Three aspects of the law

of the sea

Islands, delimitation and dispute

settlement

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

278 0308-597X/79/040278-1 1 $02.00 c 1979 IPC Business Press

 pending and are acquiring the dimension of political and even military
confrontation.’

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.

MARINE POLICY October 1979 279

 The present Conference evolved out of the pioneering work of the
UN Committee on the Peaceful Uses of the Seabed and the Ocean
Floor Beyond the Limits of National Jurisdiction (Seabed
Committee). It is aimed at reexamining and, where appropriate,
recasting virtually all aspects of the law of the sea, and combines the
element of codification with that of progressive development, with
emphasis on the latter. It is thus a lawmaking conference in the full
sense of the term.
In significant respects, new and revolutionary concepts have been
introduced and elaborated, such as the common heritage of mankind
and the EEZ. On the other hand, it has been found after extensive
examination that other aspects of the law have stood the test of time
and should remain as before, or minor modifications made to adjust
them to the overall scheme.’ Novelty is not necessarily synonymous
with progress. On the whole, the course UNCLOS has taken so far is
characterized by a judicious blending of elements of progressive and
even revolutionary change in some respects with those of stability and
continuity in other respects, thus helping to preserve a balance
between conflicting claims and interests.

Development of the ICNT

The Conference commenced in December 1973 and, at the time of
writing, is in its eighth session. One session considered procedure, the
rest substantive issues. In addition to the actual sessions of the
Conference, numerous regional. intergovernmental and non-
governmental meetings take place, parallel to the official meetings and
intersessionally. All are indicative of the complexity of the issues
involved and the importance which states attach to them.
The Conference was convened against the background of the
recent transformation of the international community because of
many new states coming into existence and advances in technology
which brought opportunities for obtaining vast new resources from
the sea and the seabed. Technological advances have profoundly
affected the expectations of states in general as to how the
international legal system should define, protect and harmonize their
interests in the seas. More particularly, newly independent states
which did not have the opportunity of participating in the formulation
of the traditional law of the sea feel that they should play a full role in
the process of moulding the contemporary law of the sea in a way
which safeguards and promotes their political and economic
viewpoints. Thus UNCLOS, in having to reconcile competing
economic, political, scientific, strategic and even ideological factors,
has acquired dimensions far beyond that of mere lawmaking. The
many complex problems with which UNCLOS has been confronted,
combined with operating procedures that are unusual for a
lawmaking conference, largely explain the slow rate of progress.
Procedural aspects of UNCLOS and the legislative history of the
ICNT are not considered here. Suffice it to say that at the Caracas
session in 1974 the labyrinth of multiple proposals submitted to the
Seabed Committee were classified and relatively simplified in the
Main Trends Papers. The 1975 Geneva session marked a major step
forward through the introduction of the Single Negotiating Text
(SNT) of each of the three main Committees. The spring 1976 session
in New York saw a further advance with the issue of the Revised
3 tg tile regime of islands Single Negotiating Texts (RSNT). This followed detailed discussion in

280 MARINE POLICY October 1979

 Three aspects of the law of the sea
each of the Main Committees of UNCLOS and progress on dispute
settlement after the debate on this subject in Plenary. The summer
1976 New York session marked the further maturing of the RSNTs,
especially those of Committees II and III, and at the same time
enabled refinement of the SNT on Dispute Settlement, which recently
took the form of an RSNT. The Sixth Session of UNCLOS
culminated in the issuance of the comprehensive Informal Composite
Negotiating Text (ICNT) which encompasses the previously existing
negotiating texts in a single document.
Although the ICNT is expressly stated to be ‘informal in character’
and to provide only ‘a basis for negotiation without affecting the right
of any delegation to suggest revisions in the search for a consensus’,4
in reality the dynamics of UNCLOS are such that its provisions have
reached an advanced stage of maturity and are not likely to be
changed drastically. This is why they are taken as the basis for
examination.

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:

1. An island is a naturally formed area of land, surrounded by water, which is above

water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of the present Convention applicable to other land
territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf.

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.

MARINE POLICY October 1979 281

 Legal provisions of Article I2 I
Article 12 1 contains three main elements: the definition of an island;
the fundamental proposition that the zones of maritime jurisdiction of
islands are determined in the same way as other land territory; and
the exception to this proposition with regard to ‘rocks’ concerning the
EEZ and continental shelf.

Definition. In this Article the definition is identical with that in Article

10 paragraph 1 of the 1958 Geneva Convention on the Territorial Sea
and Contiguous Zone, which was elaborated by the International
Law Commission and had been framed in accordance with the
traditionally held view. This definition marks the rejection of the
attempt, systematically pursued by a number of states in the Seabed
Committee and UNCLOS itself, to establish different categories of
islands with correspondingly different rights to zones of maritime
jurisdiction.

