H.E. Judge L. Dolliver M. Nelson (President);
Dr. Allan Philip; and
Dr. Kamal Hossain.
THE ARBITRAL TRIBUNAL UNANIMOUSLY DECIDES AND ORDERS:
1. the Tribunal shall not consider any document taken from a file in the archives of The Netherlands to which Guyana has been denied access;
2. Suriname shall take all measures within its power to ensure that Guyana have timely access to the entire file from which any such document already introduced or to be introduced into evidence was taken, either by withdrawing its objections made to The Netherlands government, or, if this proves unsuccessful, by providing such file directly to Guyana;
3. each Party may request the other Party, through the Tribunal, to disclose relevant files or documents, identified with reasonable specificity, that are in the possession or under the control of the other Party;
4. the Tribunal shall appoint, pursuant to article 11(3) of the Tribunal’s Rules of Procedure and in consultation with the Parties, an independent expert competent in both the Dutch and English languages;
5. the expert shall, at the request of the Party producing the file or document, review any proposal by that Party to remove or redact parts of that file or document [as each Party may have a legitimate interest in the non-disclosure of information that does not relate to the present dispute, or which, for other valid reasons, should be regarded as privileged or confidential].
6. any disputes between the Parties concerning a Party’s failure or refusal to produce, in whole or in part, any document or file referred to in paragraphs 1 and 2, shall be resolved in a timely manner by the expert referred to in paragraph 4 of this Order;
7. as provided in article 11(4) of the Tribunal’s Rules of Procedure, the Parties shall cooperate fully with the expert appointed pursuant to paragraph 4 of this Order.
THE ARBITRAL TRIBUNAL UNANIMOUSLY DECIDES AND ORDERS:
1. under article 10 of the Tribunal’s Rules of Procedure, the submission of Suriname’s Preliminary Objections did not have the effect of suspending these proceedings;
2. because the facts and arguments in support of Suriname’s submissions in its Preliminary Objections are in significant measure the same as the facts and arguments on which the merits of the case depend, and the objections are not of an exclusively preliminary character, the Tribunal does not consider it appropriate to rule on the Preliminary Objections at this stage;
3. having ascertained the views of the parties, the Tribunal shall, in accordance with article 10(3) of the Tribunal’s Rules of Procedure, rule on Suriname’s Preliminary Objections to jurisdiction and admissibility in its final award;
4. after the Parties’ written submissions have been completed, the Tribunal shall, in consultation with the Parties, determine the further procedural modalities for hearing the Parties’ arguments on Suriname’s Preliminary Objections in conjunction with the hearing on the merits provided for in article 12 of the Tribunal’s Rules of Procedure.
THE ARBITRAL TRIBUNAL UNANIMOUSLY ORDERS:
1. Prof. Hans van Houtte is appointed to serve the Arbitral Tribunal as the independent expert pursuant to paragraph 4 of Order No. 1;
2. the attached terms of reference for the independent expert appointed pursuant to paragraph 4 of Order No. 1 are adopted; and
3. the Arbitral Tribunal shall finally resolve any disputes that the independent expert cannot resolve pursuant to paragraph 2.12 of the terms of reference.
INDEPENDENT EXPERT'S TERMS OF REFERENCE IN ACCORDANCE WITH TRIBUNAL ORDER NO. 1
1.0. In the context of the arbitration before the Arbitral Tribunal concerning the delimitation of the maritime boundary between Suriname and Guyana ("the Parties"), the Parties are in dispute concerning access to certain documents in the archives of The Netherlands Ministry of Foreign Affairs. The Tribunal’s "Order No. 1 of 18 July 2005, Access to Documents" ("the Order") summarizes the arguments of the Parties regarding "Guyana’s application for an Order requesting access to documents in The Netherlands’ archives, and is attached hereto as "Annex 1".
1.1. Paragraph 4 of the Order provides:
the Tribunal shall appoint, pursuant to article 11(3) of the Tribunal’s Rules of Procedure and in consultation with the Parties, an independent expert competent in both the Dutch and English languages.
1.2. The Expert has signed a confidentiality undertaking and declared that he "will, as directed by the Arbitral Tribunal, perform his duties honourably and faithfully, impartially and conscientiously, and will refrain from divulging or using, outside the context of the tasks to be performed by him in this arbitration, any documents, files and information which may come to his knowledge in the course of the performance of his task."
