ (1993)
240 Receuil des Cour 66; MacGibbon (n 83) 468; Litvinoff (n 8) 1664. It is in this
regard very similar in nature to the Roman law principle of "non licet venire contra
factum proprium" and "allegans contraria non audiendus est"(cf Thomas Cottier and
Jörg Paul Müller, ‘Estoppel’ in MPEPIL (April 2007, online edn) para 9, available at
www.mpepil.com.
85 Cf 0.
86 Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962]
ICJ Rep 39 f, (Sep Op Alfaro).
87 Cheng (n 5) 144; DW Bowett, ‘Estoppel before International Tribunals and its Relation
to Acquiescence’ (1957) 33 British Ybk Intl L 176, 193 f.
88 IC MacGibbon, ‘The Scope of Acquiescence in International Law’ (1954) 31 British
Ybk Intl L 143; in German this would be called "beredtes (oder qualifiziertes)
Schweigen" cf BGH NJW 1951, 711; Jan Busche ‘§ 147 BGB’ in Franz Jürgen Säcker,
Roland Rixecker and Hartmut Oetker (eds), Münchener Kommentar zum Bürgerlichen
Gesetzbuch, (5th edn, CH Beck 2010 ) para 7.
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faith affords the passivity the character of consent.89 In the Gulf of Maine
Case the ICJ acknowledged the legal effect of a "qualified silence" when it
stated that it is "equivalent to tacit recognition manifested by unilateral
conduct which the other party may interpret as consent".90
One of the inherent difficulties of acquiescence is the establishment
of the true intent of the silent state, which is inevitably a legal fiction.91
Showing that a State meant to say something (subjective aspect), while
remaining silent (objective aspect) has considerable procedural difficulties.
The fiction that a State has indeed acquiesced to an infringement of its
rights can only be justified if due regard is had to the reasonable trust that
the other State had in the subjective value of the silence.92
The concepts of estoppel and acquiescence have featured strongly in
border and land title disputes. 93 In this context, the ground-breaking
decision was the Temple of Preah Vihear Case. The Temple is an
archaeologically and artistically important sanctuary, situated on the
Dangrek Mountains between Cambodia and Thailand. In 1904 a Treaty had
been signed by France (on behalf of its protectorate, present day
Cambodia) with Siam (now Thailand). This called for the delimitation of
the area to be performed by a mixed Commission, which produced its maps
in 1907 and posited the Temple in Cambodian territory. However, Thailand
took the view that it possessed the area surrounding the Temple and took
control of the site. Cambodia's diplomatic efforts to regain the territory
failed and the case was referred to the ICJ.
The Court relied on acquiescence and estoppel,94 rather than looking
to the cultural, historic, or religious factors, the ICJ deemed that Thailand
should have objected to the maps in a timely manner. Thailand entered no
89 Jörg Paul Müller, Vertrauensschutz im Völkerrecht, (Carl Heymanns 1971) 38 f; cf
MacGibbon (n 88) 143 f; Nuno Sergio Marques Antunes, ‘Acquiescence‘ in MPEPIL
(September 2006, online edn) para 19, available at www.mpepil.com; cf Franck (n 84)
68.
90 Case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine
Area (Canada v United States of America) (Merits) [1984] ICJ Rep 305.
91 Sophie Kopela, ‘The Legal Value of Silence as State Conduct in the Jurisprudence of
International Tribunals’ (2010) 29 Aust Ybk Intl L 101.
92 A related aspect to acquiescence is that of extinctive prescription; here, a party can lose
its rights by not pursuing them in a timely manner. However, a finding of good faith is not
strictly necessary and it functions mainly as a procedural right; cf: Müller (n 89) 75;
Jennings and Watts (n 39) 705 f; BE King, ‘Prescription in Claims in International Law’
(1934) 15 British Ybk Intl L 82, 94; Jan Wouters and Sten Verhoeven, ‘Prescription’ in
MPEPIL (November 2008, online edn) para 8, available at www.mpepil.com.
93 Müller (n 89) 39 f.
94 Case concerning the Temple of Preah Vihear (n 86) 27 f.
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reservations to the original Treaty disputing the accuracy of the
Commission's maps. Further Friendship Treaty negotiations (in 1925 and
1937) and a Franco-Siamese reconciliation Committee (set up in 1947) also
ended with agreements being signed, yet with no reservations entered in
respect of the original maps. Coupled with the objective of creating
stability and finality95 through the demarcation of borders, a legitimate
reliance by Cambodia was implied.96 Thailand was therefore estopped from
raising any objections to the original 1907 maps at the present time, having
not made declarations to that effect before. The primary foundation of the
principle of estoppel is, as Judge Alfaro noted, "the good faith that must
prevail in international relations, inasmuch as consistency of conduct or
opinion on the part of the State to the prejudice of another is incompatible
with good faith."97
Acquiescence and estoppel ascribe substantial legal consequences to the
inactivity of a State; as such, these institutions should be restrictively
interpreted and applied. They find their justification in the reasonable
reliance of one State (based on good faith) on the representation or conduct
of another.98 A State has the ability to make declarations to preserve its
rights and preclude the effects of tacit consent,99 placing the onus of action
on the State that has allowed the reliance and trust.
4. Negotiations in good faith
When States negotiate it is not enough for representatives to meet and
discuss. Good faith negotiations require the parties to demonstrate
‘reasonable regard’ for the other's rights and interests. Further, the parties
must, with a view to end the dispute amicably, aim for a clear result; in
short: the negotiations must be meaningful.100 Unjustifiably breaking off
the negotiations, creating abnormal delays, disregarding the agreed
procedures, or systematic refusal to take into consideration adverse
proposals or interests can amount to breaches of good faith.101 Even when
95 Cf MacGibbon (n 83) 468 f.
96 Case concerning the Temple of Preah Vihear (n 86) 34; see for the aspect of reliance
of the conduct, Nuclear Tests Case (n 2) para 46.
97 Case concerning the Temple of Preah Vihear (n 86) 42 (Sep Op Alfaro).
98 Marques Antunes (n 89) para 24; MacGibbon (n 83) 507.
99 See generally on the standards for these actions or ‘pleas’, MacGibbon (n 88) 172 ff.
100 O'Connor (n 5) 95, 96; Shaw (n 1) 1017.
101 Lac Lanoux Arbitration (France v Spain) (Award) [1957] XII RIAA 281; also John
G Laylin and Rinaldo L Binachi, ‘The Role of Adjudication in International River
Disputes: The Lac Lanoux Case’ (1959) 53 AJIL 30.
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there is only a small chance that the negotiations will end in success, the
parties are bound by a duty to endeavour to end the dispute.102 However,
there appears to be no general rule of international law requiring the
negotiations to be exhausted before a judicial settlement may be sought.103
So far, the ICJ has only developed the obligation to negotiate in good faith
in relation to legal rights and has not expanded the notion to any acts
between States that do not relate to a legal obligation.104
In 1971 Iceland unilaterally announced that it was extending its
exclusive fishing zone to 50 nautical miles, thereby terminating agreements
it had with Germany and the UK. A dispute ensued before the ICJ. On the
merits the Court stressed the need to reconcile the disputed fishing rights
through negotiations. The Court also issued the parties with the objectives,
which the negotiations should cover, e.g. delimiting the fishing rights,
catch-limitations, share allocation and restrictions and required that they
should be conducted in good faith. 105 This judgment builds on the
obligation for the negotiations to be ‘meaningful’, as the Court had noted in
an earlier case.106
C. THE INTERRELATION OF GOOD FAITH WITH SOVEREIGNTY
Historically the principle of internal sovereignty has been understood as the
supreme authority, or ultimate power, of a State within its territory,107 while
the external sovereignty is the dimension that pertains to the international
rights and duties of a State in relation to other States.108 In 1927, the
Permanent Court of International Justice (PCIJ) developed the Lotus
102 JG Merrills, International Dispute Settlement, (5th edn, CUP 2011) 12.
103 John Collier and Vaughan Lowe, Settlement of Disputes in International Law, (OUP
1999) 21.
104 Judge Padilla Nervo called it an obligation tracto continuo: never ends and is
potentially present in all relations and dealings between States, North Sea Continental
Shelf Cases (Germany v Denmark/ Netherlands) (Merits) [1969] ICJ Rep 3, para 92 (Sep
Op Padilla Nervo).
105 Fisheries Jurisdiction Case (United Kingdom v Iceland) (Merits) [1974] ICJ Rep 3,
73 f.
106 North Sea Continental Shelf Cases (n 104) para 87.
107 Customs Regime between Germany and Austria (Advisory Opinion) [1931] PCIJ Rep
Series A/B 57 (Ind Op Anzilotti); Samantha Besson, ‘Sovereignty’ in MPEPIL (April
2011, online edn) para 1, available at www.mpepil.com; Lowe (n 51) 172.
108 The Island of Palmas case (United States of America v Netherlands) (Award) [1928]
II RIAA 838 f (Op. Huber); Besson (n 107) para 70; Ronald Brand, ‘Sovereignty: The
State, the Individual, and the International Legal System in the Twenty First Century’
(2001) 25 Hastings Intl & Comp L Rev 279, 284.
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Good Faith in International Law
58
principle:109 based on its sovereignty, a State is free to act110 as long as this
behaviour is not prohibited by an explicit rule of international law.111
Whether this sovereignty is understood as limited or absolute, there is
consensus that States must consent to rules that limit them in exercising
their sovereignty.112
However, applying good faith elements to a State's conduct has a
limiting effect on its external sovereignty. The requirement of acting in
good faith limits the actions of a State, without the requirement of an
explicit rule in international law, as envisaged by the Lotus principle.
Accordingly, a state might have its supreme authority or sovereignty
limited when aspects of good faith come into play, and these aspects
necessitate behaviour that contravenes what a state might otherwise want to
do.113 The principle of good faith therefore acts not as a source of rights or
obligations, but more as a means of guiding the exercise of those rights or
obligations. Instead of answering what the obligations placed on a State
are, or why they create legal effects for the State, the principle of good faith
(and the specific concretisations of that principle discussed above) can
guide a State’s behaviour as to how the inherent rights and obligations are
exercised. This must be considered a limitation on the State’s
sovereignty.114
Regarding the adherence to treaty relations, the limitation of sovereignty
is less controversial, as the binding nature of the treaty has been the subject
to consent by the State. The Permanent Court of Arbitration (PCA) has, on
this point, gone on to state that:
"According to the principle of international law that treaty
obligations are to be executed in perfect good faith, therefore
excluding the right to legislate at will concerning the subject
matter of the treaty, and limiting the exercise of sovereignty of
the State bound by a treaty with respect to that subject matter to
109 The Case of the SS Lotus (France v Turkey) (Judgment) [1927] PCIJ Ser A No 10 4.
110 The question in the case was of prescribing jurisdiction, as an expression of
sovereignty.
111 Case of the SS Lotus (n 109) 25 f; Armin v Bogdandy and Markus Rau, ‘The Lotus’
in MPEPIL (June 2006, online edn) paras 9-10, available at www.mpepil.com.
112 Cf American Law Institute, Restatement of the Law Third, Foreign Relations Law of
the United States (St. Paul, 1987) 17 introductory note.
113 Jennings and Watts (n 39) 407 f; Taylor (n 57) 323 f; cf Neuhaus (n 60) 93.
114 Lukashuk, (n 47) 513, 514, who makes the point that the assumption of obligations can
be seen to limit sovereignty, even though undertaking is a realisation of sovereignty; in
terms of good faith, the limits placed on the exercise can only be seen to limit a State’s
actions, absent an express rule in international law.
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such acts as are consistent with the treaty."115
D. GOOD FAITH IN THE LAW OF TREATIES
All signatory States of the Vienna Convention on the Law of Treaties
(VCLT) note "that the principles of free consent and of good faith and the
pacta sunt servanda rule are universally recognised".116 The VCLT is
imbued with rules based on good faith that have effect at different stages of
the process.
1. Treaty formation and the element of good faith in Art. 18 VCLT
After signing (but before ratifying) a treaty, a party has an obligation to
observe the terms of the treaty. If a measure is taken after signature that
breaches this obligation, one that is based on good faith, reciprocity can
allow the other treaty party to repudiate the treaty or to claim compensation
for any diminution of value. 117 The element of good faith in treaty
formation is found in Art. 18 VCLT. This article protects the legitimate
expectations of the other participants in the treaty-making process, and is
therefore based on good faith.118 Whether or not the signatory State ratifies
the treaty is a matter of discretion; however, the consent-based act of
placing a signature on the treaty may act to reduce this discretion, so that a
State may not exploit the signed text for its own purposes by abusing its
inherent discretion to ratify.119 It is submitted, though, that there does not
exist enough state practice to point to a rule that signature of a treaty leads
to a good faith obligation to ratify, but only an obligation not to defeat the
purpose or material normative content of the treaty in question.120
Even though there is some disagreement as to whether Art. 18 VCLT
115The North Atlantic Coast Fisheries Case (Great Britain v United States of America)
(Award) [1910] XI RIAA 169, para 188.
116 Third recital.
117Arnold McNair, The Law of Treaties, (OUP 1961) 204; Schwarzenberger/ Brown (n 5)
433 f.
118 Oliver Dörr in Oliver Dörr and Kirsten Schmalenbach (eds) Vienna Convention on the
Law of Treaties. A Commentary (Springer 2012), Art 18 para 2; Werner Morvay, ‘The
Obligation of a State not to Frustrate the Object of a Treaty prior to its Entry into Force’
(1967) 27 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 451, 454.
119 JM Jones, Full Powers and Ratification: A study of the development of treaty-making
procedure, (CUP 1946) 89; Hassan (n 54) 462.
120 Hassan (n 54) 461 would seemingly agree; Anthony Aust, Modern Treaty Law and
Practice, (2nd edn, CUP 2011) 117, suggests the contrary.
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reflects customary international law,121 international courts and tribunals
have taken cognisance of this rule (even prior to the VCLT coming into
force). The PCIJ laid the foundation in its judgment on Certain German
Interests in Upper Silesia.122 The case concerned the alleged breach of
good faith by Germany not to alienate certain property in Silesia (as part of
the Versailles Treaty), prior to its entry into force. It was held that, even
though the facts of the case at hand differed, Germany may not act against
the principle of good faith. A misuse of its rights to alienate its property
could amount to a breach of its treaty obligation.123 The Greco-Turkish
arbitral Tribunal was even more explicit in invoking good faith as a
foundation not to defeat the object and purpose of a nascent treaty:
“WITH THE SIGNATURE OF A TREATY AND BEFORE ITS ENTRY INTO FORCE,
THERE [...] EXISTS AN OBLIGATION TO DO NOTHING WHICH MAY INJURE THE
TREATY BY REDUCING THE IMPORTANCE OF ITS OBLIGATIONS [...] THIS
PRINCIPLE IS ONLY AN EXPRESSION OF GOOD FAITH.[ ...] " 124
In modern practice, this was affirmed by the Court of Justice of the
European Union (CJEU) in Opel Austria v European Council.125 The
Court, after affirming that good faith forms part of EU law, formulated that
the specifically European legal principle of ‘legitimate expectations’ is a
corollary of this general principle.126 This further shows that good faith has
also taken on a regional customary international law standing (at least as
part of EU law).127
2. Performing treaty obligations in good faith (Art. 26 VCLT)
Art. 26 VCLT, in all its brevity, still makes good faith in the performance
of a treaty obligation of paramount importance. Two elements make up this
121 Laurence Boisson de Chazournes, Anne-Marie La Rosa and Makane Moïse Mbengue
in Olivier Corten and Pierre Klein (eds) The Vienna Convention on the Law of Treaties: A
Commentary (OUP 2011), Art 18 para 5; Oliver Dörr (n 118) Art 18 para 5; Morvay (n
118) 458 albeit reluctantly states that it conforms to general international law.
122 Certain German Interests in Polish Upper Silesia (n 64) 5-83.
123 Cf Hassan (n 54) 454; Cheng (n 5) 110; Anthony Aust differs: cf Aust (n 46) para. 8;
Aust (n 120) 117: the act of ratification is the definitive act to create legal
consequences, while signature itself does not.
124 Megalidis v Turkey 8 TAM 395 (cited in Cheng (n 5) 111).
125 Case T-115/94 Opel Austria GmbH v Council of the European Union [1997] ECR II-
43.
126 Ibid para 93; Oliver Dörr in Dörr and Schmalenbach (n 118) Art 18 para 5.
127 Jan Wouters and Dries Van Eeckhoutte, ‘Giving Effect to Customary International
Law through EC Law’ KU Leuven Faculty of Law Working Paper 25/2002, 27,
available at http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP25e.pdf.
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obligation: the determination of the object (i.e. the treaty) to be performed
in good faith, as well as the manner in which the obligation is performed.128
The material duty to act in good faith during the performance of a treaty
was stated by Waldock in the ILC's Report as "one of good faith and not
stricti juris".129 This suggests that the object and intention of the parties is
paramount, rather than a literal observation of the wording of the treaty.130
A treaty should be performed with the intentions of the parties in mind,
rather than looking to a formalistic understanding of the wording. Since the
element of good faith is again context-dependent, the duty needs to be
applied to the specific details of a case.131 It is submitted that elements of
the general principles of law that relate to abuse of right, estoppel, and
other aspects of good faith may find an analogous application to the
performance of treaty obligations.
3. Good faith in treaty interpretation
Art. 31 VCLT states that "[a] treaty shall be interpreted in good faith in
accordance with the ordinary meaning". Given that the obligation in Art. 26
VCLT applies to the entire process, the interpretation of the treaty is no
different. The exact contours of how to interpret a treaty in good faith are
difficult, yet an element of ‘reasonableness’ must be inherent when an
interpretation is advanced.132 Two aspects that can add contour when
interpreting a treaty reasonably are the effectiveness of the interpretation
(as an extension), and the imposition of new obligations (as a limitation).
Both of these have a basis in good faith.
As a means of interpretation, effet utile helps extend the meaning of the
wording past its literal sense, as recourse has to be taken to "what the
parties did mean when they used these words".133 The principle was left out
of the VCLT, as it was feared that it would open the door to a strong
128 Jean Salmon in Corten and Klein (n 121) Art 26 para 36.
129 ILC, ‘Yearbook of the International Law Commission Vol. II (1964)
A/CN.4/SER.A/1964/ADD.1 7.
130 So too the ICJ: Case concerning the Gabčíkovo-Nagymaros Project (Hungary v
Slovakia) (Merits) [1997] ICJ Rep 7, para 142.
131 Cf Jean Salmon in Corten and Klein (n 121) Art 26 para 53.
132 Cf Oliver Dörr in Dörr and Schmalenbach (n 118) Art 31 para 61; Jean-Marc Sorel
and Valerie Bore-Eveno in Corten and Klein (n 121) Art 31 para 29; Richard K Gardiner,
Treaty Interpretation, (OUP reprint 2011) 152 f; Jennings and Watts (n 39) 1272 in fn 7.
133 Case concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal)
(Merits) [1991] ICJ Rep 69 f, citing the Admissions Advisory Opinion (n 65) 8;
Gardiner (n 132) 159 f.
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Good Faith in International Law
62
teleological interpretation,134 which could lead to unwritten (or implied)
powers being read into treaties. However, based on the object and purpose
of a treaty and a good faith interpretation of it, the favourable construction
of a treaty can be achieved of upholding the treaty rather than destroying it
(ut res magis valeat quam pereat).135 In most cases this will also align with
the expectations of the signatory parties, and is a way of interpreting
treaties with recourse to good faith. The ordinary meaning of the treaty and
the prohibition of creating additional obligations place a limitation on the
interpretation.136
The obligation to interpret a treaty according to good faith finds its
limitations in the creation of new obligations which are no longer covered
either by the wording of the treaty or the intent of the signatories.137 The
approach indicated by judicial practice aims to clear up ambiguous
wording, yet not to act as a gap-filling function in order to create new
obligations. 138 By advancing an interpretation that adds (or creates)
obligations for another party, not intended or covered by the wording of the
treaty, this party may be acting in bad faith.
Even though an undoubted element of good faith pervades the
interpretation of international agreements, the ICJ has not yet interpreted a
treaty based solely on good faith.139 Therefore, it is submitted that, while
the ICJ has an undoubtedly well-crafted canon of interpretation that it can
draw on,140 the principle of good faith is also of an interstitial nature when
it comes to treaty interpretation. In this regard it functions as a principle
134 Jean-Marc Sorel and Valerie Bore-Eveno in Corten and Klein (n 121) Art. 31 para
52. The ICJ did, albeit reluctantly, expressed elements of effet utile in: Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion, Second
Phase) [1950] ICJ Rep 228 f.
135 Gardiner (n 132) 160.
136Interpretation of Peace Treaties (n 134) 226-230; Oliver Dörr in Dörr and
Schmalenbach (n 118) Art 31 para 58; Matthias Herdegen, ‘Interpretation in
International Law‘ in MPEPIL (February 2010, online edn) para 30, available at
www.mpepil.com.
137 Gardiner (n 132) para 155; Herdegen (n 136) para 30.
138 Cf The Venezuelan Preferential Claims Case (Germany, Great Britain, Italy,
Venezuela et al) (Award) [1904] IX RIAA 110; Netherlands v France (Award,
unofficial transcript) [1976] available at http://www.pcacpa.
org/showpage.asp?pag_id=1156, paras 54-79; R v Immigration Officer at Prague
Airport ex parte European Roma Rights Centre [2004] 2 AC 1, 19 (HL); Gardiner (n
132) 157 f.
139Cf Hugh Thirlway, ‘The Law and Procedure of the ICJ 1960-1989: Part Three (1991)
62 British Ybk Intl L 17.
140 In Art. 31-33 VCLT; cf Thirlway (n 139) 16 f.
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63
lending contours without imposing specific obligations141 or creating a
specific means of constructing a treaty based on good faith alone.
E. CONCLUSION
In conclusion, good faith as a general principle of law is familiar from
municipal law, but striking in its differences when assessed in the practice
of international law. Having examined the specific aspects of good faith
and how international jurisprudence has crafted justiciable concretisations
out of a vague notion, one conclusion becomes very clear. Whether in
general international law or in the law of treaties, good faith acts a
limitation. The limitations that the observation of good faith places on
States regulate the performance of rights and obligations in international
discourse. As well as the explicit duties of good faith in treaty law, general
international law places legal consequences on actions that are predicated
on good faith.
Returning to Fitzmaurice’s statement: while a rule answers ‘what’
and a principle answers ‘why’, the principle of good faith regulates
‘how’.142 As international law becomes more fragmented and dispersed in
‘self-contained’ regimes, the role of good faith will extend and create more
permutations of this limitation, as, fundamentally, good faith acts to give
legal value to the expectations that States have in the actions of other
States. Good faith might therefore not be readily definable in abstract
terms, it is however indispensable.
141 MK Yasseen, ‘L'interprétation des traités d'après la Convention de Vienna sur le
droit des traités’ (1976) 151 Receuil des Cours 21.
142 Fitzmaurice (n 6) 7, and part 0.
Annex 189
Annex 190
I. C. MacGibbon, “Estoppel in international law”, International and
Comparative Law Quarterly, 1958
ESTOPPEL IN INTERNATIONAL LAW
By
I. C. MACGIBBON *
I
MORE than thirty years ago it was observed that the doctrine of
estoppel 1 did not appear to have received much attention in the
sphere of international law.2 A certain reluctance to invoke
estoppel may have been justified at that time, but the marked
increase since then in international judicial and arbitral activity
has provided substantial grounds for the modern tendency to
consider estoppel as one of the " general principles of law recognised
by civilised nations." 3 The question whether the juridical basis
of the doctrine of estoppel is to be found in customary international
law rather than in the " general principles of law " is not free from
difficulty; and it is not the purpose of this article to suggest that
it can be satisfactorily answered.4 It would seem that a convincing
solution must wait on both a comparative investigation into the
operation of the concept in municipal systems of law and a more
widespread review of State practice than the present writer has
been able to attempt. The scope of the present article is limited to
drawing attention to some of the aspects of estoppel which have
been noted or suggested by publicists and expressed in State
pleadings before international tribunals, in diplomatic correspondence,
and particularly in advice tendered to the British Government
by the Law Officers of the Crown.
Underlying most formulations of the doctrine of estoppel in
international law is the requirement that a State ought to be
consistent in its attitude to a given factual or legal situation. Such
a demand may be rooted in the continuing need for at least a
* M.A., PH.D.(Cantab), Lecturer in Public Law, University of Aberdeen.
1The Anglo-American terminology which has gained wide acceptance is used
throughout. " Where the Anglo-American lawyer refers to estoppel, the continental
jurist will usually say that the party is 'precluded ' " (Lauterpacht,
Private Law Sources and Analogies of International Law (1927), p. 204). The
concept is known to Scots lawyers as " personal bar."
2 See McNair, " The Legality of the Occupation of the Ruhr," in British Year
Book of International Law, 5 (1924), pp. 17 et seq., at p. 34.
3 Thus, the concept of estoppel finds a place in the study by Dr. Bin Cheng
entitled General Principles of Law as applied by International Courts and
Tribunals, at pp. 137 et seq.
4 See, however, below, pp. 470, 478 and 512-513.
468
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Estoppel in International Law
modicum of stability and for some measure of predictability in the
pattern of State conduct. It may be, and often is, grounded on
considerations of good faith. In either event, it is scarcely to be
doubted that failure by a State to profess and practise some
standard of consistency in its international relations would be
viewed unfavourably both by other States and by any international
tribunal called upon to adjudicate in a dispute in which such
conduct was in issue. One of the authorities which Lord McNair
mentioned as throwing some light on the position of estoppel by
conduct in international law was the Behring Sea arbitration of
1893 between the United States and Great Britain. The Arbitrators
expressly found against the United States contention that
Great Britain had conceded the Russian claim to exercise exclusive
jurisdiction over the fur-seals fisheries in the Behring Sea outside
territorial waters; and they were fortified in this conclusion by the
fact that the United States, as well as Great Britain, had protested
against the Russian Ukase of 1821 in which this claim was asserted.
The proceedings, as Lord McNair stated, " demonstrated that some
advantage is to be gained by one State, party to a dispute, by convicting
the other State of inconsistency with an attitude previously
adopted." 5 "This is not estoppel eo nomine," Lord McNair
commented, " but it shows that international jurisprudence has
a place for some recognition of the principle that a State cannot
blow hot and cold-allegans contraria non audiend,us est." 6
It may, however, be argued that international practice, if not
international jurisprudence, has accorded less tentative recognition
to the principle of consistency; and one writer has advanced a
view of the binding character of unilateral acts and declarations
which appears to comprehend the principle underlying estoppel
as part of customary international law. "If [a subject of international
law] acts contrary to its notified intent," Dr. Schwarzenberger
wrote, " it breaks the rule on the binding character of
communicated unilateral acts."7 His remarks on the genesis of
this rule are instructive: and it is suggested that the instances
from State practice and the official opinions noted in the following
pages point for the most part in the same direction. Dr.
5 British Year Book of International Law, 5 (1924), p. 35. See also the views
expressed by the Law Officers concerning this dispute, below, pp. 496-497.
6 Ibid.
7 " The Fundamental Principles of International Law," in Hague Recueil, 87
(1955), p. 312. And see Schwarzenberger, International Law, Vol. 1 (3rd ed.,
1957), Part 1, p. 553: " Provided that a unilateral act is capable of having legal
effects, and is intended to have such effects, these must be determined in each
individual case by reference to the jus aequum rule. The typical minimum
effect of unilateral acts is to create an estoppel. It prevents the subject of
international law, to which the unilateral act is imputable, from acting
contrary to its declared intent."
I.C.L.Q.-7 31
JULY 1958] 469
Annex 190
International and Comparative Law Quarterly [VOL. 7
Schwarzenberger summed it up thus: " No doubt, in the formative
stage of this rule, the obnoxiousness of self-contradictory behaviour
and venire contra factum proprium assisted in creating the opinio
juris sive necessitatis which marks the borderline between international
comity and international customary law." 8
It will be recalled that the Permanent Court of International
Justice in the Eastern Greenland case had no doubt that the
" Ihlen declaration " was binding on Norway and barred a subsequent
Norwegian attitude contrary to its notified intent.' In
analogous circumstances the doctrine of estoppel was invoked in
1907 by the United States in diplomatic correspondence with
Sweden in the following terms: " So far as the international aspect
of the question is concerned, there is little doubt but that a nation
entering into an arrangement by the exchange of diplomatic notes
is, certainly as to the other negotiating Power, estopped to say
that the Foreign Office, in making such arrangement, had no power
or authority in the premises. This is the position which has been
assumed not infrequently by this Government in dealing with
other countries." 10
The extent to which estoppel, in this or some other aspect, has
been invoked in the international sphere is considered below.
Although there may still be some doubt as to whether it satisfies
the criteria relevant to rules of customary international law, it
has long been accepted as a general principle of law, in the sense
of a principle common, in one form or another, to most municipal
systems of law. As long ago as 1927 it was asserted by one
authority that, in substance, " the principle underlying estoppel is
recognised by all systems of private law, not only with regard to
estoppel by record . . . but also, under different names, with regard
to estoppel by conduct and by deed "11: and, concluding that it
was " not easy to adduce reasons why those general principles
underlying estoppel should be disregarded in the relations between
States," 12 several important arbitrations were examined in which
estoppel or preclusion was pleaded by the parties or made the
basis of the award.
8 "The Fundamental Principles of International Law," in Hague Recueil, 87
(1955), pp. 312 et seq.
9 Series A/B, No. 53 (1933), p. 71: " The Court considers it beyond all dispute
that a reply of this nature given by the Minister for Foreign Affairs on behalf
of his Government in response to a request by the diplomatic representative of
a foreign Power in regard to a question falling within his province is binding
upon the country to which the Minister belongs."
10 Note, dated March 22, 1907, from the United States Acting Secretary of State
to the Swedish Chargd d'Affaires ad interim, printed in Hackworth, Digest of
International Law, Vol. 5 (1943), p. 393.
11 Lauterpacht, Private Law Sources and Analogies of International Law (1927),
p. 204.
12 Ibid., p. 205.
470
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Estoppel in International Law
Estoppel and good faith. The growing frequency with which
use is made of arguments based upon estoppel is a measure of the
importance attached to the precepts of good faith in the relations
between States; and it is not uncommon to find estoppel discussed
in the context of good faith as a specialised manifestation of the
wider principle. Some examples may be mentioned from commentaries
on the law of treaties. Thus, Judge Lauterpacht, when
Special Rapporteur to the International Law Commission on the
Law of Treaties, commented as follows on paragraph 2 of Draft
Article 11 of his Report 13: "A State cannot be allowed to avail
itself of the advantages of the treaty when it suits it to do so and
repudiate it when its performance becomes onerous. It is of little
consequence whether that rule is based on what in English law is
known as the principle of estoppel or the more generally conceived
requirement of good faith. The former is probably no more than
one of the aspects of the latter." 14 The Special Rapporteur also
drew attention to the solutions propounded by Lord McNair and
by the late Professor Hyde with regard to the validity of treaties
concluded in disregard of constitutional limitations.l5 Both made
use of arguments based on estoppel in this sense. Lord McNair
wrote: "It seems safe to say that, in the view of the United
Kingdom Government, when an international engagement has been
partly performed or otherwise treated by both parties as internationally
binding, it cannot validly be repudiated by either of them
on the ground that its conclusion failed to comply with some internal
requirement of its constitutional or other law." 16 Professor Hyde,
with characteristic caution, stated: "It may be said that where
a contracting State holds out to another assurance that the terms
of a proposed agreement are not violative of the fundamental laws
of the former, and does so through an agent who is supposedly
conversant with the requirements thereof by reason of the character
of his connection with the particular department of his government
to which is confided the management of foreign affairs, and when
no written constitution is involved, and no published and authoritative
instrument notoriously proclaims an opposing view, there is
ground for the conclusion that the contracting State holding out
such assurance is not in a position to deny the validity of an
13 The paragraph reads: "A contracting party may be deemed, according to the
circumstances of the case, to have waived its right to assert the invalidity of a
treaty concluded in disregard of constitutional limitations if for a prolonged
period it has failed to invoke the invalidity of the treaty or if it has acted upon
or obtained an advantage from it." (Report on the Law of Treaties, U.N.
Document A/CN. 4/63: March 24, 1953, p. 157.)
14 Ibid., p. 166.
15 Ibid., p. 161.
16 The Law of Treaties (1938), p. 44.
JULY 1958] 471
Annex 190
International and Comparative Law Quarterly [VOL. 7
agreement which has been concluded in pursuance thereof." 17
More recently the relationship between good faith and both the
substantive and procedural aspects of estoppel with regard to the
law of treaties has been noted by Dr. Schwarzenberger. He pointed
out that every evasion or breach of a treaty involves a breach of
good faith, in the sense that it amounts to a contravention of the
rule that consensual engagements should be implemented in good
faith. " Then, in appropriate cases," he argued, " the rule itself
may also be expressed in more specialised terms which are congenial
to the realm of good faith, such as the prohibition of fraud or
venire contra factum proprium in treaty relations." 18 As well
as drawing attention to the primary duty of a party in breach
of treaty provisions to make reparation, Dr. Schwarzenberger
pointed out that in addition, or in the alternative, emphasis might
be placed on the breach of the rule of customary international law
requiring good faith in the implementation of treaty obligations.
In that case, he suggested, " the exclusion of acts or evidence from
consideration may be explained on grounds of the prohibition of
venire contra factum proprium or estoppel, and the duty of reparation
be founded on the breach of this substantive rule rather than
the contravention of those underlying consent and responsibility." 19
In the course of a discussion of fraud as a factor which may
vitiate consent, Dr. Schwarzenberger indicated a further possible
application of estoppel. " It is an open question," he wrote,
" what legal consequences the vitiation by fraud of a consensual
agreement entails. If the rules underlying the principle of good faith
are considered to provide the answer, the minimum effects of fraud
are to create an estoppel against the fraudulent party and,
perhaps, a duty of restitution." 20 In a later passage it was noted
that provision in arbitration treaties to cover bad faith in their
execution, such as the refusal of a party to appoint a member of
an arbitral commission,21 had become redundant by common
consent. " Parties to subsequent treaties of this kind," it was
stated, " took it for granted that such situations were governed
by the jus aequum rule, and that indulgence in bad faith created
an effective estoppel against the assertion of any constitutional
irregularity of such commissions."22
It was suggested by Judge Lauterpacht, on the basis of the trend
apparent in the attitude of the Permanent Court of International
17 International Law Chiefly as Interpreted and Applied by the United States
(2nd ed., revised, 1945), Vol. 2, p. 1385.
18 " The Fundamental Principles of International Law," in Hague Recueil, 87
(1955), p. 303. 19 Ibid.
20 Ibid., p. 268. And see ibid., p. 21 See below, pp. 480, et seq.
22 Ibid., p. 525.
472
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Estoppel in International Law
Justice after more than a decade of experience, that the Court
was prepared to recognise the operation of the principle of estoppel
in view of its impatience with evasion and its insistence on
holding States to the attitude previously adopted by them.23 To
the same determination to discourage evasion was ascribed the
affirmation by the Court, in a number of cases,24 of the established
principle that a State cannot invoke its municipal law as a reason
for failure to fulfil its international obligations. These cases, however,
he noted, could not be regarded as applications of the English
law of estoppel, but were "reminiscent of some of the elements of
estoppel in English law." 25
The link between estoppel and good faith was noted by Dr.
Weis in relation to the denationalisation of an individual by his
State while he was abroad. "The good faith of a State which
has admitted an alien on the assumption that the State of his
nationality is under an obligation to receive him back would be
deceived if by subsequent denationalisation this duty were to be
extinguished " 26: this Dr. Weis described as " [a] sort of estoppel
on the part of the State of nationality." 27
Recognition as an estoppel. It has been stated by one authority
that " the legal effect of every act of recognition is to create an
estoppel." 28 On this premise alone, it may be argued that the
scope of the operation of estoppel is co-extensive with that of the
numerous situations in which recognition or non-recognition is a
legally relevant factor. "By granting recognition," the same
authority stated, " they [i.e., subjects of international law] do not
undertake any commitment beyond not to challenge in future
whatever they have previously acknowledged." 28 A more
guarded observation was made by Professor Corbett. He wrote:
23 The Development of International Law by the Permanent Court of International
Justice (1934), p. 83.
24 The following cases before the Permanent Court of International Justice were
cited: Polish Nationals in Danzig, Series A/B, No. 44, p. 24; the Free Zones
cases, Series A, No. 24, p. 12, and Series A/B, No. 46, p. 167; and the Greco-
Bulgarian Communities, Series B, No. 17, p. 32.
25 Ibid., p. 83, note 3. See also the " Written Statement of the Government of
the United Kingdom" in the Interpretation of the Peace Treaties, I.C.J.,
Pleadings, p. 191.
26 Nationality and Statelessness in International Law (1956), pp. 55-56.
27 Ibid., p. 56, note 1.
28 Schwarzenberger, "The Fundamental Principles of International Law," in
Hague Recueil, 87 (1955), p. 253. The point is made again by the same writer
in International Law, Vol. 1 (3rd ed., 1957), Part 1, at p. 127: "By granting
recognition, subjects of international law debar themselves from challenging
in future whatever they have previously acknowledged. In the Judgment of
the World Court in the Eastern Greenland case (1933), this aspect of recognition
is clearly brought out [P.C.I.J., Series A/B, No. 53, pp. 68-69]:
'Norway reaffirmed that she recognised the whole of Greenland as Danish; and
thereby she has debarred herself from contesting Danish sovereignty over the
whole of Greenland.'"
JULY 1958] 473
Annex 190
474 International and Comparative Law Quarterly [VOL. 7
"Recognition becomes a matter of evidence and, perhaps,
estoppel. ... If a number of important States had recognised a
given community, either by explicit declaration or by the implication
of their relations with it, this recognition created at least a
rebuttable presumption of statehood and personality. English and
American jurists, applying a principle not so clearly established
in Roman-law countries, were also inclined to say that recognising
States were by the act of recognition estopped from denying the
statehood and personality of the recognised community." 29
As an illustration of the " pliability of recognition as a general
device of international law," 30 Dr. Schwarzenberger wrote with
regard to its function in establishing the validity of a territorial
title in relation to other States: "However weak a title may be,
and irrespective of any other criterion, recognition estops the State
which has recognised the title from contesting its validity at any
future time." 31 Like extinctive prescription,32 acquisitive prescription
has " the legal effect of creating an estoppel against third
States whose claims have become stale." 33
The operation of recognition as an estoppel is noted again by
the same writer in connection with the right of a State in certain
circumstances to extend diplomatic protection to individuals who
are not its nationals. Recognition by a State of an international
protectorate, mandate or trusteeship arrangement entails the consequence
that a recognising State " is then estopped from contesting
the right of protecting Powers or international trustees to make
international claims on behalf of individuals who have a genuine
connection with such territories, but, otherwise, cannot be claimed
as their nationals by such international agents or trustees." 34
Again, the creation of rules " of an absolute or objective character "
by way of treaty presupposes "that either all subjects of international
law are parties to any particular treaty or that, by recognition,
acquiescence or estoppel, such a treaty has become opposable
to all non-parties." 35 On the cognate issue of the relative or
29 Law and Society in the Relations of States (1951), p. 61.
30 American Journal of International Law, 51 (1957), p. 316.
31 Ibid., pp. 316-317. He went on to point out that recognition " creates an
estoppel in the relations between the State making such a unilateral declaration
and its addressee," and that " recognition of the claims of another State
deprives the State which is in actual control of the territory of the chance of
obtaining recognition of its own rights." (Ibid., p. 317.) And see, to the
same effect, Schwarzenberger, International Law, Vol. 1 (3rd ed., 1957), Part 1,
pp. 299-301. He commented, with regard to " the rules governing good faith
in relation to territorial titles," that " their uniform function is to create
estoppels which prevent States from contesting titles which they have recognised
or in which they have acquiesced." (Ibid., p. 308.)
32 See International Law, Vol. 1 (3rd ed., 1957), Part 1, pp. 568-569.
33 Ibid., p. 308.
34 Ibid., p. 361. See also ibid., pp. 378-379. 35 Ibid., p. 458.
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Estoppel in International Law
absolute universality of an international regime such as the mandates
system, or of an international organisation, such as the
United Nations, the same conclusion was reached.36 A measure
of ambiguity is perhaps introduced by treating estoppel as the
equivalent of recognition or acquiescence rather than as their consequence
37; and the discussion by the same writer of international
responsibility for dependent States which retain some international
personality appears to represent the legal situation more closely.
It was stated that the international responsibility of protecting or
administering Powers towards third States was " one of the implications
of the acts of recognition, consent or acquiescence by which
third States make such an agency opposable to themselves. To the
extent to which they accept this position, they treat protecting
Powers, or States in similar positions, as if they were sovereign in
the area in question. Correspondingly such States are estopped
from denying their international responsibility."38
Other aspects of estoppel. Witenberg, in his short study of
estoppel in 1933, indicated some of the forms in which the concept
had been expressed, and their diversity was noted.39 Dr. Schwarzenberger
has grounded arguments on one or other aspect of estoppel
in a considerable variety of contexts, and some examples may be
given to indicate the possible scope of the application of the
principle underlying estoppel. Referring to certain exceptions to
the local remedies rule, it was stated: " Estoppel constitutes
[their] common denominator. ... If a State fails to provide any,
or at least effective, local remedies, it may not rely on its own
non-compliance with the minimum standard, that is to say, its
own breach of international law, to frustrate an international
claim." 40 Discussing the liability of successful revolutionaries for
36 Ibid., pp. 129-130. He concluded (ibid., p. 130): "Recognition, consent,
acquiescence and estoppel are the only means by which, in international law,
relatives can be transformed into absolutes."
37 The same observation may be made with regard to similar passages, e.g., ibid.,
pp. 212, 225, 378 and 470. It should be noted that the writing in these passages
is so compressed that the misleading impression may be conveyed that estoppel
is, like recognition or acquiescence, a method by which a situation becomes
opposable to a State, whereas it is no more than a description of the position
resulting from the fact that a situation has become opposable to a State as a
consequence of recognition or acquiescence.
38 Ibid., pp. 624-625.
39 Journal du Droit International, 60 (1933), pp. 530 et seq. See also Cheng,
General Principles of Law as applied by International Courts and Tribunals
(1953), p. 137: "If State A has knowingly led State B to believe that it will
pursue a certain policy, and State B acts upon this belief, as soon as State A
decides to change its policy-although it is at perfect liberty to do so-it is
under a duty to inform State B of this proposed change." Failure to do so, it
was added, involved a duty to indemnify State B for damage incurred up to
the time when State B learns of the altered circumstances.
40 International Law, Vol. 1 (3rd ed., 1957), Part 1, p. 609. See also, ibid.,
p. 608: " If a party has failed to exhaust its procedural opportunities in the
JULY 1958] 475
Annex 190
476 International and Comparative Law Quarterly [VOL. 7
the torts of the defeated " legitimate " government, and the
question whether the imputability of acts and omissions of
revolutionaries to their State had any retroactive effect, the author
concluded that " the real ground of the retroactivity of tortious
liability is estoppel "41; and that the acts of successful revolutionaries
could be equated retrospectively with acts of the former
" legitimate " government " because the revolutionary government
is estopped from asserting the true position." 42 Again, the grounds
on which illegal acts or omissions by one of the component parts
of a federal or decentralised State could be imputed to a federal
or central authority were stated to be either estoppel or the
minimum standard: "If a federal or central authority has
actually charged another authority with the exercise of a public
function and, thus, delegated the function, it cannot go back on
such an act and argue that it was not under any obligation to
provide such a service." 43 Estoppel was invoked with regard to
piracy in these terms: " Even in the case of a ship which as such
is entitled to her national flag, but has been seized by pirates, the
flag State would be estopped from making any international claim
on behalf of pirates over which another State assumes criminal
jurisdiction, for a specific rule of international customary law
authorises the exercise of such extraordinary jurisdiction on the
part of any sovereign State."44 In his comments on the analysis
by the International Court of Justice of the relevant Resolution of
the General Assembly of the United Nations on Genocide, the
same author suggested that, since the recommendation was
unanimously adopted by the General Assembly, " its contents may
be considered to have become binding on all the members of the
United Nations by way of estoppel." 45 Again, pointing out that
a delegate of a member State to a United Nations organ participates
in its activities as a representative of his own State, Dr. Schwarzenberger
commented: "In this capacity, he may be estopped
from adopting policies which are incompatible with the binding
character of acts of recognition or acquiescence on the part of
his own government."46 On the hypothetical assumption that a
court of first instance and, thus, itself condemned the appeal to futility, it is
estopped from relying on its own fault and the nominal character of the
appeal."
41 Ibid., p. 628.
42 Ibid., p. 629.
43 Ibid., p. 626.
44 Ibid., p. 346.
45 Ibid., p. 51. There is a danger in suggesting that a recommendation becomes
binding by way of estoppel. It may become binding by consent, and by consenting
to it a State may then be estopped from challenging it. Where consent
is given subject to the overriding consideration that recommendations are not
binding, no estoppel can be created.
46 Ibid., p. 95.
Annex 190
Estoppel in International Law
State might relinquish its claims to some or all of its territorial
sea, it was stated that while it claimed jurisdiction over its
territorial sea for any purpose it would be subject to all the duties
imposed by international law on a State claiming such rights. If
a State were to make claims going beyond the limits of general
international law, it " would be estopped from claiming for such
maritime areas the character of the high seas."47 Finally, after
drawing attention to two sets of circumstances in which a successor
State might be held to be liable for the torts of its predecessor,48
Dr. Schwarzenberger stated: "In both cases, such international
liability as exists is based on grounds of estoppel and rests on the
rules governing the principle of good faith."49
Not all of the aspects of estoppel discussed by Dr. Schwarzenberger
are illustrated below: but it is a tribute to the pliability
of estoppel that so many facets of the concept should have been
discovered by one writer in a textbook concerned primarily with
other matters. It may serve also as a warning of the elusive
character of the international law estoppel about which Witenberg
in 1933 uttered the following warning: " Ces diverses formules,
variables a l'extreme sont irreductibles a une definition ne comprenant
que les cas d"estoppel,' mais les comprenant tous." 50
The situation in this respect has not improved since Witenberg
wrote. Indeed, it is probably true to say that, in its translation
from the municipal to the international sphere, and in its subsequent
utilisation by international lawyers, the concept of estoppel
has been broadened so substantially that the analogy with the
estoppel of municipal systems may be positively misleading. The
extent of the development away from the precisely formulated
doctrine in private law may be brought out by a reconsideration
of the words of the Arbitrator in the Tinoco Arbitration (1923)
between Great Britain and Costa Rica,51 viewed in the light of the
foregoing indications of the flexibility of estoppel in international
law. In a well-known passage, bearing a marked affinity to private
law dicta on estoppel, the Arbitrator stated: "An equitable
estoppel to prove the truth must rest on previous conduct of the
person to be estopped, which has led the person claiming the
estoppel into a position in which the truth will injure him.""52
The doctrine of estoppel in those terms was not applied because,
as the Arbitrator pointed out, neither was the succeeding government
led " to change its position in any way on the faith " of the
47 Ibid., p. 325. 48 Ibid., pp. 175-176.
49 Ibid.. p. 176.
50 Journal du Droit International, 60 (1933), pp. 531-51 The award is printed in the American Journal of pp. 147 et seq. 52 Ibid., p. 157.
JULY 1958] 477
Annex 190
478 International and Comparative Law Quarterly [VOL. 7
non-recognition of its predecessor, nor had there been " an injury
to the succeeding government in the nature of a fraud or a breach
of faith." 53
Many of the aspects of estoppel to which attention is drawn
in these pages would fall outwith a concept of estoppel so
restrictively delimited. Moreover, it is seldom emphasised that,
although the reason given was the dearth of relevant authority, the
Arbitrator deliberately rejected the principle of consistency, at
least as far as the effects of recognition or non-recognition were
concerned. He said: " It may be urged that it would be in the
interest of the stability of governments and the orderly adjustment
of international relations, and so a proper rule of international law,
that a government in recognising or refusing to recognise a government
claiming admission to the society of nations should thereafter
be held to an attitude consistent with its deliberate conclusion on
this issue. Arguments for and against such a rule occur to me;
but it suffices to say that I have not been cited to text-writers
of authority or to decisions of significance indicating a general
acquiescence of nations in such a rule. Without this, it cannot
be applied here as a principle of international law." 54 It may
be that the very diversity of the forms in which the principle
of estoppel has been applied or invoked tends to make the concept
so diffuse as to impair its value as a term of art. Nevertheless,
the trend in practice appears to be away from the restricted concept
approved in the foregoing Award, and towards acceptance of the
wider notion which the Arbitrator rejected.
Estoppel as a rule of evidence. The main obstacle to the
acceptance of estoppel as a principle of international law may well
have been the long-prevalent belief that it was no more than a
technical rule of evidence 55 and, therefore, singularly unsuited to
the "rough jurisprudence of nations." The changing climate of
opinion may be gauged from the reconsideration given to the nature
'3 Ibid., pp. 156-157.
54 Ibid., p. 157.
55 Judge Lauterpacht prefaced his views noted above (p. 470) with the remark
that the " doctrine of estoppel is prima facie a private law doctrine forming a
part of the law of evidence." (Private Law Sources and Analogies of International
Law (1927), p. 203.) Professor Guggenheim discussed estoppel under
the heading of " L'administration des preuves." He wrote: " . . . la procedure
internationale n'admet pas l'administration de la preuve pour des faits
qui decoulent de l'attitude d'une des parties et d'oh la partie adverse a tire le
droit de prendre des mesures ayant une signification juridique; c'est ce qu'on
appelle en droit anglo-saxon le principe de 1" estoppel,' qui s'exprime dans
l'adage: 'Non concedit venire contra factum proprium.' L'estoppel est donc
une exception d'irrecevabilite opposable a toute allegation qui, bien peut-etre
conforme a la realite des faits, n'en est pas moins inadmissible parce que
contraire a une attitude anterieurement adoptee par la partie qui l'avance."
(Traite de Droit international public, Vol. 2 (1954), pp. 158-159.)
Annex 190
Estoppel in International Law
of estoppel by the Judicial Committee of the Privy Council in
Canada and Dominion Sugar Company, Limited v. Canadian
National (West Indies) Steamships, Limited.56 The Board quoted
with approval Sir Frederick Pollock's description of the doctrine of
estoppel as " a simple and wholly untechnical conception, perhaps
the most powerful and flexible instrument to be found in any system
of court jurisprudence," and went on to state: " Estoppel is often
described as a rule of evidence, as, indeed, it may be so described.
But the whole concept is more correctly viewed as a substantive
rule of law." 57 Tribunals before which the doctrine has been
canvassed have occasionally accepted it by implication and without
comment, approaching the solution of the problem before them
in the way in which counsel had presented it. The English Court
of Exchequer in 1862 formulated the doctrine and its basis in a way
which emphasised its freedom from technicalities and which
approximates to the form in which it has gained acceptance in
international law: "[A] man shall not be allowed to blow hot and
cold-to affirm at one time and deny at another. . . . Such a
principle has its basis in common sense and common justice, and
whether it is called ' estoppel,' or by any other name, it is one
which courts of law have in modern times most usefully adopted." 58
The doctrine has been invoked in varying forms over a period of
a century and a half; and although there have been occasions on
which it has been held to be inapplicable to the particular facts 59
its jurisprudential basis has been unchallenged.
II
STATE PLEADINGS; JUDICIAL AND ARBITRAL DECISIONS
The import of the pleadings and decisions in many of the cases
has been discussed by other writers 60 and it is not proposed to
reappraise in any detail their careful treatment of these sources.
However, the arguments advanced before the International Court
56 [1947] A.C. 46.
57 Ibid., pp. 55, 56.
58 Cave v. Mills (1862) 7 Hurlestone & Norman 913 at 927.
59 Notably in the award of the arbitrator in the Tinoco Arbitration (1923)
between Great Britain and Costa Rica (see above, pp. 477-478); and in the judgment
of the Permanent Court of International Justice in the Serbian and
Brazilian Loans cases (1929), Series A, Nos. 20 and 21. The value of the latter
as authority may be somewhat weakened by the emphasis on private law which
characterised the proceedings.
60 See, especially, Lauterpacht, Private Law Sources and Analogies of International
Law (1927), pp. 205 et seq; Cheng, General Principles of Law as
Applied by International Courts and Tribunals (1953), pp. 137 et seq., and
Meron, in this Quarterly, Vol. 6 (1957), pp. 282-286.
JULY 1958] 479
Annex 190
International and Comparative Law Quarterly [VoL. 7
of Justice in two recent cases merit attention both because of the
use made of contentions based on the principle of estoppel and
because of the extensive citation of authority which they contain.
The proceedings illustrate two aspects of estoppel, namely the rule
that a State cannot rely on its own wrong to excuse failure to fulfil
its international obligations, and the rule that prior recognition of,
or acquiescence in, a situation, or a previous admission by a State,
bars it from subsequently challenging what it has recognised or
admitted.
