INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. COSTA RICA)

ORDER OF 19 AUGUST 1987

1987

COUR INTERNATIONALE DE JUSTICE:

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE À DES ACTIONS ARMÉES
FRONTALIÈRES ET TRANSFRONTALIÈRES

(NICARAGUA c. COSTA RICA)

_ ORDONNANCE DU 19 AOUT 1987
Official citation :

Border and Transborder Armed Actions
(Nicaragua v. Costa Rica), Order of 19 August 1987,
CJ. Reports 1987, p. 182.

Mode officiel de citation :

Actions armées frontalières et transfrontalières
(Nicaragua c. Costa Rica), ordonnance du 19 août 1987,
C.I.J. Recueil 1987, p. 182.

Sales number 5 3 5
N° de vente :

182

COUR INTERNATIONALE DE JUSTICE
ANNEE 1987

19 août 1987

AFFAIRE RELATIVE À DES ACTIONS ARMÉES
FRONTALIÈRES ET TRANSFRONTALIÈRES

(NICARAGUA c. COSTA RICA)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et l’article 89 du Règlement de la
Cour,

Vu la requête enregistrée au Greffe de la Cour le 28 juillet 1986 par la-
quelle la République du Nicaragua a introduit une instance contre la
République du Costa Rica,

Vu la désignation par la République du Costa Rica, à laquelle copie de
la requête a immédiatement été communiquée, d’un agent et d’un coagent
aux fins de l'instance,

Vu la notification prévue à l’article 63, paragraphe 1, du Statut, adressée
le 3 novembre 1986 aux Etats parties au traité américain de règlement
pacifique («pacte de Bogota») signé 4 Bogota le 30 avril 1948, qui était
invoqué dans la requête,

Vu l’ordonnance du 21 octobre 1986, par laquelle la Cour a fixé au
21 juillet 1987 la date d'expiration du délai pour le dépôt du mémoire de la
République du Nicaragua et au 21 avril 1988 celle de l’expiration du délai
pour le dépôt du contre-mémoire de la République du Costa Rica, et l’or-
donnance du 21 juillet 1987, par laquelle le Vice-Président de la Cour a
reporté ces dates au 10 août 1987 et au 2 juin 1988 respectivement,

Vu le mémoire déposé par la République du Nicaragua dans le délai
ainsi prorogé,

1987
19 août
Rôle général
n° 73
ACTIONS ARMÉES (ORDONNANCE 19 VIII 87) 183

Considérant que, par une lettre en date du 11 août 1987 adressée au
Président de la Cour, le ministre des relations extérieures de la Répu-
blique du Nicaragua a transmis une copie du texte original espagnol d’un
accord signé le 7 août 1987 à Guatemala par les présidents des cinq Etats
d'Amérique centrale (accord d’« Esquipulas II», intitulé « Procedimiento
para establecer una paz firme y duradera en Centro América»);

Considérant que, dans une communication du 12 août 1987 adressée au
Greffier, agent du Nicaragua s’est référé à cet accord et a déclaré que «le
Nicaragua se désiste de l'instance introduite contre le Costa Rica»;

Considérant que, par lettres du 11 et du 12 août 1987, le Greffier a
transmis copie des communications susmentionnées à l’agent du
Costa Rica et l’a informé que le Président de la Cour, conformément à
l’article 89, paragraphes 2 et 3, du Règlement, avait fixé au 18 août 1987 la
date d’expiration du délai dans lequel le Costa Rica pourrait déciarer s’il
s’opposait au désistement du Nicaragua;

Considérant que, par lettre du 18 août 1987, reçue au Greffe le même
jour, l’agent du Costa Rica a déclaré notamment que son gouvernement
ne faisait pas objection au désistement;

Prend acte du désistement du Gouvernement nicaraguayen de l’ins-
tance introduite par la requête enregistrée le 28 juillet 1986;
Ordonne que l’affaire soit rayée du rôle.

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Haye, le dix-neuf août mil neuf cent quatre-vingt-sept, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de la République du
Nicaragua et au Gouvernement de la République du Costa Rica.

Le Président,
(Signé) NAGENDRA SINGH.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.


119

SEPARATE OPINION OF JUDGE ODA

Territorial issues — Maritime delimitation.

Zubarah — Inclusion of question of title to Zubarah in 1994 Application of
Qatar — Acceptance by Bahrain of referral to the Court of this case — Unani-
mous decision of the Court that Qatar has sovereignty over Zubarah.

Hawar Islands — Relevance of oil to interest in Hawar Islands — Legal sig-
nificance of British decision of 11 July 1939 — Agreement with decision of
majority of the Court.

Janan — Question of inclusion of Janan in the Hawar Islands group —
Changing treatment of the issue by the Parties — Disagreement with decision of
the Court.

Qit'at Jaradah and Fasht ad Dibal — Connection with claim to maritime
boundaries — Concurrence with decisions of Court concerning sovereignty —
Disagreement with Court as to relevance of sovereignty to determination of
maritime delimitation line.

Islets and low-tide elevations — Qit’at Jaradah — Fasht ad Dibal — Ques-
tion of acquisition of sovereignty over a low-tide elevation through appropria-
tion — Effect of such features on extent or boundary of territorial sea — 1982
United Nations Convention on the Law of the Sea (Art. 13) — 1958 Conven-
tion on the Territorial Sea and the Contiguous Zone (Art. 11) — Reflection of
current customary law — 1930 Hague Conference for the Codification of Inter-
national Law — Expansion of 3-mile rule to a 12-mile rule — Absence of rele-
vant State practice — Impact of Court’s decision on development of law of the
sed.

Disagreement with decision of the Court concerning the ‘single maritime
boundary” — Division of relevant area into northern and southern sectors —
“Single” boundary as identical boundary for different régimes of the continental
shelf and exclusive economie zone — Court's prior use of term.

Disagreement with decision of Court to determine the southern sector mari-
time boundary in terms of delimitation of territorial sea — Historical back-
ground of dispute — Relevance of oil resources — Continental shelf declara-
tions — Question of whether Parties intended to introduce notion of delimitation
of territorial sea.

Misapplication by Court of principles of territorial sea delimitation — Mis-
application of equidistancelspecial circumstances rule to territorial sea delimita-
tion — Applicability of “true median line” and exception for historic title or
other special circumstances.

Examination of territorial sea delimitation under the 1982 United Nations
Convention on the Law of the Sea (Art. 15) — Absence of scrutiny at
UNCLOS HHI — Relation between breadth of territorial sea and treatment
of low-tide elevations and islets — Misconstruance hy Court of 1982 United
Nations Convention on the Law of the Sea (Art. 15) as customary interna-
tional law.

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120 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

Disagreement with Court's delimitation of the northern sector according to
rules pertaining to continental shelf boundaries — Disagreement with Court's
location of delimitation line.

Inability of any court to determine a boundary with precision — Question
whether certain maritime features constitute special circumstances is not a
matter for legal determination — Inexact nature of equity — Importance of
moderation and self-restraint in its application.

Doubts as to Court's methodology for selection of co-ordinates for delimita-
tion line — Distinction betveen present case and prior delimitations by the
Court — Court should confine itself to describing method by which line should
be measured.

Maritime boundary should be delimited according to the régime of the conti-
nental shelf — Applicability of 1958 Convention on Continental Shelf (Art. 6)
— Distinet from 1958 Convention on the Territorial Sea and the Contiguous
Zone (Art. 12) — 1982 United Nations Convention on the Law of the Sea
(Art. 83) — Relation to régime of the exclusive economic zone (1982 United
Nations Convention on the Law of the Sea (Art. 74)).

