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 Nicaragua and Honduras, due to the permanent change of the basepoints at the mouth of the river.

 

Kind regards,

Nuno

 

 

Dear Nuno,

Thanks for these interesting observations on the Black Sea judgment.

 

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 of Law
Utrecht University
Achter Sint Pieter 200
3512 HT Utrecht
The Netherlands
tel: .. 31 (0)30 2537033
fax: .. 31 (0)30 2537073
email: [log in to unmask] 
_______________________________________________

 

.