A State is barred from pleading its own default as a justification
for avoiding its international obligations. In the course of the
advisory proceedings before the Court concerning the Interpretation
of the Peace Treaties with Bulgaria, Hungary and Roumania the
Governments of both the United States and the United Kingdom
filed written statements containing arguments based on estoppel;
and the Representative of the United Kingdom made oral statements
at a later stage in the proceedings, again invoking the
concept of estoppel. The point was raised in considering whether
a Commission composed of the representative of one party only,
together with a member appointed by the Secretary-General of the
United Nations, would constitute a proper Commission. The
principle of estoppel was invoked to clarify the issue raised by the
refusal of the three ex-enemy governments to co-operate in setting
up the appropriate Commission. The Written Statement of the
Government of the United Kingdom drew attention to the fact that
the only party which would have the necessary locus standi to
challenge a decision by a two-member Commission would be the
other party to the dispute, the basis of its challenge being its own
failure to appoint its Commissioner. " In brief," it was argued,
" the party concerned is estopped or incapacitated from challenging
the validity of the decision, because it cannot do so except by
pleading its own wrong." 61 The principle of estoppel, it was noted,
had found application in pronouncements of the Permanent Court
of International Justice on analogous matters; and it was recalled
that it was held in the Chorzow Factory case that one of the parties
was estopped from pleading the Court's lack of jurisdiction on the
ground that " it is . . . a principle generally accepted in the jurisprudence
of international arbitration, as well as by municipal
courts, that one party cannot avail itself of the fact that the other
has not fulfilled some obligation, or has not had recourse to some
means of redress, if the former party has, by some illegal act,
prevented the latter from fulfilling the obligation in question, or
61 Interpretation of the Peace Treaties, I.C.J., Pleadings, p. 190.
480
Annex 190
Estoppel in International Law
from having recourse to the tribunal which would have been open
to him." 62 This suggested, the Statement argued, that if the
three governments had prevented the other parties from having
recourse to the tribunal they would be estopped from complaining
if those parties had recourse to such process as was available to
them and could not question the competence of a tribunal
necessarily constituted without their co-operation.63 The Government
of the United States in its written statement put the matter
thus: " If the governments of these States persist in their breach
of obligation, refusing to appoint representatives to the commissions,
they must be taken to have waived their right to be
represented on the commissions. They must be considered estopped
to complain now or in the future, on the ground of lack of
representation, concerning the consideration and decision of
disputes by commissions on which they decline to be represented.
. . . Such party must be considered estopped to deny that it
has waived its right to be represented on the arbitral tribunal." 64
In a statement to the Court on June 28, 1950, the Representative
of the United Kingdom, referring to the passage cited above
from the Chorzow Factory case and applying it to the question
before the Court, said: "What is involved is really an application
of the principle known in English law as estoppel (or to use
what I believe is the equivalent French term preclusion)-to which
effect has frequently been given by international tribunals." 65
He pointed out that although the Permanent Court of International
Justice did not find occasion to apply the principle of estoppel in
either the case of the Serbian Loans or the case concerning the
Legal Status of Eastern Greenland,66 it did apply the principle
frequently in an analogous field, namely, that of the relationship
between the municipal law of a State and its international obligations,
particularly the rule (which was described as one of the
cornerstones of the jurisprudence of the Permanent Court) "that
States, being obliged to bring their domestic law into conformity
62 P.C.I.J., Series A, No. 9, p. 31: quoted in Interpretation of the Peace Treaties,
I.C.J., Pleadings, pp. 190-191.
63 Ibid., p. 191.
64 Ibid., p. 237.
65 Ibid., p. 374. The representative of the United Kingdom referred to a number
of the cases discussed below; and he added that the Tinoco Concessions case
(Great Britain v. Costa Rica) contained a passage in which the principle was
well stated in language very apt to the case before the court, to the effect that
" the mere possession of a licence does not estop [the holder of the licence]
from attacking its validity. It is the possession of a licence under an agreement
with the licensor which estops [a person] who has not fulfilled the terms
of that agreement from pleading and proving the invalidity [of the licence] in
order to avoid liability for breach of his contracts." (Administrative Decision,
No. 1, p. 44.)
66 These cases are discussed below.
JULY 1958] 481
Annex 190
International and Comparative Law Quarterly [VOL. 7
with their international obligations wherever this is necessary for
the execution of these obligations cannot, if they fail to do this,
plead their domestic law as a ground for not carrying out their
international obligations-since, in effect, this would amount to
pleading their own default as a justification." 67 The Court applied
this principle, it was added, " on a basis of quasi-estoppel or
preclusion." 68
In his Dissenting Opinion in this case Judge Read, who
answered in the affirmative the third and fourth questions submitted
to the Court, stated: "Accordingly, I think that I am
bound to take into account the fact that, in the existing circumstances
and under existing international law, a defaulting government
could not object to the competence of such a tribunal. If
it raised the objection before such a Treaty Commission, it would
be bound to apply existing international law and refuse to let such
a government profit from its own wrong. If it raised the objection
in proceedings before this Court, it would be necessary for the
International Court of Justice, which is not a law-making organ,
to apply existing legal principles and recognise that it was estopped
from alleging its own treaty violation in support of its own
contention." 69
Previous recognition or admission bars subsequent challenge.
In an earlier statement to the Court in the proceedings concerning
the Interpretation of the Peace Treaties, with regard to the contention
of the three governments that there was no dispute, the
Representative of the United Kingdom invoked a more direct and
unqualified formulation of the doctrine of estoppel, arguing that
"whatever they may now purport to say, they have in fact long
since admitted the existence of a dispute and are juridically bound
by this admission, and, as we say in England, estopped or precluded
from contradicting it." 70
A similar argument, based directly on the principle of estoppel,
was developed in the Memorial submitted by the Government
67 Interpretation of the Peace Treaties, I.C.J., Pleadings, pp. 374-375.
68 Ibid., p. 375. Cf. Schwarzenberger, International Law, Vol. 1 (3rd ed.,
1957), Part 1, p. 69. The cases cited by the representative of the United
Kingdom in support of this proposition were as follows: the Mavrommatis
(Jerusalem) case, Series A, No. 5, pp. 42-43; the Lotus case, Series A, No. 10,
p. 24; the second Chorz6w Factory case, Series A, No. 17, p. 33; the Free
Zones cases, Series A/B, No. 24, p. 12, and Series A/B No. 46, p. 167; the
Danzig Railway Officials case, Series B, No. 15, pp. 26-27; the Treatment of
Polish Nationals in Danzig, Series A/B, No. 44, p. 24. It was added that the
same principle was applied under other aspects in the following cases: German
Interests in Polish Upper Silesia, Series A, No. 7, pp. 21'24, 32, 42, 46;
German Settlers in Poland, Series B, No. 6, pp. 25, 36-37; Exchange of Greek
and Turkish Populations, Series B, No. 10, p. 20; the Greco-Bulgarian Communities,
Series B, No. 17, p. 32. 69 I.C.J. Reports, 1950, p. 244.
71 Interpretation of the Peace Treaties, I.C.J., Pleadings, p. 316.
482
Annex 190
Estoppel in International Law
of Liechtenstein in the Nottebohm case, although this aspect of
the Liechtenstein case was not pressed in the later stages.7' The
Liechtenstein Memorial contended that "by expressly recognising
the Liechtenstein nationality of Mr. Nottebohm the Government
of Guatemala waived any right which theoretically they might
otherwise have had to question the validity of the new nationality
acquired 72; and it put forward a second connected reason
"grounded in what may be described as the international doctrine
of estoppel." 73 The argument ran as follows: " In registering
Mr. Nottebohm's change of nationality on January 31, 1940,
without comment or protest, the Government of Guatemala led
Mr. Nottebohm to believe that they accepted and recognised the
effectiveness of the decree of naturalisation granted by the Government
of Liechtenstein. In reliance upon this registration, Mr.
Nottebohm continued to reside in Guatemala, to retain property
and to develop his business there and to hold himself out as a
Liechtenstein national. Thereafter, the Government of Guatemala,
irrespective of what the position might be under its own municipal
law, were precluded from denying as against the Government of
Liechtenstein that Mr. Nottebohm was a Liechtenstein national." 74
The Guatemalan Counter-Memorial on this point was not directed
against the validity of the principle of estoppel as such but to the
inadequate character of the acts relied upon to found the alleged
estoppel.75 The Guatemalan Government argument stated: " Mais
pour que les actes invoques aient pour effet de priver le Guatemala
du droit de contester la naturalisation a raison de la renonciation
qui y serait contenue, soit a raison du droit d'estoppel resultant
pour M. Nottebohm de la fausse securite dont ces actes lui avaient
donne l'impression, il faudrait assurement que ces actes constituent
de maniere claire et non equivoque une reconnaissance definitive
de la parfaite regularite et sincerite du changement de nationalite
survenu. ... Or les actes invoques n'ont manifestement pas ce
caractere." 76 The Liechtenstein Memorial pointed out that the
doctrine of estoppel had been frequently considered by international
71 The Reply submitted by the Government of Liechtenstein stated that the
Government " attaches but secondary importance to the question of the principle
of estoppel." However, the Government of Liechtenstein felt bound to
point out that, since under the Guatemalan Aliens Law inscription in the
register of aliens had the effect of creating a legal presumption that the alien
was of the nationality registered, only clear and positive evidence could rebut
that presumption. (Nottebohm case, I.C.J. Pleadings, Vol. 1, p. 393.)
72 Ibid., p. 41.
73 Ibid.
74 Ibid., pp. 41-42.
75 The occasions on which it was alleged that the Government of Guatemala had
recognised and accepted the change of nationality as effective are set out in
paragraph 4 of the Liechtenstein Memorial. (Ibid., p. 25.)
6 Ibid., p. 196.
JULY 1958] 483
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International and Comparative Law Quarterly [VOL. 7
tribunals, stressing that in each case " the decision of the tribunal
has turned not upon the existence of the doctrine but upon the facts
of the particular situation." 77 A formulation of the principle was
vouchsafed in general terms,78 prefaced by the observations that
the doctrine of estoppel is similar in both international and
municipal law, and that it "is not, notwithstanding its apparent
technical connotation, a formal and artificial rule of law " but " is
essentially grounded in considerations of good faith and honest
conduct in the relations of States and individuals alike." 79
The International Court of Justice, in its judgment in the
Nottebohm case (second phase), adopted the same approach as
that noted in the Guatemalan Counter-Memorial with regard to
the Liechtenstein argument that Guatemala had "recognised the
naturalisation which it now challenges and cannot therefore be
heard to put forward a contention which is inconsistent with its
former attitude." 80 The Court did not cavil at the principle but
examined the acts on which reliance was placed. It found that
they " proceeded on the basis of the statements made to them by
the person concerned," 81 that " one led to the other," 81 that they
had " reference to the control of aliens in Guatemala and not to
the exercise of diplomatic protection," 82 and that " there did not
thus come into being any relationship between governments." 82
The Court therefore concluded: "There is nothing here to show
that before the institution of proceedings Guatemala had recognised
Liechtenstein's title to exercise protection in favour of Nottebohm
and that it is thus precluded from denying such a title." 83
77 Ibid., p. 42.
78 "If one party has by any clear and unequivocal act or assertion led the other
party to believe that that act is valid or that assertion true, and in reliance
upon that act or assertion the second party has acted or refrained from acting
in a manner which results in detriment to that party, the first party is thereafter
precluded from denying as against the second party the validity of that
act or the truth of that assertion." (Ibid.)
79 Ibid.
80 Nottebohm case (second phase), Judgment: I.C.J. Reports, 1955, p. 4 at p. 17.
81 Ibid., p. 17.
82 Ibid., p. 18. Compare the finding of the tribunal in the Croft case, that the
admissions alleged could not found an estoppel because they were internal
rather than international acts. (See Lauterpacht, Private Law Sources and
Analogies of International Law (1927), pp. 205, 267-269.)
83 Nottebohm case (second phase), Judgment: I.C.J. Reports, 1955, p. 19. In his
dissenting opinion in the Asylum case, Judge Azevedo, noting that the course of
the case had been changed by the issue of " the competence of the Court to
decide on problems which had been raised only in the counterclaim " (I.C.J.
Reports, 1950, p. 351), stated: "I cannot, for my part, remain indifferent to
such a practice, which is reminiscent of the Anglo-Saxon concept of estoppel,
nor could I accept that the onus of proving urgency should, at the eleventh
hour, be placed upon the applicant who, in respect of the counterclaim, became
the respondent, when, in the absence of any objection regularly presented on
the point of urgency, the procedural rule applied according to which facts not
disputed by the other party should be assumed to be true." (Ibid.)
484
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Estoppel in International Law
The principle of estoppel featured in the jurisprudence of the
Permanent Court of International Justice in the cases of the Serbian
and Brazilian Loans,84 more prominently in the case concerning
the Legal Status of Eastern Greenland,85 and, if the related concept
urged by the United Kingdom in its statements in the course of
the proceedings in the case concerning the Interpretation of the
Peace Treaties is accepted, in the Chorzow Factory case and in the
other cases cited in the statement which the representative of the
United Kingdom made to the Court on June 28, 1950.86 In
the course of its Advisory Opinion concerning the Jurisdiction of
the European Commission of the Danube the Permanent Court
stated that " as all the Governments concerned in the present
dispute have signed and ratified both the Treaty of Versailles and
the Definitive Statute, they cannot, as between themselves, contend
that some of its provisions are void as being outside the
mandate given to the Danube Commission under Article 349 of
the Treaty of Versailles." 87 In its judgment in the case concerning
the Diversion of Water from the Meuse, the Permanent Court found
it " difficult to admit that the Netherlands are now warranted in
complaining of the construction and operation of a lock of which
they themselves set an example in the past." 88
Similarly, the doctrine has featured in the proceedings of many
arbitral tribunals. A detailed analysis of the application of
estoppel in the pleadings and the awards has been made by Judge
Lauterpacht with regard to the Pious Fund of the Californias
84 P.C.I.J., Series A, Nos. 20-21, pp. 38-39. In these cases, with their emphasis
on private law, the Court by implication approved the principle but pointed out
that no sufficient basis had been shown for its application, drawing attention
to the absence of the constituent elements of estoppel and noting the lack of any
" clear and unequivocal representation by the bondholders upon which the
debtor State was entitled to rely and has relied," and of any " change in
position on the part of the debtor State." (Ibid., p. 39.)
85 P.C.I.J., Series A/B, No. 53. Norway maintained that the attitude of Denmark
when seeking recognition of her position in Greenland from other States
between 1915 and 1921 was inconsistent with the possession of sovereignty at
that time, and that Denmark was therefore estopped from alleging a longestablished
sovereignty over the whole of Greenland. (Ibid., p. 45.) The
Court, however, found that the circumstances provided no ground for holding
Denmark thus estopped. (Ibid., p. 62.) The Court observed that by accepting
as binding several treaties "Norway reaffirmed that she recognised the whole
of Greenland as Danish; and thereby she has debarred herself from contesting
Danish sovereignty." (Ibid., pp. 68-69.) The Court further stated: "It
follows that, as a result of the understanding involved in the Ihlen declaration
of July 22, 1919, Norway is under an obligation to refrain from contesting
Danish sovereignty over Greenland as a whole, and, a fortiori to refrain from
occupying a part of Greenland." (Ibid., p. 73.)
86 See Interpretation of the Peace Treaties, I.C.J., Pleadings, pp. 374-375. And
see above, p. 481.
87 P.C.I.J., Series B, No. 14, p. 23.
88 P.C.I.J., Series A/B, No. 70, p. 25. Dr. Cheng discusses this case under the
rubric allegans contraria non est audiendus (General Principles of Law as
Applied by International Courts and Tribunals (1953), p. 142).
I.C.L.Q.-7 32
JULY 1958] 485
Annex 190
International and Comparative Law Quarterly [VOL. 7
case,89 the Venezuelan Preferential Claims,90 the Russian Indemnity
case,9l the Behring Sea arbitration,92 the Croft case,93 the Alaskan
Boundary dispute,94 the Corvaia case,95 the British Guiana
Boundary arbitration,96 and a number of decisions of the British-
American Claims Commission constituted under the Convention
of 1910.97 The doctrine was also considered in the Tinoco Arbitration
between Great Britain and Costa Rica,98 in the Island of
Palmas arbitration, in the Grisbadarna arbitration between Norway
and Sweden, in the Hemming case, in the dispute between the
Cantons of Thurgau and St. Gallen, in the Landreau Claim between
the United States and Peru, in The Mechanic case between Ecuador
and the United States,99 in the Chamizal Arbitration 1 and in the
Shufeldt claim.2 Finally, attention may be drawn to a recent
article by Meron which includes a valuable analysis of a number
of other arbitral awards based on the principle of estoppel.3 The
author concluded: " The rules of ratification by conduct and of
estoppel with respect to ultra vires State contracts can be regarded
as specific applications of [the] broad principle [of good faith]
and can be expressed by the maxims: allegans contraria non est
audiendus and nullus commodum capere de sua injuria propria." 4
89 See Lauterpacht, Private Law Sources and Analogies of International Law
(1927), pp. 205, 248-249.
90 Ibid., pp. 205-206, 253-255. And see below, p. 506. 91 Ibid., pp. 206, 259-260. '2 Ibid., pp. 223-224.
93 Ibid., pp. 205, 267-269.
94 Ibid., p. 235. 95 Ibid., p. 206, note 1.
96 Ibid., pp. 232-233. 97 Ibid., pp. 277-281.
98 Costa Rica objected that " Great Britain by her failure to Government is estopped now to urge claims of her subjects acts and contracts of the Tinoco Government." The rejection in the Award has been noted above, pp. 477-478.
99 The tribunal stated that Ecuador " having fully recognised and claimed the
principle on which the case now before us turns, whenever from such a recognition
rights or advantages were to be derived, could not in honour and good
faith deny the principle when it imposed an obligation" (Moore, History and
Digest of the Arbitrations to which the United States have been a Party (1898),
Vol. 3, p. 3226). It has been pointed out by Dr. Jenks, on the one hand, that
the case was not decided on the ground of estoppel (British Year Book of
International Law, 29 (1952), p. 122); and by Dr. Schwarzenberger, on the
other, that on one point it could have been decided entirely on grounds of
estoppel (International Law, Vol. 1 (3rd ed., 1957), Part 1, p. 177, note 3).
1 See the American Journal of International Law, 5 (1911), pp. 785 et seq. And
see below, p. 503.
2 The Arbitrator stated that it was unnecessary for him to deal with the second
United States contention, which was to the effect " that the Guatemalan
Government having recognised the validity of the contract for six years, and
received all the benefits to which they were entitled under the contract, and
allowed Shufeldt to go on spending money on the concession, is precluded from
denying its validity, even if the approval of the legislature had not been given
to it " (American Journal of International Law, 24 (1930), p. 813). He did,
however, remark that this contention was " sound and in keeping with the
principles of international law " (ibid., p. 814).
3 " Repudiation of ultra vires State Contracts and the International Responsibility
of States," in this Quarterly, Vol. 6 (1957), pp. 273 et seq., at pp. 282-
286.
4 Ibid., p. 286.
486
Annex 190
Estoppel in International Law
III
OPINIONS GIVEN BY LEGAL ADVISERS TO THE
BRITISH GOVERNMENT
The extracts from Reports of the Law Officers of the Crown, upon
which this section is largely based, are intended to illustrate some
of the aspects of estoppel which have been considered in the course
of the day-to-day conduct of the relations of Great Britain with
other States. They may be set out conveniently, albeit with some
artificiality, under the following separate headings: (1) The effect
of previous admissions; (2) The principle of consistency; (3) The
effect of previous recognition; (4) A State asserting a right is
barred from avoiding the obligations which the exercise of the
right entails; (5) A State is barred from asserting a claim the
legality of which it has previously contested; and (6) A State is
barred from questioning the legality of a claim which it has itself
asserted or condoned. Finally, some examples of United States
practice are mentioned.
The effect of previous admissions. It has been suggested that
an admission "does not . . . have the same effect as an equitable
estoppel. ... Unlike the latter, an admission does not peremptorily
preclude a party from averring the truth. It has rather
the effect of an argumentum ad hominem, which is directed at a
person's sense of consistency, or what in logic is paradoxically
called the 'principle of contradiction.' An admission is not
necessarily conclusive as regards the facts admitted. Its force
may vary according to the circumstances." 5 It will be seen in
the following examination of the advice given to governments that
this distinction, which is often difficult to draw in particular cases
and which appears to depend upon a technical view of the nature
of estoppel in international law, has been little regarded. The
principle of estoppel has been invoked in the broadest and most
general way, with the emphasis not, as with some judicial and
arbitral tribunals, on the more highly developed requirements of
the Anglo-Saxon concept of estoppel, but rather upon an insistence
on good faith and equitable conduct coupled with a lively awareness
of the dangers of adopting inconsistent attitudes at different times.
The following three reports, by the Queen's Advocate and by
the Law Officers, illustrate the varying extent to which reliance
has been placed upon admissions. On the complaint of a British
5 See Cheng, General Principles of Law as Applied by International Courts and
Tribunals (1953), p. 147: and see, generally, ibid., pp. 144-149. See also
Lauterpacht, Private Law Sources and Analogies of International Law (1927),
pp. 267-269, 277-279.
JULY 1958] 487
Annex 190
488 International and Comparative Law Quarterly [VOL. 7
shipowner that he had been fined illegally by the Custom-house
officials at Havana, the Queen's Advocate advised Earl Granville
that he might, if he thought fit, " hold the Spanish Government
bound by the despatch, of Senor Sagasta . . . in which he states
that the administrative agent of the customs in Cuba exceeded
his lawful powers in exacting the fine." For other reasons, however,
the Queen's Advocate considered that the Spanish Government
would have a good answer to any claim for demurrage by
the shipowner, and he guardedly concluded "that your Lordship
could not of right insist upon such payment unless your Lordship
should hold the Spanish Government to be precluded diplomatically
from objecting to such payment by the despatch of Senor
Sagasta." 6 When the authorities of the Canton of Vaud claimed
succession duty on the property of a certain Miss England, both
as to property in the Canton at the time of her death and as to
the major part in England, the Queen's Advocate reported: " That
the fact that the local authorities of the Canton de Vaud having
. . . admitted the claim of Miss England to be non-domiciled in
Switzerland would not be in my opinion a conclusive argument
against them if it stood alone.... But as it is coupled with the
fact that the same authorities never made any further attempt to
tax her during her lifetime, I think it is a conclusive argument
that they accepted her protest as rebutting any presumption of an
intention on her part to change her domicile arising out of her
modus vivendi in Switzerland." 7 On November 10, 1885, the Law
Officers approved the terms of a Draft Letter intended to affirm
to the Turkish Government the right of British vessels to participate
in the coasting trade of the Ottoman Empire. The Letter
stated that the right in question had been invariably maintained
by successive British Governments and exercised by British vessels
without any objection on the part of the Porte until 1881, and
that it had been declared by the Porte on a previous occasion.
"It appears to Her Majesty's Government," the Letter stated,
"that this declaration and admission by the Porte, having been
made as a result of a diplomatic controversy in reference to the
British right now claimed, and not having been founded on any
principle limited to a particular locality, must be taken as conclusive
of the present question." 8
The principle of consistency. The effect which the previous
adoption or approval by a State of an attitude or claim inconsistent
with a course which it later pursues or intends to pursue has
6 Report of the Queen's Advocate to Earl Granville, January 7, 1871: Spain.
7 Report of the Queen's Advocate to Earl Granville, May 5, 1871: Switzerland.
8 Report of the Law Officers to the Marquis of Salisbury, November 10, 1885:
Turkey.
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Estoppel in International Law
not invariably been envisaged as outright preclusion of the later
course; but there is no room to doubt that inconsistency in conduct
or views has been considered to be fraught with potential disadvantages.
In his Presidential Address to the Grotius Society
in 1944 Sir Cecil Hurst made a number of illuminating observations
on the considerations which might be expected to influence a
government which is faced with the task of deciding whether or
not to afford diplomatic protection to one of its nationals abroad.
Remarking that, if the complaints of its nationals appeared to be
well founded, a State would feel obliged to address itself to the
foreign government concerned, he added: "In arriving, however,
at its decision as to whether or not to make representations to the
foreign governments concerned, there is another element that will
come into play. The State will be bound to remember the consequences
of that fundamental principle . . . that, in the matter
of their legal rights, States stand on a footing of equality, and
that in consequence a State cannot, and must not, put forward a
claim as a claim of right on behalf of itself or of its citizens which
in the converse circumstances it would refuse to admit could be
put forward against itself." 9 With the exception of claims based
on treaty provisions, and apart from occasional bluff, "a State
will only put forward on behalf of itself or of its citizens claims
which it believes to be well founded, viz., based on some established
rule which it regards as equally binding on itself. No
government wishes to court a rebuff: therefore it will hesitate to
put forward a claim which it knows the other State will be entitled
to reject." 10
The more hesitant opinions, which are considered first,
admittedly disclose no opinio juris with regard to previous actions
or attitudes creating an outright bar to the adoption of a different
practice. They indicate, however, that inconsistency, if not acting
as a bar, at least constitutes an embarrassment: and this consideration
may weigh seriously enough with a government to induce it to
act in fact as if it were precluded in law from acting otherwise,
either by conforming with a past pattern of conduct or by adhering
to views on which it hopes to rely on a future occasion.
In 1863 the Queen's Advocate drew attention to the inconsistent
attitudes to the same question which the United States had adopted
on different occasions. In a despatch from Washington the British
Minister enclosed a copy of correspondence between the United
States Secretary of State and the Mexican Charge d'Affaires
" relative to the exportation of Articles contraband of War for the
9 Transactions of the Grotius Society, 30 (1944), p. 123.
10 Loc. cit.
JULY 1958] 489
Annex 190
International and Comparative Law Quarterly [VOL. 7
use of the French Army in Mexico." " The relevance of this
correspondence to the Alabama dispute between Great Britain and
the United States was noted by the Queen's Advocate in the
following passages from his report: " That such correspondence
appears to me valuable to Her Majesty's Government, as furnishing
irrefragable evidence of the different principles of law which the
Government of the United States applies to her answer to Mexico,
and to her demands upon Great Britain upon the same subject,
namely, the allowing a belligerent to be supplied with the means
of carrying on the war from a neutral territory. . . . The correspondence
in question will be of use whenever the complaints in
the matter of the Alabama be renewed, or any similar complaints
be made by the United States." 12
The Law Officers gave a warning in 1866 that, although neutral
governments had no reason for making representations on the
ground that they received from belligerents treatment more favourable
than they were entitled to demand, yet " if they do any act
wherefrom their approbation of this departure from the usual
rights of the belligerent, as a maxim of international law, is to be
inferred, they may most seriously embarrass their future action
when their country happens to be belligerent, and when perhaps
it may be of vital importance to the State to exercise the very
right of which it is now by implication recognising the abolition." 13
In 1883 the Law Officers were asked whether Turkey was entitled
to control arrangements which the Khedive of Egypt might make in
relation to the Suez Canal, in view of the wider powers of internal
administration which the Sultan had by Firman conferred upon
the Khedives of Egypt at various times. They took the view that
the matter in question was within the powers of the Khedive, but
they added: "We may observe that the position . . . is considerably
embarrassed by what took place between 1872 and 1876 in
relation to the Suez Canal dues. The authority of the Sultan over
the subject-matter in dispute was recognised by all parties, and
yet, under the Firman then existing, the independent power and
authority which had been granted to the Khedive did not differ
substantially from that now possessed by him." 14 The Law Officers
had no doubt that the Turkish Government would rely strongly
on this circumstance.
The advice of the Law Officers was sought in 1894 with regard
to the terms on which Great Britain and the Netherlands might
11 ReporL of the Queen's Advocate to Earl Russell, February 24, 1863: U.S.A.,
printed in McNair, International Law Opinions, Vol. 3, pp. 183-184.
12 Ibid., p. 184.
13 Report of the Law Officers to Lord Stanley, August 8, 1866: Italy.
14 Report of the Law Officers to Sir Julian Pauncefote, November 21, 1883: Egypt.
490
Annex 190
Estoppel in International Law
agree to arbitration in the case of the Costa Rica Packet. It was
pointed out that, in order to assist a speedy settlement, the British
Government had waived their original claim for compensation for
the crew and owners of the vessel and had confined their claim to
one in respect of the master. It was questioned "whether, after
having once expressly disclaimed the intention . . . Her Majesty's
Government would now be justified in putting forward the more
extended claim for the consideration of the Arbitral Tribunal,
laying themselves open to a charge of inconsistency which would
deprive it of much of its moral force." 15 The Law Officers reported:
" In the event of Her Majesty's Government deeming it right to
accept the proposal for arbitration, they would not, as a matter
of law, be precluded from stipulating that the whole of the original
claim should be submitted for the consideration of the arbitrators.
Whether they should withdraw from the statement already made
. . . is a matter of policy. The fact of such a statement having
been once made would, however, greatly prejudice the case before
any arbitrators, and might prevent the arbitration from satisfying
the colonial feeling, and these considerations should not be lost
sight of." 16
During the war with South Africa, the British Government
obtained the advice of the Law Officers on the legality of visiting
and searching a neutral German merchant vessel for despatches
addressed to the South African Government by the representative
accredited by South Africa to a number of European States. With
regard to the question of the propriety of treating such despatches
as contraband, the Law Officers drew attention to the fact that in
1862 Earl Russell had addressed to Lord Lyons in Washington a
despatch in which the immunity of diplomatic correspondence on
neutral vessels had been forcefully asserted. "We submit, for
the consideration of Her Majesty's Government," the Law Officers
continued, "whether it is desirable on the present occasion to put
into force a supposed right against the existence of which there
is a great body of authority, and in contravention of which the
attitude of Her Majesty's Government in the despatch just referred
to would certainly be relied on." 17
Finally, an earlier report may be noted in which the Law Officers
considered the complaints made with regard to the service of
British seamen on the Alabama in relation to the grounds on which
the United States Secretary of State justified the inducements made
to persuade British seamen to serve in the forces of the United
15 Reference by the Foreign Office to the Law Officers, July 23, 1894: Netherlands.
16 Report of the Law Officers to the Foreign Office, August 15, 1894: Netherlands.
17 Report of the Law Officers to the Foreign Office, December 23, 1899: Africa.
JULY 1958] 491
Annex 190
492 International and Comparative Law Quarterly [VOL. 7
States. The Report of the Law Officers began as follows: " That
the position taken up by Mr. Seward ought not to be left unnoticed.
? It is in substance that it is perfectly competent to the Federal
Government to induce, so that neither violence nor fraud be used,
Her Majesty's subjects to act as belligerents, contrary to the
Foreign Enlistment Act, and in direct opposition to the principles
of international law contended for by Mr. Adams in the case of the
Alabama. ? This is a circumstance not to be forgotten, in any
future correspondence between Her Majesty's Government and
Mr. Adams on the subject of that ship." 18
Although, in the preceding reports, the Law Officers did not
indicate the extent to which reliance might be placed on this type
of inconsistency, and, in particular, did not assert that it constituted
a complete bar, they have on other occasions expressed
approval of somewhat stronger views on the effect of inconsistent
conduct. In 1882 the Law Officers gave their approval to the draft
of a despatch which Earl Granville proposed to send to the British
Minister at Washington concerning issues raised by the United
States in their interpretation of the Clayton-Bulwer Treaty of 1850.
The draft despatch pointed out that since the United States, subsequent
to the conclusion of its treaty of 1846 with New Granada,
had concluded treaties with Great Britain and other States carrying
out the general principle of the Clayton-Bulwer Treaty, which was
opposed to all idea of exclusive advantages in any inter-oceanic
communication to be constructed, they could hardly appeal,
without inconsistency, to the New Granada treaty as giving them
exclusive rights of protection over the projected Panama Canal.
Turning from the principle of consistency to a line of argument
in which recognition was invoked as an estoppel, the draft despatch
continued: "It would seem, then, to be opposed to all sound
principle, that the United States should now claim to abrogate the
Treaty of 1850 by reason of the existence of a state of things
which has prevailed, to their knowledge, before as well as since
its ratification, to which the Treaty was never intended to apply,
and notwithstanding the known existence of which they have more
than once recognised the Treaty as subsisting." 19
18 Report of the Law Officers to Earl Russell, January 16, 1863: U.S.A., printed
in McNair, International Law Opinions, Vol. 3, p. 183.
19 The Draft Despatch is printed as an Annex to the Report of the Law Officers to
Earl Granville, November 25, 1882: United States. It is interesting to note
that the Draft Despatch intended to rely upon a Memorandum drawn up by a
member of the State Department Bureau of Claims as a further admission in
favour of the British contention. The Law Officers, however, observed that
"It is a question of diplomatic propriety and precedent whether it can properly
be relied on," but thatf " if any reasonable diplomatic objection could be taken
to its use . . . the reference to it had better be omitted." They stated that
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Estoppel in International Law
The depredations and subsequent fate of the Peruvian rebel
ironclad Huascar led to the appearance in the reports of the Law
Officers of two instances forming an unusual double estoppel.
The Peruvian Government, it will be recalled, declared by a decree
in May, 1877, which was officially communicated to foreign
governments, that Peru would accept no responsibility for the acts
of the rebels into whose hands the Huascar had fallen. The Law
Officers, reporting on the claim of a British firm, Messrs. Anthony
and Tate, for payment from the Peruvian Government for coal
and material taken from the British vessel Imucina by the Huascar,
concurred with the opinion " that in view of the decree issued
by the Peruvian Government on May 8, disclaiming responsibility
for the acts of the Huascar, and in view also of the fact that Her
Majesty's Government relied mainly on that decree in justification
of the attack made upon the Huascar by Her Majesty's ships, it
was impossible for them to present the claim of Messrs. Anthony
and Tate to the Peruvian Government." 20 In the following year
the Law Officers approved the terms of a communication which the
Earl of Derby proposed to send to the Peruvian Minister in reply
to the demand by the Peruvian Government for satisfaction in
respect of the action which Rear-Admiral de Horsey had taken
against the Huascar. The Earl of Derby forcefully defended the
action of Rear-Admiral de Horsey in the protection of British lives
and property, and he stated that Her Majesty's Government
" cannot admit the right of the Peruvian Government, whilst
disclaiming by a public Decree, all responsibility for the acts of
the Huascar as a rebel ship, to regard her at the same time as a
national vessel, and to resent as a national injury the reprisals
which she brought upon herself by the outrages which she committed
on a foreign flag." 21
The efect of previous recognition.22 The question whether a
State is justified in protesting against a claim or in denying the
existence of a right which it has previously recognised was considered
by the Queen's Advocate in a Report in 1868 on the legality
of the proposed annexation of territory by the Transvaal Republic.
Although he took the view that the claim as a whole could not
be sanctioned, he observed that the terms of a Convention of 1852,
under which the Boers who settled beyond the river Vaal were
recognised to have established a separate government, would
they were " not in a position to judge in what light a document is regarded
which is unofficially communicated in answer to official representations." (Ibid.)
20 Report of the Law Officers to the Earl of Derby, October 9, 1877: Peru.
21 The draft letter from the Earl of Derby to Senor Galvez is printed as an Annex
to the Report of the Law Officers to the Earl of Derby, March 5, 1878: Peru.
22 On the effect of previous acquiescence, see below, pp. 501 et seq.
JULY 1958] 493
Annex 190
494 International and Comparative Law Quarterly [VOL. 7
"preclude Her Majesty's Government from disputing any title"
which the Republic might have acquired to the north of the river.23
In 1902 the Foreign Office referred to the Law Officers the
question whether Persia, after the conclusion of an arrangement
with Turkey whereby she was released from tariff obligations, was
also relieved of her engagements towards Egypt. It was pointed
out that Persia could not plead ignorance of the effect of a Firman
of 1873, since discussions had taken place subsequently when she
signed with Egypt two separate Conventions regarding tobacco,
and that she thereby appeared to have admitted that Egypt was
a separate country for customs purposes. The reference indicated
that it might be argued that Persia was entitled to maintain that
her contracts were with Turkey, and that she could recognise no
other party to them; and it continued: " The answer to this
contention seems to be that it was open to Persia to make a
declaration to that effect when the Firman was first brought to
her notice, and to have maintained that position by steadily
declining to negotiate with Egypt, but that it is not competent to
her to revert to an attitude of protest after concluding separate
Conventions with Egypt in regard to tobacco." 24
The Law Officers have taken the view that recognition of a
state of belligerency with regard to one of the contestants bars
a denial of belligerent status of the other. When San Domingo
revolted against Spain in 1864 the Spanish Government instituted
a blockade of the Dominican coast. An efficient blockade was
maintained and British ships were seized for breach of the blockade.
By recognising the blockade the British Government had, in effect,
accorded belligerent rights to Spain. The Law Officers began
their Report as follows: "That we think Her Majesty's Government
cannot, consistently with the principles and practice of international
law, refuse to recognise the Dominican insurgents as
belligerents, inasmuch as Her Majesty's Government has already
accorded to the Spanish Government the rights of a belligerent
Power, that is, rights incident, and incident only, to a state of
war. 25
Similarly, previous recognition of the validity of an objection
to a claim has been considered effective to estop a later assertion
of the claim. The Law Officers were asked to advise on the
claim of the United States for compensation in respect of the
losses sustained by American fishermen in the exercise of their
fishery rights under the Treaty of Washington on account of the
23 Report of the Queen's Advocate to Lord Stanley, October 29, 1868: Africa
(South).
24 Reference by the Foreign Office to the Law Officers, November 17, 1902: Egypt.
25 Report of the Law Officers to Earl Russell, November 22, 1864: Spain.
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Estoppel in International Law
interference and obstruction caused by British fishermen at Fortune
Bay, Newfoundland, in January, 1878. The Reference, pointing
out that it was important to determine whether the American
fishermen were bound by the local laws which they were alleged
to have violated, drew attention to previous inter-governmental
correspondence from which it appeared that, as a result of United
States objections, legislation had been repealed and a new Act and
Proclamation substituted from which the objectionable proviso
had been omitted. It expressed " grave doubts whether Her
Majesty's Government were not now precluded from maintaining "
that the fishery laws were binding on citizens of the United States.
The Law Officers took the view that the actions of the Newfoundland
legislature must be understood as a substantial recognition of
the objection of the United States to the earlier legislation and that
consequently the restrictions created by local legislation could not
be insisted upon by the British Government.26
In 1881 the Law Officers were asked to advise in respect of the
extent to which rights of navigation by British vessels on the
Tigris and Euphrates still subsisted. Their Report, after reviewing
evidence of persistent Turkish opposition to the claims which
were made on the basis of an alleged arrangement concluded by
Sir Stratford Canning, concluded: "Considering, therefore, the
unsatisfactory nature of the evidence of that arrangement . . . and
that the authority alleged to have been given appears not to have
been acted upon, that for nearly twenty years the Turkish
Government have practically denied its existence, and that Her
Majesty's Representatives at the Porte, so far from insisting that
it existed and relying upon it, have sought permission which would
have been needless if it were in force, we think the general right
to navigate the Tigris and Euphrates cannot now be claimed by
British vessels under the arrangement of 1846." 27
A State asserting a right is barred from avoiding the obligations
which the exercise of the rights entails. The Law Officers made
this point in a Report in 1864 concerning the revolt of San Domingo
from Spain. They wrote: " When the Spanish Government, in
the autumn of last year, announced to neutral Governments their
intention to put the Dominican coast under blockade, they virtually
asserted, by that very act, the existence of . . . a state of war;
and, while claiming its rights, they bound themselves to fulfil its
obligations. " 28
26 Report of the Law Officers to Earl Granville, July 15, 1880: United States.
27 Report of the Law Officers to Earl Granville, November 18, 1881: Turkey.
28 Report of the Law Officers to Earl Russell, August 22, 1864: Spain. An
extract from this Report is printed in McNair, International Law Opinions,
Vol. 1, pp. 140-141.
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Annex 190
International and Comparative Law Quarterly [VOL. 7
Almost a year earlier, in a report concerning the American Civil
War, the Law Officers emphasised that a contestant in a civil war
which has benefited from the recognition by neutral States of the
existence of a state of war is barred from denying that the other
contestant is entitled to enjoy the same benefits. With regard to
an intimation from the United States Government that it was
prepared to maintain its right to deny the competence of all
Confederate Prize Courts and the validity of their sentences, the
Law Officers wrote: "Stripped of all ambiguous and superfluous
language, the position is simply this: That the United States
Government, having demanded and obtained from all Neutral
States the peculiar rights incident during a state of war only, and
to a belligerent only, and having exercised these rights to the
great annoyance and distress of neutral commerce, now declare
that they will not discharge the corresponding duties of a belligerent;
now deny that their enemy has any right to establish a
Prize Court, and declare their determination not to respect any
title to property condemned by that Court, though it be a title
universally recognised by all civilised States, and although neutral
States have a right to insist on the existence of such a court in
the territory de facto occupied by the Confederate States. Upon
these principles it is manifest that the maintenance of a blockade,
the search, visit, and condemnation of neutral ships, put in practice
by the United States, instead of being lawful acts, are so many acts
of unjustifiable violence, insult, and wrong. We think that upon
this point there should be sent without delay, to the United States
Government as strong and full a remonstrance as can be framed." 29
A State is barred from insisting on a claim to which it has itself
previously taken objection on legal grounds. In 1890 the Law Officers
gave their approval to the view held by the Foreign Office that a
successor State was estopped from claiming a right to the exercise
of which by its predecessor it had taken objection. This contention
was advanced in a despatch which it was proposed to send to the
British Ambassador in Washington, to indicate the intention of
the British Government to continue to protest against the seizure
of Canadian vessels in the Behring Sea by United States revenue
cutters. In the course of a detailed examination and rebuttal of
the United States contentions, the despatch recalled various United
States official statements which showed that before the cession of
Alaska the United States did not hold the views for which she
now contended. In reply to the assertion that all friendly nations
29 Report of the Law Officers to Earl Russell, September 16, 1863: U.S.A. An
extract from this Report is printed in McNair, International Law Opinions,
Vol. 1, pp. 139-140.
496
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Estoppel in International Law
wculd concede to the United States the same rights and privileges
in respect of Alaska which they had always conceded to the Empire
of Russia, the despatch concluded: " Her Majesty's Government
have no difficulty in making such a concession. In strict accord
with the views which, previous to the present controversy, were
consistently and successfully maintained by the United States, they
have, whenever occasion arose, opposed all claims to exclusive
privileges in the non-territorial waters of Behring's Sea. The rights
they have demanded have been those of free navigation and fishing
in waters which, previous to their own acquisition of Alaska, the
United States declared to be free and open to all foreign vessels.
That is the extent of their present contention." 30
A State is barred from questioning the legality of a claim which
it. has itself asserted or condoned.31 The justification which exists
for protest directed against conduct which is not permitted by
international law may no longer be available to a protesting State
which has itself followed the same objectionable practice in the
past. The Queen's Advocate took this view in a report addressed
to Viscount Palmerston in 1839, at a time when France and
Mexico were at war. At the end of a report on the question of
the right of Mexican courts to adjudicate French prizes while they
lay not in Mexican but in neutral ports the Queen's Advocate
stated: "I wish it . . . to be distinctly understood that this right
of a Mexican Court to adjudicate French prizes whilst lying in
Neutral Ports is not sanctioned by any original Principles of the
Law of Nations, but is only to be justified by the practice of
France Herself, which in late Wars has largely indulged in this
species of Irregularity. France can have no right to complain
if its Enemy pursues the same course which she has Herself
thought fit to adopt. In Jure Belli, quod quis sibi sumit Hostibus
est tribluendum." 32
In 1880 the Law Officers reported with regard to the practice
of the Chinese Consul at Singapore in granting Chinese registers
to vessels owned by Chinese that, if the certificates were intended
to be in substitution for the regular certificate of registration,
objection might properly be taken; but, they stated, " [if] these
30 The despatch is printed as Annex I to the Reference by the Foreign Office to
the Law Officers, May 26, 1890: United States.
31 The Law Officers stated the general proposition briefly in the course of a Report
on the doctrine of continuous voyage in which they wrote: "That Her
Majesty's Government cannot . . . deny the belligerents in this war the exercise
of those rights which in all wars in which Great Britain has been concerned
she has claimed to exercise herself." (Report of the Law Officers to Earl
Russell, April 1, 1863: U.S.A.)
32 Report of the Queen's Advocate to Viscount Palmerston, March 22, 1839:
Mexico, printed in McNair, International Law Opinions, Vol. 3, pp. 68-69.
JULY 1958] 497
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International and Comparative Law Quarterly [VOL. 7
certificates are merely provisional, the practice followed by British
Consuls under the Merchant Shipping Act would prevent Her
Majesty's Government from objecting to the use of similar documents
by the Chinese."33
The advice which the Law Officers had tendered with regard to
the grounds for objecting to the provisions of a South African Bill
respecting the treatment of aliens as being contrary to Article XIV
of the London Convention of 1884 prompted a request for the
Law Officers to give the matter further consideration. The views
of the United States Government on the effect of treaty provisions
similar to that Article were pointed out to them, and they were
asked "to consider whether by treating the Act of the Volksraad
as an infringement of Article XIV of the Convention of Her
Majesty's Government would give a handle to foreign Governments,
with which Great Britain had treaties containing similar Articles,
to object on Treaty grounds to such legislation as the Aliens Bill
introduced by the Marquess of Salisbury in the House of Lords in
1894." 34
In a Report in which they advised on the formalities to be
observed in acquiring title to territory, the Law Officers referred
to the question of the validity of cession to a State by nationals
who had acquired sovereign rights over territory. They pointed
out: "We have hitherto, as in the case of the Borneo Company,
for example, recognised as valid the transfer of sovereign rights to
individual subjects of our own. We gather, too, that we have
acknowledged the acquisition of such rights by the International
Association, and we presume that it would not be consistent with
our policy in this respect to deny the right to obtain future cessions
of the same description." 35
The British Government was warned by its legal advisers in
i854 of the difficulty of denying to other States in the future the
exercise of a right which it had earlier persisted in claiming for
itself. During the Crimean War the Law Officers, in conjunction
with the Admiralty counsel, reported on the circumstances in
which officers in charge of prizes might, on a plea of necessity,
demand as of right the shelter and protection of neutral ports.
Although they reported that, in the absence of authority, the
question was not free from doubt, and they were unable to reach
unanimity, they drew the attention of the Government to "the
33 Report of the Law Officers to Earl Granville, September 13, 1880: China.
34 Reference by Mr. Chamberlain to the Law Officers, December 4, 1896: Africa.
The Law Officers took the view that, since the Act as passed was substantially
different from the Bill which formed the subject of their earlier Report, no
protest should be made against it as being in itself an infraction of Article
XIV.
35 Report of the Law Officers to Earl Granville, January 7, 1885: Africa.
498
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Estoppel in International Law
expediency of pressing this claim upon the Swedish Government
as coming within the terms and spirit of their own phrase, ' circonstances
majeures '." 36 The Report continued with the following
caveat: "At the same time we desire to point out that the
expediency of so doing will depend upon the course which Her
Majesty's Government might be prepared to take on this subject
under similar circumstances in the event of Great Britain being
neutral in a war between other naval Powers, and desiring to
exclude prizes from her ports." 36
In a Memorandum prepared in the Colonial Office in February,
1891, and approved by Lord Salisbury, the writer stated: "It
must be remembered that if Her Majesty's Government claim to
exercise jurisdiction over foreigners by the above methods, they
will, if not expressly estopped by their acceptance of the General
Act of the Brussels Conference, be necessarily precluded from
claiming that British subjects are exempt from jurisdiction in
foreign Protectorates. But it is understood that no such exemption
is claimed for this country." 37 Earlier in the same Memorandum
the writer stated his understanding that all the Powers represented
at the Berlin Conference of 1884-85, with the exception of Great
Britain, maintained that a Protectorate included the right to
administer justice over the subjects of other civilised Powers. " It
would seem, therefore," the Memorandum continued, " that if
Great Britain were now to adopt this principle in her own Protectorates,
the whole body of European Powers and the United States
of America are precluded from denying her right to do so; in other
words, have consented to the principle." 38
United States practice. The very limited number of examples
which follow disclose no significant difference, in their approach
to the issues involved, from the foregoing survey of British
opinions. Thus, in response to a request for instructions to permit
the United States Minister in Haiti to join the other members of
the Diplomatic Corps in a protest to the Haitian Government, the
Acting Secretary of State explained that the United States could
not take issue with the Haitian Government because under the
United States immigration laws the United States Government
36 Report of the Law Officers and the Admiralty Counsel to the Earl of Clarendon,
July 28, 1854: Crimean War Reports, printed in McNair, International Law
Opinions, Vol. 3, pp. 197-198.
37 Paragraph 23 of Memorandum as to the Jurisdiction and Administrative Powers
of a European State holding Protectorates in Africa, initialled J.B. (J. Bramston).
The Memorandum is printed as Annex 1 to a Report of the Law Officers
to Lord Knutsford, April 17, 1891: Africa. The Law Officers commented that
the paragraph quoted was somewhat too large in its terms, and should refer
only to the Protectorates recognised by the General Acts of the Berlin and
Brussels Conferences. 38 Ibid., paragraph 11.
JULY 1958] 499
Annex 190
International and Comparative Law Quarterly [VOL. 7
enforce exclusions against for example, Chinese, irrespective of
the consideration that the Chinese seeking admission may at the
time owe allegiance to a Power whose native subjects are ensured
free access to United States territory.39 In a reply to a request
from the British Ambassador to alter the policy of non-interposition,
the Acting Secretary of State, on February 16, 1912, stated that,
leaving aside general principles of international law, his Government
was compelled to adhere to its position, first because there
was no treaty between the United States and Haiti covering the
disputed matters, and " secondly, and more importantly, from the
consideration that any different conclusion would, as has been
intimated, be quite clearly inconsistent with our law practice and
our policy in regard to Oriental immigration. ... It would
appear, therefore, in view of the established policy and the law
and practice of this country as I have just described them, hardly
open to this Government to assert that the present action of the
Haitian Government is an offence against international comity." 40
On January 23, 1926, in a communication to the Secretary of
State, the Assistant Secretary of the Treasury stated: "Aliens in
the United States have been required to pay Federal income taxes
on their incomes from all sources under all the Revenue Acts
enacted since the adoption of the Sixteenth Amendment. It appears
to this Department, therefore, that the United States Government
is not in a position to object to the proposed French legislation
which would compel American residents of France to pay income
taxes on their incomes from all sources.41
When the Secretary of State was informed that the United
States Embassy in Madrid contemplated sending a protest in the
event of the seizure of gold belonging to American citizens, under
a Catalan Decree prohibiting all holdings of gold, the Consul
General at Barcelona was asked to inquire into the validity of
the decree and the peseta rate stipulated. The Secretary of State
concluded his despatch of September 10, 1936: "Defer protest
pending instructions. You are, of course, aware of our own
legislation that requires delivery of all gold to Federal Reserve
Banks. It is possible that Catalan plan is of same nature and is,
therefore, not subject to objection by us." 42
Finally, with regard to the taxation of non-resident aliens, the
Assistant Secretary of the Treasury informed the Secretary of
State on November 15, 1922, that " under the Revenue Act of
39 Despatch by the Acting Secretary of State to the American Minister in Haiti,
January 20, 1912: Foreign Relations of the United States, 1912, pp. 529-531.
40 Ibid., pp. 533-535.
41 Hackworth, Digest of International Law, Vol. 3 (1942), pp. 579-580.
42 Foreign Relations of the United States, 1936, Vol. 2, p. 705.
500
Annex 190
Estoppel in International Law
1921 a citizen of Canada, who is not a resident of the United
States, but who is employed on a railway which is operated both
in Canada and in the United States is liable to the payment of
income tax to the United States Government upon that portion
of his salary or wages earned by his services in the United States.
In view of this fact, any complaint or protest of the United States
Government against taxation by the Canadian Government of the
American railroad men in question would be unwarranted." 43
IV
ACQUIESCENCE AS AN ESTOPPEL
THE few writers who have discussed the question have had no
doubt that acquiescence was as apt to found an estoppel as recognition,
provided that the circumstances were such that acquiescence
could be equated with recognition 44 or consent,45 and subject to
the limitations normally associated with the doctrine of acquiescence.
46 Thus, Judge Lauterpacht has indicated the way in which
absence of protest may in itself become a source of legal right in
relation to estoppel or prescription. He pointed out that the farreaching
effect of failure to protest was in accordance with equity
"inasmuch as it protects a State from the contingency of incurring
responsibilities and expense, in reliance on the apparent acquiescence
of others, and being subsequently confronted with a challenge
on the part of those very States." 47
In his short study of estoppel in 1933 Witenberg argued that
silence could create an estoppel48; and emphatic support for this
proposition has come from Dr. Schwarzenberger. " Like recognition,"
he wrote, " acquiescence produces an estoppel in circumstances
when good faith would require that the State concerned
should take active steps of some kind in order to preserve its
rights of freedom of action"949; and again: "As in the case of
43 Hackworth, Digest of International Law, Vol. 3 (1942), p. 583.
44 See, e.g., the Opinion handed down by the United States Supreme Court in
1862 in The Amy Warwick et cet. (The Prize Cases). It was noted that the
British proclamation of neutrality issued on May 13, 1861, recognised the existence
of hostilities between the Government of the United States and the
self-styled Confederate States. The Court added: "This was immediately
followed by similar declarations or silent acquiescence by other nations. After
such an official recognition by the sovereign, a citizen of a foreign State is
estopped to deny the existence of a war with all its consequences as regards
neutrals." (Prize Cases -decided in the United States Supreme Court, Vol. 3
(1923), p. 1438.)
45 See the writer's observations in the British Year Book of International Law,
31 (1954), pp. 144-146, 170-171. 46 See ibid., pp. 168-170, 172-182.
47 British Year Book of International Law, 27 (1950), pp. 395-396.
48 Journal du Droit International, 60 (1933), pp. 531, 537-538.
49 " The Fundamental Principles of International Law," in Hague Recueil, 87
(1955), pp. 195 et seq., at p. 256.
