TABLE OF CONTENTS

Geography and History of Claims in the South China Sea

Summary of State Claims in the South China Sea

Background of Sovereignty and Maritime-Boundary Disputes Between China and Vietnam

   Prior to 1969

   1969 to 1985

   1985 to 1991

   1992 to 1995: The Vanguard Bank and Blue Dragon Areas

      Vanguard Bank

      Blue Dragon

The Applicable Principles of International Law

   Maritime Delimitation

   Natural Prolongation

   The 200-Mile Minimum

   Entitlement Beyond 200 Miles

   Criteria for Delimitation

      Equidistance and Proportionality

      The Problem of Small Islands (islets or 'rocks')

      Waiver, Estoppel, Acquiescence

      Historic Title

   Effective Occupation of Islands

This article addresses the question of how the International Court of Justice (ICI) or an international arbitral tribunal,1 applying the international law of the sea, would delimit maritime boundaries in the South China Sea with respect to the seabed and subsoil resources of the areas known as Vanguard Bank and Blue Dragon. The Vanguard Bank area has been licensed by China to Crestone Energy Corporation. The Blue Dragon area has been licensed by Vietnam to Mobil Oil Company and others.2

The article begins with a brief description of the geography of the South China Sea and a history of the claims made by States in the region of the Sea south of 15° north latitude,3 which includes the Vanguard Bank and Blue Dragon areas as well as the Spratlys. Second, the applicable principles of international law are discussed. Third, the legal bases of the Chinese and Vietnamese claims are analyzed in the light of those principles. Finally, the prospects for resolution of the dispute are briefly addressed. The article will appear in two parts, the third and fourth areas being dealt with in the second part.

Geography and History of Claims in the South China Sea

Geographical description of the South China Sea and the Spratlys

The South China Sea is a semi-enclosed sea that is one of the most important strategic basins in the world. The Sea extends from approximately 3° south latitude to 23° north latitude and is surrounded by China, Vietnam, Malaysia, Singapore, Brunei, the Philippines and Taiwan.4 The South China Sea, with a surface area of 1,148,500 square miles, is the world's largest sea. The width of the Sea, from Vietnam across the expanse of the Spratlys to Balabac Island in the Philippines, is approximately 600 miles.5 The Sea supports important shipping routes for the merchant fleets and fishing vessels of Japan, China, Taiwan, Vietnam, Cambodia, Indonesia, Brunei, Malaysia, Singapore and Thailand. More than 70 percent of Japanese oil imports pass through its waters from the Middle East, Brunei, Indonesia and Malaysia. The Sea also contains valuable fishing resources. Since 1969, several studies have suggested that the seabed may also be rich in hydrocarbon resources.6

Much of the South China Sea lies on a shallow continental shelf punctuated by numerous cays, shoals, reefs, islets and sandbars that lie just below or are just above the water's surface. Although portions of the sea are on a deep abyssal plain (which extends to a depth of more than 5,000 metres at the Palawan Trough off the coast of the Philippines), almost half of the Sea has a depth of less than 200 metres.7

The southeastern portion of the Sea includes the Spratlys, a widely dispersed group of features which are, at their closest, more than 600 nautical miles from the Chinese mainland while only 200 miles from Vietnam. Marine charts appropriately label the Spratlys 'Dangerous Ground' or 'Dangerous Group' because of the multitude of barely submerged hazards to ships. Many of them rise sharply from the South China Basin and frequently drop off abruptly to depths of 1,000 metres and sometimes to depths of 3,000 metres. Authorities vary in their estimation of the number of islets and other formations that make up the Spratlys. Van Dyke and Bennett count '33 islands, cays and rocks that are permanently above sea level' in the Spratlys.8 Symmons describes the Spratly group as 'a widely-spread string of some 200 coral reefs, atolls, sand cays and banks.'9 Professor Prescott identified 26 islets and seven 'known rocks,'10 but several of the locations named by Prescott may not in fact be high-tide elevations as is discussed more fully below. In 1992, the US Central Intelligence Agency identified 191 individually named formations in the Spratlys, without specifying which are permanently above water.11 With the aid of consultant cartographers (Professor Joseph Wiedel of the University of Maryland and, independently, Maryland CartoGraphics, Inc.), on the basis of very detailed DMA maps in his possession, the author has identified a total of 26 high-tide elevations in the Spratlys.12 Michael Bennett13 and Dieter Heinzig14 each found only 20.

