¹ O’Gonnell, D. P., “Mid-Ocean Archipelagos in International Law,” (1971) 45 B.Y.I.L. 1 Google Scholar. This article appears in condensed form in Vol. I of O’Connell’s, The International Law of the Sea 236–58 (1982)Google Scholar. Unless otherwise stated, reference in this article is to O’Connell’s Brit. Y.B. article.

² Rodgers, P. E. J., Midocean Archipelagos and International Law (1981)Google Scholar. Patricia Rodgers, a non-lawyer, is the Acting High Commissioner of the Bahamas to Canada. The book was Dr. Rodgers’ doctoral thesis at the University of Geneva. See also Symmons, C. R., The Maritime Zones of Islands in International Law 69–81 (1979).Google Scholar

³ United Nations Convention on the Law of the Sea, A/Conf.62/122, Oct. 7, 1982, found in Third United Nations Conference on the Law of the Sea Official Records, Vol. XVII, at 151. The Convention has been signed by 159 states, but requires 60 ratifications or accessions to enter into force (Art. 308). At the time of writing, only 23 states had ratified or acceded to the Convention.

⁴ Records of the informal meetings of the different committees at the Conference have not been published, so it is impossible to reconstruct the exact tenor of the negotiations. However, an indication of the evolution of key issues emerges from the Third United Nations Conference on the Law of the Sea Official Records (Vols. I–XVII). At the 2nd session of the Conference (June 20-August 29, 1974), for example, the representative of the Philippines stated that archipelagic states have the right to draw straight baselines and that the waters within those baselines were subject to the sovereignty and exclusive jurisdiction of the archipelagic state: Official Records, Vol. I, at 124. See also the statement of Indonesia at the same session, ibid., 187.

⁵ In a statement to the second session of the Conference on July 4, 1974, the United Kingdom, representing the general view of maritime states, referred specifically to the requirement “that ships and aircraft should be able to move freely, safely and expeditiously through and over straits and archipelagos.” Official Records, Vol. I, at 111. A similar view was expressed at the same session by the United States, ibid., 160, thereby joining issue with the views of archipelagic states insofar as full sovereignty and jurisdiction over archipelagic waters were concerned. See also the more detailed debate on off-lying archipelagos during the initial meetings of the Second Committee of the Conference during the second session in the summer of 1974: Official Records, Vol. II, at 260–73.

⁶ These points were first raised expressly by the Japanese representative in the Second Committee on August 12, 1974. In the debate, other delegations alluded to the same technical issues: Official Records, Vol. 11, at 261, et seq.

⁷ Document A/AC.138/SC.II/L.48 (A/9021 and Corr. 1 and 3, Vol. III, sect. 38), dated Aug. 6, 1973. A later proposal, based on this earlier draft, was submitted by the same four states as document A/Conf.62/C.2/L.49, Aug. 9, 1974, to the Second Committee of the Conference: Official Records, Vol. III, at 226.

⁸ O’Connell, supra note 1, at 4–8.

⁹ Ibid., 8–10. See Official Documents of the Conference, Bases of Discussion Drawn up for the Conference by the Preparatory Committee (1930) 24 A.J.I.L. (Supplement), at 34, where the Committee reported that, given the divergence of views about the status of waters between islands comprising a group, a compromise solution was proposed:

It consists in treating as a unit a group of islands which are sufficiently near to one another at the circumference of the group while giving to the waters included within the group the character of territorial waters (emphasis added).

¹⁰ Ibid., 251–52. The issue of off-lying archipelagos arose as an incidental question in the context of Schucking’s work on the territorial sea, when he was Rapporteur of a Committee of Experts of the League of Nations. There was “great diversity” of views expressed on the issue of archipelagos in replies received from governments on Schucking’s draft in advance of the 1930 Conference, an indication of the difficulty that was to emerge in reconciling these divergent views at the Conference itself. O’Connell, supra note 1, at 8–10.

¹¹ (1930) 24 A.J.I.L (Supplement), at 252. O’Connell, supra note 1, at 10. See also Rodgers, supra note 2, at 30–36.

¹² O’Connell, supra note 1, at 10–13.

