Maritime Boundary Delimitation and Oil & Gas Deposits

Implications for Energy Companies 

By Ondotimi Songi and Denye Ayemieye

Maritime boundary delimitation involves a process of establishing maritime lines that separate the spatial ambit of coastal states where there is an overlap, and determines their respective maritime jurisdiction.[1] It is done mainly for the purpose of avoiding disputes over rights of sovereignty of coastal states because maritime boundaries pose a lot of political and security risks in global affairs. Where boundaries are delimited, it means there is some legal certainty for economic activities such as exploration and exploitation of both living and non-living natural resources to take place.

The law on maritime delimitation has evolved at different stages of the historical development of the law of the sea. In the first stage, customary international law determined maritime boundary delimitation, which is before 1958. But in 1958, the four Geneva Conventions[2] regulated the delimitation of maritime boundaries but with a lot of influence from customary international law. This may be regarded as the second phase with the third phase subsequent to 1982 following the birth of the United Nations Convention on the Law of the Sea[3] (UNCLOS). However, it may be argued that while statute law seems to regulate the delimitation of maritime boundaries, customary international law seems to be having a huge impact. 

The most striking feature of this aspect of the law of the sea is its flexibility as there is no prescribed method by which maritime boundaries may be delimited. As will be seen later, what international law of the sea requires is that maritime boundaries be delimited by agreement in accordance with equitable principles bearing in mind relevant and special circumstances of each case to achieve an equitable solution or result. What amounts to equitable principles are not specified and what may be considered a relevant circumstance may seem endless.[4]

This flexibility in the law of the sea with respect to maritime delimitation may appear to have

 given international courts and tribunals some latitude in dealing with cases on maritime boundary delimitation. However, this may not be the case when case law is examined as the courts place relevance on certain factors in delimiting maritime boundaries. Accordingly, this paper will discuss how much significance international courts and tribunals attach to the existence of oil and gas deposits as a factor when delimiting maritime boundaries between opposite or adjacent States with a view to highlighting what it portends for energy companies. The research will examine relevant international law of the sea provisions and judicial authorities in an attempt to achieve the objective of the paper.

The first section of this paper looks briefly on the various laws governing maritime boundary delimitation between opposite and adjacent states under the three phases of the development of the law as stated earlier. The second part of the paper then considers some of the factors that international courts and tribunals take into consideration in delimiting maritime boundaries with a view to identifying to what extent the existence of oil and gas deposits may be considered a significant factor. The paper concludes with highlighting what the position of international courts and tribunals portend for energy companies. 

 Maritime Boundary Delimitation between Opposite and Adjacent States

As noted earlier, the law on maritime boundary delimitation between opposite or adjacent states is flexible. Under customary international law, delimitation between opposite states is done using the median line, equidistant from the nearest points of the opposing states shores (Equidistant line method). In the case of adjacent states, delimitation is actualized to produce an equitable result or solution based on ‘relevant’ circumstances. 

Under Article 6 of the Continental Shelf Convention, delimitation is based on agreement but in the absence of the latter, it is based on equidistance (median line) taking into consideration ‘special’ circumstances. However, the argument is that the phrases ‘relevant’ or ‘special’ are of no issue as they have been held to mean one and the same[5] with both meant to achieve an equitable solution or result.[6]

Article 15 of UNCLOS that deals with delimitation of maritime boundaries between opposite or adjacent states in the territorial waters similarly provides for an “equidistance-special circumstances” rule[7] which has been held to have a customary character.[8] Articles 74(1) and 84(1) of UNCLOS provide for the delimitation of the Exclusive Economic Zone and the Continental Shelf respectively. They provide for effecting the delimitation between opposite or adjacent states by agreement, in accordance with international law as specified in Article 38 of the Statute of the International Court of Justice (ICJ) and in order to achieve an equitable result. Where an agreement is not reached within a reasonable time, a dispute settlement procedure under Part XV of UNCLOS is resorted to by the parties.[9] However, pending an agreement the parties may undertake provisional measures of a practical nature but not to jeopardise any final agreement.[10] Ironically, article 38 of the ICJ Statute is not helpful in this regard as it only mentions international treaties, conventions, customs, general principles of law, and opinions of jurists as constituting sources of international law.

