Nicholas A Ioannides (PhD)

Owing to soaring energy needs and improved drilling technology,
offshore hydrocarbon activities have been on the rise in recent years.
A delimited maritime boundary is an essential precondition for the
establishment of a safe and stable environment which will facilitate
investment and development. Nevertheless, the conclusion of delimitation agreements can be a difficult task due to competing interests and longstanding enmities among neighbouring countries. Significant maritime areas remain undelimited. In order to avoid the problems of both unilateral activities and a complete ‘moratorium’ in undelimited areas, Articles 74(3) and 83(3) of the 1982 United Nations Convention on the Law of the Sea impose two obligations of conduct: pending delimitation agreement, States are under duty to ‘make every effort to enter into provisional arrangements of a practical nature’, while, at the same time, the interested parties should refrain from acts that might ‘jeopardize or hamper the reaching of the final agreement’. Bearing this in mind, it is argued that unilateral drilling and, under certain circumstances, unilateral seismic surveys in undelimited maritime areas should not be allowed and such conduct might trigger State responsibility. However, given that complete inactivity in such areas was not the intention of the drafters of the Convention, it is argued that several activities may be permitted as long as they are performed in good faith and do not put any final agreement at risk.

In an era where hydrocarbon exploration and exploitation activities keep soaring, the law of maritime delimitation has a vital role to play. Even though the optimal result in a delimitation dispute would be the establishment of a definitive and permanent boundary, international law envisages rules for the regulation of offshore activities in undelimited/disputed maritime areas as well. In order to delimit their respective maritime areas and proceed with hydrocarbon operations, Ghana and Côte d'Ivoire submitted their maritime dispute to a Special Chamber of ITLOS. The Chamber had to address a series of issues, including the existence or not of a tacit delimitation agreement, the de-limitation of the relevant maritime area both within and beyond 200M and the alleged international responsibility of Ghana. After resolving that there was no tacit delimitation agreement, the Chamber applied the three-stage method and designated a maritime boundary based on equidistance for the area both within and beyond 200M. Nonetheless, the Chamber's findings with respect to the 'constitutive nature' of a delimitation judgment, delimitation beyond 200M in the absence of recommendations issued by the CLCS and the performance of unilateral drillings in undelimited/disputed maritime areas appear to be controversial and precarious.

On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention.

Last month, Turkey submitted a note verbale to the Secretary-General of the United Nations setting out the geographical coordinates of its continental shelf in the Eastern Mediterranean, as established by a delimitation agreement with the “Turkish Republic of Northern Cyprus” (“TRNC”). The agreement was signed on 21 September 2011 and ratified by the Turkish government on 29 June 2012. (The reasons why the “TRNC” is in quotation marks will be elaborated below.) By transmitting this document to the UN Secretary-General, Turkey sought to achieve the publication of the agreed coordinates in the Law of the Sea Bulletin (LSB), where official submissions by states regarding the law of the sea are published. Although Turkey has not acceded the UN Law of the Sea Convention (‘LOSC’), it acted in accordance with article 84(2) LOSC (due publicity of charts or lists of geographical coordinates regarding continental shelf delimitation). Nonetheless, the submission of Turkey was not listed as an official deposit on the website of the Department of Oceans and the Law of the Sea (DOALOS).

As will be seen, the Court applied its 'standard' delimitation methodology. The three-stage approach to delimiting the exclusive economic zone (EEZ) and continental shelf involved drawing a provisional equidistance line from the chosen base points; adjusting this provisional line for equity in light of the relevant circumstances; and ensuring that the proportionality requirements were met. The final boundary delimitation line between Somalia and Kenya is an adjusted equidistance line, which favours Somalia's position.

In an era where hydrocarbon exploration and exploitation activities keep soaring, the law of maritime delimitation has a vital role to play. Even though the optimal result in a delimitation dispute would be the establishment of a definitive and permanent boundary, international law envisages rules for the regulation of offshore activities in undelimited/disputed maritime areas as well. In order to delimit their respective maritime areas and proceed with hydrocarbon operations, Ghana and Côte d'Ivoire submitted their maritime dispute to a Special Chamber of ITLOS. The Chamber had to address a series of issues, including the existence or not of a tacit delimitation agreement, the de-limitation of the relevant maritime area both within and beyond 200M and the alleged international responsibility of Ghana. After resolving that there was no tacit delimitation agreement, the Chamber applied the three-stage method and designated a maritime boundary based on equidistance for the area bo...

Owing to soaring energy needs and improved drilling technology, offshore hydrocarbon activities have been on the rise in recent years. A delimited maritime boundary is an essential precondition for the establishment of a safe and stable environment which will facilitate investment and development. Nevertheless, the conclusion of delimitation agreements can be a difficult task due to competing interests and long-standing enmities among neighbouring countries. Significant maritime areas remain undelimited. In order to avoid the problems of both unilateral activities and a complete ‘moratorium’ in undelimited areas, Articles 74(3) and 83(3) of the 1982 United Nations Convention on the Law of the Sea impose two obligations of conduct: pending delimitation agreement, States are under duty to ‘make every effort to enter into provisional arrangements of a practical nature’, while, at the same time, the interested parties should refrain from acts that might ‘jeopardize or hamper the reachin...

Abstract State practice reveals that the main reason states conclude maritime delimitation agreements is their desire to reap the benefits accruing from offshore natural resources, especially hydrocarbons. However, international jurisprudence has not expressly taken nongeographical factors into consideration in delimitation cases, even though it has also not totally disregarded them. Since such factors individually have been in the judges’ minds, it is suggested that if a state is capable of proving that these factors indicate the existence of fundamental interests in an undelimited area, all of those should be contemplated in accumulation and form a distinct concept, namely, the “predominant interest.” In a nutshell, the concept analyzed in this article refers to the aggregation of a gamut of nongeographical factors that, although they have not been taken into consideration separately in delimitation cases, tend to evince the existence of fundamental interests, which form a broader one, namely, the “predominant interest.” This article proposes that the “predominant interest” concept could be utilized by international courts and tribunals in order to check the equitableness of a maritime boundary at the second stage of the delimitation process concerning the continental shelf/exclusive economic zone (EEZ), after relevant circumstances predicated on geographical factors have been examined. In any case, though, it is asserted that this concept should not be invoked so as to justify excessive claims. To the contrary, it should be applied in support of contentions made in good faith with a view to safeguarding the essential interests of a state.

According to Articles 16, 75 and 84 of the 1982 United Nations Convention on the Law of the Sea (LOSC), States Parties are under a triple obligation to draw, publish and deposit with the UN Secretary-General charts and/or lists of geographical coordinates of points concerning straight baselines, the outer limits of their maritime zones and delimited maritime boundaries. Interestingly, several States Parties have chosen to advance their maritime claims through the exercise of these duties. The expression of claims through these obligations prior to the reaching of maritime boundary delimitation could be accepted, if the claims are in compliance with the LOSC and the submission is merely of a declaratory nature seeking to ‘formalise’ a State Party’s claims, with the caveat that such assertions are subject to the designation of a definitive boundary, given that there is no such thing as ‘unilateral’ delimitation in international law.