I.C.L.Q.-7 33
JULY 1958] 501
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International and Comparative Law Quarterly [VOL. 7
extinctive prescription, acquiescence provides an alternative to
recognition and, likewise, creates an estoppel."50 After stressing
the function of the rules governing good faith in relation to the
acquisition of title to territory, he stated: " Their uniform function
is to create estoppels which prevent States from contesting titles
which they have recognised or in which they have acquiesced." 5"
The same author ascribed a similar effect to acquiescence with
regard to the termination of treaties by desuetude. Although
emphasising that tacit modification or abrogation of a treaty was
not lightly to be presumed, he added that " one of the parties
may take the line that a treaty is no longer binding, and the other
parties may acquiesce in this attitude. Provided that treaty rights
are granted to a party in its own interest, a party may also renounce
expressly its rights under a treaty. Such acquiescence or renunciation
creates an estoppel against subsequent invocation of the
treaty." 52
Acquiescence as an element of interpretation. In addition to
creating an estoppel as a result of its identification with recognition,
acquiescence may have a similar effect by virtue of its interpretative
function. This consequence of acquiescence may, as with other
aspects of estoppel, range from the persuasive to the peremptory
according to the circumstances. An indication of the cautious
attitude which was formerly prevalent with regard to the invocation
of estoppel in international proceedings was provided by counsel
for the United States before the Alaskan Boundary tribunal. In
a speech which adumbrated the relationship between the present
aspect of acquiescence and the international law estoppel, he said:
"If I shall be able to show that there was a concurrent view
between Russia and Great Britain which gave an interpretation
which was in effect at the time the United States bought, then the
United States would succeed to the rights of Russia under that
interpretation. I do not mean by way of estoppel, and I do not
mean to predicate anything upon that or upon the doctrine of
prescription, or upon the doctrine of acquiescence, so far as
acquiescence may set up an adverse claim . . and the only point
upon which I shall insist upon acquiescence is that acquiescence may
be looked to as indicating an understanding and interpretation." 53
50 Ibid., p. 259: and see ibid., p. 257.
51 American Journal of International Law, 51 (1957), p. 323.
52 International Law, Vol. 1 (3rd ed., 1957), Part 1, at p. 535.
53 Proceedings of the Alaskan Boundary Tribunal, Vol. 7, p. 813. See also, ibid.,
pp. 622, 878, 880. And see the interjection of the President of the Tribunal,
502
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Estoppel in International Law
However, in spite of this disclaimer of any intention of relying
upon acquiescence as an estoppel, that contention was nevertheless
put forward implicitly throughout the pleadings of the United
States.54
In the Chamizal arbitration of 1911, the United States argued
that Mexico was estopped from asserting title to the disputed
territory by reason of the long " undisturbed, uninterrupted and
unchallenged possession " enjoyed by the United States. Since
it was held that Mexican acquiescence had not been established,
the question of the application of the doctrine of estoppel did not
directly arise. Its validity, however, was not questioned either by
Mexico or by the Commissioners. Indeed, the President and the
American Commissioners adopted as conclusive the consideration
" that the two nations have, by their subsequent treaties and
their consistent course of conduct in connection with all cases
arising thereunder, put such an authoritative interpretation upon
the language of the Treaties of 1848 and 1853 as to preclude them
from now contending that the fluvial portion of the boundary
created by those treaties is a fixed line boundary." 55
Two Reports of the Law Officers in 1881 further illustrate the
close relationship between the interpretative aspect of acquiescence
and the concept of estoppel. In the first, which arose out of a
dispute with the Government of Hawaii concerning the meaning
of certain provisions, including a most-favoured-nation clause, of
the Anglo-Hawaiian Treaty of 1851, the Law Officers, noting that
the provisions might reasonably be construed in either of two ways,
stated: "It appears, however, that in 1855, when a Reciprocity
Treaty with the United States similar to that recently entered into
was in course of negotiation, Her Majesty's Representative in the
Hawaiian Islands, under the instructions of Lord Clarendon,
addressed to the Hawaiian Minister for Foreign Affairs a note, in
which it was expressly admitted that if such a Treaty of Commerce
were concluded by which concessions of Tariff were made in consideration
of reciprocal advantages, Great Britain could not, as a
matter of right, claim the same advantages for her trade under
the strict letter of the Treaty of 1851. And it is manifest that this
was the position then maintained by the Hawaiian Minister. We
have therefore both the persons who negotiated the Treaty putting
this construction upon it-a construction which, as we have said,
Lord Alverstone, to the effect that, while prescription properly so called was
not recognised in international law, estoppel and acquiescence might be of
considerable importance (ibid., Vol. 6, pp. 344-346).
54 See the Opinion of the United States members of the Tribunal. Cmd. 1877
(1904), p. 87. And see Lauterpacht, Private Law Sources and Analogies of
International Law (1927), p. 235.
55 American Journal of International Law, 5 (1911), p. 805.
JULY 1958] 503
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International and Comparative Law Quarterly [VOL. 7
it is well capable of bearing, and which, in view of the facts to
which we have referred, there can be little doubt that it was
intended to bear. Under these circumstances it would seem hardly
equitable that Her Majesty's Government should now insist upon
another construction of the Treaty . . . the more so as Article IV
of the Treaty has been since 1858 open to denunciation at any
time upon twelve months' notice; and it is possible that it would
have been denounced at an earlier period than it was, had not
Lord Clarendon acquiesced in the construction put upon the Treaty
by the Hawaiian Government." 56
The second question dependent upon the construction of treaty
provisions was whether, under the Anglo-Russian Treaty of 1859,
exemption might properly be claimed for British Jews in Russia
from the disabilities to which Russian Jews there were liable. The
Law Officers took the view that " In all probability Prince Gortchakoff
was anxious not to define matters too clearly, and designedly
permitted the terms of the Treaty to be somewhat ambiguous."
Their Report, however, ended: "We think . . . it is hardly open
now to Her Majesty's Government to insist upon a construction
of the Treaty at variance with that placed upon it in 1862.
The very question now under discussion was raised at that
time. The Russian Government took up the position that Her
Majesty's Government were not entitled to claim, under the Treaty,
that British subjects of the Jewish religion should enjoy the same
privileges as other British subjects, and this view was, we gather,
acquiesced in by Her Majesty's Ambassador at St. Petersburgh,
by the instructions of his 'Government, after the question had thus
been distinctly raised between the two Governments." 57
Judicial and arbitral decisions.58 The Statement of Reasons
which followed the Award in the Landreau Claim between the
United States and Peru, which was given on October 26, 1922, by
an Arbitral Commission presided over by Viscount Finlay, considered
the first question before the Commission on the basis of estoppel
by acquiescence. Theophile Landreau, a French citizen resident
in Peru, had borrowed money from his brother Celestin, an
American citizen, to enable him (Theophile) to carry out a search
56 Report of the Law Officers to Earl Granville, November 10, 1881: Pacific
Islands.
57 Report of the Law Officers to Earl Granville, November 5, 1881: Russia.
58 The close inter-relationship between acquiescence and estoppel was illustrated
in a decision of the Inner House of the Court of Session in 1955 in a case in
which one of the issues turned on the doctrine of personal bar in Scots law:
Ben Challum, Ltd. v. Buchanan, 1955 S.C. 348. Attention is drawn to it in
this context because a number of aspects of personal bar were discussed in
terms remarkably similar to those in which the notion of estoppel in international
law has been expressed. See, e.g., ibid., pp. 356-357, 359, 360-361.
504
Annex 190
Estoppel in International Law
for guano deposits for rewards offered by the Government of Peru.
It was agreed between the brothers that Celestin's interest in any
rewards earned should be 30 per cent. In 1892 Theophile granted
a release to the Peruvian Government cancelling his rights, and
the Commission found that the Peruvian Government had been
notified of the assignment to Celestin of 30 per cent. of the claim.
The Commission stated: " Of course if there was anything to show
that Celestin knew of this release at the time of its execution and
abstained from putting forward his claim, he and his representatives
would be estopped from making any claim against the
Peruvian Government, but there is nothing to show that there
was any such acquiescence in this transaction by Celestin." 59
The Commission concluded that there was "no sufficient foundation
for inferring that Celestin's representatives are estopped by
any conduct on his part from asserting the right to their 30 per
cent. share."60
The concept may have been applied without positive identification
in other instances.6' Thus a parallel to the rule suggested
by the Special Rapporteur to the International Law Commission
to cover the case where the invalidity of a treaty concluded in
disregard of constitutional limitations is invoked by a party which
has acted on the treaty 62 may be found in the decision in the
Iemming case in 1920. A claim was advanced before the British-
American Claims Arbitral Tribunal on behalf of Hemming, an
English lawyer, for services rendered while engaged during 1894
and 1895 by the United States Consul in Bombay in the prosecution
of persons accused of counterfeiting United States gold coin in
India. The United States contended that the Consul was not
authorised to employ private counsel in a prosecution which might
well have been conducted by the authorities of the Crown. Correspondence
before the tribunal, however, showed that the United
States Government was aware at the time of the employment of
Hemming and that it did not object to his continued employment
during the case. The extent to which considerations based on
59 Report of International Arbitral Awards (United Nations Series), Vol. 1,
p. 366. The Award, which is a short one, is printed ibid., pp. 35'2-353; and
the Statement of Reasons appended thereto, is printed ibid., pp. 353-367.
60 Ibid.
61 See, e.g., Lauterpacht, Private Law Sources and Analogies of International
Law (1927), pp. 224-225, where it is suggested that the question of prescription
in the Bchring Sea arbitration was implicitly related to estoppel in so far
as it could have been argued that the United States had relied on British
conduct from which it might be inferred that the purchase of Alaska carried
with it the rights in dispute. However, it was pointed out that the concept
was not mentioned in either the pleadings or the award, with the exception
of an interjection by Lord Hannen in which the possibility of arguing the case
on the ground of estoppel was suggested.
62 See above, pp. 471-472.
JULY 1958] 505
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International and Comparative Law Quarterly [VOL. 7
estoppel entered into the reasoning of the tribunal is not altogether
clear; but it was held that the conduct of the United States Government
must be regarded as an implicit ratification of the contract
entered into by the Consul, and it was considered to be immaterial
that the Consul had entered into it wrongly.63
The Award in the Venezuelan Preferential Claims, in addition
to the effect which it attributed to the Venezuelan recognition in
principle of the justice of the claims of the Blockading Powers,
was largely based upon the effect of acquiescence as an estoppel,
as the following reasons prefacing the operative part of the Award
indicate: "Whereas the Government of Venezuela until the end
of January, 1903, in no way protested against the pretension of
the Blockading Powers to insist on special securities for the settlement
of their claims. .. . Whereas the neutral Powers . . . did
not protest against the pretensions of the Blockading Powers to
a preferential treatment. . . . Whereas it appears from the
negotiations . . . that the German and British Governments constantly
insisted on their being given guarantees. . . . Whereas
the Plenipotentiary of the Government of Venezuela accepted this
reservation on the part of the allied Powers without the least
protest. . . . For these reasons [inter alia] the Tribunal of
Arbitration decides and pronounces unanimously." 64
The Arbitrator in the Island of Palmas arbitration invoked a
similar doctrine in stating that, even without taking into consideration
the recognition by the Treaty of Utrecht of the position in
1714, " the acquiescence of Spain in the situation created after
1677 [the establishment of the Dutch position in Sangi] would
deprive her and her successors of the possibility of still invoking
conventional rights at the present time." 65 Again, the Swiss
Federal Court, with regard to the denunciation by the Canton of
St. Gallen of an agreement with the Canton of Thurgau which had
been in effect since 1669, stated that a party invoking the clautula
rebus sic stantibus must invoke it within a certain defined time
from the change being perceived. The Court added: "But if the
servient Canton [the question raised concerned an international
servitude] nevertheless permits the relationship to continue for
decades, her conduct shows that these changed circumstances were
not present to her mind as the tacit condition of the agreement.
Hence, according to the principle of good faith which must obtain
63 Annual Digest, 1919-22, Case No. 114.
;,4 The Award is printed in Cmd. 1949 (1907). See also Lauterpacht, Private Law
Sources and Analogies of International Law (1927), pp. 205-206, 253-255.
G5 Reports of International Arbitral Awards (United Nations Series), Vol. 2,
p. 869.
506
Annex 190
Estoppel in Internaitional Lawz
in interstate matters as elsewhere, the change cannot later on be
invoked by her in order to obtain a release from the obligation." 66
The more pronounced the reliance upon considerations of good
faith the more sympathetic a tribunal may be expected to be in
the face of arguments based on the concept of estoppel. Circumstances
such as expenditure on the faith of a representation or
recognition constituted by acquiescence brings the principle
involved close to the more technical municipal law notion of
estoppel, although the expression may not be used. There is little
doubt that a concept of estoppel of this nature, based on obvious
considerations of good faith, lay behind the well-known Award in
the Grisbadarna Arbitration between Norway and Sweden. Among
the reasons for the allocation of the Grisbadarna bank to Sweden
was the " circumstance that Sweden has performed various acts
in the Grisbadarna region, especially of late, owing to her conviction
that these regions were Swedish as, for instance, the placing of
beacons, the measurement of the sea, and the installation of a
light-boat, being acts which involved considerable expense and in
doing which she not only thought she was exercising her right but
even more that she was performing her duty; whereas Norway,
according to her own admission, showed much less solicitude in
this region in these various regards."67 After adverting to the
maxim quieta non movere, the tribunal laid further stress on the
co-existence of expenditure and acquiescence, in the following
words: " The stationing of a light-boat, which is necessary to the
safety of navigation in the regions of Grisbadarna, was done by
Sweden without meeting any protest and even at the initiative of
Norway, and likewise a large number of beacons were established
there without giving rise to any protests. ... It is shown by the
foregoing that Sweden had no doubt as to her rights over the
Grisbadarna and that she did not hesitate to incur the expenses
incumbent on the owner and possessor of these banks even to the
extent of a considerable sum of money." 68
State pleadings. In the dispute between Great Britain and the
United States concerning the Title to Islands in Passamaquoddy
Bay, the concluding passage of the British Case observed that,
in view of the silence of the United States with regard to the island
of Grand Manan for some twenty-three years, and the admission
of the United States of the fact of British settlement in and jurisdiction
over the island during that period, " [it] may admit of
some doubt whether this profound silence . . . ought not now to
preclude all further claim to it on their part, even though their
66 Annual Digest, 1927-28, Case No. 289.
67 Scott, The Hague Court Reports (1916), p. 130. 68 Ibid., p. 131.
JULY 1958] 507
Annex 190
International and Comparative Law Quarterly [VOL. 7
pretensions might originally have had some foundation " 9; and
that doubt was strengthened, the Case continued, by the principle
laid down by the Agent for the United States in his argument
before the Commissioners under Article IV of the Treaty of 1794
(the Treaty of Ghent), in which he contended that, had the State
of Massachusetts remained silent spectators of the improvements
made upon the British Settlement on territory claimed by the United
States, that would have indicated that the State of Massachusetts
had no claim to the territory.70
In the course of the correspondence respecting the boundary
between Venezuela and British Guiana, the United States Secretary
of State, in a passage incorporated in the Venezuelan Argument,
dismissed British claims to have established title to the disputed
territory on the basis of the settlements made by British subjects
in the belief that the territory was British, on the ground that the
British and not the Venezuelan Government had perpetrated and
encouraged that belief, and that it was simply a matter between
the persons concerned and the British Government. The Secretary
of State concluded: "In but one possible contingency could any
claim of that sort by Great Britain have even a semblance of
plausibility. If Great Britain's assertion of jurisdiction, on the
faith of which her subjects made settlements on territory subsequently
ascertained to be Venezuelan, could be shown to have
been in any way assented to or acquiesced in by Venezuela, the
latter Power might be held to be concluded and to be estopped
from setting up any title to such settlements." 71
A similar argument was advanced by the Norwegian Government
in the Fisheries case; and Judge McNair, although not
prepared to hold that the conduct of the United Kingdom amounted
to acquiescence, approached the problem in the same way by
posing the question whether, supposing the system of delimitation
adopted by Norway capable of being recognised as lawful, " the
United Kingdom had precluded herself from objecting to it by
acquiescing in it." 72
Counsel for the United Kingdom in the Minquiers and Ecrehos
case referred with approval73 to the above principles of the Grisbadarna
Award after arguing that "while maintaining a nominal
claim to the Minquiers and Ecrehos, the French authorities were
content to allow the Jersey authorities to discharge all the responsibilities
in connection with the administration of these groups,
,9 Moore, International Adjudications (Modern Series), Vol. 6, p. 195.
70 Ibid., p. 231.
71 Printed in the Venezuelan Argument, Cmd. 9501 (1899), p. 63.
72 I.C.J. Reports, 1951, p. 171.
73 Minquiers and Ecrehos case, Oral Pleadings, Vol. 1, pp. 161-162.
508
Annex 190
Estoppel in InWternational Law
and to incur the expenses of the installation and upkeep of slipways,
buoys, marks, beacons and other works from which navigation
in general could benefit." 74 At a later stage of the oral proceedings
Sir Gerald Fitzmaurice advanced the proposition in these terms:
" [Title to territory is abandoned] by letting another country
assume and carry out for many years all the responsibilities and
expenses in connection with the territory concerned. Could anything
be imagined more obviously amounting to acquiescence, that
is in effect abandonment? Such a course of action, or rather
inaction, disqualifies the country concerned from asserting the
continued existence of the title." 75
Opinions given by legal advisers to the British Government.
In the course of reports on a number of matters, the Law Officers
have treated acquiescence as founding an estoppel, either of itself
or in conjunction with a previous admission or other positive
conduct from which recognition or consent could be inferred.76
The importance attributed to the factor of continuing expenditure
by one party on the faith of an understanding which the other
party has allowed to pass without challenge 77 was clearly illustrated
by a report which the Queen's Advocate wrote in reply to the
question whether the Government of Colombia (formerly New
Granada) had the right to levy a transit rate on British mails
carried across the isthmus of Panama by the Panama Railway
Company, and to levy tonnage dues on British mail-vessels in
ports at either terminus of the Panama Railway. The United States
resisted both of these claims on the ground that, under the Charter
74 Ibid., p. 159. Mr. Harrison suggested that the French Government was adopting
the attitude of having it both ways, an attitude on which he considered
Judge Lauterpacht had aptly commented in the British Year Book of International
Latw, 27 (1950), pp. 395-L96.
75 Minquiers and Ecrehos case, Oral Pleadings, Vol. 3, p. 351.
76 In only one instance, as far as the writer is aware-a question of the right of
Venezuela to impose additional duties on imports from the West Indies-did
the Law Officers deny that previous acquiescence was a bar to a later protest
in panr materia; and that instance may be explained by the fact that the
previous acquiescence of Great Britain had related to the imposition of the
duties by Colombia and not Venezuela. In 1834, four years after separating
from Colombia, Venezuela adopted the Colombian treaty of 1825 with Great
Britain upon which the British protests were based. In a Report to Earl
Granville on June 22, 1882, the Law Officers stated: " Some difficulty is, no
doubt, created by the fact that similar differential duties to those now in
question were imposed, without objection, during the currency of the Treaty
with Colombia. . . . But we do not think that this affords any sufficient reason
why Her Majesty's Government should not maintain their protest against tl-e
Decree as being in violation of the terms of Article IV of the Treaty." In a
Report some months later, the Law Officers stated that the omission of Great
Britain to protest against " a similar though trifling imposition of differential
duties by Colombia in 1826, which was shortly afterwards removed " could not
be held " to preclude them from protesting against the present grave infraction
of the Treaty by Venezuela." (Report of the Law Officers to Earl Granville.
November 11, 1882: Venezuela.)
77 See, e.g., the Grisbadarna Arbitration, discussed above, p. 507.
JULY 1958] 509
Annex 190
International and Comparative Law Quarterly [VOL. 7
granted by the Government of New Granada to the railway
company, no authority but the company had the right to levy
charges. The Queen's Advocate took the view that the Charter
constituted public notice to all States that the grantor Government
had conceded certain rights, including those in dispute, for
a certain period to a particular corporate body. He concluded:
"On the faith of this contract foreign States had a right to rely;
to enter into stipulations with the foreign Company or Corporation
whom the Colombian State had to so large an extent invested with
its own original rights and authority in this matter. They had a
right to put the obvious and national [sc. natural] construction
on the . . . instrument-to enter, as Great Britain had done,
with that Company, into engagements of a costly and complicated
character . . . and any subsequent act of the grantor of the Charter,
whereby it exercised to the injury of foreign States the rights
which, by the plain language of the instrument, it had parted with
to the Company, is a wrong to those States to which they are
not obliged to submit." 78
In 1890 the Law Officers approved the draft of a despatch which
the Marquis of Salisbury proposed to send to the British Agent
and Consul-General in Cairo on the subject of Egyptian obligations
in commercial matters towards the Porte and other States. The
draft despatch, taking the view that, by the Firmans of 1867
and 1873 Egypt acquired commercial liberty as far as the Porte
could grant it, observed: " Foreign Powers not having made protest
against the Firmans should, in the opinion of Her Majesty's
Government, be held to have accepted their effect on their own
position whenever their then existing Treaty rights should lapse,
and no foreign Power has ground for setting up as against Egypt
the stipulations in commercial matters of a Treaty with the Porte
of a date subsequent to the Firman of 1873. Similarly the absence
of protest appears to Her Majesty's Government to be a bar to
any claim by a foreign State to enjoy in Egypt most-favourednation
treatment in commercial matters under the Capitulations or
other Treaties with Turkey anterior to 1873." 79
In 1874 the Law Officers were asked whether British objections
to the Spanish claim to sovereignty over the Sulu Archipelago were
justified. Their Report noted that in the course of correspondence
between Great Britain and Spain, the latter had clearly asserted
her claim and had protested against the contemplated ratification
of a treaty by Great Britain in disregard of her claim; and that
78 Report of the Queen's Advocate to Lord Stanley, December 21, 1866: Colombia.
79 The draft despatch is printed as an Annex to the Report of the Law Officers to
the Marquis of Salisbury, July 22, 1890: Egypt.
510
Annex 190
Estoppel in International Law
this correspondence had closed without any definite arrangement
being reached, " it being deemed expedient by the British Government
. . . that the matter should ' sleep'."80 The dangers of
such an attitude are apparent from the concluding passage of the
Report: " Under these circumstances . . . whilst on the one hand
it is quite true . . . that Her Majesty's Government has never
recognised the validity of the claims of Spain, it is, on the other,
equally true that Her Majesty's Government, with a full knowledge
of all the facts, has stood by and allowed the claims to be acted
upon, and, in our opinion, Her Majesty's Government would not
now be justified in further remonstrating against such claims." 81
A similar argument was employed in the draft of a letter 82
from Earl Granville to Musurus Pasha with reference to the disputed
right of a British shipping company to operate vessels
on the Tigris and Euphrates, in the context of a disagreement
concerning the terms of the Agreement of 1846 with regard to
general rights of navigation coupled with a Vizirial letter of 1861
under which the right was claimed. Earl Granville pointed out
that the company had enjoyed that privilege ever since 1861 with
the knowledge and acquiescence of the Porte, the absence of protest
during that period showing that the attitude of the Porte had been
not, as alleged by Musurus Pasha, one of friendly tolerance,83 but
one of acquiescence in a claim of right on the faith of which the
company had made large capital investments. " Whatever may
be the true construction of the Agreement of 1846 as to the general
right of navigation," the letter added, " Her Majesty's Government
consider that the attitude of the Porte during the last twenty-two
years debars them from now disputing the validity of the rights
claimed and exercised by the Company under the Vizirial letter
of 1861, and that they are entitled to insist on the status quo of
the Company being maintained." 84
Instructions which, after approval by the Law Officers, the
Earl of Derby proposed to send to the British Minister in Rio de
Janeiro, stated that the application of a Brazilian law to British
subjects could not justifiably be refused in certain circumstances,
although it claimed jurisdiction for Brazil in respect of crimes
committed by foreigners abroad against the Brazilian State,
8O Report of the Law Officers to the Earl of Derby, May 26, 1874: Spain.
1 Ibid.
82 Quoted in McNair, The Law of Treaties (1938), pp. 49-50.
s3 The dissenting judges in the case concerning Rights of Nationals of the United
States in Morocco held similarly that the conduct of the French Government
which knew of the United States claim to exercise capitulatory rights, and, in
spite of their knowledge, continued the old practice without any reservation,
was not due to mere " gracious tolerance." (I.C.J. Reports, 1952, p. 221.)
84 McNair, The Law of Treaties (1938), p. 50.
JULY 1958] 51 1
Annex 190
International and Comparative Law Quarterly [VOL. 7
because " [a] similar right has been assumed in laws passed by
other States, and Her Majesty's Government have not protested
against the principle thus laid down." 85 Again, in 1886, the Law
Officers reported that the British Government could not properly
apply any part of the surplus revenue from Cyprus to the satisfaction
of the private claims of British creditors " having regard to
the fact that by the Irade of December 20, 1882 (of which Her
Majesty's Government had notice, and in which they appear to
have acquiesced), such surplus revenue has been specially pledged
as one of the securities for the interest of the general Ottoman
debt." 86
CONCLUSIONS
What appears to be the common denominator of the various
aspects of estoppel which have been discussed, is the requirement
that a State ought to maintain towards a given factual or legal
situation an attitude consistent with that which it was known to
have adopted with regard to the same circumstances on previous
occasions. At its simplest, estoppel in international law reflects
the possible variations, in circumstances and effects, of the underlying
principle of consistency which may be summed up in the
maxim allegans contraria non audiendus est. Linked as it is with
the device of recognition, it is potentially applicable throughout
the whole field of international law in a limitless variety of contexts,
not primarily as a procedural rule but as a substantive principle
of law. In the absence of comparative studies of the operation of
estoppel in different States, the divergencies of the international
law estoppel from its counterparts in municipal systems can hardly
be assessed or discussed with any degree of confidence. In view
of the relatively unsophisticated form in which the doctrine of
estoppel has generally been expressed in international law there
may be some doubt about the likelihood of its concordance with
a general principle of law extracted from the more complex and
technical forms assumed by the doctrine in some municipal systems.
In many of the instances to which attention has been drawn, the
concept of good faith has been invoked in conjunction with that of
85 The Instructions are printed as an Annex to the Report of the Law Officers to
the Earl of Derby, February 16, 1877: Brazil. The Instructions note that
protest was made in 1852 against the proposal to legislate in France to extend
the principle to crimes against individuals, and that the proposal was abandoned.
86 Report of the Law Officers to the Earl of Rosebery, March 25, 1886: Turkey.
See, for further illustrations of the principle, the Annex to the Report of the
Law Officers to the Foreign Office, March 5, 1889: Nicaragua; and the Annex
to the Report of the Law Officers to the Marquis of Salisbury, November 10.
1885: Turkey.
512
Annex 190
JULY 1958] Estoppel in International Law 513
estoppel. Although the relationship between the two has been
underlined in this way, estoppel is not dependent for its authority
on acceptance of the principle of good faith. It has itself been
accorded substantial recognition by States and by tribunals. The
extent to which different aspects of estoppel have been " accepted
as law" is a question which can be answered only against the
background of a wider survey of the practice of States than has
so far been undertaken. It may be considered probable, however,
that some aspects of estoppel are in process of fulfilling, if they
do not already fulfil, the criteria demanded of an international
custom. Any such development towards the establishment of
estoppel on a customary basis may be welcomed inasmuch as it
serves to encourage respect for the precept of good faith and to
promote a measure of stability in the legal relations between States.
Annex 190
Annex 191
I. C. MacGibbon, “Some Observations on the Part of Protest in International
Law”, British Yearboook of International Law, 1953
SOME OBSERVATIONS ON THE PART OF
PROTEST IN INTERNATIONAL LAW
By I. C. MACGIBBON, M.A., LL.B. (EDINBURGH)
I. Introduction
THE potentialities of the diplomatic protest, as a tool influencing the
formation of international law in fields where there exists no substantial
body of State practice, have not always been adequately appreciated. As
unilateral and frequently opportunist instruments of State action, they may
be open to the charge that the grievances which they ventilate induce a
biased presentation of the legal issues in documents drafted under the pressure
of events. However, in addition to providing evidence of what States
consider to be the law, protests are apt to influence the development of
customary rules of international law either as showing the extent of the
generality of the custom in question or by assisting in the appreciation of
the existence of the opinioljuris sive necessitatis in respect of any particular
practice.' However, it is not the purpose of this article to attempt a comprehensive
survey and systematic treatment of the part which diplomatic
protest plays in the international spherise. What intended is to examine the
effect of both protest and failure to protest in relation to selected topics
such as the conditions of validity of protest, anticipatory protest in respect
of legislation contrary to international law, the effect of the protest of a
single State in the matter of subjects of general interest, and the relation
of protest to the acquisition of rights by prescription.
According to Hudson, the elements which must be present before a customary rule of
international law can be assumed are 'the concordant and recurring action of numerous States
in the domain of international relations, the conception in each case that such action was enjoined
by law, and the failure of other States to challenge that conception at the time' (The Permanent
Court of InternationalJ ustice, 1920-1942 (1943), at p. 609). The requirement of acquiescence was
echoed by Judge Read in his Dissenting Opinion in the Fisheries case (I.C.J. Reports, 1951, p.
2o2). The customary rule which Judge Read envisaged was one of limited application. In the
case of The Lotus the Permanent Court of International Justice observed that the divergencies
in State practice, to which the parties had drawn its attention, could hardly indicate the existence
of the customary rule for which France contended, to the effect that in collision cases the institution
of criminal proceedings was exclusively within the jurisdiction of the flag State. In support of
its conclusion the Court stated that it felt called upon to 'lay stress upon the fact that it does not
appear that the States concerned have objected to criminal proceedings in respect of collision
cases before the courts of a country other than that the flag of which was flown, or that they have
made protests .... This fact is directly opposed to the existence of a tacit consent on the part
of States to the exclusive jurisdiction of the State whose flag is flown .... It seems hardly probable,
and it would not be in accordance with international practice, that the French Government
in the Ortigia-Oncle-Joseph Case, and the German Government in the Ekbatana-West-
Hinder Case would have omitted to protest against the exercise of criminal jurisdiction by the
Italian and Belgian Courts, if they had really thought that this was a violation of international
law.' (P.C.I.J., Series A, No. io, p. 29.) And see Kunz in American Journal of International Law,
47 (1953), p. 667.
Annex 191
294 SOME OBSERVATIONS ON THE PART OF
II. Conditions of validity of protest
Despite the fact that many protests may remain unpublished and their
contents may consequently be unknown, save to their authors and recipients,
there are readily available in volumes of State papers, in diplomatic
correspondence, and in the proceedings of international tribunals,
sufficient examples to justify some preliminary observations of a. general
character as to the nature and formal validity of protests. A protest has been
defined as 'a formal communication from one State to another that it objects
to an act performed, or contemplated, by the latter'.' Most writers who
discuss the subject give their approval to the view, implicit in this definition,
that governmental origin and an element of formality are essential
to the validity of protests.2
i. Governments as exclusive agencies of protest
A protest may validly be formulated by any subject of international law3
-though there is some controversy, perhaps unavoidable, as to what are
the entities comprised in that category. What is generally agreed is that a
protest, to merit treatment as a factor in the legal relations of States, must
be made by, or on behalf of, a State. In so far as protests purport to reserve
the rights of the protesting State, it is reasonable that they should be subject
to the same conditions as are the acts upon which a State may rely as a basis
for the acquisition of prescriptive or historic title, namely, that they should
be acts which a State has either authorized at the time of their performance
or adopted subsequently.4 For this reason protests which have emanated
from unofficial sources and which have not been subsequently ratified by a
Government, have often been rejected.5
Oppenheim, International Law, vol. i (7th ed., by Lauterpacht, 1948), p. 789.
2 See, for example, Strupp, ldnents du droit international public, vol. i (2nd ed., 1930), p. 26o;
Anzilotti, Cours de droit international (French transl. by Gidel, t929), p. 349; Rousseau, Principes
gindraux du droit international public, vol. i (1944), p. 149.
I See BrUel in Acta Scandinavica Juris Gentium, 3 (1932), pp. 81-82. Rousseau (op. cit.)
summarizes the opinions of many writers when he states that a protest 'doit 6maner de l'organe
6tatique internationalement competent pour 6tre prise en consideration: une protestation 6man~e
par exemple du Parlement, si elle peut avoir une grande valeur politique, reste sans valeur juridique'.
4 This proposition is clear as regards the acts relied upon to found title by occupation (see,
for example, Oppenheim, op. cit., p. 507); it applies with equal force to the acquisition of rights
by prescription.
5 In the course of the proceedings of the Arbitration Tribunal to which the United States and
Great Britain entrusted the settlement of the Alaskan Boundary dispute, the difficulties attendant
upon the submission of a protest, or a claim, by an individual who had not been clothed with the
appropriate authority, were illustrated by the rival contentions with regard to the effect of the
so-called 'Dawson letter' of February 1888. This letter, on which Great Britain relied as giving
the United States notice of the claims of the Canadian Government, comprised a report of an
interview between a Canadian and an American official, both members of the geological surveys
of their respective Governments, in which the former had adopted certain views on the boundary
question. Neither official had been empowered by his Government to make representations on the
subject of the dispute. The letter was subsequently laid before Congress among other documents
Annex 191
PROTEST IN INTERNATIONAL LAW
2. Formality of the act of protest
The written protest presented through the diplomatic channel presents
no difficulty in respect of the condition of formality. Indeed, it represents
the normal practice of States, and it is the effect of a protest in this sense
with which the present inquiry is mainly concerned. Governments are
chary of placing reliance upon protests which are presented orally' or
whose efficacy is likely to be impaired by any avoidable deficiency in form.
The impermanence of the spoken word renders oral protests liable to the
twin dangers of distortion and oblivion. The importance attached by a
protesting State to the rights which its protest is directed to safeguard is
properly reflected in the form and substance of the communication.z
3. Nature of the protest and the requirement of communication
There has been no less insistence on the part of States to which protests
have been addressed that their position cannot be affected by protests which
ate directed against mere rumours and possible future eventualities rather
pertaining to the dispute. The British allegations that the Canadian official in question represented
Her Majesty's Government and that his views embodied the views of the Canadian Government,
evoked from the United States Government the comment that it was assuredly 'a most remarkable
procedure . . . for a Government to waive the usual channels of diplomatic communication on
matters of great import, and to entrust the advancement of [such] a contention ... to be made by.
an unaccredited person to a person who understood that neither of the two "had any.delegated
powers whatever".' (Proceedings of the Alaskan Boundary Tribunql, United States, Senate Documents,
No. 162, 5 8th Congress, 2nd Session, 7 vols., 1904, vol. v, p. 183.) As Counsel for the
United States pointed out: 'Governments do not act in matters of such solemn import in that sort
of loose and irregular way' (ibid., vol. vii, p. goo).
It may be inferred from an Opinion of the Queen's Advocate (Harding) of i i November 1859,
relative to the dispute between Great Britain and Spain concerning the right of British fishermen
to land on Cuban 'Cays' and fish in adjoining waters, that a State which considers that its rights
are being infringed will not be entitled to rely upon unofficial opposition to such infringements in
order to safeguard its rights, but will be expected, according to the normal practice of States, to
formulate an official protest. The Opinion reads, in part, as follows: 'I concur with Sir J. Dodson
in considering that the Spanish title to any of these uninhabited Cays or Islets cannot be assumed
as legally valid merely because it is asserted; more especially as Governor Bayley reports that "our
mariners have hitherto continued to fish on these Cays, not indeed always without annoyance,
but without formal warning or menace from any recognised Officer in the service of the Queen of
Spain".' (F.O. 83/2371: quoted in Smith, Great Britain and the Law of Nations (1932), vol. ii,
p. 229.)
Cf. Brijel: '[La protestation] peut tre formulae verbalement ou par 6crit ou encore par des
actes "concluants" . . .', loc. cit., p. 83.
2 In a dispatch of 8 December 1824, explaining the reasons for the British protest against the
pretensions of the Russian Ukase of z82i to dominion over extensive areas of the Pacific, the
British Foreign Secretary, Canning, showed that he was alive to the perils of informality in such
circumstances. He wrote that the Russian Decree 'could not continue longer unrepealed without
compelling us to take some measure of public and effectual remonstrance against it. . . . [A]
private disavowal of a published claim is no security against the revival of that claim. The suspension
of the execution of a principle may be perfectly compatible with the continued maintenance
of the principle itself. . . . The right of the subjects of His Majesty to navigate freely in the
Pacific cannot be held as a matter of indulgence from any Power. Having once been publicly
questioned, it must be publicly acknowledged . . .' (quoted in Behring Sea Arbitration, British
Case, Cmd. 69x8 (1893), p. 46).
Annex 191
296 SOME OBSERVATIONS ON THE PART OF
than against specific acts and claims.I Many of the protests invoked by
Great Britain before the Tribunal in the Alaskan Boundary disputez were
criticized by the United States as vague or ambiguous and described as
ineffective to operate as notice of adverse claims on the ground that they
were neither precise nor explicit. The main objection raised against the
validity of the British protests was that they were not communicated to
the Government of the United States.3 In the Minquiers and Ecrehos case the
International Court of Justice noted that the French protest against the
British Treasury Warrant of 1875, which constituted Jersey as a Port of
the Channel Islands and which included the Ecrehos islets within the limits
of the Port of Jersey, was based on the ground that this legislative act
derogated from the terms of the Fishery Convention of 1839. It held in
consequence that the protest was ineffective to 'deprive the Act of its
character as a manifestation of Sovereignty'.4 It is both understandable and
necessary that, in the matter of protests, the intention to protest should be
no substitute for the deed.
I A protest which does not clearly indicate the act against which it is directed is without significance
and may be rejected. See, for example, Note from Senor Josd de Carvajal to the United
States representative in Madrid, dated 14 November 1873, which includes this passage: 'The
protest having been presented in general terms, and without relation to any wrong [agravio]
inflicted on the American Union, the Government of the Spanish Republic cannot recognize
your competency to make it'; and it is 'rejected with serene energy' (quoted in Fontes Jfuris
Gentium, Ser. B., Sec. 1, vol. 2, Part i, para. 513).
2 See Proceedings of the Alaskan Boundary Tribunal, vol. v, p. 187, where one of the alleged
British protests is described as 'so artfully veiled as to make it entirely undiscernible, and consequently
of no significance as a notice to the Government of the United States'. And see, to the
same effect, ibid., p. 19r, and vol. vii, pp. 903, 904.
The advice of the Queen's Advocate as to the phrasing of the projected British communication
to the Spanish Government on the subject of the Cuban Cays dispute emphasized the necessity
for the language of a protest to be clear and unequivocal. He urged the use of 'such decisive and
peremptory language as may induce Spain if not to withdraw the claim, at least to refrain from
enforcing it'. He added: 'Inasmuch as the Spanish Government persists in advancing this claim,
and affects to pretend that silence gives consent to it, it is for Her Majesty's Government to
consider whether its language should not be such as to obviate all doubt on the subject from
henceforth...' (F.O. 83/2371; quoted in Smith, op. cit., p. 230).
See Proceedings of the Alaskan Boundary Tribunal, vol. v, p. 198. The United States dismissed
the British claim that notes which passed between the Canadian and British Governments
amounted to a protest, as 'extravagant ... unless the passage be taken to mean that the protest
was simply effective as against Her Majesty's Government .... It certainly was no protest to the
United States as it was never communicated' (ibid., p. igo). As an example of studied emphasis
on detail there may be mentioned the manner in which the British Minister at Caricas carried
out his instructions to protest 'in unmistakable terms' against Venezuelan depredations on the
liberty and property of British subjects. Enclosing a copy of his Note to the Government of
Venezuela embodying the instructions to protest, he reported: 'I took this note in person to the
Acting Minister for Foreign Affairs and carefully translated it to him word for word, at the same
time explaining and enlarging on it in terms about which there could certainly not be any possible
mistake. At the close of each sentence I asked his Excellency if he thoroughly understood it, and
satisfied myself that he did so ... .' (Cmd. 1372 (1902), p. 6).
4 .C.J. Reports, 1953, p. 66. Counsel for the United Kingdom pointed out that the first
French protest 'related to the question of fisheries and did not involve any French claim to
sovereignty' and was thus not an effective protest against the exercise of sovereignty by Great
Britain (Minquiers and Ecrehos case, Oral Pleadings, vol. iii, p. 321).
Annex 191
PROTEST IN INTERNATIONAL LAW 297
To judge from the comparative rarity of objections to protests on grounds
of form alone, it would appear that in practice States fulfil, as a matter of
course and in common prudence, such requirements touching the formal
validity of protests as have been indicated above to be reasonably necessary.
Where a specific wrong has been done, the protesting State will normally
be anxious to indicate clearly the action to which it objects and the reasons
for its objection.
4. Contents of protest
International law prescribes no rules as to the contents of a protest. This
is dictated by the purpose which the author of the protest intends to effect.
It is usual, although not obligatory, for a State to indicate the reasons
underlying its view that the conduct in question is contrary to international
law, and for this reason a protest will often contain an exposition of the
legal considerations which in the view of the protesting State are relevant.!
Again, protests commonly indicate that the protesting State reserves its
rights in respect of the conduct in question.2 This practice, also, appears
to be unnecessary in view of the consideration, suggested below, that the
effect of a valid protest is to reserve the rights of the protesting State. The
validity and effectiveness of a protest depend on the extent to which its
substance accurately represents the realities, in fact and in law, of the situation
which it purports to affect. It has been suggested that 'while States
may give information, make representations, or "intercede" about policies
which affect their interests, they may formally protest or "interpose" only
when their rights are violated'., Although it may be possible that protests
formulated on a basis other than that of a violation of the rights of the
protesting State may entail legal consequences in so far as they are expressive
of the conviction that the acts protested against are in the nature of
an abuse of right,4 normally a protest is devoid of legal effect if the rights
I See, for example, paragraph 2 of the Note, dated 28 May 195 1, from the United Kingdom to
Egypt (printed in Fisheries case, Pleadings, vol. iv, pp. 578-9); paragraph r of the Notes, dated
18 July 1951, from Denmark and Sweden respectively to the Soviet Union (ibid., pp. 570, 572).
1 This practice is usual in protests by the United States of America. See, for example, the
Notes dated 2 July 1948 from the United States to Chile and Peru respectively (ibid., pp. 599-
6oo, 602-3).
I See Wright in American Journal of International Law, 32 (1938), p. 529.
4 See the discussion of the doctrine of abuse of rights in Lauterpacht, The Function of Law in
the International Community (1933), pp. 286 ff. Professor Lauterpacht, discussing the frequency
with which protests are made other than on a basis of right, notes: 'Accordingly, although there
is little doubt that even the most absolute and exclusive rights may be exercised so that, having
regard to the manner and effects of their exercise, a situation may be created amounting to the
commission of an international wrong, the practice of States will frequently offer a helpful guide
for the determination of the question of abuse of rights' (ibid., p. 305). The protests made by a
State may indicate its practice in the matter in question.
Representations have been made, which have been widely described as protests, in which the
protesting State has admitted that the State to which the protest was addressed was entitled to
Annex 191
298 SOME OBSERVATIONS ON THE PART OF
in defence of which it is made do not in fact pertain to the protesting State.
Thus the Agent for the United Kingdom observed in the course of the oral
proceedings in the Minquiers and Ecrehos case: 'The whole subject of protests,
of course, presupposes the existence of a title on the part of the protesting
country, and .. we do not admit that France had any title....
For this reason alone, French protests were necessarily without legal effect."
As the United Kingdon pointed out in their Reply,z if legal effect were to
be given to protests not formulated on a basis of right the security of title
of any State, however long, continuous, and peaceful the possession on
which it was based, might be hazarded by the simple expedient of formulating
such a protest.
5. Purpose of protest
A protest constitutes a formal objection by which the protesting State
makes it known that it does not recognize the legality of the acts against
which the protest is directed, that it does not acquiesce in the situation
which such acts have created or which they threaten to create, and that it
has no intention of abandoning its own rights in the premises. The view
has been expressed that a protest 'serves the purpose of preservation of
rights'-a matter for subsequent consideration-'or of making it known
that the protesting State does not acquiesce in, and does not recognise,
certain acts'., Other writers have come to similar conclusions with slight
variations in emphasis. 4 Considerations such as these are echoed in the
act in the manner which provoked the protest, but that in so doing it was acting contrary to the
comity and established practice of nations. Thus, when the United States notified all foreign
Governments that all ships were prohibited from bringing any liquors for beverage purposes
within the ports or territorial waters of the United States, although Spain and Panama protested
that the attempt to regulate matters on board foreign ships was contrary to international law,
Denmark, Belgium, Great Britain, Italy, Mexico, The Netherlands, and Norway made representations
in which they alleged that such acts were contrary to comity and established practice (see
Foreign Relations of the United States (1923), vol. i, pp. 133 if.) Similarly a spokesman for the
State Department was reported as saying that six friendly nations had protested against the
screening' provisions of the United States Immigration and Nationality Act (the McCarran-
Walters Act) which was passed on 24 June 1952 and came into effect on 25 December 1952
(The Times newspaper, 12 December 1952, p. 6, and see ibid., i December 1952, p. 4, 24 December
I952, p. 6, and 3o December 1952, p. 6). These protests were based on the inconvenience
which enforcement of the legislation would entail.
I Minquiers and Ecrehos case, Oral Pleadings, vol. iii, p. 349. The French protests in relation to
the Minquiers were alleged to be insufficient to interrupt the acquisition of title because their
basis was a claim to fisheries, not a claim to sovereignty. The Agent for the United Kingdom gave
the reason that 'you cannot in law interrupt the acquisition of title by another country unless you
assert, or protest on the basis of, a claim of right yourself. You cannot in law keep territory ownerless
by protesting at the exercise by another country of a sovereignty you are not prepared to
assert yourself' (ibid., p. 350).
2 See Reply submitted by the United Kingdom in the Minquiers and Ecrehos case, para. 207.
3Oppenheim, op. cit., pp. 789-90.
4 G. F. de Martens states that protests are sometimes necessary 'pour empecher que des actes
qu'on pr~voit ne pouvoir viter ne soient interprdt~s comme faisant preuve de consentement'
(Prdcis du droit des gens moderne (revised ed. of 183 i), vol. i, p. 175). Fauchille (Traitd de droit
international public (8th ed., 1925), vol. i, Part 2, p. 760) and Vattel (Le Droit des gens, Book 2,
Annex 191
PROTEST IN INTERNATIONAL LAW 299
views expressed by Governments on the purposes of protests. Thus the
reason adduced by Sir Edward Grey, the British Foreign Secretary, for the
British protest of 9 December 1912 against the Panama Canal Act of that
year, was that the British Government 'were unwilling to give ground for
an assertion that their silence had been taken for consent'.'
The immediate purpose for which a protest is usually made is to procure
a cessation of the conduct against which the protest is directed and, in case
the protesting State has suffered loss as a result of that conduct, to obtain
appropriate compensation. A protest which has led to the modification or
withdrawal of the offending acts to the satisfaction of the protesting State,
having thus attained its object, is of no further legal interest, beyond the
possibility that both the contents of the protest and the fact of compliance
with its terms may be cited in future disputes as evidence of the legal views
of the States concerned in matters to which the protest related.
III. Anticipatoryp rotest in respect of legislation contrary to internationall aw
In view of the above considerations there may appear to be some doubt
as to the propriety of formulating anticipatory protests, i.e. protests prior
to the actual occurrence of an injury. It is clear, however, that States are
under no obligation to refrain from protesting until an actual violation of
their rights has taken place. Sir Arnold McNair has pointed out that protests
may properly be lodged on the conclusion of a treaty calculated to
lead to the infringement of rights of the protesting State.2 The practice
of States in the making of protests affords ample support for this view. 3
ch. i i, para. 145) stress that a protest signifies the intention not to abandon a right. Strupp
(op. cit., p. 26o) states that protest is 'une d~claration de volontd expresse par laquelle l'ltat
manifeste son intention de ne pas admettre commc lgitime une certaine situation ou pr~tention'.
Rousseau writes of protest: 'c'est le contraire de la reconnaissance. La protestation est une d~claration
de la volont6 de ne pas reconnaitre comme kgitime une pr~tention donn~e, une conduite
donn6e, un 6tat de choses donn6 .. .' (op. cit., p. 149).
I Foreign Relations of the United States (i952), p. 470. See also the dispatch of an earlier British
Foreign Secretary, Canning, on the subject of the Russian Ukase of 1821, in the course of which
he wrote: '. . . and when we have seen in the course of this negotiation that the Russian claim...
rests in fact on no other ground than the presumed acquiescence of the nations of Europe in the
provisions of an Ukase published by the Emperor Paul in the year 1799, against which it is affirmed
that no public remonstrance was made, it becomes us to be exceedingly careful that we do not,
by a similar neglect on the present occasion allow a similar presumption to be raised as to an
acquiescence in the Ukase of x821' (Cmd. 6918 (1893), p. 46).
2 The Law of Treaties (938), p. 128: 'A State which learns that a treaty concluded between two
other States has for its object or certain consequence the impairment of its rights, whether enjoyed
under customary international law or under a treaty with one of the contracting parties, is
entitled at once to lodge a diplomatic protest with those parties ... '
Treaties which Portugal concluded in 1887 with France and Germany were the subject of a
communication from Lord Salisbury to the British Minister at Lisbon, in which the latter was
instructed to protest on the ground that the treaties purported to reserve to the enterprise of
Portugal districts in which Great Britain took 'an exceptional interest' (quoted in Smith, op. cit.,
p. 8). Great Britain protested against the conclusion in 1878 by Russia and Turkey of the Treaty
of St. Stephano on the ground that it was inconsistent with the Treaty of Paris of 1856 and the
London Convention of 187 1, to both of which instruments Russia was a party. As a consequence
Annex 191
300 SOME OBSERVATIONS ON THE PART OF
This proposition holds good even at the stage where it has come to the
knowledge of the protesting State that such a treaty is merely contemplated.'
The reason for lodging protests in these situations is the practical one that
the effect of so doing may be to induce the State concerned to withdraw,2
renounce,3 or amend the objectionable provisions before or after the conclusion
of the treaty, to withhold ratification,4 or to refrain from giving
practical effect to such provisions,5 as the case may be.
Considerations of a similar nature apply to decrees, proclamations,
declarations, and legislative enactments of States which, if enforced, would
impair the rights of other States. No rule of international law forbids the
making of protests against such legislation, and instances abound in practice
where protests have been lodged against objectionable legislation when
it is pending, when it has been formally enacted, and when it has been
enforced.
In 1924, when anti-foreign measures were rife in Roumania, the Amerithe
Congress of Berlin was called in 1878 when a new agreement was reached consistent with the
earlier Treaties (Harvard Draft Convention on the Law of Treaties, printed in American Journal of
International Law, 29 (1935), Supplement, p. xo27). For other examples of protests against the
conclusion of treaties on the ground of inconsistency with earlier treaties see Lauterpacht in this
Year Book, 13 (1936), p. 6x, n. x; and see Harvard Draft Convention on the Law of Treaties, loc.
cit., pp. 1027 ff.
The Anglo-Congolese Agreement of 12 May 1894 was the subject of protests by the French
Government, which objected to Article 2, by which Great Britain purported to lease to King Leopold
a large tract of territory which she had never occupied and over which, France asserted, she
had no rights of sovereignty (Cmd. 9054 (1898), pp. x5 if.); and by Germany, who protested
against Article 3, by which the Independent Congo State leased to Great Britain a strip of territory
extending from Lake Tanganyika to Lake Albert Edward, on the ground that it was in violation
of the Anglo-German Arrangement of s89o (Cmd. 7390 (1894)). These instances are cited in
Lindley, The Acquisition and Government of Backward Territory in International Law (1926),
pp. 216, 241. In the Award by the Swiss Federal Council of 22 March 1922, in the case concerning
the Colombian-Venezuelan Frontiers, approval was given by implication to the practice of
protesting against the conclusion of a treaty if the treaty was such as to threaten the rights of the
protesting State. The failure of Venezuela to protest on the occasion of the conclusion of a treaty
by which Colombia ceded to Brazil territory which was claimed to be Venezuelan, was a factor
which weighed heavily against the Venezuelan claim (Reports of International Arbitral Awards,
vol. i (1948), p. 223, at p. 280).
See below, pp. 300-1, for a discussion of the parallel situation of protests against contemplated
legislation. Similar considerations would seem to be applicable in each situation.
2 The German protest against Article 3 of the Anglo-Congolese Agreement of iz May 1894
resulted in the withdrawal of that Article. A Declaration of Withdrawal was signed on 22 June
1894 (Lindley, op. cit., p. 241. The relevant correspondence is printed in Cmd. 7390 (1894)).
. The French protest against Article z of the above Agreement led to the renunciation by the
Independent Congo State of all occupations and to an agreement to abstain from all political
action in the greater part of the leased territory (Lindley, op. Cit., p. 216. See, for the relevant
correspondence, Cmd. 9054 (1898)).
4 The Anglo-Portuguese Treaty of 26 February 1884, in which Great Britain agreed to recognize
the claim of Portugal to certain territory round the mouth of the Congo River, remained
unratified as a result of the protests made by Germany and other Powers (Lindley, op. cit.,
p. 301: see Cmd. 4205 (1884), pp. 2, 3).
5 The British protest against the grant made by the Sultan of Muscat to the French Government
in 1899 of a lease of a port for use as a coaling station, contrary to the terms of a Declaration
in 186z by which Great Britain and France engaged to respect the independence of the Sultan,
resulted in the cancellation of the lease (Lindley, op. cit., p. 73).