¹³ Munch, with characteristic German precision, proposed a rather complex and arbitrary mathematical formula to determine when the waters enclosed by a group of islands should be regarded as internal waters rather than high seas. The precise mathematical formula is explained in both Rodgers, supra note 2, at 44–45 and O’Connell, supra note 1, at 11–12. According to Munch’s formula, the intervening waters of a group of archipelagic islands should be regarded as internal when the sum of the distances around the perimeter is more than 4 times the sum of the distances between the islands, less the sum of the breadth of their territorial sea.

¹⁴ Le droit international public de la mer (1934), Vol. III, at 112.

¹⁵ Preparatory Document No. 15, A/Conf.13/18, Nov. 29, 1957.

¹⁶ In addition to the work of the Hague Codification Conference already referred to, the question of off-lying archipelagos had arisen as a marginal issue in consideration of the outer limit of the territorial sea by the Institut de droit international in 1927-28 and by the International Law Association in 1924–26, ibid., 290–91.

¹⁷ Ibid., 301.

¹⁸ In its first draft of provisional articles on the territorial sea, the ILC refrained from making any specific proposals on off-lying archipelagos (Official Records of the General Assembly, Ninth Session, Supplement No. 9 (A/2693)), although the earliest report of Rapporteur François (A/CN.4/77) contained separate draft provisions in this regard. Similarly, in its subsequent and final reports in 1955 and 1956 (ibid., Tenth Session, Supplement No. 9 (A/2934) and Eleventh Session, Supplement No. 9 (A/3159)), no proposals were presented on off-lying archipelagos. Hence, the 1958 Conference was not presented with any draft ILC texts on the subject.

¹⁹ Little discussion took place on the archipelagic question at the 1958 Conference. The matter was raised in the context of examination of the territorial sea of islands by the representative of Yugoslavia in the First Committee on Apr. 17, 1958. It was pointed out by the representative of the United Kingdom, Sir Gerald Fitzmaurice, that

the complexities of the problem [of archipelagos] had caused it to be left pending both by the Hague Conference of 1930 and by the International Law Commission. It was particularly complex in the case of oceanic — as opposed to coastal — archipelagos, some of which were compact groups of islands with overlapping territorial seas, while others were widely scattered … and he suggested that any proposal dealing with archipelagic baselines be deferred for further study. This suggestion was accepted by Yugoslavia. United Nations Conference on the Law of the Sea Official Records, Vol. III: First Committee (A/Conf. 13/39), at 162–63.

²⁰ Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 516 UNTS 205.

²¹ ICJ Reports 1951, p. 116.

²² Following adoption of the 1958 Territorial Sea Convention, the subject of off-lying archipelagos was again raised, this time by Indonesia and the Philippines, at the Second UN Conference on the Law of the Sea in 1960. Second United Nations Conference on the Law of the Sea Official Records (A/Conf.19/8), at 51–52 and 93–94. However, given the inability of the Conference to reach agreement on the central items under consideration — the breadth of the territorial sea and of fishery limits — the archipelagic question was once again left unresolved. See Final Act of the Second United Nations Conference on the Law of the Sea, Apr. 26, 1960, ibid., 175.

²³ The notion of a “group” or “unit,” as a generalized description, is found in early analysis, already referred to, by the Institut de droit international and the International Law Association. Similar terms were employed by the American Institute of International Law in its work in 1925–26 and by several jurists in the pre-Hague Codification Conference period: Evensen, supra note 15, at 292; O’Connell, supra note 1, at 5–7. The International Court of Justice in the Fisheries case, supra note 21, at 129–30, albeit in the context of a coastal archipelago, gave implicit recognition to the “unit” concept in allowing the Norwegian use of straight baselines along the skjaergaard, when it recognized “the more or less close relationship existing between certain sea areas and the land formations which divide or surround them” (at 133).

²⁴ O’Connell, supra note 1, at 15 (emphasis added).

²⁵ Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor Beyond the Limits of National Jurisdiction, Sub-Committee II, 13th Meeting, Aug. 16, 1971, A/AC.138/SC.II/SR.13, 1–7. In the debate on the revised proposal at the Second Session of UNCLOS itself on Aug. 12, 1974, the sponsors of A/Conf.62/C.2/L.49, supra note 7, all spoke in similar terms, emphasizing the concept of unity and coherence of an island grouping and interconnecting waters as the basis for an archipelagic claim. Official Records, Vol. II, note 4, at 260–65. See also Symmons, supra note 2, at 60–61.

