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Energy at Sea: Old Problems, New Challenges22 October 2015
Delimitation Agreements: Common trends in a diverse world
Sotiris-Ioannis Lekkas
DPhil candidate, University of Oxford
Stavros-Evdokimos Pantazopoulos
PhD Candidate, European University Institute
Overview of the presentation
Objectives and scope
The Law of Maritime Boundary Delimitation
Energy considerations and maritime boundary delimitation
Substantive regulation of energy activities in maritime delimitation
Concluding remarks: common trends in a diverse world
Objectives
Mapping out the allocation of jurisdiction at sea amongst states
Relevance of energy considerations to the practice of maritime delimitation,
especially in negotiation and conclusion of delimitation agreements
Scope (105 delimitations)
Energy considerations: relating to the exploration, exploitation, extraction,
processing, production, refining, transport, transmission, or distribution of
energy resources, materials and products (see Art 1(5) ECT)
Relevance of energy considerations either express or contextual as long as
they can be specified
The Law of Maritime Boundary Delimitation Rudimentary principles of the law of maritime delimitation are residual;
they apply as long as there is no agreement to the contrary
Territorial sea: States may not extend their territorial sea beyond the median or equidistance line, unless there are historical or other ‘special’ circumstances that dictate the contrary
Continental shelf and Exclusive Economic Zone: delimitations were to be effected by agreement on the basis of equitable principles and taking into account of all the relevant circumstances
Three-tiered test for delimitation (ICJ, Maritime Delimitation in the Black Sea) drawing of a provisional line that will be the median line ‘unless there are
compelling reasons that make this unfeasible in the particular case’;
considering ‘whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result’;
‘verify[ing] that the line … does not, as it stands, lead to an inequitable result by reason of any marked disproportion between the ration of the relevant coastal lengths and the ration between the relevant maritime area of each State by reference to the delimitation line’
Energy considerations and maritime boundary delimitation Three ways that energy considerations have been raised explicitly in the
context of maritime delimitation dispute settlement proceedings:
1. unity of resource deposits;
2. the role of the relative poverty in resources of one state;
3. the role of preexisting licences and concessions for the exploration and exploitation of mineral resources
Substantive regulation of energy activities in maritime delimitation In general, maritime delimitation agreements contain very few,
straightforward provisions (method of delimitation, agreed coordinates)
Late 1960s, early 1970s: North Sea delimitation agreements depart from that approach; specific provisions about existing licenses, first resource deposit clauses
Mid 1970s onwards: Provisions pledging co-operation in various sectors (eg agreements between Colombia and central American states)
See also 1977 CS: Greece-Italy and 1992 CS: Albania-Italy; both include compromissory clauses making dispute settlement proceedings mandatory
Substantive regulation of energy activities in maritime delimitation What kind of energy activities? Almost invariably, exploration and
exploitation of hydrocarbons
But see 1978 MB: Australia-Papua New Guinea (Torres Strait Treaty): energy production from water, currents and winds
Also, the provisional arrangement between Ireland and the UK on jurisdiction for renewable energy production activities in the still undelimited territorial sea area between Northern Ireland and Ireland
Resource Deposit Clauses: A valuable tool in maritime delimitations negotiations Definition: ‘A provision that commits states to cooperate when a single
resource extends across the boundary and part of the resource is exploitable from the other side of the boundary’ (Kwiatkowska 1993)
In the event straddling deposits are found: a duty to notify and to enter into negotiations or consultations with the other party with a view to achieve an equitable or proportionate solution
More rarely a procedure is provided in the case such negotiations or consultations fail to produce a solution, ranging from optional invitation of independent experts to mandatory arbitration
Concluding remarks: common trends in a diverse world
Although energy considerations provide more often than not the main
thrust for the negotiation of such agreements, their role in the law of
maritime delimitation in the narrow sense is marginal
The intensification of offshore activities, especially energy related ones, is
reflected in delimitation treaties in the form of specific treaty provisions
Thank you!
Sotiris-Ioannis Lekkas – [email protected]
Stavros-Evdokimos Pantazopoulos – [email protected]