Absence of identified criteria for equitable determination of continental shelf
boundary — Appropriateness of macrogeographical approach — Applicability
of façade method — North Sea Continental Shelf cases { 1969) — Continental
Shelf (Libyan Arab Jamahiriya/Malta) (/985) — Maritime Delimitation in the
Area between Greenland and Jan Mayen (1993).

Suggested maritime boundaries employing the façade method and equi-
distance lines with certain adjustments made.

TABLE OF CONTENTS

Paragraphs
I. TERRITORIAL ISSUES
1. Individual issues 1-5
2. Status of islets and low-tide elevations 6-9
II. MARITIME DELIMITATION
I. Introduction 10-11
2. The Courts misuse of the concept of a “single maritime
boundary” 12

3. The Court’s attempt to employ the principles and rules gov-
erning the boundary of the territorial sea in the “southern sec-

tor” of the region 13-21
4. The Court’s drawing of the continental shelf boundary in the

“northern sector” of the region 22-24
5. The Court’s handling of the drawing of the maritime

boundary 25-28

84
12]

II.

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DELIMITATION AND QUESTIONS (SEP. OP. ODA)

My VIEWS ON THE MARITIME BOUNDARY IN THE PRESENT CASE

1. Application of the laws and rules concerning the boundary of
the continental shelf in the present case
2. Laws and rules for the boundary of the continental shelf

3. Drawing of the maritime boundary in the present case

29-30
31-39

40-41
122 DELIMITATION AND QUESTIONS (SEP. OP. ODA)
I. TERRITORIAL ISSUES

1. Individual Issues

1. The present case involves two questions: the territorial issues and
the delimitation of the maritime areas for exploitation of submarine oil
reserves. However, except for the matter of the Zubarah region, the ter-
ritorial issues are not distinctly separate from the maritime delimitation.
The somewhat obscure and ambiguous character of the present case in
this respect has, in my view, created complications for the Court in pre-
paring its Judgment.

2. (Zubarah) The region of Zubarah had been disputed among the
sheikhs of the region for over 100 years and became an object of strife
between Qatar and Bahrain once they gained their independence. Yet the
issue of Zubarah was not included in the Application filed by Qatar with
the Registry of the Court in 1991. Zubarah was, however, included in
Qatar’s Application as formulated in 1994. Qatar’s willingness in 1994 to
include the question of title to Zubarah in the present case made it pos-
sible for Bahrain to accept referral to the Court of this case, involving
title to the Hawar Islands (title to those islands was most crucial for Bah-
rain owing to its interest in oil exploitation). Thus the procedure followed
by the Court in this case (originally brought unilaterally by Qatar) has,
since 1995, been that which applies to cases submitted jointly by the
parties. To repeat, the present case was made possible only by including
the question of title to Zubarah. I am pleased that the Court in this Judg-
ment has unanimously decided that Qatar has sovereignty over Zubarah
(Judgment, para. 252 (1)).

3. (The Hawar Islands) The issue of the Hawar Islands arose only out
of the discovery of potential oil and natural gas reserves in this particular
area of the Gulf region. The discovery of oil off the western coast of
Qatar in the early 1930s opened a new era of territorial acquisition by the
sheikhs of the region, which was at that time under the administrative
control of Great Britain. Beginning at that time, western oil companies
came to the region seeking concessions from certain sheikhdoms: namely,
Qatar and Bahrain. The Hawar Islands subsequently attracted the inter-
est of oil companies and, in 1939, the British Government decided that
those islands belonged to Bahrain, most probably in exchange for Bah-
rain’s undertaking not to interfere in Zubarah. It appears to me that
there are no considerations other than the 1939 decision that could play
a role in determining sovereignty over the Hawar Islands. The Court is
divided in this matter (Judgment, para. 252 (2) (a)), but I find no reason
to disagree with the majority view of the Court.

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123 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

4. (Janan) Janan, an island approximately 700 metres long and
175 metres wide (thus representing just over 0.] square kilometres), was
not an issue at the outset of this case. Janan was not referred to at all in
Qatar’s 1991 Application, in which the Hawar Islands were claimed to be
under Qatar’s sovereignty; in Qatar’s Application as formulated in 1994
Janan was mentioned in the phrase “[t]he Hawar Islands, including the
island of Janan” as a subject falling within the jurisdiction of the Court.
Bahrain, on the other hand, referred throughout its submissions in the
written and oral pleadings to the “Hawar Islands, including Janan and
Hadd Janan”, over which “Bahrain is sovereign”. Qatar clarified its posi-
tion in its final submissions and stated that “Bahrain has no sovereignty
over the island of Janan”. The Court has, in the present Judgment,
decided in favour of Qatar having “sovereignty over Janan Island, includ-
ing Hadd Janan” (Judgment, para. 252 (3)) for the reason that Janan was
not specifically mentioned in the 1939 British decision as being part of the
Hawar Islands group. A question should first have been raised as to
whether or not Janan actually forms part of the Hawar Islands. Janan,
taken alone, is insignificant. I voted against paragraph 252 (3) of the
Court’s decision, that Qatar has “sovereignty over Janan Island, includ-
ing Hadd Janan”, for the reasons elaborated by Judges Kooijmans and
Fortier in their separate opinions.

5. (Qit'at Jaradah and Fasht ad Dibal) In the present case territorial
sovereignty over Qit'at Jaradah and Fasht ad Dibal is not an issue dis-
tinctly separate from the issue of maritime delimitation. While these two
geographical features are included in Qatar’s 1991 Application and in
Qatar’s Application as formulated in 1994, as independent issues relating
to Qatar’s sovereign rights, Bahrain refers to its sovereignty over “the
insular and other features [comprising the Bahraini archipelago]”, includ-
ing these two features, in regard only to the issue of its maritime bound-
ary with Qatar; these two features are mentioned on/y in connection with
Bahrain’s claimed maritime boundary.

Prior to these proceedings, there was no dispute between Qatar and
Bahrain regarding the title to these two features and certainly no diplo-
matic effort to negotiate the matter. The Court did not analyse these
matters as territorial issues but dealt with them so/e/y in connection with
the maritime delimitation. Yet, the Court first decided, over the objec-
tions of five Members of the Court, on Bahrain’s sovereignty over Qit’at
Jaradah (Judgment, para. 252 (4)) and, second, decided unanimously that
“the low-tide elevation of Fasht ad Dibal falls under the sovereignty of
... Qatar” (Judgment, para. 252 (5)). I voted in favour on these two
occasions only because, as I understand it, the Court wanted to draw a
single maritime boundary — in this instance, the boundary of the “terri-
torial sea” — to the east of Qit’at Jaradah and to the west of Fasht ad
Dibal. Believing in a very different approach to the matter of the mari-
time delimitation, I find that the determination of the State having sov-

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124 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

ereignty over the island of Qit’at Jaradah and the low-tide elevation of
Fasht ad Dibal is of no significance in the drawing of a maritime delimi-
tation line.

2. Status of Islets and Low-Tide Elevations

6. I would like to point out in this respect that the Court should have
dealt more cautiously with the issue concerning islets and low-tide eleva-
tions. Qit’at Jaradah is a small island. “[A]t high tide its length and
breadth are about 12 by 4 metres, whereas at low tide they are 600 and
75 metres [and] its altitude is approximately 0.4 metres” (Judgment,
para. 197). In reaching the conclusion that Bahrain has sovereignty over
the “island of Qit’at Jaradah”, the Court states as follows:

“taking into account the size of Qit’at Jaradah, the activities carried
out by Bahrain on that island [such as the drilling of artesian wells
and the construction of navigational aids] must be considered suffi-
cient to support Bahrain’s claim that it has sovereignty over it”
(Judgment, para. 197).

