The Third United Nations Conference on the Law of the Sea (hereinafter “Conference”) opened on December 3, 1973 and concluded September 24, 1982 after nine years of highly sensitive and complex negotiations. One hundred and sixty-four States registered for the Conference and an average of one hundred and forty delegations took part in each of the Conference’s sessions, of which there were twelve. Over one hundred observers also took part.
Dividing the Sea: the 1982 Law of the Sea Convention, Maritime Case Law, and the Current Dispute Between Guyana and Suriname
The Third United Nations Conference on the Law of the Sea (hereinafter “Conference”) opened on December 3, 1973 and concluded September 24, 1982 after nine years of highly sensitive and complex negotiations. One hundred and sixty-four States registered for the Conference and an average of one hundred and forty delegations took part in each of the Conference’s sessions, of which there were twelve. Over one hundred observers also took part. The Convention entered into force on November 16, 1994 and as of July 2004 had received 145 ratifications or accessions. The United Nations Convention on the Law of the Sea (hereinafter “Convention”) was unique in its vast scope encompassing all sea and ocean-related issues and in the near universal participation of the world’s States in its development.
Another distinguishing factor of the Convention was its incorporation of compulsory and binding dispute settlement procedures as an essential part of the agreement. The conference considered, yet ultimately decided against, the formulation of an optional protocol for States wishing to accept binding dispute settlement. Rather, the Convention obliges all States Party which have been unable to resolve their sea-related disputes peacefully through negotiation, conciliation or other means of their choice to invoke or accept binding dispute settlement under one of the permitted forums: the International Court of Justice, the International Tribunal for the Law of the Sea, an ad hoc arbitration panel, or a special arbitration panel for certain defined categories of disputes.
Early in 2004, the nation of Guyana invoked the binding arbitration procedure available in the Convention’s Annex VII, thereby forcing the nation of Suriname, also a party to the Convention, to accept binding arbitration of their ongoing maritime boundary dispute. The neighboring South American Caribbean nations of Guyana and Suriname ratified the Convention on November 16, 1993 and July 9, 1998 respectively. The long-standing maritime boundary dispute between Guyana and Suriname, and prior to their formation as independent nations, between the colonial governments that administered their territories, Great Britain and Holland, is the subject of this paper. Since the principle of uti possidetis applies to land and seas, the international legal commitments made by Great Britain and Holland in respect of the maritime boundary in question were automatically assumed by Guyana and Suriname when they achieved independence. Historically, the British and Dutch governments then the Guyanese and Surinamese governments have tied their maritime boundary dispute to additional border disputes between their nations: (1) over the New River Triangle area in the Amazon rainforest, and (2) over the Courantyne River which separates the two nations. Although this paper concentrates on the maritime dispute, as Guyana submitted solely the maritime dispute to binding arbitration under the Convention’s Annex VII and I am primarily interested in the applicability of the Law of the Sea Convention, I will discuss the Courantyne River dispute in order to provide an informed context that will facilitate a better understanding of the current maritime dispute between these nations.
After analyzing both nations’ historical arguments pertaining to maritime delimitation, I will interpret and apply the Convention to the Guyana/Suriname maritime dispute in light of the relevant international case law concerning maritime delimitation. Since Article 32 of the Vienna Convention on the Law of Treaties allows for the use of the Convention’s negotiating history to confirm or clarify the meaning of the Convention’s text, I will explore the negotiating history of Articles 15, 74, and 83 which pertain to delimitation of territorial seas, exclusive economic zones and continental shelves for States with opposite or adjacent coasts. Article 293 of the Convention exemplifies the principle that a treaty takes precedence over general international law, unless the treaty attempts to opt out of jus cogens norms or erga omnes obligations, by stating that: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.” Thus, if a conflict were to arise between general principles of international law as delineated in the maritime case law and the Convention, the Convention should govern.
In brief, this paper will: (1) explore the negotiating history of the Convention, (2) discuss the history of the maritime boundary dispute between Guyana and Suriname, which was submitted to arbitration in accord with the Convention, (3) analyze issues of interpretation or application of the Convention which arise in the Guyana/Suriname dispute, including an assessment of the negotiating history of the Convention pertaining to maritime delimitation, (4) analogize to past maritime delimitation decisions of the International Court of Justice and ad hoc arbitration panels, and (5) offer my conclusions regarding the interpretation or application of the Convention, in light of the maritime case law, to the current Guyana/Suriname maritime delimitation dispute.
II. Negotiating History: the 1982 UN Convention on the Law of the Sea
Article 32 of the 1969 Vienna Convention on the Law of Treaties states that a treaty’s “preparatory work” and the “circumstances” of a treaty’s conclusion may be used as supplementary means of treaty interpretation, yet very little official travaux préparatoires exists for the Convention. The official legislative history which does exist can be accessed in part at the United Nations Division for Ocean Affairs and Law of the Sea website and in part through the Official Records of the Third United Nations Conference on the Law of the Sea. To learn how the Convention was negotiated, one must rely in part on the first hand accounts of those who participated in the Conference negotiations.
