4.1.1. Judgments and Decisions Given before the Creation of the Concept of the EEZ

Since 1930 a considerable number of new claims to maritime jurisdiction have been advanced by coastal states, both over a larger territorial sea and other forms of maritime jurisdiction.Footnote ⁵⁶ As mentioned above, since the 1960s individual states have made unilateral claims for larger zones of jurisdiction,Footnote ⁵⁷ including during the UNCLOS III negotiations. Some states accepted these enlarged claims, while others rejected them.Footnote ⁵⁸ Despite the absence of a clear legal rule on the issue,Footnote ⁵⁹ emerging state practice implied the recognition that coastal states are entitled to extend their jurisdiction unilaterally.

In the 1951 Fisheries Case and 1974 Fisheries Jurisdiction cases, while there was no reference to the parties’ entitlement to extend their maritime zones specifically, the ICJ did consider the competence to extend ‘fishery jurisdiction’ beyond national territory in general, the question of extending jurisdiction being essentially an examination of the establishment of entitlement to maritime zones. In the 1951 Fisheries Case, the Court determined that while having an international aspect, delimitation of sea areas of all kinds is essentially a unilateral act as only the coastal state is competent to lay claim to such areas.Footnote ⁶⁰ In the 1974 Fisheries Jurisdiction cases, the ICJ examined the extension of ‘fishery jurisdiction’ and its compatibility with rules of international law at the time. In order to examine whether existing international law allows the extending of jurisdiction and establishing entitlement to zones beyond national jurisdiction, the Court reviewed state practice through domestic legislation, bilateral agreements and the travaux préparatoires of UNCLOS III, and reached the conclusion that despite the desire to codify the law, it cannot give judgment or anticipate the law before the legislator has enacted it.Footnote ⁶¹

It is interesting to note that in the 1974 cases, the ICJ ignored the fact that there was already substantial state practice of unilateral extension of coastal jurisdiction, similar to the acts observed by the Court in the 1951 case.Footnote ⁶² Unlike the 1951 case, in 1974 the Court determined that states are not ‘free, unilaterally or according to [their] own discretion, to determine the extent of those rights’.Footnote ⁶³ The conclusion was that coastal states are not entitled by law to claim preferential rights unilaterally, and that entitlement to these rights does not exclude other coastal states from fishing activity in the area.Footnote ⁶⁴

Regarding the basis for entitlement, the Court recognised the importance of coastal states’ economic development, which meant that economic circumstances such as dependence on coastal fisheries for livelihood formed the basis of the competence to extend jurisdiction, but held that exercising this jurisdiction must be by agreement.Footnote ⁶⁵ The 1958 conference did not envisage the unilateral assumption of exclusive rights by the coastal state; rather, it envisaged that states have a certain preference in the exploitation of the fisheries in adjacent areas of the high seas. Fisheries conservation outside the territorial sea was a matter that should be settled between coastal states. Thus, the ICJ concluded that Iceland's unilateral claim was not in accordance with the existing conventions of the time.Footnote ⁶⁶

In the author's view, the conclusion in the 1951 Fisheries Case that marking the outer limit of a maritime zone is a unilateral act better reflects the practice that has developed regarding the extension of jurisdiction. This was subsequently also reflected in the final language of UNCLOS – namely that a state's entitlement to maritime zones does not depend on the practice or interests of other states. However, even this conclusion did not specify the nature of the act, only that such an act establishes the outer limit.

The separate declarations and opinions in the 1974 Fisheries Jurisdiction cases argued that the ICJ focused erroneously on the exercise of preferential rights rather than on the question of entitlement to extend jurisdiction.Footnote ⁶⁷ These opinions argued that the Court ignored the question of the legality of the claims and constructed a system of reasoning that allows for the unilateral extension of exclusive fishing rights to 50 nm from the baselines. These opinions also argued that the Court did not examine the question of entitlement and its establishment, even though the term ‘fisheries jurisdiction’ must involve an element of jurisdiction, such as enforcement of conservation measures and exercise of preferential rights, rather than merely the extension of a geographical boundary line or limit. Such an extension would be meaningless without a jurisdictional aspect.Footnote ⁶⁸ This means that there must be a legal act to establish entitlement, assert jurisdiction and exercise rights, and that a mere physical fact – extension of a geographical boundary – is not the basis for jurisdiction.

4.1.2. Judgments and Decisions Given after the Adoption of UNCLOS and the Concept of the EEZ

The problem described above was not resolved even with the emergence of the concept of the EEZ and the adoption of the text of the Convention. Despite the implicit requirement of UNCLOS to proclaim an EEZ, international judicial bodies still paid little attention to the question of proclamation. International adjudication did not analyse the parties’ entitlement before delimiting overlapping maritime zones. Instead, it constructed a ‘new criterion’ or reasoning for entitlement to the EEZ, which is not compatible with state practice or with the Convention. Even when the ICJ did acknowledge the requirement for proclamation, it did not examine the nature of such a proclamation or how it is exercised; nor did it examine whether it could decide the question of delimitation if the parties had not proclaimed an EEZ.