Informed commentators characterize the Spratlys as incapable of sustaining human habitation or economic life of their own.15 The Legal Adviser for the Department of Foreign Affairs of the Philippines, for example, explains that the 'disputed Spratly Islands are mostly coral reefs which allow only sparse growth of mangroves, shrubs and stunted trees. This area can hardly support human habitation.'16 Van Dyke and Bennett, speaking of the Spratlys and Paracels together, declare that 'almost all have been uninhabited and cannot sustain an economic life of their own.'17 The largest of the Spratlys, Itu Aba Island (now occupied by Taiwan), is less than 0.4 square miles in size.18 A Chinese scholar has concluded that the islets 'are apparently too small to permit permanent settlement.'19 The islet after which the group is named, Spratly, covers a mere 0.15 square miles.20 The total area of all the Spratlys which are above water at mean high tide, taken together, is less than 5 square kilometers.21 Daniel Dzurek, Crestone's consultant, has called the islets 'tiny' and 'of virtually no economic value'.22

Summary of State Claims in the South China Sea

Since the end of World War II, maritime claims to portions of the South China Sea have been made by six States: China,23 Vietnam, the Philippines, Malaysia, Brunei24 and Indonesia.25 The maritime-boundary claims asserted by the Philippines, Malaysia and Indonesia are well known and appear to have remained stable.26

China's claim appears to be extraordinarily broad. Although China has apparently never published the co-ordinates of its claims to the South China Sea, a 1984 bathymetric chart published by the South China Sea Institute, Beijing (hereinafter 'Beijing South China Institute chart'), which is at a scale of 1:3,000,000, shows nine broken lines that set out what China apparently today regards as indicating its claim.27 While the broken lines, standing alone, are susceptible to a variety of interpretations, if they are intended to assert a maritime boundary they indicate that China claims the entire South China Sea with the exception of a narrow belt (varying between 12 and 80 miles in breadth) which it concedes to the other States around the Sea. The alleged 'boundary' appears roughly to track the 200-metre isobath, although with frequent deviations from it.28 Lines connecting the broken lines on the Chinese charts have been published frequently in the literature and are generally understood today to demarcate the maritime area claimed (in some undefined sense) by China, although that understanding is of very recent origin.29

In order to understand the competing claims and the conflict between Vietnam and China, it is necessary to summarize the history of the dispute.

Background of Sovereignty and Maritime-Boundary Disputes Between China and Vietnam

Prior to 1969

Both China and Vietnam claim long historic sovereignty over the Spratlys and Paracels.30 China asserts that the Spratlys have been a part of its territory since as early as the Three Kingdom Period (AD 220 to 265).31 The Chinese government insists that the islets were visited and commercially developed during the next thousand years. Chinese archaeologists claims to have found ancient artifacts on the Paracels, including pottery, utensils, knives, cooking pots and the ruins of living quarters, that provide evidence of long-standing Chinese occupation. Ironically, the Chinese claim to have possessed the Spratlys for nearly two millennia implicitly relies on the expansive claims made by the imperialist Middle Kingdom that had invaded and controlled what is modern-day Vietnam (then known as Annam). Vietnam, like China, claims long-standing possession of the Spratlys based on its own collection of historical documents and maps.32 The two States have engaged in a debate over the meaning and significance of ancient maps and texts that form the basis of each party's claims.

The modern debate over the Spratlys and Paracels begins with the French occupation of IndoChina in the 19th century and the British government's claimed annexation of Spratly Island. The French and the British exchanged diplomatic notes over rights to the islets in the late 19th century. France both claimed and exercised control over the Spratlys during the 1930s, apparently without any protest by China, which had not asserted any claim of its own.33 During World War II the Japanese occupied several Spratlys, using them as military outposts. Japan renounced its claim to the islets at the end of the war. Since that time, China, Taiwan, the Philippines, Malaysia and Vietnam have all made claims to the islets. Although there were disagreements over the relative merits of the parties' claims, the issue was not at the forefront of any state's concern.

Prior to the late 1960s, none of the states bordering the South China Sea had made any claim to the continental shelf. When China issued its Declaration on China's Territorial Sea on 4 September 1958,34 despite the fact that a convention on the continental shelf had just been signed in Geneva, it made no mention of the shelf or of any claims to the shelf.