²⁶ In the case of the Philippines, for example, O’Connell notes that they “rely to a great extent upon historical justifications for the delimitation of their maritime domain, but the arguments of geography and geology which the Philippine apologists have adverted to are not inconsiderable.” O’Connell, supra note 1, at 30. Similar general historic and geographic factors are the root of most archipelagic claims that pre-date the 1982 Convention. See Rodgers, supra note 1, at 107 et seq. and the Philippines statement in the UN Seabed Committee, supra note 25.

²⁷ As noted, the definition in the Aug. 9, 1974 proposal by the Philippines, Fiji, Mauritius, and Indonesia, supra note 7, is virtually identical to that appearing in the final text of the Convention, including the use of the term “intrinsic.” The representative of Fiji, speaking in the debate on this matter in the Second Committee of UNCLOS, said that “the sponsors had attempted to clarify the definition of an archipelago by reference to the integral relationship between the islands, waters, and other natural features forming its intrinsic entity. They had been unable to arrive at a more precise mathematical formulation …” (emphasis added). Official Records, Vol. II, supra note 4, at 262–63. None of the statements on behalf of the sponsors add much in elucidating the precise meanings that were intended to be attributed to the various components of the definition.

²⁸ The Shorter Oxford English Dictionary (3rd ed., 1973). In Canadian jurisprudence, the courts have had occasion to interpret the phrase “intrinsic value” as meaning the value embodied in the thing itself, independent of exterior or surrounding circumstances and quite apart from its prevailing market value: Grierson v. Edmonton (1917), 45 D.L.R. 70; 58 S.C.R. 13; Rex v. Carslake Hotel (1915), 34 D.L.R. 273; Re City of Winnipeg and Battaglia (1914), 7 W.W.R. 206. This implies that the “entity” test warrants more severe scrutiny than might otherwise be the case in the absence of the term “intrinsic.”

²⁹ A case that is close to this point is Fiji. In speaking to the Seabed Committee in 1971, Fiji stressed its rising population rate, problems of unemployment, and the lack of suitability for agriculture of much of its land mass. The population problem and the economic unsuitability of its land were used, in part, as a means of justifying Fiji’s archipelagic claim. Mauritius offered a further example of a claim justified not exclusively on the concept of constituting an intrinsic entity but rather on the need for promoting economic development. Quoted in Rodgers, supra note 1, at 111–12.

³⁰ Supra note 21, at 132.

³¹ In the Fisheries case, the subject of the dispute, as the Court pointed out, was the Norwegian baseline system under international law: ibid., 125. The U.K. position, of course, was that Norway could not convert areas of high seas into internal or territorial waters by use of its baseline system: conclusion 12 of the Agent of the U.K. in oral argument: ibid., 122. Obviously, the same considerations apply in the case of off-lying archipelagos as in the Norwegian situation.

³² Island of Palmas case (1928), II, U.N.R.I.A.A. 829, at 839.

³³ See Fitzmaurice, G., “The Law and Procedure of the International Court of Justice, 1951–4; Points of Substantive Law, Part II,” (1955–56) 32 B.Y.I.L. 20 Google Scholar; Waldock, C. H. M., “Disputed Sovereignty in the Falkland Islands Dependencies,” (1948) 25 B.I.Y.L. 311 Google Scholar; Brownlie, I., Principles of Public International Law 141–74 (3rd ed., 1979).Google Scholar

³⁴ In the Fisheries case, supra note 21, the United Kingdom argued that the Norwegian system of delimitation was not known to it and that it lacked the notoriety essential to provide the basis of an historic title enforceable against it. The International Court of Justice rejected this argument, holding at 139 that,

The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom.

The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law (emphasis added).