In the 1982 Continental Shelf case between Tunisia and Libya, the ICJ determined, contrary to the 1951 Fisheries Case and in line with the 1974 Fisheries Jurisdiction cases, that the unilateral establishment of international maritime boundary lines violates international law as the 1958 Conventions provide that maritime boundaries should be determined by agreement between the parties.Footnote ⁶⁹ The Court essentially ignored the newly drafted Convention, which, although not yet in force at the time, reflected the development of the concept of the EEZ and the change in the concept of entitlement to it within the international community. While the Court did consider the question of entitlement, no reference was made to its establishment – the requirement of proclamation. The Court also did not examine whether the parties had established an EEZ; at the time of the proceedings neither party had established such entitlement.Footnote ⁷⁰ If neither party had proclaimed an EEZ, they had no entitlement to it. Therefore, this raises a question of the ICJ's competence to delimit a zone that has not been proclaimed and hence does not exist.

Most of the separate or dissenting opinions also did not mention the need for proclamation or the establishment of entitlement to a zone to which the coastal state is not entitled ipso facto or ab initio. Rather, these opinions reflect a new concept: the ‘distance criterion’, which in their view establishes entitlement to the EEZ despite the fact that this criterion measures the extent or breadth of the zone but does not relate to entitlement to it.Footnote ⁷¹

One separate opinion, while referring to the ‘distance criterion’, also recognised state practice in relation to proclamation.Footnote ⁷² However, despite mentioning the act of proclamation, neither the majority opinion nor this separate opinion defined the nature of the act or its legal status. As in the Fisheries Jurisdiction cases, as there is no clear rule in the legal text on the basis for entitlement, state practice became the operational prescription for proclamation. However, there was no examination of the practice beyond mentioning that there is one.

There seems to be confusion between the primary question of entitlement and the secondary question of defining the breadth of the maritime zone. The criterion for entitlement under UNCLOS is a proclamation, and the maximum extent that a coastal state can proclaim is 200 nm. However, the ICJ refers only to the secondary issue of distance, which means that coastal states are entitled to a 200 nm EEZ. In doing so, the Court turned entitlement to an EEZ into an ipso facto or ab initio entitlement, which is a different criterion from proclamation and thus a new criterion, which has no basis in the Convention. It is unclear what the judges based their opinions on, there being no provision in international law to say that the extent of a territory indicates the competence of the coastal state to claim it. The breadth of the EEZ merely marks the maximum point of the outer boundary, once the coastal state has established entitlement to the maritime zone. It does not dispense with the need to establish the zone prior to demarcating its outer limits. Thus, the distance criterion cannot be the basis for entitlement.

In the 1984 case on Delimitation of the Maritime Boundary in the Gulf of Maine Area between Canada and the United States, the ICJ addressed the fact that both parties claimed a fishery zone through domestic legislation.Footnote ⁷³ The United States, during the proceedings, issued a proclamation for the EEZ;Footnote ⁷⁴ this was based on the 1982 Convention and coincided with the previously constituted fishing zone of the US.Footnote ⁷⁵ The formal proclamation was accompanied by a statement by the US President accepting that the Convention generally confirmed existing rules of international law concerning the EEZ.Footnote ⁷⁶

It seems that the United States did proclaim an EEZ, even if this occurred during the proceedings; thus it was entitled to the zone before moving on to the question of delimitation. However, Canada did not make a similar proclamation, even though it recognised the legal significance of the nature and purpose of the new 200 nm EEZ concept.Footnote ⁷⁷ The ICJ ignored the fact that one party had proclaimed an EEZ and the other party claimed only a fishery zone, and the consequences of the absence of an EEZ proclamation on its part. The Court also took for granted its competence to delimit two different maritime zones, assuming that entitlement to both zones is identical.

This was the first case that addressed not only the idea of proclamation of the EEZ (made by the United States), as in previous cases, but also the content of the proclamation and its process. The case is important for understanding the notion of proclamation and EEZ entitlement, as the ICJ noted that legal title to certain maritime or submarine areas is always and exclusively the effect of a legal operation and not of any intrinsic merit in the purely physical fact.Footnote ⁷⁸

Despite the Court's reference to state practice regarding the proclamation of maritime zones – elaborating, however briefly, the operational aspect of the proclamation by referring to the presidential statement that accompanied the domestic legislation – analysis of the issue was still lacking. Again, the practice became the instrument for interpretation of the concept of entitlement. From this we can at least argue that proclamation should be made through domestic law and by expressing the intent and will to establish entitlement to the EEZ.

