Competing schools of jurisprudence

A. Introduction

The essence and virtue of any legal concept and process, consisting of a principled and reasoned approach to problems of life, is no different in maritime boundary delimitation and the allocation of marine space from any other field of the law. In Chapter 10, a principled approach was considered to be an essential requirement for satisfying legitimate expectations, political predictability and acceptance of results. Abstract approaches by the courts to this effect have evolved over the last fifty years through a pendulum development and a process of trial and error – away from an emphasis on rule-orientation and towards result-orientation, then backagain to delimitation primarily based on equitable principles, and finally towards a combination of a result-oriented and a rule-oriented approach emphasizing the method of equidistance and taking into account special circumstances and proportionality on the basis of a three-step approach with equitable principles largely operating in the background. Whatever the practical differences of these various approaches and the submitted return to an approach based upon equitable principles in this book, there is no disagreement that delimitation based upon equity pursues the ambition of being a legal and rule-based concept, relying upon principles and relevant circumstances, the specification of which should result in an overall equitable apportionment.Whether delimitation based on the rule of equity is in fact a legal operation, or one of ex aequo et bono settlement in disguise, much depends on the methodology and the consistency with which it is applied in a particular case. By and large, the results of cases so far have implicitly complied with the requirements of equitable solutions under the standards of political predictability and legitimate expectations, and the compromises achieved have been equitable in that sense. They were all politically accepted. But, all too often, they have not been achieved in a sufficiently principled manner.