³⁵ Since effective occupation requires the continuous and peaceful display of territorial sovereignty, protests by other states must be taken as an indication to the contrary. See, for example, the Chamizal Arbitration (Mexico v. U.S.A.) (1911), 11 R.I.A.A. 316; Lauterpacht, H., “Sovereignty over Submarine Areas,” (1950) 27 B.Y.I.L. 395–98.Google Scholar

³⁶ What this means is that if Art. 46 requires more than a unilateral assertion based on historic title — that is, proof that archipelagic status has been “historically regarded as such” by the international community — it may well follow that mere tolerance or passive acquiesence will not be sufficient Art. 46 therefore may demand evidence of positive acts of acceptance by other states to fulfil the historic test.

³⁷ By “historic waters,” the Court pointed out in the Fisheries case, “are usually meant waters which are treated as internal waters but which would not have character were it not for the existence of an historic title.” Supra note ai, at 130.

³⁸ The Convention does not envisage that waters enclosed within archipelagic baselines become internal waters. These latter are called “archipelagic waters” under the Convention and are thus distinguishable from internal waters status. Arts. 2(1), 49(1), and 50 make this clear. The Convention also accords rights of innocent passage and archipelagic sea lanes passage to foreign vessels through archipelagic waters (Art. 53). None the less, it would seem that the same legal ingredients would be necessary to sustain a claim to historic title over archipelagic waters as over internal waters.

³⁹ Under this provision, the ratio of the area of water to the area of land enclosed by archipelagic baselines cannot exceed 9 (water) to 1 (land). In addition, archipelagic baselines must not exceed 100 nautical miles, with the proviso that up to 3 per cent of the total number of baselines may exceed 100 nautical miles, up to a maximum length of 125 nautical miles. The original proposal by Fiji, Indonesia, Philippines, and Mauritius in 1973–74, supra note 7, made no mention of these two elements, but the states indicated a willingness to negotiate on these points as a means of securing agreement of the major maritime powers. Symmons, supra note 2, at 78–81.

⁴⁰ Art. 31 of the Vienna Convention on the Law of Treaties provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” This is a succinct way of stating that words are to be assigned meaning in the context of the document under consideration. See Elias, T. O., The Modern Law of Treaties 73 (1974).Google Scholar

⁴¹ It is not clear from the available records whether this particular provision was subject to debate at UNGLOS. One must assume not, since the final version is identical to the four-state proposal submitted in Document A/Conf. 62/C.2/L.49, Aug. 9, 1974, supra note 7.

⁴² In the Fisheries case: “It is the land which confers upon the coastal State a right to the waters off its coasts.” Fisheries case, supra note 21, at 133.

⁴³ See the Court’s well-known views in the North Sea Continental Shelf cases regarding the “fundamental notion … of the natural prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea, which is under the full sovereignty of that State,” ICJ Reports 1969, p. 31.

⁴⁴ In strict terms under the 1982 Convention, the territorial sea is a “belt of sea” “adjacent” to the land territory of a state: Art. 2. The exclusive economic zone is the area “beyond and adjacent to the territorial sea”: Art 55. These mechanical definitions were given judicial effect in more meaningful terms by the Court in the Case Concerning the Continental Shelf (Libya/Malta). ICJ Reports 1985, p. 3. There the Court made it clear that jurisdiction and sovereignty under the new regime of the 200-mile zone—both water and shelf — is tied to the primary factor of distance from the shore (i.e., the coastline) of the coastal state: ibid., 33.

⁴⁵ (Emphasis added). This definition is capable of producing some rather strange results. For example, Cape Cod, along the Massachusetts coast, is normally considered to be a peninsula in geographic terms. Yet there is a canal — the Cape Cod Canal — situated at its western end, which cuts through the entire land mass of the Cape. Thus Cape Cod is completely surrounded by water. Does this make Cape Cod an island? Reference was made to this fact in the Canadian pleadings in the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, ICJ Reports 1984, p. 246; Gulf of Maine case, Counter-Memorial submitted by Canada, para. 133. The Court made no mention of this point in its judgment.

