Mhairi Main Garcia

In applying this process of delimitation, however, the International Court of

Justice has identified a number of relevant principles which can be taken into
account when determining maritime boundaries. It has been argued that these broad
principles afford the International Court of Justice considerable freedom to choose
both the relevant principles and relevant factors, circumstances or criteria taking
account of some, such as geographic configuration of the coast and the presence of
islands, and rejecting others, such as the local economic, security or political aspects,
though these sometimes enter into the verification process; proportionality and non-
encroachment are regarded as safeguarding these interests as well as other equities.40
On the other hand, the International Court of Justice has stated that its task is to
apply equitable principles as part of international law, and to balance up the various
considerations which it regards as relevant in order to produce an equitable result.
Whilst it is clear no rigid results exist as to the exact weight to be attached to each
element in the case, this is very far from being an exercise of discretion or
conciliation; nor is it an operation of distributive justice.41 In this regard, the
jurisprudence of the International Court of Justice and international tribunals has
gradually clarified the principles of equidistance and equitable solutions and how
they are applied. Although there is still scope for discretion, the application of the
applicable rules and principles at least appears to have developed a more consistent
pattern in recent judgments and awards.
According to the jurisprudence of the International Court of Justice, the first step
in delimitation (subject to possible exceptions set out below) is to ascertain the
equidistance line. The equidistance line is the 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. It can only be drawn when the
baselines are known.42 Once the equidistance line is identified, the International
Court of Justice can then examine whether there are circumstances to depart from
that line to achieve an equitable solution. This approach has recognised that
equidistance can be applied not only in delimiting the territorial sea, but also in
delimiting the exclusive economic zone and the continental shelf, albeit with
provision for special circumstances in accordance with Articles 74 and 83 of the
Convention. For example, in the Qatar v Bahrain case, the International Court of
Justice stated that for the delimitation of the maritime zones beyond the 12-mile
zone it will first provisionally draw an equidistance line and then consider whether
there are circumstances which must lead to an adjustment of that line.43
There is, however, substantial jurisprudence over what justifies an adjustment of
the equidistance line and what is equitable. For delimitation to be equitable, account
must be taken of the relevant circumstances of the case. A number of factors have
been considered by the International Court of Justice since 1958 (under the Geneva
Conventions and the more recent interpretation of the Convention as well as general
state practice). It has been argued, however, that the determination to achieve an

40 Gerald Blake, Maritime Boundaries and Ocean Resources, Helm Ltd, 1987, at pp 33 to 34.
41 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p 18, at p 60, para 71.
42 Qatar v Bahrain case, above at note 21, at p 94, para 177.
43 Ibid at p 111, para 230.

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