What is, therefore, envisaged by UNCLOS is that before approaching the courts or tribunals, state parties should have attempted to resolve their maritime disputes by agreement (formal or tacit) that failed. In the case of tacit agreement such as state practice in oil concessions, the evidence must be compelling and long standing.[11]

Again, under UNCLOS there is no specific reference to equidistance or equitable principles but the same goal is to be achieved – an equitable solution without specifying how that goal is to be achieved. However, the practice of the courts and tribunals in trying to achieve an equitable solution has shown an application of a combination of the provisions of statute law and customary international law on maritime boundary delimitation. Thus the courts and tribunals usually proceed on finding whether there is an agreement between the parties on any aspect of the delimitation which it does not interfere with. Where there is no agreement or the agreement does not cover the entire spectrum of the disputed maritime boundary, the court will usually start with an equidistant approach based on pure legal considerations unless there are special/relevant circumstances that would prevent reaching an equitable solution. What will constitute relevant/special circumstances forms the subject of the next section.

Nutshell

Enlightening us on the international legal regime for resolving sovereignty issues which may arise regarding maritime boundaries especially in relation to how this might affect claims for substantive and economically viable offshore oil and gas rigs, the authors, Ondotimi and Denye , here discuss how much significance international courts and tribunals attach to the existence of oil and gas deposits as a factor when delimiting maritime boundaries between opposite or adjacent States with a view to highlighting what it portends for energy companies. This is the first part of this interesting read. In this part the authors have examined briefly the various laws governing maritime boundary delimitation between opposite and adjacent states. Comments, questions and discussions on this issue are welcome. Read, Learn and Discuss! For more information about this article and to view Ondotimi's professional profile, click here -->

*Ondotimi Songi, LL.B (Hons); BL; LL.M (Distinction); Research Student and Scholar, Centre for Energy, Petroleum and Mineral Law and Policy, University of Dundee, Scotland, United Kingdom. E-mail: O.Songi@dundee.ac.uk

**Denye Ayemieye, LL.B (Hons); BL; LL.M (in-view), School of Law, University of Dundee; Barrister and Solicitor of the Supreme Court of Nigeria; E-mail: dtayemieye@gmail.com

[1] Tanaka, Y., Predictability and Flexibility in the Law of Maritime Delimitation, (Portland: Hart Publishing, 2006) p.7

[2] Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958, 516 UNTS 205; Convention on the Continental Shelf Geneva, 29 April 1958, 499 UNTS 311; Convention on the High Seas, Geneva, 29 April 1958, 450 UNTS 11; and the Convention on Fishing and Conservation of the Living Resources of the High Seas, Geneva, 29 April 1958, 55 UNTS 285

[3] United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, entered into force 16 November 1994, 21 ILM 1245 (1982)

[4] Charney, J.I., “Progress in International Maritime Boundary Delimitation Law”, American Journal of International Law, Vol. 8, No. 2, 1994, pp. 227-256 at p.230

[5] Greenland/Jan Mayen Maritime Delimitation (Denmark v. Norway) [1993] ICJ Reports 38

[6] Churchill, R.R., and Lowe, A.V., The Law of the Sea, Third Edition (Manchester: Manchester University Press) pp. 187-188

[7] Article 15 provides thus: “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. 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.”

[8] Qatar v. Bahrain (Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits Judgment, I.C.J. Reports 2001, p.94, para.176) 

[9] Articles 74(2) and 84(2) of UNCLOS

[10] Articles 74(3) and 84(3) of UNCLOS

[11] SHI Jiuyong, “The Wang Tieya Lecture in Public International Law: Maritime Delimitation in the Jurisprudence of the International Court of Justice”, Chinese Journal of International Law, Vol. 9, Issue 2, 2010, pp. 271–291 at p.278; see also Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002