A. A “Gentlemen’s Agreement:” Deciding Substantive Matters by Consensus
Before the Conference officially began, the negotiators arrived at what was termed a “gentlemen’s agreement.” The General Assembly approved of this agreement under which substantive decisions were to be made by consensus, with voting as a last resort. “At the close of the second session of UNCLOS III in June 1974, the delegates adopted the Gentlemen’s Agreement and incorporated it as an appendix to the rules of procedure for the conference. These rules of procedure included specific rules by which consensus was to be put into effect.”
The General Assembly and Conference negotiators believed that consensus decisions would result in wider acceptance of the treaty than could be achieved by reliance on voting. Widespread acceptance of the Convention, to be achieved through consensus decision-making, was integral to the achievement of a novel and uniform legal regime governing the seas and oceans which was deemed essential by nations seeking to institutionalize and universalize new legal principles, such as the right of passage through international straits, the 200 mile exclusive economic zone, and the common heritage seabed regime. Although one would expect that the “gentlemen’s agreement” consensus decision-making approach to conference negotiation would have led to a large number of bilateral and multilateral trade-offs between States across the full range of Law of the Sea issues, relatively few such deals seem to have been made. Some commentators have theorized that the Convention’s subject matter was too extensive for all but a few of the largest delegations to have an accurate picture of the status of the negotiations as a whole. Most of the trading done by States appears to have occurred within the context of the discrete committees and informal working groups that negotiated the Convention by dividing it into smaller, more easily negotiable subject matter areas.
B. A “Package Deal”: Simultaneous Negotiation of all Law of the Sea Issues
In 1973, the General Assembly convened the Conference in order to “adopt a convention dealing with all matters relating to the law of the sea.” Thereafter, “this simultaneous negotiation of issues became known as the ‘package deal.’” This approach differs markedly from the one adopted in the 1958 Geneva Conventions on the Law of the Sea, which separated law of the sea issues into four main subject matter areas: (1) territorial sea and the contiguous zone, (2) the high seas, (3) fishing and conservation of living resources of the high seas, and (4) the continental shelf. Prior to the 1982 Convention, States could consent to one, all, or none of the 1958 Geneva Conventions on the Law of the Sea, as they were independent treaties.
Why did the international community of States find it necessary to formulate a comprehensive law of the sea treaty? As mentioned previously, one possible motivation for the negotiation of the Convention was a desire to achieve universal acceptance of novel concepts such as the 200-mile exclusive economic zone. With universal adherence to one governing treaty would come greater regulatory certainty for States and private entities interested in the use of the seas and the continental shelf. A second motivating factor may have been the belief that States could amplify the potential for beneficial trade-offs for their own State by including all law of the sea issues in one convention. Finally, one commentator has described the package deal concept as assuming “that the Convention should meet the minimum interests of the largest possible majority, while at the same time accommodating the essential interests of the major powers and the dominant interest groups.”
C. Informal Negotiations and the Scarcity of Official Travaux Préparatoires
A.O. Adede served as a Conference negotiator for Kenya, as well as Co-chairman of the Informal Working Group on Settlement of Disputes. He notes in his unofficial legislative history of the Convention’s dispute settlement system that the need for his book arises from the “unique negotiating procedure which the Third United Nations Conference on the Law of the Sea adopted for elaborating the Convention… most of the substantive negotiations of the Convention were undertaken in informal meetings of the Conference Committees and special Negotiating Groups of which no formal records were produced.”
D. Development of the Dispute Settlement System
The initial proposal for a mandatory and binding dispute settlement system came from the delegation of a State that has yet to sign the Convention, the United States of America. In its 1974 explanatory note to the Conference’s working group on dispute settlement, the United States offered its view that:
Compulsory dispute settlement is the foundation of a new world order in ocean space. If nations cannot agree to settle their disputes peacefully (and be bound to do so) and to obey the decisions that are given, then all the standards of the rights and duties of states in the Law of the Sea Convention will be of little practical value. A system must be established that will make the rights and obligations provided for in the Convention meaningful by ensuring compliance with them.
Ultimately, a compulsory and binding dispute settlement system was incorporated into the Convention.
One of the Conference’s more important negotiating groups was the Informal Working Group on Settlement of Disputes (hereinafter Informal Working Group) for which Professor Louis B. Sohn acted as convener and rapporteur. Professor Sohn has written an unofficial legislative history of the aforementioned Informal Working Group’s activities during the 1974 Caracas session. Therein, Professor Sohn describes the working paper that the Informal Working Group presented to the whole Conference on the 1974 Caracas session’s last day as a “result of informal consultations held by a group of more than thirty States, from all the regions of the world, during the last month of the Conference…The working paper set out various possible alternatives, together with notes indicating relevant precedents.”
The working paper addressed the following eleven subjects: (1) Obligation to settle disputes under the Convention by peaceful means, (2) Settlement of disputes by means chosen by the parties, (3) Other obligations with respect to dispute settlement, (4) Settlement procedures not entailing a binding decision, (5) Obligation to resort to a means of settlement resulting in a binding decision, (6) Relationship between general and functional approaches, (7) Parties to a dispute, (8) Local remedies, (9) Advisory jurisdiction, (10) Applicable law, and (11) Exceptions and reservations to the dispute settlement provisions.
