of the sea
Andreas J. Jacovides
The author examines the current The legal regime of islands, delimitation of zones of maritime
legal regime relating to islands, jurisdiction between states of which the coasts are opposite or
delimitation of zones of maritime adjacent, and dispute settlement are distinct topics forming different
jurisdiction and dispute settlement. aspects of the law of the sea. However, in particular situations they
The development of provisions
may, and in practice often do. interact with each other. The topics of
relating to these topics is described
islands and delimitation are relatively narrow aspects of the
and the present status as set down
substantive law of the sea. Although dispute settlement is of a much
in the Informal Composite
Negotiating Text (ICNT) analysed
broader nature, it is particularly relevant in solving problems relating
from a legal perspective. Three to these topics, especially the latter.
propositions relating to islands in The importance of rules of international law relating to islands and
maritime jurisdiction, the median delimitation has grown considerably because of recent developments
line principle in delimitation, and and current trends. In fact, it has grown in proportion to the increase
third party dispute settlement of size and change in type of zones of maritime jurisdiction (and the
procedures, are discussed and corresponding increase of economic resources and strategic and other
applied to the current provisions. implications), compared to the zones of jurisdiction set out in the
Their adoption by UNCLOS and 1958 Geneva Conventions on the Law of the Sea. In 1958 there were
their value in facilitating the
generally 3-mile territorial seas and 12.mile contiguous zones, the
regulation of these issues are
concept of the exclusive economic zone (EEZ) was still unknown and
considered.
continental shelf zones depended on the relatively modest ‘depth’ and
‘exploitability’ criteria. Now there are usually 12.mile territorial seas,
24.mile contiguous zones, 200.mile EEZs and 200-mile (in certain
At the time of writing Andreas cases probably larger) continental shelf zones under the criteria of
Jacovides was Ambassador ‘distance’ and ‘natural prolongation’.
Extraordinary and Plenipotentiary, Because of the high stakes involved under these new conditions,
Permanent Mission of the Republic of
new disputes between states over their corresponding rights are bound
Cyprus to the United Nations, 820
to arise, multiply and intensify. Existing disputes also have become
Second Avenue, New York, NY
10017,
more acute. Thus, dispute settlement becomes proportionately much
USA. He may now be
contacted at the Embassy of Cyprus,
more important, the more so if the substantive rules to be adopted
22 1 1 R Street, NW, Washington, DC finally prove to be vague and imprecise, thus lending themselves to
20008, USA. He has been head of subjective interpretations by the interested parties. This is especially
the Cyprus delegation to UNCLOS III true in the case of delimitation between opposite or adjacent states
since 1973 and Vice-Chairman of the and is already becoming evident in a number of situations, some of
Third Committee of the Conference. which have been taken to third party adjudication. Others are still
Three propositions
Conceptually, each issue is capable of being regulated by the
application of a fundamental proposition to each case.
0 Proposition I. There should be no distinction between islands and
other land territories in determining zones of maritime
jurisdiction.
0 Proposition 2. The general rule of delimitation between opposite
or adjacent states should be the median or equidistant line.
0 Proposition 3. Any dispute arising out of the substantive
provisions of the proposed Law of the Sea Convention and, more
specifically for the purposes of this article, those relating to
islands and delimitation, should be subject to compulsory third
party settlement entailing a binding decision.
While the merit and basic validity of each proposition in terms of
objectivity, orderliness and predictability, are self-evident, each is
subject to exceptions and qualifications, and the outcome, in terms of
their inclusion in the Convention under preparation, is not certain.
The opposing view may be summarized as follows:
0 The entitlement of islands to zones of maritime jurisdiction
should depend on criteria such as size, population, geographical
location etc.
0 ‘Equitable principles’ should be applied by agreement between the
states concerned in the case of delimitation of maritime zones
between opposite or adjacent states.
0 There should be no compulsory third party dispute settlement
procedures, especially when it comes to matters of delimitation,
because these involve sensitive issues of sovereignty and thus do
not lend themselves to third party adjudication.
This article examines the present status of the law on each topic as it
has developed in the third UN Conference on the Law of the Sea
This article is an edited version of a paper
given as a lecture to the Columbia Society (UNCLOS III), as reflected in the corresponding provisions of the
of International Law, Columbia University Informal Composite Negotiating Text (ICNT).* This is considered in
Law School, New York City, USA,
the light of the existing background and present trends. Conclusions
14 February 1979. The views expressed
in this article are the personal views of the are of necessity provisional pending the final outcome of the
author and do not necessarily represent Conference and the definitive adoption of the Law of the Sea
those of the Cyprus government.
Convention. However, I first consider UNCLOS III in broader
perspective to explain why the corresponding provisions of the ICNT
’ Current examples are: the Channel are taken as the basis for specific examination.