As to Fasht ad Dibal, a low-tide elevation, the Court states:

“The decisive question for the present case is whether a State can
acquire sovereignty by appropriation over a low-tide elevation
situated within the breadth of its territorial sea when that same
low-tide elevation lies also within the breadth of the territorial sea
of another State.” (Judgment, para. 204.)

The Court is cautious in discussing the legal status of low-tide elevations
and, in referring to other low-tide elevations such as Fasht al Azm, Fasht
al Jarim, etc., is careful to state that low-tide elevations should not be
assimilated with islands or other land territory (Judgment, para. 204).

7. I believe that the questions of whether sovereignty over an islet or a
low-tide elevation may be acquired through appropriation by a State and
how such features can affect the extent of the territorial sea or the bound-
ary of the territorial sea remain open matters. The Court appears to take
the position that the provision concerning low-tide elevations in the 1982
United Nations Convention on the Law of the Sea (Art. 13), which is
identical to the relevant provision (Art. 11) of the 1958 Convention on
the Territorial Sea and the Contiguous Zone, reflects customary inter-
national law as it stands today. I might add that already in 1930, at
the Hague Conference for the Codification of International Law, a
similar idea was proposed for “an elevation of the seabed which is only
uncovered at low tide” (League of Nations, Acts of the Conference
for the Codification of International Law, Vol. I, p. 131).

But it is important to note that at the time of the Hague Codification

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125 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

Conference (1930) and of the adoption of the Convention on the Terri-
torial Sea (1958) the 3-mile rule prevailed; that the 1982 United Nations
Convention was not adopted until nearly 50 years and 25 years later,
respectively, and that the 1982 United Nations Convention simply copied
the relevant 1930 and 1958 texts on those issues without any in-depth dis-
cussion at the Third United Nations Conference on the Law of the Sea
(UNCLOS III) on the effect which would follow from the broadening of
the territorial sea from 3 miles to 12 miles.

In 1930 and 1958, low-tide elevations located in the rather narrow
(3-mile) seabelt off the coast would not have had much effect on the
extent or the boundary of the territorial sea, and these provisions might
have reflected customary international law prevailing at that time. But
how could they have the same minor effect if the territorial sea were to be
widened to 12 miles? This matter has been given very little thought in
academic and judicial circles. Since there is no practice in this area, the
question is better left for future discussion with a view to formulating the
governing law.

8. The provisions on islands in the 1982 United Nations Convention
on the Law of the Sea come from the 1930 text of the Hague Codification
Conference and the 1958 Convention on the Territorial Sea. But small
islands and islets did not receive specific attention and the provision on
islands in general would have applied. In UNCLOS II] there were some
efforts, although at an unofficial level, to define “island” more cautiously
so that the title granted under the 1958 Convention would not extend to
small islands or islets. These efforts did not produce any clear result.
I wish to mention this, as I have some doubts as to whether Article 121
concerning the régime of island of the 1982 United Nations Convention
which does not refer to islets or small island may as a whole be consid-
ered the customary international law in the age when the 12-mile territo-
rial sea prevails.

9. My further concern is that modern technology might make it pos-
sible to develop small islets and low-tide elevations as bases for struc-
tures, such as recreational or industrial facilities. Although the 1982
United Nations Convention does contain some relevant provisions (e.g.
Arts. 60 and 80), I consider that whether this type of construction would
be permitted under international law and, if it were, what the legal status
of such structures would be, are really matters to be reserved for future
discussion. The statements in the present Judgment concerning Qit’at
Jaradah, as an island, and Fasht ad Dibal and certain other low-tide
elevations could have an enormous impact on the future development of
the law of the sea. The Court, in my view, should have been more cir-
cumspect in handing down its decision in this respect.

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126 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

II. MARITIME DELIMITATION

1. Introduction

10. I voted in favour of paragraph 252 (6) of the Judgment for the rea-
son that it may well be that Qatar and Bahrain, in the spirit of co-opera-
tion between two friendly, neighbouring countries, will be able to accept
the demarcated line decided by the Court. I am, however, unable to agree
with the Court’s treatment as a whole of the issues relating to the mari-
time delimitation. I believe that the Court misconstrues the issues of the
maritime boundary and is also mistaken in the manner in which it has
applied what it considers to be the appropriate rules. I shall explain the
reasons for my disagreement with the majority of my colleagues.

11. Proceeding from its understanding (which conflicts with my own
understanding of the matter) that “[bJoth Parties . . . requested the Court
to draw a single maritime boundary” (Judgment, para. 168; emphasis
added), the Court states that:

“It should be kept in mind, that the concept of ‘single maritime
boundary’ may encompass a number of functions. In the present
case the single maritime boundary will be the result of the delimita-
tion of various jurisdictions.” (Judgment, para. 169; emphasis
added.)

The Court also states that:

“The Court observes that the concept of a sing/e maritime bound-
ary does not stem from multilateral treaty law but from State prac-
tice, and that it finds its explanation in the wish of States to establish
one uninterrupted boundary line delimiting the various — partially
coincident — zones of maritime jurisdiction appertaining to them.”
(Judgment, para. 173; emphasis added.)

The Court separates the whole of the relevant sea areas in dispute in
the present case into two parts, the southern part (called the “southern
sector” in the Judgment), where the distance between land areas (whether
island or continental land mass) does not exceed 24 miles (namely,
double the breadth of the 12-mile territorial sea), and the northern
part (called the “northern sector” in the Judgment), in the middle of the
Gulf, and applies a different régime to each part; admittedly, the Parties
also used this division in their written and oral pleadings.

2. The Court’s Misuse of the Concept of a “Single Maritime Boundary”

12. Ï note, to my surprise, that while the phrase “single maritime
boundary” is not mentioned in Bahrain’s submissions, it is repeatedly
used in the Judgment. I also find it surprising that the Court proceeds to

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127 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

pronounce a decision on the “single maritime boundary” despite the fact
that both Qatar and Bahrain presented in their submissions individual
claims to a boundary line.

If the word “single” is used in connection with the “maritime bound-
ary” in the Court’s jurisprudence, this is only because it was generally
thought that the boundary to be drawn for the continental shelf and for
the exclusive economic zone should be the same, at least within 200 miles
of the coast. The idea of a “single” boundary (or identical boundary) for
both the continental shelf and the exclusive economic zone was born in
the course of the 1982 case concerning the Continental Shelf ( Tunisial
Libyan Arab Jamahiriya). The Judgment in that case was rendered by
the Court on the eve of the adoption in December 1982 of the United
Nations Convention on the Law of the Sea at UNCLOS III, in which the
new concept of the exclusive economic zone was provided for for the first
time (see para. 35 of this opinion).

The term “single” boundary has come to mean an identical boundary,
being a single line for the two different régimes of the continental shelf
and the exclusive economic zone, and was referred to in this sense in the
1984 case concerning the Delimitation of the Maritime Boundary in the
Gulf of Maine Area, the 1985 case concerning the Continental Shelf
(Libyan Arab JamahiriyalMalta), and the 1993 case concerning the
Maritime Delimitation in the Area between Greenland and Jan Mayen.
The term “single” boundary does not mean anything else, despite the
Court’s use of this word in a different sense in the present Judgment.