Notably, all of these subjects are addressed in the Convention’s final text. Therefore, one may conclude that the Informal Working Group played a significant agenda-setting role within the Conference, as pertains to negotiation of the Convention’s dispute resolution system.
III. History of Guyana and Suriname’s Maritime Boundary Dispute
I will now briefly analyze the main historical arguments provided by Suriname and Guyana in support of their conflicting maritime claims. An “area of overlap” exists since Suriname claims the maritime boundary to be a line ten degrees east of true north, whereas Guyana claims the maritime boundary to be a line thirty-three degrees east of true north. Guyana lies immediately west of Suriname and its coast faces northeast, while Suriname’s coast faces north.
A. Suriname’s Historical Arguments
Suriname bases its claim to a ten degree east of true north maritime boundary on the results of the 1936 Mixed Commission, a negotiating process by which British Guiana and Dutch Suriname agreed in principle to a comprehensive draft treaty resolving their border disputes, with British Guiana gaining the disputed lands of the New River Triangle and Dutch Suriname gaining sovereignty over the entire Courantyne River. In turn, the 1936 Mixed Commission based its decision that the Courantyne River was entirely Suriname’s on the 1799 Agreement to that effect signed by colonial administrators. Of particular relevance for the resolution of the current maritime boundary dispute is that the 1936 Mixed Commission asserted a 10 degree prolongation of the territorial sea from Point No. 61, the border on the west bank of the mouth of the Courantyne River.
Since the decision of the 1936 Mixed Commission in the maritime realm applied only to territorial seas (and perhaps only to the extent that territorial seas were then claimed – that is three miles from the shore), Suriname would have to offer additional arguments to support its claim that the ten degree east of true north maritime line applies to an expanded territorial sea (since twelve miles from shore is now commonly accepted), the continental shelf, and exclusive economic zone. Thus far, Suriname has simply asserted that the ten degree east of true north maritime boundary, as measured from Point No. 61, set by the 1936 Mixed Commission should apply to the more recently developed concepts of continental shelf and exclusive economic zone. Along these lines, Suriname has made its preference for equitable resolution of maritime boundaries, rather than basing boundaries on an equidistant median line, known.
B. Guyana’s Historical Arguments
Guyana’s claim to the continental shelf within the asserted maritime boundary, thirty-three degrees east of true north, is derived from British Guiana’s 1954 claim to the continental shelf and British Guiana’s and independent Guyana’s subsequent oil exploration concessions granted in the area from the 1950s to the present. For example, in 1965 British Guiana granted an oil concession that extended all the way to the asserted thirty-three degree east of true north maritime boundary. One should note “that Dutch Suriname did not object to this or prior concessions in the currently contested area of overlap.”
“Additionally, Guyana has argued that the 1799 Agreement, upon which the 1936 Mixed Commission relied for its finding that Dutch Suriname had sovereignty over the entire Courantyne River,” and setting Point No. 61 as the land terminus for purposes of delimiting the maritime boundary, is invalid as it was intended to be nothing more than an interim agreement.
Furthermore, Guyana relies on the 1989 Hoyte-Shankar Agreement between Suriname’s President Ramsaywak Shankar and Guyana’s President Desmond Hoyte and its subsequent codification in the 1991 Memorandum of Understanding for joint exploitation of the area of overlap and respect for concessions pending final resolution of the maritime boundary dispute. During the 1990s, negotiations pursuant to the 1989 Hoyte-Shankar Agreement and 1991 MOU continued until Guyana in 1997 unilaterally authorized additional concessions in the area, one of which became the setting for the eviction of a Canadian oil company by the Surinamese Navy on June 2, 2000.
Contrasting to Suriname’s expressed preference for equitable maritime boundary delimitation, Guyana has made its preference known for maritime delimitation using an equidistant median line.
C. Analysis of Conflicting Historical Claims
Suriname’s reliance on the 1799 Agreement for its claim to sovereignty over the entire Courantyne River and thus to a land boundary terminus on the western bank of the river’s mouth appears sound. Although the 1799 Agreement may have been intended to serve as a provisional agreement, Suriname’s arguments that its terms were incorporated into later treaties between British Guiana and Dutch Suriname (e.g. 1803 Articles of Capitulation) and that its terms were relied upon by the parties’ predecessors over a long period of time carry significant weight. The clearest example of the parties’ reliance on the 1799 Agreement is Dutch Suriname’s then Suriname’s continual maintenance of sovereign control over the Courantyne River, and British Guiana’s then Guyana’s general acquiescence to this state of affairs from 1799 to the present. Therefore Suriname will likely draw upon the equitable doctrine of estoppel, which states that “[i]n territorial disputes, acceptance either by word or deed of a certain boundary may serve to estop nations subsequently from making a different claim.”
