Geoscience Reference
In-Depth Information
erence to Art. 38 of the Statute of the International Court of Justice (ICJ), which specifies
the category of rules that the ICJ must apply, does not provide any clear guidance on how
to address the merits of the question, that is how to draw a boundary line on a map.
The indication of the objective of achieving an equitable solution seems also redund-
ant, as any agreement which has been freely negotiated by the parties embodies, by defin-
ition, an equitable solution. Paragraph 4, which provides that, where there is an agreement
in force for the states concerned, the agreement applies, somehow recalls the story of Mon-
sieur de La Palice. Some substantive content can only be found in paragraph 3 which,
however, has a provisional character. It can be understood as a confirmation of the general
obligation of the states concerned to behave in good faith in order to reach a final agree-
ment on delimitation. But it is impossible to infer from UNCLOS Arts. 74 and 83 any fur-
ther guidance on how to give a final solution to the problem.
The vague content of Arts. 74 and 83 of the UNCLOS was due to practical reasons.
During the negotiations, states involved in complex issues of maritime delimitation
strongly opposed specific solutions which would have played in favour of their opposite
or adjacent neighbouring states. Also states facing manifold issues of delimitation, depend-
ing on the characteristics of the coastlines and the different neighbouring states concerned,
preferred a vague provision which would grant them enough flexibility to be able to play
different games in different fields. It was unwise to force the situation by trying to set forth
clear-cut solutions in the text of the UNCLOS. This explains the UNCLOS drafter's choice
to leave the very controversial issue of delimitation unresolved. It was necessary to avoid
the opening of a Pandora's box which could have precluded adoption of the Convention it-
self or its universal acceptance.
The stalemate of the UNCLOS is so evident that in the award rendered on 17 Decem-
ber1999onthe
Eritrea-Yemen Arbitration (Second Stage: Maritime Delimitation
)casethe
following remark is made: 'In any event there has to be room for differences of opinion
abouttheinterpretation ofarticles [Arts.74and83oftheUNCLOS]which,inalastminute
endeavour at the Third United Nations Conference on the Law of the Sea to get agreement