Annex 191
PROTEST IN INTERNATIONAL LAW 301
can Minister there addressed a communication' to his Secretary of State
which disclosed a situation which was not altogether unprecedented. In
view of reports derived from 'the local newspapers and current rumours's
that a new law was to be passed providing for an absolute moratorium of
six months against all foreign creditors who had not entered into special
agreements with their Roumanian debtors, it was decided to convene a
meeting of the Commercial Attach6s of the United States, France, Italy,
Belgium, Holland, Czechoslovakia and Switzerland to discuss the Law and
to agree upon a suitable form of protest. 'At the meeting', the Minister
wrote, 'it was the [general] opinion ... that the enactment of the law in
question should be anticipated by the presentation of vigorous protests
from the respective legations represented.'3 In the concluding passage of
this dispatch the Minister indicated the practical considerations which
militated in favour of the anticipatory protest in view of the result which
the lodging of such a protest is intended to secure in regard to pending
legislation, namely 'its abandonment or, at least, its modification'.*
No doubt attaches to the right of a State to protest on the occasion of the
enactment by another State of legislation which, if enforced, would impair
the rights of the protesting State. Practice provides numerous examples of
protests made in such circumstances against legislation in respect of a
variety of matters. Thus the British Government protesteds against
the provision in the Panama Canal Act of 1912 which exempted from
charges American vessels engaged in coastal or inter-coastal trade, on the
ground that such an exemption did not comply with the stipulations of
the Hay-Pauncefote Treaty of 19Ol to the effect that the Canal should
be free and open to the vessels of all nations on terms of entire equality
so that there should be no discrimination in respect of tolls or otherwise.
While this legislation was still pending a preliminary protest was lodged
in Washington by the British Charg6 d'Affaires. 6
1 Foreign Relations of the United States (1924), vol. 2, pp. 653-6.
2 Ibid., p. 653. 3 Ibid., p. 654.
4 Ibid.: 'En passant it is to be noted that the opinion of my colleagues, in which I concur, is that
objectionable anti-foreign laws are often prepared by a Minister in secrecy and are rushed by the
Government through a docile Parliament without discussion in the almost complete absence of an
articulate opposition. A legislative fait accompli then confronts the representatives of foreign
countries against which protests are almost useless, being met with the statement from the
Roumanian Government that the work of Parliament cannot be undone.' See also the reply of the
United States Secretary of State to a telegram from the United States Minister in Roumania in
which he was informed of a proposed Roumanian Mining Law which contained provisions prejudicial
to foreign oil interests. The Secretary of State recognized the utility of the method of
anticipatory protest and gave it his forthright approval (ibid., pp. 597-8).
5 Foreign Relations of the United States (1912), pp. 48 1-9. Some sixteen years later proposals
were made in Congress to extend the legislation prohibiting advance wages to seamen, to payments
made by foreign vessels in foreign ports if they later entered ports in the United States.
These proposals were the subject of protests by several States, including Great Britain (ibid.
(193x), p. 8i i). Congress was apparently dissuaded by the Department of State from enacting
the proposed legislation. 6 Foreign Relations of the United States (1912), pp. 469-71.
Annex 191
302 SOME OBSERVATIONS ON THE PART OF
The attempt on the part of Russia, by publication of the Ukase of the
Emperor Paul in 1821, to assert dominion over the northern waters of
the Pacific and to restrict the rights of other nations therein, was made the
subject of immediate and emphatic protest by Great Britain and the United
States.' The Norwegian Decree of 1869 which defined the fishery limit off
Sunnm6re as a line four miles to seaward of a long straight base-line drawn
between two islets of the Norwegian Skjaergaard, met prompt protest from
France.z In the course of the oral proceedings in the Fisheries case the
Agent for the United Kingdom drew the attention of the Court to the
practice normally followed by States when he observed that 'Governments
do often protest against Decrees of this kind even when they are not
brought to their notice through the diplomatic channel and even when they
have not yet been enforced against their nationals'. 3 Counsel for the United
Kingdom cited several instances of protests made against legislation before
its enforcement, and suggested the practical reasons underlying such
action.4 Counsel for Norway emphasized the absence of protest on the part
of the international community against the 1935 Decree and made it clear
that, in his view, protests would have been expected if the circumstances
had been as the United Kingdom claimed. 5 No exception was taken to the
fact that the protests lodged by the United Kingdom with various Governments
responsible for the promulgation of laws which the United Kingdom
Government considered to be objectionable, were based not on the seizure
and condemnation of British ships, but on the mere existence of laws or
decrees of delimitation made by the State in question. 6
The passing of the Panama Canal Act by the United States in 1912 was,
as has been already mentioned, 7 the occasion for a protest on the part of
the British Government. The American Ambassador in London, writing
to the United States Secretary of State on 15 July 1912, reported an interview
he had had with Sir Edward Grey in which the latter outlined his
objection to the Act. The Ambassador quoted Sir Edward Grey as stating
on behalf of the British Government that that Government 'did not wish
to seem premature, but were unwilling to give ground for an assertion that
their silence had been taken for consent'.' Some months later the United
Behring Sea Arbitration, British Case, Cmd. 69t8 (1893), p. 58.
Fisheries case, Pleadings, vol. ii, pp. 66-67.
Ibid., vol. iv, p. 375.
4 Ibid., pp. 396-7.
Ibid., p. 234: 'Si elles avaient cru que le d~cret de 1935 portait atteinte h leurs droits, il est
probable qu'elles seraient intervenues.'
6 Ibid., p. 241: 'La protestation porte sur les dispositions memes qui ont dt6 ddict6es par ces
ttats pour dtdlimiter leurs mers adjacentes .... Mais l'objet de la protestation, c'est la ddlimitation
elle-mrrme, et cc ne sont pas du tout des actes d'ex6cution qui auraient W accomplis sur la base
de cette d6limitation. II n'y en a pas eu.'
7 Above, p. 299.
' Foreign Relations of the United States (1912), p. 470.
Annex 191
PROTEST IN INTERNATIONAL LAW 303
Kingdom Ambassador presented the point of view of his Government on
the question whether a State has the right to protest against the enactment
of legislation before suffering injury as a result of the enforcement of the
legislation, in a Note to the United States Secretary of State on 27 February
1913: '[His Majesty's Government] conceive that international law or usage
does not support the doctrine that the passing of a statute in contravention
of a treaty right affords no ground of complaint for the infraction of that
right, and that the nation which holds that its treaty rights have been so
infringed or brought into question by a denial that they exist, must, before
protesting and seeking a means of determining the point at issue, wait until
some further action violating those rights in a concrete instance has been
taken... ." This would seem to be the sound view, and the principle involved
could usefully be broadened so as to embrace the protection of all
rights enjoyed under international law irrespective of the source of the right
in question. 2
The sphere of municipal legislation in which, perhaps, the most conspicuous
body of protests is encountered is that relating to the attempts of
States by way of legislative enactment, decree, proclamation, or otherwise
to extend, unilaterally, the area of marginal sea over which rights of
sovereignty may be claimed either in all respects or in regard to one or all
of various matters such as conservation of fisheries, customs control, and
operations directed towards the utilization of the resources on the bed of
the so-called 'continental shelf' and of its subsoil. The formal enactment
of claims of this nature has in many instances met with opposition on the
ground that the claims have transgressed the recognized limits and thus encroached
on the jealously guarded principle of the freedom of the high seas.
Legislative claims which have attracted protests have been made by Peru, 3
Ibid. (1913), p. 548. It is interesting to note that three years before the American refusal to
admit the right of the United Kingdom to protest against the passing of the Panama Canal Act,
the Department of State protested against legislation by the Government of Honduras which
provided that all vessels, whether built in Honduran shipyards or built abroad, which were for the
service of persons residing in Honduras, whether natives or foreigners, would be considered as
Honduran vessels and as entitled, therefore, to fly only the flag of the Republic of Honduras. The
Department of State pointed out that 'the decree would appear to cover vessels holding an American
or other foreign registry. If so interpreted, the decree would be clearly violative of the principles
of international law and in derogation of the respect due American registry' (ibid. (i9o9),
pp. 367-8). The Law was later repealed.
2 Cf. McNair, op. cit., p. 128. Professor Lauterpacht has justifiably emphasized that 'a
protest may be both proper and necessary for the reservation of a right' in circumstances where
'there may have taken place a legislative or administrative act in the nature of a proclamation of
intention and assertion of a right, and yet, unless an actual attempt has been made to apply the
law or decree in question and until an injury has actually occurred, it is probable that no judicial
remedy will lie' (this Year Book, 27 (1950), p. 396).
3 By Presidential Decree of i August 1947: see United Nations Legislative Series, Laws and
Regulations on the Rigime of the High Seas, vol. i (195I), pp. 16-17. Protests were made by the
United Kingdom on 6 February 5948: see the Fisheries case: Pleadings, vol. ii, pp. 747-9; and by
the United States on 2 July 1948: see United Nations Legislative Series, loc. cit., pp. 17-18.
Annex 191
304 SOME OBSERVATIONS ON THE PART OF
Chile,' Honduras, 2 Yugoslavia,3 Egypt,4 Ecuador,s Costa Rica, 6 El Salvador,
7 Saudi Arabia,8 Argentina,9 and Iceland.o
The argument, frequently repeated in the written and oral Pleadings of
the United Kingdom in the Fisheries case, that it is not by making decrees
I By Presidential Declaration of 23 June 1947: see United Nations Legislative Series, loc. cit.,
pp. 6-7. Protests were lodged by the United Kingdom on 6 February x948: see Fisheries case:
Pleadings, vol. ii, pp. 750-2; and by the United States on 2 July 1948: see United Nations
Legislative Series, loc. cit., pp. 7-8.
2 (a) In Article 153 of the Constitution of 28 March 1936: see United Nations Legislative Series,
loc. cit., p. 8o. A protest was lodged by the United Kingdom on 29 July 1936: see Fisheries case:
Pleadings, vol. ii, pp. 743-4.
(b) By Legislative Decrees Nos. 102,1 03, and 104, of 7 March 9g5o: see Fisheries case: Pleadings,
vol. 4, PP. 581-3. No. 1o2, which amended Article 153 of the Constitution of 28 March 1936, and
No. 103 are printed in United Nations Legislative Series, loc. cit., pp. 11-1a. A: protest was
lodged bythe United Kingdom on 23 April 1951: see Fisheries case: Pleadings, vol. iv, pp. 583-4.
(c) By Legislative Decree No. 25, of 17 January 1951: see Fisheries case: Pleadings, vol. iii,
pp. 694-5. A protest was lodged by the United Kingdom on io September 195 1: see ibid., vol.
iv, pp. 585-7. Mention was made of a recent protest to Honduras by the United States: see
ibid., p. 37.
By Articles 3, 5, and 8 of the Law of i December 1948: see United Nations Legislative
Series, loc. cit., pp. 132-5. A protest was lodged by the United Kingdom on 5 May 1949: see
Fisheries case: Pleadings, vol. iv, pp. 574-6.
4 By Decree of x8 January 195 1: see Fisheries case: Pleadings, vol. iii, pp. 676-7. Articles 5 and
9 of the Decree are printed in United Nations Legislative Series, loc. cit., p. 307. A protest was
lodged by the United Kingdom on 28 May 195 1: see Fisheries case: Pleadings, vol. iv, pp. 578-80;
and by the United States on 4 June 1951: see ibid., p. 603.
s By Congressional Decree of 21 February 1951: see Fisheries case: Pleadings, vol. iv, pp.
587-8; and by Articles x and 2 of the Presidential Decree of 2z February 195 1: see ibid., p. 589.
A protest was lodged by the United States on 7 June 1951: see ibid., pp. 603-4; and by the United
Kingdom on 14 September 1951: see ibid., pp. 589-90.
6 (a) By Decree No. 116 of the Junta of the Founders of the Second Republic, of 27 July 1948:
see Fisheries case: Pleadings, vol. iv, pp. 591-2. A protest was lodged by the United Kingdom on
28 January 1949: see ibid., pp. 59Z-4.
(b) By Decree No. 803 of the Junta of the Founders of the Second Republic, of 5 November
1949, which amended Decree No. i x6 of 27 July 1948: see ibid., vol. iv, pp.594-5. A protest was
lodged by the United Kingdom on 9 February i95o: see ibid., pp. 595-6.
7 By Article 7 of the Political Constitution of 7 September 1950: see Fisheries case: Pleadings,
vol. iv, p. 596; and United Nations Legislative Series, loc. cit., p. 300. A protest was lodged by the
United Kingdom on 12 February 195o: see Fisheries case: Pleadings, vol. iv, pp. 596-7; and by
the United States on 12 December 195o: see ibid., pp. 6oo-x; and United Nations Legislative
Series, loc. Cit., pp. 300-1.
8 By Decree No. 614/5/371, of z8 May 1949: see American Journal of International Law, 43
(1949), Supplement, pp. 154-7. Articles 5 and 9 of this Decree are printed in United Nations
Legislative Series, loc. cit., p. 89. A protest was lodged by the United States on x9 December
1949: see Fisheries case: Pleadings, vol. iv, p. 6oi.
9 By Decree No. 14708 of I I October 1946: see United Nations Legislative Series, loc. cit.,
pp. 4-5. A protest was lodged by the United States on 2 July 1948: see ibid., p. 5. 1o By Law of 5 April 1948: see United Nations Legislative Series, loc. cit., pp. 12-13; Fisheries
case: Pleadings, vol. iii, pp. 696-9; and by Regulations of 22 April i95o: see ibid. Protests were
lodged by the United Kingdom on 6 July i95o: see ibid., vol. iv, pp. 576-7; by Belgium on 1
September 1951 : see ibid., p. 401; by the Netherlands on 3 October 195 1: see ibid., pp. 606-7;
by Germany: see ibid., p. 401; and by France on 3 February 1953: see The Times newspaper,
14 February 1953. On 17 February 1953 The Times newspaper published a report confirming the
fact that France had protested, and emphasizing that the protest was made only on grounds of
principle, but that it was intended to reserve to France a basis for protest in the event of a decision
of the Icelandic Government affecting French fishing rights in the area. The report adds: 'The
dispatch of the Note will have the effect of safeguarding French interests in the event of future
British-Icelandic talks on this subject producing a settlement....'
Annex 191
PROTEST IN INTERNATIONAL LAW 305
that a State infringes international law, but by enforcing her decrees against
foreigners, appears to suggest that what is important from the point of view
of determining what is the actual practice of States, and hence what is a
relevant occasion for protest, is the action taken to enforce unilateral
legislative claims rather than the promulgation of the decree itself. it has
been shown above that the practice of protesting against decrees before
their enforcement is widespread and at the same time founded on considerations
of legitimate utility. It has nowhere been suggested that a protest
cannot properly be made against action taken to render effective
provisions of municipal legislation which infringe rights enjoyed by the
protesting State under international law. Protests against enforcement
measures are common occurrences in the relations of States;, although the
facts may have been contested, protests of this nature have in no instance
been rejected on the ground that the occasion was not a proper one for
protest. Confirmation of the propriety of formulating protests in these
circumstances may be gained from the clear implication, which can be
derived from the importance which courts have attributed to failure to protest
in such a case, that a protest would have been the natural and correct
reaction.2
The recent protests by the Governments of Denmark and Sweden to the Government of the
U.S.S.R. were made in view of the seizure by the latter Government of Danish and Swedish
vessels in enforcement of the Soviet Decree of 1925 concerning the regulation of fishing, and that
of 1927 concerning the protection of the national boundaries of the Soviet Union. (See the
Fisheries case, Pleadings, vol. iv, pp. 570-4.) See also, on the Russian claims in the Baltic, the
Note by Schapiro in this Year Book, 27 (1950), pp. 439 ff.
In 1905 a Canadian sealer, the Agnes G. Donohoe, was seized for violation of a Uruguayan
Decree prohibiting sealing at the mouth of the Rio de la Plata, but was released after a protest
had been made by Great Britain (see Fulton, The Sovereignty of the Sea (1I x), p. 663). Gidel
discusses this and other similar cases (Le Droit international public de la mer, vol. 3 (1934),
pp. 3o5-6).
The seizure and condemnation of British ships by the United States, in enforcement of the
Tariff Act of 1922 and the National Prohibition Act of 28 October 1919, led to British protests,
especially concerning the application of the principle of constructive presence (see Foreign
Relations of the United States (1923), vol. i, pp. 172-9).
In order to enforce the Chinese Nationalist Order of June 1949 closing ports and waters
under communist control, Chinese naval vessels shelled a number of American ships. The
United States protested (Department of State Bulletin, vol. 21 (1949), p. 945). For a summary of
the facts see ibid., pp. qo8, 957.
2 See, for example, I.C.J7. Reports, 195r, p. 138, where the Court in the Fisheries case said:
'Norway has been in a position to argue without any contradiction that neither the promulgation
of her delimitation Decrees in 1869 and in 1889, nor their application, gave rise to any opposition
on the part of foreign States.'
The provisional Order of the Staatsgerichtshof of to October 1925, in the dispute between
Lilbeck and Mecklenburg-Schwerin concerning the exercise by the former of certain jurisdictional
rights in the Bay of LUbeck, gave weight to the fact that the latter failed to protest against
the Luibeck Law of 1896 in which the claim of LUbeck was unmistakably asserted, although the
Law was actually put into force and applied (Annual Digest and Reports of Public International
Law Cases, 1925-6, Case No. 85). And see Gidel, op. cit., p. 663: 'It est soumis effectivement
la juridiction tunisienne sans que celle-ci ait jamais rencontr aucune opposition de la part des
Gouvernements itrangers i loccasion des mesures prises contre les p cheurs d'6ponges de toute
nationalit6 poursuivis pour contravention aux riglements de peche tunisiens.'
B 4104 X
Annex 191
SOME OBSERVATIONS ON THE PART OF
IV. Protest and prescription
x. In general
The proof of an historic or prescriptive title in international law depends,
inter alia, upon possession or exercise of the rights concerned which is both
peaceful and continuous., Evidence of intention to abandon a title would
be a fatal defect so far as the requirement of continuity is concerned. That
other States do not acquiesce in the situation would deprive the situation
of its peaceful character. As has been pointed out,2 there are two sides to
the notion of peaceful and uninterrupted possession. Considerably more
attention has been given in the past to assessing the evidential value of the
factors adduced by States relying upon a prescriptive process for the consolidation
of a title than has been paid to the nature of the measures which
must be taken by States to prevent such a title maturing. It is in this latter
connexion that the diplomatic protest is of special relevance. Its importance
may correctly be ascribed to either of the dual functions which it has been
considered apt to fulfil and each of which springs from the requirement that
the acts upon which prescriptive and historic titles are based must be peaceful
and uninterrupted. Those requirements must be viewed in the light of
the further consideration that acquiescence is a prerequisite for the valid
formation of such titles. On the one hand, it may be maintained that a protest
is effectual to interrupt the running of prescriptive time inasmuch as it
is equivalent to the institution of a suit in private law. With this view is
linked the difficulty which besets the principle of prescription, namely, that
of determining the length of the period which will suffice to consolidate
the adverse possession. It is submitted that the doctrine of acquiescence is
of considerable assistance in the solution of that difficulty, in that it reduces
the significance of the necessity for a fixed prescriptive period by constituting
a conclusive test by which the validity of a prescriptive claim may
be evaluated, namely, the test of the existence or otherwise of a general
conviction that the situation which has been created is in conformity with
the requirements of international stability and order.
Thus it may be asserted, on the other hand, that since acquiescence is
essential to the validity of a prescriptive or historic title, the relevance of
protest in this connexion may be ascertained by the extent to which it
' See the authorities cited by Johnson in this Year Book, 27 (1950), pp. 343-8. See also the
Counter Memorandum submitted by the United States in the Island of Palmas Arbitration, where
the views of publicists on this point are summarized, at pp. 90-9 i. See also the Printed Argument
submitted by Venezuela in the Venezuela-British Guiana Boundary Arbitration: 'To make a
good title ... adverse holding must be peaceable and not by force' (Cmd. 9501 (1899), p. 45)."
The former Central American Court of Justice in the Gulf of Fonseca case described the rights
which were exercised over the disputed area as 'peaceful ownership and possession . . . that is
without protest or contradiction by any nation whatsoever...' (American Journal of International
Law, i1 (917), pp. 700-1).
2 See Johnson, 10c. cit., pp. 345-6.
Annex 191
PROTEST IN INTERNATIONAL LAW 307
operates to rebut the presumption of acquiescence. It is suggested that this
consideration underlies the opinions of those who, while affirming that
States are under no obligation to protest, nevertheless maintain that a protest
is necessary to preserve the rights of the protesting State in circumstances
in which failure to protest would be tantamount to acquiescence. I
To the extent that a protest serves to preserve the rights of the protesting
State in such situations, it will constitute an effective bar to perfecting
prescriptive and historic titles for the validity of which acquiescence forms
an essential element.
2. Protest as a bar to the acquisition of prescriptive title. Opinions of writers
Protest is generally accepted by writers as a means of preventing the
maturing of a prescriptive or historic title. It has been considered by some
to serve as an indication that the protesting State does not intend to abandon
its rights.2 In the view of others it interrupts the continuity of the
adverse claim. 3 Until recently many writers have accepted it as one of the
principal, if not the most important, methods of interrupting the running
of prescriptive time.4 As late as 1934 it was possible to write with justification:
'Le moyen le plus courant, en droit international, de sauvegarder ses
droits, est la protestation; on en rencontre tr~s souvent dans la pratique....,s
Long before that it had been pointed out 6 that the methods of interrupting
prescription in international law differed from those utilized in private law
and that, as regards the former, they were neither 'aussi faciles, aussi precis
ni aussi certains', the reason being the absence of tribunals to which States
might bring their claims.
I See, for example, Oppenheim, op. Cit., p. 790; Strupp, op. Cit., p. 26o; Bri.el, ioc. cit., p. 89.
Rousseau sums the matter up thus: 'Toujours facultative, la protestation n'est juridiquement
n6cessaire que dans le cas oil le silence 6quivaudrait i un assentiment tacite' (op. cit., pp. 149-50).
2 Vattel wrote: 'II est bien 6vident aussi, que l'on ne peut opposer la Prescription au Propriftaire,
qui, ne pouvant poursuivre actuellement son droit, se borne i marquer suffisamment,
par quelque signe que ce soit, qu'il ne veut pas l'abandonner. C'est A quoi servent les Protestations'
(op. cit., Book 2, ch. ii, para. 145). See also Fauchille, op. cit., vol. i, Part 2, p. 76o.
3 See, for example, Hyde, International Law Chiefly as Interpreted and Applied by the United
States (2nd ed., revised, 1945), vol. i, p. 387: 'Obviously a State may actively challenge the
encroachments of a neighbour upon its soil, and by so interrupting the continuity of the advetse
claim, prevent the perfecting of a transfer of sovereignty that might otherwise result. It is believed
that diplomatic protest might suffice for that purpose, even though unsupported by the use of
force.'
4 See Audinet in Revue gdndrale de droit internationalp ublic, 3 (1896), p. 322. Force of arms was
considered by Fauchille to be the principal means of interrupting prescription, but he added that
if a State was too weak to utilize these means 'il peut se contenter d'61ever des protestations'
(op. cit., p. 76o). Compare Gidel, op. cit., p. 634: '. • . il est prudent pour les Gouvernements
int6ress6s de ne pas laisser le fait prjuger le droit, de formuler leurs r6serves dans un document
port6 sous une forme appropri6e & la connaissance de l'Etat qui accomplit des actes de nature ii
lui permettre un jour ou l'autre de revendiquer des droits sur un espace maritime.'
5 Verykios, La Prescription en droit international public (1934), p. 99.
6 Audinet, loc. cit.
Annex 191
308 SOME OBSERVATIONS ON THE PART OF
3. The same. State practice
In diplomatic correspondence and in pleadings before international tribunals
States have utilized protests for the purposes of rebutting the presumption
of acquiescence which might otherwise have been raised and to
act as a bar to the perfecting of prescriptive and historic title. Counsel for
the United States in the Alaskan Boundary dispute asserted that, had Great
Britain believed her rights to be infringed or endangered, she would have
protested rather than 'permit a claim of this sort to pass unchallenged,
and grow into a right, or at least something by which a right can be perfected'.'
In the course of the oral proceedings in the Fisheries case the Agent
for the United Kingdom explained that Governments protest 'in order to
make it quite clear that they have not acquiesced and to prevent a prescriptive
case being built up against them'. 2 In the Minquiers and Ecrehos
case Counsel for the United Kingdom observed that 'the exact legal effect
of a protest depends very much on circumstances, but in general all it does
is to register or record the opinion of the protesting country that the act
protested against is invalid and is not acquiesced in'.,
4. The same. Practice of international tribunals
Similarly, international tribunals have recognized that protest is effective
to prevent the acquisition of a prescriptive title. In the Chamizal Arbitration
between the United States and Mexico the contention was advanced by
the United States that it had acquired, in addition to its title under treaty
provisions, a good title to the tract in dispute by prescription grounded upon
possession of the territory maintained without disturbance, interruption or
challenge. Only in relation to this aspect of the case was the Award of the
Commissioners unanimous. They reached the conclusion that 'the possession
of the United States in the present case was not of such a character as
to found a prescriptive title'. They said:
'Upon the evidence adduced it is impossible to hold that the possession of El Chamizal
by the United States was undisturbed, uninterrupted and unchallenged from the date
of the Treaty of Guadalupe Hidalgo in 1848 until the year 1895, when, in consequence
' Proceedings of the Alaskan Boundary Tribunal, vol. 7, p. 868. The Government of Roumania
expressed similar intentions in a Memorandum to Turkey of October 1876 on the question of the
Danube delta: 'Elle doit n(anmoins protester sans cesse pour ne pas laisser prescrire un droit,
pour ne pas laisser tablir l'opinion que les bouches du Danube appartiennent ou appartiendraient
lla Bulgarie . . .' (FontesJurisG entium, Ser. B, Sec. i, vol. ii, Part x, para. 597).
2 Fisheries case: Pleadings, vol. iv, pp. 375-6. The Printed Argument submitted by Venezuela
in the Venezuela-British Guiana Boundary Arbitration contained this passage: 'No holding by
force, against the protest of the State whose territory has been seized, will ever ripen into a title
by prescription. As between individuals the bringing of an action arrests the running of the
statute. There is no tribunal to which an injured State can appeal to recover the territory of
which it has been deprived by force. Its maintained protest has the same effect to arrest the
maturing of the title by prescription as the bringing of an action by an individual' (Cmd. 95oI
(1899), P. 45). 3 Minquiers and Ecrehos case: Oral Pleadings, vol. i, p. 155.
Annex 191
PROTEST IN INTERNATIONAL LAW 309
of the creation of a competent tribunal to decide the question, the Chamizal case was
first presented. On the contrary it may be said that the physical possession taken by
citizens of the United States and the political control exercised by the local and federal
governments, have been constantly challenged and questioned by the Republic of
Mexico, through its accredited diplomatic agents."
The Commissioners added:
'In private law, the interruption of prescription is effected by a suit, but in dealings
between nations this is of course impossible, unless and until an international tribunal
is established for such purpose. In the present case the Mexican claim was asserted
before the International Boundary Commission within a reasonable time after it commenced
to exercise its functions, and prior to that date the Mexican Government had
done all that could be reasonably required of it by way of protest against the alleged
encroachment.z
5. Protest as a subsidiary to other means of safeguarding rights
It may be useful, before discussing the extent to which protest constitutes
a bar to the acquisition of prescriptive or historic title at the present
time, to ascertain whether, and if so to what extent, the presentation of a
protest effected this end in the past. It might be concluded from the foregoing
pages that protest pure and simple was apt to interrupt the running
of prescriptive time; and it was suggested as recently as 1945 that a diplomatic
protest might suffice for that purpose.3 There are, however, indications,
both in the Award of the Commissioners in the Chamizal Arbitration4
and in the proceedings of the Venezuela-British Guiana Boundary Arbitration,
that protest was considered, of itself, inadequate for the purpose of
interrupting prescription.5 It is suggested that protest alone suffices to
prevent the acquisition of a prescriptive or historic title only in those cases
in which the protesting State is able to convince the Tribunal to which the
Award of 15 June 191 i, in the Chamizal Arbitration (American Journal of International Law,
5 (I911), p. 8o6).
2 Ibid., p. 807.
1 See Hyde, op. cit., vol. I, p. 387. Audinet, after ascribing to protest the power to interrupt
prescription, suggested that protest might not always be possible and that a weak State might
remain silent and allow the prescriptive period to run against it 'parce qu'il ne sera pas & meme
de soutenir, au besoin, ses reclamations par les armes' (loc. cit. 3 (1896), p. 322).
4 The Commissioners may have intended protest to bear a somewhat wider connotation than
that of a formal diplomatic protest. They found that Mexico 'had done all that could reasonably
be required of it by way of protest against the alleged encroachment' and added that it was quite
clear 'that however much the Mexicans may have desired to take physical possession of the district,
the result of any attempt to do so would have provoked scenes of violence and the Republic
of Mexico can not be blamed for resorting to the milder forms of protest contained in its diplomatic
correspondence' (see American Journal of International Law, 5 (9i i), p. 807).
5 Venezuela argued that the 'maintained protest' of a State is effective to iriterrupt the development
of a prescriptive title (see Printed Argument submitted by Venezuela: Cmd. 9501 (1899),
P. 45). An earlier passage indicates that maintained protest signified more than the mere regular
repetition of protests, however unequivocal their terms. The passage reads: 'Venezuela's claims
and her protests against alleged British usurpation have been constant and emphatic, and have
been enforced by all the means practicable for a weak power to employ in its dealings with a
strong one, even to the rupture of diplomatic relations' (ibid., p. 29).
Annex 191
310 SOME OBSERVATIONS ON THE PART OF
question is later referred that the circumstances were such that a protest
constituted the only feasible method of asserting its rights. Tribunals
appear, in the past, to have required proof that the protesting State had
taken some further steps as evidence of the seriousness and good faith of
its intention to oppose encroachments on its rights. Into such a category
might fall acts such as the severance of diplomatic relations and measures
of retorsion.
It is relevant to point out in this connexion that two developments must
be considered to have affected the potential value of the diplomatic protest
at the present time. The first is the extent to which the General Treaty
for the Renunciation of War, in conjunction with the provisions of Article
2 (4) of the Charter of the United Nations, have imposed a wide prohibition
of the threat or use of force in international relations. As a result
courts must now be precluded from requiring, as additional measures of
self-help, that protests should be supported by force or a show of force.
The second development consists in the appearance on the international
scene of institutions to which resort can be had to prevent the formation
of prescriptive titles. Since the establishment of the Permanent Court of
Arbitration, the League of Nations and the Permanent Court of International
Justice, and, later, of the United Nations and the International
Court of Justice, it may be argued that there exists the necessary machinery
to allow the methods for interrupting prescription to be regularized and
assimilated to those in force in municipal systems of law-a consummation
which the Commissioners in the Chamizal Arbitration hoped would be
achieved in the course of time.
6. Requirement of repetition of protest
In the event of repetition of the acts protested against or the continuation
of the situation created by them, it is clear that scant regard will be paid
to the isolated protest of a State which takes no further action to combat
continued infringements of its rights., Failure to supplement the initial
expression of disapproval will not unreasonably give rise to the presumption
either that its opposition could not be supported by any show of legal right,
or that, even if able to protest on the basis of a claim of right, it was for
some reason indifferent to the outcome. Two illustrations are furnished by
the Fisheries case. Counsel for Norway maintained that it was impossible
to attribute any probative value to the oral protest of the German Govern-
' The opinion may be not unjustified that a protest constitutes no more than the minimum
expenditure of effort compatible with an intention to preserve rights. However, it is arguable that
increased weight will be attached to the cumulative effect of protests which have been persistently
reiterated. This view is impliedly acknowledged by Hyde, who considered that a State should
forfeit its rights 'at least when it has failed to make constant and appropriate effort to keep them
alive, as by ceaseless protests against the acts of the wrongdoer' (op. cit., vol. x, p. 387). And see
Lauterpacht in Hague Recueil, 62 (1937), p. 291.
Annex 191
PROTEST IN INTERNATIONAL LAW 311
ment against the Decree of 1935 for the reason that the protest was not
followed by any further action and that the subsequent attitude of the
German Government deprived its initial protest of all significance.' At an
earlier stage in the history of the Norwegian claims the French Charg6
d'Affaires in Stockholm addressed a series of Notes, the last of which was
dated 27 July 1870, to the Foreign Minister of Norway and Sweden, in
which the French Government disassociated itself from any recognition of
the principles contained in the. Norwegian Decree of 1869. The British
Government maintained with some justification that the terms of these
Notes constituted an objection to the Norwegian claims on the part of
France.2 This was the point of view maintained by the Note of 27 July
1870, although the limits claimed were admittedly accepted, but only as a
special case. France offered to recognize the limits laid down in the Decree,
leaving aside any question of law. No answer to this offer was received and
the matter was allowed to drop. France did not prosecute her objection
further. This incident did not convince the Court that France was opposed
to the principles contained in the Decree and it concluded that the Norwegian
system of delimitation had 'encountered no opposition on the part
of other States'.3
It has been affirmed that, in principle, a diplomatic protest can of itself
effectively interrupt the running of prescription, with the qualification that,
unless they are followed by contestation and settlement of the question,
protests lose their force.4 The efficacy of protests admits of certain limitations
once consideration is given to the situation resulting from repetition
of the usage protested against or to the effect of the continuation of the
situation which provoked the initial protest. It is generally conceded that a
protest acts to some extent as a bar to the perfecting of a prescriptive or
historic title, and therefore serves to that extent to preserve the rights of the
protesting State.' What is in doubt is the period during which the effectiveness
of a protest persists. The matter is without complications where subsequent
recognition of the claim or situation is express, 6 but it is less
straightforward where acquiescence is to be inferred from the surrounding
circumstances, and this has to be done in most cases where prescriptive
or historic claims are disputed. It is not suggested that a protest must be
' See Fisheries case: Pleadings, vol. iv, p. 234: 'Mais cette communication est restde sans
effet et elle n'a 6t6 suivie d'aucune autre d~marche. Apr~s avoir fait ce geste, le Gouvernement
allemand s'est abstenu d'en tirer Ia moindre consequence.'
2 See, for example, the statement by the Attorney-General (Sir Frank Soskice) in the Fisheries
case: Pleadings, vol. iv, pp. 138-9.
3 I.C.J. Reports, 195r, p. 137.
4 See Verykios, op. cit., p. 86.
1 See Verykios, op. cit.; Britel, loc. cit., pp. 9o-9 i . See also the Fisheries case: Pleadings, vol.
ii, p. 654.
6 See, for example, Anzilotti, op. cit., p. 349: 'Les effets de ia protestation cessent si l'Etat
reconnait les pr~tentions ou les faits contre lesquels il avait protest6.'
Annex 191
312 SOME OBSERVATIONS ON THE PART OF
productive of factual results before it can have the effect of preventing the
acquisition of title by prescription.'
7. Requirement of action other than protesi
The current view is that, having regard to the availability, since 1919, of
some international machinery before which complaints can be lodged, a
protest amounts to no more than a 'a temporary bar'.2 Such is in effect the
view adopted by the Government of the United Kingdom, which maintained
that a protest is 'by itself effective to manifest the objection of the
protesting State and for a certain period reserve its rights' 3 and that 'it is
only true to say that the protest of a single State will not prevent an exceptional
usage from becoming lawful by prescription indefinitely'.4
Tribunals which are seized of questions relating to the extent of the
period after which protests cease to be of value and become academic, may
be guided to some extent by principles which have been developed mainly
in the course of proceedings before the International Court of Justice. The
view that protests lost their force unless they were followed by further acts
contesting the claim was substantially adopted by the United Kingdom
as an accurate representation of the existing law. Mere repetition of the
protest was not enough to guarantee its effectiveness. Although due weight
must be given to intrinsic factors such as the special interests of the State
in relation to the nature of the opposing claims and to its geographical
propinquity to the area concerned, such factors could not be considered as
decisive of the importance to be attached to the protest.5 Of more importance,
in the view of the United Kingdom Government, is 'the nature of the
protest and the action taken by the protesting State to safeguard the right
which it conceives to have been infringed.... The protest of a single State
' Sorensen, in Acta Scandinavica Juris Gentium, 3 (193z), p. i59, writes: 'Une protestation
qui, par ailleurs, reste sans rdsultats, n'a ds lors pour effet que de retarder le moment de l'acquisition
definitive par la prescription.' Briel (loc. cit., p. 88) advanced the somewhat unexpected
view that it would be unwise to insist on a protest being effectual because such a requirement
would run counter to the desirable trend of abandoning private in favour of public enforcement
and preservation of rights.
' See Johnson in this Year Book, 27 (1950), p. 346.
3 Fisheries case: Pleadings, vol. ii, p. 65z.
4 Ibid., p. 654. The United Kingdom appears to have admitted the possibility that in some
circumstances mere protests might be of more definite effect. It was suggested in the Minquiers
and Ecrehos case that 'the character of the action taken by the protesting State must be related to
that being taken by the State acquiring title, and the two must be considered together. Minor
manifestations in the purported exercise of title might well be adequately met by protests.'
This was not applicable with regard to acts of such a character as to create a situation of urgency
(Oral Pleadings, vol. iii, p. 351).
s See Fisheries case: Pleadings, op. cit., vol. ii, p. 653. And see Gidel: 'Une seule contestation
6manant d'un seul Etat ne saurait infirmer un usage; lea contestations ne peuvent d'autre part
6tre placdes toutes sur le meme plan, sans distinction de leur nature, de la situation g~ographique
ou autre de l'Etat dont elles 6manent.' (Op. cit., p. 634.) Gidel adds that each must be
considered in relation to the circumstances of the particular case against the background of the
guiding principle expressed in the maxim quieta non movere.
Annex 191
PROTEST IN INTERNATIONAL LAW 313
... is effective to prevent the establishment of a prescriptive title precisely
to the extent that the State takes all necessary and reasonable steps to
prosecute the available means of redressing the infringement of its rights."
The Reply then proceeded to elaborate the additional measures which must
be taken to make the protest effective. Not surprisingly, the suggested
measures follow closely the lines of action pursued by the United Kingdom
during the course of the dispute with Norway. They comprised the active
prosecution of the objection through diplomatic negotiations, the arrangement
of a modus vivendi and, ultimately, the reference of the dispute, or
the willingness to refer it, to an international tribunal for adjudication. The
attention of the Court was drawn to the fact that the United Kingdom had
taken all the available steps necessary to permit the protest of a single State
to invalidate a usage.2
That the requirement of further steps of this nature was not a point of
view adopted solely for the occasion of the Fisheries case is indicated by
evidence of the expression of similar views in other circumstances. The
reactions of the United Kingdom to the incidents which gave rise to the
Corfu Channel case are described in the Reply of the United Kingdom in
that case as follows: '. . the British forces refrained from the use of any
force and the incident was followed up in a peaceful manner in the first
case by diplomatic protests and in the second case ... by recourse to the
Security Council of the United Nations'. 3 On 23 March 1949 the Under-
Secretary of State for Foreign Affairs, in reply to the question of a member
of the House of Commons arising out of the establishment by nationals of
Argentina and Chile of posts on British territory in the Falkland Islands
Dependencies 'in defiance of our protests', referred to the British offer to
bring the dispute before the International Court of Justice, and to the fact
that this offer had been refused. He added: 'I do not agree that the Government's
attitude has been weak. I think we have shown a good example of
restraint in this matter and of going through the proper forms of international
collaboration.' 4
The proceedings in the Minquiers and Ecrehos case tend to endorse the
view that protests may not of themselves be sufficient to prevent the
acquisition of title by prescription and that courts will require evidence of
the assumption by the protesting State of some positive initiative towards
settlement of the dispute in the form of an attempt to utilize all available
and appropriate international machinery for that purpose. Whereas the
' Pleadings, vol. ii, pp. 653-4.
2 See, for example, ibid., vol. ii, pp. 656, 678. In the event, it proved to be unnecessary for the
Court to consider this argument in its Judgment, as it came to the conclusion that the United
Kingdom had acquiesced in the Norwegian system of delimitation and therefore its subsequent
opposition was out of time.
I International Court of Justice, the Corfu Channel case (I95o): Pleadings, vol. ii, p. 277.
4 Hansard, House of Commons Debates (5 th series), vol. 463, No. 86, col. 343.
Annex 191
314 SOME OBSERVATIONS ON THE PART OF
United Kingdom contended that protests produced no legal effects unless
followed by other action, such as reference of the dispute-or a proposal
to refer it-to an appropriate international organization or tribunal,, the
French submission, based upon the Award in the Chamizal Arbitration,z
was that since resort to force or the severance of diplomatic relations might
have strained to breaking-point the relations between the two States,
'paper' protests sufficed to prevent the acquisition of title.3 Judge Carneiro
in his Individual Opinion commented upon the French submission in
words which explicitly approved the main British contention. After praising
the moderation displayed by France he made the following observations:
'Could [France] not have done anything else? It could have, and it ought
to have, unless I am mistaken, proposed arbitration; all the more so since
the two States were bound by the Treaty of October i4 th, 1903, which
provided for the settlement by the Permanent Court of Arbitration of all
legal dispute3 or disputes involving the interpretation of a treat,.'4 Pointing
out that the Award in the Chamizal Arbitration of 1911 related to the period
between 1848 and 1895 when there was no international tribunal, he remarked
that such a tribunal had now been in existence for many years,
and added: 'Why did France not at least propose that the dispute should
be referred to this tribunal as England has done, after more than half a
century of intermittent and fruitless discussion? The failure to make such
a proposal deprives the claim of much of its force; it may even render it
obsolete. '5
8. Cases of sufficiency of protest
It may be true, as has been asserted, that one result of the advent and
development of machinery for the settlement of international disputes has
been to reduce the significance of the diplomatic protest in the field of
acquisitive prescription. 6 However, the scope of the possible exceptions to
the statement that protest is not now the principal mode of interrupting
prescription remains wide enough to merit further consideration. There
still exist circumstances in which what has been described as 'the somewhat
crude and ineffective method of the diplomatic protest' 7 may be of decisive
' See Reply submitted by the United Kingdom in the Minquiers and Ecrehos case, para. 230;
and see the Oral Pleadings, vol. iii, pp. 350, 352. ' See above, pp. 308-9.
3 Minquiers and Ecrehos case: Oral Pleadings, vol. iii, p. 384.
4 I.C.J. Reports, 1953, p. 1o7: and see Reply submitted by the United Kingdom in the
Minquiers and Ecrehos case, para. 230: 'The United Kingdom Government submit that, under
international law, diplomatic protests may act as a temporary bar to the acquisition of title, but
that they do not act as a complete bar unless, within a reasonable time, they are followed up by
reference of the dispute to the appropriate international organization or international tribunalwhere
such a course is possible-or, at the least, by proposals to that effect, which the other party
rejects or fails to take up.'
I1.C.J. Reports, 1953, p. xo8. And see Johnson, loc. cit., p. 342.
6 See ibid., p. 346. 7 See ibid., p. 341.
Annex 191
PROTEST IN INTERNATIONAL LAW 315
importance. It has been pointed out' that where there is no binding obligation
upon States to submit disputes to the determination of international
tribunals, a wronged State may have no recourse other than protest. If this
is true in the event of wrongs which are clearly actionable, it is true also of
wrongs merely anticipated as a result of published claims. A similar difficulty
arises in cases where redress might be sought by application to a
political agency. If the subject-matter of a dispute is not of sufficient importance
or is for any other reason excluded from the category of disputes
with which that agency has been constitutionally empowered to deal, a
wronged State is, in this case also, restricted to making protests in an effort
to safeguard its rights. Considerations such as these 'enhance the importance
... both of protest and of the failure to protest'.z
Mention has already been made3 of the frequency with which States have
asserted exceptional claims by means of municipal legislation. It has been
suggested that when a claim is made in this way without actually being
enforced by the State in question-e.g. when a State has claimed a belt
of territorial waters of a width far in excess of that considered to be in
accordance with international law by the majority of States, but has taken
no positive steps to enforce its claim by the arrest of foreign vessels found
fishing within the forbidden limits-the proper and probably the only
effective course open to an aggrieved State is to protest formally through
the diplomatic channel. Having suffered no actual infringement of its
rights, it is unlikely that an aggrieved State has any substantial cause of
action before an international tribunal.4 It is submitted that in such cases
a protest which was promptly presented and subsequently maintained
would suffice to reserve the rights of the protesting State, at least until
the attempt is made to enforce the legislation. In view of the necessity of
See Lauterpacht in this Year Book, 27 (1950), pp. 396-7.
Ibid., p. 397. 3 See above, pp. 303-4.
4 Cf. McNair, The Law of Treaties (938), p. 128, in which it is stated that where a treaty is
concluded which has 'for its object or certain consequence' the infringement of the rights of a
State, that State is entitled to protest 'and to apply to the Permanent Court of International
Justice, or to any other tribunal to which the disputants may have agreed to refer their disputes,
for a declaration and for interlocutory relief. It is unnecessary to wait until the apprehended
injury occurs.' Again this raises the question of compulsory jurisdiction of the tribunal to which
application is made for relief. To seek a remedy by way of injunction to restrain the alleged
wrongdoer from enforcing its legislative claims before an actual wrong has been committed
would not appear to be a feasible procedure in the present stage of development of international
law. If it were, in fact, possible to proceed by way of applying for a declaratory judgment in the
face of anticipated infringements of rights, or at least of infringements of a nature which, if
permitted to take place, would do irreparable harm, much of the value of recording a protest
would disappear if the protesting State failed to apply for at least interim measures of protection.
Diplomatic protest would remain an effective method of reserving rights in circumstances where
the tribunal could not assume jurisdiction; and a protest might, as has been suggested above,
lead to the withdrawal of the objectionable legislation. It may be noted that the acts involved in
disputed claims to prescriptive and historic rights are not usually of such a character that their
continuance would prejudice irreparably the eventual rights of the parties, and the basis of a
successful application for measures of interim protection would therefore be lacking.
Annex 191
316 SOME OBSERVATIONS ON THE PART OF
proving some actual exercise of sovereignty, in the case of a prescriptive title,
or actual and exclusive enjoyment of the right concerned, in the case of
historic title, these could hardly be perfected on the basis of mere legislative
claims unsupported by evidence of enforcement.' This is presumably the
kind of situation envisaged by the Agent for the United Kingdom in the
course of the oral proceedings in the Minquiers and Ecrehos case when he
suggested that the type of action taken by the protesting State must be
related to the type of acts against which the opposition is directed, and that
on occasions mere protests might suffice to nullify claims of a minor character.
2 During the oral hearings in the Fisheries case the Agent for the United
Kingdom gave expression to a similar train of thought in these words:
'The decree made by a State is only one aspect of the matter. The other
and equally important aspect is the attitude of other States towards the
decree and in particular ... to its enforcement against their nationals or
vessels.... The paper protest is at least as important as the paper decree.' 3
Similar considerations are relevant in the case of a situation which is of
recent origin. In the absence of the consolidating factor of the passage of
time, protest alone may be adequate to protect the rights of the protesting
State.4 The question of prescriptive or historic claims does not arise in this
case, and the doctrine of acquiescence is inapplicable. In its Reply in the
Fisheries case the United Kingdom Government assented in general to the
proposition that a single protest of one State did not invalidate a claim of
right, 'so long as it is kept in mind that it relates strictly to the acquisition
of title not by mere usage but by prescriptive usage'.5 Although the full
import of this qualification is not readily apparent, the implication may be
that where the question is one of acquisition of rights by a process akin
to the formation of customary rules, in which, in theory at least, the passage
of time plays no essential part, the single protest of a single State would
suffice, at any rate so far as the protesting State is concerned. If the invalidation
is intended to extend to the usage as a whole in relation to all
I The Agent for the United Kingdom pointed out in the Fisheries case that 'it takes a long
time before a prescriptive case can be built up on the basis of mere silence when there has been
no enforcement of the Decree against the nationals of the State in question' (Pleadings, vol. iv,
p. 346).
2 See Minquiers and Ecrehos case: Oral Pleadings, vol. iii, p. 351.
3 Fisheries case: Pleadings, vol. iv, p. 37; and see ibid., p. 37: 'For the Court, as evidence of the
practice of States the Swedish and Danish protests [against the enforcement of a Soviet Decree
claiming a 12-mile belt of territorial waters] are every bit as valuable evidence as the text of the
Soviet decree.'
4 See, for example, the Fisheries case: Pleadings, vol. iv, p. 308: 'Nous sommes dgalement
d'accord avec le Gouvernement britannique pour admettre que, si une prtention nouvelle est
formulde par un Etat, cette prdtention n'est pas opposable & un autre Etat qui, ds le dbut et
d'une mani~re non ,quivoque, y aurait fait opposition. Une opposition, meme isolde, suffirait en
pareil cas, pour prserver les droits de l'opposant, parce qu'il s'agit d'une prdtention nouvelle et
sur laquelle, par consdquent, l'action du temps n'a pas encore pu produire ses effets.'
5 Ibid., vol. ii, p. 652.
Annex 191
PROTEST IN INTERNATIONAL LAW 317
States affected by it, the proposition could only be tenable in respect of the
protest of a State whose influence or interest in the sphere of activity to
which the question related is paramount.,
V. Relevance of protest of a single State
In connexion with the preceding observations reference may be made to
the question of the effect of protest of a single State on the formation of
historic title. Throughout the pleadings in the Fisheries case there appears
to have persisted a disagreement between the parties as to the weight to be
attached to the protest of a single State. The United Kingdom and Norway
were at one in conceding that a State with established rights did not lose
them by virtue of an essential change in the content of the customary law
provided that it had persistently protested in an unambiguous manner from
the first signs of change known to it.z The difficulties derive from the difference
of approach of either side to the question of historic title in general.
The United Kingdom maintained that an historic title was in the nature of
an exception and derogated from the customary rules of international law,
whereas Norway based her historic title on the enjoyment of rights which
existed prior to the development of the customary rules in question. This
to some extent explains why the United Kingdom stressed the necessity
for a consensual basis for exceptions to the customary rules and why Norway
denied that the assent of other States was essential. While admitting
the efficacy of protest to preserve existing rights against customary rules
developed subsequently, she was yet able to deny effect to the protests of
a State against the exercise of historic rights, at least when the remainder
of the international community had apparently acquiesced.
When a mere usage against which a State has protested is one which, if
permitted to develop into a right based on custom, would derogate from
rights vested in other States in common, the attitude of the other States
concerned is a relevant factor in assessing the value of the protest of a single
State. If the other States have acquiesced in the repetition of the practice
complained of to such an extent that the conviction is generally prevalent
that that practice has become part of the established legal order, then a
single State which has repeatedly protested, if it has limited its objections
to the making of protests and has failed to utilize other available machinery,
will have lost those rights which its protests were intended to preserve.
Afortiori it will lose those rights if its objection is limited to a single initial
The suggestion has been made that in the formation of a customary rule less importance
should be attached to the number of States participating in its evolution and to the period within
which the transformation takes place than to the relative importance, in the matter in question,
of the States inaugurating the change. See Lauterpacht in this Year Book, 27 (1950), p. 394.
' See, for example, the speech of the Attorney-General (Sir Frank Soskice): Pleadings, vol.
iv, p. 136.
Annex 191
318 SOME OBSERVATIONS ON THE PART OF
protest. The United Kingdom Government adopted this line of argument
in the Fisheries case.' However, they urged that the principle by which the
rights of the protesting State became barred by'lapse of time was based
either on a presumption of tacit acquiescence flowing from continued relative
inaction or on the maxim quieta non movere. The 'temporary bar' which
is constituted by protest extends, in these circumstances, only to the period,
long or relatively short, during which the bulk of the international community
remains uncommitted to the view that the usage complained of is
in conformity with the law. Once the stage has been reached at which the
usage has assumed the complexion of legality generally recognized, further
diplomatic protests on the part of the objecting State are without effect.
It is far from clear, however, that a State which has from the outset protested
vigorously and unambiguously and which has supplemented its repeated
protests by utilizing every other means available to it, all without
result, should be deemed to have forfeited its rights merely because of the
inactivity of other States. There is little justification for allowing a presumption
of acquiescence flowing from continued inaction to prevail in
the face of facts to the contrary. To apply the maxim quieta non movere
indiscriminately to such circumstances might be equally productive of
injustice. It may be admitted, as the Norwegian Reply maintains, that
'une opposition isol6e n'est point capable d'empcher la formation du titre
historique; et qu'il convient de ne pas oublier, quand on doit statuer en
pareille mati~re, le sage conseil que contient la maxime quieta non movere'.2
What is controversial is whether such a title is valid erga omnes, as Norway
contended, or whether it is valid only as against those States which have
either expressly assented or acquiesced. In other words, do the repeated
protests of a State which alone has from the first unambiguously and persistently
manifested its objection to a novel practice and which has sought
to resolve the dispute by all available means, have the effect of rendering
that practice invalid in relation to the protesting State and incapable of
becoming a source of obligations to which the protesting State is bound to
submit as a matter of law? It is submitted that reasons of both justice and
logic militate in favour of the view that a State, even although it is the only
member of the international community to adopt such a position, which has
thus clearly demonstrated its opposition to the change, does not by virtue
of the acceptance of the change by other States, forfeit its rights. This
was certainly the view of the United Kingdom Government. It was clearly
' See Pleadings, vol. ii, p. 654: 'But, if the usage which is protested against is repeated and is
acquiesced in by other States, then the question may ultimately be asked why the protesting
State, if it attaches importance to its rights, has not taken further steps to bring the matter to
contestation and settlement. In other words, a State which contents itself with paper protests and
does not use the available means of pressing its objections may after a certain lapse of time be
debarred from further questioning what has become part of the established legal order.'