Suriname’s claim to a ten degree east of true north maritime boundary is more difficult to substantiate. Suriname’s reliance on the 1936 Mixed Commission is problematic, as the resulting agreement was never signed by the parties. It was reached in principle, but not in fact. If one assumes the validity of the 1936 Mixed Commission agreement establishing a ten degree east of true north delimitation for the territorial seas, the question of how to delimit territorial seas beyond the three-mile range, the continental shelf, and the exclusive economic zone remains unanswered.
The validity of Guyana’s claim to the continental shelf, up to the asserted thirty-three degree east of true north maritime boundary, is bolstered by Suriname’s acquiescence to Guyana’s oil exploration concessions in the area of overlap from 1958 until 2000. Although Guyana granted concessions in the area of overlap during the 1950s, 60s, 70s, 80s, and 90s, it was not until the year 2000 that Suriname objected to the concessions, by having its Navy expel the oil corporation. Finally, Guyana’s reliance on the 1989 Hoyte-Shankar Agreement and the corresponding 1991 MOU regarding joint utilization and respect for concession rights in the area of overlap pending final delimitation of the maritime boundary, provides support for the argument that Suriname had acquiesced to Guyana’s existing oil concessions.
As can be expected in a territorial dispute, each nation’s preferred method of delimitation, equity per Suriname and equidistance per Guyana, would result in their acquiring sovereignty over a greater territory than would be the case if the alternative method were used. To determine the proper role for equidistance and equity in maritime delimitation as well as the relevance of arguments asserting historic title, such as those just detailed, and other special circumstances, one must look to the Convention and the relevant maritime case law.
IV. Interpreting & Applying the Convention to the Guyana/Suriname dispute
Delimitation of Guyana and Suriname’s territorial sea, exclusive economic zone and continental shelf must be done in accordance with the relevant provisions of the Convention and with the precedents set by international maritime law on delimitation. Interpretation of the Convention’s terms should follow the 1969 Vienna Convention on the Law of Treaties if the arbiters agree that Articles 31 and 32 codified existing customary law. Since Guyana is not a party to the Vienna Convention on the Law of Treaties, its articles on treaty interpretation must represent customary law; otherwise, they will not serve as binding rules for the parties.
Regarding the delimitation of Territorial Seas, Article 15 of the Convention states that in the case of States with opposite or adjacent coasts neither State can, failing mutual agreement to the contrary, 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.” Article 15 goes on to state that the “above provision 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 therewith.” Thus, in order to delimit the territorial seas for Suriname and Guyana, the international arbitration panel would likely address the principles of equidistant median line, historic title, and special circumstances.
An examination of the Conference’s negotiating history evidences a consistent adoption of the aforementioned method of territorial seas delimitation for States with opposite or adjacent coasts. In the Informal Single Negotiating Text of 1975, the Revised Single Negotiating Text of 1976, the Informal Composite Negotiating Text of 1977, the Draft Convention of 1981, and the final Convention adopted in 1982, States demonstrated a clear acceptance of this method of maritime delimitation.
Nonetheless, the question of how Article 15 should be applied in the specific case of Guyana and Suriname’s dispute remains. Without yet referring to the relevant maritime delimitation case law, it would seem that the arbitration panel should draw an equidistant median line between the parties unless the arbiters are of the opinion that historic title or other special circumstances call for a different approach. What this alternative approach would be is not made clear in the Convention, although from a reading of Articles 74 and 83 concerning delimitation of the Exclusive Economic Zone and Continental Shelf respectively we can surmise that it should result in an “equitable solution.”
The Exclusive Economic Zone (hereinafter “EEZ”) should be delimited in accord with the Convention’s Article 74, paragraph one of which states that “The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statue of the International Court of Justice, in order to achieve an equitable solution.” Since Guyana and Suriname have been unable to negotiate the delimitation of their respective EEZs, the delimitation is to be made in accord with Article 74 paragraph 2, “[i]f no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.” In the instant case, the EEZ just as the Territorial Seas and the Continental Shelf, will be delimited by the international arbitration panel established upon Guyana’s invocation of Part XV, Annex VII.
Unlike the negotiating history regarding territorial seas delimitation, the EEZ negotiating history shows a clear movement away from the utilization of an equidistant line. The Revised Single Negotiating Text of 1976 and the Informal Composite Negotiating Text of 1977 both state that EEZ delimitation should be effected in accord with equitable principles, using the equidistant line “where appropriate,” and considering “all relevant circumstances;” whereas, the Draft Convention of 1981 and the final Convention of 1982 mention neither the equidistant line nor “relevant circumstances” but rather state that EEZ delimitation should be effected on the basis of international law in order to achieve an equitable result.
Thus, from a reading of the Convention and an examination of its negotiating history, it appears that the arbiters should delimit Guyana and Suriname’s respective EEZs “on the basis of international law… (per Article 38 of the Statute of the International Court of Justice this includes treaties, international custom as evidence of a generally accepted practice, general principles of law recognized by nations, and subsidiarily judicial decisions and teachings of the most highly qualified academics) in order to achieve an equitable solution.” It is important to note the omission of equidistance in the Convention’s final text, as contrasted to the aforementioned two initial negotiating texts that specifically mentioned the equidistant line. This textual deletion of equidistance implies a decision to not use, or at least not to favor the use of, equidistance in setting the EEZ boundary.