1.3. The Parties are to cooperate with the Expert pursuant to paragraph 7 of the Order, which reads:
as provided in article 11(4) of the Tribunal’s Rules of Procedure, the Parties shall cooperate fully with the expert referred to in paragraph 4 of this Order.
1.4. The Expert or the Tribunal may terminate this agreement at any time by providing notice of intent to terminate one month before the termination should become effective.
1.5. The Tribunal reserves the right to modify these Terms of Reference from time to time as it determines necessary.
2.0. The Expert shall consult the Tribunal when in doubt regarding questions of procedure. The Expert shall follow such guidelines for determining relevance as may be communicated to him by the Tribunal, including attempting to distinguish between files and documents that relate exclusively to the land boundary between the Parties, other disputes or boundaries with third Parties, and those that relate to the maritime boundary between the Parties to this dispute. In light of the Parties’ arguments, and in accordance with the Rules of Procedure of the Arbitral Tribunal, the United Nations Convention on the Law of the Sea ("UNCLOS"), and the relevant Tribunal Orders, the Expert shall not, in carrying out any tasks associated with this section 2, be bound by strict rules of evidence and may evaluate documents or files in any form permitted by the Arbitral Tribunal. The Tribunal, in its final award, will decide on the relevance, cogency and weight to be given to any files or documents, or parts thereof, ultimately disclosed and relied upon by the Parties in their pleadings.
Procedure to be followed pursuant to paragraph 5 of the Order
2.1. Paragraph 5 of the Order provides:
the expert shall, at the request of the Party producing the file or document, review any proposal by that Party to remove or redact parts of that file or document for the reasons set forth under (c) in the last preambular paragraph of this Order.
2.2. Sub-paragraph (c) of the last preambular paragraph of the Order provides:
each Party may nevertheless have a legitimate interest in the non-disclosure of information that does not relate to the present dispute, or which, for other valid reasons, should be regarded as privileged and confidential.
2.3. In accordance with paragraphs 2, 3 and 5 of the Order, where a Party has invoked paragraph 5 of the Order, and produced a file or document, but proposed removal or redaction of it for the reasons set forth in sub-paragraph (c) of the last preambular paragraph of the Order, the Party proposing removal or redaction shall produce the entire un-redacted file or document for the Expert’s inspection. After having satisfied himself that the file or document before him is complete, the Expert may invite the Party seeking to redact or remove the files or documents, to set out, and/or elaborate on reasons already given, why those documents or files (or parts thereof) should be removed or redacted. Where the Expert so invites the Party seeking to redact or remove files or documents, he shall thereafter invite the Party seeking access to the documents or files, to comment on the reasons given by the Party seeking to withhold the documents or files.
2.4. The Expert shall produce a report on his findings, preserving to the fullest extent possible the confidential nature of the files or documents at issue, and setting out the reasons for his conclusions. The report shall be communicated to the Parties and the Tribunal. The Tribunal will consider the report and determine whether redaction or removal is appropriate.
Procedure to be followed pursuant to paragraph 3 of the Order
2.5. Paragraph 3 of the Order provides:
each Party may request the other Party, through the Tribunal, to disclose relevant files or documents, identified with reasonable specificity, that are in the possession or under the control of the other Party.
2.6. The Tribunal may engage the Expert to review a request made pursuant to paragraph 3 of the Order, in order to aid the Tribunal in its determination of whether the files or documents which are the subject of the request, are indeed prima facie relevant, and have been identified with reasonable specificity. To that end, the Tribunal may ask the Party in possession or control of the files or documents to produce them to the Expert for his inspection.
2.7. The Expert shall produce a report on his findings, preserving to the fullest extent possible the confidential nature of the files or documents at issue, and setting out the reasons for his conclusions. The report shall be communicated to the Parties and the Tribunal. The Tribunal will consider the report and determine whether access is to be granted or denied.
Procedure to be followed pursuant to paragraph 6 of the Order
2.8. Paragraph 6 of the Order provides:
any disputes between the Parties concerning a Party’s failure or refusal to produce, in whole or in part, any document or file referred to in paragraphs 1 and 2, shall be resolved in a timely manner by the expert referred to in paragraph 4 of this Order.
2.9. The Expert shall be free to propose his own solution to resolve a dispute between the Parties pursuant to paragraph 6 of the Order. The Expert shall at every stage afford both Parties an opportunity to set out their position, and shall fully take into account the arguments of the Parties.
2.10. The Expert shall keep the Tribunal apprised of his progress in resolving a dispute pursuant to paragraph 6 of the Order. The Expert shall consult the Tribunal regarding his proposed solution to such a dispute, before such solution is communicated to the Parties.