' See ibid., vol. iii, p. 462.
Annex 191
PROTEST IN INTERNATIONAL LAW 319
expressed by the Attorney-General, and may be considered as a logical
extension of the Norwegian view,' that the single protest of a single State
sufficed to preserve the rights of the protesting State when the claim or
situation was of a novel character. The Attorney-General was emphatic in
his insistence on the efficacy of the diplomatic protest supported by appropriate
attempts to reach a settlement. He was in agreement with the argument
advanced by Norway that a State with established rights does not lose
its rights by virtue of a change in the customary law provided that it has
unambiguously and persistently manifested its dissent therefrom. 'How
then', he continued, 'can a State, which has established rights under
customary law to regard certain areas of sea as high seas and which unambiguously
and persistently protests against a claim purporting to alter
its rights, lose its rights merely because other States do not immediately
take similar action ?'2 Such a contention would imply that 'if only one State
protests, a new claim becomes established as against all other States, including
the protesting State. The new claim is apparently to be enforceable
against all States regardless of whether the protesting State has had a
reasonable opportunity to prosecute its objection by diplomatic and legal
action and regardless of whether a sufficient time has elapsed to make it
reasonable to imply the assent of other States.' 3 This view the Government
of the United Kingdom declined to accept.
If there is some justification for attributing to the diplomatic protest,
properly supplemented, the power to prevent the formation of an historic
title, there is all the more reason to suppose that it is apt-provided, again,
that it is properly supplemented-to interrupt the running of prescription.
The attitude of other States is not a directly relevant consideratiGn. The
decisive consideration is whether the exercise by the claimant State of the
adverse right, or the enjoyment of the adverse possession, has been peaceful
and uninterrupted. It is submitted that a protest, if it is prompt, unequivocal
and maintained, and if it is coupled with recourse by the protesting
State to all other legitimate demonstrations of its will to preserve its rights,
will suffice to counter effectively the continuity and the peaceful character
of a nascent prescriptive claim and will prevent the creation of any general
conviction that the condition of affairs is in conformity with international
order. It would be unreasonable to draw the same disabling consequences
from the conduct of a State which has acted energetically in defence of its
rights, by protesting and taking other appropriate action, as would follow
the inaction of a State which was either indifferent to losing its rights or
negligent in asserting them.
See Pleadings, vol. iv, P. 308.
3 Ibid., pp. 135-6.
2 See ibid., p. 136.
Annex 191
Annex 192
S. Africa, Al-Shabaab as a Transnational Security Threat, in WAR AND PEACE IN
SOMALIA: NATIONAL GRIEVANCES, LOCAL CONFLICT AND AL-SHABAAB, ed. M.
Keating and M. Waldman (Oxford University Press, 2018)
AL-SHABAAB AS A TRANSNATIONAL
SECURITY THREAT
Sahan A!ica
Authorship
Sahan Africa is a think tank and research organization with o!ces in Somalia,
Kenya, and the United Kingdom. Its team has expertise in political a"airs,
security dynamics, and governance, and focuses on the Horn of Africa, East
Africa, and the Middle East.
Summary
Harakaat Al-Shabaab Al-Mujahidin, Al-Qaida’s a!liate in the Horn of Africa,
has long been perceived as a Somali organization—albeit one that represents
a security threat to the wider region. But since 2010, Al-Shabaab has aspired
to become a truly regional organization, with membership and horizons that
transcend national borders.1 Since then, it has become active in six countries
of the region, striking #ve of them with terrorist attacks.2 Al-Shabaab is clearly
no longer an exclusively Somali problem, and requires a concerted international
response.
$is expansion of Al-Shabaab’s operational reach is in large part the result
of the strategic direction adopted by its former leader, Ahmed Abdi Godane.
Sahan Africa, Al-Shabaab as a Transnational Security Threat. In: War and Peace in Somalia:
National Grievances, Local Conflict and Al-Shabaab. Edited by Michael Keating and
Waldman Matt, Oxford University Press (2018). © Oxford University Press.
DOI: 10.1093/oso/9780190947910.003.0036
Annex 192
WAR AND PEACE IN SOMALIA
402
In 2013, Godane reorganized Al-Shabaab’s military wing to include two transnational
units—one dedicated to operations against Kenya, Tanzania, and
Uganda, and another against Ethiopia—and gave instructions for
Al-Shabaab’s special operations wing, the Amniyat, to step up attacks against
neighbouring countries.
Al-Shabaab-a!liated networks and sympathizers in Kenya also continued
to plan terror attacks during this period. Although Al-Hijra, Al-Shabaab’s
Kenyan a!liate, experienced growing pressure from the security services and
withdrew from major hubs of activity, its radicalization and recruitment
e"orts subsequently targeted the prison system, while operatives and
recruits—including a growing proportion of women—continued to travel to
Somalia for training and instructions.
$e report concludes with the following recommendations for further
action:
Enhanced security cooperation in countering Al-Shabaab, including a joint
review to identify gaps, challenges, and opportunities in strengthening collaboration;
more joint activities, including inviting Tanzania to participate
in relevant IGAD activities.
Better understanding of the Improvised Explosive Device (IED) threat and
possible counter-measures, including appropriate Counter-IED (C-IED)
strategies, enhanced technical capabilities for post-blast investigation and
analysis, and improved information sharing.
Adaptation to evolving patterns of radicalization and recruitment, such as
the shi%ing of extremist activities to new geographic areas; sensitization
and training of public o!cials; enhancing surveillance of terrorist networks
inside the prison system; and undertaking additional research into current
trends of radicalization and recruitment among young women.
Introduction
$e Horn of Africa has long been confronted by numerous complex and
fast-evolving transnational security threats. Intra-state warfare, boundary
disputes, resource con&icts, and the proliferation of small arms are longstanding
and persistent challenges. But in recent decades the region has been
confronted with new threats, such as terrorism, organized crime, piracy,
cybercrime, and tra!cking in drugs, humans, and weapons. $e expansion of
internet access, ease of travel, and the growing sophistication of extremist and
Annex 192
AL-SHABAAB AS A TRANSNATIONAL SECURITY THREAT
403
criminal groups render these threats increasingly transnational, thus requiring
a collaborative response.
In 2015, the IGAD Security Sector Program (ISSP) launched a new
Transnational Security $reats (TST) Initiative to promote security cooperation
between Member States. Under the TST Initiative, the governments of
the Federal Democratic Republic of Ethiopia and the Republic of Kenya
requested that ISSP assist them in preparing a submission to the Sanctions
Committee that responds to successive United Nations Security Council
(UNSC) resolutions calling on Member States to take speci#c actions against
Al-Shabaab.3 $ese developments led to research by Sahan which forms the
basis of this paper, focusing on Al-Shabaab’s presence and activities in each
country, as well as the opportunities for enhanced cooperation in countering
this threat.
Between April 2015 and June 2016, a Sahan team operating under the
auspices of ISSP conducted primary and secondary research on the presence
of Al-Shabaab in Ethiopia and Kenya, with special emphasis on cross-border
networks and operations. Sahan personnel, working in close consultation with
the Member States, interviewed members and former members of Al-Shabaab
and its Kenyan a!liate, Al-Hijra, as well as close associates, and received regular
brie#ngs from government o!cials, access to relevant documentation and
evidence, and the opportunity to observe operations against Al-Shabaab. $e
Sahan team adhered strictly to the standards of evidence required of UN
Expert Groups and other research bodies. $e team based its #ndings on a
“reasonable grounds to believe” standard of proof. Minimum standards
included reliance on at least two credible, independent, and mutually corroborating
sources or a single credible source supported by independently
veri#ed physical, documentary, audio-visual, or electronic evidence.
$e second phase of this initiative commenced in August 2016 and concluded
in May 2017 with the submission of a report to the UN Security
Council Committees on Somalia/Eritrea and the so-called Islamic State (IS)/
Al-Qaida. $is summary covers only Phase 1 of the Initiative, but some information
has been updated in light of the #ndings of Phase 2.
Harakaat Al-Shabaab Al-Mujahidin
Al-Shabaab continues to pose a threat to peace and security in Somalia, conducting
an insurgency against federal and regional Somali forces as well as
troops contributing to the African Union Mission in Somalia (AMISOM).
Annex 192
WAR AND PEACE IN SOMALIA
404
Figure 1: $e leadership of Al-Shabaab in 2016
Amir Ahmed Diriiye
Jayshka/
Jabhadda
(Military)
Wilaayadka
(Governorates)
Hussein
Hisbada/
Jaysh-al-Hisbah
(Police)
Qadaha
(Judiciary)
Haaliyadda
(Finance)
Da’awada
(Preaching)
Tacliinta
(Education/Training)
Ciilaanka
(Media)
Zaawakada
(Taxation)
Mohamed Sandheere
Suldaan ‘Ukaash’
Aboker Aden Ali Fiidow ‘Ossoble’ Abdul Haq Hassan Afgooye Ali Dheere Ali Dheere Ali Dheere (Reported Deceased)
Annex 192
AL-SHABAAB AS A TRANSNATIONAL SECURITY THREAT
405
Al-Shabaab’s zone of control has remained relatively stable as the organization
continues to engage in asymmetrical warfare, waging steady attacks on political,
military, and civilian targets, collecting taxes, extorting rents from businesses,
and running e"ective, parallel justice and educational systems—even
in government-controlled areas.
$e jihadists’ tactics, techniques, and procedures (TTPs) have also
remained consistent, although the reporting period featured an increase in the
number of complex attacks against hotels in Mogadishu and AMISOM/
Somali National Army forward operating bases. $e proliferation of attacks
inside Mogadishu demonstrates that Al-Shabaab maintains considerable freedom
of movement and operational capacity inside the capital.
Leadership
Al-Shabaab’s overall leadership structure throughout remained largely
unchanged in 2016, with changes made to the positions held by certain individuals
during 2017. Despite persistent rumours of his ill health, the new
“Amir” Ahmed Diiriye continues to hold power without any overt challenges
to his position. $e group has endured some second-tier leadership losses,
including the reported killing of a top tier Amniyat o!cer. As with previous
leadership attrition, however, these deaths do not appear to have signi#cantly
altered the operational capacity of the organization.
$e most notable alteration in Al-Shabaab’s leadership has been the establishment
of a new “Council of Clan Leaders”, which held its #rst congress in
October 2016. $e event was hosted by the group’s “governor” for Bay and
Bakool regions, Abdullahi Ma’allim Geeddow (aka “Abu Farhiya”). Following
the conference, the then head of Al-Shabaab’s “O!ce for Governorates”,
Hussein Ali Fiidow, announced the reorganization of the group’s governance
structure from seven governorates (or wilayat) into 11 across Somalia. $e
Council, which currently comprises four elders from each wilaya, signals
Al-Shabaab’s most overt attempt to co-opt traditional clan elders into the
group’s governance structure.
Modus Operandi
Composite Insurgency
Although Al-Shabaab’s rank and #le are from all Somali clans, as well as other
countries, the movement skilfully appropriates local grievances, aligning itself
Annex 192
WAR AND PEACE IN SOMALIA
406
with disa"ected groups. Al-Shabaab typically targets communities that harbour
grievances against government authorities; feel historical resentment against
more dominant clans; belong to minority groups that have long been marginalized;
or have lost in&uence during the civil war. $e result is a “composite insurgency”
in which a patchwork of di"erent groups support, tolerate, or collude
with Al-Shabaab to varying degrees, albeit for largely parochial reasons.
During 2016, Al-Shabaab made signi#cant e"orts to in&uence the behaviour
of speci#c clans, employing alternating cycles of violence and negotiation
to steer them into the jihadist camp. Key examples included the Gaalje’el and
Awrmale in Lower Jubba, elements of the Dir in Lower Shabelle, of the Abgaal
in Galgaduud, and a sub-group of the Habar Gedir in Mudug. In several cases,
Al-Shabaab applied “collective punishment” against the clan concerned, killing
community members, con#scating livestock, and threatening forced displacement
unless they came to the bargaining table.
Similarly, Al-Shabaab has at times intervened to in&uence the choice of clan
leadership. While engaging in a negotiation with a sub-clan in Lower Jubba
in December 2016 for example, Al-Shabaab leaders demanded that the community
appoint a new Ugaas4 who met with the jihadists’ approval.
Protection, Taxation, and Justice
In areas under its direct control, Al-Shabaab provides security through its
rudimentary justice system based on the group’s interpretation of Sharia law,
and imposes a structured form of taxation. In some areas, the group also places
rules and restrictions on the movements of people and goods, violation of
which can result in imprisonment, #nes, or even accusations of spying.
Al-Shabaab extends some of these measures to areas beyond its control with
varying degrees of success. Al-Shabaab courts are widely considered to be
more e"ective and less corrupt than the alternatives, especially with respect to
disputes over land and property. Residents of Mogadishu routinely travel to
an Al-Shabaab court near Afgooye to lodge complaints, while disputes in
Kismayo may be heard by Al-Shabaab courts in Behane or Jilib. Yet the group’s
attempts to expand zakat5 have encountered mixed results. In towns under
government control, businesses routinely pay “taxes” to Al-Shabaab in
exchange for peace and security: essentially a protection racket. But in rural
areas, Al-Shabaab has encountered resistance from communities that perceive
the group’s demands as unwelcome or excessive.6
Annex 192
AL-SHABAAB AS A TRANSNATIONAL SECURITY THREAT
407
Improvised Explosive Devices (IEDs)
Somalia experienced a signi#cant increase in the number of IED attacks conducted
by Al-Shabaab in 2016, with 395 IED incidents recorded in comparison
with 265 the previous year. Although targeting has largely remained the
same—focused on members of AMISOM and Somali security forces—the
number of reported casualties from such attacks has risen alarmingly, the
majority of them civilians:7 an estimated 1,839 IED-related casualties were
recorded in Somalia in 2016, with 1,116 individuals wounded and 737
killed—an increase of more than 800 victims over 2015.8
$e rise in deaths and injuries can be at least partially attributed to an
upswing in the number of complex attacks, notably against hotels in
Mogadishu9 and AMISOM forward operating bases. Such attacks generally
involve various types of IEDs, including Person-Borne IEDs (PBIEDs),
Vehicle-Borne IEDs (VBIEDs), Suicide-Vehicle-Borne IEDs (SVBIEDs), and
suicide infantry.
Indeed, Al-Shabaab has augmented IED usage during the course of the
reporting period, notably through an increase in both the number and size of
S/VBIEDs and Directional Fragmentation Charges (DFCs).10 Instead of
using cars or minivans to deliver VBIED attacks, the group has more recently
shi%ed towards the use of SVBIEDs carried inside much larger trucks, allowing
an augmentation of the quantity of explosives.11 Al-Shabaab conducted
only one such attack in 2015, but carried out #ve in 201612 and two more in
the #rst quarter of 2017.
Other TTPs include the increasing use of secondary IEDs to target primary
responders in Mogadishu or AMISOM/SNA convoys in remote rural areas;13
of area saturation (the placement of multiple IEDs within a target area) as a
defensive measure; and of command-wire IEDs (CWIEDs) instead of the
common radio-controlled IEDs (RCIEDs) in order to circumvent electronic
counter-measures used by AMISOM and the SNA.
Traditionally, Al-Shabaab has built IEDs using military-grade explosives
scavenged from locally acquired munitions and supplemented with aluminium.
But the di!culty in acquiring high quantities of such explosives in some
parts of Somalia has led the group to produce fertilizer-based home-made
explosives (HME).14 Fertilizer is imported legally into Somalia for agricultural
use and is easily procured in local markets.15
Finally, throughout 2016 and into early 2017, IEDs in at least three distinct
locations across southern Somalia have been manufactured with identical
Annex 192
WAR AND PEACE IN SOMALIA
408
components, and in certain cases likely from the same munitions supply. $e
same types of large pipes that hold explosives charges in SVBIEDs and
VBIEDs were found in the production of RCIEDs and DFCs. $ese observations
suggest that Al-Shabaab is currently using a centralized logistical chain
for the production of IED components, which are then delivered to smaller
hubs across the country where they are assembled for targeting.
Al-Shabaab as a Transnational "reat
Overview of the Regional "reat
Although Somalia remains Al-Shabaab’s geographic centre of gravity, the
group has long demonstrated a determination to operate beyond Somalia’s
borders and maintains a signi#cant presence in at least six countries of the
region. As early as 2010, Godane harboured aspirations for Al-Shabaab to
acquire a regional character.16 He established two new units dedicated to
external operations, one targeting Kenya, Tanzania, and Uganda, and the
other Ethiopia, while also tasking Al-Shabaab’s special operations and intelligence
branch, the Amniyat, with targeting Somalia’s neighbours.
Al-Shabaab has also inspired and encouraged the emergence of a!liated
groups and autonomous networks of jihadists across the region. Although
they di"er considerably with respect to operational capability and the nature
of their relationship with Al-Shabaab, all of these groups aspire and actively
plan to engage in acts of terrorism.
Kenya
Jaysh Ayman
In 2014, Al-Shabaab launched a new o"ensive in Kenya, with the creation of
a new unit dedicated to staging operations in Kenya, Tanzania, and Uganda:
Jaysh Ayman (a.k.a. Jeshi la Ayman). Despite its pro#le as an East African
force,17 the group has limited its activities to northern Kenya, particularly in
Lamu county, and southwards along the Kenyan coast. Attacks typically originate
within Somalia, with groups of militants crossing over into Kenya to
conduct operations and then retreating across the border.
Jaysh Ayman proved capable of carrying out a sustained campaign against
Kenyan government and civilian targets, causing mass casualties and characterized
by extreme brutality. From June 2015 however, it su"ered signi#cant
Annex 192
AL-SHABAAB AS A TRANSNATIONAL SECURITY THREAT
409
losses at the hands of the Kenyan security forces, and today the threat in Lamu
county18 and at the coast19 appears to be contained. $e militants’ operational
tempo in Garissa County also seems to have declined since the death in May
2016 of Mohamad Kunow, Al-Shabaab’s military commander in Lower and
Middle Jubba.20
Since mid-2016, new trends in cross-border attacks include the targeting
and looting of Kenyan police camps21 and vehicles,22 the reported use of IEDs
to target #rst responders,23 and the destruction of communications masts near
the border.24
Al-Hijra
Despite its operational limitations, Al-Hijra (formerly known as the Muslim
Youth Centre, or MYC) remains Al-Shabaab’s most important and active
a!liate in the region. Faced with enhanced scrutiny from security services and
the attrition of its leadership,25 Al-Hijra has shi%ed its activities and radicalization
and recruitment e"orts away from Nairobi and Mombasa, the traditional
hubs for jihadist activity in Kenya. Not only has the group invested in safe
houses and networks throughout the country,26 it continues to operate from
within Kenya’s prison system.27 Imprisoned Al-Hijra members still direct plots
against targets in Kenya using a variety of cells and networks, and routinely
assist in the facilitation of individuals looking to join Al-Shabaab or
IS. Al-Hijra is also placing a growing emphasis on the recruitment of girls and
young women.
Sympathizers and A!liates
Since 2006, the con&ict in Somalia has le% its mark on a generation of young
East Africans, propelling growing numbers toward extremism. Some of these
sympathizers have organized themselves into cells along the coast, using social
media and mobile phone applications to share information and attempt to
organize attacks, and hundreds (possibly thousands) have used Al-Shabaab
and Al-Hijra networks to travel to Somalia, and even Syria.28
In Tanzania,29 an emerging network has operational ties to Al-Hijra, and
uncon#rmed connections to Mombasa-based cells.30 $e group’s motivation
remains unclear but an initial assessment suggests a #nancial rather than an
ideological inclination.31
Annex 192
WAR AND PEACE IN SOMALIA
410
Ethiopia
Al-Shabaab has long sought to strike Ethiopia—so far without success. It came
closest to its goal in 2013, when a team of suicide bombers succeeding in
deploying to Addis Ababa, but accidentally blew themselves up following an
abortive attempt to bomb a World Cup qualifying match at a major stadium.
In March 2014, months before his death, Godane renewed his call for “jihad”
against Ethiopia.32
Jaysh al-Usra’s Ethiopian Wing
In parallel with the establishment of Jaysh Ayman, Godane took steps towards
the establishment of an Ethiopian Al-Shabaab military unit, initially headed
by a veteran jihadist commander named Ali “Diyaar” (a.k.a. “Warsame”).33
$e new Jaysh unit was based at Diinsoor and by late 2014 had approximately
500 #ghters: mainly Ethiopian Somalis, but also a signi#cant Oromo contingent
as well as smaller numbers from other Ethiopian ethnic groups. $e unit
has yet to stage any signi#cant military operation inside Ethiopia.
$e Amniyat
In late 2013, Godane also tasked key #gures in Al-Shabaab’s special operations
and intelligence branch, known as the Amniyat, to begin planning and preparing
operations against Somalia’s neighbours. $e Amniyat network34 has been
implicated in the 2013 Westgate Mall attack in Nairobi, the 2014 suicide
bombing of La Chaumière restaurant in Djibouti, and the massacre of over 60
Kenyan civilians near Mandera in two separate attacks in late 2014. Since May
2014, it actively began planning suicide attacks against the Ethiopian capital,
Addis Ababa, recruiting and deploying members of attack cells, mobilizing
networks of activists and sympathizers, and collecting information on possible
targets. Its largest operation in Ethiopia to date is the “Bole Wedding plot”,
which involved the attempted bombing of a shopping mall in Addis Ababa.
Although the plan initially involved deploying three teams35 totalling some 20
operatives, it ultimately failed.
Conclusions
IGAD Member States have already taken measures to counter the expanding
threat from Al-Shabaab, whether within their own borders, through their
Annex 192
AL-SHABAAB AS A TRANSNATIONAL SECURITY THREAT
411
support to Somali authorities, or through regional and continental security
cooperation mechanisms. Indeed, IGAD Member States participate in the
African Union Mission in Somalia (AMISOM) combating Al-Shabaab, and
are engaged in diplomatic e"orts to bring political stability to Somalia.
Ethiopian National Defence Forces (ENDF) have been committed to
AMISOM since January 2014, playing a leading role in the ground o"ensive
of Operation Jubba Corridor in south-western Somalia,36 and helping their
Somali counterparts by opening roads, providing technical expertise,37 and
monitoring Al-Shabaab activities.
$e Kenya Defence Forces (KDF) entered Somalia unilaterally in October
2011 in response to the Al-Shabaab threat in the border area38 then joined
AMISOM in 2012.39 $ey played a key role in liberating Kismayo in October
2012, and have since been operationally active with their Somali counterparts,
engaging in joint operations, capacity-building, community engagement, and
intelligence sharing.40 Kenyan security forces have also expanded their footprint
in northern Kenya, increasing their presence and monitoring of the
border area, and launching several operations targeting Al-Shabaab in
Garissa41 and Lamu counties,42 as well as stepping up e"orts to identify
Al-Shabaab networks and disrupt their activities across the entire country.43
Yet the importance of further emphasis on cooperation and coordination
cannot be overemphasized. As extremists linked to Al-Shabaab exploit weaknesses
to operate across the region’s borders, states must be capable of working
together to ensure that security services throughout the region share a holistic
view of the threats that they face. Member States should therefore consider
working towards a more robust regional framework for security cooperation,
intelligence sharing, and mutual legal assistance.
Recommendations
Speci#c, immediate measures to enhance cooperation in countering Al-Shabaab
Member States should consider convening a joint review to identify gaps,
challenges, and opportunities in strengthening cooperation. $e objectives of
such a review might include:
Establishing a clear understanding of the types of information all parties
can share and the processes for doing so, including necessary levels of authorization,
points of contact, and protocols for handling sensitive information
(for example, call data and #nancial records).
Annex 192
WAR AND PEACE IN SOMALIA
412
Engaging systematically in more joint activities, such as:
– Joint analytical teams or expert committees;
– Joint units to investigate speci#c threats;
– Establishment of enhanced liaison or “secondment” positions to allow
familiarization across countries.
IEDs and Counter-Measures
Al-Shabaab’s use of IEDs has evolved at an alarming pace. Although Somalia
is the epicentre of the regional IED threat, the TTPs tested in that country are
routinely exported to neighbouring countries.
IGAD Member States vary widely in their capacity to prevent such attacks,
and to conduct investigations a%er the fact. Most lack a comprehensive
counter-IED (C-IED) strategy. It is therefore proposed that they seek ISSP’s
support in enhancing their collective understanding of the IED threat,
develop appropriate C-IED strategies, strengthen their technical capabilities
for post-blast investigation and analysis, and improve information sharing
within the region.
Adaptation to evolving patterns of radicalization and recruitment
As Al-Shabaab’s radicalization and recruitment e"orts adapt to the investigative
measures employed against them, authorities should maintain a proactive
and &exible approach to monitoring these activities. Short-term operational
responses might include:
Sensitization of security o!cials in areas previously una"ected by extremism
in order to identify and react appropriately to potential threats;
Anticipating the swi% reallocation of dedicated resources to areas with
newly emerging threats to disrupt networks as quickly as possible;
Enhancing surveillance of terrorism suspects and convicts inside prisons to
identify individuals attempting to radicalize their peers or remain operationally
engaged. Additional measures include:
– Tighter controls to prevent contraband, especially mobile phones;
– Closer vetting of and enactment of sti"er penalties for prison sta"; and
– Development of disengagement programmes for extremists in the prison
system.
Undertaking additional research into the radicalization of young women.
Annex 192
Annex 193
S. D. Farquhar, “When Overfishing Leads to Terrorism”, World Affairs: The
Journal of International Issues 2, 2017
68 W O R L D A F F A I R S S U M M E R 2 0 1 7 ( A P R I L – J U N E ) V O L 2 1 N O 2
WHEN OVERFISHING LEADS TO TERRORISM
THE CASE OF SOMALIA
Somalia has the longest coastline in Africa and a wealth of marine resources.
However, weak governance, lack of infrastructure and illegal, unregulated
and unreported (IUU) fi shing by foreign countries have impeded Somali
efforts to take full advantage of the economic potential of these resources. The
overfi shing caused by IUU vessels has decreased the domestic catch, forcing
local fi shermen to turn to piracy. The increase in piracy has been mirrored
by Al-Shabaab terrorist activity. Despite the different motivations of these
two groups, profi ts from piracy have been used to fund terrorist activity and
the two groups have become intertwined. This article reviews the case of
overfi shing in Somalia, its fostering of piracy and explores the link between
piracy and Al-Shabaab. It suggests that nationwide economic stability and
peace could be furthered with the improved management and development
of Somali marine resources.
SAMANTHA D FARQUHAR
HISTORY
For understanding how circumstances in Somalia fostered Al-Shabaab activity
and piracy, a review of its history is essential. Somalia’s fi rst contact with
Islam occurred when a group of persecuted Muslims from Arabia sought
refuge in the region at the time of Prophet Muhammad in the eighth century.
Over time, these refugees integrated with local pastoral clans and developed
Annex 193
V O L 2 1 N O 2 ( A P R I L – J U N E ) S U M M E R 2 0 1 7 W O R L D A F F A I R S 69
administrative and legal systems based on Sharia Law (Helen Chapin Metz and
Thomas Leiper Kane, Somalia: A Country Study, Federal Research Division,
Library of Congress, Washington DC, 1993, online at https://www.loc.gov). Clans
are integral to Somali life as seen in day-to-day cultural, economic, political and
social interactions. There are six major Somali clan-families. Four of them—the
Darod, Dir, Hawiye and Isaaq—are predominantly pastoral and represent about
70 per cent of the population. The remaining two, the Digil and Rahanweyn, are
agricultural and located mainly in the
south where rivers are found. The rest
of the country consists primarily of arid
plateaus and plains, with some rugged
mountains in the north near the Gulf
of Aden coast. Due to sparse rainfall,
nomadic pastoralism has been the
principal occupation of clan-families
in much of the country (ibid). Over
the centuries, the Somali Peninsula and
the East African coast were subject to
various rulers, including the Omanis,
the Zanzibaris, the Sharifs of Mecca and
the Ottoman Turks. By 1885, there were fi ve mini-Somalilands—the north central
part controlled by the British; the east and southeast controlled by the French; the
south controlled by the Italians; the Ogaden in the west controlled by Ethiopia and
the southwest that became a part of Kenya. The British regarded northern Somalia
mainly as a source of livestock for Aden, whereas the Italians developed plantation
agriculture with bananas, citrus fruits and sugarcane in southern Somalia. Colonial
control continued in various forms until Somalia gained independence in 1960.
However, after independence the country faced several obstacles economically as
well as internal instability and external threats (ibid).
By October 1969, domestic tensions manifest themselves in the assassination
of President Abdirashid Ali Shermarke by one of his bodyguards, paving the way
for army commander Major General Mohamed Siad Barre to take over. The new
governing body, the Supreme Revolutionary Council, named Siad Barre president
and aimed to break up the old administrative units into smaller entities as well as
resettle many of the nomadic people. It also sought to promote nationalist and
socialist goals by appointing “peacekeepers” to replace the traditional elders and by
creating various committees in place of traditional clan groups. Historically, clans
W H E N OV E R F I S H I N G L E A D S TO T E R RO R I S M
Traditionally, Somalia has
been a country that practiced
agriculture and pastoralism.
The lack of a developed fi shing
industry and government
regulations made the waters of
Somalia an ideal fi shing ground
for foreign fi shing vessels. These
were illegal, unregulated and
unreported.
Annex 193
70 W O R L D A F F A I R S S U M M E R 2 0 1 7 ( A P R I L – J U N E ) V O L 2 1 N O 2
had relied on religiously devout males (wadaddo), who were usually the only literate
individuals and often played judicial roles as well. Although Siad Barre proclaimed
scientifi c socialism compatible with Islam, his regime attempted to reduce the
infl uence of Muslim leaders, particularly in politics (ibid). To cement his personal
rule and regain the Ogaden, Siad Barre launched the Ogaden War against Ethiopia
in 1977. While the war offi cially ended in 1978, confl ict continued with border
raids and skirmishes for many years. Overall, the war caused the death of 8,000
men, the infl ux of about 650,000 ethnic Somali and Ethiopian Oromo refugees and
was a severe drain on the economy. The economic crisis forced Somalia to devalue
its currency and encourage privatisation. Economic output from agriculture and
manufacturing however showed little progress and in some cases declined, partly
as a result of intermittent droughts. The country lacked energy sources apart from
charcoal and wood despite surveys indicating the likelihood of offshore oil in the
Gulf of Aden. Transportation and communication networks were also minimal.
Apart from livestock and agricultural products, which constituted the bulk of
Somali exports, the country had a number of undeveloped sectors such as fi shing,
forestry and mineral deposits including uranium.
As the country continued to struggle, several organised internal opposition
movements arose that were led by clans. To counter them, Siad Barre undertook
increasingly repressive measures such that involved numerous human rights
violations. Africa Watch reported that 50,000 unarmed civilians were killed in the
course of Siad Barre’s reprisals against the Hawiye, Isaaq and Majeerteen clans.
Thousands more died of starvation resulting from the poisoning of water-wells and
the slaughtering of cattle. In addition, hundreds of thousands sought refuge outside
the country. The civil war ended in 1991 when Siad Barre was overthrown and fl ed
the country, leaving anarchy behind as various clans fought for control (ibid). Less
than a year later, the country’s suffering from drought induced famine prompted
international aid. The United States of America (US) was among the nations that
sent peacekeeping forces to Somalia. The country’s military presence threatened
the clan militias and led to the October 1993 Black Hawk Down fi asco in which
18 US Army soldiers were killed and their bodies dragged through the streets. The
event led to an immediate withdrawal of aid, leaving Somalia in a continued state
of anarchy. This resulted in Somalia being seen worldwide as a dangerous failed
state, overrun by poverty, piracy and terrorism. Since 1991, fourteen different
governments have attempted to reorganise Somalia with little success. However,
the country’s failed state status is thought to have ended with the 2012 election
of President Hassan Sheikh Mohamud (Stig J Hansen, “Somalia”, Africa Yearbook
Volume 11, 2015, online at http://booksandjournals.brillonline.com).
S A M A N T H A D FA RQU H A R Annex 193
V O L 2 1 N O 2 ( A P R I L – J U N E ) S U M M E R 2 0 1 7 W O R L D A F F A I R S 71
MARINE RESOURCES IN SOMALIA
Traditionally, Somalia has been a country that practiced agriculture and
pastoralism (JB Véron, “La Somalie: Un Cas Désespéré”, Afrique Contemporaine,
January 2009, online at http://www.cairn.info). Animals like camels and sheep
were largely kept by farmers in the country. The lack of a developed fi shing
industry and government regulations made the waters of Somalia an ideal fi shing
ground for foreign fi shing vessels. These were illegal, unregulated and unreported
(IUU) fi shers and their presence rapidly increased throughout the 1990s, leading
to Somali waters being overfi shed and to declining catch for local fi shermen (Sarah
M Glaser, et al, Securing Somali Fisheries, One Earth Future Foundation, Denver,
2015, online at http://securefi sheries.org).
Overfi shing is deemed as the greatest threat to oceanic ecosystems today
(Jeremy BC Jackson, et al, Historical Overfi shing and the Recent Collapse of
Coastal Ecosystems, 2001, online at
http://science.sciencemag.org). This is a
recent global phenomenon as until the
twentieth century people believed the
oceans to be an inexhaustible resource
(Richard Peet, Paul Robbins and
Michael Watts (Eds), Global Political
Ecology, Abingdon: Routledge, 2011).
The new problem is largely attributed to
an increased demand in seafood and the
industrialisation of fi shing methods and
gear. Small trawlers and fi shing boats
have been replaced by giant factory
ships that are over 400 feet long and can
stay at sea for over a year. These vessels are equipped with advanced technology
such as sonar and global positioning systems and have processing centres as well
as vast cold storage onboard. They have the ability to deploy fi shing lines that are
miles long with hundreds of thousands of hooks or haul a net that can hold the
equivalent of 13 jumbo jets indiscriminately capturing whatever is in its path. One
of these industrial vessels can catch what hundreds of small-scale boats would in a
year (ibid).
In the case of Somalia, in 2003 IUU foreign industrial fi shing reached its
Small trawlers and fi shing boats
have been replaced by giant
factory ships that are over 400
feet long and can stay at sea for
over a year. They have the ability
to deploy fi shing lines that are
miles long with hundreds of
thousands of hooks or haul a net
that can hold the equivalent of
13 jumbo jets indiscriminately
capturing whatever is in its path.
W H E N OV E R F I S H I N G L E A D S TO T E R RO R I S M Annex 193
72 W O R L D A F F A I R S S U M M E R 2 0 1 7 ( A P R I L – J U N E ) V O L 2 1 N O 2
peak with a reported catch of 337.2 million tonnes of fi sh, while local fi shermen
caught approximately 32.4 million tonnes (Figure 1) (Glaser, et al, ibid). With
an approximate average of $300 million dollars of seafood stolen annually from
Somalia, local fi sherman could not compete with the IUU vessels and consequently
turned to piracy. Thus this period saw a drastic rise in Somali piracy, which peaked
in 2011 with 219 incidents (Figure 2). While there were two types of piracy—one
by Somali pirates and the other by IUU fi shers—the world only condemned the
Somalis (Mohamed Abshir Waldo, The Two Piracies in Somalia: Why the World
ignores the Other, 2009, online at http://www.imcsnet.org). Soon after the rise in
piracy, Al-Shabaab activity spiked and mirrored the trends seen in piracy (Figure 2).
With the North Atlantic Treaty Organization’s involvement and patrol of Somali
waters, the activity of both groups decreased signifi cantly with incidences of piracy
now rare. However, IUU foreign fi shing is on the rise again and consequently both
piracy and Al-Shabaab activity may be expected to rise in the future. To prevent a
vicious circle between overfi shing, piracy and terrorism, strong internal government
regulations need to be established and enforced, starting at the environmental
management level.
Figure 1: Marine Production caught by Foreign Industrial Fishers and Artisanal
Domestic Fishers in Somalia, 1999–2014
0
50
100
150
200
250
300
350
400
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
Millions of Date
Marine Production Somalia 1999-2014
IUU Fishing Vessels Catch Artisanal catch
S A M A N T H A D FA RQU H A R
Millions of tons
Fishing Vessels Catch Catch
Annex 193
V O L 2 1 N O 2 ( A P R I L – J U N E ) S U M M E R 2 0 1 7 W O R L D A F F A I R S 73
Figure 2: Reported Deaths by Al-Shabaab in Somalia and Incidents of Somali Piracy
0
50
100
150
200
250
0
500
1000
1500
2000
2500
3000
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
Number of Somali Acts of Piracy
by Al-Shabaab
Axis Title
Somali Piracy and Al-Shabaab
Deaths by Al-Shaabab in Somalia Incidents of Somali Piracy
MOTIVES
While Somalia was in the midst of anarchy in the late 1990s, neighbourhood
courts based on Sharia Law appeared as a means of imposing some sort
of order. Despite most Somalis traditionally following the more moderate
Sufi branch of Islam, these courts were welcomed and offered protection.
However, as the courts gained power they became an outlet for imposing strict
fundamentalist versions of Islam. In mid-2004, eleven courts came together
to form the Islamic Courts Union (ICU). By 2006, the ICU had eliminated
warlords, decreased crime and improved the economy, as businesses could
operate in peace. However, in some of the areas controlled by the ICU, Sharia
Law was in extreme effect and women were forced to cover themselves from head
to foot, soccer was banned and any activity deemed un-Islamic was punished
corporally (Graham Turbiville, Josh Meservey and James Forest, Countering the
Al-Shabaab Insurgency in Somalia: Lessons for US Special Operations Forces, 2014,
online at https://jsoupublic.socom.mil).
The Al-Shabaab group arose from the ICU. With members originally
belonging to the previous Islamic organisation the Al-Itihaa Al-Islamiya, the
Al-Shabaab became a militant faction of the ICU that was especially useful
W H E N OV E R F I S H I N G L E A D S TO T E R RO R I S M
Somali Piracy Deaths by Al-Shabaab
Number of Somali Acts of Piracy
Axis Shabaab Annex 193
74 W O R L D A F F A I R S S U M M E R 2 0 1 7 ( A P R I L – J U N E ) V O L 2 1 N O 2
in defeating warlords. As the ICU’s power grew, Ethiopia to the west became
increasingly concerned. When an attack was expected on the city of Baidoa,
where the Ethiopian backed Transitional Federal Government was located,
Addis Ababa sent thousands of troops into Somalia to regain control. While
the ICU quickly dissolved, Al-Shabaab called for a jihad against Ethiopia with
the objective of creating an Islamic Emirate of Somalia, which would include
Somalia, Somaliland, Puntland, northeast Kenya, the Ogaden region of Ethiopia
and Djibouti. Originally, the group used common national antipathy towards
Ethiopia to recruit thousands of volunteers, engaging in guerrilla warfare. Due
to a lack of governance, Al-Shabaab was able to build a system of taxation
and extortion to raise funds. It also provided Somalis with support and basic
governmental structures, which were otherwise lacking. This fostered goodwill
among the Somali people and aided in their recruitment. In 2008, Al-Shabaab
made great strides by aligning interests with Al-Qaeda and the collaboration
benefi ted both parties—Al-Shabaab gained increasing legitimacy and resources
while Al-Qaeda gained a level of infl uence over the group. Al-Shabaab also
changed its ideological rhetoric and began to portray Somalia as a front in the
“global war” against the West. The group became populated with Al-Qaeda core
members and altered its operational strategy to focus on suicide attacks against
civilians both inside and outside Somalia (ibid). For example, Al-Shabaab was
responsible for the September 2013 Westgate Mall attack in Nairobi which
killed 67 people and the April 2015 massacre of university students in Garissa,
Kenya killing 150. Al-Shabaab translates to “the youth” and this is an apt name,
as the majority of members are unemployed young men. As the civil war left
67 per cent of the youth aged 14–30 unemployed and 73 per cent of the total
population living under two US dollars a day, recruitment into Al-Shabaab
became a viable alternative (United Nations Development Programme, Somalia
Human Development Report 2012, online at http://www.undp.org).
While Somali piracy captured the world’s attention in the early 2000s, it
was not its fi rst occurrence. Piracy arose out of feuds between Somali fi shermen
and foreign fi shers in the early to mid-1990s. As the presence of foreign fi shing
vessels continued to increase in Somali waters, tensions grew. It was reported
that foreign fi shers were deliberately harming domestic fi sheries by sabotaging
equipment. Domestic fi shermen then retaliated by engaging in opportunistic
attacks in which they would steal equipment. However, these attacks escalated
with the fi rst reported hijacking for ransom in late 1994, when two SHIFCO
S A M A N T H A D FA RQU H A R
Annex 193
V O L 2 1 N O 2 ( A P R I L – J U N E ) S U M M E R 2 0 1 7 W O R L D A F F A I R S 75
fi shing vessels were hijacked and released for a large sum. Piracy saw its revival
in the early 2000s shortly after record amounts of catch were reported by foreign
fi shers. During this time, foreign vessels on average caught three times more fi sh
than local Somali fi shermen and their profi ts refl ected this inequality. Foreign
fi shers made $306 million dollars from
Somali fi sheries while local fi shers made
$58 million (ibid). Local fi sherman
defended acts of piracy as a form of
self-defence and economic support.
However, with the involvement of
warlords and international fi nancing,
piracy soon developed into a highly
organised criminal operation outfi tted
with high-speed boats and assault
rifl es with the sole purpose of making
large profi ts. Somali pirates reportedly earned between $30,000–$75,000
per successful trip (World Bank, United Nations Offi ce on Drugs and Crime
and International Criminal Police Organization, Pirate Trails: Tracking Illicit
Financial Flows from Pirate Activities off the Horn of Africa, 2013, online at
https://openknowledge.worldbank.org). While the long-term intentions of Al-
Shabaab and piracy differ, motives for partaking in either activity overlap—both are
driven by the monetary incentive. In interviews with former Al-Shabaab recruits,
the majority indicated joining for economic reasons as they were reportedly paid
between $150 and $300 per month (Anneli Botha and Mahdi Abdile, Radicalisation
and Al-Shabaab Recruitment in Somalia, Institute for Security Studies Paper 266,
Pretoria, September 2014, online at http://mercury.ethz.ch).
PIRACY AND AL-SHABAAB
In the early 2000s, reports suggested rivalry rather than cooperation between
pirates and terrorists. When the Islamic Courts Union came to power in
Mogadishu in 2006, it publicly declared piracy haram and called for an end
to all maritime crime, making special efforts to crackdown on pirate bases and
threatening pirates with punishment under Sharia Law (Currun Singh and Arjun
S Bedi, ‘War on Piracy’: The Confl ation of Somali Piracy with Terrorism in Discourse,
Due to a lack of governance, Al-
Shabaab was able to build a system
of taxation and extortion to raise
funds. It also provided Somalis with
support and basic governmental
structures, which were otherwise
lacking. This fostered goodwill
among the Somali people and
aided in their recruitment.
W H E N OV E R F I S H I N G L E A D S TO T E R RO R I S M
Annex 193
76 W O R L D A F F A I R S S U M M E R 2 0 1 7 ( A P R I L – J U N E ) V O L 2 1 N O 2
Tactic and Law, International Institute of Social Studies of Erasmus University
Working Paper–General Series 543, 2012). While Al-Shabaab had initially tried
to impose this through force, gradually a growing nexus between the two became
prevalent. Al-Shabaab activity, measured by the number of deaths caused by the
group in Somalia, closely mirrors the trend of piracy—both in its rise and fall
(Figure 2 above). This may be explained by the possible dependence of Al-Shabaab
on piracy and its profi ts. While this connection has not been clearly defi ned it
has been described in various accounts. For example, a known pirate leader Ciise
Yulux reportedly provided money and equipment to fi ghters linked to Al-Shabaab
and Al-Qaeda in 2012. Furthermore, through an agreement in Harardhere, a port
north of Mogadishu, pirates paid a “development tax” of 20 per cent to Al-Shabaab
to keep their boats in port. Sheikh Hassan Afrah, another known pirate leader, was
responsible for receiving Al-Shabaab’s cut from pirate ransoms and troubleshooting
friction between the two parties. The majority of fi ghters associated with Al-Shabaab
have few direct ties to piracy, instead personal connections among individuals are
more popular (Christian Bueger, Jan Stockbruegger and Sascha Werthes, “Pirates,
Fishermen and Peacebuilding: Options for Counter-Piracy Strategy in Somalia”,
Contemporary Security Policy, vol32, no2, August 2011, pp356–81). A lack of
transparency and Somalia’s complex network of cash transmitters make it diffi cult
to track business deals. However, it is known that from 2005 to 2012 between
$339 million and $413 million were paid in ransom to Somali pirates with the
average haul being $2.7 million. Djibouti, Kenya and the United Arab Emirates
were the main transit points and fi nal destinations for the profi ts from piracy. It
has been estimated that a third of pirate fi nanciers invested profi ts in setting up
militias and/or gaining political infl uence including Al-Shabaab (World Bank, et
al, ibid). While the level of collaboration between Somali piracy and Al-Shabaab
is vague and uncertain, it has become clear that the two are intertwined. By this
account, piracy is being used to support terrorism.
PEACE THROUGH MARINE RESOURCE MANAGEMENT
Both terrorism and piracy are fuelled by poverty and a lack of governance
in Somalia. Furthermore, trends in their activity closely correlate with each
other (Figures 1 and 2 above). However, with the elections in 2012, Somalia
has changed its status from a failed to a fragile state and shows potential for
S A M A N T H A D FA RQU H A R
Annex 193
V O L 2 1 N O 2 ( A P R I L – J U N E ) S U M M E R 2 0 1 7 W O R L D A F F A I R S 77
growth. Developing and protecting the domestic Somali fi shing industry has
high potential for encouraging a stable economy and promoting peace. While
the unemployment rate in Somalia is 54 per cent (United Nations Development
Programme, ibid), the fi shing sector
has the potential to create numerous
direct and indirect jobs. While IUU
vessels have damaged the marine
environment and fi sh stocks, Somali
waters remain productive and contain
many commercially important species
with the most promising being sardines
(Glaser, et al, ibid). Furthermore,
development of the marine industry
has the potential of increasing countrywide food security. From 2010–12 nearly
260,000 people, half of whom were children, died from famine in Somalia (United
Nations Development Programme, ibid). Fish and other aquatic resources offer
important sources of protein and essential micronutrients such as iron, zinc,
omega-3 fatty acids and vitamins. To break the resource curse and increase the
accessibility of marine resources to Somalis, a better regulatory framework of
fi shing regulations and rights needs to be defi ned. This includes developing
greater capacity for monitoring IUU vessels and enforcing laws, increasing land
based infrastructure such as processing and cold storage centres and creating local
fi shery management plans (ibid). Additionally, while it is not as profi table, Somalia
has the potential of earning $17 million dollars through fi shing agreements with
other countries.
Overall the relationship between global security forces, IUU fi shers, pirates
and Al-Shabaab is intricate and causative. IUU overfi shing led local fi shermen
to piracy and as this became more organised, business deals were made with Al-
Shabaab. Post-2011, piracy numbers have dropped due to increasing patrols by
global security forces and Al-Shabaab activity has concurrently decreased. Thus,
since the crackdown on piracy, incidents of Somali piracy have been fewer and a
decrease of in-country violence by Al-Shabaab has been noted as well. However,
as the waters become pirate free, the presence of IUU fi shing vessels has begun
to rise again. If these vessels overfi sh and exploit Somali waters as before, piracy
could return and this time it would be more dangerous and organised than
before, with ties for funding Al-Shabaab terrorist activity.
In the early 2000s, foreign vessels
on average caught three times
more fi sh than local Somali
fi shermen and their profi ts
refl ected this inequality. Foreign
fi shers made $306 million dollars
from Somali fi sheries while local
fi shers made $58 million.
W H E N OV E R F I S H I N G L E A D S TO T E R RO R I S M
Annex 193
Annex 194
A. Østhagen, “Maritime boundary disputes: What are they and why do they
matter?”, Marine Policy, 2020
Marine Policy 120 (2020) 104118
Available online 18 July 2020
0308-597X/© 2020 The Author. Published by Elsevier Ltd. This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/).
Maritime boundary disputes: What are they and why do they matter?
Andreas Østhagen
Senior Research Fellow, Fridtj of Nansen Institute, P.O.Box 326, 1326, Lysaker, Oslo, Norway
A R T I C L E I N F O
Keywords:
Maritime boundaries
Ocean politics
Law of the sea
UNCLOS
Maritime disputes
A B S T R A C T
When states legalised the maritime domain in the 20th century, the relationship between states and maritime
space changed. Since the turn of the millennium, certain global trends have further amplified the role of the
oceans in international affairs. This has led to a renewed focus on maritime space, as well as states’ rights and
responsibilities within this domain, delineated through the concept of a ‘boundary’ at sea. What, in essence, is a
maritime boundary? Why do states end up disputing them? Perhaps more important, how do states go about
settling such disputes, and how can we better understand the development of the legal and political principles
that frame such endeavours? These are the questions examined in this article, which sets out to examine the
concept of maritime boundaries and related disputes. Leaning on political science, international law and political
geography, it reviews how the idea of a maritime boundary came about; what principles govern how they are
drawn; how they at times are resolved; and possible future trends that might impact boundary-making at sea.
1. Introduction1
In 2010, Norway and Russia agreed on a maritime boundary in the
Arctic, stretching from the Eurasian landmass almost all the way to the
North Pole. The new 1750-km (1087-mile) boundary was ten times the
length of the land border between the two countries and it was hailed as
a sign of a new ‘era’ in Norway–Russia relations, as well as Arctic
governance more broadly [1,2]. Pundits were quick to argue that the
primary reason for the maritime boundary agreement must have been
the presence of oil and gas resources, not least as resource extraction
figured prominently in the two countries’ newly launched Arctic strategies
[3].
However, it is unlikely that Norway and Russia would have been able
to reach an arrangement today, a decade later. As the former Norwegian
foreign minister highlighted explaining one of the factors behind the
agreement: ‘There must be trust between the negotiating partners’.2 The
worsening in relations between the two countries after the Russian
annexation of Ukraine in 2014 have made bilateral relations resemble
those of the Cold War when the two countries were on opposing sides in
the larger ‘East West’ dispute.
This speaks to the challenge of settling boundary disputes.
Boundaries in the ocean are man-made constructs of importance to
everything from oil and gas production, to fisheries and environmental
protection. Presently, more than half of all maritime boundaries are still
disputed, across all continents [4,5]. As put by the Norwegian and
Russian foreign ministers in 2010: ‘unresolved maritime boundaries can
be among the most difficult disputes for states to resolve’ [1]. Timing, in
other words, is everything, when it comes to settling maritime
boundaries.
This begs the question: What, in essence, is a maritime boundary, and
why do states end up disputing them? Perhaps more important, how do
states go about settling such disputes, and how can we better understand
the development of the legal and political principles that frame such
endeavours?
It is only recently – in an extended view of history – that states’
ability to uphold sovereignty at sea has led to oceans becoming subject
to explicit international jurisdiction. How states have viewed and utilised
the sea – eventually attempting to control and develop a legal order
for it – has varied and changed over the past millennium [6], pp.
153–154], [7]. From the 15th to the 19th centuries, the use of maritime
space in exploration, dominance and industrialisation transformed the
world [8].
E-mail address: [email protected].
1 This article is part of the research project The Geopolitics and Geoeconomics of Maritime Spatial Disputes in the Arctic (GEOSEAS), financed by the Norwegian
Research Council (#302176). It is also part of a larger project by the author examining maritime boundaries and disputes globally. The author would like to thank
Michael Byers, Alf Håkon Hoel, Suzanne Lalonde, Ted McDorman, Iver B. Neumann, Clive Schofield and Olav Schram Stokke, as well as the excellent reviews given
by three anonymous reviewers.
2 [92] Author’s translation.
Contents lists available at ScienceDirect
Marine Policy
journal homepage: http://www.elsevier.com/locate/marpol
https://doi.org/10.1016/j.marpol.2020.104118
Received 7 March 2020; Received in revised form 25 June 2020; Accepted 26 June 2020
Annex 194
Marine Policy 120 (2020) 104118
2
When states legalised the maritime domain in the 20th century, with
the Geneva Conventions on the Law of the Sea in 1958 and the UNCLOS
regime in 1982, the relationship between states and ocean space
changed.3 Since the turn of the millennium, certain global trends have
further amplified the role of the oceans in international affairs. Technological
developments, increased seaborne trade, growing demand for
marine resources, and climate-change effects on the oceans and the
location of those resources are all factors that have led to a renewed
focus on maritime space, as well as states’ rights and responsibilities
within this domain. As Steinberg [9], p. 366] wrote already two decades
ago: ‘we are now entering an era when […] human interactions with
ocean-space are ever more intense and complex’.
The effects of climate change on the oceans – provoking sea level rise
and in turn, coastal erosion – have also become increasingly apparent in
recent decades. That in turn may influence the delineation of maritime
space: with changes in the baselines from which boundaries are determined,
or in the characteristics of islands and territory, states may find
themselves faced with new challenges, or be forced to re-visit old and
unresolved disputes [10], pp. 12–13], [11]. This could cause further
tension, even conflict [12,13].