Delimitation of the Continental Shelf is to be effected in accord with Article 83 which replicates Article 74 on EEZ delimitation with one exception: the substitution of the term “continental shelf” for “exclusive economic zone.” Similarly, the Convention’s negotiating history regarding Continental Shelf delimitation is a near replica of the EEZ negotiating history. While the Revised Single Negotiating Text and the Informal Composite Negotiating Text mention equidistance and all relevant circumstances, the Draft Convention and Final Convention do not. Rather, the final agreement regarding Continental Shelf delimitation was that it should be affected in the same manner as the EEZ, “on the basis of international law, as referred to in Article 38 of the ICJ Statute, in order to achieve an equitable solution.” Furthermore, we should recall that the negotiating documents never represented State Parties’ official positions and therefore should not be relied on by a tribunal.
For further guidance as to how the Guyana and Suriname maritime boundary should be delimited, we must look to the precedents established by maritime case law. Where these precedents conflict with the Convention, the latter, being the relevant treaty in force between the parties to the instant dispute, should govern. The Convention’s Article 293(1) on Applicable Law makes this clear: “[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”
V. Maritime Case Law on Delimitation of Maritime Boundaries
This section summarizes the maritime delimitation methods employed by the International Court of Justice and ad hoc international arbitration tribunals, in the chronological order in which the cases were decided.
In the North Sea Continental Shelf cases of 1969, the International Court of Justice held that the equidistance principle, codified in the 1958 Geneva Convention on the Continental Shelf to which Germany was not yet a party, did not represent customary law. The court went on to say that equitable principles, including all relevant circumstances, should be used by the parties in their settlement. Factors to be considered by the parties were: (1) configuration of coasts (e.g. Germany’s concave coast) including any special features, (2) physical and geological structure and natural resources of the continental shelf, and (3) reasonable proportionality between extent of continental shelf and length of the parties’ coasts (the proportionality principle), considering actual or potential effects of other continental shelf delimitations between adjacent States in the same region. Subsequent to the ICJ’s decision fulfilling the parties’ request for the applicable principles of international law, Germany, the Netherlands, and Denmark drew an equidistant line then adjusted it taking the aforementioned equitable considerations into account, despite the ICJ’s decision to exclude equidistance as an applicable principle of international law for resolution of the dispute.
In the Anglo-French Continental Shelf arbitration of 1977, a maritime boundary was established between the United Kingdom and France both of which were parties to the 1958 Geneva Convention on the Continental Shelf. The arbiters first drew a provisional equidistance line (as equidistance was specifically mentioned in the aforementioned applicable treaty), then took into account the equitable considerations of: (1) France’s strategic defense interests as UK’s Channel Islands were much closer to France than to the UK, (2) population and the political/economic importance of the Channel Islands, and (3) the proportionality principle. The result was an equidistant median line between the mainland of two nations’ and a twelve nautical mile enclave around the Channel Islands.
In the 1982 Continental Shelf case between Tunisia and Libya, the ICJ held that the delimitation was to be effected in accord with equitable principles, considering the following relevant circumstances: (1) the parties’ coastal configurations, (2) islands off the Tunisian coast, (3) the land frontier between the parties, (4) conduct of parties in granting petroleum concessions, and (5) proportionality between length of coasts and extent of continental shelves, although this criteria had little impact on the final delimitation as the parties’ coasts were of relatively equal lengths. Also of interest is the ICJ’s rejection of Tunisia’s argument that the parties’ differing levels of economic need should be a relevant circumstance.
In the 1984 Gulf of Maine case, the International Court of Justice delimited the exclusive fishery zone and Continental Shelf between the United States of America and Canada, neither of which was a party to the Convention at the time, by drawing a provisional median line then adjusting it based on the length of the parties’ respective coasts along the Gulf of Maine. The ICJ acknowledged that Georges Bank, one of the world’s prime fishing areas, was the “real subject of the dispute” and observed that Canada’s argument for considering economic need would only be relevant if the delimitation resulted in “serious economic repercussions” and “that nothing less than a decision which would have assigned the whole of Georges Bank to one of the Parties might possibly have entailed serious economic repercussions for the other.” Therefore, the ICJ seemed to imply that fairness required some degree of division of Georges Bank and its natural resources.
The 1985 Libya-Malta Continental Shelf case saw the ICJ draw a provisional equidistant line and then adjust the line taking into consideration the length of the parties’ respective coasts, which resulted in the lines being moved much closer to Malta. The ICJ’s rejection of Libya’s argument, that the parties’ respective landmasses should be considered, is noteworthy. At the time of the dispute’s adjudication, neither Libya nor Malta was a party to the Convention.