2.11. Once the Tribunal has acted upon the Expert’s proposed solution, it shall be communicated to the Parties.
2.12. Where the Expert determines that a dispute cannot be resolved in a timely manner by him, he shall refer it to the Tribunal.
THE ARBITRAL TRIBUNAL UNANIMOUSLY ORDERS:
1. (a) Suriname shall cooperate fully with the independent expert appointed pursuant to The Tribunal’s Order No. 3, and facilitate his immediate access to the entire File 169A and entire File 161 in The Netherlands’ Foreign Ministry archives ensuring that such access is granted within two weeks from the date of this Order, indicating which documents, and on what basis, it wishes to remove or redact from those files before they are to be given to Guyana; and
(b) the independent expert shall, in accordance with paragraph 5 of Order No. 1 and the Terms of Reference, review Suriname’s proposal(s) for removal or redaction of documents mentioned above.
2. (a) The independent expert shall review Guyana’s request in its letter dated 20 July 2005 for access to documents pursuant to paragraph 3 of Order No. 1, in order to determine whether those files have been identified with reasonable specificity and appear relevant; and
(b) Suriname shall facilitate the independent expert’s timely access to the files identified in Guyana’s letter dated 20 July 2005, to the extent the expert may deem such access necessary to determine reasonable specificity and relevance in accordance with paragraph 3 of Order No. 1.
3. The independent expert shall endeavour to report on his findings as soon as possible.
THE ARBITRAL TRIBUNAL UNANIMOUSLY ORDERS:
1. The recommendations of the independent expert in Sections 5 and 6 of his report (concerning documents in Files 161 and 169A) are hereby adopted, and Suriname is hereby requested to grant Guyana immediate access to the files in accordance with those recommendations;
2. The documents compiled from Files 162, 311, 2022, and 2949 and referred to by the independent expert, in Section 7 of his report, shall be sent immediately to Suriname for comment and possible redaction;
3. Suriname, on an expedited basis and in any case no later than 22 February 2006, shall transmit directly to Guyana any documents that it does not propose to redact or withhold, and shall indicate to the independent expert any proposals for redaction or withholding and the reasons therefor.
THE ARBITRAL TRIBUNAL UNANIMOUSLY ORDERS:
1. Mr. David H. Gray is appointed to serve the Arbitral Tribunal as a hydrographic expert pursuant to Article 11(3) of the Tribunal’s Rules of Procedure;
2. the attached terms of reference for the hydrographic expert are adopted.
HYDROGRAPHER'S TERMS OF REFERENCE
IN ACCORDANCE WITH ARTICLE 11(3) OF THE RULES OF PROCEDURE
1.1. As set out in Guyana’s "Statement of the Claim and the Grounds on Which it is Based," dated 24 February 2004, Guyana has initiated an arbitration pursuant to Articles 286 and 287 of the 1982 United Nations Convention on the Law of the Sea (the "Convention") and Article 1 of Annex VII to the Convention with regard to a dispute concerning the delimitation of its maritime boundary with Suriname.
1.2. The Parties to the Arbitration are:
(a) Guyana, represented by H.E. Samuel Rudolph Insanally, as Agent, and Sir Shridath Ramphal and Mr. Paul S. Reichler, as Co-Agents.
(b) Suriname, represented by the H.E. Lygia L.I. Kraag-Keteldijk, as Agent, and Mr. Paul C. Saunders and Mr. Hans Lim A Po, as Co-Agents.
1.3. Addresses for the Agents and Co-Agents are on file with the Permanent Court of Arbitration ("PCA"), which is serving as Registry for the Arbitration.
1.4. The Arbitral Tribunal, which has been validly constituted in accordance with Article 3 of Annex VII to the Convention, is composed of:
H.E. Judge L. Dolliver M. Nelson (President)
Dr. Kamal Hossain
Professor Thomas M. Franck
Professor Ivan Shearer
Professor Hans Smit
1.5. Rules of Procedure for the Arbitration were adopted on 30 July 2004. Written pleadings have been submitted by the Parties in accordance with the Rules of Procedure, as amended. Oral hearings are to be held from 7 December 2006 to 20 December 2006 in Washington D.C.
1.6. The Expert or the Tribunal may terminate this agreement at any time by providing written notice of intent to terminate one month before the termination should become effective.