Islands arbitration between the UK and
France; the Beagle Channel issue
between Chile and Argentina; the Aegean
dispute between Greece and Turkey; the
Background and nature of UNCLOS III
situation in the China Sea; the boundary
dispute between the USA and Canada;
The international law of the sea which existed prior to the present
the differences between Colombia and Conference consisted of customary rules which evolved over many
Venezuela: the differences between centuries and were codified and developed in the four Geneva
Tunisia and Libya; and the delimitation
issue between Norway and the USSR.
Conventions of 1958. These rules, both customary and conventional,
These are only a few examples of a were elaborated further through the practice of states, through
growing list. judicial decisions, including decisions of the International Court of
2 A/CONF 62/WP 10 issued by the
President of the Conference, 15 July
Justice (ICJ), and through the writings of publicists. The totality of
1977 these rules formed the traditional law of the sea.
Regime of islands
The basic position is stated in Part VIII of the ICNT under the
heading ‘Regime of Islands’ in Article 12 1, which is the sole Article in
this part. This states:
The term ‘islands’ occurs also in the context of several other Articles
of the ICNT.5
The so-called ‘transitional provision’ of the ICNT (Part XVI),
which applies not only to islands but also to continental territories, is
an important consideration in the present formulation of the Article
on islands, in the light of developments during UNCLOS and earlier
during the deliberations of the Seabed Committee. It provides an
ingenious way of solving a number of actual and potential problems
of a primarily political nature without distorting the rules of the law of
the sea. Such problems arise from pressures from participating
delegations aiming to pursue, in some cases, narrow nationalistic
objectives and, in other cases, bona jide wider humanitarian and
political concerns. In this manner, these political objectives are
4 A/CONF 62,f’h’P lo/Add 1. properly insulated from the process of formulating the rules of the law
5 Among these are Article 6 (reefs), Article of the sea, while duly safeguarding the rights of the inhabitants of
7 (straight baselines), Article 10 (bays). such territories and the application of the Charter and UN resolutions
Article 11 (ports), Article 60 (artificial
islands, installations and structures in the towards solving territorial disputes. The legislative history and
EEZ). and Article 80 (artificial islands, opposing arguments put forward in this regard are not discussed here,
installations and structures in the
but the net result of the inclusion of the transitional provision has
continental shelf). The topic of artificial
islands presents a number of interesting been to satisfy legitimate concern over the entitlement of the
questions that are beyond the scope of inhabitants of colonial territories to the resources of the territories
this article. The same is true of the concerned, be they insular or continental, without affecting the legal
concept of archipelagos that has evolved
recently, which is set out in Part IV rule regarding islands in general. In my view, this has been the right
(Archipelagic states) of the ICNT. approach.
Island zones. The proposition that the same criteria apply for
determining the maritime zones of jurisdiction of islands as for other
land territories also follows the traditional line. It had always been
considered in customary law that islands generated a territorial sea.
This was expressly recognized in Article 10 paragraph I of the 1958
Convention. With regard to the continental shelf of islands,” Article 1
of the 1958 Geneva Convention on the Continental Shelf expressly
stated that ‘for the purposes of this Article the term “continental
shelf’ is used as referring to . . . (a) the seabed and sub-soil of similar
submarine areas adjacent to the coasts of islands’. This was also
recognized to be the customary rule of international law by the ICJ in
the North Sea Continental Shelf Cases 1969. Paragraph 2 of Article
12 1 of the ICNT simply recognized the applicability of this with
regard to the EEZ.
The position stated in paragraph 2 marks the acceptance of the
views of a number of states participating in the Conference, including
several island states, that no distinction whatsoever should be made
between islands, irrespective of their size, population or political
status, and the continental shelf masses, and that the criteria for
determining maritime zones of jurisdiction must apply to islands in
the same way as they apply to continental land masses. The same
states also argued that, if any discrimination was made between
islands on the one hand and continental land masses on the other, this
should be in favour rather than at the expense of islands, because
ordinarily the population of the latter are dependent on the resources
of the sea for their survival and economic development, whereas the
population of continental territories could draw on the resources of
the hinterland. Conversely, the position reflected in paragraph 2 of
Article 121 marks the rejection of the view persistently put forward
by other states that the maritime spaces of islands should be
determined on the basis of the special circumstances of each, such as
size, population, contiguity to the principal territory, the physical,
geological and geomorphological area involved, the general
configuration of the respective coasts, and even whether they were
‘situated on the continental shelf of another state’.