3. The Court's Attempt to Employ the Principles and Rules Governing
the Boundary of the Territorial Sea in the “Southern Sector” of the
Region

13. With regard to the “southern sector”, the Court applies the prin-
ciples and rules governing the boundary of the territorial sea and states:

“In the southern part of the delimitation area, which is situated
where the coasts of the Parties are opposite to each other, the dis-
tance between these coasts is nowhere more than 24 nautical miles.
The boundary the Court is expected to draw will, therefore, delimit
exclusively their territorial seas and, consequently, an area over
which they enjoy territorial sovereignty.” (Judgment, para. 169.)

I cannot agree with the Court in its view that the maritime boundary in
the southern part of this region should be the line of delimitation of the
territorial sea. | think that the Court’s misunderstanding of this dispute
stems from the Court’s failure to take account of the background of the
case.

14. Let us look briefly at the origins of the present dispute. The exploi-
tation of subsoil oil resources in the Gulf region attracted the interest of

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128 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

western companies as early as the mid-1940s. While the 1945 United
States Presidential Proclamation (the Truman Proclamation) with respect
to the continental shelf did not necessarily attract much attention in the
world at the time, the sheikhdoms in the Gulf region, following the
advice of oil companies, successively made substantially identical conti-
nental-shelf declarations in the late 1940s: Bahrain on 5 June 1949; Qatar
on 8 June 1949. In order to enable the apportionment among oil compa-
nies of vast areas of the Gulf which had been claimed by the States and
the sheikhdoms, agreements to divide the continental shelf in the Gulf
were concluded successively by Bahrain and Saudi Arabia (1958); Iran
and Saudi Arabia (1968); Abu Dhabi and Qatar (1969); Iran and Qatar
(1969); Bahrain and Iran (1971); Iran and Oman (1974) (the italics indi-
cate the Parties to the present case). The only region in the Gulf where
there was still no fixed delimitation by the middle of the 1970s was the sea
area in dispute between Qatar and Bahrain in the present case.

15. The interest of the Gulf States in the waters of the Gulf was aimed
exclusively at the exploitation of submarine oil. Although pearl diving
had been carried out in the Gulf for several hundred years, it did not play
a major role in post-war diplomacy of the Gulf region because of the
decline of the industry. Furthermore, there was no dispute among the
Gulf States concerning the territorial sea after they gained independence
in the early 1970s. In fact the delimitation of the sea areas for oil exploi-
tation was the only point of disagreement between Qatar and Bahrain
with regard to the maritime issues over the last few decades.

A review of the history of oil development in the Gulf and the succes-
sive bilateral agreements concluded among the Gulf States over the last
several decades leads me to submit that Qatar and Bahrain were contem-
plating the delimitation between themselves of the sea areas for oil
exploitation. It is patently clear that the two States never thought that
they would be engaged in a dispute concerning the delimitation of their
respective territorial seas. That is, 1 believe, the reason why the Parties
employ the expression “the maritime boundary” (Bahrain) or “single
maritime boundary” (Qatar), but never the boundary of the territorial
sea, in their respective submissions. To repeat, both Qatar and Bahrain
talk about the “maritime boundary” or “single maritime boundary”
because their concern does not lie with the delimitation of the territorial
sea. The Court is not correct in attempting to apply the rules and prin-
ciples governing the boundary of the territorial sea in the southern part
of the region at issue.

16. Even if, for the sake of argument, the “southern sector” is to be
delimited according to the rules and principles governing the boundary of
the ferritorial sea, as the Court suggests, it appears to me that the Court

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129 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

is also mistaken in its interpretation of those rules and principles. The
Court recommends that the boundary of the territorial sea (in the south-
ern sector) should be drawn in accordance with Article 15 of the 1982
United Nations Convention on the Law of the Sea (which is quoted
in full in the Judgment at paragraph 175 and is virtually identical to
Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea
and the Contiguous Zone), which is “to be regarded as having a custo-
mary character” (Judgment, para. 176).

17. The Court states that Article 15 of the 1982 United Nations Con-
vention “is often referred to as the ‘equidistance/special circumstances’
rule” (Judgment, para. 176), and also that

“the equidistance/special circumstances rule, which is applicable in
particular to the delimitation of the territorial sea, and the equitable
principles/relevant circumstances rule, as it has been developed since
1958 in case-law and State practice with regard to the delimitation of
the continental shelf and the exclusive economic zone, are closely
interrelated” (Judgment, para. 231).

The fact of the matter is that the equidistance/special circumstances rule,
so named by certain scholars after the 1958 Convention on the Continen-
tal Shelf, has been referred to mainly in connection with the delimitation
of the continental shelf but, as far as [| am aware, not in connection with
the delimitation of the territorial sea. I wish to make this point because
the Court, in this connection as well, appears to me to have confused the
rules applicable to the boundary of the territorial sea with those appli-
cable to the boundary of the continental shelf.

18. For the territorial sea, the principle is that the “median line” is to
be used, although there may be exceptions to this principle where neces-
sary because of historic title or other special circumstances. This rule is
manifestly not the same as the one applicable to the boundary of the con-
tinental shelf, as will be explained below (see paras. 31 to 34 of this
opinion).

The Court is not correct in stating, in its interpretation of Article 15 of
the 1982 United Nations Convention, that “{tihe most logical and widely
practised approach is first to draw provisionally an equidistance line and
then to consider whether that line must be adjusted in the light of the
existence of special circumstances” (Judgment, para. 176). It may be per-
tinent in this respect to note that the meaning of the phrase “special cir-
cumstances” in the case of the territorial sea was explained over 40 years
ago at the 1958 United Nations Conference on the Law of the Sea by the
United Kingdom’s delegate to the Conference (Sir Gerald Fitzmaurice),
who proposed the wording:

“[SIpecial circumstances did exist which, for reasons of equity or
because of the configuration of a particular coast, might make it dif-

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ficult to accept the true median line as the actual line of delimitation
between two territorial seas. There might be a navigation channel,
for instance, which was not in the middle of a strait but to one side
of it, or went from one side to the other; or the situation might be
complicated by small islands. [The] delegation therefore felt that it
would be too rigid to specify that the median line must be adhered to
regardless of special circumstances.” (United Nations Conference on
the Law of the Sea, Official Records, Vol. Ul, p. 189; emphasis
added.)

The “true median line” is a general rule; this rule does not apply when
historic title or other special circumstances so necessitate. And, in my
view, this rule may have been realistic in 1958 when the “true median
line” could, in principle, be objectively drawn, within the then narrowly
defined territorial seas, by the application of mathematical or geometrical
means.

19. After having explained my difference of opinion with the Court as
to the interpretation of the rules and principles applicable to the bound-
ary of the territorial sea, as set out in Article 15 of the 1982 United
Nations Convention, I find it pertinent to examine how Article 15 and
other provisions relevant to the breadth or boundary of the territorial sea
(Part II, Sec. Il) are formulated in that Convention. Most of the provi-
sions concerning the “limits of the territorial sea” are identical to those of
the 1958 Convention on the Territorial Sea (Part I, Sec. Il). The right
to establish the breadth of the territorial sea up to a limit of 12 miles
(Part II, Sec. 11, Art. 3) was practically the only change and was intro-
duced at UNCLOS III as a new concept of the 12-mile territorial sea in
the section on the “limits of the territorial sea” in the 1982 United
Nations Convention.

