Maritime delimitation can seem a frustrating branch of law to the non-expert, often appearing a wilderness of single instances. Indeed, as Lando puts it in his preface, at some point every international lawyer has heard it said that there is no real law to the law of maritime delimitation (xviii). Historically, the observation had some fairness: so long as the objective of an equitable outcome was paramount (Tunisia/Libya [1982] ICJ Rep 18, 59) and capable of justifying the choice of any particular methodology, then maritime delimitation was largely the wisdom of Solomon. Thus, the approach between 1969 and 1993 allowed tribunals to use ‘any method which they consider to be appropriate in the circumstances, at the expense of predictability and certainty’ (19).
The key point of departure for Lando's excellent volume on delimitation of claims to overlapping entitlements in the exclusive economic zone (EEZ) and continental shelf is the watershed Black Sea (Romania v Ukraine) case. This established the presently accepted three-stage delimitation process under which a tribunal: first, draws a provisional equidistance line; second, considers relevant circumstances in adjusting it; and third checks the result for flagrant disproportionality to the relevant coastlines. As Lando observes, while there is much to commend a standard approach to delimitation ‘it does not follow that, by pursuing consistency, international tribunals actually achieve it’ (2).
The book is structured around the law applicable to each step in the three-stage process (Chapters 4–6). The author pursues his analysis with an excellent command of detail and a pleasingly crisp and clear style. However, beyond providing an up-to-date account of the current approach and case law, this volume makes several distinct contributions. First, by way of analytical rigour and suggested improvement, Lando suggests that the identification of both the relevant area to delimit and the relevant coastlines from which maritime entitlements are projected should be formally acknowledged as a distinct prior step in the delimitation process (Chapter 3). This is because: ‘Maritime delimitation must be understood as a process, which entails that one stage of the … may considerably impact on a subsequent one’ (6). Thus, determining the relevant coastlines ‘greatly influences the disproportionality assessment at the last stage of delimitation’ (ibid). Bluntly, adopting a discipline of formally establishing such matters early would weigh against the temptation to fudge them later to get the right result. Such an approach has much to commend it, and Lando unpacks several vexing inconsistencies in the way that relevant coasts and relevant areas are determined.
Lando notes in particular the inconsistency between the UN Convention on the Law of the Sea's (UNCLOS) apparent prioritisation of a radial principle for determining maritime zones (that is, the idea that any point on the coastline may project zonal entitlements in all seaward directions) and tribunals frequently speaking in terms of frontal projection (as if zonal limits are simply a State's baselines moved seaward). Thus, the coastline of Ukraine's Karkinits'ka Gulf was wholly discounted in the Black Sea case on the basis that its coastlines ‘projected’ towards each other.
Second, the author makes a provocative argument regarding grey zones in delimitation (135–43). ‘Grey zones’ are said to result in cases where a slice of maritime space on State A's side of a provisional equidistance line is more than 200 nm from its baselines but within 200 nm of State B's baselines and above a geologically-existing continental shelf appertaining to State A. The question arising is whether in the absence of State A having rights in the water column in this ‘grey zone’ they should be allocated to State B. Increasingly, tribunals have answered ‘yes’, creating an inconvenient result where seabed rights vest in State A and water column rights vest in State B. Lando favours the view that this is inconsistent with the text of UNCLOS, under which the continental shelf regime is subsumed by the EEZ regime. Therefore, if water column rights are allocated, the seabed rights should follow. In such cases, a grey zone should be avoided either by not infringing the equidistance line or by allowing a cut-off effect to part of the continental shelf beyond 200 nautical miles. The present practice is, as Lando observes, neither required nor mandated by UNCLOS and gives a misguided priority to geologically-existing continental shelves over the EEZ.
Finally, the major contribution of the book is to tease out the widely acknowledged but understudied theme that maritime delimitation has involved judicial law-making (Chapter 7). Indeed, the emergence of a judicially created body of law in settling maritime boundary disputes under UNCLOS was inevitable. The relevant delimitation provisions concerning the EEZ and continental shelf (Articles 74 and 83) are too indeterminate to be of any practical guidance. They constitute examples either of open-textured provisions or papered-over non liquets which necessarily require judicial law-making (295–96). States were therefore aware that judges would be left to fill in the blanks. Further, maritime delimitation is a field ill-suited to the generation of customary international law. The combination of the geographic diversity of coastal configurations and the predominant State practice of settling such boundaries by bilateral treaty are in combination unlikely to generate widespread and consistent State practice. Further, and more problematically, such practice is seldom accompanied by any expression of opinio juris (293). The book thus advocates judicial law-making in this context being recognised as a formal source of law rather than a subsidiary means of determining the law. This highlights the role of judicial choice in developing the law: the three-stage process was ‘not the outcome of inevitable development’; had international judges ‘been different, or thought differently, we would likely be delimiting boundaries differently’ (33).
Nonetheless, States, while having been unable to agree a set of rules governing delimitation, nonetheless retain an important role in sanctioning (or not) the methods adopted by international tribunals. One may also ‘expect international tribunals to have built the delimitation process on their suggestions’ (308). The author's vision then is of a more dynamic or interactive law-making process involving a dialogue between tribunals and States (321–2). Some evidence of such a dialogue is available in statements accompanying concluded treaties or in meetings of State parties to UNCLOS (309–12). More common are statements by States’ representatives in delimitation cases endorsing methods adopted by previous tribunals. Finally, the sincerest vote of confidence in a tribunal's methods is obviously the extent to which parties comply with the outcomes. That compliance rate appears high, higher indeed than the rate for land boundary delimitation (321).
Overall, this is an excellent and highly readable book which will be of interest to scholars and practitioners alike.
