De Novo Delimitation Lines: A Constitutive Concept of Delimitation

The delimitation process has conceptually been considered to reflect preexisting maritime boundaries. This arises as the delimitation has not been seen to result in de novo lines as the delimitation process has been conceived as a declaratory exercise that necessarily arises from the ab initio nature of coastal States’ rights to the continental shelf. The International Court of Justice and Annex VII arbitral tribunal have followed a declarative understanding of delimitation. Accordingly, the extraction of hydrocarbons by a third State in a yet un-delimited area, which, pursuant to a judicial decision, would be recognized to be part of the continental shelf of the neighboring State, should, it is reasonable to assert, constitute an international wrongful act under international law and engage the international responsibility of the relevant State(s), except if authorized expressly by the relevant coastal State. This a priori uncontroversial understanding appears
revisited by the Special Chamber of the International Tribunal for the Law of the Sea in the Ghana/Co ˆte d’Ivoire case. According to the Special Chamber the delimitation consists in giving one entitlement priority over the other and therefore the delimitation of the continental shelf has a constitutive nature rather than declaratory. The approach of the Special Chamber can give rise to numerous intricate legal questions that may arise in future delimitation cases.