1.7. The Tribunal reserves the right to modify these Terms of Reference from time to time as it determines necessary.
2. The Expert
Pursuant to Article 11(3) of the Rules of Procedure, Mr. David H. Gray (the "Expert"), hydrographer, shall serve as an expert to assist the Arbitral Tribunal in accordance with these Terms of Reference.
2.2. The Expert hereby declares that he will, as directed by the Arbitral Tribunal, perform his duties honourably and faithfully, impartially and conscientiously, and will refrain from divulging or using, outside the context of the tasks to be performed by him in this arbitration, any documents, files and information, including all written or oral pleadings, evidence submitted in the Arbitration, verbatim transcripts of meetings and hearings, or the deliberations of the Arbitral Tribunal, which may come to his knowledge in the course of the performance of his task.
3.1. The Expert shall assist the Arbitral Tribunal, should it determine that it has jurisdiction to do so, in the drawing and explanation of the maritime boundary line or lines in a technically precise manner.
3.2. The Expert will make himself available to assist the Arbitral Tribunal as required by it in the preparation of the Award.
3.3 The Expert shall perform his duties according to international hydrographic and geodetic standards.
[T]hat the Parties provide the position of Marker "B", and other points in this 1960 survey within the geographic area of the mouth of the Corentyne River, their geodetic datum, and the WGS-84 datum position of these points if they have been determined by re-computation of the 1960 survey.
1. The correspondence and materials submitted to date by the Parties regarding the discovery and location of Marker "B" were submitted in response to the Hydrographer’s inquiry of 20 December 2006 and form part of the record in this matter;
2. The Parties shall not make further communications to the Tribunal or Registrar relating to the location of Markers "A" and "B" except after first seeking leave of the Tribunal or upon request of the Tribunal;
3. The Hydrographer shall, after inviting the Parties’ representatives to be present, conduct a site visit in Guyana. The modalities for the Hydrographer’s site visit shall be established through one or more orders in coming days
1. The Hydrographer’s terms of reference for the site visit are to inspect what Guyana alleges to be Marker "B" and the surrounding area, as he deems appropriate, and to gather data relevant to the issues that have arisen as a result of his question to the Parties of 20 December 2006 and the Parties’ subsequent correspondence;
2. Unless otherwise agreed with the Hydrographer, the Parties, the Hydrographer, and the Registrar shall travel to the site from Georgetown on the mornings of 31 May and 1 June 2007, returning to Georgetown in the afternoon or evening of each day;
3. As soon as possible, Guyana shall propose a time and place for participants in the site visit to meet in Georgetown on the mornings of 31 May and 1 June for transportation to the site;
4. The Parties’ representatives shall cooperate fully with the Hydrographer;
5. Following the site visit, the Hydrographer shall submit a written report to the Tribunal, which shall be shared with the Parties. The Tribunal shall provide the Parties an opportunity to comment on the Hydrographer’s report.
(1) Suriname’s Preliminary Objections are rejected as being without foundation;
(2) from the point known as Point 61 (5° 59' 53.8" north and longitude 57° 08' 51.5" west), the single maritime boundary which divides the territorial seas and maritime jurisdictions of Guyana and Suriname follows a line of 34° east and true north for a distance of 200 nautical miles;
(3) Suriname is internationally responsible for violating its obligations under the 1982 United Nations Convention on the Law of the Sea, the Charter of the United Nations, and general international law to settle disputes by peaceful means because of its use of armed force against the territorial integrity of Guyana and/or against its nationals, agents, and others lawfully present in maritime areas within the sovereign territory of Guyana or other maritime areas over which Guyana exercises lawful jurisdiction; and that Suriname is under an obligation to provide reparation, in a form and in an amount to be determined, but in any event no less than U.S. $33,851,776, for the injury caused by its internationally wrongful acts;
(4) Suriname is internationally responsible for violating its obligations under the 1982 United Nations Convention on the Law of the Sea to make every effort to enter into provisional arrangements of a practical nature pending agreement on the delimitation of the continental shelf and exclusive economic zones in Guyana and Suriname, and by jeopardising or hampering the reaching of the final agreement; and that Suriname is under an obligation to provide reparation, in a form and in an amount to be determined, for the injury caused by its internationally wrongful acts.7
in relation to submission 4, that is in relation to our allegation that Suriname was in breach of its obligations concerning provisional measures, Guyana... limits its claim which it advances with utmost strength, but limits its claim to one for declaratory relief.8
1. The Tribunal does not have jurisdiction to determine Guyana’s Claim;
2. In the event the Tribunal does not uphold Suriname’s first submission, Guyana’s second and third submissions are inadmissible; [and]
For the foregoing reasons, the Tribunal should bring these proceedings to a close forthwith.