A valid reply is that any apparent or real inequity that might result
‘The term ‘continental’ is, in fact, a
misnomer, because the shelf can be if such views were not accepted (as they were not) would not be more
insular as much as continental. than other inequities created by nature. Why should the maritime
Delimitation of zones
Territorial sea
The juridical status of the territorial sea, the airspace over the
territorial sea and its seabed and subsoil, is set out in Part II, Article 2
of the ICNT. The coastal state exercises sovereignty over this zone
which, under Article 3, can be extended to a limit not exceeding 12
nautical miles. Within the same part of the ICNT, Article 15, entitled
‘Delimitation of the territorial sea between states with opposite or
adjacent coasts’, is directly relevant. It provides that:
Where the coasts of two States are opposite or adjacent to each other, neither of the
two States is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of each
of the two States is measured. This article does not apply, however, where it is
necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance with this provision.
Contiguous zone
The concept of a contiguous zone within which the coastal state may
exercise the control necessary to prevent and punish infringement of
its customs, fiscal, immigration or sanitary regulations within its
territory or territorial sea is dealt with briefly in Article 33 of the
ICNT. This provides that the contiguous zone may not extend
beyond 24 nautical miles from the baselines from which the breadth
of the territorial sea is measured. However, it is worth noting that no
provision is made in the ICNT (or indeed in the earlier SNT or
RSNT) regarding delimitation of the contiguous zones between
opposite or adjacent states. This is in marked contract to the
equivalent provision of the 1958 Geneva Convention which provides
’ Geneva Convention on the Territorial for the application of the median line without any qualification
Sea and the Contiguous Zone 1958, referring to historic title or special circumstances.
Article 12, paragraph 1. The reasoning behind this omission is not clear. A possible
BEg the proposal by Yugoslavia.
9 Eg proposal L19 by Cyprus, March
explanation is that, in the light of the new concept of the EEZ, the
1973. contiguous zone concept would be submerged in the latter, as some
debate and the operation of the rule of silence, it can be disputed that
such change was reasonably warranted. This change removes the
interim application of the median line through a tautological reference
to paragraph 1 of the same Article, and has further watered down the
application of the objective criterion of the median line and
correspondingly increased the danger of creating disputes.
Debate has continued in the past three sessions of UNCLOS and
efforts have been made in Negotiating Group 7 to find an acceptable
compromise between the two groups - one stressing the median line
as the basis for delimitation and the other equitable principles. Indeed,
this has proved to be one of the more difficult substantive issues
dividing UNCLOS.
Irrespective of the outcome, the net result of the present wording of
Article 74 is that emphasis is put on the element of agreement in
accordance with equitable principles, taking all relevant circum-
stances into account. Although the median or equidistant line is
mentioned as a principle to be employed where appropriate, its status
as the general rule and the starting point for negotiations has been
reduced to some extent, compared to the position it has occupied in
delimitation of the territorial sea and the contiguous zone.
Conversely, subjective criteria such as ‘equitable principles’ and
‘relevant circumstances’ are given increased prominence.14
The result has been the introduction of a subjective element of
uncertainty, lack of predictability and thus an increased likelihood of
disputes. If this text remains unaltered, the way to limit these potential
dangers, especially for smaller and weaker states whose bargaining
positions is limited, is, first, to interpret ‘agreement’ as meaning an
agreement freely arrived at without coercion, and second, to make
compulsory the third party settlement of disputes which are bound to
arise in this respect, either through Part XV of the ICNT on Dispute
Settlement and/or by specific reference to compulsory third party
settlement entailing binding decision in Article 74 itself.i5
Continental shelf
Under Article 76 of the ICNT the continental shelf is defined as the
seabed and subsoil of submarine areas that extend beyond the
territorial sea, throughout the natural prolongation of the land
territory to the outer edge of the continental margin, or to a distance
of 200 nautical miles from baselines from which the breadth of the
territorial sea is measured, where the outer edge of the continental
margin does not extend up to that distance.
Delimitation of the continental shelf between adjacent or opposite
states is dealt with by Article 83 of the ICNT, which states:
1. The delimitation 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.
2. If no agreement can be reached within a reasonable period of time, the States
concerned shall resort to the procedures provided for in Part XV of the present
Convention.
I4 It has been argued, however, that the 3. Pending agreement or settlement, the States concerned shall make provisional
median line principle is in itself an
arrangements, taking into account the provisions of para 1.
equitable principle, and thus the matter is
one of interpretation.
4. Where there is an agreement in force between the States concerned, questions
I5 This has been proposed by several relating to the delimitation of the continental shelf shall be determined in
countries, including Cyprus. accordance with the provisions of that agreement.
Settlement of disputes
The various aspects of dispute settlement as set out in the ICNT are
not considered in detail, but I suggest that an effective dispute
settlement system is an essential corollary of the substantive rules
incorporated in the Convention. More specifically, effort should be
exerted to ensure that it is adopted in reference to delimitation.