In the 1985 Guinea-Guinea-Bissau arbitration, the arbiters, in order “to achieve an equitable solution, taking into account relevant circumstances,” considered: (1) the need “to ensure that, as far as possible, each State controls the maritime territories opposite its coasts and in their vicinity,” and (2) the need to ensure that other actual or future maritime delimitations are given due regard (e.g. Guinea’s risk of being enclaved by its neighbors’ maritime zones if equidistant lines used). The arbiters unequivocally stated that “[t]he boundary is not delimited on the basis of equidistance.” The Convention was not in force between the parties at the time of arbitration, yet it entered into force between them only one year later.
In the 1992 Canada-France (St. Pierre and Miquelon) arbitration, what is essentially an equidistant line was established after consideration of coastal geography and proportionality. At the time of the dispute’s arbitration, neither France nor Canada was a party to the Convention.
In the 1993 Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), the ICJ drew a provisional median line, then adjusted it given the following equitable considerations: (1) proportionality of relevant coastlines, and (2) equitable division of the capelin fisheries. The consideration of equitable fisheries allocation builds upon the Gulf of Maine precedent concerning equitable division of natural resources. Neither State was a party to the Convention at the time of the dispute’s adjudication.
In the 2001 Qatar-Bahrain case, the ICJ held that Article 15 of the Convention regarding territorial seas delimitation was applicable, even though Qatar had not yet ratified the Convention, since it represented a codification of international customary law. The ICJ proceeded to refer to Article 15 as an “equidistance/special circumstances” rule that calls for provisionally drawing a median line then adjusting it if special circumstances so require. In my opinion, this approach is not the only valid interpretation of Article 15 as the ICJ could just as well have opted to disregard the equidistant line in favor of an alternative method of delimitation which only considers historic title and other special circumstances. In other words, an “equidistance or special circumstances approach” could be employed in lieu of the court’s equidistance and special circumstances approach. This alternative approach would be consistent with the text of Article 15 and was in fact employed by the ICJ in Continental Shelf. The ICJ also noted that maritime rights derive from land rights as “the land dominates the sea;” this theory provides a solid basis for the ICJ’s and the arbitration panels’ repeated use of the proportionality principle. Geographic considerations were key to the ICJ’s decision, and a dissenting opinion stressed the importance of assessing claims to historical title.
To delimit the EEZ and Continental Shelf, the court in Qatar/Bahrain claimed to follow the “equitable principles/relevant circumstances” test developed since 1958 in maritime case law and State practice and which the ICJ said was closely related to the “equidistance/special circumstances” rule for territorial seas. However, the negotiating history of the 1982 Convention, as discussed in detail above, clearly demonstrates a decision on the part of the negotiating States to retain equidistance as a consideration in territorial seas delimitation and to remove any textual reference to equidistance in EEZ and Continental Shelf delimitation. Thus, the negotiating history and the Convention’s text actually support an argument that there are two different methods to delimit maritime areas between States with opposite or adjacent coasts, one applying to territorial seas and the other applying to both the EEZ and the Continental Shelf.
In the 2002 Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria, between two States Party to the Convention, the ICJ held that territorial seas had already been delimited under prior, valid, international agreements between the States and between their colonial predecessors. The court went on to delimit the EEZ and continental shelf by applying the Convention’s Articles 74 and 83, while ensuring that neighboring third parties’ rights were not adversely affected. The ICJ said it had “on various occasions made it clear what the applicable criteria, principles and rules of delimitation are when a line covering several zones of coincident jurisdictions is to be determined.” According to the opinion, these criteria, principles and rules are “expressed in the so-called equitable principles/relevant circumstances method” which “involves first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result.’”
As my review of the prior cases demonstrates, the ICJ has not consistently applied a set of uniform criteria to the cases. The proportionality principle, length of coastlines and portion of continental shelf allocated should be relatively proportional, is the only one to have been applied in all the aforementioned cases. Coastal configuration was important to North Sea Continental Shelf yet it was not considered in Libya-Malta, unless the use of the proportionality principle qualifies as a consideration of coastal configuration. Equitable division of natural resources was considered relevant in Gulf of Maine and in Jan Mayen, yet not in Libya-Malta or Cameroon-Nigeria. Historic title was considered by the court as a relevant factor in Tunisia-Libya and Cameroon-Nigeria but not in Gulf of Maine or in Qatar-Bahrain. Ironically, the ICJ’s Cameroon-Nigeria opinion acknowledged historic title in the form of territorial seas delimitation made by prior international agreement yet refused to acknowledge the potential for historic title based upon oil concessions and extraction when it held that the “oil practice of the Parties is not a factor to be taken into account in the maritime delimitation in the present case.” The most common method of maritime delimitation by tribunals is the drawing of a provisional median line which is then adjusted for equitable considerations. However, this approach is far from universal as it was not applied in Continental Shelf, nor was it applied in the Guinea–Guinea-Bissau arbitration.
In Cameroon-Nigeria, the ICJ used the de fault maritime case law approach of drawing an equidistance line then assessing whether special circumstances required its adjustment and the equidistance line was found to be an equitable result as no relevant special circumstances required its adjustment. The ICJ seemed to defend its use of equidistance in its statement to the effect that equity was not the method to be employed in delimitation but rather the aim of delimitation.