In discussing the breadth of the territorial sea, I would like here to
refer to the particular situation that prevailed in the late 1960s and the
early 1970s with regard to the territorial sea in general. The trend
towards expansion of the territorial sea was gathering momentum and
legal recognition, and the 12-mile territorial sea was about to be widely
accepted. In fact, UNCLOS III, which commenced in 1973 for the pur-
pose of reviewing the régime established under the four 1958 Geneva
Conventions on the Law of the Sea, dealt extensively with the subjects
that were then considered to be new — such as the redefined concept
of the continental shelf, the newly emerging régime of the exclusive
economic zone, the new concept of the free passage of warships and mili-
tary aircraft through narrow sea areas, the new régimes of the deep
ocean floor and high seas fisheries, etc. On the other hand, the points

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which were considered to have already been established under the
Geneva régime in 1958 were rarely discussed at working level during
UNCLOS III and were not put to a vote at the formal meetings. The
provisions of the 1958 Convention on the Territorial Sea relating to the
“limits of the territorial sea” (apart from the new provision of the
12-mile territorial sea) were simply incorporated in the 1982 United
Nations Convention without receiving intensive consideration by the
delegates of the States participating in UNCLOS II. The delegates at
UNCLOS III were perhaps simply not aware of the fact that the
introduction of a wider breadth of 12 miles for the territorial sea
would drastically affect the issues concerning the maritime boundary of
the territorial sea.

20. The general rules established in the provisions in the 1958 Conven-
tion on “limits of the territorial sea” (Part I, Sect. II) remain in the 1982
United Nations Convention (Part II, Sec. II). I have in paragraph 6 of
this opinion expressed my concern regarding islets and low-tide eleva-
tions in connection with the territorial issues but I must repeat those con-
cerns here in connection with the maritime delimitation. This is necessary
because in the present case the islets and low-tide elevations are really the
most crucial points, leaving aside the matter of sovereignty over the
Hawar Islands, in determining the maritime boundary.

The extension of the breadth of the territorial sea to 12 miles would
have resulted in a radical change in the context of the concepts of low-
tide elevation, island and islet, straight baselines, etc., which were intro-
duced in 1958 to refiect customary international law at that time. It is
extremely important to note that the provisions of the 1958 Convention
relating to the territorial sea, its boundary and other elements which
might affect the boundary were, as a whole, designed to meet the situa-
tion under the 3-mile rule and were adopted at a time when the 3-mile
limit for the territorial sea prevailed. By the 1970s, only two decades after
the 1958 Conference, there was no longer any doubt that a 12-mile limit
for the territorial sea would eventually become the rule.

Although this change in the limit would have greatly affected the new
régime of the territorial sea, the 1982 United Nations Convention was
adopted at UNCLOS III without any careful consideration being given
to this change of situation, namely from the generally accepted 3-mile
limit to the suggested 12-mile limit of the territorial sea. I greatly doubt
whether certain provisions relating to “limits of the territorial sea”
adopted in 1958 and copied in 1982 (provisions on which the Court relies
in the present Judgment) can today be considered to be customary inter-
national law when the overall conditions (those pertaining to the terri-

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torial sea in particular) have changed dramatically over the intervening
decades.

21. I fear that the Court’s statement in the present Judgment concern-
ing the boundary of the territorial sea to be applied in the southern part
of the sea areas in question (where there are a number of scattered low-
tide elevations and islets in extremely shallow sea waters) will, in future,
be taken as jurisprudence relating to maritime delimitation. | feel com-
pelled to repeat and emphasize that the manner in which the Court has
taken the rules and principles concerning the boundary of the territorial
sea which might have been in effect when the 3-mile limit prevailed and
applied them to the boundary of the 12-mile sea-belt (territorial sea) in
the southern part of the area in question is quite inappropriate.

4. The Court's Drawing of the Continental Shelf Boundary in the
“Northern Sector” of the Region

22. Turning to the northern part of the region (called the “northern
sector” in the Judgment), the Court states:

“More to the north ... where the coasts of the two States are no
longer opposite to each other but are rather comparable to adjacent
coasts, the delimitation to be carried out will be one between the
continental shelf and exclusive economic zone belonging to each of
the Parties, areas in which States have only sovereign rights and
functional jurisdiction.” (Judgment, para. 170.)

In respect of the northern sector, the Court also states that it “will...
deal with the drawing of the single maritime boundary [in the northern
sector] of the delimitation area which covers both the continental shelf
and the exclusive economic zone” (Judgment, para. 224). (It should be
noted that the term “exclusive economic zone” is not found in the sub-
missions of the Parties.)

23. In order to draw the boundary of the continental shelf (and the
exclusive economic zone) the Court states 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.” (Judgment, para. 230.)

The Court adds:

“The Court . .. notes that the equidistance/special circumstances
rule, which is applicable in particular to the delimitation of the ter-
ritorial sea, and the equitable principles/relevant circumstances rule,
as it has béen developed since 1958 in case-law and State practice

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with regard to the delimitation of the continental shelf and the exclu-
sive economic zone, are closely interrelated.” (Judgment, para. 231.)

As stated above (see para. 17 of this opinion), the Court’s understanding
of the concept of the equidistance/special circumstances rule is not entirely
correct.

The Court follows with the statement “[t]he Court will now examine
whether there are circumstances which might make it necessary to adjust
the equidistance line in order to achieve an equitable result” (Judgment,
para. 232).

24, In connection with the northern part of the region, the Court con-
cludes:

“The Court .. . decides that the single maritime boundary in this
sector shall be formed in the first place by a line which, from a point
situated to the north-west of Fasht ad Dibal, shall meet the equidis-
tance line as adjusted to take account of the absence of effect given
to Fasht al Jarim . . . The boundary shall then follow this adjusted
equidistance line until it meets the delimitation line between the
respective maritime zones of Iran on the one hand and of Bahrain
and Qatar on the other.” (Judgment, para. 249; emphasis added.)

The Judgment fails to explain how this point situated to the north-west
of Fasht ad Dibal was selected and I cannot visualize “a line which,
from a point [which is not specified] shall meet the eguidistance line as
adjusted to take account of the absence of effect given to Fasht al
Jarim” (Judgment, para. 249; emphasis added). I assume that the Court
intended first to draw a provisional line equidistant from whatever base-
lines the Court found appropriate (and the Court does not identify
those baselines) and then found no special circumstances which could
affect that “provisionally drawn” equidistance line. In the Court’s view,
Fasht al Jarim is not a “special circumstance” calling for a modification
of the equidistance line as provisionally drawn in order to achieve an
equitable result. It appears to me that the Court, finding no circum-
stances necessitating the adjustment of the equidistance line, is suggest-
ing that equidistance line as the maritime boundary in the northern
sector. I fail to understand the Court’s attempt to demarcate a bound-
ary in the area near Fasht ad Dibal, Qitat Jaradah and Qit’at ash
Shajarah. The Court does not provide any precise construction lines
showing how it decided on the final line of demarcation in that particu-
lar area.

3. The Court's Handling of the Drawing of the Maritime Boundary

25. Qatar and Bahrain have each requested the Court in their submis-
sions to accept their respective claims to maritime boundary. Those
claims are, of course, quite different. The Court, in dismissing the indi-
vidual claims of the Parties, should have indicated the guidelines for

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drawing the maritime boundary in the disputed sea areas. The Court,
however, has decided to demarcate a boundary in the southern part of
the region in accordance with the rules of the boundary of the territorial
sea and in the northern part in accordance with the rules pertaining to
the boundary of the continental shelf. I would like to point out two
things in this respect.

First, the maritime boundary — either of the territorial sea or of the
continental shelf — cannot be determined with geometrical or math-
ematical precision. (The only exception is where the median line for the
territorial sea lies within a very narrow band (3 miles); see para. 18 of this
opinion.) A boundary may be drawn within the framework of interna-
tional law but taking into account the variety of special or relevant cir-
cumstances and with due regard for equitable considerations. The ques-
tion whether certain marine features constitute special circumstances is
not a matter for legal determination.