Contrary to the Tunisia/Libya case, in Gulf of Maine the ICJ rejected the distance criterion and explained that the concept of natural prolongation can also reflect the link between a state's territorial sovereignty and its sovereign rights over waters covering the submerged land.Footnote ⁷⁹ In addition, it held that international law confers on the coastal state legal title to maritime zones adjacent to its coasts, but mere adjacency is not the basis for title, and the mere natural fact of adjacency did not produce legal consequences.Footnote ⁸⁰ This reasoning conforms with the language of UNCLOS, which hints that entitlement to an EEZ depends on an act of proclamation; legal entitlement to an EEZ does not merely stem from scientific facts such as the location of a state but from a legal act which expresses the state's intent.

This case reflects the recognition that the EEZ concept was based on state practice, and was shaped through the process of compromise between different interests.Footnote ⁸¹ The practice developed between 1958 and 1982, before UNCLOS III, both unilaterally and by agreement between states.Footnote ⁸² The practice, which became the interpreting instrument for creating entitlement (‘proclamation’) to an EEZ, suggests that states can unilaterally claim the maritime zone. This conforms more with the language of the Convention, although the ICJ in this case did not examine the nature and content of this practice.

In the 1985 Continental Shelf case between Libyan Arab Jamahiriya and Malta, Libya argued that whereas the rights of the coastal state over its continental shelf are inherent and ab initio, rights over the EEZ exist only in so far as the coastal state chooses to proclaim such a zone.Footnote ⁸³ This was the first time such an argument has been raised regarding entitlement to an EEZ, and while Libya's argument was (and still is) true, the ICJ did not respond to this argument.

In this case, neither party had proclaimed an EEZ, although Malta had proclaimed a 25 nm exclusive fishery zone.Footnote ⁸⁴ While the Court addressed the question of whether the parties had established an EEZ, it did not consider the nature or process of the proclamation; nor was there any explanation of the meaning of the fishery zone. Instead, the Court reverted to the previous misconception of the basis for entitlement, declaring entitlement to the EEZ by reason of distance, shown by state practice to have become part of customary law.Footnote ⁸⁵ As argued before, the measurement of the territory has nothing to do with establishing entitlement for the purpose of exercising rights and jurisdiction in that territory. The Court should have looked at the practice in terms of proclamations or domestic legislation, and not merely at the claimed breadth of 200 nm. Its conclusion contradicts its reasoning in Gulf of Maine, in which it recognised that there must be some legal operation or act to establish entitlement to the EEZ or fishery zone, and that mere adjacency or distance is not a basis for legal entitlement.Footnote ⁸⁶

One of the separate opinions supported Libya's position regarding entitlement to the EEZ, claiming that there was nothing in the 1982 Convention that would give coastal states ab initio and ipso facto rights, as does Article 77(3) concerning the continental shelf. The opinion also stated that the Convention does not require an express proclamation to establish the existence of the EEZ as it already exists. However, the practice was to express a claim for the existence of the EEZ.Footnote ⁸⁷

Despite some support in the literature,Footnote ⁸⁸ the argument that there is no need for a proclamation to establish the EEZ and entitlement to it is difficult to maintain because of the negative language of Article 77(3). In addition, if there is no proclamation to establish the zone, the waters above the seabed and beyond the territorial sea are part of the high seas. Nonetheless, the separate opinion made the correct analysis with regard to entitlement, relying on the Convention and state practice.

In the 1992 Land, Island and Maritime Frontier Dispute between El Salvador and Honduras the ICJ noted El Salvador's 1983 constitution, which defined its jurisdiction over maritime zones, but did not specifically address the question of establishing jurisdiction over the EEZ.Footnote ⁸⁹ It did not mention the establishment of jurisdiction by Honduras over its EEZ,Footnote ⁹⁰ or the establishment by Nicaragua of its EEZ in 1979.Footnote ⁹¹ Although both parties proclaimed an EEZ, the Court did not examine their rights or entitlement to the EEZ prior to delimitation of the zone between the parties. This is especially surprising given the Court's recognition that a proclamation is required in order to establish an EEZ.Footnote ⁹²

In the 1993 case relating to the Maritime Delimitation in the Area between Greenland and Jan Mayen, the ICJ relied on the Gulf of Maine case, and recognised that the laws applicable to the fishery zone are the same as those governing the boundary of the EEZ, which is customary law, based on state practice of proclamation.Footnote ⁹³ However, as in the earlier cases,Footnote ⁹⁴ the Court did not analyse the nature of the proclamation (for example, there was no reference to the possibility of a unilateral claim), although exceptionally, Vice President Oda's separate opinion referred to state practice with regard to unilateral claims of 200 nm maritime zones.Footnote ⁹⁵

We can see that for the most part the Court ignored the issue of proclamation as the basis for establishing entitlement to the EEZ, despite long-standing state practice of proclamation that was subsequently enshrined in the final draft of the Convention. At the same time, it created a new basis for entitlement – one that has no basis in international law. As will be explained, after the Convention entered into force, there was still little reference to the legal nature and operational aspect of creating entitlement to an EEZ through proclamation, while judicial bodies continued to introduce new criteria for entitlement.