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

282 MARINE POLICY October 1979

 zones of islands of a small size or population be questioned while, for
example, the same zones of continental countries consisting of largely
desert, or otherwise underpopulated or unpopulated, have not been
open to dispute? Irrespective, however, of the merits of these
arguments and counterarguments, it may be expected that additional
efforts will be made during UNCLOS to modify this provision,
although, in my view, it has little chance of success because the trend
is clearly in favour of the position presently stated in paragraph 2 of
Article 12 1.

Rocks. Paragraph 3 of Article 12 1 is also expected to create

additional arguments but is unlikely to be changed drastically. Unlike
the 1958 Territorial Sea Convention, a distinction is made between
‘islands’ and ‘rocks’, the latter being described as incapable of
‘sustaining human habitations or economic life of their own’. In
practical terms, this distinction may give rise to difficulties over
interpretation and borderline cases may occur where there can be
room for difference of opinion. In such cases, it is suggested that the
dispute settlement system can usefully come into play.
Departure from the traditional position in the case of rocks is in
any case more apparent than real. First, the exception does not cover
the territorial sea or the contiguous zone, hence islands which are no
more than ‘rocks’ continue to generate these zones of jurisdiction.
Also, under the ICNT the breadth of the territorial sea over which
sovereignty exists extends up to 12 miles, unlike the situation in 1958.
Second, under the 1958 Convention ‘rocks’ generated continental
shelf, the applicable criteria being depth and exploitability. The
criteria of distance and natural prolongation under the present
definition are considerably wider. Thus, in practical terms, this
solitary exception to the principle in paragraph 2 of Article 12 1
should not be considered of major significance. Conversely, to insist
on full rights of a 200-mile EEZ and the equivalent continental shelf
area on the basis of distance and natural prolongation for rocks, may
reasonably be criticized as unduly excessive and, to that extent,
indefensible. On the whole, therefore, the exception in paragraph 3 of
Article 12 1, when properly applied and interpreted, does not
materially affect the fundamental principle set out in paragraph 2 of
this Article. In my view, this principle is the right one.

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.

MARINE POLICY October 1979 283


’ Geneva Convention on the Territorial
Sea and the Contiguous Zone 1958,
Article 12, paragraph 1.
BEg the proposal by Yugoslavia.
9 Eg proposal L19 by Cyprus, March
1973.
284
This Article is identical with the equivalent provisions of the earlier
negotiating texts (the SNT and RSNT) and the 1958 Geneva
Convention on the Territorial Sea and Contiguous Zone.’ It states the
customary rule evolved through the decisions of tribunals, the
writings of publicists and the practice of states as reflected in bilateral
agreements and as incorporated in the 1958 Geneva Convention. In
essence, it accepts the principle of the median line between opposite or
adjacent states, unless modified by agreement between the parties
concerned and in the absence of historic title or other special
circumstances.
The median line principle as the general rule of delimitation has
much to recommend it. In fact, it was argued during the 1958
Conference8 that the qualifying circumstances should be omitted
because it introduced an element of uncertainty and would thus give
rise to disputes. The same line of reasoning has also been followed
during UNCLOS and earlier, during the Seabed Committee’s
deliberations.y Conversely, it was proposed to delete or dowilgrade the
reference to the median line and substitute a reference to ‘eqi!itable
principles including the presence of islands’. As stated above neither
opposing trend prevailed and the text remains as in the 1958 Geneva
Convention.
What are the exact meanings of ‘historic title’ and ‘oti~er- special
circumstances’? Because no two geographical situations iti the world
can be identical it seems that the term ‘special circumstances’ was
intended to be the exception rather than the rule and muat therefore
be interpreted restrictively. The existence of islands does not per ye
constitute ‘special circumstances’, because, as stated above. islands
are in the same position as other land territory. But islands can, of
course, come within the rubric of ‘special circumstances’ in the same
way as other land territories if it is so alleged by a party to the
dispute. This party would presumably have to prove that this was so.
If this contention is not accepted on a bilateral basis by the other
party through negotiations or otherwise, it follows that the matter
should be settled by appropriate third party adjudication. Indeed, the
existence of additional judicial practice in this regard would provide
an authoritative guideline to what ‘special circumstances’ are, because
the law at present is far from certain.
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
for the application of the median line without any qualification
referring to historic title or special circumstances.
The reasoning behind this omission is not clear. A possible
explanation is that, in the light of the new concept of the EEZ, the
contiguous zone concept would be submerged in the latter, as some
MARINE POLICY October 1979
 Three aspects of the law of the sea
states have suggested during UNCLOS. However, this is an
inadequate explanation. As long as the concept remains in the ICNT,
it should be accompanied by a delimitation provision based on the
application of the median line principle, as in the 1958 equivalent.
This was proposed by a number of states during the debate on the
relevant Article. The omission can only be described as a lacuna,
especially because no explanation for it is furnished in any official
documents of UNCLOS.