1969 to 1985

In 1969 a major change occurred. In that year the United Nations Economic Commission for Asia and the Far East reported that 'a high probability exists that the continental shelf between Taiwan and Japan may be one of the post prolific oil reservoirs in the world ....'35 From that time forward, states in the region began taking an increasing interest not only in making claims to the continental shelf, but in staking claims to the numerous islets, rocks, low-tide elevations and submerged reefs that dot the seascape of the South China Sea.

In September 1973, the South Vietnamese government moved to occupy five Spratly locations and declared that 11 such locations would be administered by Phuoc Tuy Province.36 On 11 January 1974, shortly after the South Vietnamese government announced its intention to explore for oil off the Paracels, some of which it then occupied, the Chinese government issued a proclamation asserting its sovereignty over that area. On 20 January 1974, after the South Vietnamese government had rejected China's claim to the Paracels, China sent MIG fighters, warships and several hundred troops to oust the few Vietnamese defenders of the islands. Several soldiers died or were taken prisoner (including one US adviser). Neither the United States nor the Soviet Union took a position on the dispute.37

A few days later, on 30 January 1974, South Vietnam landed 120 soldiers on several uninhabited Spratlys.38 Following the collapse of the Saigon regime in 1975, Hanoi took possession of the Spratly garrisons and asserted claims to both the Spratlys and the Paracels.39

In 1979 China invited foreign oil companies to enter into geophysical-survey agreements for the continental shelf with the China National Oil and Gas Exploration Development Corporation. By 1984, more than 31 companies had signed more than 20 contracts with China; all of them were in waters fairly close to Chinese coasts and none was in the South China Sea south of 16° north latitude.40

1985 to 1991

During the past ten years, the states surrounding the South China Sea have become increasingly aggressive in staking claims to the Spratlys and have posted rival garrisons and scientific observatories on the islets. In 1985, Professor Prescott counted 13 of the Spratlys as then being occupied; Vietnam occupied five (including the feature called Spratly Island), the Philippines occupied seven and Taiwan occupied one.41

The most significant Chinese move in the Spratlys came during the spring of 1988. On 14 March 1988, Chinese gunboats attacked a Vietnamese convoy, with the reported loss of more than 70 Vietnamese soldiers and three transport ships.42 The Chinese then seized several of the submerged reefs or low-tide elevations, converting Fiery Cross Reef into an artificial island complete with an airfield.43 The People's Republic of China has pledged to defend Taiwan's occupation of its sole Spratly, Itu Aba, if Taiwan's occupation is challenged by Vietnam.44

By 1992, only seven years after Professor Prescott counted 13 occupied Spratly locations, the CIA identified 42 locations in the Spratly and Vanguard Bank areas as being occupied. China occupied six; Vietnam, 24 (including Vanguard Bank shoals, Prince Consort Bank and Grainger Bank, which are submerged reefs within the area licensed by China to Crestone); the Philippines, eight; Malaysia, three; and Taiwan still occupied only Itu Aba.45 The increasing interest in occupying these submerged reefs, low-tide elevations and tiny rocks or islets is, of course, not due to any intrinsic value of the damp rocks, scrub brush and guano that lie just above sea-level on some of them, but to the resources that may lie within the surrounding seabed.

1992 to 1995: The Vanguard Bank and Blue Dragon Areas

Relations between Vietnam and China noticeably improved in the late 1980s and through the first years of the 1990s, culminating in the Bandung talks in July 1991 and the re-establishment of diplomatic relations in November 1991. Events during the last four years, however, which largely pertain to oil licenses, have once again created tension.

Although China has made some vague offers to develop the South China Sea jointly,46 it nevertheless promulgated a new law on 25 February 1992 - the Law of the Territorial Sea and the Contiguous Zone - which effectively supplants the 1958 Declaration (to which it does not refer). This 1992 law repeated China's claim to the Spratlys and Paracels (Article 2), renewed China's claim to a 12-nautical-mile territorial sea (Article 3) and added a 12-nautical-mile contiguous zone (Article 4). But, like the 1958 Declaration, it made no reference to the continental shelf, or to any 'historic waters' as the basis of its claim to the South China Sea. There have been reports, however, of an internal Chinese document that has been obtained and translated by the United States wherein Chinese officials declare China's need for sheng cun keng jian - 'survival space' - in the South China Sea.47 The document is said to declare that the South China Sea holds petroleum reserves worth one trillion dollars.48