4.1.3. Judgments and Decisions Given after UNCLOS Entered into Force

After the entry into force of UNCLOS in 1994,Footnote ⁹⁶ the inconsistency continued in the judicial examination of parties’ entitlement to an EEZ before proceeding to delimit overlapping territories. In addition, the judicial bodies introduced a new criterion, in addition to the ‘distance’ criterion, as the basis for entitlement to the EEZ instead of proclamation.

With regard to the question of the parties having established entitlement, in the first two cases following the entry into force of UNCLOS, the ICJ ignored the fact that one party had no entitlement to the maritime zones in question, again raising doubts over its jurisdiction to delimit the ‘overlapping’ territory.Footnote ⁹⁷

There was also inconsistency in examining the entitlement of the same coastal state in different cases. In the 2007 dispute between Nicaragua and Honduras, for example, the Court mentioned that both parties had established their maritime zones through legislation.Footnote ⁹⁸ However, it did not examine the parties’ domestic legislation establishing the EEZ in the earlier case concerning Honduras and Nicaragua,Footnote ⁹⁹ nor in later disputes concerning Nicaragua and Colombia,Footnote ¹⁰⁰ and Nicaragua and Costa Rica.Footnote ¹⁰¹ These cases also demonstrate that the ICJ ignores the question of entitlement before deciding on delimitation. Even when both parties have an entitlement, there is no reference to this fact, as in other cases.Footnote ¹⁰²

The Arbitral Tribunal and the International Tribunal for the Law of the Sea (ITLOS) have also selectively addressed the establishment by parties of their entitlement to the EEZ. In the 2006 arbitration between Barbados and Trinidad and Tobago the Arbitral Tribunal recognised that both parties had claimed an EEZ through domestic legislation.Footnote ¹⁰³ However, in the 2007 Guyana/Suriname arbitration, while the Arbitral Tribunal noted the fact that both parties adopted domestic legislation relating to their maritime boundaries,Footnote ¹⁰⁴ it ignored the difference in claims.Footnote ¹⁰⁵ In the 2014 Bangladesh/India arbitration the Tribunal addressed the establishment of the EEZ of only one party.Footnote ¹⁰⁶ ITLOS has not addressed the establishment of the parties’ EEZ through domestic legislation at all, even when both parties had established their EEZ.Footnote ¹⁰⁷

With regard to the basis for entitlement to an EEZ, in the Barbados/Trinidad and Tobago arbitration the Tribunal reverted to the distance criterion.Footnote ¹⁰⁸ It also introduced a new criterion for entitlement, stating that the relevant coasts that abut the areas to be delimited represent one of the objective criteria for delimitation relating to the source of entitlement to maritime areas.Footnote ¹⁰⁹ According to the Tribunal, the coast is the basis of entitlement over maritime areas. While it is true that only coastal states have entitlement to proclaim an EEZ, that is not in itself the basis for entitlement to an EEZ, as there can be no EEZ without a legal act to establish it (i.e. proclamation).Footnote ¹¹⁰

Similarly, in the 2009 Maritime Delimitation in the Black Sea between Romania and the Ukraine, the ICJ recognised that the coast can confer title to the continental shelf and to an EEZ.Footnote ¹¹¹ However, according to the Court, it is not enough to acknowledge that the coast generates a general entitlement: there is a further need to determine which part of the coast generates the rights of the parties, those coasts the projections of which overlap.Footnote ¹¹² In the Court's view, coasts that generate projections that do not overlap do not generate entitlement to the continental shelf and the EEZ in that area.Footnote ¹¹³ Of course, such an interpretation contradicts the current practice of unilateral establishment of an EEZ and the language of the Convention. There is no provision under international law that establishes entitlement through overlapping territories, which is a physical feature of a given situation. On the contrary, the requirement for a proclamation suggests a unilateral legal act rather than the involvement of two or more states.