26. I recall that in my separate opinion attached to the Judgment in
the 1993 case concerning Maritime Delimitation in the Area between
Greenland and Jan Mayen | suggested that there is no such thing as a
single equitable line of delimitation. 1 quote just a few lines from my
separate opinion in that case:

“In reality the delimitation of a line . . . may vary in an infinite
number of ways within a certain range, and the choosing of one of
these variations after consideration of ‘special circumstances’, ‘rele-
vant circumstances’ or ‘factors to be taken into account’ etc., does
not belong to the function of law. No line thus drawn can be illegal
or contrary to rules of international law.” (1C.J. Reports 1993,
p. 111, para. 76.)

Equity exists in infinite variety and the determination of what is “equi-
table” depends on who is making that determination in a particular
case. There is no definite criterion to apply. Seen from a legal point of
view, there is not in the present case one definite, determinative line of
delimitation that should be adopted.

27, [am not suggesting that the Court should leave aside the question
of the criterion to apply but simply that the Court should not, in its Judg-
ment, go beyond stating what elements should be taken into account in
order to achieve an equitable solution and how those elements should be
assessed. The decisive factor is not the legal principles (which are defined
with unquestionable precision); the important point here is the Court’s
understanding of what is most suitable to the consideration of equity and
how that understanding has led it to make a choice from among an infi-
nite number of possibilities. In my view, the Court should always exercise
moderation and self-restraint in its decisions on maritime boundaries.

The line adopted by the Court cannot therefore be defined, with legal
precision, by reference to any legal standard. The reason for my concern

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is that, in spite of the fact that choosing a line of delimitation in the case
is a relative matter, the Court, in paragraph 252 (6) of the Judgment,
states that it “[dJecides that the single maritime boundary . . . shall be
drawn [in the manner described in the Judgment]”. We must remain
aware that the line drawn by the Court is no more than the one consid-
ered by the Court to be the most appropriate in order to achieve an equi-
table solution to the present dispute concerning the maritime boundary.
I reiterate, the line described by the Court is not one decided through the
application of legal objectivity and precision.

28. Second, | entertain some doubt regarding the fact that the Court
lists 42 co-ordinates (on which the line given in the final map is based)
demarcating the course of the boundary line (see Judgment, para. 250).
No explanation is given in the Judgment as to how these co-ordinates
were selected, although it appears to me that they were determined on the
basis of the line, the construction of which was determined by the general
reasoning of the Court, as drawn on sketch-maps 3, 4, 5 and 6 attached
to the Judgment. The Court seems to have commenced its demarcation of
the boundary line without first producing a list of geographically or geo-
metrically precise baselines or basepoints from which it measured the
equidistance line, and this is particularly apparent upon inspection of cer-
tain parts of the area (e.g., the area near Qit’at ash Shajarah, the area
between Qit’at Jaradah and Fasht ad Dibal, and others). I fail to under-
stand how it is possible for the reasoning given by the Court in its Judg-
ment (which is not set out with mathematical precision) to be translated
into the precise line determined by reference to the indicated co-ordi-
nates. I cannot support the Court’s decision in this case to produce a list
of co-ordinates for drawing a line of demarcation. If the Court wishes to
draw a maritime boundary by referring to a sketch-map of the area in
question, it should first formulate its view as to how the general rules and
principles governing the drawing of maritime boundaries should be
applied (which the Court has done in the present case) and then reflect
that view on the sketch-map, without providing the detail of a list of co-
ordinates.

It can be argued that there are precedents for the indication of co-
ordinates in such a case as this. The Judgments in the 1985 Libyan Arab
Jamahiriyal Malta case and the 1993 Jan Mayen case also contained lists
of co-ordinates to be used in determining lines of delimitation. However,
the factual situations in those cases were easily distinguishable from that
in the present case. In both of those cases there was no doubt concerning
the baselines to be taken as the basis for drawing a boundary, given the
simple topography of the relevant sea areas (in the Libyan Arab Jama-
hiriyal Malta case, the coast of the island of Malta and the coast of
Libya; and in the Jan Mayen case, the coast of the island of Jan Mayen
and the coast of Greenland).

In the present case, the situation is much more complicated and the
baselines are, from a mathematical or geometric point of view, extremely
difficult to identify and, in fact, have not been specified. This exercise is

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beyond the competence of the Court, and I would suggest that the Court
should have confined itself to describing, in general terms, the method by
which the boundary line should be measured and should have ordered
that a panel of experts in the fields of geography and hydrography be
appointed, either by the Court or jointly by the Parties, to determine the
mathematical or geometric means by which the precise boundary line
should be drawn, instead of itself proceeding to the demarcation of a
boundary line.

III. My VIEWS ON THE MARITIME BOUNDARY IN THE PRESENT CASE

1. Application of the Laws and Rules concerning the Boundary of the
Continental Shelf in the Present Case

29. After having criticized the Court’s position on the “question of the
maritime delimitation”, I would like to state my view on how this ques-
tion should have been dealt with in the present case. I see the present case
as one concerning a delimitation line dividing the sea areas in the Gulf —
including the sea-bed and subsoil — to be reserved for the exploitation of
oil in the sea-bed. The areas in question are those which both Parties
claimed in their respective continental shelf declarations in 1949. I con-
sider that both Parties, when referring to the “maritime boundary” (but
not to the boundary of the territorial sea), have in fact suggested from the
outset that the law governing the continental shelf should apply in the
relevant sea areas in the present case.

30. The régime of the continental shelf should certainly have applied
to the area beyond the territorial sea of the coastal State and the 1949
continental shelf declarations by Qatar and Bahrain were drafted to
apply to the area lying more than 3 miles from the coast, which was
widely — or even universally — considered to be the breadth of the ter-
ritorial sea. The two States have never thought that the sea areas between
them would be delimited as their respective territorial seas.

2. Laws and Rules for the Boundary of the Continental Shelf

31. It is pertinent in this respect to examine the development over
recent decades of the laws governing the delimitation of the continental
shelf. The concept of the continental shelf, first enunciated in 1945 in
the United States Presidential Proclamation on the continental shelf
(known as the Truman Proclamation), came into being in international
law in 1958 when the Geneva Convention on the Continental Shelf was
adopted at the First United Nations Conference on the Law of the Sea
(UNCLOS I). The delimitation of the continental shelf between neigh-
bouring States was from the outset an important issue. The 1945 Truman
Proclamation states that:

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137 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

“In cases where the continental shelf extends to the shores of
another State, or is shared with an adjacent State, the boundary
shall be determined by the United States and the State concerned in
accordance with equitable principles.” (Emphasis added.)

The delimitation of the continental shelf between neighbouring States
was so complex that it was extremely difficult to formulate the general
tules of the applicable law on this issue. Relying on the draft articles on
the law of the sea prepared in 1956 by the International Law Commis-
sion, UNCLOS I succeeded in drafting and adopting a specific provision
on delimitation of the continental shelf, Article 6 of the 1958 Convention
on the Continental Shelf (which is not quoted in the Judgment):

“1. Where the same continental shelf is adjacent to the territories
of two or more States whose coasts are opposite each other, the
boundary of the continental shelf appertaining to such States shall
be determined by agreement between them. In the absence of agree-
ment, and unless another boundary line is justified by special cir-
cumstances, the boundary is the median line, every point of which is
equidistant from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured.

2. Where the same continental shelf is adjacent to the territories
of two adjacent States, the boundary of the continental shelf shall be
determined by agreement between them. In the absence of agree-
ment, and unless another boundary line is justified by special
circumstances, the boundary shall be determined by application of
the principle of equidistance from the nearest points of the base-
lines from which the breadth of the territorial sea of each State
is measured.” (Convention on the Continental Shelf, Art. 6; emphasis
added.)