Vanguard Bank

On 8 May 1992, the Chinese Government signed an oil exploration contract with a small American company named Crestone Energy Corporation. The terms of the contract apparently permit Crestone to explore a 10,000-square-mile block in the Vanguard Bank area (which the Chinese have labelled Wan'an Bei-21). An American Embassy official attended the signing ceremony between the Chinese and Crestone.49 The block is approximately 160 miles from the Vietnam coast and over 600 miles from Hainan Island, the closest undisputed Chinese territory. The Chinese Government simultaneously announced that its navy would be used to protect the block.50

The Crestone contract caused several governments to become concerned about the extreme Chinese territorial claims. In July 1992, President Ramos of the Philippines told an ASEAN meeting that '[w]e cannot postpone the urgent necessity to seriously seek a solution ... lest the unsettled situation lead to perilous developments', and the ASEAN foreign ministers adopted a declaration calling for peaceful resolution of the conflict.51 In its September 1992 meeting in Bandung, the Non-Aligned Movement, over China's opposition, similarly expressed its concern over developments in the south China Sea.52

In 1994 Vietnam was reported to be conducting exploratory drilling in the Vanguard Bank area. Chinese warships were reported to be monitoring this activity.53

Blue Dragon

In late December 1993, Mobil and several other oil companies, including Petrovietnam, agreed to undertake a joint venture to explore the Blue Dragon block, which lies a short distance to the west of the Vanguard Bank area.54 This agreement was the culmination of two years' work wherein Vietnam sought Western partners to conduct oil exploration work off its coast. (A contract between Petrovietnam and the Norwegian-based Nopec had been signed in 1992, which had prompted a protest from Crestone.55) On 19 April 1994, after the lifting of the US trade embargo, Mobil formalized its December 1993 agreement to explore Blue Dragon with Petrovietnam.56

Blue Dragon is approximately 160 miles from Spratly Island, the nearest Spratly high-tide elevation - well beyond the 24-mile territorial sea and contiguous zone announced by the 1992 Chinese law - and 688 miles from the nearest undisputed Chinese territory.57 Nevertheless, China has claimed that the 'Blue Dragon sea area belongs to the adjacent waters of the Nansha [Spratly] islands ....'58 Some press reports in 1994 suggested that China had obtained equipment for the purpose of drilling in the Blue Dragon field.59 Despite the tensions, Vietnam issued more than 27 petroleum production-sharing contracts between 1988 and 1994.60

The Applicable Principles of International Law

Maritime Delimitation

The law pertaining to ownership of seabed and subsoil resources of maritime areas beyond traditional territorial waters has emerged almost entirely since 1945.61 Although all sources agree that the preferred way to resolved maritime disputes is by negotiation and agreement among the concerned parties, there are two principal sources of law that are pertinent to those cases where a negotiated treaty has not been achieved: (1) a multilateral treaty, the UN Law of the Sea Convention of 1982 ('LOS Convention'),62 and (2) decisions of international courts. Scholarly writings on occasion provide some elucidation and there is a large body of state practice that is sometimes consulted, although on most issues it is too diverse to furnish much guidance. 63

Although the sources of law have not always been in agreement since 1945, certain legal principles have become generally accepted with reference to situations where the maritime areas of two or more states potentially overlap and where a delimitation must therefore be made. These principles have been applied in a sufficient number and variety of court decisions to make it possible to predict how a court would approach a new delimitation, and in most cases to predict with a fair degree of confidence either the approximate boundary that a court would select or, at the least, two or more alternative lines among which a court would choose.