It is interesting to note that the Arbitral Tribunal, in the 2014 Bangladesh/India Bay of Bengal arbitration, did not use the term ‘relevant coast’ as was used in the Black Sea (Romania v Ukraine) case.Footnote ¹¹⁴ It used the term ‘overlapping projections’ rather than ‘overlapping entitlements’, which is more accurate.Footnote ¹¹⁵ However, the dissenting opinion reverted to the distance criterion, maintaining that within 200 nm from the coast the entitlement of coastal states to maritime zones rests solely on the 200 nm distance criterion.Footnote ¹¹⁶

In the 2014 Peru/Chile maritime dispute, the ICJ examined the legal context as it was in the 1950s by reviewing state practice, ILC proposals and the reactions of states or groups of states to those proposals concerning the establishment of maritime zones beyond the territorial sea.Footnote ¹¹⁷ State practice in the 1950s included several unilateral state declarations. However, the Court stated that the notion of a 200 nm EEZ ‘was still some long years away’ at that time.Footnote ¹¹⁸ While recognising the possibility of unilaterally claiming an EEZ, as reflected in state practice, the Court made no mention of the status and meaning of the claimed areas and the claims themselves.Footnote ¹¹⁹

In the 2018 case concerning the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean between Costa Rica and NicaraguaFootnote ¹²⁰ the ICJ again referred to the ‘coast criterion’, quoting the 2012 Nicaragua/Colombia case. The Court indicated that the relevant area is the part of the maritime space in which the potential entitlements of the parties overlap.Footnote ¹²¹ Furthermore, it implied that entitlement in a particular area can be relinquished or cancelled either by agreement with a third party or because that area lies beyond a judicially determined boundary, which means that the area cannot be treated as part of the relevant area.Footnote ¹²² The Court recalled that the relevant area, the identification of which is part of the established maritime delimitation methodology, includes the maritime spaces in which the potential entitlements generated by the coasts of the parties overlap.Footnote ¹²³

Both the ICJ and the tribunals have exhibited a very problematic interpretation of the law and state practice, building on earlier judgments that were misinterpreted. As shown above, their examination of the parties’ entitlement to an EEZ before deciding the question of delimitation is inconsistent. In some cases they have regarded the establishment of entitlement by only one party, even though both parties or neither party had proclaimed an EEZ. However, in most cases, they did not examine at all whether the parties had established entitlement by proclamation. In some cases they moved directly to discuss delimitation, even though at least one party had not established entitlement to its EEZ. In these cases specifically, there is doubt regarding the judicial body's competence to decide the matter.

This pattern is the direct result of the problematic judicial interpretation regarding entitlement to the EEZ, as demonstrated in the first observation. The judicial bodies have ignored the question of proclamation as an instrument to establish entitlement, while simultaneously creating new criteria for entitlement, which have no basis in existing international law and no relevance to the question of entitlement.

4.2.1. Judgments and Decisions Given before the Creation of the Concept of the EEZ

Before the introduction of the EEZ concept, the ICJ distinguished between different types of delimitation: delimitation by marking the outer limit of a maritime zone, and delimitation by marking the border and dividing overlapping areas between states. In the 1951 Fisheries Case and the 1974 Fisheries Jurisdiction case the ICJ determined that, while having an international aspect, delimitation of sea areas of all kinds is essentially a unilateral act because only the coastal state is competent to undertake it. However, the validity of that delimitation with regard to other states depends upon international law.Footnote ¹²⁴

In contrast, Judge Petrén, in a dissenting opinion in the 1974 Fisheries Jurisdiction case, argued that the Court ignored the question of the basis for extending jurisdiction (entitlement), while at the same time created an obligation upon the parties to undertake negotiations (delimitation).Footnote ¹²⁵ He argued that the area in question must be regulated on a multilateral basis,Footnote ¹²⁶ thereby focusing, unlike the majority view, on the question of delimitation rather than on entitlement to extend jurisdiction. Even so, there is a clear distinction between the two legal questions, but it seems that the Court was more interested in delimitation, by forcing negotiations, rather than deciding entitlement over the territory or the legal status according to existing laws.Footnote ¹²⁷

4.2.2. Judgments and Decisions Given after the Adoption of UNCLOS and the Concept of the EEZ

Following the development of the EEZ as a clear and distinct concept, and after adopting the text of the Convention, the inconsistency remains in the ICJ's treatment of the two legal questions. While some judgments and opinions reflect the distinction between entitlement and delimitation, thereby continuing the Fisheries Jurisdiction cases analysis, other cases and opinions conflate the two concepts.