Suriname respectfully requests the Tribunal
1. To uphold Suriname’s Preliminary Objections, filed 23 May 2005, as reaffirmed in its Counter-Memorial, filed 1 November 2005, in accordance with the Rules of Procedure.
Alternatively, Suriname respectfully requests the Tribunal
2. A. To reject Guyana’s three submissions set forth at page 135 of its Memorial and Guyana’s four submissions set forth at page 153 of its Reply.
2. B. To determine that the single maritime boundary between Suriname and Guyana extends from the 1936 Point as a line of 10° east of true north to its intersection with the 200-nautical mile limit measured from the baseline from which the breadth of Suriname’s territorial sea is measured.
2. C. To find and declare that Guyana breached its legal obligations to Suriname under Articles 74(3) and 83(3) of the 1982 Law of the Sea Convention, by authorizing its concession holder to drill an exploratory well in a known disputed maritime area thereby jeopardizing and hampering the reaching of a maritime boundary agreement.
2. D. To find and declare that Guyana breached its legal obligations to Suriname under Articles 74(3) and 83(3) of the 1982 Law of the Sea Convention, by not making every effort to enter into a provisional arrangement of a practical nature.
the Tribunal has jurisdiction to determine the location of the mouth of the Corentyne River, where the Parties agree that their land boundary terminus was established. Guyana submits that a determination under Article 9 would lead the Tribunal to the same conclusion that the conduct of the Parties for 70 years establishes: that Point 61 is located at the mouth of the river. However, even if, for the sake of argument, the Tribunal were to determine that the mouth of the river is at another point, it would have jurisdiction to start the delimitation of the maritime boundary at that point.25
If... there is indeed an agreed boundary in the territorial sea... then the terminus of the maritime boundary provides a perfectly adequate starting point, and every issue that this Tribunal would have to decide would be governed by the provisions of the Law of the Sea Convention.309
In light of the Tribunal’s finding in Chapter V of the Award that the starting point of the maritime delimitation between the Parties is the intersection of the low water line of the west bank of the Corentyne River and the geodetic line of N10°E which passes through Marker "B" established in 1936, the Tribunal need not consider further Suriname’s jurisdictional objection with respect to Guyana’s maritime delimitation claim. Accordingly, the Tribunal finds that it has jurisdiction to delimit the maritime boundary in dispute between the Parties.
the special circumstances in the territorial sea or beyond do not include land mass and geographic and geological factors which pertain to the seabed. Seabed special circumstances do not come within the Article 15 definition of special circumstances and that is long established, since at least 1985, and stated very clearly at paragraph 39 of the Libya-Malta case. That case, of course, was dealing with the continental shelf but the principle enunciated by the Court applies equally to the territorial sea.331
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.
a known navigational channel or an established practice of navigation, and not the situation (as arises in the present case) where the navigational interest identified in 1936 was both hypothetical and recognised to be subject to change, and in respect of which for over 40 years there has been no evidence of any navigational use.341
The role of the 'special circumstances’ condition in Article 6 is to ensure an equitable delimitation; and the combined 'equidistance-special circumstances rule', in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles. In addition, Article 6 neither defines 'special circumstances’ nor lays down the criterion by which it is to be assessed whether any given circumstances justify a boundary line other than the equidistance line.344
in particular by mixed factors of appurtenance, coastal configuration, equidistance, and also of convenience, navigability, and the desirability of enabling each Party so far as possible to navigate in its own waters. None of this has resulted in much deviation from the strict median line, except... near Gable Island where the habitually used navigable track has been followed.351
from the late 1930s to the late 1950s - when a 'navigation channel' was thought to be a 'possibility', it was understood by both colonial powers to extend no farther than 3 nm from the Guyana coast. Thus, even if such a channel had existed, there is no basis for treating it as a special circumstance affecting maritime delimitation beyond 3 nm, let alone for a distance of 200 nm;355 and,
To the extent that there ever was any agreement in relation to a 10-degree line, it was, in any event, limited to a distance of no more than 3 nautical miles. At no point during which United Kingdom and the Dutch appeared to have followed the line did the territorial sea ever exceed 3 miles. The 10-degree line was rejected by the United Kingdom in the early 1960s, well before the extension of the breadth of the territorial sea to 12 nautical miles by Guyana in 1977 and by Suriname in 1978. There are no grounds for now claiming that a 10-degree line should automatically extend 12 nautical miles as a result of a change in the law.356