32. Thus, the 1958 Convention called for a solution by agreement
between the States concerned and, failing such an agreement, for applica-
tion of the equidistance or median-line method (depending on whether
the States were adjacent or opposite to each other). This is what interna-
tional lawyers at that time called the “equidistance/special circumstances
rule”, despite the Court’s statement in paragraph 176 of the present Judg-
ment to the contrary (see para. 17 of this opinion).

I wish to reiterate that these provisions in Article 6 of the 1958 Con-
vention on the Continental Shelf are not the same as the provisions relat-
ing to the boundary of the territorial sea in Article 12 of the 1958 Con-
vention on the Territorial Sea and the Contiguous Zone. In my view, the
difference in the applicable provisions is due to the differences in size and
nature of the areas concerned. I am afraid that the Court is manifestly
unaware of these differences (see para. 17 of this opinion).

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33. The boundary of the continental shelf was one of the most contro-
versial issues dealt with at UNCLOS III (1973-1982). The discussion at
the Conference started with an examination of the text of Article 6 of the
1958 Convention on the Continental Shelf but the Conference was divided
into two schools of thought: one favouring the “equidistance” rule and
the other favouring the “special circumstances” rule. After preparation of
several informal negotiating texts (the 1975 Informal Single Negotiating
Text (ISNT), the 1976 Revised Single Negotiating Text (RSNT), and
the 1977 Informal Composite Negotiating Text (ICNT) which, as a
procedural device, would only provide a basis for negotiation) the
Chairman of a negotiating group suggested in 1980 a compromise text
(ICNT/Rev.2), which reads:

“The delimitation of the . . . continental shelf between States with
opposite or adjacent coasts shall be effected by agreement in
conformity with international law. Such an agreement shall be in
accordance with equitable principles, employing the median line
or equidistance line, where appropriate, and taking account of all
circumstances prevailing in the areas concerned.” (UNCLOS III,
Official Records, Vol. XIII, pp. 77 f.)

This text remained unchanged in the draft Convention (ICNT/Rev.3)
until August 1981 when the President of the Conference introduced a text
which, having the general support of the two opposing schools, became
Article 83 of the 1982 United Nations Convention (which is not quoted
in the Judgment):

“1. The delimitation of the continental shelf 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 Statute
of the International Court of Justice, in order to achieve an equi-
table solution.

2. If no agreement can be reached within a reasonable period of
time, the States concerned shall resort to the procedures provided
for in Part XV.”

(For the drafting history of the texts quoted above, see my dissenting
opinion in the 1985 continental shelf case between the Libyan Arab
Jamahiriya and Malta (Continental Shelf (Libyan Arab Jamahiriyal
Malta), Judgment, 1 C.J. Reports 1985, p. 148).)

34. The text of Article 83 of the 1982 United Nations Convention on
the Law of the Sea made no reference, in connection with the boundary
of the continental shelf, to the “equidistance” (or median-line) or “special
circumstances” method (found in Article 6 of the 1958 Convention on the
Continental Shelf), and thus the “equidistance/special circumstances”
rule of the 1958 Convention on the Continental Shelf does not appear in
the text of the 1982 United Nations Convention. It must be kept in mind,

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however, that the “equidistance/special circumstance” rule had through-
out UNCLOS III been considered as a major premise of the discussion.
This demonstrates the difficulties faced in formulating general rules for
the delimitation of the continental shelf.

35. I would like to refer at this juncture to the concept of the exclusive
economic zone which appeared during UNCLOS HI. The concept
emerged early in the 1970s as acceptance of a 200-mile zone became
inevitable in the light of increasing demand, particularly by developing
nations, for wider coastal areas for exclusive fisheries; the concept
was established in the 1982 United Nations Convention on the Law of
the Sea (Chap. V). For delimitation of the exclusive economic zone,
UNCLOS III simply attempted to make use of the concept already
applicable to the delimitation of the continental shelf. Thus, we find
Article 74 concerning the boundary of the exclusive economic zone,
which is identical in substance to Article 83 on the boundary of the
continental shelf.

These two areas, the continental shelf and the exclusive economic zone,
and their respective boundaries could theoretically be different. However,
considering on the one hand that the continental shelf, first defined by
reference to depth in the 1958 Convention on the Continental Shelf, was
redefined in the 1982 United Nations Convention in terms of distance
and on the other hand that the exclusive economic zone, having started
out as a fishery zone, turned into a zone conferring broader jurisdiction
upon the coastal State to control the exploitation of sea-bed resources,
these two areas could not as a general rule be different, at least within 200
miles of the coast. Although the 1982 United Nations Convention treats
the two concepts of the exclusive economic zone and the continental
shelf differently, and in separate parts of the Convention, namely, in its
Parts V and VI, matters relating to the delimitation of the respective
areas of the continental shelf and the exclusive economic zone were
dealt with together at UNCLOS III and resulted in virtually identical
provisions in the Convention.

I have already noted above that the term “single” boundary has
through the Court’s jurisprudence come to mean an identical boundary,
being a single line for the two different régimes of the continental shelf
and the exclusive economic zone. I reiterate: the term “single” boundary
does not mean otherwise, despite the Court’s use of this word in a dif-
ferent sense in the present Judgment (see para. 12 of this opinion).

36. In the light of the development of the provisions concerning the
delimitation of the continental shelf, it is difficult to speak of agreed or

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established rules concerning the drawing of the boundary of the conti-
nental shelf. It was, however, widely agreed that the delimitation of the
maritime resources areas (continental shelf and exclusive economic zone)
must be determined by agreement between the neighbouring States con-
cerned on the basis of international law and that the consideration of
equity must always predominate. This was already clear at the time of the
1945 Truman Proclamation, which states that “the boundary shall be
determined by the United States and the State concerned in accordance
with equitable principles”. If agreement could not be reached between the
States concerned, a solution was to be sought from a competent third
party. This principle appears in the 1982 United Nations Convention,
which provides that “[i]f no agreement can be reached within a reason-
able period of time, the States concerned shall resort to the procedures
provided for in Part XV” (1982 United Nations Convention, Art. 74,
para. 2, and Art. 83, para. 2).

However all efforts to identify objective, decisive criteria of equity or
the equitable principle which would lead to an equitable solution for the
delimitation of the continental shelf have been unsuccessful.

37. In diplomatic negotiations (which are at any rate affected by the
diplomatic skills of the parties) each party concerned may cite various
political, social and economic factors in support of the boundary line
most favourable to it: namely, the extent of the territories, the popula-
tion, the distribution of natural resources, the degree of economic and
industrial development, etc., of the respective parties. However, consid-
eration of these factors cannot produce a solution unless the parties agree
on them and the parties may well disagree on the way in which these ele-
ments should be taken into account. Furthermore, a third party may not
be competent to foresee or initiate further development of universal poli-
cies of social justice extending beyond existing principles and rules of
international law.

The geography of the areas concerned has played a very important role
in the drawing of maritime boundaries ever since the International Law
Commission first dealt with the law of the sea. Rarely has any other fac-
tor been considered to affect this determination and consensus has been
reached under Article 6 of the 1958 Convention on the Continental Shelf
that the concept of geographical equity lies at the heart of the criterion of
equitable considerations.