VI. Conclusions relevant to the pending Guyana/Suriname arbitration
Given Guyana and Suriname’s assertions of historical title to their claimed maritime zones, their status as parties to the Convention, the Convention and its negotiating history, and the international case law concerning maritime delimitation, how should the Guyana/Suriname dispute be decided? In this section, I will attempt a preliminary answer to this question while acknowledging that both States will likely provide arguments during the course of the arbitration that have not been considered herein.
A. Equitable Considerations
Equity should be applied in a consistent and predictable manner while allowing for the consideration of the unique circumstances of each case. The challenge appears to be the reconciliation of two opposing goals: the need for consistency of methodology and predictability of outcome on the one hand and the need for a fair consideration of the case’s particular facts and circumstances on the other. In the context of maritime delimitation, there are two competing concepts of equity: (1) “corrective equity” wherein equity tempers the unfairness which would result from a strict application of the law (e.g. the de fault maritime delimitation methodology of drawing a provisional median line then adjusting it for equitable considerations), and (2) “broadly conceived equity” wherein the decision is based solely upon equitable principles (e.g. applied in Continental Shelf and the Guinea – Guinea-Bissau arbitration).
A third conception of equity, “common heritage equity,” sets conditions for the sustainable use of common resources. In the Convention, the status of the seabed beyond national jurisdictions as “common heritage of mankind” is a clear example of this last version of equity. Less obvious, though of greater relevance to the Guyana/Suriname maritime dispute, is the appearance of common heritage equity in the Convention’s Preamble where it refers to the Convention’s goals of “equitable and efficient utilization” of maritime resources.
The Convention’s Article 15 allows States to claim territorial seas up to the equidistant median line, unless historic title or other special circumstances require an alternative approach which is not specified in the Article’s text. One could reasonably conclude that this alternative approach to delimiting territorial seas should achieve an equitable result, as equity is the aim of EEZ and Continental Shelf delimitation. Articles 74 and 83 of the Convention are the result of protracted negotiations between States that resulted in the textual removal of equidistance as an explicit method of delimitation. In contrast to Article 15, these articles state that delimitation of the EEZ and Continental Shelf should be effected in accord with international law per Article 38 of the International Court of Justice Statute, in order to achieve an equitable result. The negotiating history of Articles 15, 74, and 83 thus leads one to conclude that the Conference negotiators intended for equidistance to be used in territorial seas delimitation except where special circumstances including historic title required otherwise, and that they intended to allow broader international law considerations to govern the delimitation of the EEZ and the Continental Shelf. In this regard, it is worth reiterating the ICJ’s holding in the 1969 North Sea Continental Shelf case that the equidistance principle was not customary international law. Since equidistance was subsequently negotiated out of Continental Shelf delimitation in the Convention, and the Convention is in force for the vast majority of the world’s nations, it is safe to conclude that equidistance has not become international custom since the 1969 North Sea Continental Shelf case.
Although the Convention’s text, its negotiating history, the North Sea Continental Shelf holding, and overwhelming global adherence to the Convention support my arguments concerning equidistance, eight of the ten maritime delimitation cases which I have reviewed in this paper, Continental Shelf and Guinea – Guinea-Bissau representing the minority view, employed equidistance adjusted for equitable considerations as their delimitation methodology.
C. Historic Title
If the equitable doctrines of acquiescence, reliance, and estoppel are applied to the delimitation of Guyana and Suriname’s maritime boundary, it appears likely that Suriname’s historic sovereignty over the entire Courantyne River, thus establishing the western bank of the river’s mouth rather than the middle of the river as a base point for territorial seas delimitation, would be respected, as would that of Guyana over maritime areas wherein they consistently granted oil concessions.
The questions are whether or not, and if so to what degree, the arbitral tribunal will take historic title into consideration in its delimitation. As discussed earlier, the case law precedents offer different answers to this question. For example, historic title asserted on the basis of oil concessions was a key factor in the ICJ’s delimitation of the maritime boundary between Tunisia and Libya, yet it was not considered relevant in the ICJ’s delimitation of the maritime boundary between Cameroon and Nigeria.
D. Other Special Circumstances
Otherwise referred to as relevant circumstances, relevant criteria, equitable considerations, and equitable principles, the “other special circumstances” employed in maritime case law include many criteria. First and foremost, is the proportionality principle, which is then followed by the general configuration of the coasts and continental shelves, the existence of islands, the parties’ past conduct in regards to oil concessions, the need to respect and preserve third parties’ maritime rights, as well as strategic, economic, resource distribution, and political considerations. As demonstrated above, the tribunals have selectively applied these criteria, thus leaving Guyana and Suriname in a position of uncertainty as to which special circumstances a tribunal will apply in their case.