In the 1985 Libya/Malta case, the ICJ stated that the legally permissible extent of the EEZ is one of the relevant circumstances to be taken into account when delimiting the continental shelf.Footnote ¹²⁸ There seems to be some distinction between the two legal questions, but the Court referred to the question of entitlement as part of the process of delimitation, despite being two separate legal issues. That said, there is some logic in connecting the two issues, as while the question of entitlement is independent, the process of delimitation cannot come into effect until the parties have established entitlement.Footnote ¹²⁹

In the 1993 Jan Mayen case, the ICJ went with the issue of delimitation, analysing the boundary agreement between the parties without first discussing the legal status of the claimed zones. Only halfway through the judgment does the Court examine the domestic laws applicable to the fishery zones.Footnote ¹³⁰ It refers to opposite maritime boundary claims as overlapping, in the sense that one claim negates the other,Footnote ¹³¹ rather than a situation where both parties can claim equal entitlement in the same zone. By referring to ‘overlapping entitlement’ in the context of delimitation, the Court conflated the issues of entitlement and delimitation.

Vice President Oda, in a separate opinion, argued that the judgment barely paid attention to the issue of entitlement and was too concerned with the question of delimitation. The opinion argued that concentrating on delimitation could lead states to claim their maximum entitlement in the initial stage of negotiations with neighbouring states for the delimitation of maritime boundaries.Footnote ¹³² It seems that this opinion also conflated entitlement and delimitation. Other separate opinions differentiated between entitlement to a maritime zone and delimitation of that zone, but acknowledged that the two questions are complementary.Footnote ¹³³ Judge Shahabudeen went even further and argued that delimitation is a declaration of the extent of the area to which each party is entitled,Footnote ¹³⁴ and that the principle of entitlement is a relevant factor for the purpose of delimitation.Footnote ¹³⁵

4.2.3. Judgments and Decisions Given after UNCLOS Entered into Force

In most cases after the Convention entered into force, the judicial bodies continued to conflate the two legal questions, failing to examine the parties’ establishment of entitlement and moving directly to the issue of delimitation. In some cases they established a boundary, even though one party had not established its entitlement to the EEZ.Footnote ¹³⁶ In such cases there was no need to delimit the zone in the first place and the judicial body had no competence to decide the matter.

In the 2009 Black Sea case, the ICJ held that coasts that do not project onto the area to be delimited do not generate an entitlement to the continental shelf and the EEZ in that area.Footnote ¹³⁷ This position was reflected also in the 2012 Nicaragua/Colombia dispute. According to the Court, entitlement to a territory can extend only up to the point where it overlaps with another state's entitlement.Footnote ¹³⁸ In the 2018 Costa Rica/Nicaragua case, the ICJ indicated that the relevant area is the part of the maritime space in which the potential entitlements of the parties overlap.Footnote ¹³⁹ Here, too, the Court treated entitlement and delimitation as interchangeable concepts.

It has continued with this problematic approach that the entitlement of one state to maritime zones extends only to a point where it overlaps with another state's entitlement. This is essentially the process of delimitation and does not relate to the question of entitlement.

Unlike the ICJ, the Arbitral Tribunal in the 2006 Barbados/Trinidad and Tobago arbitration did acknowledge that the starting point for any delimitation is the entitlement of a state to a given maritime area.Footnote ¹⁴⁰ However, in the Guyana/Suriname arbitration the Tribunal briefly regarded the question of establishing jurisdiction over the maritime zones in question, but then went directly to examine the issue of delimitation, without examining the question of entitlement in depth.Footnote ¹⁴¹

ITLOS has also conflated the two legal questions. This is reflected in its view that entitlement is part of the delimitation process. For example, it noted that the delimitation process could affect the entitlement of the parties, which requires adjustment of that line in order to reach an equitable result. It regarded the question of entitlement only as a relevant factor in the delimitation process rather than an independent question.Footnote ¹⁴²

The Convention grants coastal states the full extent of entitlement allowed (i.e. 200 nm), whether or not it overlaps with the entitlements of others. Each coastal state is entitled to claim the full extent of its maritime zones as allowed under the Convention. In the case of overlapping areasFootnote ¹⁴³ the parties will have to reach a compromise that allows both to exercise their jurisdiction without conflict. Under UNCLOS, an agreement can only mark the boundary between the parties’ overlapping maritime zones;Footnote ¹⁴⁴ there is no provision regarding an agreement that can limit or nullify entitlement to those zones. Nonetheless, the judicial bodies were concerned only with the issue of delimitation and did not analyse whether the parties are entitled to the maritime zones to begin with, or whether these legal instruments can establish entitlement to the zones.