As this happens, more and more attention is paid to the question of
‘who owns what’ at sea. Writing about the Political Geography of Oceans
in 1975, Victor Prescott argued that ‘[s]tates seek to use the oceans for
precisely the same reasons as they use their territory: to provide security
and the opportunity for development’ [14], p. 30]. This simple fact has
not changed. States have rights and duties regarding maritime space,
and, as this space gains attention, the delineation of ownership and
rights is already rising to the fore of domestic and international politics.
In turn, these trends require that we better examine the notion of
boundary-making at sea, and why states engage in disputes over these
more generally. This article does exactly that, by investigating the
notion of maritime boundaries more generally, and how states go about
managing and settling related disputes, before discussing the future of
maritime boundary disputes. It draws on the fields of political science,
international law, and political geography, as well as scholarly work that
has dealt with maritime boundaries specifically, in order to outline what
maritime boundaries are, and why they matter, at a time when questions
of ocean governance are increasingly on the political agenda.4
2. States and territory
As a consequence of European state formation and finite territorial
space, the concepts of territorial sovereignty and boundaries have come
to define the modern state [15–17]. As states formed, developed, and
expanded, the need to define and uphold territorial boundaries became
increasingly relevant [18], p. 131]. As Kratochwil [19], p. 32] argues:
‘boundaries are points of contact as well as of separation between a
social system and an environment’. According to Ruggie [20], p. 150],
‘[t]he notion of firm boundary lines between the major territorial formations
did not take hold until the thirteenth century; prior to that there
were only ‘frontiers’, or large zones of transition’. Kratochwil [19], p.
33] in turn holds that the 1659 Treaty of the Pyrenees between France
and Spain established the first modern state boundary.
When the emphasis was placed on delimitation of all territory
(terrestrial) in the 19th and 20th centuries, ‘frontier’ regions became a
source of inter-state friction, as they lacked clear demarcation. Disputes
emerged as states sought to expand their territory and define their
borders.5 Even today, related border disputes exist [19], p. 37].
The concept of territoriality developed slowly in what has become
the international system. Because of European state formation and the
finite territorial space in this part of the world, the concept of territorial
sovereignty and boundaries have come to define the modern state and its
relations to other states across the globe [21–23]. ‘The rise of the
bounded state as a political unit necessitated a concern with the drawing
and redrawing of political borders and the formalization of territorial
arrangements’ [24], p. 45].
Scholars thus agree that boundaries and the integrity of territory
constitute a pillar of the modern state-system. Tracing the development
of the norm of ‘territorial integrity’ in recent centuries, Zacher [16]
shows how the norm has undergone three phases: emergence, acceptance,
institutionalisation.6 Examining all territorial conflicts between
1946 and 2000, he finds that the norm has indeed been commonly
accepted through efforts and statements from the 1970s onwards.
The link between territory, sovereignty and conflict has been
extensively proven [25–30]. Vasquez, for example, shows how at least
79% of all wars between 1648 and 1990 were fought over
territory-related issues [31,32]. Disputes emerged – and still emerge – as
states seek to expand their territory and define their external boundaries.
The classic territorial dispute involves two states that disagree on
where a border should go, either because one state does not recognise
another state’s border derived from a previously signed treaty, or
because no treaty exists at all. More complicated disputes concern situations
where a state has occupied the territory of another state, where a
state does not recognise the sovereignty of another state, or where a
state does not recognise the independence and sovereignty of a seceding
state [29], pp. 20–23].
Territory has been the primary source of conflict between states over
the last millennium, as states grew into existence, developed and
matured. Territory and where to draw related borders have also not lost
their importance. According to Wiegand [30], territorial disputes
concern 41% of all sovereign states today. Hensel [33], p. 137] holds
that interstate rivalry is still twice as likely to escalate into war when
territory is involved. As noted by Weber [34], it is the monopoly on the
use of force in a given geographical area that has come to characterise the
modern state. The notion of territoriality has come to define the very
idea of statehood [21].
3 See Ref. [43,93,94].
4 The United Nations has dedicated the period 2021–2030 as ‘Ocean Science
for Sustainable Development’, linked to Sustainable Development Goal #14: to
conserve and sustainably use the oceans, seas and marine resources for sustainable
development. 5 For an examination of the concept of territoriality and fixed territory, see
for example [21,22,24]. Territoriality can be defined as the process whereby
territory (here: the ocean) is claimed by individuals or groups. ‘Territoriality
can be seen as the spatial expression of power and the processes of control and
contestation over portions of geographic space are central concerns of political
geography’ [24, p. 8]. Studies of territory and territoriality are primarily concerned
with land and the human need/desire to inhabit and control land.
However, the idea of ‘socialized territoriality’ is relevant also for discussions of
the maritime domain, as it enables the role of territory to be conceived more
broadly. Sack [23, p. 219] sees territoriality as a ‘device to create and maintain
much of the geographic context through which we experience the world and
give it meaning’. In turn, once ‘territories have been produced, they become
spatial containers within which people are socialized’ [24, p. 20], [95].
6 Zacher adapts from Finnemore and Sikkink [96].
A. Østhagen
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3
3. Maritime space and boundaries at sea
At sea, however, ‘territoriality’ and the rights of states take on a
different form. Inherently a distinct domain altogether, the way in which
society has viewed, legalised, and utilised the ocean has evolved through
history. In the 15th century, as European powers pursued colonisation in
waters outside Europe, a debate was sparked concerning the status of
oceans and what rights nations could have at sea. Ideas of a natural law
of nations were retrieved from antiquity and the Middle Ages and used
by scholars to argue for various understandings. Grotius became a
frequently cited proponent of the right to peaceful commerce and that
passage at sea is natural to the ‘need of all men to ensure their survival’
[35], p. 33]. Grotius argued for the freedom of the seas in order to
counter Portuguese and Spanish claims to trade monopolies in the world
outside Europe, when they divided the non-Christian world between
themselves with the 1494 Treaty of Tordesillas.
The principle of the oceans as global commons came to clash with the
idea that nations had rights and sovereignty in nearby waters. For
example, Norwegian kings around AD 1000 had claimed sovereignty in
waters adjacent to Norway stretching all the way to the British shorelines
[36], p. 481]. In the 15th century, a version of this position was
advanced by Britain, in response to Dutch attempts at dominion of the
North Sea. As Maier [35], p. 37] describes it:
The Dutch sent a fishing fleet of two thousand ships protected by an
armed squadron to the North Sea waters off the east coast of Britain;
and John Selden argued that the ocean’s bounty of cod was no more a
public good, replenished by nature, than the land, and like the land it
could be assigned to particular owners.
Legal scholars like Hugo Grotius (mare liberum – freedom of the seas)
and John Selden (mare clausum – closed seas) have become symbols for
two opposing ways of grappling with questions of maritime ownership
and rights. These conceptions of the ocean, which also hold varying
degrees of relevance for different maritime spaces (open seas and/or
coastal zones), came to dominate approaches to the sea in the subsequent
centuries, until the international community began negotiating a
legal framework for the oceans in the 20th century.
Already in the 18th century, the territorial waters of states were
defined as being a ‘cannon shot’ from land, an idea developed by van
Bynkershoek in 1703, and later defined as three nautical miles (n.m.) by
Galiami [37], p. 138].7 The League of Nations attempted to codify international
law concerning the oceans in The Hague in 1930, but never
managed to reach agreement [38].
Then, in 1945, US President Truman declared that the natural resources
of the continental shelf were under the exclusive jurisdiction of
the coastal state [39]. This rapidly advanced discussions on what rights
states have beyond a limited (3 n.m.) territorial sea. Central to the
success of this declaration was not only the US position of strength after
the Second World War, but also how the principle entitled every coastal
state to similar rights, and the fact that these sovereign rights did not
depend on occupation [40], pp. 91–92]. This was later codified in the
1958 Geneva Convention on the Continental Shelf, which preserved the
prospect of exclusive coastal state jurisdiction over offshore seabed resources
[41].
At the same time, some states started expanding their territorial seas
from three to twelve n.m., as negotiations of an international regime for
the oceans were underway. This led to conflict around adjacent and
overlapping maritime spaces. The first and second Law of the Sea Conferences
were held in 1956–1958 and 1960, without reaching final
agreement on the extent of the territorial sea or the extension of State
rights and jurisdiction extending further offshore, beyond the territorial
sea [37]. Then followed decades of negotiations aimed at developing a
coherent international legal framework for the oceans; in 1982, most
states agreed on a comprehensive legal regime: the United Nations
Convention on the Law of the Sea – UNCLOS [42].
When it was agreed, UNCLOS provided the legal rationale for states
to implement new maritime zones in addition to the 12-n.m. territorial
sea, with a 200 n.m. ‘resource’ or ‘fisheries’ zone (what became termed
the Exclusive Economic Zone – EEZ), driven largely by growing
awareness of the possibilities for marine natural resource extraction
(hydrocarbons, fisheries, minerals) and the desire of states to secure
potential future gains [38,43].
Already in 1952, Peru, Chile and Ecuador had made claims of
exclusive rights out to 200 n.m., seeking to reap benefits of an expansion
in fisheries [44]. These initial claims wetted the appetite of many coastal
States and after a diversity of claims were put forward – because other
states also claimed resource zones, including exclusive fishery zones in
the 1950s, 60s and 70s – the international community agreed on the
legal regime of the EEZ as defined under Part V of UNCLOS.
When states began expanding their maritime zones, the notion of
straight baselines also came to the fore. This is the line drawn along the
coast from which the seaward limits are measured. Instead of drawing
the baseline of a country’s maritime zone along its coast following all
features, some states with indented coastlines or with multiple fringing
islands started to draw straight lines along the coast, in essence claiming
more maritime space (territorial sea) than a country with an even
coastline. The UK took a case against Norway concerning this practice to
the ICJ, which in 1951 endorsed the Norwegian approach regarding
straight baselines with the Anglo-Norwegian fisheries case [45].
In consequence, states had in the span of a few decades gone from
having control over a relatively limited (often just 3 n.m.) maritime
domain, to having an international agreement on expanding the length
of the territorial sea where states have full sovereignty to a maximum of
12 n.m., while also adding an EEZ where states have certain sovereign
rights for an additional 188 n.m.
Moreover, with UNCLOS it was concluded that states have sovereign
rights on the continental shelf up to 200 n.m., and, when relevant,
beyond 200 n.m. where the shelf is a prolongation from the land mass of
the coastal state by submitting this information on the limits to the
Commission on the Limits of the Continental Shelf (CLCS) [46]. The
limit of such claims was determined to be up to 350 n.m. from a country’s
baseline, or not exceeding 100 n.m. beyond the point where the
seabed is at 2500-m depth (2500-m isobath) [47], p. 321].
With 168 ratifications as of 2020, UNCLOS has become part of the
larger framework of international politics and law [48]. Many of its
provisions today reflect customary international law, which is universally
binding on all states, and not limited to UNCLOS parties only [49].
This legal-political regime that took decades to develop, has enabled
states to reach a relative agreement on how to tackle issues that first
arose centuries ago. As Keohane and Nye [50], p. 56] put it in 1977:
‘there is very little direct functional relationship between fishing rights
of coastal and distant-water states and rules for access to deep-water
minerals on the seabed; yet in conference diplomacy they were
increasingly linked together as oceans policy issues’.
However, a central bone of contention that remained – and remains –
is how and where to delineate maritime space and related rights to resources
on the seabed and in the water column.
4. The process of drawing lines at sea
As states expanded their maritime zones, a number of maritime
boundary disputes between neighbouring states emerged. Different
states have developed different interpretations of how to draw boundary
lines at sea [51]. These relate to which map projection to use when
drawing the boundary; whether or not to base the boundary on a median
principle or a sector principle; the shape of the geographical attributes of
the land from which the maritime boundary is derived – i.e. the direction
7 One nautical mile (n.m.) is 1852 m/approx. 1.15 miles, and this has become
the standard unit of measurement for both marine and air navigation, as well as
zones at sea.
A. Østhagen
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Marine Policy 120 (2020) 104118
4
of the coastal front and the weight given to islands and submarine features;
and which portion of the coast is relevant to delimitation [52–54].
When states expanded their fisheries zones or EEZs to 200 n.m.,
existing maritime boundary disputes were enlarged as the disputed
areas grew in size. Boundary disputes also arose or became more significant
between the maritime zones of ‘adjacent’ or ‘opposing’ coastal
states. Some of these boundary disputes were settled immediately, but a
large number remain today. The map (Fig. 1) display how the EEZs of
countries bundled together are contiguous and thus also need a clear
boundary.
As maritime zones and state interest in them rose on political
agendas in the middle of the 20th century and the need for their delimitation
increased, the concept of ‘equidistance’ came to the fore. This
guiding principle encountered another principle, namely that of equity.
The balance between these two principles has shifted over the last halfcentury,
and this tension is crucial in understanding how states settle
their maritime boundary disputes (and the principles that guide such
processes).
Equidistance entails a boundary that corresponds with the median
line at an equal distance (equidistance) at every point from each state’s
shoreline. Some scholars have taken the position that this was codified
under Article 6 (2) of the 1958 Geneva Convention on the Continental
Shelf (Geneva Convention), which directs states to settle overlapping
claims by reference to the equidistance principle [55], p. 62]. As St-Louis
[56], p. 26] points out, with the Geneva Convention, states ‘intended to
have equidistance applied as the basic principle, to be deviated from
only in the case of special circumstances’.
However, international law is not a static set of rules, but rather a
process that evolves through time [40]. The attention given to ‘relevant’
or ‘special’ circumstances led to varying interpretations among states. In
addition to coastal length and other geographical variables, security
interests and the location of natural resources have at times been
accorded weight in a few international court rulings. This has been
termed ‘equity’, as a principle distinct from ‘equidistance’.
Equity thus acquired importance in delimiting disputes the maritime
domain [57]. In particular, the North Sea Continental Shelf Cases between
Denmark, West Germany and the Netherlands from 1969 pitted
the principle of equity and equidistance against each other [58].
Denmark and the Netherlands argued for the use of equidistance,
whereas West Germany argued for a ‘just and equitable share’ of the
disputed area. Outlining its approach to maritime boundary dispute
settlement in general, the Court held that delimitation must be ‘effected
in accordance with equitable principles … taking account of all the
relevant circumstances’ [59], p. 53].
In addition, the Court introduced the concept of the ‘natural prolongation’
of the continental shelf – that also the geophysical attributes
of the shelf in question matter for delineation between states [60], p.
15]. Although the ICJ specified that there was ‘no legal limit’ to the
number of factors that were relevant to delimitation of the shelf, these
were initially defined as geology, the desirability of maintaining unity of
the natural resource deposits, and proportionality (the ratio between the
water and shelf areas attributed to each state and the length of their
coastline) [59], pp. 51–52].
States were thus not deemed to be obliged to apply the equidistance
principle: equity was seen as extending beyond mere equidistance [56,
58]. Robert Kolb [61], p. 108] argues that the ICJ’s rulings in the 1960s
and 1970s changed the jurisprudence from method (equidistance) to
objective (equity). This entails that not equidistance, but fairness on its
own was introduced as a guiding principle for maritime dispute
resolution.
A case that exemplifies this came about in 1980, when Denmark
extended its 200-mile fisheries zone northwards along the east coast of
Greenland (Denmark being the colonial power operating on behalf of
Greenaldn), creating an overlap with the Norwegian zone on the
northwest side of the island of Jan Mayen [62]. Denmark argued that it
deserved a larger proportion of this disputed zone because Greenland’s
coast is longer than that of Jan Mayen, and because the population of
Greenland deserved privileged access to fish stocks [63]. Norway held
firm to the equidistance principle; after years of unsuccessful negotiations,
Denmark submitted the dispute to the ICJ in 1988.
The Court concluded that the longer length of the Greenland coast
required a delimitation that tracked closer to Jan Mayen [64]; and that
the maritime boundary line should be shifted somewhat eastwards to
allow Greenland equitable access to fish stocks [63,65], p. 55]. However,
the Court rejected other arguments concerning population size and
socio-economic conditions, declaring them irrelevant to the final
determination of the boundary line.
Scholars have outlined how UNCLOS negotiations in the late 1970s
concerning maritime boundary dispute resolution reached a compromise
between two groups of states: those that wanted the equidistance
principle enshrined, and those that wanted equity as the guiding principle
without specifying any particular method [43,52,60,66]. Equity as
a principle was incorporated in 1982 UNCLOS article 74 (delimitation of
the exclusive economic zone) and article 83 (delimitation of the continental
shelf), with the wording: ‘The delimitation of the exclusive economic
zone/continental shelf between States with opposite or adjacent coasts
shall be effected by agreement on the basis of international law … in
order to achieve an equitable solution’ [46]. Kaye argues that ‘The result
was an acceptable (if fragile) compromise, but one that did little to
clarify the method by which delimitation was to take place’ [60], p. 16].
The UNCLOS regime consequently does not specify how states are to
settle maritime boundary disputes – it merely calls for ‘an equitable
solution’ [46].8
As these cases and developments show, how states initially divided
maritime space amongst themselves became questions where maritime
law rested on the principles of both equity and equidistance. Thus, the
process of settling a maritime boundary has not very straightforward As
Finnemore and Toope put it in 2001 [48], p. 748]:
If one considers the decisions of the International Court of Justice in
boundary delimitation cases, for example, the results are clearly
legal, influential, and effective in promoting compliance, but they
are highly imprecise.
However, in rulings in recent decades, the ICJ has favoured a stricter
interpretation of which relevant circumstances to include, placing
emphasis on geographical factors in a three-stage approach in delineating
maritime boundaries, as outlined in the Black Sea Case between
Romania and Ukraine in 2009 [67], p. 381]. First, a ‘provisional delimitation
line’ between the disputing countries is established, based on
equidistance. Second, consideration is given to of ‘relevant circumstances’
that might require an adjustment of this line to achieve an
‘equitable result’. This is where ‘equity’ is considered. Third, the Court
evaluates whether the provisional line would entail any ‘marked
disproportion’, taking the coastal lengths of the states into consideration
[68], Paras. 116–122].
Concerning the continental shelf vis-!a-vis the EEZ, initially, the
rules/process to settle the two kinds of boundaries were different. The
emphasis on ‘natural prolongation’ and the scientific elements to prove
it involved using a different approach for continental shelf delimitation.
However, as state practice and court rulings developed after the 1969
North Sea Continental Shelf Cases, the principle of natural prolongation
lost its hold. The main reason was the introduction of the 200-n.m.
concept, where states, regardless of submarine features, immediately
acquired rights over the seabed and water column out to 200 n.m. from
shore. With the new rules in UNCLOS and the move away from ‘natural
prolongation’ as a basis of entitlement to the continental shelf, courts
have adopted a uniform approach to maritime boundary delimitation for
8 UNCLOS Article 74 concerning the EEZ has wording identical to that of the
Continental Shelf, Art. 83.
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both the water column and seabed.
This does not mean, however, that the idea of natural prolongation
has become totally irrelevant. As Kaye [60], p. 19] argues, it has relevance
if the submarine feature is ‘vast and significant’. Further, the
notion of natural prolongation has remained the determining factor
concerning ‘extended’ continental shelves, as states must use scientific
data concerning the seabed in its submission to the CLCS as described in
section 3. Then the geomorphology (and to a lesser extent, the geology)
of the seabed and the ability of states to prove their natural extension
come into play.
In summary: The concept of boundary-making at sea is in itself based
on abstract lines on the map, and not borders that physically separate
the maritime domains of two countries. States have leaned on – albeit
often deviated from – legal principles set out in international Court
rulings as well as UNCLOS as they attempt to agree on how to draw lines
at sea [69].
5. Maritime boundary disputes today
The principles that guide the drawing of maritime boundaries are
one thing, how states go about settling maritime boundary disputes is
something rather different. Turning to how – practically – states manage
to agree on boundary disputes, states may agree on a mutual solution
after bilateral negotiations; or after having attempted to negotiate in
good faith, they can submit the case for adjudication at the ICJ or
another international Court like ITLOS (International Tribunal for the
Law of the Sea); or they can use third-party arbitration like the Permanent
Court of Arbitration (PCA).
However, because of the need to compromise, disputes are generally
settled through bilateral negotiations without the use of international
courts [70], pp. 14–15]. The uncertainty as to outcome of international
adjudication and arbitration does not inspire states to bring cases before
courts and tribunals. Resolving a dispute bilaterally leaves states with
the option of a creative resolution not confined by the international rules
applied by courts and tribunals. Moreover, litigation is costly and in the
maritime domain, the process often requires a great deal of scientific
data, making it expensive for states to pursue delimitation actively [71],
p. 245].
Consequently, more than 90% of maritime boundaries have been
settled through bilateral negotiations [72], p. 131], where states are free
to choose whichever approach they prefer when delineating maritime
space. However, studies show that although states choose bilateral negotiations
to avoid the shackles of international adjudication/arbitration,
they still lean on, and mostly adhere to, the legal principles as set
out by international court rulings [54,72,73].
Furthermore, if we compare with how the state emerged as
geographical unit, in the maritime domain, as opposed to land, conflict
over boundaries, sovereignty and jurisdiction have generally been
resolved peacefully through negotiations and adjudication/arbitration.
As outlined in the previous section, international law provides the
framework for settling maritime disputes. The use of pure power in
determining the limits of state jurisdiction at sea has in practice been
ruled out in the post-World War II order [74], also because few states
have the military and economic capacity for protracted conflict at sea
(or see the benefit from such efforts).
This does not, however, mean that all disputes over maritime space
and maritime resources are settled in an orderly way [75]. Albeit central
in guiding the process, as shown here international law does not always
provide a clear pathway to settling maritime boundaries. As argued by
Jagota [76], p. 4]: ‘Maritime boundary, like territorial or land boundary,
is a politically sensitive subject, because it affects the coastal State’s
jurisdiction concerning the fishery, petroleum and other resources of the
sea as well as concerning the other uses of the sea’. As Weil [77], pp.
30–31] further argues: ‘Maritime boundaries, like land boundaries, are
the fruit of the will of States or the decision of the international judge,
and neither governments nor judges limit themselves simply to scientific
fact.’
Historic resource conflicts and contemporary disputes around the
world make clear the economic and political interests involved in
maritime space. An unsettled maritime boundary can hinder economic
exploitation of offshore resources [70,78]. Similarly, it may complicate
the management of transboundary fish stocks. At times, states engage in
Fig. 1. Displaying the numerous EEZs in the South Pacific and how these are adjacent/overlapping and thus have been – at various times – in need of delimitation.
Source: Wikimedia.
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indirect conflict over such disputes, whether by arresting fishing vessels
from the other party to the dispute, or by engaging with navy or coast
guard vessels directly. Several disputes became entrenched, as states
leaned on historical, legal and economic arguments to support their
positions [30].
Therefore, today maritime boundary disputes exist on all continents.
Settlement of outstanding disputes continues to take place, but many
disputes remain, ranging from active and conflictual to dormant, or
successfully managed. Prescott and Schofield [71], p. 218] highlight
that ‘out of 427 potential maritime boundaries, only about 168 (39%)
have been formally agreed, and many of these only partially’. Other
figures concerning the total number of maritime boundary disputes
exist, with varying degrees of specificity. Some estimate that there are
approximately 640 maritime boundary disputes, with around half
resolved [79]. Newman [80] claims there are 512 maritime boundaries
in total, again half of them resolved.
A dataset by "Asgeirsd"ottir and Steinwand9 provides a more general
overview of the total number of disputes (settled/not settled by 2008)
per country and per continent [4].10 These figures give a rough idea of
the global outreach of this phenomenon, not confined to one part of the
world or a specific group of states. Unsurprisingly, large countries with
more access to maritime space have a larger number of maritime
boundaries. Russia, China, Canada, and Australia have long coasts,
resulting in multiple neighbours and in turn multiple maritime boundaries.
Also, areas like the Mediterranean and the Caribbean, where
numerous small states are clustered together – such as Turkey, Italy,
Greece, and Egypt; or Colombia, Venezuela, and Cuba – have a large
number of maritime boundaries. Moreover, countries with overseas
colonies and/or dependencies – such as France, the United Kingdom
(UK), Spain and the USA – have multiple maritime boundaries, settled as
well as unsettled.
This help to pinpoint exactly how common maritime disputes –
settled as well as unsettled – are around the world. Most countries (157
to be exact) have had a maritime boundary in need of settlement at one
point since 1950. In 2008, there were still 228 disputes (54.7%) that
remained unsettled, out of a total of 417 [4]. If compared to borders on
land, an interesting paradox emerges: Although the chance of outright
conflict at sea over where to delineate boundaries is rather low, the
political, economic and historic interests in the same boundaries have
made it difficult for states to concede in bilateral negotiations. Consequently,
more than half of all boundaries at sea are still disputed.
6. The future of maritime boundary disputes
Maritime boundary disputes are acquiring rising importance for
states in the 21st century, as human interactions with ocean-space are
becoming ever more intense and complex. Exogenous and endogenous
changes are underway in the maritime domain. Changes deriving from
resource pressures, international commodity prices, and new technology
are exogenous to the ocean, driven by economic developments.
Rising sea levels and other oceans changes resulting from climate
change, and changing resource distributions, are endogenous to the
maritime domain, with a specific geographic component. Disputes over
maritime boundaries, access rights and interpretation of legal treaties or
of UNCLOS have been left unresolved for decades. These are now being
brought to the agenda by the mentioned trends, at times even leading to
direct clashes at sea between the involved states.
For example, with shipping increasing in territorial waters across the
globe, issues concerning access rights, status of sea-lanes, and environmental
protection are at the forefront of international debates. Within
and across EEZs, climate change and other environmental factors are
causing variability in the spatial distribution of fish stocks, challenging
established management regimes [81]. The processes for determining
the limits of continental shelves beyond 200 nautical miles are becoming
increasingly relevant [69]. And in the high seas, there are ongoing international
negotiations to develop legal instruments for designating
and managing MPAs beyond national jurisdiction [82]. New political
challenges are consequently emerging, as states hold differing views on
access rights, marine environmental protection and how to exploit and
manage marine resources.
Steinberg [7], in his The Social Construction of the Ocean, shows how
the idea of maritime space has changed throughout history. There are
many ways of thinking about the ocean: as a territorialised extension of
land; as a domain where only limited control can be exercised; and as a
great void [7], pp. 18–25]. In particular, the role of oceans in international
affairs changed with the introduction and adoption of UNCLOS.
Steinberg argues that states have desired to keep the oceans free of
conflict. Baker [74], p. ii] supports this, finding that states have become
behaviourally conditioned by an international norm against the ‘forceful
acquisition of maritime spaces and resources of other states’.
However, the way we see maritime space and the related boundarymaking
is not static. ‘The social construction of ocean-space, like that of
land-space, is a process by which axes of hierarchy, identity, cooperation,
and community are contested, establishing bases for both social
domination and social opposition’ [7], p. 191]. Steinberg conclude – in
2001 – by arguing that ocean space today is under pressure, as the
various ways of conceiving it are clashing. Greater territorialisation (for
exploitative purposes) clashes with the idea of oceans as free for all, as
well as the increasingly prevalent ideas of ‘stewardship’.
From a purely functional perspective, maritime ‘territory’ has
become more valuable for states. With the sea having emerged from
being literally a great blue empty space to an institutionalised policy
domain, the expansion of activities taking place at sea and the growing
reliance on maritime activities have resulted not only in greater
importance being placed on the outcome of maritime boundary disputes,
but also in shifts in the political relevance and usage of the maritime
domain. Today, oceans matter more than before for states in their
power-relations vis-!a-vis other states, as well as for political leaders
seeking to sway domestic audiences.
Does that mean that maritime space has indeed come to take on the
characteristics of traditional territory on land? It is essential to understand
the difference between land and maritime space in the legal process
of settling a maritime dispute. The concept of occupation – crucial
in establishing title to land territory – does not hold the same relevance
in the maritime domain. Occupation of the continental shelf itself could
not separately lead to acquisition of the shelf, contrary to sovereignty
over land territory [56], p. 16]. A marked separation between land and
sea thus became apparent with UNCLOS, as rights to the latter derive
from the former.
Consequently, what we are discussing with regard to states and
maritime space are sovereign rights to resources in the water column or on
the seabed, not exclusive rights to the entire maritime ‘territory’ in
question, apart from their territorial sea. States cannot deny passage
through their EEZs; they may only deny actors access to marine resources
and apply environmental regulations in their maritime zones.
For delimitation in the maritime domain, both states may have valid
legal claims to a given area, in which case it becomes a matter of
‘reasonable sacrifice such as would make possible a division of the area
of overlap’ [77], pp. 91–92], or even joint sharing – as with oil and gas
resources or a joint fisheries zone.
Still, states’ and state leaders’ preoccupation with marine resources
as well as the general strategic value of extended maritime space,
together with technological developments that enable greater control
over the maritime domain (coast guard vessels, satellites, drones, subsea
installations, etc.) will not render current disputes over the same space
any less relevant [83]. It could be reasonable to expect that as maritime
9 Courtesy of "Asgeirsd"ottir and Steinwand, obtained through email
Correspondence.
10 ‘Continent’ here refers to the world’s seven main continuous expanses of
land (Europe, Asia, Africa, North and South America, Australia, Antarctica).
A. Østhagen
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Marine Policy 120 (2020) 104118
7
space becomes increasingly relevant for states, related outstanding
boundary disputes will be more difficult to settle.
Additionally, as maritime disputes become infused with intangible
dimensions and issues concerning symbolism and engaged domestic
audiences [84,85], the characteristics of dispute ‘containment’ at sea
could be changing. Vasquez and Valeriano [86], p. 194] describe a
conflict as spiralling when it becomes infused with symbolic qualities. It
might be assumed that maritime disputes – whether concerned with
fishing rights or boundaries – would be a simple matter of delineating
rights and ownership, given the tangible character of such disputes.
Huth [29], p. 26], for example, has argued that ‘the political salience of
the [maritime] dispute is generally limited, in contrast with the
importance and attention often given to land-based disputes’.
However, when a maritime dispute reaches the political agenda,
there are (domestic) actors who stand to benefit from infusing it with
intangible dimensions like ‘national pride’ or ‘being cheated out of what
is ours’ [87]. Contrary to popular belief [33,88], maritime disputes may
assume some of the same characteristics as disputes on land. Although
disputes over ocean space may initially be more concerned with tangible
questions of resource delimitation and ‘who owns what’, they too can
become infused with symbolism and intangible characteristics [5].
This concerns not only the economic interests of the actors involved,
but also wider ideas of symbolism and identity. States (and their inhabitants)
do care about their maritime disputes, even those of limited
economic value, and increasingly so. Once a dispute has become
politicised, any resolution of the dispute carries domestic political risk.
Indeed, even undertaking negotiations may be risky, which explains
why government officials sometimes refer to negotiations as ‘discussions’
[5]. As Kleinsteiber [84], p. 18] has noted, regarding disputes in
the South and East China Seas:
While these disputes have the potential to die down if they are
‘shelved’ in favour of pursuing more mutually beneficial goals, they
can flare up at any time, especially when driven by nationalist sentiments.
This has the potential to be the troubling future of maritime
conflict, when conflicts in question may be impossible to separate
from national identity.
In a study of a 2005-incident between the Norwegian Coast Guard
and a Russian trawler, Fermann and Inderberg [89] show the effect of
the Norwegian media as they were quick to broadcast the event live on
national television, in turn helping to spur politicians into action. The
role of maritime space in domestic politics has arguably changed over
the course of decades – from a functional space that inspired limited
engagement, to that of a national space requiring ‘protection’ and
defence. In conjunction with this, the function of ocean space itself has
expanded, with more and more resources being harvested at sea, ranging
from fisheries to hydrocarbons.
One the one hand, we therefore have the idea of the ocean and states’
maritime space as a legalised, institutionalised and governed domain,
where states tend to abide by the rules set forth by UNCLOS because it is
in their common interest to do so. On the other hand, greater domestic
engagement is also spurred by recognition of the ocean as a policy issue
in need of common efforts to combat everything from sea-level rise to
plastic pollution. As put by a Norwegian official from the 2010-rounds of
negotiations with Russia: ‘A boundary itself is just one element. More
important are those normative factors increasingly related, such as
military interests, economy and larger security considerations’ [90].
Greater utilisation of oceans, or national maritime zones, in domestic
politics is a trend likely to increase as maritime space continues to rise
on the agenda.
The maritime domain has certain characteristics that nevertheless
keeps it separate from the terrestrial domain. There are geographical
barriers that hinder prolonged interaction between the actors concerned.
Maritime boundaries are also a construct of international law:
and (coastal) states seem to depend on the UNCLOS regime, and also
desire to apply the regime to their own advantage. Also, as fisheries
continue to grow in importance in terms of livelihoods and a source of
protein [91], certain characteristics of fisheries and maritime boundaries
might become more pronounced, spurring cooperation. As states
fulfil their UNCLOS obligation to manage transboundary fish stocks, the
continued development of management regimes might render the exact
location of a maritime boundary less important for this specific purpose.
Further, the use of complex resource-sharing mechanisms, or the
increasing focus on developing adequate management solutions concerned
with transboundary fish stocks, as well as the establishment of
protected areas in tandem with greater environmental awareness over
the state of the oceans, might make the exact location of the maritime
boundary itself (if not the maritime domain) less important.
Establishing agreements on such mechanisms is still necessary, but
perhaps with a slightly different focus than when settling maritime
boundaries in the traditional sense. Managing the disputed maritime
area might also, in some instance be an easier, and even preferred, solution,
when tensions are low and relations stable.11 That being said, it
does not seem likely that international ocean politics and related issues
of resource management, sovereignty, and rights at sea are likely to
become less relevant in years to come.
This article was solely written, developed and submitted by the
author, Andreas Østhagen.
Statement
This academic article has not been published previously, or submitted
to any other journal.
Appendix A. Supplementary data
Supplementary data to this article can be found online at https://doi.
org/10.1016/j.marpol.2020.104118.
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A. Østhagen
Annex 194
Marine Policy 120 (2020) 104118
9
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A. Østhagen
Annex 194
Annex 195
Decision of the Permanent Court of Arbitration in the Matter of the Maritime
Boundary Dispute between Norway and Sweden, (1910) 4 American Journal of
International Law 226
226 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
DECISION OF THE PERMANENT COURT OF ARBITRATION IN THE M1ATTER OF
THE MARITIME BOUNDARY DISPUTE BETWEEN NORWAY AND SWEDEN
Whereas, by Convention under date of March 14, 1908, Norway and
Sweden agreed to submit to the final decision of a Tribunal of Arbitration,
comprised of a president who shall neither be a subject of either
of the contracting parties nor domiciled in either of the two countries.
and of two other Members of whom one shall be a Norwegian and the
other a Swede, the question of the maritime boundary between Norway
and Sweden as far as this boundary has not been determined by the
royal resolution of March 15, 1904; and
Whereas, in pursuance to said convention, the two Governments have
appointed respectively as president and arbitrators:
Mr. J. A. Loeff, Doctor of Law and Political Sciences, former Minister
of Justice, Member of the Second Chamber of the States-General of the
Netherlands;
Mr. F. V. N. Beichmann, President of the Court of Appeals of
Trondhjem, and
Mr. K. Hj. L. de Hammarskj~ld, Doctor of Law, former Minister of
Justice, former Minister of Public Worship and Public Construction,
former Envoy Extraordinary and Minister Plenipotentiary to Copenhagen,
former President of the Court of Appeals of Jbnk6ping, former
Professor in the Faculty of Law of Upsal, Governor of the Province of
Upsal, Member of the Permanent Court of Arbitration; and
Whereas, in accordance with the provisions of the Convention, the
memorials, counter memorials, and replications have been duly exchanged
between the parties and communicated to the arbitrators within the
periods fixed by the President of the Court; and
Whereas, the two Governments have respectively appointed as agents,
to wit:
The Government of Norway, Mr. Kristen Johanssen, attorney at the
Supreme Court of Norway; and the Government of Sweden, Mr. C. 0.
Montan, former member of the Court of Appeals of Svea, Judge in the
Mixed Court of Alexandria; and
Whereas, it has been agreed by Article II of the Convention:
1. That the Court of Arbitration shall determine the boundary line
in the waters from the point indicated by XVIII on the map annexed
to the project of the Norwegian and Swedish Commissioners of August
18, 1897, in the sea as far as the limit of the territorial waters;.
Annex 195
DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW 221
2. That the lines, limiting the zone which may be the subject of
litigation in consequence of the conclusions of the parties and within
which the boundary line shall consequently be established, must not be
traced in such a way as to comprise either islands, islets, or reefs which
are not constantly under water; and
Whereas, it has likewise been agreed by Article III of the said Convention:
1. That the Tribunal of Arbitration must decide whether the boundary
line is to be considered, either wholly or in part, as being fixed by the
boundary treaty of 1661 together with the map thereto annexed, and in
what manner the line thus established should be placed.
2. That, as far as the boundary line shall not be considered as fixed
by said treaty and said map, the Tribunal shall fix this boundary line,
taking into account the circumstances of fact and the principles of
international law; and
Whereas, the agents of the parties have presented the following conclusions
to the Tribunal:
The agent of the Norwegian Government:
That the boundary between Norway and Sweden within the zone
which constitutes the object of the arbitral decision, shall be determined
in accordance with the line indicated on the map annexed, under No.
35, to the memorial presented in behalf of the Norwegian Government.
And the agent of the Swedish Government:
I. As regards the preliminary questions:
May it please the Tribunal of Arbitration to declare that the boundary
line in dispute, as regards the space between point XVIII as already
fixed on the map of the Commissioners of 1897, and point A on the
map of the boundary treaty of 1661, is but incompletely established by
the said treaty and the map annexed thereto, for the reason that the
exact situation of this point is not shown clearly therein, and, as regards
the rest of the space, extending westward from the same point A to the
territorial boundary, that the boundary line was not established at all by
these documents.
II. As regards these main questions:
1. May it please the Tribunal to be guided by the treaty and map of
1661, to take into account the circumstances of fact and the principles
of the law of nations, and to determine the maritime boundary line in
dispute between Sweden and Norway from point XVIII as already
fixed, in such a manner that in the first place the boundary line shall be
Annex 195
THE AMERICAN JOURNAL OF INTERNATIONAL LAW
traced in a straight line to a point which constitutes the middle point
of a straight line, connecting the northernmost reef of the Rbskdren,
belonging to the Koster Islands, that is to say, the reef indicated on
table 5 of the report of 1906 as being surrounded with depths 9, lo, and
10, and the southernmost reef of the Svartskjdr, belonging to the Tisler
Islands, and which is furnished with a beacon, which point is indicated
on the same table 5 as the point XIX.
2. May it please the Tribunal further to take account of the circumstances
of fact and the principles of the law of nations and establish the
rest of the disputed boundary in such a manner thata.
Starting from the point fixed according to the conclusions of paragraph
1 and designated as point XIX, the boundary line shall be traced
in a straight line to a point situated midway on a straight line connecting
the northernmost of the reefs indicated under the name of Stora
Drammen, on the Swedish side and the Hejeknub rock, situated to the
southeast of Heja Island, on the Norwegian side, which point is indicated
on the said table 5 as point XX; and
b. Starting from the point last mentioned, the boundary shall be
traCed in a straight line due west as far into the sea as the maritime territories
of the two nations are supposed to extend. And
Whereas, the line mentioned in the conclusions of the Norwegian
agent is traced as follows:
From point XVIII as indicated on the map of the Commissioners of
1897, in a straight line to point XIX situated midway on a line drawn
between the southernmost reef of the Svartskjdr (the reef which is
furnished with a beacon) and the northernmost reef of the Rdsk~ren.
From this point XIX in a straight line to point XX, situated midway
on a line drawn between the southernmost reef of the Heiefluer (sndre
Heieflu) and the northernmost of the reefs comprised under the name
of Stora Drammen.
From this point XX to point XXa, following a perpendicular drawn
from the middle of the last mentioned line.
From this point XXa to point XXb, following a perpendicular drawn
from the middle of the line connecting the said southernmost reef of the
Heieflu with the southernmost of the reefs comprised under the name of
Stora Drammen.
From this point XXb to point XXc, following a perpendicular drawn
from the middle of - line connecting the S~ndre Heiefluer with the
small reef situated to the north of K15fningen islet near M rholmen.
Annex 195
DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW 229
From this point XXc to point XXd, following a perpendicular drawn
from the middle of a line connecting the Midtre Heieflu with the said
reef to the north of :Klfningen islet.
From this point XXd, following a perpendicular drawn frbm the
middle of the line connecting the Midtre Heieflu with a small reef situated
west of the said K16fningen to point XXI, where the circles cross
which are drawn around said reefs with a radius of 4 nautical miles (60
to a degree). And
Whereas, after the Tribunal had visited the disputed zone, examined
the documents and maps which had been presented to it, and beard the
pleas and replies as well as the explanations furnished it at its request,
the discussion was declared terminated at the session of October 18,
1909. And
Whereas, as regards the interpretation of certain expressions used in
the convention and regarding which the two parties expressed different
opinions during the course of the discussion -
In the first place the Tribunal is of opinion that the clause in accordance
with which it is to determine the boundary line in the sea
as far as the limit of the territorial waters has no other purpose than to
exclude the possibility of an incomplete determination, which might give
rise to a new boundary dispute in future. And
It was obviously not the intention of the parties to fix in advance the
terminal point of the boundary, so that the Tribunal would have only to
determine the direction between two given points. And
In the second place, the clause in accordance with which the lines
bounding the zone which may be the subject of dispute in consequence
of the conclusions of the parties must not be traced in such a manner as
to comprise either islands, islets, or reefs which are not constantly under
water can not be interpreted so as to imply that the islands, islets, and
reefs aforementioned ought necessarily to be taken as points of departure
in the determination of the boundary. And
Whereas, therefore, in the two respects aforementioned, the Tribunal
preserves full freedom to pass on the boundary within the limits of the
respective contentions. And
Whereas, under the terms of the Convention, the task of the Tribunal
consists in determining the boundary line in the water from the point
indicated as XVIII on the map annexed to the project of the Norwegian
and Swedish Commissioners of August 18, 1897, in the sea as far as the
limit of the territorial waters. And
Annex 195
230 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
Whereas, as regards the question "Whether the boundary line should
be considered, either wholly or in part, as being fixed by the boundary
treaty of 1661 and the map thereto annexed," the answer to this question
should be negative, at least as regards the boundary line beyond point A
on the aforementioned map. And
Whereas, the exact situation of point A on this map can not be determined
with absolute precision, but at all events it is a point situated
between points XIX and XX, as these points will be determined hereinafter.
And
Whereas, the parties in litigation agree as regards the boundary line
from point XVIII on the map of August 18, 1897, to point XIX as
indicated in the Swedish conclusions, and
Whereas, as regards the-boundary line from the said point XIX to a
point indicated by XX on the maps annexed to the memorials, the
parties likewise agree, except that they differ with regard to whether, in.
determining point XX, the Heiefluer or the Heieknub should be taken as
a starting point from the Norwegian side. And
Whereas, in this connection, the parties have adopted, at least in practice,
the rule of making the .division along the median line drawn between
the islands, islets, and reefs situated on both sides and not constan.
tly submerged, as having been in their opinion the rule which was
applied on this side of point A by the treaty of 1661; and
The adoption of a rule on such grounds should, without regard to the
question whether the rule invoked was really applied by said treaty, have
as a logical consequence, in applying it at the present time, that one
should take into account at the same time the circumstances of fact
which existed at the time of the treaty. And
Whereas, the Heiefluer are reefs which, it may be asserted with sufficient
certainty, did not immerge from the water at the time of the
boundary treaty of 1661 and consequently they could not have served
as a starting point in defining a boundary. And
Whereas, therefore, from the above mentioned standpoint the Heieknub
should be preferred to the Heiefluer- And
Whereas, point XX being fixed, there remains to be determined the
boundary from this point XX to the limit of the territorial waters. And
Whereas, point XX is situated, without any doubt, beyond point A as
indicated on the map annexed to the boundary treaty of 1661. And
Whereas, Norway has held the contention, which for that matter has
not been rejected by Sweden, that from the sole fact of the Peace of
Annex 195
DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW 231
Roskilde in 1658 the maritime territory in question was divided automatically
between her and Sweden. And
Whereas, the Tribunal fully endorses this opinion. And
Whereas, this opinion is in conformity with the fundamental principles
of the law of nations, both ancient and modem, in accordance with
which the maritime territory is an essential appurtenance of land territory,
whence it follows that at the time when, in 1658, the land territory
called The Bohuslan was ceded to Sweden, the radius of maritime territory
constituting an inseparable appurtenance of this land territory must
have automatically formed a part of this cession. And
Whereas, it follows from this line of argument that in order to ascertain
which may have been the automatic dividing line of 1658 we must
have recourse to the principles of law in force at that time. And
Whereas, Norway claims that, inside (on this side) of the Koster-
Tisler line, the rule of the boundary documents of 1661 having been
that the boundary ought to follow the median line between the islands,
islets, and reefs on both sides, the same principle should be applied with
regard to the boundary beyond this line. And
Whereas, it is not demonstrated that the boundary line fixed by the
treaty and traced on the boundary map was based on this rule, and
there are some details and peculiarities in the line traced which even
give rise to serious doubts in this regard, and even if one admitted the
existence of this rule in connection with the boundary line fxed by the
treaty, it would not necessarily follow that the same rule ought to have
been applied in determining the boundary in the exterior territory. And
Whereas, in this connection,
The boundary treaty of 1661 and the map thereto annexed make the
boundary line begin between Koster and Tisler Islands; and
In determining the boundary line they went in a direction from the
sea toward the coast and not from the coast toward the sea; and
It is out of the question to say that there might have been a continuation
of this boundary line in a seaward direction; and
Consequently, the connecting link is lacking in order to enable us to
presume, without decisive evidence, that the same rule was applied
simultaneously to the territories situated this side and to those situated
that side of the Koster-Tisler line. And
Whereas, moreover, neither the boundary treaty nor the map appertaining
thereto mentioned any islands, islets, or reefs situated beyond the
Koster-Tisler line, and therefore, in order to keep within the probable
Annex 195
232 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
intent of these documents we must disregard such islands, islets, and
reefs. And
Whereas, again, the maritime territory belonging to a zone of a certain
width presents numerous peculiarities which distinguish it from the land
territory and from the maritime spaces more or less completely surrounded
by these territories. And
Whereas, furthermore, in the same connection, the rules regarding
maritime territory can not serve as a guide in determining the boundary
between two contiguous counfries, especially as, in the present case, we
have to determine a boundary which is said to have been automatically
traced in 1658, whereas the rules invoked date from subsequent centuries;
And it is the same way with the rules of Norwegian municipal law concerning
the definition of boundaries between private properties or between
administrative districts. And
Whereas, for all these reasons, one can not adopt the method by which
Norway has proposed to define the boundary. from point XX to the
territorial limit. And
Whereas, the rule of drawing a median line midway between the inhabited
lands does not find sufficient support in the law' of nations in
force in the seventeenth century. And
Whereas, it is the same way with the rule of the thalweg or the most
important channel, inasmuch as the documents invoked for the purpose
do not demonstrate that this rule was followed in the present case. And
Whereas, we shall be acting much more in accord with the ideas of the
seventeenth century and with the notions of law prevailing at that time
if we admit that the automatic division of the territory in quesion must
have taken place according to the general direction of the land territory
of which the maritime territory constituted an appurtenance, and if we
consequently apply this same rule at the present time in order to arrive
at a just and lawful determination of the boundary. And
Whereas, consequently, the automatic dividing line of 1658 should be
determined (or, what is exactly the same thing expressed in other words)
the delimitation should be made today by tracing a line perpendicularly
to the general direction of the coast, while taking into account the necessity
of indicating the boundary in a clear and unmistakable manner, thus
facilitating its observation by the interested parties as far as possible.
And
Whereas, in order to ascertain what is this direction we must take
equally into account the direction of the coast situated on both sides of
the boundary. And
Annex 195
DECISIONS INVOLVING QUESTIONS OP INTERNATIONAL LAW 233
Whereas, the general direction of the coast, according to the expert
and conscientious survey of the Tribunal, swerves about 20 degrees westward
from due north, and therefore the perpendicular line should run
toward the west to about 20 degrees to the south. And
Whereas, the parties agree in admitting the great unsuitability of
tracing the boundary line across important bars; and
A boundary line drawn from point XX in a westerly direction to 19
degrees to the south would completely obviate this inconvenience, since
it would pass just to the north of the Grisbadarna and to the south of
Skjittegrunde and would also not cut through any other important
bank; and
Consequently, the boundary line ought to be traced from point XX
westward to 19 degrees south, so that it would pass midway between the
Grisbadarna banks on the one side and Skjbttegrunde on the other. And
Whereas, although the parties have not indicated any marks of allignment
for a boundary line thus traced there is reason to believe that it
will not be impossible to find such marks. And
Whereas, on the other hand, we could, if necessary, avail ourselves of
other-known methods of marking the boundary. And
Whereas, a demarkation which would assign the Grisbadarna to
Sweden is supported by all of several circumstances of fact which were
pointed out during the discussion and of which the following are the
principal ones:
a. The circumstance that lobster fishing in the shoals of Grisbadarna
has been carried on for a much longer time, to a much larger extent, and
by much larger number of fishers by the subjects of Sweden than by the
subjects of Norway.
b. The circumstance that Sweden has performed various acts in the
Grisbadarna region, especially of late, owing to her conviction that these
regions were Swedish, as, for instance, the placing of beacons, the
measurement of the sea, and the installation of a light-boat, being acts
which involved considerable expense and in doing which she not only
thought that she was exercising her right but even more that she was
performing her duty; whereas Norway, according to her own admission,
showed much less solicitude in this region in these various regards. And
Whereas, as regards the circumstance of fact mentioned in paragraph
a above,
It is a settled principle of the law of nations that a state of things
which actually exists and has existed for a long time should be changed
as little as possible; and
Annex 195
234 THE AMTERICAN JOURNAL OF INTERNATIONAL LAW
This rule is specially applicable in a case of private interests which, if
once neglected, can not be effectively safeguarded by any manner of
sacrifice on the part of the Government of which the interested parties
are subjects; and
Lobster fishing is much the most important fishing on the Grisbadarna
banks, this fishing being the very thing that gives the banks their value
as fisheries;
Without doubt the Swedes were the first to fish lobsters by means of
the tackle and craft necessary to engage in fishing as far out at sea as.
the banks in question are situated;
Fishing is, generally speaking, of more importance to the inhabitants
of Koster than to those of Hvaler, the later having, at least until comparatively
recent times, engaged rather in navigation than fishing;
From these various circumstances it appears so probable as to be almost
certain that the Swedes utilized the banks in question much earlier and
much more effectively than the Norwegians;
The depositions and declarations of the witnesses are, generally speaking,
in perfect harmony with this conclusion;
The arbitration Convention is likewise in full accord with the same
conclusion;
According to this Convention there is a certain connection between the
enjoyment of the fisheries of the Grisbadarna and the keeping up of the
light-boat, and, as Sweden will be obliged to keep up the light-boat as
long as the present state of affairs continues, this shows that, according
to the arguments of this clause, the principal enjoyment thereof is now
due to Sweden. And
Whereas, as regards the circumstances of fact as mentioned under b:
As regards the placing of beacons and of a light-boat -
The stationing of a light-boat, which is necessary to the safety of
navigation in the regions of Grisbadarna, was done by Sweden without
meeting any protest and even at the initiative of Norway, and likewise
a large number of beacons were established there without giving rise to
any protests; and
This light-boat and these beacons are always maintained by Sweden at
her own expense; and
Norway has never taken any measures which are in any way equivalent
except by placing a bellbuoy there at a time subsequent to the placing
of the beacons and for a short period of time, it being impossible to even
compare the expenses of setting out and keeping up this buoy with those
connected with the beacons and the light-boat; and
Annex 195
DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW 235
It is shown by the foregoing that Sweden had no doubt as to her rights
over the Grisbadarna and that she did not hesitate to incur the expenses.
incumbent on the owner and possessor of these banks even to the extent
of a considerable sum of money.
As to the measurements of the sea-
Sweden took the first steps, about thirty years before the beginning of
any dispute, toward making exact, laborious, and expensive measurements
of the regions of Grisbadarna, while the measurements made some
years later by Norway did not even attain the limits of the Swedish
measurements. And
Whereas, therefore, there is no doubt whatever that the assignment of
the Grisbadarna banks to Sweden is in perfect accord with the most
important circumstances of fact. And
Whereas, a demarkation assigning the Skojdttegrunde (which are the
least important parts of the disputed territory) to Norway is sufficiently
warranted by the serious circumstance of fact that, although one must
infer from the various documents and testimony that the Swedish fishers,
as was stated above, have carried on fishing in the regions in question for
a longer period, to a greater extent, and in greater numbers, it is certain
on the other hand that the Norwegian fishers have never been excluded
from fishing there. And
Whereas, moreover, it is averred that the Norwegian fishers have almost
always participated in the lobster fishing on the Skj~ttegrunde in
a comparatively more effective manner than at the Grisbadarna:
THER'EFOPE -
The Tribunal decides and pronounces:
That the maritime boundary between Norway and Sweden, as far as
it was not determined by the royal resolution of March 15, 1904, is fixed
as follows:
From point XVIII situated as indicated on the map annexed to the
project of the Norwegian and Swedish Commissioners of August 18,
1897, a straight line is traced to point XIX, constituting the middle
point of a straight line drawn from the northernmost reef of the Rbskiren
to the southernmost reef of the Svartskjdir, the one which is provided
with a beacon;
From point XIX thus fixed, a straight line is traced to point XX,
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 XX a
Annex 195
236 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
straight line is drawn in a direction of west 19 degrees south, which line
passes midway between the Grisbadarna and the Skjdttegrunde south and
extends in the same direction until it reaches the high sea.