The object and purpose of choosing the 10° Line was that navigation entering the river would be regulated by The Netherlands/Suriname and would not be subject to regulation by the United Kingdom/Guyana. Thus, the question is not just a technical issue of intertemporal law regarding the breadth of the territorial sea, but rather one of applying the contemporary law of the sea in light of the object and purpose of the agreement on the 10° Line. In this connection, an examination of the broad unilateral regulatory and enforcement powers of the coastal state with respect to navigation in the territorial sea in the 1982 Convention, as set forth in articles 19, 21, 22, 23, 25, 211(4) and 220(2)-(6), suggests that the application of the 10° Line to the full 12-nautical-mile territorial sea is required in order to achieve the object and purpose of the agreement.366
This will enable the Coast Guard to establish vessel operating requirements including vessel traffic systems, for all U.S. and foreign vessels within the 12-mile territorial sea. This will also clarify the area in which the Captain of the Port can direct a vessel to operate or anchor, establish safety zones to protect the navigable waters, protect the nation from terrorism, and investigate vessel casualties. In addition, the Coast Guard will be able to keep out of the expanded territorial sea vessels with a history of accidents, pollution incidents, or serious repair problems and vessels that discharge oil or hazardous substances or that are improperly manned. Currently, these substandard vessels may approach as close as three nautical miles to our coast before they can be instructed not to enter our waters. This additional area of legislative jurisdiction will enable the Coast Guard, through its Port State Control Program, to deal more effectively with substandard foreign flag vessels seeking to enter our ports.369
In the new text (i.e. the official draft convention before the Conference the text of which has remained unchanged), any indication of a specific criterion which could give guidance to the interested States in their effort to achieve an equitable solution has been excluded. Emphasis is placed on the equitable solution which has to be achieved. The principles and rules applicable to the delimitation of the continental shelf areas are those which are appropriate to bring about an equitable result.379
This apparently simple and imprecise formula allows in fact for a broad consideration of the legal rules embodied in treaties and customary law as pertinent to the delimitation between the parties, and allows as well for the consideration of general principles of international law and the contributions that the decisions of international courts and tribunals and learned writers have made to the understanding and interpretation of this body of legal rules.380
Within those constraints imposed by law, the Tribunal considers that it has both the right and the duty to exercise judicial discretion in order to achieve an equitable result. There will rarely, if ever, be a single line that is uniquely equitable. The Tribunal must exercise its judgment in order to decide upon a line that is, in its view, both equitable and as practically satisfactory as possible, while at the same time in keeping with the requirement of achieving a stable legal outcome. Certainty, equity, and stability are thus integral parts of the process of delimitation.382
Thus, in respect of the continental shelf boundary in the present case, even if it were appropriate to apply, not Article 6 of the 1958 Convention, but customary law concerning the continental shelf as developed in the decided cases, it is in accord with precedents to begin with the median line as a provisional line and then to ask whether "special circumstances" require any adjustment or shifting of that line.383
for the delimitation of the maritime zones beyond the 12-mile zone (i.e. the exclusive economic zone and the continental shelf) it will first provisionally draw an equidistance line and then consider whether there are circumstances which must lead to an adjustment of that line.385
In the context of opposite coasts and latterly adjacent coasts as well, it has become normal to begin by considering the equidistance line and possible adjustments and to adopt some other method of delimitation only if the circumstances justify it.388
The determination of the line of delimitation thus normally follows a two-step approach. First, a provisional line of equidistance is posited as a hypothesis and a practical starting point. While a convenient starting point, equidistance alone will in many circumstances not ensure an equitable result in the light of the peculiarities of each specific case. The second step accordingly requires the examination of this provisional line in the light of relevant circumstances, which are case specific, so as to determine whether it is necessary to adjust the provisional equidistance line in order to achieve an equitable result. This approach is usually referred to as the "equidistance/relevant circumstances" principle. Certainty is thus combined with the need for an equitable result.389
the relevant coastline for each Party to be the length of coast that lies between the outermost points along the coastal baseline that control the direction of the provisional equidistance line to a distance of 200 nm. These coastal basepoints define the limits of each Party’s area of legal entitlement. No other portions of the coastline beyond either outer basepoints are relevant because they do not generate legal entitlement to any maritime areas subject to delimitation by the Tribunal.395
