The Law of Maritime Delimitation and the Russian

FNI Report 1/2010

The Law of Maritime Delimitation and

the Russian–Norwegian Maritime

Boundary Dispute

Pål Jakob Aasen

The Law of Maritime Delimitation

and the Russian–Norwegian

Maritime Boundary Dispute

Pål Jakob Aasen

[email protected]

February 2010

Copyright © Fridtjof Nansen Institute 2010

Title

The Law of Maritime Delimitation and the Russian-Norwegian Maritime

Boundary Dispute

Publication Type and Number

FNI Report 1/2010

Pages

77

Author

Pål Jakob Aasen

ISBN

978-82-7613-576-3-print version

978-82-7613-577-0-online version

Project ISSN

1504-9744

Abstract

This report examines the law on maritime delimitation under the Law of the Sea

Convention (LOS Convention) and the maritime boundary dispute between Norway and

the Russian Federation in the Barents Sea. Norway and the Russian Federation have been

negotiating over the boundaries of their maritime zones in the Barents Sea since the early

1970s. They have failed to agree about the delimitation of the area, except for a relatively

small area in the southernmost part of the Barents Sea through the Varanger Fjord

Agreement of 1957 and the succeeding Varanger Fjord Agreement of 2007. Norway has

argued for the application of a median line delimiting the boundaries, whereas the

Russian Federation argues for the application of sector line, leaving a contentious zone

between the opposing views of about 175,000 square kilometres. These legal positions

will be investigated in light of the historical development of the law on maritime

delimitation, as well as recent judgments from the International Court of Justice and

other arbitral tribunals since the entering into force of the LOS Convention. In addition,

the procedural obligations of Norway and the Russian Federation under the LOS

Convention towards finding a solution to their maritime boundary dispute are examined.

Key Words

International law, maritime delimitation, three-step method, single maritime

boundary, sector principle, median line, relevant circumstances, Barents Sea,

maritime zones, LOS Convention, ICJ, PCA.

Orders to:

Fridtjof Nansen Institute

Postboks 326

N-1326 Lysaker, Norway.

Tel: (47) 6711 1900

Fax: (47) 6711 1910

Email: [email protected]

Internet: www.fni.no

i

Contents

Acknowledgements iii

List of Cases v

List of Treaties vii

List of Figures viii

List of Acronyms and Abbreviations ix

1 Introduction 1

1.1 Background and Objectives of the Study 1

1.2 Method 2

1.3 Outline 3

2 The Law and Relevant Legal Framework on Maritime

Delimitation 4

2.1 Maritime Zones in the LOS Convention 4

2.2 The Concept of Maritime Delimitation 5

2.3 The History of the Law of Maritime Delimitation 8

2.3.1 From international customary law to the UNCLOS I

Treaties and the LOS Convention 9

2.3.2 Delimitation rules of the Territorial Sea and the

Continental Shelf – a similar approach 11

2.4 Existing Law: the LOS Convention 13

2.4.1 Articles 15, 74(1) and 83(1) of the LOS Convention 13

2.4.2 The LOS Convention, the UNCLOS I Treaties and

International Customary Law 15

2.4.3 Delimiting the EEZ and the continental shelf: The

emergence of a single maritime boundary 19

2.5 Summary 23

2.6 Articles 74 and 83 by ICJ and International Arbitral Tri￾bunals (after the entry into force of the LOS Convention) 26

2.6.1 The Cameroon vs Nigeria Case (2002) 26

2.6.2 The Barbados vs Trinidad and Tobago Award (2006) 31

2.6.3 The Nicaragua vs Honduras Case (2007) 40

2.6.4 The Guyana vs Surinam Award (2007) 45

2.6.5 The Romania vs Ukraine Case (2009) 50

2.7 Concluding Remarks 57

ii Pål Jakob Aasen

3 Procedural Obligations of Norway and the Russian Federation

under Part XV of the LOS Convention 59

3.1 Introduction 59

3.1.1 Obligations under Section 1 of Part XV 59

3.1.2 Obligations under Section 2 and 3 of Part XV 63

4 The Maritime Dispute between Norway and the Russian

Federation in the Barents Sea and the Application of the

Three-step Method 65

4.1 Introduction 65

4.2 The Barents Sea 66

4.3 Four Decades of Negotiations 66

4.4 Method for Maritime Delimitation in the Barents Sea 69

4.4.1 Drawing the provisional equidistance line 70

4.4.2 Circumstances that might justify adjustment of the

provisional equidistant line 72

4.4.3 Proportionality between the ratios of the resulting

maritime area allocated to each state and relevant

coastal lengths 73

4.5 Conclusion 74

5 Final remarks 75

Bibliography 77

iii

Acknowledgements

I would first like to express my sincere gratitude to the staff at the

Fridtjof Nansen Institute (FNI); without their support this report would

not have seen the light of day. More than providing me with economic

support and letting me become part of the outstanding research environ￾ment at the institute, they motivated and gave me enough self-confidence

to finalise this report in a fairly short period of time. Among the staff a

special thanks go to Øystein Jensen, Davor Vidas, Arild Moe and Pål

Skedsmo for fruitful comments and helpful academic insights in the law

of the sea field and on Russian-Norwegian politics. Special thanks go

also to Susan Høivik for reading through and improving my language,

Kari Lorentzen for helping me with literature and Maryanne Rygg for

technical assistance.

I would also like to thank my supervisor, Tore Henriksen, for helpful

insights and comments throughout the process of finalising my master

thesis on which this report is based.

Finally, I would like to thank my father and brother, as well as my mother

who unfortunately is no longer with us. You have all supported and

backed me up through the years, and I will always be in debt to you. A

special thanks goes also to Knut Storberget who, among other things, first

put my thoughts into studying law and who has functioned as my guiding

star throughout my studies.

Needless to say, but I will say it anyway: thank you Fridtjof Nansen; the

greatness of your name and endeavours will always be embraced and

remembered.

Polhøgda, February 2010

Pål Jakob Aasen

v

List of Cases

1909

Grisbåderna case (Norway/Sweden, 1909), 4 AJIL (1910).

1924

Mavrommatis Palestine Concessions (Greece vs United Kingdom).

Judgment, 1924 PCIJ (Ser. A) No. 2.

1950

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,

1950 ICJ Reports, 17 ILR 331.

1951

Anglo/Norwegian Fisheries case (The United Kingdom/Norway), 1951

ICJ Reports.

1960

Case Concerning Right of Passage Over Indian Territory (Portugal vs

India) 1960 ICJ Reports.

1962

South-West Africa cases (Ethiopia vs South Africa; Liberia vs South

Africa) 1962 ICJ Reports.

1969

North Sea Continental Shelf cases (Federal Republic of Germany/

Denmark/The Netherlands), 1969 ICJ Reports.

1982

Tunisia/Libyan Arab Jamahiriya case, 1982 ICJ Reports.

1984

Gulf of Maine case (United States/Canada), 1984 ICJ Reports.

1985

Libya/Malta case, 1985 ICJ Reports.

1985

Guinea/Guinea-Bissau Award, 25 ILM (1986).

1992

St Pierre and Miquelon case (France/Canada), 31 ILM (1992).

1993

Greenland/Jan Mayen case (Norway/Denmark), 1993 ICJ Reports.

1995

Case Concerning East Timor (Portugal vs Australia) 1995 ICJ Reports.

1995

Southern Bluefin Tuna cases (New Zealand vs Japan; Australia vs Japan)

1999 ITLOS Cases No. 3.