⁴⁶ A drying reef would seem to be similar to a low-tide elevation, in the sense that it is dry at low tide. Use of the adjective “drying” means that at some point the reef is entirely submerged by the sea, while at other times (at low tide) it is emergent. See comments on the use of the term “drying reefs” by Hodgson, R. D., and Smith, R. W., “The Informal Single Negotiating Text (Committee II): A Geographical Perspective,” (1975–76), 3 Ocean Development and International Law 229–30.Google Scholar

⁴⁷ As a scientific matter, a reef is defined as:

a complex organogenic framework of calcium carbonate (primarily of corals) which forms a rocky eminence on the sea floor and customarily grows upward to the low-tide limit. It thus causes waves to break, and consequently, the internal spaces in this branching framework are packed with fragments of broken reef material, coralline algae, broken-up mollusks, echinoid debris, and foraminifera. The principal reef builders today are the Madreporaian (or Scleractinian) colonial corals of the class Zoantharia, phylum Coelenterata. Coral reef rock is often very porous material with a large variety of components, with mainly inorganic cementing materials. The Encyclopedia of Marine Resources (1969), Firth, E. D. (ed.), at 147.Google Scholar

⁴⁸ The “Portico Doctrine” is a development of the theory of embracing “natural appendages of the coast” as basepoints for measuring the territorial sea, propounded by Stowell, Lord in Twee Gebroeders (1800), 165 Google Scholar E.R. 422 and The Anna (1805), 165 E.R. 809. It was used by British legal advisers as justification for British claims of an extended territorial sea in the case of the Bahamas and Bermuda in the nineteenth century. See Rodgers, supra note I, at 11–14.

⁴⁹ After reviewing the history of the provision regarding low-tide elevations found in the 1958 Territorial Sea Convention, O’Connell, , in The International Law of the Sea, supra note 1, at 195 Google Scholar, says,

The question arises whether the Geneva Convention, by creating such a sharp dichotomy between high-tide and low-tide elevations in relation to primary and secondary territorial sea limits had had the effect of eliminating the possible third category of coastal reefs, atolls, and other features which the dichotomy does not adequately comprehend, and for which customary international law may have made special provision.

Reference to features other than low-tide or high-tide elevations in the 1982 Convention reflects the fact that these other features seem to have been used in practice for purposes of territorial sea measurement.

⁵⁰ An atoll is a ring-shaped reef, morphologically like a ribbon reef bent in a circle, enclosing a lagoon. Darwin suggested that fringing reefs surrounding volcanic islands, during subsidence gradually became ring-shaped barrier reefs, and as subsidence continued, eventually became outer-island-free ring reefs. This is certainly the origin of some atolls, especially as seen in the Society Islands, but there are several other types of atoll: shelf atolls, such as those off the coast of northwestern Australia; compound atolls, that grew up during a period of subsidence of the continental crust, e.g., in the South China Sea, in the Tiger Islands of Indonesia, in the Maldives and Laccadives, and on the Coral Sea plateau; and oceanic atolls, that rise from isolated volcanic cones in the deep ocean basins (often called “mid-Pacific” type). The Encyclopedia of Marine Resources, supra note 47, at 148.

⁵¹ In the case of Kiribati, several of the islands are in fact large atoll formations, with the land component constituting a small part of the total feature (i.e., Palmyra Island). Several parts of the Bahamas are similarly largely reef formations. Atolls where the coral formation is the principal feature are mainly of the oceanic or mid-Pacific type. In this type of atoll, continued subsidence of volcanic island formations results in the volcanic cone being beneath the surface and the ring-like coral formations remaining emergent. Bhatt, J. J., Oceanography 229–37 (1978).Google Scholar

⁵² Fringing reefs,

were regarded by Darwin as the basic reef type, forming a shallow veneer or shelf in shallow water at or near the shore of the mainland or around offshore islands. Heavy sedimentation and fresh water runoff along many mainland coasts tend to make these less attractive for fringing reefs than the offshore and oceanic islands. In heavy rainfall areas the nearshore surface of the reef (if present at all) is often so veneered by terrigenous sediments as to obscure the corals and inhibit growth in the pools and shallow lagoons. The Encyclopedia of Marine Resources, supra note 47, at 147.

⁵³ As already noted, an atoll is simply a ring-shaped reef. The composition is primarily calcium carbonate (corals) although calcareous algae contribute to coral reefs and in certain cases can form independent algae reefs. The Encyclopedia of Marine Resources, supra note 47, at 147.