Done at The Hague, October 23, 1909, in the Palace of the Permanent
Court of Arbitration.
J. A. LOEFF, President,
MICIELS VAN .VRDUYT.EN, Secretary General,
ROELL, Secretary.
Annex 195
Annex 1
Dubai-Sharjah Border Arbitration, Award, 13 October 1981, (1993) 91 International
Law Reports 543 (Extract)
543 91 ILR 543
Arbitration — Arbitration agreement — Function of arbitral tribunal —
Boundary dispute — Whether tribunal's task one of demarcation of existing
boundary or delimitation — Law applicable to arbitration
Arbitration — Concept of arbitration — Distinction between arbitration and
political settlement — Boundary dispute — Dependent States — Trucial States
— Reference of dispute to British official — Consent of Rulers of the Trucial
States — Whether obtained by coercion — Whether decision of official based
upon law — Whether decision of official legally binding upon successor States
Territory — Boundaries — Land boundaries — Arbitration of boundary dispute
— Critical date — Acquisition of title — Prescription — Protest — Desert areas
— Allegiance of tribes — Exercise of jurisdiction — Significance in establishing
title to territory
Sea — Maritime boundaries — Delimitation — Adjacent States — Equity —
Harbour works — Use as part of base lines — Equidistance method — Special
circumstances — Islands — Whether island should be given half effect — Effect
of island's entitlement to a territorial sea
DUBAI-SHARJAH BORDER ARBITRATION
Court of Arbitration.1 19 October 1981
(Cahier, President; Simpson and Simmonds, Members)
SUMMARY: The facts:—Dubai and Sharjah had been under the protection
of Great Britain since 1892, but without clearly defined boundaries. The
extent of the territory controlled by a particular Ruler depended on which
1. Constituted under an agreement of 30 November 1976, reproduced at p. 550.
91 ILR 543 544
tribes gave allegiance to him. The tribes changed allegiance from time to time and, in
any event, being nomadic, the “dirah” or homeland they claimed was far from precise.
In 1937, however, when the discovery of oil led companies to seek concessions from the
Rulers, Great Britain took steps to define these boundaries.
As regards the land boundary, a British official, Julian Walker, surveyed the territory
and, on the basis of his reports, the British Political Agent, Mr Tripp, made a series of
decisions or “awards” in 1956–57 establishing the land boundary, although no map
accompanied these “awards”. The Ruler of Dubai declined to accept these “awards”,
notwithstanding the fact that both Rulers had requested the British Government in
1954 to “arbitrate” these boundaries.
The continuing uncertainty over the location of the land boundary impeded good
relations between the two Emirates, and two areas caused special friction. The first was
the Al Mamzer peninsula, part of the coast adjacent to Dubai and separated from
Sharjah town by Khan Creek. The Tripp “award” had placed the boundary on this
peninsula some distance west of the creek, so that Sharjah claimed territory on which
Dubai wished to extend its harbour. The second was Hadhib Azana, an area further
inland, and south-west of Sharjah Town, on which Sharjah was building an industrial
estate but subject to protest from Dubai.
The maritime boundary was not covered in the Tripp “awards”. However, in 1963
the United Kingdom Government proposed a lateral boundary offshore, starting at the
coastal terminal point of the land boundary on the Al Mamzer peninsula, and running
seaward as a perpendicular to the line of general direction of the coast, i.e. a form of
simplified equidistance. Dubai rejected this line since its acceptance would have
involved acceptance of the division of the Al Mamzer peninsula. In 1971 United
Kingdom protection ceased and Sharjah and Dubai, together with a number of other
States formerly under British protection, established the Federation of the United Arab
Emirates (“the Federation”).
Lacking any political settlement, the two Parties signed a Compromis d'Arbitrage on
30 November 1976, under the auspices of the Supreme Council of the Federation. The
subject-matter of the arbitration was broadly defined as “the outstanding dispute
between the two Emirates of Dubai and Sharjah concerning the demarcation of the
boundaries between them …” In the ensuing arbitration the Parties differed radically
over a number of issues.
(1) The task of the Tribunal: Sharjah saw this as essentially the task of demarcation of
an existing boundary established by the Tripp “awards”. Dubai argued for the broader
task of delimitation, on the basis that the Tripp “awards” were not binding, that no such
award had been made for the maritime boundary (so delimitation was demonstrably
required there), and that it could not have been the intention of the Parties to nominate
three jurists if what was required was a simple demarcation exercise.
(2) The applicable law: the Compromis contained no choice of law clause. Dubai
argued that international law governed, whereas Sharjah additionally argued that the
federal law of the United Arab Emirates applied, with the implication that, within the
Federation, boundaries were already settled.
545 91 ILR 543
(3) The critical date: Sharjah argued for two alternative dates; 1955, when the Rulers
had agreed to “arbitration” by the United Kingdom Government, or 1971, when the
Federation was formed. Dubai denied that the theory of the critical date had any
relevance to a case in which the question posed was where sovereignty lay now, as
opposed to the question where sovereignty lay on a specified date.
(4) The status of the Tripp “awards” of 1956/57: Sharjah argued these were arbitral
decisions, and thus binding and res judicata. The effect was, therefore, that as regards
the land boundary the Tribunal was bound to follow those decisions. Dubai argued,
first, that its Ruler had been coerced by the United Kingdom Government into
consenting to its “arbitration”; secondly, that the concept res judicata attached only to
judicial or arbitral decisions, not to administrative decisions. It contended that the
processes initiated by the United Kingdom Government which lead to the Tripp
“awards” had nothing in common with a true, arbitral process and were essentially
administrative processes leading to administrative decisions: therefore res judicata could
not apply to them. Accordingly, both as to the land boundary and the maritime
boundary the Tribunal had full discretion to review all the evidence, of which the Tripp
“awards” formed a part, and come to its own, independent decision.
(5) As regards the Al Mamzer peninsula: Sharjah advanced a historical claim but little
evidence of concrete control and possession in the present century and nothing after
1940. By contrast, Dubai gave evidence of patrolling, some construction work, and the
assertion of the right to hold inquests on bodies found on the beach. Protests by Sharjah
began only in the mid-seventies.
(6) In the area further inland (Nahada Amair and Hadhib Azana), Sharjah argued that
Tripp's location of Nahada Amair was clear, and had not been protested by Dubai.
Sharjah had regularly sent police patrols and exercised full criminal and civil jurisdiction
up to this point. Dubai could only adduce evidence of actions beyond Nahada Amair
during hostilities between Sharjah and Dubai in 1940 and, more recently, a few police
patrols.
The location of Hadhib Azana was far from clear, with both parties relying on
different maps to support different positions. But Sharjah had built extensively in the
area and exercised jurisdiction there, whereas Dubai had effectively protested only after
1978.
(7) In the inland, desert area, there were few settlements and the line established by
the Tripp decision had followed certain natural features. This was the line claimed by
Sharjah. Dubai claimed a line further to the north and east.
The nomadic tribe whose “dirah” this area was, was the Bani Qitab, and Sharjah
claimed this tribe owed allegiance to the Ruler of Sharjah. Dubai disputed that there
existed any clear evidence of acceptance of the Ruler's authority by the Bani Qitab, and
adduced evidence of control by Dubai, in that Dubai had dug wells in the area and had
allied with the Bani Qitab in a war against Abu Dhabi in 1943.
(8) As regards the maritime boundary: Sharjah argued that the lateral line—a
rhumb line of 312°—proposed by the United Kingdom Government in 1963
had in practice been accepted by the Parties. But in the event that the Tribunal
should reject the Tripp decision on the terminal point of the land
91 ILR 543 546
boundary (the point on the Al Mamzer peninsula from which the 312° line was drawn)
Sharjah argued for a boundary based on “equitable principles”. Dubai's position was
that there was no existing boundary and that the Tribunal must determine the
boundary de novo based on “equitable principles”.
However, the Parties differed as to how “equitable principles” might apply in this
particular case. There were two essential points of difference.
(a) The use of harbour works as base-points: Although the coastline was more or less
straight, Dubai's harbour works extended seawards three times farther than those of
Sharjah. Dubai invoked Articles 3 and 8 of the Geneva Convention on the Territorial
Sea and Contiguous Zone, 1958, to support the argument that these harbour works
were nevertheless legitimate base-points for drawing an equidistance line. The effect of
so doing was to move the equidistance line further towards Sharjah, and thus give
Dubai a larger maritime area. Sharjah argued that this was inequitable.
(b) The effect of the island of Abu Musa: Lying some 35 miles off the coast of Sharjah,
Sharjah claimed “half-effect” for this island. The effect of this claim was to swing the
equidistance line across the front of Dubai's coast. Dubai counteracted by arguing that
Sharjah's sovereignty over the island was disputed by Iran, and the half-effect technique
was inapprorpiate for disputed islands. Moreover, such a direction of the equidistance
line would contravene the principle of “non-encroachment” expounded by the
International Court of Justice in 1969 in the North Sea Continental Shelf cases. Dubai
also argued that since 1964 it had been agreed by Sharjah, the United Kingdom and
Umm al Qaiwan that the island would have only a 3 mile territorial sea. On that basis
the island would have no effect on the equidistance line. Dubai further argued that the
line produced by half-effect for the island would be incompatible with the existing
median-line agreed between the United Arab Emirates and Iran in 1974.
Held (Mr Simpson dissenting in part):—(1) The task of the Tribunal was not limited
to demarcation, for that implied the binding character of the Tripp “awards”, which the
Tribunal rejected; and in any event, had demarcation been intended, the Parties would
have established a technical commission, not a judicial body (pp. 566–85).
(2) International law applied, but with regard being had to the special conceptions of
sovereignty over territory prevalent amongst the peoples of the territory at the relevant
times, with the result that “allegiance” and “control” became crucial criteria (pp. 585–
90).
(3) Neither 1955 nor 1971 could be accepted as “critical dates”. The claims had not
“crystallised” in 1955; nor did the establishment of the Federation preclude disputes
over sovereignty after Federation or the relevance of conduct after Federation. In any
event, in many judicial or arbitral decisions the role of the critical date was minimal,
especially where the question was which Party had sovereignty at the present time (pp.
590–4).
(4) The consent given by Dubai to the “arbitration” by the United Kingdom resulting in the Tripp
“awards” of 1956–57 was not vitiated by duress. The United Kingdom had doubtless exercised its
influence and pressure on the Ruler but that was not to be equated with duress in the sense
547 91 ILR 543
used in Articles 51 and 52 of the Vienna Convention on the Law of Treaties, 1969.
Nevertheless, the Tripp “awards” were not true arbitral awards, judged by the standards
of the 1958 International Law Commission Model Rules of Arbitral Procedure. The
Parties had not had an adequate opportunity to deploy their arguments and these socalled
“awards” were not reasoned. Accordingly, whatever binding character was
possessed by these “awards” was that of binding administrative decisions. However, the
evidence disclosed that, after independence, the Parties had not accepted these decisions
as binding, and to the extent that the decisions were not accepted they lost any binding
character which they might have originally possessed (pp. 568–85).
(5) As to the land territory: (i) The Al Mamzer peninsula had been in part controlled
by Sharjah in the nineteenth century, but by a process of dereliction Sharjah had
abandoned any control, so that by 1940 Sharjah had lost any legal title. Accordingly,
the Tripp decision was not based on law but was rather in the nature of a political
compromise. The Tribunal was therefore bound to reject it. The evidence showed
sufficient acts of control and sovereignty by Dubai which, coupled with Dubai's
rejection of the Tripp “awards” demonstrated a clear assertion of sovereignty. Sharjah
had failed to protest within a reasonable time, and accordingly the entire Al Mamzer
peninsula belonged to Dubai (pp. 595–625).
(ii) The areas of Nahada Amair and Hadhib Azana presented less difficulty. Nahada
Amair could be accurately located and had not been protested as part of the boundary
by Dubai, when identified as such in the Tripp “awards”. The evidence showed Sharjah
had exercised jurisdiction and control up to this point, and therefore it could be
confirmed (pp. 626–8).
On Hadhib Azana, the Tribunal disregarded the conflicting map evidence and
concentrated on the conduct of the Parties. It upheld Sharjah's location, because the
Boundaries Section of the Federal Ministry of the Interior seemed to share Sharjah's
view, because Dubai had conceded jurisdiction over a murder committed nearby to
Sharjah, and because Dubai's protests against construction work by Sharjah came only
in 1978, two years after the Compromis had been signed (pp. 628–35).
(iii) As to the inland area, the United Kingdom Government had accepted that the
Bani Qitab owed allegiance to Sharjah, and this was reflected in the Tripp decision. The
protest by Dubai came seven years after that decision, which was too late, and in any
event did not challenge the line as such but only one specific area. Dubai's own conduct
in digging wells, or the testimony of some few inhabitants professing allegiance to
Dubai, was not sufficient to reverse the presumption that Sharjah, the original
sovereign, had not been divested of sovereignty by Dubai (pp. 635–52).
(6) As to the maritime boundary: (i) Following the rejection of the Tripp decision on
the terminal point for the land boundary, there was no basis for applying the 312° line,
and a boundary had to be determined de novo from the tip of the Al Mamzer peninsula
(pp. 652–5).
(ii) State practice and conventional law supported the use of harbour works as basepoints
for an equidistance line, and the result in this case, although favourable to
Dubai, was not inequitable (pp. 655–63).
91 ILR 543 548
(iii) The equidistance method was the appropriate method, and the only “special
circumstance” was the island of Abu Musa (pp. 663–73).
(iv) To give half-effect to Abu Musa would be disproportionate and inequitable.
Nevertheless, the island was entitled to a 12 mile territorial sea. Accordingly, the correct
and equitable boundary was an equidistance line which, at the point at which it met the
12 mile limit off Abu Musa, followed the arc of that 12 mile limit around the island out
to the median line with Iran in the middle of the Gulf (pp. 671–78).2
The text of the Award of 19 October 1981 commences on the opposite page.
2. See the sketch map at p. 700.
549 91 ILR 543
TABLE OF CONTENTS
Introduction 550
Chapter I Historical Survey 558
Chapter II The Character of the British Decisions of 1956 and 1957 and the Role of
the Court in the Present Dispute 566
Chapter III The Applicable Law 585
Chapter IV The Problem of a Critical Date 590
Chapter V The Coastal Zone—Al Mamzer 595
Chapter VI The Boundary Near to the Coast—Nahada Amair and Hadhib Azana 626
Chapter VII The Internal Boundary 635
Chapter VIII The Maritime Boundary 652
Award 678
Dissenting Opinion by Mr John L. Simpson 681
Appendix The Maritime Boundary—List of Base-points 686
Annex I Note on Boundary Claimed by Ruler of Dubai, Dated 4th August, 1937 686
Annex II Undated Note on Boundary Claimed by Ruler of Dubai, Including a Claim
made in April 1953 687
Annex III Note on Boundary Claimed by Ruler of Sharjah, Including 1951 Claims 688
Annex IV Report on Trucial Coast Frontier Settlement by Julian F. Walker, March
1955 689
Annex V Minutes of Meetings of the Federal Ministry of the Interior (Boundaries
Section): April—May 1978 695
91 ILR 543 550
[1] INTRODUCTION
In consequence of the existence of a dispute between the Emirate of Dubai and the
Emirate of Sharjah an Arbitration Agreement was signed on 30 November 1976,
between His Highness Sheikh Rashid Bin Said AlMaktoum, The Ruler of Dubai, and
His Highness Sheikh Sultan Bin Mohamed AI Qasimi, The Ruler of Sharjah.
The Arbitration Agreement, in its English translation, (As supplied by the Federal
authorities of the United Arab Emirates to the Court of Arbitration; the fifth Article
was missing from this text), reads as follows:
In the Name of God the Compassionate the Merciful
Arbitration Agreement
His Highness Shaikh Rashid Bin Sa'id Al Maktoum, Ruler of the Emirate of Dubai, and His
Highness Shaikh Sultan Bin Mohammed Al Qasimi, Ruler of the Emirate of Sharjah, have
agreed as follows:
First: the outstanding dispute between the two Emirates of Dubai and Sharjah concerning
the demarcation of the boundaries between them shall be referred to Arbitration.
Second: three arbitrators from among the leading judges and lawyers of two friendly States
shall be [2] appointed to decide the said dispute, and the Ministry of Foreign Affairs of the
United Arab Emirates will approach these two States to appoint the arbitrators.
Third: the arbitrators will conduct the investigation to hear the evidence which the two
said Parties wish to submit in order to secure to each Party the right of a complete defence. In
addition the arbitrators have the right to hear any evidence which they deem appropriate.
Fourth: the arbitrators will issue their decision by an absolute majority within three
months of the date of their acceptance of this task, and the Supreme Council shall have the
right to extend this period at the request of the arbitrators as the Council sees fit.
Sixth: the arbitrators will conduct their meetings at any place they may select in the United
Arab Emirates.
Seventh: if any arbitrator resigns or becomes incapacitated for any reason, the appointment
of another arbitrator to replace him will be made in accordance with the Second Article
above, provided it is understood that the nationality of the substitute must be the same
nationality as that of the resigning or incapacitated arbitrator.
Eighth: the decision of the arbitrator will be binding on the above two Parties and not
subject to challenge for any reason whatsoever.
[3] Done this 30.11.76 (equivalent to 9.12.1396).
In accordance with Article 2 of the Agreement, Mr John L. Simpson, CMG, QC, Professor
Kenneth R. Simmonds, Professor of International Law in the University of London, and
Professor Phillipe Cahier, Professor at the Graduate Institute of International Studies at
551 91 ILR 543
Geneva, were appointed Members of the Court of Arbitration. Professor Philippe
Cahier was subsequently elected President of the Court of Arbitration.
The Court was formally established at Abu Dhabi on 2 May 1978, and held its first
formal meeting on the same day in the presence of the Agents and Counsel of the
Parties.
By an Order of 7 June 1978, the Court appointed as its Registrar Mr Peter
Haggenmacher, Lecturer at the Graduate Institute of International Studies at Geneva.
Finding that the period of three months provided for in Article 4 of the Arbitration
Agreement was insufficient for it to be able to render its Award, the Court, by a letter of
3 May 1978, requested the Supreme Council of the United Arab Emirates to grant
permission for an extension of its competence until 2 May 1979. This permission was
granted by telegram from the Ministry of Foreign Affairs of the United Arab Emirates
to the Registrar of the Court on 8 November 1978.
[4] However, this extension of time was itself found to be insufficient in view of
various requests for further extensions of time made to the Court by the Parties. The
Court, therefore, wishing to give full effect to Article 3 of the Arbitration Agreement,
which provides that “… the arbitrators will conduct the investigation and hear the
evidence which the … parties wish to submit in order to secure to each party the right
of a complete defence”, subsequently obtained further extensions of time from the
Supreme Council, the last of which extended the competence of the Court to 31
October 1981.
Accordingly, the date of deposit of the Memorials of the Parties, originally fixed for
31 July 1978, was postponed, at the request of the Government of Dubai, to 30
September 1978. The Memorials of both Parties were deposited simultaneously in
Geneva on 29 September 1978.
Between 5 and 13 January 1979, the Court undertook a visit to the boundary region.
The Court takes this opportunity of expressing its appreciation of the great assistance
and the excellent facilities afforded to it on this occasion by the Federal Authorities and
by the Parties.
Following an informal meeting held in London with the Parties, the Court decided,
by an Order of 8 November 1978, to establish the date for the deposit of the Counter
Memorials, originally foreseen as 30 November 1978, as 20 January 1979. [5] At the
request of the Government of Dubai this date was changed to 30 April 1979, by an
Order of the Court of 19 February 1979. The Government of Sharjah deposited its
Counter Memorial on 30 April 1979, and the Counter Memorial of the Government of
Dubai was deposited on 11 May 1979.
91 ILR 543 552
As the Court found the Counter Memorial of the Government of Dubai to be
incomplete, the Parties were required by the Court to deposit supplementary written
materials in a sequence designed to preserve the equality of the Parties. In consequence,
the Reply of the Government of Dubai was deposited on 29 September 1979. The
Reply of the Government of Sharjah, originally required to be deposited by 31 October
1979, was postponed until 20 December 1979, by an Order of the Court of 29
October 1979; this Reply was eventually deposited on 28 February 1980, and this date
marked the conclusion of the Written Pleadings.
The Court nevertheless, by letters of 30 March and 17 June 1980, authorised the
Parties to present to it after the conclusion of the Written Pleadings, certain “additional
factual documents either to support or to counter arguments contained in the written
pleadings”. The Government of Dubai deposited supplementary materials, comprising
documents and maps, on 28 February; 24 October; 5, 13, 25 and 27 November 1980.
The Government of Sharjah deposited supplementary materials in April 1980, and on
11 October and 1 December 1980.
[6] By an Order of 24 October 1979, the Court resolved to afford the Parties the
right of Oral Hearings. The Parties having agreed not to apply the provisions of Article
6 of the Arbitration Agreement, the Court decided, by an Order of 17 August 1980,
that the Oral Hearings should take place in London and should commence on 2
December 1980. The Oral Hearings opened in London, in the premises of the Royal
Geographical Society, on 2 December 1980, and continued until 19 December 1980.
The order in which the Parties made their presentations during the Oral Hearings
was decided by lot. The Court heard first submissions from the representatives of the
Government of Dubai, represented by M. Hamdi Abdul Majid, as Agent, and by Sir
Frank Layfield, QC, Dr Derek Bowett, QC and Mr William Hicks, as Counsel. The
Court heard expert evidence on behalf of the Government of Dubai given by
Lieutenant Commander J. C. E. White, who was cross-examined on his evidence.
The Court then heard submissions from the representatives of the Government of
Sharjah, represented by Judge Yusri M. Dweik, as Agent, by Mr Northcutt Ely and
Professor R. Y. Jennings, QC, as Counsel, and by Mr Jeremy P. Carver, Adviser to the
Emirate of Sharjah.
Final submissions on behalf of the Government of Dubai were made by Sir Frank
Layfield, QC, Dr Derek Bowett, QC, and Mr William Hicks.
[7] Final submissions on behalf of the Government of Sharjah were
553 91 ILR 543
made by Mr Northcutt Ely, Professor R. Y. Jennings, QC, and Mr Jeremy P. Carver.
Following upon the ending of the Oral Hearings the Parties, at the request of the
Court, submitted their formal Conclusions.
The Government of Dubai submitted the following “Final Submissions”:
In the light of the evidence before the Court and of the arguments presented to it by the
Parties, Dubai invites the Court to adopt the following submissions.
Considerations of Law and Practice
1. The proper interpretation of the Compromis requires the Court to delineate the entire
maritime and land boundaries of Dubai and Sharjah.
2. The law to be applied by this Court of Arbitration is international law and no provision
in the Provisional Constitution of the Emirates, or in federal law, operates in this particular
dispute so as to preclude the application of international law.
3. In the performance of the Court's task the [8] Court is entitled, and bound, to have
regard to the whole of the evidence, including the historical evidence, of the conduct of the
two Parties up to the present time.
4. International law requires that the Court, in general, place greater weight on evidence of
conduct by the Parties in recent times in preference to evidence of more distant dates.
5. Normal tests of evidence should be applied by the Court when weighing the evidence
before it. Direct evidence from a witness is to be preferred to indirect evidence, whenever the
former is available. The witnesses' means of knowledge is critical.
6. The concept of the critical date has no application to this dispute or, in the alternative,
to the extent that the Court may determine it has application, it does not exclude evidence of
the conduct of the Parties but affects only the weight which the Court may attach to the
evidence, the scope of such evidence being covered by Submission 3 above.
7. The three decisions of Mr Tripp, Her Majesty's Political Agent, in 1956/57 were based
directly or indirectly on investigations in the 1950s.
Those decisions are part of the historical evidence of the present boundary dispute. The
decisions were of an administrative and not [9] judicial character; at the time they were made
they were objected to by Dubai; the practice and conduct of the Parties shows that they never
accepted the decisions as an accurate statement of their boundaries, or even as a statement of
where Her Majesty's Government thought they should lie. The decisions do not constitute
res judicata and do not preclude or limit the task of this Court in any way; their evidentiary
weight is limited because the decisions suffered from serious and material mistakes of law and
fact and contained material uncertainties and ambiguities.
91 ILR 543 554
The Land Boundary
8. The rules of international law require that, in areas in dispute between the Parties,
sovereignty should be accorded to that Party which has demonstrated in its own conduct the
greater degree of continuous effective control, jurisdiction or possession. Such conduct
should show the intention to act in a sovereign manner and an actual display of authority. The
period to which the evidence refers is material, among other things, because the length of
period is indicative of continuity.
9. The conduct of individuals or non-State entities, including tribes, is, of itself, not to be
[10] treated as conduct of the Parties unless there is clear evidence that the individuals or
non–State entities were acting on behalf of, and subject to the control and authority of, the
Parties.
10. Accordingly, on the evidence, especially of State conduct, before the Court the land
boundary should run, so far as it can be expressed in words, as follows:
Starting from the mid-point of Khan Creek between the land extremities of the Al Mamzer
peninsula and the Khan Village peninsula and thence in a south-easterly direction:
to Gezirat al Hubab (as marked on Sheet 32/78)
to a point to the west of Ghafat Bagar (as marked on Sheet 34/78)
passing to the north of Aud al Bilalit,
to Bada bin Birqa, and
Tawi bin Ghobbash (as marked on Sheet 34/78)
to Bada Bin Ghannam (as marked on Sheet 34/78)
to Jiza'at Barahama (as marked on Sheet 36/78)
to Ghafat Sahal (as marked on Sheet 36/78)
to Al Kahaif (as marked on Sheet 36/78)
to Al Fahud (as marked on Sheet 36/76)
to Mahani (as marked on Sheet 36/76)
to Magail al Wahar (as marked on Sheet 36/76)
[11] to Raqhamya (as marked on Sheet 36/74)
to Tawi Hamad (as marked on Sheet 36/74)
to a point on the track S. W. of Tawi Fau (as marked on Sheet 36/72)
This land boundary is depicted on the accompanying Maps marked:
Dubai Map 32 (a) being 1:25,000 Sheet 32/78
Dubai Map 32 (b) being 1:25,000 Sheet 34/78
Dubai Map 32 (c) being 1:25,000 Sheet 36/78
Dubai Map 32 (d) being 1:25,000 Sheet 36/76
Dubai Map 32 (e) being 1:25,000 Sheet 36/74
Dubai Map 32 (f) being 1:25,000 Sheet 36/72
In the event of ambiguity in the written description or conflict between the wording and the
Maps it is intended that Maps 32 (a) to 32 (f) should prevail.
Also submitted are amended copies of Dubai Maps 3(a), 3(b) and 3(c) based on the latest
1:25,000 mapping.
555 91 ILR 543
The Maritime Boundary
11. The maritime boundary begins at the terminal point of the land boundary which is
that point in the entrance to Khan Creek, identified in Submission 10.
[12] 12. The 312° line, proposed by Her Majesty's Government in 1963 as a maritime
boundary, has never been accepted in practice by the Parties as a boundary, nor is it binding
upon them in law, and its starting point, the coastal terminus of the land boundary, is
obscure.
13. The correct boundary under customary international law is an equidistance boundary,
beginning at the point defined in Submissions 10 and 11 above and extending to such
furthermost point as does not involve any encroachment into an area of the continental shelf
which reasonably may, under some future delimitation between the United Arab Emirates
and Iran, be determined to belong to Iran.
14. In the construction of that equidistance boundary, effect is to be given to the baselines
of the mainlands of both Dubai and Sharjah, in conformity with the rules of law,
especially those contained in Articles 3 and 8 of the Geneva Convention on the Territorial
Sea and Contiguous Zone of 1958 which states the rules of customary international law, and
including in those base-lines the outer-most harbour works of both Dubai and Sharjah.
15. The equidistance boundary so constructed would accord with the relationship of the
two Parties as adjacent States, would accord to each Party that area of continental shelf which
is the [13] natural prolongation of its landmass, which appertains to it de jure and ab initio,
and would produce an equitable and proportionate result.
16. Such an equidistance boundary is fully in accordance with the rules of customary
international law as reflected in the Judgment of the International Court of Justice in the
North Sea Continental Shelf cases,[3] and it conforms to equitable principles and produces an
equitable result in the light of all the relevant circumstances.
17. It would be inequitable, and not in accord with the principles and rules of customary
international law, to allow the equidistance boundary to be deflected to allow for an area of
territorial waters and/or continental shelf pertaining to the island of Abu Musa; and it would
be even more inequitable and contrary to law to adopt a continental shelf boundary giving
“halfeffect” for the island of Abu Musa.
18. The maritime boundary is described and defined in submissions 11 to 17 and is
depicted on Dubai Map 10, proceeding through Points 10, 11, 17, 8 and 9.
The Government of Sharjah submitted the following “Submissions of the Emirate of
Sharjah”.
The Court of Arbitration constituted pursuant to [14] the Agreement for Arbitration dated
30 November 1976, is asked to adjudge and declare:
[3. 41 ILR 29.]
91 ILR 543 556
1. That the Award made by Her Britannic Majesty's Agent on 1 and 2 April 1956,
together with his Award made on 3 and 4 July 1956, together with his Award made on 18
March 1957, fixed and established a boundary line between the Emirates of Sharjah and
Dubai which is defined in the following terms:
The boundary point on the coast between Sharjah and Dubai is a line running
between Mamzer and Abu Hail, leaving Mamzer to Sharjah, starting at right angles
from the coast and passing half-way between the sites of the houses of Hilal bin
Humaid and Khalifah bin Hassan, near the site of Birka well.
Thence the boundary proceeds by a straight line to Nahada Amair; from there to
Hadhib Azana; from there to Arqub Rakan so as to leave Aud Bilalid and Arqub Sba'a
entirely within Sharjah and Aud al Matinah within Dubai; from Arqub Rakan to
Chilah, leaving Arqub Alam (Nauf) entirely within Sharjah, and Tawi Bida'at within
Dubai; from Chilah to Naqdat az Zamul, leaving Tawi Tai entirely within Sharjah,
[15] thence to Tawi bil Khabis, which is divided between Sharjah and Dubai.
From Tawi bil Khabis, the boundary turns south to Mirial, leaving Arafi entirely
within Sharjah, and Jiza'at bin Ta'aba and Arqub Dhabian within Dubai; from Mirial
to Khobai; and thence to Qawasir; thence continuing southwards, so as to leave Tawi
Mghram and Bedirat Mghram entirely within Sharjah, and Sih Atham and Bada Hilal
within Dubai, to Al Alam; and thence by a straight line to Arqub Salama, so as to leave
Bada Zigag and Muwaihi Daij entirely within Sharjah, and Rummaiyah within Dubai.
2. That the boundary line thus established was binding upon the Emirates of Sharjah and
Dubai by reason of the prior consents to the Arbitration of Her Britannic Majesty's Political
Agent, given by the Rulers of the two Emirates; and/or the aforementioned Awards
constituted decisions made by an Authority then competent to make such decisions; and/or
because the boundary line so described was recognised and used as the boundary for a
sufficient period of time subsequent to the date of the Awards.
3. That the points on the boundary described in paragraph 1 above are defined by the
following [16] Universal Transverse Mercator co-ordinates:
North East
Point on the Coast 2798782 332117
Nahada Amair 2798535 335150
Hadhib Azana 2797830 337900
Arqub Rakan 2794465 347700
Chilah bin Salumah 2790655 352700
Naqdat az Zamul 2788000 359625
Tawi bil Khabis 2788425 361475
Mirial 2772380 364000
Khobai 2768875 361400
Qasasir 2762210 361450
Al Alam 2748795 363140
Arqub Salama 2735580 367640
557 91 ILR 543
4. That the said boundary be plotted on an Award Map prepared to the scale of 1:25,000
and based upon the photogrammetric surveys undertaken by Hunting Surveys Limited in
October 1978 (but without reference to the names of places marked on the said map save
insofar as the locations of such places are agreed or not in dispute between the Parties); such
Award Map to be an integral part of the Award of the Court.
5. That the works undertaken by Dubai on the Sharjah side of the said boundary line
constitute an unlawful breach of the sovereignty of the Emirate of Sharjah.
[17] 6. That in the event that the Court, by reason of the dispute between the Parties over
the location of Hadhib Azana on the ground, be unable to decide the correct location of
Hadhib Azana, the boundary line in this sector should be drawn as a straight line joining
Nahada Amair to Arqub Rakan.
7. That the sea boundaries between the Emirate of Sharjah and the Emirate of Dubai
should be fixed from the point on the coast determined by the Award made by Her Britannic
Majesty's Political Agent on 1 and 2 April, 1956 (and described in paragraph 1 above and
defined by co-ordinates in paragraph 3 above), as a rhumb line drawn out to sea on a bearing
of 312° (true) to its intersection with the continental shelf boundary defined in the agreement
between the United Arab Emirates and the Government of Iran dated 13 August, 1974.
8. That, in the event that the Court considers that the sea boundaries must be determined
otherwise than as stated in paragraph 7 above, the sea boundaries be determined in
accordance with the customary rules of international law, which in the circumstances existing
in the area require the fixing of an equidistance line between the said terminus of the land
boundary on the mainland coast (described in paragraph 1 above) and the point of
intersection with the said continental shelf boundary between the United Arab Emirates [18]
and Iran in such a way as to give “half effect” to Sharjah's island of Abu Musa and no effect
to the respective harbour works of Sharjah and Dubai, such sea boundaries being plotted in
accordance with the illustration appearing on Sharjah Map 27.
9. That the said sea boundaries be plotted on an Award Chart based upon the current
edition of Admiralty Chart 2889, to be made an integral part of the Award of the Court.
595 91 ILR 543
[96] CHAPTER V: THE COASTAL ZONE—AL MAMZER
The coastal zone discussed below is the territory which extends from Dubai Creek to
Khan Creek over a distance of approximately 5 miles. The Government of Dubai
claims the entire zone and demands that the boundary should start from the mid-point
of Khan Creek between the land extremities of the Al Mamzer peninsula and the Khan
Village peninsula (point 10 of the Dubai Final Submissions). However, in the view of
the Government of Sharjah:
… the boundary point on the coast between Sharjah and Dubai is a line running between
Mamzer and Abu Hail. (Point 1 of the Sharjah Submissions.)
The boundary point would therefore be at approximately the midpoint between Dubai
Creek and Khan Creek. In making this demand the Sharjah Government is simply
referring to Mr Tripp's decisions of 1 and 2 April 1956.
The Court has already shown above that when faced with binding decisions its task
has been first to identify the places indicated in the decisions as forming part of the
boundary line, in cases where their location was uncertain, and then to investigate
whether, when drawing the [97] line, the British authorities had taken into account all
the relevant factors, and lastly to see to what extent these decisions had been recognised
and applied by the Parties.
1. Identification of the boundary line in the coastal region
In his letter of 2 April 1956, Mr Tripp began by noting the Ruler of Dubai's
undertaking to abide by the decision of the Political Agent with regard to the
delimitation of the boundary and then gave the content of his decision as follows:
Mr Walker has examined all the available evidence concerning your territorial claims on my
behalf and on the basis of his report I have come to the following decisions:
That the boundary point on the coast between your Shaikhdom and that of the Shaikh of
Sharjah shall be a line running between Al Mamzer and al bu Hail leaving al bu Hail to
Dubai. This line starts at right angles from the coast and passes half way between the houses
of Hilal bin Humaid and Khalifah bin Hassan near Birka Well. (D. M. vol. 4, p. 218.)
The letter of 1 April 1956, addressed to the Ruler of Sharjah began in the same way
and continued:
[98] That the boundary point on the coast between your Shaikhdom and that of the
Shaikh of Dubai shall be a line running between Mamzer and al bu
91 ILR 543 596
Hail leaving Mamzer to Sharjah starting at right angles from the coast and passing half way
between the houses of Hilal bin Humaid and Khalifah bin Hassan near Birka well. (Sh. M.
vol. II, p. 282.)
In the view of the Government of Sharjah, and according to Point 3 of its
Submissions, the coastal terminus, as fixed by the decision, can be identified precisely
and according to its Submissions:
… is defined by the following Universal Transverse Mercator Co-ordinates: North 2798782,
East 332117.
However, the Government of Dubai was not certain that this point was settled, since
if reference is made to the sketch map drawn by Mr Walker and annexed to his report
of 1964, the coastal terminus is approximately five hundred metres north east of that
maintained by Sharjah. As for the British map of 1963 designed to illustrate a sea
boundary proposal, the coastal terminus is even further from the one indicated by
Sharjah and also from the one shown on Mr Walker's sketch map.
For reasons which will emerge later, the Court does [99] not consider it necessary to
resolve this problem. It wishes to observe, however, that the very precise wording of the
Tripp decision appears to support the view of the Government of Sharjah, and any
maps or documents which may have been drafted subsequently are not relevant where
they conflict with this wording: it may be added that according to a Foreign Office
memorandum dated 16 June 1969:
… strictly speaking only the letters of award have real validity. (Sh. M. vol. II, p. 364.)
2. The legal position
It is the opinion of the Government of Dubai that when Mr Walker drafted his
report, which formed the basis for Mr Tripp's decisions of April, 1956, he did not
know all the facts of the matter, and the result was that he fixed a boundary line which
did not take account of reality. The grounds on which it bases this opinion fall under
two main headings: firstly, Abu Hail was not located at the place indicated by Mr
Walker; and secondly, the Al Mamzer peninsula was under the effective control of
Dubai and not of Sharjah.
(a) The location of Abu Hail
The Dubai Government considers that:
Mr Walker did not have a correct understanding of the historical background of Abu Hail
and [100] Al Mamzer.
597 91 ILR 543
In particular: (1) He was not clear as to the historical position relating to Abu Hail … (D.
CM. vol. 1, p. 25.)
Moreover, Mr Walker was wrong in stating that the boundary should pass between Abu
Hail and Al Mamzer, i.e. in locating Abu Hail between Dubai Creek and Khan Creek,
since historically this little town was situated on the tip of the Al Mamzer peninsula
opposite the village of Khan.
This assertion was supported by a number of documents from British sources.
In 1820, a map drawn by Thomas Remond, a British Lieutenant of Engineers who
had taken part in the British expedition to the region in 1819, shows Abu Hail at the
position indicated by the Dubai Government. This position would appear to be
supported by Admiralty Chart 2837 (AI) of 1860 which shows the position of a fort
which might have been formed by the fortifications erected at Abu Hail in 1846.
Another map published in 1872 (Admiralty Hydrographic Department, reference
753 BI) clearly shows Abu Hail opposite Khan.
Lastly, the Persian Gulf Pilot which records the Sailing Directions for the Persian Gulf,
published in 1870 [101] but on the basis of explorations done between 1857 and 1860,
states:
At 214 miles south west from Liyeh point is a little creek with two small towns, Khan and
Abu Hail, on opposite sides of it.
In its description of the two towns the Persian Gulf Pilot indicates that both have
defence towers, which shows that there could be no confusion between them. (D. CM.
vol. 2, p. 4.)
The Court therefore finds, in the light of these documents, that Abu Hail was at that
time situated on the extremity of the Al Mamzer peninsula. However, the town must
have extended well beyond this area, since the same Persian Gulf Pilot gives its
population as two thousand people, which would make it a relatively large town, since
it gives for the same period the population of Dubai as between five and six thousand
inhabitants and that of Sharjah as between eight and ten thousand.
Mr Walker's report of 1955 is rather confused regarding Abu Hail. It would appear,
according to him, that Abu Hail was situated between Khan Creek and Dubai Creek,
but that there was a second town called Al Mamzer on the peninsula of the same name.
The confusion might have arisen from the fact that the Persian Gulf Pilot said that Abu
Hail was “also [102] called Mumza” and the Dubai Government recognised that:
Al Mamzer was merely another name for this town of Abu Hail. (D. CM. vol. 1, p. 41.)
91 ILR 543 598
One thing we know for certain is that Mr Walker inserted a correction in his report
of 1964, since he says:
There was another town … called Abu Hail situated at Al Mamzer opposite Khan on the
mouth of Khan Creek. (Sh. M. vol. II, p. 165.)
This therefore confirms the opinion of the Court regarding the location of Abu Hail.
The parties differ as to the time of the destruction of Abu Hail, but they are agreed in
saying that the town was no longer inhabited after the end of the nineteenth century.
This also emerges from the second volume of J. R. Lorimer's Gazeteer of the Persian
Gulf, Oman and Central Arabia. It describes Abu Hail as follows:
A sandy locality with date plantations, on the coast of Trucial Oman … In the date season it
is occupied by people from both Khan and Dubai: at other times it is uninhabited. (Lorimer,
vol. II, p. 603.)
[103] As to its location:
It lies a short distance south west of Khan, from which it is divided by the Khan Creek, and is
212 miles from Sharjah town and 5 miles from the town of Dubai. (Ibid.)
Since, according to Lorimer, Khan was situated 2 miles away from Sharjah, Abu Hail
must have been half a mile from Khan, not on the Al Mamzer tip but on the peninsula
itself; this is not surprising, as the Court has already shown, by reason of its size, Abu
Hail must obviously have extended beyond the extremity.
Commenting on Lorimer's description, Mr Walker says the following in his 1964
report:
… in Lorimer's time Abu Hail was the name given to the whole district controlled formerly
by the town of Abu Hail, which comprised both of the present districts of Abu Hail and of Al
Mamzer. The mileages given by Lorimer appear to be a survival of the description of the
position of the town given in the old Bombay records. (Sh. M. vol. II, p. 167.)
This appears also to be the theory held by the Government of Sharjah.
[104] The Court cannot support this view. It is possible that in Lorimer's time the
name Abu Hail covered a larger area than the old town, but if he had wanted to indicate
such an area he would have spoken in more general terms. By specifying that Abu Hail was
half a mile from Khan, Lorimer was obviously indicating an area, since the
599 91 ILR 543
town no longer existed, but an area which could only be situated on the Al Mamzer
peninsula. As to the statement that he had referred as regards distances to those given in
the “old Bombay records”, this does not appear to be supported, firstly, because these
distances do not correspond to Lorimer's, and, secondly, because Lorimer, who had
visited the area, knew it and had no reason, therefore, to consult the records. Even
allowing for a possible margin of error, it is clear that the Abu Hail indicated by
Lorimer was situated on the Al Mamser peninsula and not where Mr Walker located it
in 1955.
This is not to say, however, that Mr Walker was mistaken in locating Abu Hail
where he did. In fact, the important thing was to locate Abu Hail where it was in 1955
and not where it might have been in the last century or at the beginning of this century.
It is, moreover, a fact that in the decades which followed Lorimer's description the
name Abu Hail referred to a location which was different from that of the nineteenth
century but exactly that indicated by Mr Walker in his 1955 report.
This emerges firstly from the map drawn following the [105] Survey of HMS
Ormonde carried out in 1933, and also from Admiralty Chart No. 3791 of 1935 and
from all subsequent maps. It also emerges from the ninth edition of the Persian Gulf
Pilot of 1942 which says:
Abu Hail is a small rush village about two miles south-westward of Khan minaret and is
inhabited during the date picking season only. (Sh. M. vol. II, p. 325.)
This change in the location of Abu Hail can easily be explained. Following the
destruction of the town, which took place at the latest towards the end of the
nineteenth century, the name Abu Hail no longer refers to an exact location, but to an
area which is inhabited only during the date picking season. The documents supplied
indicate that gradually the palms which grew on the Al Mamzer peninsula disappeared,
although palms remained in the area subsequently called Abu Hail. This is shown
clearly on the two British maps referred to above. For its part, the Dubai Counter
Memorial (p. 60) recognises that:
By 1927, there were only 5 palms remaining at the site of the [old] town of Abu Hail and
there was then a gap of up to 1 12; sea miles without palms, before the continuous belt of
palms to Dubai.
It is not so surprising then that the inhabitants of Dubai and Khan, whilst retreating
gradually from the Al Mamzer [106] peninsula where there were no longer any palms,
should continue to use the name Abu Hail for the area into which they went to pick
dates, even if the name no longer referred to exactly the same location as it had
91 ILR 543 600
done. Henceforth the names Al Mamzer and Abu Hail did not refer to the same place
but to different places, with the result that Mr Walker quite rightly distinguished
between them in his report. Moreover, the Dubai Counter Memorial (p. 69) states:
With the decline of the palm trees the name Abu Hail came to be used more generally and Al
Mamzer came to be used to refer to the peninsula itself.
The Court therefore has arrived at the following conclusions with respect to the
location of Abu Hail:
(1) During the nineteenth century the town of Abu Hail was situated at the tip of the
Al Mamzer peninsula and was also referred to by the name Mamzer.
(2) The town was destroyed at the latest by the end of the nineteenth century and the
name was used to indicate either the former location or the surrounding area which was
inhabited during the date picking season.
(3) The palm trees which grew in this area gradually disappeared and the name of
Abu Hail was given to the site indicated by Mr Walker, i.e. in an area where the palm
trees still grew.
[107] (4) Even if Mr Walker's 1955 report is far from explicit on the various aspects
of the problem dealt with in this Chapter, he was right in distinguishing the site of Abu
Hail from that of Al Mamzer.
Having once established that the geographical location of the places in Mr Walker's
report corresponded to reality in 1955, the Court will proceed to an investigation of the
second argument put forward by the Government of Dubai, namely, that Mr Walker
did not take account of the fact that the Al Mamzer peninsula was under its effective
control and not under the control of the Ruler of Sharjah.
(b) The problem of effective control in the coastal zone
There appears to be no disagreement between the parties that before Dubai ended its
dependence upon Abu Dhabi, the boundary between the latter and the Emirate of
Sharjah was at Dubai Creek. This is evidenced by, for example, a peace treaty
concluded in 1829 between the two Rulers. (Quoted in the 1964 Walker Report, Sh.
M. vol. II, p. 105.)
Likewise, it is indisputable that the inhabitants of Dubai, once it was independent,
settled in 1841 at Dairah, on the other side of the creek, opposite Dubai. This did not
mean annexation of the territory; in fact, a declaration by the Dubai leaders, which is
given in an annex to both Mr Walker's reports states:
[108] Let it be known to any Muslim Ruler who may see this letter. Peace be upon you.
This new country of Dairah we established by the order of
601 91 ILR 543
Shaikh Sultan bin Saqr. It belongs to him. He has no opponent whatever he wishes or
proposes to do. He will find no objection from us. The country is his country, and the people
are his people and he sees in them his own interests. (Sh. M. vol. II, p. 114.)
Relations between the two Emirates were bad, however, and in 1846 the Ruler of
Sharjah decided:
… to erect a number of towers in a place called Khan, which, although in his own
dominions, bordered also upon those of Debaye, the growing influence of whose Chief it was
his particular interest to keep in check and restrain.
and further on it is written:
The actual place of the fort was a place called Aboo Heyle within gunshot range of Khan …
(Lieutenant H. F. Disbrowe, Assistant to the resident in the Persian Gulf. “Historical Sketch
of the Joasmee Tribe of Arabs” from July 1844 to 1853; included in Bombay Selections,
XXIV, New Series, p. 347. D. CM. vol. 2, p. 38.)
[109] This passage is interesting since it shows that Abu Hail formed part of Sharjah,
and that the territory of that Emirate extended well beyond the Al Mamzer peninsula,
because it bordered on the Emirate of Dubai. Now, even if Dubai was in the process of
expansion, its territory could not have been extended very much further since 1841, the
date of the founding of Dairah.
Also in 1846 the leaders of Abu Hail made a declaration of loyalty to the Ruler of
Sharjah saying:
… that they would listen and obey Shaik Sultan bin Saqr. That they would unite with him in
fighting and that they and their followers would not support his enemies either openly or
secretly. That their residences which are called Bu Hail houses are deposits with them, and
that they are residing according to his wish. Whenever he wants to take it from them, they
have no objection to that. (Annex to Mr Walker's 1964 Report; D. M. vol. 4, p. 114.)
The building of these towers was viewed badly by the Ruler of Dubai, and, despite
the efforts of the British authorities to pacify him, conflict ensued. Finally an agreement
was concluded in 1847 under which the Ruler of Sharjah undertook to dismantle the
fortification. In fact the agreement was not implemented and the towers remained in
position.
[110] The Court therefore finds that in the middle of the nineteenth century the Ruler
of Sharjah had a legal title over Abu Hail, firstly, because of the allegiance owed to him by
its inhabitants, and, secondly, because he had effective control over it, since it was at his
91 ILR 543 602
instigation that the fortifications were erected and it was to him that approaches were
made to have them pulled down.
A further result, as Lieutenant Disbrowe's evidence shows, was that this legal title
extended well beyond Abu Hail, which would seem logical since, as the Court has
already found, the town, which was relatively populous, must have had a hinterland
proportionate to its size. It must then have had a “haram” which must have extended
towards Dubai since on the other side of Khan Creek lay Khan whose “haram” could
not have been on the Al Mamzer peninsula because Abu Hail was itself there.
During this period Dubai does not appear to have exercised any authority in this
area.
The causes and date of the destruction of Abu Hail are not clear from the evidence.
According to Mr Walker's 1964 report the town was destroyed around 1860 by the
Ruler of Sharjah after a revolt by its inhabitants. This is also the theory held by Sharjah.
However, the Government of Dubai gives another version [111] of the facts:
The town of Abu Hail was not finally destroyed after its rebellion against Sharjah in 1860.
During the latter half of the nineteenth century it was inhabited by the Al bu Mahair and
Sudan tribes.
These people were independent but became allied with Dubai. Sheikh Rashid bin
Maktoum of Dubai married a daughter of one of the Al bu Mahair elders and Abu Hail came
under the control of Dubai. Sheikh Rashid bin Maktoum was the Ruler of Dubai from 1886
to 1894.
Sheikh Rashid's successor as Ruler of Dubai was Sheikh Maktoum bin Hasher who was
Ruler from 1894 to 1906. He continued to exercise control over Abu Hail.
It was Sheikh Maktoum bin Hasher of Dubai who finally broke up the town and moved
the inhabitants partly to Dairah and partly to Khan, so confirming Dubai's effective control
over the whole of the peninsula now known as Al Mamzer. (D. CM. vol. 1, pp. 41–2.)
If the Court has correctly understood the theory of the Government of Dubai, it was
at that time that a change took place in the area and the new population of Abu Hail
allied itself with the Ruler of Dubai who henceforth took control of the town and the
area.
[112] This statement rests primarily on the evidence of a person 85 years of age who
was born and lives in Dubai and who, since he could not have known Abu Hail which
no longer existed, based his statements on what he had been told by his father who had
lived in Abu Hail.
The Court finds that these statements are extremely vague. No dates are given either
for the change which took place nor the destruction of the town.
603 91 ILR 543
Moreover, it is questionable whether the Ruler of Sharjah, who had destroyed the
town of Abu Hail in 1860 because it showed hostility towards him, would have
permitted only a few years later and on the same site the existence of a town whose
inhabitants owed allegiance to another Ruler.
What does appear to the Court to be more important is that the 1870 edition of the
Persian Gulf Pilot, as also the 1890 edition, after mentioning Khan and Abu Hail, goes
on to say:
These two places are dependencies of Sharjah (D. CM. vol. 2, pp. 4 and 14.)
Conversely, when mentioning Dairah, the same editions give it as a “suburb” of
Dubai, which shows clearly that the British authorities took no account of the historical
title which might have resulted from the 1841 declaration, but only [113] of the
effective control which Dubai exercised in the locality.
When presented with a document of the period and evidence relating to events
which took place a century before, the Court has little choice but to accept the version
given in the document. So therefore, even if it is accepted that the town of Abu Hail
continued in existence until around the end of the nineteenth century, and there is no
evidence to disprove this, it is nevertheless a fact that it was a “dependency” of Sharjah.
Whatever view one takes as to the existence or otherwise of Abu Hail at the end of
the nineteenth century, it is a fact that during that century there was a gradual growth
of Dubai on the coast towards Sharjah, since it was in order to halt that movement that
the Ruler of Sharjah had defence towers built, as mentioned above.
The disappearance of the town and the void this created were to enable Dubai to
extend considerably its influence into the area concerned. This emerges quite clearly
from what Lorimer wrote in 1908. Not only does he say that the Abu Hail area is
occupied during the date picking season by the inhabitants of Dubai and Khan, but also
when describing the place he says:
A sandy locality with date plantations, on the coast of Trucial Oman, on the boundary
between the [114] principalities of Sharjah and Dubai. (Lorimer, vol. II, p. 603.)
In its investigation above of the location of Abu Hail, the Court has indicated that it
could not accept the theory held by Mr Walker in 1964, and subsequently adopted by
the Government of Sharjah, that in his reference to Abu Hail Lorimer intended to
encompass an area including Al Mamzer and the present location of Abu Hail. The
Court has shown that, even allowing for a margin of error, Abu Hail was
91 ILR 543 604
situated in Lorimer's view on the Al Mamzer peninsula and, judging by the distances
given, relatively near to the tip.
Of course, Lorimer was not in the area for the purpose of defining boundaries and
obviously one could not speak at that time of boundaries in the same way as today.
Even with these reservations, it is still true that Lorimer's evidence indicates that in
1908 part of the Al Mamzer peninsula was in Dubai's possession.
