Territorial delimitation and hydrocarbon resources

portion of the joint development zone and are without prejudice to the
positions of the respective states with respect to the delimitation.
The exploitation of resources under the banner of a joint development zone
has been proactively encouraged by the International Court of Justice and
arbitral tribunals, which recognise that provisional arrangements of a
practical nature are important tools in achieving the objectives of the
Convention. Indeed, the International Court of Justice has gone beyond
expecting joint development agreements merely to be used as a provisional
measure. For example, in the North Sea Continental Shelf cases, the
International Court of Justice stated that where there are overlapping areas
and the parties fail to agree the delimitation, these should be resolved by an
equal division of the overlapping areas, or by agreements for joint
exploitation, the latter solution appearing particularly appropriate when it is
a question of preserving the unity of a deposit34 in order to secure the most
efficient exploitation or the apportionment of the products extracted.35 This
was reinforced in the Eritrea v Yemen arbitration, where the arbitral tribunal
concluded that, in the case of exploitation of resources that straddle maritime
boundaries, Eritrea and Yemen should give every consideration to the
shared or joint or unitised exploitation of any such resources.36
During the transitional period, the reaching of the final agreement should
not be jeopardised or hampered. In the Guyana v Suriname arbitration, the
tribunal clarified that whilst this requirement is an important aspect in the
Conventions objective of strengthening peace and friendly relations
between nations and settling disputes peaceably, the obligations are not
intended to preclude all activities in a disputed maritime area.37

6. Equitable solutions
The starting point of the legal process adopted consistently by the International
Court of Justice is to consider the meaning of delimitation. This was set out by the
International Court of Justice in the North Sea Continental Shelf cases, where it stated
that delimitation is a process which involves establishing the boundaries of an area
already, in principle, appertaining to the coastal State and not the determination de
novo of such an area. Delimitation in an equitable manner is not the same thing
as awarding a just and equitable share of a previously undelimited area, even though
in a number of cases the results may be comparable, or even identical.38 The mission
of the International Court of Justice was further elaborated in the Jan Mayen case,
where the International Court of Justice stated that its task was to define the
boundary line between the areas under the maritime jurisdiction of two states and
that the sharing out of the area was the consequence of delimitation, not vice versa.39

34 Above at note 20, at p 52, para 99.

35 Ibid at p 52, para 97.
36 Second Award, above at note 6, at para 86.
37 Guyana v Suriname arbitration, above at note 7, at para 465.
38 North Sea Continental Shelf, above at note 20, at p 22, para 18.
39 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, ICJ Reports 1993, p 38, at
p 67, para 64.

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