In general, the applicable principles of international law governing exclusive jurisdiction over seabed and subsoil resources are codified in the LOS Convention. These provisions were drafted and negotiated through a lengthy process in which virtually very state in the world (including China, Vietnam, Malaysia, Indonesia and the Philippines) participated. The provisions relevant to the present inquiry were adopted by consensus, without significant indications of dissent.64 International courts have accepted the basic provisions of the Convention as declaratory of or incorporated into customary international law.65 Conversely, these provisions were influenced by, and are entirely consistent with, the two court decisions that preceded the adoption of the Convention.66 With entry into force of the Convention last year and with the concurrent decision of several major industrial and maritime powers to adhere to the Convention (with modifications not here relevant), there is every prospect that the provisions of the Convention will gain ever-increasing acceptance as authoritative customary law that is binding on non-parties.67 The most important provisions of the Convention for present purposes are Article 13, Low-tide elevations; Article 76, Definition of the continental shelf; Article 77, Rights of the coastal State over the continental shelf; Article 83, Delimitation of the continental shelf between States with opposite or adjacent coasts; Article 121, Regime of islands; and Articles 122 and 123, Enclosed or semi-enclosed seas.68

While Article 83(1) of the Convention, which sets forth the principles for delimitation of maritime boundaries between potentially overlapping continental shelves, is expressed in strikingly vague and general terms,69 substantive content for those terms is in considerable measure supplied by the extensive body of case law -- more than a dozen judicial and arbitral decisions to date -- in maritime-boundary disputes, of which the first was the North Sea Continental Shelf Cases in 196970 and the most recent is the Jan Mayen case in 1993.71 These decisions are entirely consistent with the principles set forth in Article 83(1) of the Convention, and the decisions both before and after the adoption of the Convention are authoritative applications of the same principles as are codified in Article 83(1).

If one reads -- as clearly one must read -- the Convention and the decided case law as each clarifying, complementing and supplementing the other, the following general rules emerge as among those that one can predict with confidence will be followed by courts in future maritime-boundary cases, even if one or both parties to the dispute are non-parties to the Convention.

Natural Prolongation

The basic doctrinal rationale for the doctrine that coastal states are entitled to exclusive rights in the seabed and subsoil of maritime areas adjacent to their coasts is that such seabed and subsoil constitute the 'natural prolongation' of the land into the sea.72 The submarine land mass that comprises this natural prolongation is broadly described as 'the continental shelf' or the 'continental margin'. Some terminological confusion exists, however, because the term 'continental shelf' is also used in a much more restricted sense, to mean the portion of the greater shelf that is immediately adjacent to the coast, that is relatively shallow, and that descends gradually until reaching the continental slope. Article 76 of the LOS Convention contributes to this modest confusion by using the term in both its more and its less restricted senses.

In what is widely regarded as the 'typical' scenario and which is subsumed into the definition of 'continental shelf' in Article 76 of the LOS Convention, a coastline is abutted by an area covered by shallow water which deepens very gradually (the 'continental shelf' in the narrow sense), beyond which is an area characterised by a much sharper deepening (the 'continental slope'). Beyond the slope is an area which again deepens more gradually (the 'continental rise') and which is characterised by the presence for a relatively thick layer of sedimentary rock, in contrast to the deep ocean floor which lies beyond the rise.73 All these areas in the aggregate are called the 'continental margin', and are also called the 'continental shelf' in the broad sense. While the dual use of the term 'shelf' permits occasional confusion, the basic conceptual structure is adequately clear. As used in the Convention, 'shelf' in the broad sense is legal rather than a geomorphological term: it designates the entire area, beyond territorial waters, to which a state is recognised as having exclusive rights to exploitation of seabed and subsoil resources.74

In many parts of the world, however, reality is much more complicated than the 'typical' scenario. Many offshore areas present irregular characteristics, such as trough, rifts, submerged hills or mountains, reefs, islands or island chains, and other features that make it possible to argue at length about where the 'natural prolongation' of a particular mainland territory ends.75

The 200-Mile Minimum

By the time of UNCLOS III (the extended negotiations which resulted in the completion and signature of the LOS Convention in 1982), many states feared that the 'natural prolongation' doctrine would work to their disadvantage because they had relatively narrow continental shelves (in the narrow sense) or because of the problems mentioned immediately above. Responding to these concerns, the Convention modified the 'natural prolongation' principle by providing, in Article 76(1), that every state has exclusive rights in a 'continental shelf' to a minimum of 200 nautical miles offshore, regardless of the bathymetry or geology of the seabed and subsoil in question. Thus, within 200 miles, legal entitlement became automatic and need no longer be based on 'natural prolongation'. In the Libya/Malta case, the ICJ accepted this rule as part of customary international law.76 The court further concluded that, in cases where the continental shelves of two or more states allegedly overlap and require a delimitation, the new 200-mile rule means that, within that limit, considerations of bathymetry and geology are irrelevant to the delimitation, which is to be made on the basis of entirely different considerations.77