Two events which took place in subsequent years appear to show that the Ruler of
Sharjah became unconcerned with the Al Mamzer peninsula. The first is the Louth
Agreement concluded in 1910 between Dubai and Sharjah.“Louth” is the Arabic word
for anything washed up by the sea. According to custom (which is not very clear) part
of what is found in such circumstances becomes the property of the Ruler or the
headman of the port and the rest goes to the finder. The [115] document containing
Sharjah's undertaking in respect of Dubai reads:
I, Saqr bin Khalid bin Sultan, hereby state that I have granted Shaikh Buti bin Suhail bin
Maktum, as regards wood and cargo belonging to his people washed up by the sea in our
territory between Khan and Ras al Khamah, whether in creeks or on the shore, that we shall
not take anything or oppose them; on the contrary, we shall be kind to them. (Sh. M. vol. II,
pp. 178–9.)
It has not been possible to find Dubai's undertaking in respect of Sharjah.
This agreement, according to the Dubai Government, proves that Sharjah
jurisdiction did not extend to beyond Khan since this town was indicated as the
beginning of Sharjah territory.
Mr Walker had quoted this agreement in an annex to his 1955 report and had
commented on it in the 1964 report. According to him, the Dubai interpretation
should be rejected for the following reasons:
In the first place, Shaikh Saqr hin Khalid had, the year before, protested against a proposed
British bombardment of Dairah which he regarded as [116] his territory. In the second place
Lorimer stated clearly that the frontier lay at Abu Hail part of which belonged to Sharjah four
years before the signing of the agreement, and in the third every Arab town or well is
considered as having a “haram” or area under its control and therefore it would be reasonable
to consider that Khan had an area in Al Mamzer under its control. (Sh. M. vol. II, p. 168.)
The Government of Sharjah appears to adhere to this theory, but adds that the object
of the agreement was not to define a boundary, but concerned the fate of wrecks; it also
commented:
Why was the Sharjah coast described at all? It was described because along
Sharjah's coast line there are various ports: for example, Khan, Sharjah …
605 91 ILR 543
Who owned the traditional salvage rights? The headman of each port, whose people would be
the ones to discover the wreckage. The rule was that the owner had to pay to the headman of
the town a proportion—usually one third—of the value of the goods. There was no point in
saying in the letter “from Abu Hail to Rams”. Anything washed up at Abu Hail would accrue
normally to the headman of Khan. (Oral Hearings, p. 319.)
In the opinion of the Court, even if the Louth Agreement is not conclusive evidence
that Sharjah had lost interest [117] in the part of the Al Mamzer peninsula attributed
to it by Lorimer, it does nevertheless provide a significant pointer. It is possible that
Khan was mentioned because it was a port which had a headman who was to be
notified of the existence of any wreckage, but, in order to give back to the inhabitants of
Dubai any wreckage belonging to them, it was necessary to indicate the coast over
which Sharjah had jurisdiction; this is what the letter does when it says:
… in our territory between Khan and Ras al Khamah.
The term “between” appears to the Court to be significant in this respect, as does the
absence of any reference to Abu Hail. Of course, Mr Walker said that Al Mamzer could
be regarded as the “haram” of Khan, but apart from the fact that this explanation is
given in his 1964 report and might be seen as a justification a posteriori of the 1955
report, no evidence is put forward, and, as the Court has pointed out, at the time when
Abu Hail existed the area could not have been its “haram”. As to the point that the year
after (and not the year before as Mr Walker said), the Ruler of Sharjah protested
“against a proposed British bombardment of Dairah which he regarded as his territory”,
it cannot be accepted because, not only does it conflict with Lorimer's statements, but
also Dairah would then have been mentioned in the Louth Agreement as being part of
the territory of Sharjah.
[118] The impression the Louth Agreement gives in favour of the claim of the
Government of Dubai is strengthened by reading the agreement concluded in 1914
between the Ruler of Sharjah and the de facto Ruler of Ras al Khaimah which sought to
define their respective territories. The territory of Sharjah is described in it as follows:
Sharjah and its dependencies: Khan, Hajrah, Wadi al Helu, Dibba and its surroundings and
Dhaid. (Sh. M. vol. II, p. 118.)
According to the Government of Dubai, the mention of Khan as the limit of Sharjah
territory shows that the Emirate concerned did not own Abu Hail.
According to the Government of Sharjah, the use of the term “dependencies” refers
to the territories surrounding the towns and:
91 ILR 543 606
The Khan dependency included Mamzer and Abu Hail. (Oral Hearings, p. 321.)
The Court cannot share this view. The term “dependencies” refers to those of
Sharjah and not to the dependencies of the localities mentioned. The two subsequent
points clearly demonstrate this, as does the list of names which is included: they are
localities and dependencies of Sharjah.
[119] In the opinion of the Court, the omission of Abu Hail can hardly be justified,
since the reasons which might explain the mention of Khan alone in the Louth
Agreement did not apply in this case. Quite the opposite, as this was an agreement
intended to define the respective territories of the two parties it was important to
distinguish where Sharjah finished and Dubai began. Even if it is recognised that the
boundary between the two Emirates was not clearly defined, it was nevertheless
possible, even necessary, to indicate an area such as Abu Hail or Al Mamzer, unless, as is
probable, the territory of Sharjah ended at Khan.
Both parties to the dispute have attempted on various grounds to show that the
territories in question were under their effective control. First they gave accounts of the
activities of private individuals, and in particular details of their property rights. The
Court does not consider it necessary to examine them; the effective control of a territory
does not depend on the actions of private individuals per se but only on the actions of
public authorities or individuals acting on their behalf.
No-one could contest the fact that this area was occupied during the date picking
season by inhabitants both of Dubai and of Khan who owned date plantations there.
In this connection, the Court considers it would be appropriate to quote from a letter
from the Resident Agent, [120] Sharjah, to the Deputy Political Resident, Persian Gulf,
dated 31 July 1920. According to this report:
… the Manasirs and the Al-Bushames men kidnapped a negro and plundered a house in
which there were some women of Khan who had gone to their palm plantations in summer
in a place called Bohail in Debai jurisdiction … According to Arabian rules, the Shaikh of
Dubai is responsible for the restoration of the stolen property. (D. CM. vol. 2, p. 49.)
This letter confirms that in 1920 Abu Hail was under Dubai control. However, this
is the present Abu Hail and not the former locality. In fact, the women of Khan were
there to pick dates. Now, at that time it appears there were no longer any date palms
left in the Al Mamzer area. This emerges from the Remark Book of HMS Triad of
1927, which states:
607 91 ILR 543
There are no date trees for 3 miles towards Dubai except for a conspicuous clump of five tall
palms … (D. CM. vol. 1, p. 56.)
Conversely, the map published following the Survey by HMS Ormonde in 1933
shows that there were palm trees growing from the present position of Abu Hail along
towards Dubai.
But this letter also shows that the fact that the inhabitants of Khan owned palm
plantations did not prevent the [121] locality passing under Dubai authority and thus
that the private ownership of property was of no significance on the coast.
The Government of Dubai next attempted to prove its effective control over the area
on the basis of the accounts of witnesses who would show that order was maintained by
patrols from Dubai, whereas no such patrols came from Sharjah. It also recounted
incidents which were settled by the Ruler of Dubai.
For its part, the Government of Sharjah has attempted to show that it did not remain
inactive in the area and that it was Sharjah patrols which were keeping order. It also in
its turn produced a certain amount of evidence in support of its claim, in order to show,
for example, that from 1930 to 1940 there was a permanent post of guards, called a
“sangar”, stationed in the vicinity of Birka well near Abu Hail.
In the opinion of the Court, such conflicting evidence from the Parties tends to
cancel itself out, although this should not be taken as casting any doubt on the bona
fides of those who gave it. It is, moreover, a well-recognised fact that it is often difficult
to give an exact account of events which have taken place several years previously.
Mr Walker's 1955 report is of little help on the subject of effective control. His
conclusions regarding [122] Al Mamzer are based exclusively on the fact that the
inhabitants of Khan owned palm plantations there. As the Court has already indicated,
however, this does not provide an adequate criterion for the attribution of territory to
one Emirate rather than another. Moreover, according to Lorimer, the area of the
former Abu Hail, the present day Al Mamzer, was occupied during the date picking
season by inhabitants of both Emirates.
In his 1964 report, Mr Walker quoted several episodes of banditry, but, after noting
the conflicting evidence of inhabitants of both Dubai and Khan on the way in which
the incidents were settled, Mr Walker appears to have consistently favoured the version
given by the inhabitants of the latter. However, as the Court has already had occasion
to indicate, the 1964 report should be approached with caution, since in many
instances it appears to be justifying ex post facto the 1955 report.
91 ILR 543 608
For the reasons indicated above, the Court attaches only relative importance to these
episodes of banditry as described in the evidence. Two other factors appear to it to be
not only more important, but even decisive overall.
The first is that over a long period of time the Ruler of Sharjah had difficulty in
establishing his authority over Khan.
[123] In 1917 difficulties arose between the Ruler of Sharjah and the headman of
Khan and the British had to intervene, with the result that following a meeting on
board ship the headman signed a declaration of loyalty. It appears, however, that this
declaration was not respected, since the Residency Agent, Sharjah, and the Deputy
Political Resident, Persian Gulf, had to intervene again on several occasions to prevent
trouble. In fact, a letter dated 1934 from the Commanding Officer, HMS Fowey, at
Henjam, to the Senior Naval Officer, Persian Gulf, inforing him of the death of the
headman of Khan, reads:
The late Sheikh of Khan … had for some time pursued a quietly determined policy of
separation. (D. CM. vol. 2, p. 53.)
In the opinion of the Government of Dubai, if Sharjah was unable to control Khan
then a fortiori it did not control Al Mamzer.
The second factor is that Sharjah throughout this period was in a condition of great
weakness. This emerges from documents from the British archives. In a letter dated
1920 the headman of Khan was already writing in the following terms to the Deputy
Political Resident, Persian Gulf:
Three times were our men plundered by Bedouins and when we go to Shaikh Kaled (the
Ruler at the time) [124] he does not listen to our representations at all. (D. CM. vol. 2, p.
50.)
This view was shared by the Residency Agent, Sharjah, in a letter to the Secretary to
the Political Resident in the Persian Gulf in 1935:
I beg to state that Shaikh Sultan Bin Saqar is, evidently, unable to deal with the Bedouin
robbers. (D. R. vol. 2, p. 14.)
The same Agent wrote to the Political Agent, Bahrein, in 1936:
… the Ruler of Sharjah … cannot recover persons kidnapped. He has not such power than
can make the marauders fear him and deter them from committing crimes in the area of his
Shaikhdom. (D. R. vol. 2, p. 17.)
Although these letters are not expressly concerned with the coastal area,
they do show the generally weak situation of the Emirate of
609 91 ILR 543
Sharjah at that time. Mr Walker was aware of this, since, after mentioning various acts
of banditry in his 1964 report, he adds:
It is probably worth mentioning that at the time of all these incidents Sharjah was in a
particularly weak [125] state … (Sh. M. vol. II, p. 172.)
This comment is difficult to reconcile with his version of the events.
Be that as it may, the situation at this period seems to have been summed up
perfectly in a letter from the Political Agent to the Political Resident, dated 12 August
1937, which in a passage concerning the refusal of the Ruler to indicate where the
boundaries lay, reads:
I am not surprised at the Shaikh (of Sharjah) refusing to state what area he claims. There is
no doubt that a very large area belongs de jure to this Shaikh, but at the same time it is
equally certain that he is unable to control one tenth of his area. At present his effective
control only extends as far as his gardens beyond the aerodrome. (Sh. M. vol. II, p. 353.)
Whereas a report by the Senior Naval Officer, Persian Gulf, in 1937 giving his
impressions of some of the Rulers in the area describes the Ruler of Dubai as follows:
Has more experience than the rest … and has a lot of power up and down the coast, largely
owing to his control of the Trucial Coast Trade, (D. R. vol. 2, p. 15.)
[126] This shows clearly that it is not possible that Sharjah could have kept a guard
post (“sangar”) near Abu Hail between 1930 and 1940.
On the one hand, the Ruler failed to establish his authority over the headman of
Khan, and on the other, because of his weak condition, he had scarcely any forces
available to be kept stationed in a semi-desert area. This is not to say that the “sangar”
did not exist; it was established in 1940 during the hostilities between the two Emirates,
but only for the purposes of the war. In this connection, the Political Officer wrote in
his report on the events:
A truce was in progress which was due to expire on 21st February, but the Shaikh of Sharjah
on 20th February allowed himself to be persuaded by the Shaikh of Ras al Khaimah to send
men to occupy a Sanger on the Dubai side of Khan Creek. (D. CM. vol. 2, p. 83.)
This report is important for two reasons: firstly, because they were going to occupy a
“sangar”, which means that it was not occupied. Secondly, in saying “on the Dubai side
of Khan Creek” the Political Officer demonstrates that in his mind Al Mamzer came
under the authority of Dubai.
91 ILR 543 610
The Court therefore concludes that during the 1930s the Al Mamzer peninsula was
under the effective control of Dubai. It reaches this conclusion not on the basis of any
[127] single piece of evidence, but on the basis of a number of pieces of evidence,
which show, firstly, that the Ruler of Sharjah had abandoned his pretensions to the area
(the Louth Agreement, the agreement with the Ruler of Ras al Khaimah defining their
respective possessions) and, secondly, that Sharjah had not the means to exercise control
in Al Mamzer (difficulties with Khan, the general weakness of the Emirate).
Doubtless during the last century, through the allegiance of the population of Abu
Hail, Sharjah had a legal title over the Al Mamzer peninsula and well beyond, but, with
the disappearance of the town, the development of Dubai and its increasing economic
and political weight caused Sharjah gradually to lose this title. Lorimer noted this
already in 1908, since he gives the boundary as passing half a mile from Khan. In any
event from the beginning of the present century neither reference to allegiance nor to
the ownership of property was appropriate for the determination of legal title, because,
as far as the former is concerned, the Court has already indicated that the population of
the area was both mixed and occasional, and, as far as the latter is concerned, the British
authorities in 1920 admitted the existence of control by Dubai irrespective of the
property rights of individuals in the area. The only other possibility was to refer to
effective control and this control was no longer exercised by Sharjah. In consequence,
by this time, the former legal title of Sharjah was lost.
[128] Having arrived at this conclusion, there is no need for the Court to consider
the events connected with the 1940 war between the Emirates of Sharjah and Dubai,
which the latter has cited in order to demonstrate its control over the Al Mamzer
peninsula.
It appears, therefore, that the Ruler of Dubai was right in claiming the Al Mamzer
peninsula in 1937. The line ran:
… to Al Mamzer on the sea and about 5 miles north-north east of Dubai town. (Sh. M. vol.
II, p. 95.)
In this regard, the Government of Sharjah has tried to show that in 1937 Dubai did not
claim the whole of Al Mamzer:
A claim purporting to encompass the whole district of Mamzer could not have been
expressed in terms of a line ending at Al Mamzer; it would have been at the mouth of Khor
Khan. In Dubai's 1953 claim the boundary remained simply at Mamzer, thus confirming the
impression given in 1937.
In 1955, after the British Arbitration had commenced, the Ruler of Dubai for the first
time extended his claim to territory as far as “the western headland of al Khan Creek”. (Sh.
CM. vol. III, p. 118.)
611 91 ILR 543
[129] The Court cannot accept this view. In fact, Mr Wilton in his 1952 report and
Mr Walker in his of 1955 both mention the mouth of Khan Creek as being claimed by
Dubai:
The Ruler of Dubai claims Al Mamzer, saying that the mouth of Khan Creek is his
boundary. (Sh. M. vol. II, p. 82.)
In saying this Mr Walker could not have been influenced by the 1955 claim as
Sharjah maintains, since the latter was made after the month of March 1955, the date
of Mr Walker's report.
On the coast there is certainly continuity in the Dubai claim, continuity which
corresponds to its effective control.
Since no event altering the existing legal position has been put forward by the Parties
in respect of the period from 1940 to 1955, the Court finds that first Mr Walker and
then Mr Tripp were wrong in attributing the Al Mamzer peninsula to Sharjah. Mr
Walker based his decision on the position as it was in the last century—the town of
Abu Hail, on the ownership of palm plantations or land—whereas given the local
situation at the time, this position was irrelevant. Furthermore, Mr Walker disregarded
the effective control in the area even though he had indicated in his 1955 report that
the question of effective control was listed first in his “approximate order of
importance”.
[130] The decision regarding the coast appears not to have been based upon legal
considerations but to have been a political compromise.
The Court will now proceed to investigate the conduct of the parties following the
decision.
3. Subsequent conduct of the parties
The Court has indicated in Chapter II that in certain circumstances an
administrative decision establishing a boundary might be set aside. In this connection,
three questions need to be investigated in the case in point. Firstly, the reaction of the
Parties to Mr Tripp's decision. Secondly, the activities of police in the area. Lastly, work
relating to economic development.
(a) The reaction of the Parties to Mr Tripp's decision
The Court finds that the Ruler of Dubai did not accept Mr Tripp's decision defining
the boundary on the coast. In fact, on 5 June 1956, two months after the decision, he
wrote to the Political Agent:
The main boundary point of Dubai in the northern coast is (? al-Mazt) and
all that lies in its south-western bank is our domain. Mr Walker's decision to
91 ILR 543 612
draw the line between the house of Hilal Bin Humayd and Khalifah Bin Hasan is not fair
that the line should pass in the centre of [131] our recognised domain. (D. M. vol. 2, p.
182.)
This did not, of course, prevent him subsequently from giving the British authorities
his authorisation to fix the boundary line in the interior, but this was a different matter
from the coast. The Government of Sharjah has noted the behaviour of the Ruler of
Dubai in 1958 when he succeeded his father. The Political Agent wrote a letter of 24
October 1958, to the new Ruler of Dubai which reads:
I assume that your letter (in which he had informed the Political Agent that he had become
the new Ruler of Dubai) is to be interpreted as meaning that you accept and will abide by all
the treaties, agreements, usages and customs which were accepted by your predecessors
concerning relations between Dubai and the British Government and that you will respect
these undertakings in the same manner as your predecessors. On this understanding I am
authorised by Her Majesty's Government to inform you that they accord you their formal
recognition. (D. M. vol. 2, p. 184.)
The new Ruler of Dubai replied:
… I hereby confirm that this understanding is correct. (Ibid., p. 185.)
However, even if the letter may be interpreted as [132] confirming the authorisation
granted by the former Ruler of Dubai in March 1955, it cannot be interpreted as
implying renunciation of the protest made in 1956. Furthermore, according to the
letter from the Political Agent, acceptance of prior undertakings was a precondition for
the Government of Her Britannic Majesty's recognition of the new Ruler. It is clear
that, given the situation prevailing in the area at that time, no Ruler could dispense
with the recognition of the British authorities. In such circumstances, the Ruler of
Dubai could have done no other than to give his consent.
According to Mr Walker's 1964 report, it would appear that the Ruler of Dubai
expressed his discontent again in 1961 and 1963 with regard to the boundaries in the
coastal zone. Lastly, in a letter dated 1 July 1964, to the Political Agent (Sh. M. vol. II,
pp. 235–8), concerning, it is true, a part of the boundary in the interior, he contested
the validity of the constents given to the British authorities by his father in the matter of
defining the boundary.
It emerges from these documents that the Government of Dubai has protested on
several occasions against Mr Tripp's decision of 1956. These were occasional protests
but if one has regard to the state of relationships at the time between the Rulers and the
British authorities, it could hardly have been otherwise.
613 91 ILR 543
[133] (b) Police patrols after 1956
The problem of who controlled the Al Mamzer peninsula after 1956 is complicated
by the fact that, since the relevant archives of the British Government have not been
made public, the Court can only base its findings on the evidence put forward by the
Parties and on certain documents.
The Government of Dubai maintains that since the 1956 decision has not been
recognised the Al Mamzer peninsula has continued to be controlled by its police force.
In this regard, it should be noted that its police force was founded in 1957 whereas the
Sharjah police force was founded in 1967.
It bases its claims on the evidence of ten police officers including that of Mr Briggs, a
member of the Trucial Oman Scouts from 1963 to 1965 and Chief of the Dubai Police
from 1965 to 1975.
All this evidence shows, according to the Government of Dubai, that the Al Mamzer
peninsula was controlled by patrols of Dubai Police, and supports the contention that
there were no police from Sharjah there.
The Court should point out that this evidence is very detailed as to the means
employed—the use of landrovers and boats; as to the circumstances—patrols were
carried out at night rather than during the day time; and the reasons for the
inspections—campaigns against illegal immigration, arms smuggling, etc.
[134] Presented with this detailed evidence, the Government of Sharjah sought to
show that the Al Mamzer peninsula was under the surveillance of its own police force
and put forward the evidence of Mr Sirri, Assistant Commandant of the Sharjah Police,
and currently Commandant of the Sharjah Police, and also that of Mr Burns who was
Chief Officer of the Sharjah Police from 1967 to 1973 and who has since left the
country.
The Court finds that their evidence is extremely vague; both men state that they
knew where the boundary lay between the two Emirates, both describe it in accordance
with the line established by the 1955 decision, and both declare that the boundaries
were respected by the Dubai police.
For Mr Sirri:
Since the establishment of the Sharjah police and up to the present time, our police force has
carried out all its duties and jurisdiction in the regions of Sharjah on the basis of the frontiers
with the Emirates of Dubai which I have mentioned, whether those jurisdictons or duties
concerned security, patrolling, guard duties, traffic control or observation. (Sh. CM. vol. IV,
p. 48.)
91 ILR 543 614
The Court has no reason to doubt the worth of this evidence in any general sense,
but it does not prove very much as regards the Al Mamzer area.
[135] As for Mr Burns, he states:
In the winter of 1969, I was instructed by His Excellency Sheikh Saqr, the Deputy Ruler of
Sharjah, to complain to the Political Agent about Dubai citizens taking sand from the area of
Mamzer. The Sharjah Police prevented the lorries returning to the area whilst the Political
Agent investigated and then ruled that the area being exploited was, in fact, in Sharjah State.
No further incursions took place during my time in office. (Sh. R. vol. VIII, p. 42.)
The Court finds, however, that the Government of Sharjah was not in a position to
produce any documentation in support of this contention. Furthermore, other evidence
given by a police officer from Sharjah appears to contradict Mr Burns since it states:
In the year 1971 some lorries belonging to people from Dubai tried to join in transporting
sand from the area of Mamzer. We prevented them doing so until they had obtained
permission from the Municipality of Sharjah. (Sh. R. vol. VII, p. 114.)
Such conflicting evidence put forward by the same Party shows that this type of
evidence should be viewed with caution.
[136] The Court, leaving aside the conflicting evidence, will confine its examination
to certain specific incidents which, in the opinion of the Government of Dubai, show
that it was in control of Al Mamzer.
That Government states, first of all, that there was intensive patrolling in the years
before 1970 and immediately after the British withdrawal, in order to combat illegal
immigration. In this regard, the Government of Dubai quoted from a document from
the Trucial Oman Scout Headquarters which dealt with the arrangements for a joint
counter illegal immigration exercise to be held in August 1971. In this document, the
zone allocated to the Dubai police included the Al Mamzer peninsula, whereas that
allocated to the Sharjah police stopped at Khan. The Court finds, however, that this
document proves nothing in this case, since the same order also allocated part of
Sharjah territory to the police of Ras al Khaimah. These were simply administrative
arrangements by way of ad hoc response to practical needs without regard to territorial
boundaries.
The second incident concerns the fire on board the ship Dissri Mardu, which ran aground
on the Al Mamzer peninsula in 1970. Two pieces of evidence indicate that it was at the
request of the Political Agent that the police and firemen from Dubai intervened. The Dubai
615 91 ILR 543
police guarded the ship and its cargo and later made a claim for their work in guarding
it.
[113] The Government of Sharjah is non-committal on this point; it maintains that:
All the various authorities did what they could to save the situation. (Sh. R. vol. VI, p. 120;
vol. VII, p. 104.)
This is also Mr Burns' version, although he admits that he was not in the Emirates at
the time of the incident. Even if this account is accepted, it remains a fact that, unlike
the evidence put forward by Dubai, that put forward by Sharjah is very reticent about
any concrete action taken by its authorities, and that it is difficult to understand why
the wreck was guarded by the Dubai police.
Even more significant are two incidents which arose in 1972. In the same year, in
fact, but on different dates, two drowned men were found on the beaches of the Al
Mamzer peninsula. These events are not only reported in the evidence of the Dubai
police officers who discovered them, but also in two police reports, which it is
appropriate to quote in full:
At approx. two o'clock on Friday 19/5/72 we received a report from the officer on duty
patrol Lt. Abdul Aziz Mohammed informing us of the dead body of a person on the shore at
Khor al-Khan opposite the burnt-out freighter.
Acting on the report I, Lt. Hassan Mohammed Khamis [138] proceeded to the place of
the incident and noticed the following:
The body was that of an unknown person, naked, without clothes, on the shore at the
place mentioned above. It was lying on its front. I didn't find any visible evidence, the body
being in a state of decay (it had been dead for about 10 days). The dead body measured about
six feet and there were no tracks/traces around the body. It was transported to Maktoum
Hospital by municipality ambulance men and the duty doctor was fetched.
The body is still in the hospital awaiting a detailed report. (D. R. vol. 2, p. 167.)
On 7 August 1972, another police report indicated:
At approx. ten minutes past one there was a radio message from Corporal Haji Hassan Mohammed who
was on patrol about a dead person found in the vicinity of Khor al-Khan. Immediately I, First
Lieutenant Abdullah Ghanim Saeed, together with 2nd Sergeant Juma jelal went to the scene of the
incident. Captain Nasser Al-Sayyid, the police doctor and photographers were also informed at this
time. Upon arrival at the place where the dead body was I noticed that it was situated on the sandy
shore at Khor al-Khan opposite the burnt-out freighter, about twenty feet from the sea. The dead
person was lying on his front and was in a [139] state of decomposition. He
91 ILR 543 616
was dressed in only white khaki trousers. He was about thirty-four years of age and thought
to have been of Lebanese nationality and a Muslim since rings were found on the fingers of
one of his hands including a gold ring with the Lebanese emblem on it. Similarly there was a
gold chain around his neck and written on the chain was the word “Allah”. No criminal
instruments were found, nor anything else.
The dead body was taken immediately to the Maktum hospital and after an examination
the duty doctor and the police doctor revealed that death had taken place in the sea by
drowning and that about ten days had passed since then, and that it had been the waves that
had thrown the body up on the shore.
There were no injuries to indicate a crime.
The body was put in the hospital deep-freeze for the completion of the investigation. I
demanded a detailed report of the incident. (Ibid., p. 169.)
The Government of Sharjah maintained that the reason why both bodies had been
taken to the hospital in Dubai was that this hospital possessed appropriate facilities for
preserving corpses.
In the opinion of the Court this argument is scarcely relevant. Indeed the interest of
these documents lies not in the fact that they show that the two drowned persons had
been taken to hospital in Dubai, but that they had been discovered [140] by the Dubai
police over a period of three months. If therefore, as is asserted by the Government of
Sharjah, the Al Mamzer peninsula was under its control, it is difficult to understand
why members of the Sharjah police force had not made these discoveries. Moreover,
these reports expressly contradict the Government of Sharjah's argument that the Dubai
police did not patrol Al Mamzer.
Sharjah had all the more reason to protest here as the discovery of these two drowned
persons led to an enquiry being instigated by the competent authorities in Dubai. In
one case, following a request from the Dubai police, the judge of the Dubai Civil Court
attested:
It is hereby certified by the Dubai Civil Court, that having considered all the evidence,
medical and otherwise, produced by the Dubai Police, that the body of a male person found
drowned at Dubai on 19th May 1972, is beyond all reasonable doubt identified as that of a
Belgian National, DANIEL TICHON, aged 22 years, son of Mrs. JEAN TICHON, 71 Avenue
Emile Vandervelde, 1200, Brussels, Belgium. (D. R. vol. 4B, p. 238.)
In the other case, where the authorities suspected that a crime had been committed,
the Dubai Prosecuting Attorney attested to the judge of the Dubai Civil Court after an
inquiry:
[141] Dear Sir,
Re: Shahata Adib—Palestinian National
Al Sayed Al Arabee Adbul Salam—Egyptian National
Ali Soobhi Kaloot—Lebanese National
617 91 ILR 543
The above-named are accused of killing Ali Ahmed Suleiman, which happened on 4.8.1972.
Whereas there is no evidence, we request you to close the case.
Prosecuting Attorney I decide to accept the request 1.2.1973.
(Ibid., p. 234.)
These two incidents show that, unlike the Sharjah police, the Dubai police made
regular inspections of Al Mamzer.
Moreover, that is confirmed by one of Sharjah's own witnesses, the owner of the
Sharjah Transport Company, who came to take sand from the Al Mamzer peninsula.
He states:
I know the area of Mamzer, and I recall that around 1967 we were transporting sand for the
casting of concrete from the area of Haira in Sharjah; but, by reason of the occurrence of
some damage to the ground due to our removal of sand from it, the Municipality of Sharjah
forbade us to do so from that area and asked us to move to the area of Mamzer. We actually
moved to it and our trucks and work force continued to remove sand from Mamzer from a
place [142] near Birka al Wahaida, where our works continued until nearly 1972, when we
noticed that Dubai had started to build a corniche on its territories and had reached nearly
Birka al Wahaida well in its work, at which point some friction occurred between us and the
company building the corniche for Dubai. The Dubai police then interfered and asked us, in
order to prevent any further friction with the Dubai company, to remove our employees and
trucks from near Birka al Wahaida well to another place near Mamzer which is further away
from the previous area. So, in order to avoid trouble with Dubai, we removed ourselves and
began transporting sand from a place in Mamzer near the ruins of the old Mamzer village
where our activities continued for about a year and a half. Since the Dubai corniche works
went beyond Birka al Wahaida well in the direction of Mamzer and came close to the place of
our work (towards the end of 1973), the Dubai police came to us and tried to forbid us from
working and to expel us from the area. We refused and contacted the Municipality of Sharjah
which informed us that the Federal Government had intervened in the matter as a result of a
complaint from the Emirate of Sharjah about the Dubai corniche, and that an order was
issued by the Head of State stopping all works, whether in Sharjah or Dubai, in the area of
Mamzer until the matter had been settled between the two Emirates. Whereupon and in
accordance with a request [143] from the Municipality of Sharjah, we stopped transporting
sand from Mamzer and moved to another area in Sharjah. (Sh. R. vol. VIII, pp. 35–6.)
The Court has once again to observe that it was the Dubai police, not the Sharjah
police, who dealt with the Al Mamzer peninsula. Even if the Sharjah police were not
present on that particular day—and it cannot be claimed that they maintained a
continuous presence there, given the fact that this is a semi-desert area—they should have
91 ILR 543 618
intervened very quickly, both to protect their national, who, if Al Mamzer was in his
country, was completely within his rights to carry out his business in the area, and to
remind the Dubai police that they should not exercise their jurisdiction there. The
argument that the Sharjah police would not intervene in order to avoid incidents whilst
awaiting intervention by the Federal Government cannot be accepted as the date given
in this statement is 1973 and the Federal intervention was in 1976.
The Court will examine below the importance to be attributed to the work carried
out in the area by the Government of Dubai; it restricts itself here to concluding that
the documents supplied by the Parties show that in the period following the Tripp
ruling in 1956 not only were the Sharjah police not present in the Al Mamzer peninsula
but that the Emirate of Sharjah took no interest in what was happening there.
[144] With the help of evidence, the two Parties have attempted to show that they
had control of this peninsula because some of their nationals were taking sand from it
and that, in view of the subsequent erosion, the respective authorities had had either to
prohibit this practice or to control it.
The Court has on several occasions pointed out how problematical it finds the
cogency of contradictory evidence given by witnesses unless it is supported by
documentary proof.
Thus two witnesses for the Government of Sharjah have stated that persons taking
sand from Al Mamzer could only do so with a permit from the Municipality of Sharjah.
However, the Government of Sharjah has not produced copies of these permits
although requested to do so by the Government of Dubai. In these circumstances the
Court does not have to give a decision on the question of the sand which, in its
opinion, cannot, in the absence of any concrete proof, contradict the conclusions which
it reached above.
Finally, the Government of Sharjah gave the evidence of the Head of the Justice
Department of Sharjah. According to him:
All judicial incidents which took place from Khan [145] Roundabout as far as Nahada Amair
and the area of Mamzer in the period between 1958 and 1968 were investigated by the
Sharjah authorities, and the offenders were prosecuted before the Sharjah Shari'a Court, on
the basis that the boundaries between the two Emirates in that area are at the Birkat al
Wahaida well and Nahada Amair. All incidents which have taken place since 1968 to date in
that area have been investigated by the Sharjah Police and offenders have been prosecuted
before the Sharjah Civil Court.
I have asked the Criminal Division of the Civil Court to prepare a list of some
of the criminal cases which have taken place on the public road between Khan
Roundabout and Nahada Amair for the period from 1969 to 1975.
619 91 ILR 543
That has been done, and I confirm the accuracy of the contents thereof. So far as concerns
cases before the Shari'a Court from 1958 to 1968, we have not been able to prepare a list,
due to the files having been destroyed owing to the passage of time.
The Dubai Police and also the Courts of Dubai co-operate with our police and courts in
arresting criminals, gathering evidence, and exchanging information on criminal matters. All
of this co-operation has taken place on the basis that the boundaries between the two
Emirates are from Birkat al Wahaida well to Nahada Amair to Hadhib Azana and thence to
the desert. (Sh. R. vol. VII, pp. 109–10.)
[146] The Court carefully examined the list supplied by His Excellency the Head of
the Justice Department. It noted that all cases show, as the evidence had indicated, that
Sharjah had exercised jurisdiction in a whole series of incidents occurring in the area
between Nahada Amair and the town of Sharjah, but there is not one case dealing with
the Al Mamzer area even for the year in which, as the Court pointed out, Sharjah might
have had the opportunity of asserting its jurisdiction in the area when the two drowned
persons were discovered.
The Court will now examine the work connected with economic development.
(c) Development work
Sharjah does not dispute the fact that it did not carry out any building in the Al
Mamzer area or any other public or private operations.
It is quite a different story as far as the Emirate of Dubai is concerned. In 1972, with
a view to building a university on land situated on the Sharjah side of the line as laid
down in Mr Tripp's decision, a compound wall was built. (Dubai Municipality Site
Plan, Town Plan Sheet No 3/3, dated 5 June 1972.)
The Government of Dubai also referred to three Dubai Municipality Site Plans, the
first of which shows a plot of [147] land being granted to H. H. Sheikh Hamdan Ben
Mohd Al-Nahyan (Town Plan Sheet No 7, dated 30.5.1974), the second a plot of land
being granted for building a microwave relay station for federal use (Federal Mast)
(Town Plan Sheet No 183, dated 5.7.1975) and the third a plot of land being granted
for building a school (Town Plan Sheet No 12, dated 28.12.1975).
There is no doubt, however, that the most spectacular work was that involved in
building a corniche and a small port which straddles the line laid down by Mr Tripp.
Work started on the corniche in May 1971 at the mouth of Dubai Creek. In
the spring of 1973, at the end of the second stage of the work,
91 ILR 543 620
it extended 4,000 feet beyond the line laid down by Mr Tripp, and at the end of the
third stage, in June 1975, 6,000 feet beyond this line.
Following the intervention of the Federal authorities, the work stopped in June
1976.
The Government of Sharjah maintained that during this work it made several
protests to the Ruler of Dubai, the Federal Government and the Head of State. These
protests would have been behind the abandonment of the university project and would
explain the slowness with which work on the corniche progressed, once Mr Tripp's line
had been crossed. In fact, each protest caused the work to be interrupted but it started
up again afterwards.
[148] With reference to the notion of the critical date, the Government of Sharjah
believes that here there were acts designed to secure an improvement of position, which
should not be construed as evidence of title.
As for the Federal Mast, the Federal authorities would have asked the Sharjah
authorities for permission.
With reference to the building of the corniche, the Government of Dubai asserted:
They can be seen to be the kind of works which are an outstanding example of State activity
which by their very nature demonstrates (the) assertion that its promoters effectively control
the area of the land in question. (Oral Hearings, p. 461.)
That Government states, moreover, that during work on the corniche no written
protest was made to Dubai and that the work was never halted as a result of protests
until the intervention of the Federal Authorities in 1976.
The Court has had the opportunity of pointing out above that the notion of the
critical date played no part in this case at least until 1976 and it does not deem it
necessary to settle the question of whether the work undertaken by the Emirate of
Dubai constitutes an act in pursuance of its authority or an improvement of position.
[149] Even if it could be admitted, as Sharjah claims, that these acts belong to the
second category, this Emirate's absence of reaction seems inexplicable. The first thing
that a State must do when the authorities of another State enter its territory is to make a
protest and send its police force to put an end to these actions. The evidence given by
the Chief Engineer of the company which built the university compound shows that
the Sharjah police never intervened. Likewise, a report from the company building the
corniche only mentions one intervention by the Federal police in 1976. Moreover, the
Government of Sharjah did not claim that its police intervened to prevent this work.
This is additional proof that the police were not in the area. But even
621 91 ILR 543
if they were not there, they must have been aware of the work that was going on—
because of its size it was visible from the road linking Dubai and Sharjah. Therefore, if
Sharjah had felt that it had the right to do so it should have sent in patrols to try and
stop the work. In the view of the Court this absence of reaction on the part of Sharjah
demonstrates clearly that this Emirate did not consider Al Mamzer to be part of its
territory. For if the Sharjah authorities had been convinced that they had the right to do
so they would surely not have hesitated to intervene as they had done in two incidents
in the interior in 1966 and 1969. These were the incidents concerning the digging of a
well in the area of Bida'at by an inhabitant of Dubai and concerning the water pump at
Tawi bil Khabis. Those incidents occurred at a considerable distance from the town of
Sharjah and were certainly [150] less important in every way than the construction
work in Al Mamzer. This lack of action contrasts also strangely with Sharjah police
activity on the road linking Nahada Amair and Sharjah.
As regards the protests, the Court does not wish to rule out the possibility that the
Ruler of Sharjah made a verbal complaint to the Federal authorities but the documents
provided show that the first formal protest was on 28 June 1975 (Sh. R. vol. VIII, p.
62) and that it was, moreover, taken very seriously as can be seen from correspondence
between the various administrations concerned (Ibid., pp. 64–8). This step was to lead
to intervention by the Federal power in 1976 and the work on the corniche being
halted.
As for the building of the Federal Mast, it is not surprising that the Federal
authorities, aware of the existence of the line laid down by Mr Tripp, should have asked
the Ruler of Sharjah for his permission; however, they also asked the Ruler of Dubai for
his permission and it was the municipality of Dubai which granted the necessary land.
In this context, the Court must call attention to the existence of a letter from the
Federal authorities dated 25 October, 1978 and addressed to the municipality of
Dubai, requesting permission to build a new unit for the installation of special
equipment in connection with the Mast, permission which, moreover, was granted.
[151] 4. Conclusion
After examining the situation which existed in 1956 at the time of Mr Tripp's
decision the Court has concluded that the Al Mamzer peninsula was under the
authority of Dubai. However, faced with contradictory claims, the British authorities,
disregarding the legal situation, had endeavoured to find a compromise likely to satisfy
both parties.
The Tripp decision could have brought about a new legal situation in
either of two ways, i.e. (i) that Dubai subsequently respected
91 ILR 543 622
Sharjah's title over Al Mamzer and (ii) that Sharjah subsequently had sought to apply
the Tripp decision in Al Mamzer.
After examining the subsequent behaviour of the parties, the Court has concluded
that neither of these conditions was fulfilled and that, on the contrary, the parties
continued to behave as if there had never been this decision.
Not only did the Emirate of Dubai immediately protest against Mr Tripp's decision
but it continued to treat the Al Mamzer peninsula as its own territory. Its police
patrolled there, even though only occasionally; its courts exercised their jurisdiction; its
municipality granted the land needed for building. These were peaceful and public acts
of authority which the Government of Sharjah could not ignore, given the nearness of
Al Mamzer and the very limited size of this region.
[152] The Court is aware that Dubai's activities, even though very limited, have to
be assessed in the face of inactivity on the part of Sharjah. Setting aside what might have
happened before 1967, when Dubai, unlike Sharjah, had a police force, the Court finds
that even after this date all the documents record the absence of Sharjah's police in Al
Mamzer, the fact that its courts did not exercise their jurisdiction and the lack of
building activity by its municipality.
What appears decisive to the Court is not that Sharjah did not assert its authority
over an un-populated region by some positive action, but that it offered no opposition
to the Government of Dubai treating the Al Mamzer peninsula as its own territory.
Between 1967 and 1975 the Sharjah police remained inactive, whereas the Dubai
police were present and Sharjah even allowed the latter to evict one of its nationals from
his place of work and did nothing, although major work was being carried out on what
it should have considered its territory.
Finally, not only did the Government of Sharjah not protest to the Government of
Dubai but, although since 1971 there had been a Federal Power which could have acted
as an appeal body, it did not formally ask it to intervene until 1975.
[153] The Court observes that there is a substantial body of case law which indicates
that, when one State engages in activity, by means of which it seeks to acquire a right or
to change an existing situation, a lack of reaction by another State at whose expense
such activity is carried out, will result in the latter forfeiting the rights which it could
have claimed.
In the Grisbadarna case, decided in 1909, the mooring of a Swedish light vessel needed for safe
navigation, and the positioning by Sweden of a fairly large number of buoys justified among other
things, in the absence of any protest from Norway, granting the disputed maritime
623 91 ILR 543
area to Sweden. (United Nations, Report of International Arbitral Awards, vol. XI, p.
161.)
In the Island of Palmas case,[17] decided in 1928, the sovereignty of the Netherlands
over this island was recognised not only because:
… the documents laid before the Arbitrator contain no trace of Spanish activities of any kind
specifically on the Island of Palmas
but also because Spain, which originally had a legal claim based on discovery, had
recorded:
… no contestation or other action whatever or [154] protest against the exercise of territorial
rights by the Netherlands over the Talautse (Sangi) Islets and their dependencies (Miangas
included) has been recorded. (Ibid., vol. II, pp. 851 and 868.)
In the Norwegian Fisheries case,[18] the International Court of Justice, deeming that
the method adopted by the Norwegian Government for laying down base lines to
define its fishing grounds was not contrary to international law, wanted to see what the
attitude of the United Kingdom had been in this matter. Observing that the latter had
refrained from expressing any reservations, it added:
… her prolonged abstention would in any case warrant Norway's enforcement of her system
against the United Kingdom. (ICJ Reports, 1951, p. 139.)
In the case of the Temple of Préah-Vihéar,[19] the geographical map defining the
boundary between Siam and Cambodia was deemed by the International Court of
Justice not to have been binding in the beginning. However:
… it is clear that circumstances were such as called for some reaction, within a reasonable
period, on the part of the Siamese authorities, if they wished to disagree with the map or had
any serious question to raise in regard to it. They did not do so, either then or for many years,
and [155] thereby must have held to have acquiesced. (ICJ Reports, 1962, p. 23.)
It emerges from this analysis that a State must react, although using peaceful means,
when it considers that one of its rights is threatened by the action of another State.
Such a rule is perfectly logical as lack of action in a situation like this can only mean
two things: either the State does not believe that it really possesses the disputed right, or
for its own private reasons, it decides not to maintain it.
[17. 4 Ann Dig 3.]
[18. 18 ILR 86.]
[19. 33 ILR 48.]
91 ILR 543 624
In the case in question, as the Court has pointed out, the Emirate of Dubai
performed acts of authority in the Al Mamzer area, above all between 1967 and 1975,
which should have brought about some reaction on the part of the Emirate of Sharjah,
but nothing of this kind was recorded until 1975.
Dubai's actions were doubtless relatively sporadic, but international law (the Island of
Palmas case;[20] the 1933 Judgment of the Permanent Court of International Justice in
the case of the Legal Status of Eastern Greenland,[21] Series A/B, No 53, p. 46) admits
that the extent to which sovereign rights may require to be exercised depends on the
territory in question and that this exercise may be very limited when it is a question of
territories which are sparsely populated or have no permanent inhabitants, which is
precisely the [156] case with the Al Mamzer peninsula.
International law also requires demonstrations of sovereignty to be both peaceful and
public. It is not disputed that the Dubai authorities behaved peacefully and the Court
has pointed out that the Government of Sharjah could not have been unaware of what
was happening at Al Mamzer.
The Court will now examine the final aspect of the problem. International law in fact
requires the exercise of authority by the State claiming a territory to be continuous and
of a certain duration and that the State possessing the legal title should react, when
faced by such a claim, within “a reasonable period of time”, to quote the expression
used by the International Court of Justice in the case of the Temple of Préah-Vihéar,[22]
However, it has never been specified what is meant by a “certain duration” nor by “a
reasonable period of time”.
The Court has noted there are no rules in international law specifying the length of
such a duration or period of time. This will vary in each case according to the
circumstances, and will be dependent, for example, on the remoteness of the territory in
question, or on the kind of acts manifesting authority which have been employed.
In the opinion of the Court, the State whose rights are threatened by the actions of
another State does not [157] necessarily have to make its protest as soon as it learns about
the action giving rise to the complaint, but it must be made as soon as the State realises that
these actions may be prejudicial to its rights. Referring again to the case of the Temple of
Préah-Vihéar,[23] the silence of the Siamese authorities presented with the geographical map
placing the temple in Cambodian territory could not in itself be deemed acquiesence. Time
was needed so that the geographical map could be examined by competent persons and the
[20. 4 Ann Dig 3.]
[21. 6 Ann Dig 95.]
[22. 33 ILR 48.]
[23. Ibid.]
625 91 ILR 543
mistake perceived; when the mistake was perceived the Siamese authorities should have
reacted.
In the case in question, however, Sharjah could not have failed to realise very quickly
that the exercise of authority by the Emirate of Dubai was contrary to Mr Tripp's
delimitation; it should therefore have reacted very rapidly which it did not do.
An examination of the case, therefore, shows that the situation existing in the sixties
and at the beginning of the seventies was only an extension of that which existed before
the 1956 decision. Whether before or afterwards, the Government of Dubai exercised
its authority over the disputed territory to a greater or lesser extent, whereas Sharjah's
actions were very sporadic in the earlier period and non-existent in the later. The lack of
reaction on the part of Sharjah shows that it did not rely on any legal title resulting
from Mr Tripp's decision or that it took no further interest in [158] this matter. In any
event, the Tripp decision was not applied by either Party. In view of this, the Court
therefore concludes that the Al Mamzer peninsula falls within the territory of the
Emirate of Dubai.
In its Final Submissions, the Government of Dubai asked the Court to state that the
boundary should begin at the:
…mid-point of Khan Creek between the land extremities of the Al Mamzer peninsula and
the Khan village peninsula. (Point 10 of the Final Submissions.)
This request differs from that made in the documents of the written proceedings
which asked the Court to rule that the boundary began at the tip of the Al Mamzer
peninsula.
In the opinion of the Court such an important change in the Final Submissions, at
the very end of the proceedings, is inadmissible and must be rejected.
As will be seen in Chapter VI the Tripp decision of 3 July 1956, which has been
accepted by this Court, shows the boundary between the Emirates of Dubai and of
Sharjah as proceeding through Naheda Amair. Therefore the Court, having determined
that the coastal terminus of the boundary line is at the tip of the Al Mamzer peninsula
and having observed that throughout the documentation submitted in the [159]
Pleadings, it has been shown that the two arms of this inlet have always been used by the
fishermen of Khan village to gain their livelihood, and that, by contrast, the Government
of Dubai has at no time asserted that it had authority over these waters, decides that the
boundary line must proceed from the tip of Al Mamzer peninsula following the low
water line of the peninsula to point 1, thence by a straight line to point 2, thence by a
straight line to point 3, thence by a straight line to Nahada Amair. The co-ordinates are
given in the dispositif and the line is shown on Map A published with this Award.
91 ILR 543 678
As the scale of British Admiralty Chart 2889 is too small to allow of its being used as
a definitive document it must be considered as an illustrative Chart. The description of
the maritime boundary given in this Award and the co-ordinates of points B to H on
that boundary given in this Award are to be considered as definitive. The definitive
position of point A, the coastal terminus of the land boundary, is as determined in the
description of the land boundary in the dispositif of this Award.
Commencing at position A below, the maritime boundary shall be a series of
geodesic lines joining successively the positions the coordinates of which are given
below:
A) 25° 19′ 35″ N 55° 21′ 14″ E
B) 25° 21′ 32″ N 55° 18′ 14″ E
C) 25° 22′ 18″ N 55° 16′ 19″ E
D) 25° 25′ 23″ N 55° 12′ 53″ E
E) 25° 39′ 26″ N 54° 58′ 21″ E
[267] thence along arcs of 12 nautical miles radius which intersect at the positions of F,
G and H, the co-ordinates of which are given below, until the intersection of a
boundary line, at a position yet to be determined, between Iran and the United Arab
Emirates.
F) 25° 39′ 43″ N 54° 57′ 23″ E
G) 25° 44′ 18″ N 54° 50′ 21″ E
H) 25° 44′ 49″ N 54° 49′ 57″ E
All co-ordinates are on Revised Nahrwan Datum. A nautical mile is 1852 metres in
length. A list of Basepoints is given in the Appendix to this Award.
[268] AWARD
The Court of Arbitration
having considered all of the evidence and the arguments of the Parties, and their
Submissions,
has determined
in accordance with the rules of international law applicable in the matter as between the
Parties and for the reasons set out above the land and the maritime boundary between
the Emirate of Dubai and the Emirate of Sharjah.
On the land, as far as it can be described in words, the Court decides by two votes to
one:
679 91 ILR 543
that the boundary commences at the coastal terminus point A, the Universal Transverse
Mercator co-ordinates of which are 2801880 North and 334303 East; thence, following the
low water line of the Al Mamzer peninsula, to point 1, the Universal Transverse Mercator coordinates
of which are 2801250 North and 334240 East; thence by a straight line to point 2,
the Universal Transverse Mercator co-ordinates of which are 2800100 North and 333585
East; thence by a straight line to point 3, the Universal Transverse Mercator co-ordinates of
which are 2798820 North and 333965 East; thence by a straight line to Nahada Amair, the
Universal Transverse Mercator co-ordinates of which are 2798535 North and 335150 East.
The Court further decides unanimously:
that the boundary proceeds in a straight line from Nahada Amair to Arqub Rakan, the
Universal Transverse Mercator co-ordinates of which are 2794465 North and 347700 East.
The Court further decides unanimously:
that the boundary proceeds from Arqub Rakan to Chilah, the Universal Transverse Mercator
[269] co-ordinates of which are 2790655 North and 352700 East, leaving Arqub Alam
(Nauf) entirely within Sharjah, and Tawi Bida'at within Dubai;
from Chilah to Naqdat az Zamul, the Universal Transverse Mercator co-ordinates of which
are 2788000 North and 359625 East, leaving Tawi Tai entirely within Sharjah;
from Chilah thence to Tawi bil Khabis, the Universal Transverse Mercator co-ordinates of
which are 2788425 North and 361475 East, which is divided between Sharjah and Dubai.
From Tawi bil Khabis, the boundary turns south to Mirial, the Universal Transverse
Mercator co-ordinates of which are 2772380 North and 364000 East, leaving Arafi entirely
within Sharjah and Jiza'at bin Ta'aba and Arqub Dhabian within Dubai;
from Mirial to Khobai, the Universal Transverse Mercator co-ordinates of which are
2768875 North and 361400 East;
and thence to Qawasir, the Universal Transverse Mercator co-ordinates of which are
2762210 North and 361450 East;
thence continuing southwards, so as to leave Tawi Mghram and Bedirat Mghram entirely within
Sharjah, and Sih Atham and Bada Hilal within Dubai, to Al Alam, the Universal Transverse
91 ILR 543 680
Mercator co-ordinates of which are 2748795 North and 363140 East;
and thence by a straight line to Arqub Salama, the Universal Transverse Mercator coordinates
of which are 2735580 North and 367640 East, so as to leave Bada Zigag and
Muwaihi Daij entirely within Sharjah, and Rummaiyah within Dubai.
So far as the land boundary is concerned Map A and Maps 1, 2, 3, 4, 5 and 6 attached
to this Award are an integral part of this Award.[41]
The Court further decides by two votes to one
that the maritime boundary shall be based upon a series of geodesic lines joining successively
the positions the co-ordinates of which are given below:
A) 25° 19′ 35″ N 55° 21′ 14″ E
B) 25° 21′ 32″ N 55° 18′ 14″ E
[270] C) 25° 22′ 18″ N 55° 16′ 19″ E
D) 25° 25′ 23″ N 55° 12′ 53″ E
E) 25° 39′ 26″ N 54° 58′ 21″ E
thence along arcs of 12 nautical miles radius which intersect at the positions of F, G and H,
the co-ordinates of which are given below, until the intersection of a boundary line, at a
position yet to be determined, betweem Iran and the United Arab Emirates:
F) 25° 39′ 43″ N 54° 57′ 23″ E
G) 25° 44′ 18″ N 54° 50′ 21″ E
H) 25° 44′ 49″ N 54° 49′ 57″ E
All co-ordinates are on Revised Nahrwan Datum. A nautical mile is 1852 metres in
length.
The Chart attached to this Award is illustrative.[42]
[271] Done in English in London This Nineteenth Day of October, 1981.
Signed: Professor Philippe Cahier, President, Mr John L. Simpson, Professor
Kenneth R. Simmonds.
Mr Simpson appends a Dissenting Opinion to the Award of the Court.
[41. An illustrative sketch combining these maps will be found in the fold out at the end of this volume.]
[42. See p. 700.]
Annex 197
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Annex 197
Volume VIII - Annexes 186-197