[its] relevant coast - the portion responsible for 'generating the complete course of the median line' - lies between Point 61 (its easternmost basepoint) and Devonshire Castle Flats (its westernmost basepoint).... Guyana and Suriname are in agreement on the locations of these outer basepoints, as confirmed by Figure 31 in the Counter-Memorial. The distance between them is 215 km. In like manner, Suriname’s relevant coast extends from Point 61 in the west to the easternmost point along the Suriname coast that controls the direction of the provisional equidistance line. In Guyana’s view, this point is located on Hermina Bank at 55° 45' 55.1"W; 6° 0' 39.8"N. Suriname refers to this basepoint as S13. Suriname’s coastline between Point 61 and basepoint S13... measures 153 km. The ratio of the lengths of the Parties’ relevant coastlines is thus 1.4 to 1 (215 km to 153 km) in Guyana’s favour.396
the relevant coasts are coasts that face onto or abut the area to be delimited. And this means that the relevant coasts are those that extend to a point where the coasts face away from the area to be delimited. On the Suriname side, the relevant coast extends from the Corentyne River to the Warrapa Bank. From there on, the coasts turn southeasterly, and since it no longer faces or abuts onto the area to be delimited, it is no longer relevant.399
On the Guyana side, the relevant coast extends from the Corentyne River to the Essequibo River, and... after a short turn northwards, the coast returns to [a] northwesterly trend, but from Devonshire Castle Flats on, it no longer faces or abuts into the area to be delimited.400
[i]t is clear from the map that there comes a point on the coast of each of the two Parties beyond which the coast in question no longer has a relationship with the coast of the other Party relevant for submarine delimitation. The sea-bed areas off the coast beyond that point cannot therefore constitute an area of overlap of the extensions of the territories of the two Parties, and are therefore not relevant to the delimitation.401
a delimitation which has to apply at one and the same time to the continental shelf and to the superjacent water column can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these two objects to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them. In that regard, moreover, it can be foreseen that with the gradual adoption by the majority of maritime States of an exclusive economic zone and, consequently, an increasingly general demand for single delimitation, so as to avoid as far as possible the disadvantages inherent in a plurality of separate delimitations, preference will henceforth inevitably be given to criteria that, because of their more neutral character, are best suited for use in a multi-purpose delimitation.406
The Chamber proceeded to make clear what was meant by criteria of a "more neutral character":
it is, accordingly, towards an application to the present case of criteria more especially derived from geography that it feels bound to turn. What is here understood by geography is, of course mainly the geography of the coasts which has primarily a physical aspect, to which may be added, in the second place, a political aspect.407
due to geographical circumstances, the first section of the provisional equidistance line thrust east northeast in front of the mouth of the Corantijn River and continues in a northeasterly direction across the coastal front of Suriname.410
The cut-off effect is caused by a combination of Suriname’s concavity pulling, and Guyana’s convex coastline west of the mouth of the Corantijn River pushing, the provisional equidistance line toward and in front of Suriname’s coast.... The intense congregation of Guyana’s basepoints just west of the Corantijn River on the convex coast of Guyana direct the provisional equidistance line in segment after segment as it extends into the sea. On the adjacent Suriname coast the controlling basepoints are spread out and indeed are largely absent from Suriname’s recessed coast reaching toward the Coppename River. Thus, the coastal configuration of Guyana from the mouth of the Corantijn River west to the Berbice River pushed the first segment of the provisional equidistance line eastward. At the same time, the concave coast of Suriname does not offer any countervailing protuberance, and thus there are no basepoints on Suriname’s coast to counter those of Guyana in order to turn the provisional equidistance line away from the front of the coast of Suriname. Out as far as the 200-meter depth contour, the relative position of the basepoints on the adjacent coasts continues to direct the provisional equidistance line in this way: the provisional equidistance line continues to be pushed by Guyana’s convex coast near the mouth of the Corantijn River and pulled by the concave nature of Suriname’s coast toward and in front of the coast of Suriname.411
From this Suriname concludes that a line is created "that violates the principle of non-encroachment."412
for the first time basepoints on Suriname’s coast counter the influence of the basepoints on Guyana’s protruding convex coast just west of the mouth of the Corantijn River and turn the provisional equidistance line so that it ceases its swing in front of Suriname’s coastal front. While the northward direction of the provisional equidistance line in this second sector might suggest that it is a reasonable line, it is in fact not an equitable delimitation line in this sector since it starts from an eastward point that has been determined by the convex/concave relationship between the neighboring coasts.413