Exclusive economic zone

The new concept of the exclusive economic zone (EEZ) is described
in Part V of the ICNT as an area beyond and adjacent to the
territorial sea of a coastal state which does not extend beyond 200
nautical miles from the baselines from which the breadth of the
territorial sea is measured.
Delimitation of the EEZ between adjacent or opposite states is
dealt with in Article 74 of the ICNT which states:
1. The delimitation of the exclusive economic zone 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.
3. Pending agreement or settlement, the States concerned shall make provisional
arrangements taking into account the provisions of paragraph 1.
4. For the purposes of the present Convention, ‘median or equidistance line’ means
the line every point of which is equidistant from the nearest points of the baselines
from which the breadth of the territorial sea of each State is measured.
5. Where there is an agreement in force between the States concerned, questions
relating to the delimitation of the exclusive economic zone shall be determined in
accordance with the provisions of that agreement.

This text is essentially the same as that of the RSNT. However, it

differs from the SNT in one important regard - namely, that
paragraph 3 of that Article provided that ‘pending agreement, no
state is entitled to extend its exclusive economic zone beyond the
median line or the equidistance line’. Since the concept of EEZ is a
new one, no equivalent reference to it is found in the 1958 Geneva
Conventions or in customary law.
Article 74 and the equivalent Article 6 1 of the SNT and Article 62
of the RSNT have been the subject of extensive and often acute
controversy during UNCLOS. One set of proposals” aimed at
strengthening the reference in paragraph 1 to the role of the median
line by making it a general, though not absolute, rule. Another set of
proposals” sought to remove altogether any reference to the median
“‘This was put forward by Cyprus and line and to stress ‘equitable principles’. In one proposal and, more
other states at the spring 1976 session in recently, in Negotiating Group 7, a distinction was made between the
New York.
“This was sponsored by Ireland and rules applicable to ‘opposite’ as distinct from ‘adjacent’ states,
other states. stressing that the median line is easier to apply in the former case.12
” Indeed, this had been acknowledged by The group stressing equitable principles placed particular emphasis
the International Court of Justice in its
judgment in the North Sea Confinenral on deleting or altering the interim application of the median line
Shelf Cases 1969. It is also supported by principle in paragraph 3 of Article 6 1 of the SNT. This resulted in the
the more recent Channel islands
change of wording in paragraph 3 of Article 62 of the RSNT and an
arbitration award.
” A/CONF 62/w? Et/Rev l/Part II, explanation for the change by the Chairman of the Second
paragraph 12, 1976. Committee,i3 although, on the basis of the positions expressed in the

MARINE POLICY October 1979 285

Three aspects yf‘the law of the sea
I4 It has been argued, however, that the
median line principle is in itself an
equitable principle, and thus the matter is
one of interpretation.
I5 This has been proposed by several
countries, including Cyprus.
286
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.
3. Pending agreement or settlement, the States concerned shall make provisional
arrangements, taking into account the provisions of para 1.
4. Where there is an agreement in force between the States concerned, questions
relating to the delimitation of the continental shelf shall be determined in
accordance with the provisions of that agreement.
MARINE POLICY October 1979
 Three aspects of the law of the sea

This text is in effect identical to Article 74. Hence the debate at

UNCLOS and in Negotiating Group 7 takes place on both Articles
74 and 83 simultaneously to avoid duplication, because the issues are
considered to be basically the same. Although this is largely true it is
not entirely so. In the case of economic zone delimitation, the median
line is easier to apply because the ‘distance’ criterion is the only one
applicable; in the case of continental shelf delimitation the matter is
more complicated because of the applicability of the ‘natural
prolongation’ factor. Be that as it may, arguments regarding Article
83 have been used with Article 74; the same conflicting positions exist
and the results have been the same. Thus, the same observations
apply to Article 83 as to Article 74, with the addition that, with
regard to the median line principle, the present position falls short of
the equivalent provision of the 1958 Convention.i6
The present situation undoubtedly needs improvement both in
terms of the substantive rule and in terms of the obligation for third
party settlement. The whole issue remains open for further
negotiation.

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:

” Geneva Convention on the Continental
Shelf 1958, Article 6.
I7ICNT, Article 297, paragraph 1(a).
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.
Similarly, concepts such as ‘special circumstances’ in Article 15
and terms such as ‘rocks’ in Article 12 1 require clarification and third

MARINE POLICY October 1979 287

Three aspects oj the law of the seu
party adjudication when a dispute arises.
It did not prove possible in the 1958 Conference to adopt the
suggestion of the International Law Commission (ILC) for making
the whole Convention on the Continental Shelf subject to
adjudication by the 1CJ.r’ The present conference is broader than that
of 1958 and the range of potential disputes has increased because of the
topics and new rules which have been introduced: it is hoped that an
effective third party dispute settlement procedure to be used on a
comprehensive basis will emerge from UNCLOS. This ought to be
easier to achieve. The choice of tribunals is much wider than in 1958
because, in addition to the ICJ, there is now also the possibility of ad
hoc tribunals and, more importantly, a special Law of the Sea tribunal
provided for in the ICNT.”

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’.

288 MARINE POLICY October 1979