Entitlement Beyond 200 Miles

The Convention does not repeal the 'natural prolongation' doctrine, nor does it restrict exclusive seabed-and-subsoil rights to 200 miles. Article 76 permits exclusive rights out as far as 350 nautical miles (or 100 miles beyond the 2,500-metre isobath) if the natural prolongation of the land extends that far, and contains specific and detailed provisions which provide two alternative methods for determining the outer limit to which exclusive rights may lawfully be claimed.78 These provisions, unlike the regime within 200 miles, require consideration of the bathymetric and geological characteristics of the area in question. In particular, both of the alternative methods require identification of the foot of the continental slope, which is defined as 'the point of maximum change in the gradient at its base'.79

The case law has not yet addressed the question of how far beyond 200 miles a state may extend its exclusive rights. It remains to be seen whether the courts will hold, if and when the issue arises, that the precise and detailed provisions of Article 76(4) to (7) have become incorporated into customary international law so as to be binding on states that are not parties to the Convention.

On the one hand, such incorporation would be unusual; customary international law normally consists of general principals, not of precise rules, including units of measurement, which are more characteristic of texts, such as treaties, that are binding only on the parties. On the other hand, the LOS Convention is perhaps unique with respect to the breadth of national participation in its drafting and the degree of consensus that it has achieved. The courts have quickly recognised that some of the units of measurement in the Convention -- the 12-mile territorial sea and the 200-mile EEZ and minimum 'shelf' entitlement -- are incorporated into customary international law.80 Moreover, the provisions of Article 76(4) to (7), ad the high degree of consensus behind them, unquestionably demonstrate that there is no consensus whatever on a rule that would prohibit states from asserting exclusive rights out to the limits expressly permitted by those provisions. Since customary international law permits what it does not prohibit, any claim that a state making such assertions is acting unlawfully would be entirely without foundation.

For these reasons, it seems probable that the courts (again, when and if the issue arises) will hold that the provisions of Article 76(4) to (7) have become incorporated into customary international law. In any event, even if the courts should hold that the precise rules, including units of measurement, of those provisions have not achieved the status of binding law, it can be predicted with confidence that they will hold, in application of the 'natural prolongation' doctrine, that a state may extend its exclusive rights beyond 200 miles when the bathymetric and/or geological characteristics of the area make that appropriate. The precise rules of Article 76(4) to (7) will at least be regarded as highly probative guidelines, even if not binding in and of themselves. A state will be held entitled to extend its exclusive rights to the foot of the continental slope (assuming that point can be identified in a particular area) and for some distance beyond that to include the continental rise as well. Finally, a court would obviously not find it possible to say that a state that defined its claims in accordance with the precise rules of Article 76 had violated any rule for customary international law that precludes it from doing so.

Criteria for Delimitation

The Convention and the courts are in entire agreement that the goal of a maritime-boundary delimitation, whether accomplished by agreement or by adjudication, is 'to achieve an equitable solution'.81 In determining whether particular proposed boundaries meet that test, the most important requirement as developed in the case law is that there should be a reasonable degree of proportionality between the lengths of the relevant coasts of the state parties (measured by general-directional lines) and the quantity of maritime space assigned to those states.82

Equidistance and Proportionality

Where the state parties to a dispute face each other across a body of water ('opposite states'), rather than adjoining each other on the same coast ('adjacent states'), a court will invariably begin its task by constructing, as a tentative boundary, an equidistance line between the two states.83 Indeed, equidistance is the only possible method for that purpose; the other methods that have been developed in the context of adjacent-state delimitations are physically incapable of application to delimitation between states on opposite coasts. For opposite states, moreover, the use of equidistance lines generally assures a delimitation that results in equity and proportionality. The ICJ so explained in its first continental-shelf decision, the North Sea Continental Shelf Cases:

The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median [equidistance] line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. ... This type of case is therefore different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it, and does not give rise to the same kind of problem... 84

The court's most recent maritime-boundary decision is to the same effect: 'Prima facie, a median line delimitation between opposite coasts results in general in an equitable solution, particularly if the coasts in question are nearly parallel.'85