it is true that the provisional equidistance line heads out from Point 61 for a very short distance in a direction toward Suriname’s coast. But this is not caused by any alleged "convexity" along Guyana’s coast. Rather, it is due to the fact that Point 61 is located on Guyana’s coast and not in the middle of the Corentyne River. Once the provisional equidistance line encounters the first basepoints along Suriname’s coast, it is pushed northward and away from Suriname. Thereafter, the corresponding coastal basepoints on each side of the Corentyne River provide a countervailing effect. Thus, after the first few km the provisional equidistance line is no longer affected by the fact that it starts from a point on Guyana’s coast, and it proceeds thereafter without any further effect from its starting point or from any localised convexities on either bank at the mouth of the Corentyne River to the end of its first segment. Accordingly, the first segment of the provisional equidistance line does not produce a cut-off effect on Suriname any more than it produces on Guyana.417
follows a relatively straight course for approximately 100 nm. But for the coastal change from concavity to convexity at Hermina Bank, the relatively constant course of the equidistance line would likely continue along the same course all the way to the 200 nm EEZ limit.421
This coastal change as a consequence "gives Suriname more than 4,000 km² at Guyana’s expense."422 Guyana considered itself "prejudiced by the purported hypersensitivity of the provisional equidistance line".423
the equidistance method does not produce an equitable result when employed in these geographic circumstances. The reason it does not do so is that it responds to incidental coastal features of the geographical situation. In doing so, as it often does in adjacent state situations, it cuts off the projection of the coastal front of one of the states - in this case it cuts off the projection of Suriname’s coastal front. Accordingly, another delimitation method is required to create an equitable solution.426 [emphasis added]
and has put forward the argument:
that when the equidistance method is not suitable in a delimitation between adjacent states, a method that employs coastal fronts and methods such as bisectors of the angle formed by adjacent coastal fronts or perpendiculars to the general direction of the common coastal front will do so.427
The best example is the first segment of the single maritime boundary prescribed in Gulf of Maine. In that situation, the adjacent neighboring coasts form an approximate right angle with an apex at the land boundary. The Chamber established coastal fronts drawn from Cape Elizabeth to the land boundary terminus, representing the general direction of the Maine coast and from the land boundary terminus to Cape Sable, representing the general direction of the portion of the Canadian coast facing the Gulf of Maine. The angle bisector between these two coastal front lines runs from the initial point of the maritime boundary established by the Chamber toward the central part of the Gulf. The use of an angle bisector in that type of configuration achieves the objective of an approximately equal division of the offshore area, coupled with what the Chamber termed "the advantages of simplicity and clarity.431
When the provisional equidistance line does not, on its own, create an equitable solution, the consequence of that is to make adjustments to the provisional equidistance line that are required to achieve an equitable solution[,] [n]ot to abandon the equidistance methodology or the provisional equidistance line altogether, and certainly not to substitute an entirely unorthodox and highly subjective methodology in its place.432
The geographical configuration of the maritime areas that the Court is called upon to delimit is a given. It is not an element open to modification by the Court but a fact on the basis of which the Court must effect the delimitation. As the Court had occasion to state in the North Sea Continental Shelf cases, "[e]quity does not necessarily imply equality", and in a delimitation exercise "[t]here can never be any question of completely refashioning nature". Although certain geographical peculiarities of maritime areas to be delimited may be taken into account by the Court, this is solely as relevant circumstances, for the purpose, if necessary, of adjusting or shifting the provisional delimitation line. Here again, as the Court decided in the North Sea Continental Shelf cases, the Court is not required to take all such geographical peculiarities into account in order to adjust or shift the provisional delimitation line: "[i]t is therefore not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result".434
An important geographic reality in this case is that there are no offshore features, such as islands or low-tide elevations that influence the drawing of an equidistant line. Nor are there are large peninsulas or protrusions from one of the coastlines that dramatically skew the course of an equidistant line.438
[t]he conduct of the parties to a maritime boundary dispute, and in particular one that concerns a single maritime boundary, is generally not relevant to the maritime delimitation. Only if that conduct meets a very high legal standard may it be taken into account. The alleged conduct must be consistent and sustained and it must display clearly an intention by both parties to accept a specific line as an equitable basis of delimitation. The adopted line therefore must be the result of an express or tacit agreement. Conduct that does not meet that legal standard is simply irrelevant. Guyana has seriously misstated the law in this respect. Guyana has elevated the ephemeral conduct of the parties to a level of controlling legal importance, which plainly is not correct.440