⁵⁴ Para. 5 of Art. 47 provides that baselines shall not be drawn to and from low-tide elevations unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly within the twelve-mile belt of territorial sea. Arts. 7 and 13 of the Convention dealing with straight, as opposed to archipelagic, baselines contain similar language. See O’Connell, supra note 49, at 193–95.

⁵⁵ Unless, of course, the low-tide elevation is within the breadth of the territorial sea or has a structure upon it that remains continually above water, even at high tide. Convention on the Territorial Sea and Contiguous Zone, supra note 20, Art. 11.

⁵⁶ For example, it is not clear whether the ability to “sustain” human habitation or economic life must be based on wholly internal factors. Second, while human habitation is relatively straightforward, the phrase “economic life” is not easily understood. See Hodgson and Smith, supra note 46, at 530–34; Van Dyke, J. M. and Brooks, R. A., “Uninhabited Islands: Their Impact on the Ownership of the Ocean’s Resources,” (1983) 12 Ocean Development and International Law 265.CrossRefGoogle Scholar

⁵⁷ Convention on the Continental Shelf, Apr. 29, 1958, Art. 6, 449 UNTS 311.

⁵⁸ Anglo-French Continental Shelf Arbitration, June 30, 1977, 54 I.L.R. 123, at para. 249.

⁵⁹ Since the baseline system of coastal archipelagos becomes in effect the continental coastline by virtue of the general direction of the coast principle (see Fisheries case, supra note 21, at 132, where the U.K. conceded that the Norwegian skjaergaard constituted a whole with the Norwegian mainland), there seems to be no logical reason for not according the same effect to archipelagic baselines. The assimilation of archipelagic baselines to a coastal front is given weight by the fact that the territorial sea — and, indirectly, the exclusive economic zone — are measured seaward from those baselines.

⁶⁰ Supra note 45.

⁶¹ Emphasis added. Ibid., 327.

⁶² Ibid., 328.

⁶³ ICJ Reports 1985, p. 13.

⁶⁴ The precise approach of the Chamber on the equal division of overlapping areas was referred to with approval in the separate opinions of Judges Ruda, Bedjaoui, and Jiminez de Arechaga. The concurring judges also referred to the North Sea Continental Shelf cases, supra note 43, at 53, in support of this proposition. Ibid., 91.

⁶⁵ The Court stated, (supra note 63, at 33)

even though the present case relates only to the delimitation of the continental shelf and not to that of the exclusive economic zone, the principles and rules underlying the latter concept cannot be left out of consideration. As the 1982 Convention demonstrates, the two institutions — continental shelf and exclusive economic zone — are linked together in modern law. Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of any exclusive economic zone which it might proclaim, one of the relevant circumstances to be taken into account for the delimitation of the continental shelf of a State is the legally permissible extent of the exclusive economic zone appertaining to that same State (para. 33).

… for juridical and practical reasons, the distance criterion must now apply to the continental shelf as well as to the exclusive economic zone.… This is not to suggest that the idea of natural prolongation is now superseded by that of distance. What is does mean is that where the continental margin does not extend as far as 200 miles from the shore, natural prolongation, which in spite of its physical origins has throughout its history become more and more a complex and juridical concept, is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil (para. 34).

⁶⁶ Thus, the Court said, where the seabed or water column areas concerned are situated at a distance of under 200 miles from the coasts, “title depends solely on the distance from the coasts of the claimant States.” Ibid., 35.

⁶⁷ As the Court stated ibid., 46–47, in the Libya-Malta dispute (ibid., 46–47): the law applicable to the present dispute, that is, to claims relating to continental shelves located less than 200 miles from the coasts of the States in question, is based not on geological or geomorphological criteria, but on a criterion of distance from the coast or, to use the traditional term, on the principle of adjacency as measured by distance. It therefore seems logical to the Court that the choice of the criterion and the method which it is to employ in the first place to arrive at a provisional result should be made in a manner consistent with the legal concepts underlying the attribution of legal title.

The provisional result arrived at by the Court “consistent with the concepts underlying the attribution of legal tide” was the use of the median line — in other words, a preliminary result based upon equal division of overlapping areas.