38. To return to the year 1958, the “equidistance/special circumstances”
formula, adopted at UNCLOS I in 1958, could have been interpreted to
permit either of two methods: (i) the line of equidistance should be meas-
ured from the coast of the continent or landmass, but taking into con-
sideration any existing islands and certain other geographical features as
special circumstances which might modify that line, or (il) the line of
equidistance should be measured taking account of all coasts (those of

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islands as well as those of the mainland) but ignoring some tiny islands
and certain other geographical features which could otherwise be deemed
to constitute special circumstances. In point of fact, these two approaches
could lead to the same conclusion. It would have been difficult in the case
of vast areas (in contrast to the case of the rather narrowly defined three-
mile areas generally agreed in 1958 to constitute the territorial sea) to fix
the equidistance line definitively and unequivocally.

Would it not be correct to interpret the equidistance/special circum-
stances rule to mean that the line of equidistance, from the outset, should
be drawn taking into consideration the topography of the region, which
is vast, as a whole. This is why I have advocated the macrogeographical
approach.

39. Appearing as counsel for the Federal Republic of Germany in the
North Sea Continental Shelf cases, 1 stated on 25 October 1968 that:

“I propose that the lines of demarcation be drawn from a basis
represented by the coastal ‘façade’, if I may so call it.

I respectfully submit that we have in the façade method a theory
which becomes more useful in the particular circumstances of greater
distance from the shore. In contrast to the equidistance method
whose value, given an irregular coastline, may decline with the dis-
tance, the façade theory provides us with a method which can equi-
tably apportion far-ranging offshore areas.” (Argument of Professor
Oda, LC. J. Pleadings, North Sea Continental Shelf, Vol. IL pp. 62,
63; emphasis added.)

In reply to a question put by Judge Sir Gerald Fitzmaurice immediately
after this statement, I stated on 5 November 1968:

“The coastal façade, as | envisage it, represents a view taken of a
State’s coastal front with the intent of placing it in the proposed per-
spective in relation to the coastal front of its neighbouring States.
Such a perspective would lead to a division granting each State a just
and equitable share. In order to visualize such a façade, one should
be guided by the general direction of the coast; in some particular
cases, the most useful course would be to take the whole coastline of
a country as constituting an entity.

This fagcade line is a macrogeographical viewpoint which is a
further abstraction from the microgeographical viewpoint. The lat-
ter consists in the drawing of the linear coastline as, for example, is

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envisaged in the concept of the straight baseline, whereas the facade
theory involves a further abstraction from the actual coastal configu-
ration and, therefore, should be characterized as a macrogeographi-
cal viewpoint.” (Reply of Professor Oda, C.J. Pleadings, North
Sea Continental Shelf, Vol. Il, pp. 193, 195; emphasis added.)

From my present viewpoint, I am not quite satisfied with my statement
in 1968. However, I suggested that the “equidistance/special circum-
stances” rule (which existed under the 1958 Convention on the Continen-
tal Shelf) should be seen in the light of the geographical circumstances
viewed from the macrogeographical perspective. In the present case, it
would in my view have been most important to examine the topography
of this region from the macrogeographical perspective and then draw the
equidistance line, which could then have been adjusted to take account of
special circumstances.

3. Drawing of the Maritime Boundary in the Present Case

40. Let me turn to the drawing of the maritime boundary in the
present case. Attached hereto are two sketch-maps prepared for purposes
of illustration (p. 144 below).

(1) Viewing the whole region in the present case from the macrogeo-
graphical aspect, I see the following coastal façades or coastal fronts.

(i) Qatar and Bahrain are opposite States whose coasts face each
other in the Gulf of Bahrain (see line a-b, connecting points A, B
and C, and line c-d, connecting points D, E and F, in sketch-
map I);

(ii) Iran hes to the north-east of the Gulf, and Saudi Arabia, Bah-
rain and Qatar to the south-west. In the centre of the Gulf, these
latter three States become, in their relationship with each other,
adjacent States. Bahrain occupies one part of the coastal facade
between Saudi Arabia and Qatar, facing Iran on the north-
eastern side of the Gulf (see line e, connecting points D and G,
in sketch-map I).

(2) I would suggest the equidistance line (line f) as the maritime bound-
ary between the opposite façades in the Gulf of Bahrain (line a-b and
line c-d), and, as the maritime boundary between adjacent States, an
equidistance line (line g) perpendicular to the coastal facade of these
three States (line e) at point H where line f meets line e, as determined
in accordance with the established geometrical method described in
Shalowitz’s book Shore and Sea Boundaries, Volume I (1962).

(3) The northern segment of the maritime boundary line (line g)
approaches the undefined area located between the easternmost point
of the agreed Iran/Saudi Arabia line and the westernmost point of

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the agreed Iran/Qatar line. The southern segment of the maritime
boundary line (line f) approaches the undefined area beyond the
southeastern end point of the agreed Bahrain/Saudi Arabia bound-
ary line.

(4) This maritime boundary must be adjusted to take account of the
Hawar Islands, which are under the sovereignty of Bahrain but
located on Qatar’s side of the maritime boundary line. The Hawar
Islands should not be denied their traditional territorial sea of three
miles which, however, should not extend beyond the median line
between the Qatar peninsula and the Hawar Islands. Thus the mari-
time boundary constitutes a kind of enclave as indicated in sketch-
map I.

(5) I do not see any other circumstances which might affect the maritime
boundary as thus drawn. Qit’at Jaradah, though under the sover-
eignty of Bahrain, should not, because of its physical nature, have
any influence on the boundary (see my argument on islets and low-
tide elevations in paragraphs 6 to 8 and 20 to 21 of this opinion).

41. In the sketch-maps I and II attached to this opinion, I present
quite independently of the map the Court produces, a boundary line
which in my view is the most appropriate in meeting the requirements of
equity. As I stated earlier, there is not necessarily a sole and definitive
boundary line that alone meets the requirements of an equitable solution
and the consideration of equity does not necessarily lead to the determi-
nation of one particular or definitive line. My suggestions concerning the
coastal façade or coastal front method and the line so produced may, of
course, be subject to criticism. The Court’s task is to indicate one line
from among the many lines that may reasonably be proposed.

Although I consider that my proposal for a boundary line, as indicated
above, would have provided a possible solution, I have voted in favour of
paragraph (6) of the operative part of the Judgment, for the reasons
given in paragraph 10 above, for the maintenance of the friendly rela-
tions between the two States. The two sketch-maps are attached hereto
solely in the hope that my view of equity in the drawing of a boundary of
the continental shelf or the sea areas for the exploitation of sea-bed
resources may in future assist governments in their negotiations with
neighbouring States.

(Signed) Shigeru Opa.

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144 DELIMITATION AND QUESTIONS (SEP. OP. ODA)

Map I. Maritime Boundary between Qatar and Bahrain Proposed by Judge Oda
Carte n° [. Délimitation maritime entre Qatar et Bahreïn proposée par M. Oda

50°E 15" 30° 45" 51°E 18° 30° 45
20° ; } E | . xf E } ; | + 20°
° aN
—— existing maritime boundaries
— coastal front or coastal façade of Qatar and Bahrain
== proposed maritime boundary : .
10°44 _ _ Dee éasre à ooa coca tan Lee cree eae = 10
—— limites maritimes existantes : .
—— front côtier ou façade côtière .
de Qatar et Bahreïn :
27N 4 — limite maritime proposée ; | Ht 27°N
50' + aoe . . a . . woe . mue ne À a dues = 50°
. deg :
40°44 . - : : rt 40°
No: . :
30° — pr 30°
20 — d- 20°
À Saudi Arable”
10 — rt 10°
26°N - - 26°N
50°44 Le 50°
40 — - 40°
30° - 30'
50°E 5

108