Dear Alex
Many thanks for your
comments.
While I have not
confirmed this by going back to the Libya/Malta judgment, I believe you are
correct in saying that the basepoints on Filfla were discounted for purposes of
computation of the provisional equidistance line. I stand corrected, in that it
was not the first time the Court used the approach now followed. I’m glad
I was not too definitive in saying it was an innovation… :-) As for the Nicaragua/Honduras
Case, the bisector seemed to be the obvious solution (I put it forward as a
suggestion it in my book in 2003). But perhaps this case cannot be of much use
in making extrapolations, due to the difficulties in drawing a strict
equidistance line between
Kind regards,
Nuno
From:
Oude Elferink, A. (Alex) [mailto:[log in to unmask]]
Sent: quarta-feira, 4 de Fevereiro
de 2009 16:51
To: Nuno Antunes
Cc: [log in to unmask]
Subject: ICJ Judgment
Dear Nuno,
Thanks for these
interesting observations on the
As regards your second
point (The second point is
that this assessment of the relevance of Serpents’ island basepoints was
made not at the stage of adjustment (for equitableness purposes) of a
provisional (strict) equidistance line, but earlier in the process, at the very
computation of the provisional equidistance line. Differently put the point is
the following: more commonly (at least in State practice, but I believe also in
previous judicial and arbitral decisions), the provisional equidistance line
computed for purposes of (the preliminary) assessment of its equitableness is
usually a “strict equidistance line” (i.e. all potential basepoints
are used in the computation thereof). What seems to be an innovation on the
part of the Court, here, is that the assessment of the relevance of basepoints
was brought forward, and examined earlier in the decision-making process, at
the time of determination of the provisional equidistance line.) it is my impression that this approach was also
followed by the Court in respect of Filfla in Libya/Malta and in Nicaragua v.
Honduras, although in the latter case it used a bisector, but you can view that
as a variation of equidistance, and the Court in any case did not look at the
equidistance line involving the cays off the coast in that case as it could
have done
Best regards,
Alex
_______________________________________________
Alex G.
Oude Elferink
Netherlands
Institute for the Law of the Sea (NILOS)
School
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Utrecht
University
Achter
Sint Pieter 200
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The
Netherlands
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