Provision is made in the ICNT” for an exception to an exception
on issues of delimitation and is relevant here. The text states:
Article 297 - Optional Exceptions
1. Without prejudice to the obligations arising under section 1 of this Part of the
present Convention, a State Party when signing, ratifying or otherwise expressing
its consent to be bound by the present Convention, or at any time thereafter, may
declare that it does not accept any one or more of the procedures for the settlement
of disputes specified in the present Convention with respect to one or more of the
following categories of disputes:
(a) Disputes concerning sea boundary delimitations between adjacent or opposite
States, or those involving historic bays or titles, provided that the State making such
a declaration shall, when such dispute arises, indicate, and shall for the settlement of
such disputes accept a regional or other third party procedure entailing a binding
decision, to which all parties to the dispute have access; and provided further that
such procedure or decision shall exclude the determination of any claim to
sovereignty or other rights with respect to continental or insular land territory:
The whole matter has been the subject of debate and controversy and
is currently being considered by Negotiating Group 7 of the
Conference. Its importance is self-evident because delimitation is
especially likely to lead to disputes. Thus the need for an effective
dispute settlement procedure is essential. As indicated above, an
increase of disputes on matters of delimitation can be expected;
indeed, this has already become evident because of increased zones of
jurisdiction with increased overlap and the vagueness and subjectivity
of concepts such as ‘equitable principles’, which were introduced in
the substantive rules through Articles 74 and 83 for the delimitation
of the economic zone and the continental shelf.
” Geneva Convention on the Continental
Shelf 1958, Article 6.
Similarly, concepts such as ‘special circumstances’ in Article 15
I7ICNT, Article 297, paragraph 1(a). and terms such as ‘rocks’ in Article 12 1 require clarification and third
Conclusion
I stated above that the topics examined could be satisfactorily dealt
with through the application of three fundamental propositions.
Examination of the relative Articles of the present text shows that
Proposition I has been applied, subject to the qualified exception of
rocks as distinct from islands. Proposition 2 continues to be the
general rule with regard to the territorial sea and contiguous zone (if
retained) delimitation, subject, in the former case, to historic title or
special circumstances and, in the latter, to no express reference being
made in the ICNT. However, with regard to delimitation of the
continental shelf and the economic zone, the median line principle is
to be employed where appropriate in reaching agreement on equitable
laThis proposal was accepted by the
principles, taking all relative circumstances into account. This
Committee but not by the Plenary of the
1958 Geneva Conference. represents a weakening of the fundamental proposition. Finally,
ԦThis is proving, however, to be a very although efforts are still being made to apply Proposition 3 in the
difficult undertaking. More particularly.
Convention as a whole, the aspect of delimitation disputes may have
with regard to delimitation disputes, the
sensitivity of states (including one or more to be covered through an exception to an exception, or even through a
of the major powers) in submitting issues procedure falling short of entailing a binding third party decision.
of national sovereignty to third party
This has been the price paid for working on a complicated and
adjudication has resulted in the matter
being dealt with by way of an exception to ambitious undertaking such as UNCLOS III through compromises
an exception fop cit. Ref 17). This matter is necessitated by the objective of reaching overall agreement by
still open to further negotiation at
consensus. The net result may still prove to be constructive, although
UNCLOS.
it may not be fully streamlined or satisfactory.
Andreas J. Jacovides received the
It remains to be seen what the outcome of UNCLOS will be and
degress of MA in Law and LL B in what improvements can be made in these respects. UNCLOS is still
International Law from the University of continuing and it is hoped that a conclusion can be reached in the
Cambridge, and is a Barrister at Law
(Middle Temple, London). He has been a
near future which achieves, for these and other topics, a result based
member of the Cyprus Foreign Service on objectivity, predictability and equity, and that ensures the
since 1960 and at the time of writing was avoidance of international disputes as much as their settlement.
Ambassador Extraordinary and
Plenipotentiary, Permanent Mission of the
Republic of Cyprus to the UN. He is now Postscript
Ambassador of Cyprus to the USA. Among During the Eighth Session of UNCLOS III, held in Geneva
his publications on legal and political
subjects are United Nations peace-
19 March-27 April 1979, Negotiating Group 7, under the
keeping - the role of small states and the chairmanship of Judge Manner of Finland, held a series of meetings
Cyprus experience: reprinted in J.E.S. on the delimitation of the EEZ and the continental shelf, provisional
Fawcett and Rosalyn Higgins fed),
‘International Organization: Law in
arrangements and settlement of disputes in these respects. It ended
Movement’, Oxford University Press, inconclusively. Chairman Manner reported that ‘none of the
Oxford, 1974; and ‘The Cyprus problem proposals made on this subject during the current session had either
and the United Nations’, in Michael
Attalides. ‘Cyprus Reviewed’, Jus Cypri
secured a consensus or seemed to offer a substantially improved
Association, Cyprus, 19 77. prospect for consensus’.