4.3.1. Judgments and Decisions Given before the Creation of the Concept of the EEZ

In the 1974 Fisheries Jurisdiction cases the ICJ determined that the entitlement of the coastal state to preferential rights should not exclude all fishing activities of other states in that area.Footnote ¹⁴⁶ The fact that one state is entitled to claim preferential rights is not sufficient to exclude the right of other states to pursue fishing activity in the area; this means that the entitlement of one state does not negate the entitlement of other coastal states in the same area.Footnote ¹⁴⁷ The Court determined that Iceland's extension of exclusive fishery jurisdiction was not opposable by the Federal Republic of Germany and the United Kingdom, and that all three states could claim preferential rights over the area in respect of the fishery resources in question.Footnote ¹⁴⁸ However, while all coastal states are entitled to extend their jurisdiction, exercising rights in the extended area was not absolute and the Court must give due consideration to the rights and needs of other coastal states.Footnote ¹⁴⁹ This conclusion is similar to the final language of UNCLOS regarding the entitlement of coastal states to the continental shelf and the EEZ in overlapping areas.

4.3.2. Judgments and Decisions Given after the Adoption of UNCLOS and the Concept of the EEZ

After the concept of the EEZ was enshrined in the 1982 Convention, the judicial institutions continued to exhibit inconsistency in understanding the difference between entitlement and delimitation. They created a new concept of ‘overlapping entitlements to the EEZ, which they also applied inconsistently.

In the 1982 Tunisia/Libya case the ICJ did not address this issue directly; however, Judge Oda in dissent recognised that the lateral extent of maritime areas appertaining to the coastal state is not restricted. Thus, both Tunisia and Libya were, in principle, entitled to claim any area within a 200 nm radius of any point on their coastlines as pertaining to their respective continental shelf or EEZ.Footnote ¹⁵⁰ This opinion corresponds with the Fisheries Jurisdiction cases.Footnote ¹⁵¹ In later cases, however, the Court exhibited inconsistency regarding this notion; in some cases it did not address the issue at allFootnote ¹⁵² and in others it determined that one state's entitlement could overlap or encroach on that of another state, referring to this notion in different terms.Footnote ¹⁵³

In the 1993 Jan Mayen case, the ICJ articulated for the first time the notion of overlapping entitlements when it referred to maritime boundary claims, characterised by ‘overlapping entitlements’ in the sense that each state would have been able to claim jurisdiction had it not been for the presence of the other state.Footnote ¹⁵⁴ The Court held that entitlement of a coastal state limits the entitlements of other states in the area.

In a separate opinion, Vice-President Oda argued that the Court's confusion between entitlement and delimitation and its focus on the latter by reference to ‘the area of overlapping claims’ could lead states to claim the maximum entitlement in the initial stage of negotiations for delimitation of maritime boundaries, either of the EEZ or the continental shelf.Footnote ¹⁵⁵ Vice-President Oda provided a detailed review of state practice in unilaterally claiming 200 nm maritime zones. While there was nothing in state practice or in the language of UNCLOS that suggested a prohibition against claiming the maximum entitlement, the Vice-President stated that such behaviour is problematic, but did not elaborate on the nature of the problem.

Judge Fischer, in another separate opinion, highlighted the Court's problematic approach by claiming that the maximum entitlement allowed conflicts with the requirement of equity (which related to the process of delimitation). He argued that the Court's approach – according to which states with opposite coasts cannot require the other state to renounce its claim to the full maritime area – did not draw a clear distinction between entitlement and delimitation.Footnote ¹⁵⁶

The view of the ICJ that the rights of one state encroach on the rights of another state is contrary to earlier judgmentsFootnote ¹⁵⁷ and has no support in UNCLOS or state practice. The basis for its reasoning is unclear, especially as the Court itself had already recognised that attributing maritime areas to coastal states is achieved by way of an independent legal operation.Footnote ¹⁵⁸ Equating delimitation with the renouncing of entitlement is a problematic assertion as delimitation does not limit entitlement to a maritime zone; it only affects a practical compromise with regard to the exercise of the rights that the entitlement confers upon coastal states. These are two separate legal questions.

4.3.3. Judgments and Decisions Given after UNCLOS Entered into Force

It seems that following the entry into force of the Convention the judicial bodies adopted the notion of ‘overlapping entitlement’, fully endorsing the idea that one state's entitlement encroaches upon that of another state in the same zone.Footnote ¹⁵⁹

In the 2009 Black Sea case, the ICJ maintained that only ‘overlapping claims’ could generate entitlement.Footnote ¹⁶⁰ This contradicted previous statements of the Court to the effect that the titles of both parties existed at the same time and independently of each other and that one party's claim did not imply the renouncing of rights of the other party.Footnote ¹⁶¹

In the 2018 Costa Rica/Nicaragua case, in the process of delimitation the Court indicated, as in previous cases, that the relevant area is the part of the maritime space in which the potential entitlements of the parties overlap.Footnote ¹⁶² The Court quoted the 2012 Nicaragua/Colombia case,Footnote ¹⁶³ in which it determined that:

Judge Tomka, in a declaration, quoted the 2009 Black Sea case, referring to the equidistance line, which should enable the parties to produce their effects in terms of maritime entitlements in a reasonable and mutually balanced way.Footnote ¹⁶⁴ The declaration argued that the Court should have adjusted the provisional line because of its ‘cut-off’ effect, thus providing a more appropriate balance between the parties’ entitlements.Footnote ¹⁶⁵

In the eyes of the ICJ, it is only overlapping claims that generate entitlement to maritime zones. In addition, the entitlement of one state to a maritime zone extends only to a point where it overlaps with another state's entitlement. Furthermore, the Court reasoned that an agreement or a judicial decision could limit or nullify the entitlement. This is a very problematic interpretation, as under UNCLOS an agreement can only mark the boundary between the parties’ overlapping maritime zones,Footnote ¹⁶⁶ but nothing in the Convention provides that such agreement can nullify an a priori entitlement to the EEZ. The same applies for the competence of the ICJ to limit such entitlement.

The Arbitral Tribunal and ITLOS have also adopted the notion that entitlements to the EEZ in the same area overlap and limit one another. In the 2012 Bay of Bengal dispute between Bangladesh and Myanmar the Tribunal assumed that entitlement to maritime zones could be ‘cut-off’ or limited.Footnote ¹⁶⁷ In the 2014 Bay of Bengal arbitration between Bangladesh and India the Tribunal refrained from following the ICJ in the 2009 Black Sea case, instead noting that the ‘relevant coast’ generated ‘overlapping entitlements’.Footnote ¹⁶⁸ The Tribunal used the term ‘overlapping projections’, which is more accurate, relating to scientific facts rather than legal attribution.Footnote ¹⁶⁹ However, when constructing the delimitation line, the Tribunal recalled the 2012 Bangladesh/Myanmar case, stating that the equidistance line can produce a cut-off effect on the maritime entitlement of the parties, which constituted a relevant circumstance that may require the adjustment of the provisional equidistance line.Footnote ¹⁷⁰ Based on this proposition, the Tribunal concluded that the provisional equidistance line does not produce an equitable result in delimiting the area where the entitlements of the two parties overlap.Footnote ¹⁷¹

While the Tribunal did not use the incorrect term or proposition concerning the identification of the relevant coasts, it used the concept in reviewing the equidistance line and the special circumstances that might affect it. The concepts of ‘relevant coasts’ and the equidistance line cannot affect or limit the parties’ entitlements, but in the case of an overlap (i.e. less than 400 nm), the parties will have to reach a compromise that allows both to realise their jurisdiction without conflict. The Tribunal relied on the mistaken proposition of ITLOS and perpetuated it.

The failure of the judicial bodies to understand the notion of the entitlement of coastal states to the EEZ and its acquisition, and the conflation between ‘entitlement’ and ‘delimitation’ has led to the emergence of the notion of ‘overlapping entitlements’. In the first few cases they recognised that coastal states are entitled to extend jurisdiction, regardless of the entitlement of other states in the same area. However, after UNCLOS entered into force they adopted the idea that entitlement to the EEZ (i.e. the ability to claim the full extent of the zone) limits or negates the entitlement of others in the same area.

The notion of ‘overlapping entitlements’ has no basis in international law. On the contrary, state practice and the language of the 1958 and 1982 Conventions suggests that each coastal state is entitled to the full extent of the maritime zone allowed. Entitlement is created either by connection with the land territory in the case of the continental shelf (‘natural prolongation’), or by a legal action in the case of the EEZ (‘proclamation’). One state's entitlement does not negate or exclude the entitlement of others in the same zone; what overlaps is the physical manifestation of the entitlement (the geographical territory) when the parties seek to exercise their rights and jurisdiction over the territory. In the author's opinion, states should claim maximum territory, since there is a need to establish entitlement to the EEZ or fishery zone (i.e. legal process or operation of attribution) before determining if there is an overlap and before delimiting the zone. However, this geographical overlap does not mean that their entitlements are limited; it means only that the parties will have to compromise and divide the territory between them in order to avoid conflict.

The fact that the ICJ did not regard the legislation of the party states (the proclamation of the zones) as overlapping, negating or encroaching upon other entitlements, strengthened this proposition. The Court only referred to ‘overlapping entitlement’ in the context of delimitation. If the entitlements were to overlap, the legislation itself would have infringed the rights of other states.

These cases support the argument that the ICJ can examine and decide the question of maritime delimitation without first considering the question of entitlement to the maritime zones.Footnote ¹⁷² The legal status of the entitlement is not changed by the need for delimitation. If this notion has no legal basis other than judicial interpretation, and it actually contradicts existing legal sources, then the questions arise: what is the legal status of the idea of ‘overlapping entitlement’, and what is the competence of the judicial bodies in constructing this notion?