The standard methodology which courts use to delimit maritime boundaries is first to construct a tentative boundary, which in the case of opposite states will always be constructed on the basis of equidistance. The court will then examine the tentative boundary from the standpoint of equity. In that examination, a noted above, the most important requirement is that there should be a reasonable degree of proportionality between and among the lengths of the relevant coasts of the state parties (measured by general-directional lines) and the quantity of maritime space assigned to those states.86 This principle is qualified by two others:

(1) Proportionality should not be the basis for boundary-drawing; maritime delimitation is not a matter of making an 'equitable apportionment' by drawings lines constructed simply to give each state a 'fair share'. Proposed boundaries, rather, should emanate from some exercise rooted in the geography of the area (for example equidistance) and their fairness will then be tested by proportionality calculations.87

(2) Proportionality need not be at all precise; a very rough and approximate proportionality is all that is required.88

Where appropriate, a court makes a proportionality study on a numerical basis. First, the court determines the lengths of the coastlines of the parties that it considers relevant (as measured by general-directional lines), which may or may not include the entire coastlines of the parties. Second, the court decides what maritime space it deems relevant to the delimitation. Third, the court calculates how much of the relevant maritime space is assigned to each party by the proposed boundaries it is considering. Finally, the court compares the ratios between the two pairs of figures (lengths of coastlines and maritime space assigned) and determines whether an adequate degree of proportionality exists.89 If it does not, the court will consider what modification of the tentative boundary would be appropriate to ensure an acceptable degree of proportionality.

The Problem of Small Islands (islets or 'rocks')

Considerations of equity and proportionality mean that, in drawing equidistance boundaries, a court will generally ignore as basepoints small islands,90 especially when (1) they are uninhabited and economically insignificant, and (2) they are located far from the mainland of the state owning them and, if given effect, would command maritime space that intrudes into the continental shelf of another state. Such small islands, sometimes called islets or rocks, cannot, under the principles of equity and proportionality, be allowed to dominate an amount of maritime space - as against a neighbouring state with a valid claim to that space - which is grossly disproportionate to the size and significance of the islands.91

The courts have been both consistent and emphatic in articulating and applying this rule. As noted above, in its first maritime-boundary decision, the North Sea Continental Shelf Cases of 1969, the ICJ declared that in drawing an equidistance line 'the presence of islets, rocks and minor coastal projections' which have a 'disproportionally distorting effect' should be ignored.92

The ICJ applied that rule in the Libya/Malta case to the uninhabited Maltese island of Filfla, even though that island was located only three miles from the main territory of Malta itself. The court declared that the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain 'islets, rocks and minor coastal projections', to use the language of the Court in its 1969 [North Sea] Judgment, quoted above. The Court thus finds it equitable not to take account of Filfla in the calculation of the provisional median line between Malta and Libya.93

Similarly, in the Gulf of Maine case the court emphasised that there are potential disadvantages inherent in any method which takes tiny islands, uninhabited rocks or low-tide elevations, sometimes lying at a considerable distance from terra firma, as basepoint[s] for the drawing of a line intended to effect an equal division of a given area. If any of these geographical features possess some degree of importance, there is nothing to prevent their subsequently being assigned whatever limited corrective effect may equitably be ascribed to them, but that is an altogether different operation from making a series of minor features the very basis for the determination of the dividing line, or from transforming them into a succession of basepoints for the geometrical construction of the entire line. It is very doubtful whether a line so constructed could, in many concrete situations, constitute a line genuinely giving effect to the criterion of equal division of the area in question....94

Still further, in Guinea/Guinea-Bissau, the court drew a boundary which entirely ignored the presence of small islands that otherwise would have had a distorting and disproportionate effect.95

In contrast, the ICJ and other international tribunals have given half-effect for equidistance purposes to significant islands, with substantial populations and economic importance, especially if they are located fairly close to the mainland coast of the state owning them (which means that their effect in the overall effect on the division of maritime space is relatively small and not disproportionate to their importance). In the Anglo/French case, the Scilly Islands were given half-effect as basepoints for delimitation of the shelf boundary between France and the United Kingdom.96 In the Libya/Tunisia case, the Kerkennah Islands were given half-effect.97 Seal Island off Nova Scotia was given half-effect in the Gulf of Maine case.98 To judge the significance of an island and thus whether it should be given any effect, its size, population, economic viability and distance from the coast will be considered.99