E. Treaty Interpretation Considerations
Assuming applicability of the Vienna Convention on the Law of Treaties’ Articles 31 and 32, the arbitral tribunal must interpret the Convention’s Article 15 by discovering the terms’ ordinary meaning in their context and in light of the treaty’s object and purpose, including supplemental reference to the treaty’s negotiating history in order to confirm or clarify the terms’ meaning. The ordinary meaning of the terms and the negotiating history of the Convention regarding Articles 15, 74, and 83 appear quite clear, yet the treaty’s object and purpose remains to be assessed. The Convention’s Preamble calls for the equitable and efficient use of marine resources. Since oil is at the heart of the Guyana/Suriname dispute, just as fisheries were at the heart of the Gulf of Maine and Jan Mayen disputes, it appears that an arbitral tribunal should effect a delimitation promoting the equitable and efficient use of the marine resources in question. Per the maritime case law, Guyana and Suriname’s comparative economic and/or human development status should not be taken into account in deciding how to divide the resources.
F. Delimiting the Territorial Seas between Guyana and Suriname
Applying the Vienna Convention’s approach to treaty interpretation leads me to conclude that two distinct methods exist for territorial seas delimitation between States that are party to the 1982 Law of the Sea Convention (or failing their mutual agreement, by an authorized international tribunal per Part XV of the Convention): (1) States may claim maritime zones up to but not beyond the equidistant median line, unless they mutually agree to allow claims beyond the equidistant line, or (2) when historic title and other special circumstances require a different approach than sole reliance on equidistance, this different approach should be taken by the states. Additionally, an arbitral tribunal might also refer to the precedents established in maritime delimitation cases, in order to draw from and contribute to an evolving international jurisprudence of maritime delimitation. In so doing, the question of which special circumstances to consider becomes paramount. The proportionality principle lends little assistance, as the coastlines of Guyana and Suriname are of relatively similar lengths.
In my opinion, the tribunal should consider the following special circumstances: (1) coastal configuration, as Guyana’s coast faces northeast and Suriname’s faces north, (2) historic title, as manifest in the parties’ past conduct regarding oil concessions and control of the Courantyne River, (3) the need to respect and preserve third parties’ maritime rights, and (4) the need to ensure that States control the maritime areas extending out from their landmasses, as “the land dominates the sea” for strategic military considerations.
G. Delimiting the EEZ and the Continental Shelf between Guyana and Suriname
Again applying the Vienna Convention on the Law of Treaties, I conclude that one broad equitable method exists for EEZ and Continental Shelf delimitation between States party to the 1982 Law of the Sea Convention, or failing their mutual agreement, by an authorized international tribunal per Part XV of the Convention. This method requires that the delimitation be justified under international law as per Article 38 of the ICJ Statute and that it lead to an equitable result. Therefore, the arbitral tribunal would in all likelihood seek to justify its delimitation with reference to: (1) the applicable treaty between the parties (here, the Convention); (2) the existing international custom (assessing a. whether Guyana and Suriname have established customary law through their State practice and Opinio Juris in regards to EEZ and Continental Shelf delimitation, and b. whether a general customary international law exists regarding EEZ and Continental Shelf delimitation – the fact that a large majority of the world’s States adhere to the Convention may itself be evidence of general international custom); (3) the general principles of law recognized by nations (such as acquiescence, reliance, and estoppel); and (4) subsidiarily, national judicial opinions and writings of the most highly qualified academics.
As with territorial seas delimitation, the question of which special circumstances, equitable considerations, to take into account becomes paramount. To delimit the EEZ and Continental Shelf, I believe that an arbitral tribunal should consider the four aforementioned special circumstances applicable to territorial seas delimitation, as well as an additional special circumstance that would apply exclusively to EEZ and Continental Shelf delimitation. This fifth criterion is the equitable division of the non-living natural resources in question, the known and potential oil resources in these maritime zones. The application of this criterion may require a balancing of the Convention’s call for equitable resource use and the Gulf of Maine and Jan Mayen precedents on the one hand, compared with the holding of Continental Shelf, Libya-Malta, and Cameroon-Nigeria that States’ relative economic need is not a relevant factor.
H. The De Fault Approach to Maritime Delimitation by International Tribunals
In the end, the arbitral tribunal may choose to employ the de fault method of maritime delimitation, drawing a provisional equidistant median line and adjusting it for equitable considerations. As I have shown, this is the predominant approach taken by international tribunals since the seminal North Sea Continental Shelf case was decided in 1969. Implied in this jurisprudence may be the belief that an equidistant line is the most objective way to achieve an equitable result, as well as the most commonly preferred method by States as per State practice. The fundamental international legal principle of sovereign equality lends support to the equidistance principle, which essentially allocates half of the disputed maritime zones to each State prior to adjusting the line for equitable considerations. The ideal of sovereign equality seems to imply that neighboring coastal States have, in principle, an initial right to half of the disputed maritime zone. Yet, the pragmatic reality that States are unequal, in length of coastlines, geographical configurations, size of land mass, population, history, and a myriad of other ways, implies that the ideal of equidistance needs to be adjusted in a pragmatic, case-specific fashion incorporating specific circumstances in order to achieve an equitable result.