TY - JOUR
AU - Kunoy, Bjørn
AB - Abstract 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 tribunals 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/Côte 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. I. Introduction 1. Coastal States have inherent rights to the continental shelf. Where there is no overlapping entitlement with another State, establishment of the limits of the continental shelf is done pursuant to a delineation, which is a unilateral act vis-à-vis the international community. While the establishment of outer limits of the continental shelf is a unilateral act, its validity is contingent upon being in conformity with the relevant rules and principles of international law.1 Thus, if not done in accordance with international law a delimitation will not be opposable under international law.2 Accordingly, where there are overlapping entitlements, international law requires the relevant States to delimit the area with overlapping entitlements.3 2. The point of fact that a coastal State’s rights to the continental shelf exist ipso facto and ab initio4 implies that a delimitation establishes a line, which in principle exists ex ante. Accordingly, in the North Sea cases the International Court of Justice (ICJ) characterized delimitation as a “process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal state and not the determination de novo of such an area”.5 The refusal of international courts and arbitral tribunals to take into account geomorphological criteria as an equitable criterion was due to the understanding that to do so would be an act of embracing a constitutive concept of delimitation.6 While “entitlement and delimitation are two distinct concepts [,] they are interrelated.”7 In point of fact the declaratory nature of delimitation is necessarily the corollary of the legal foundation of continental shelf rights. Otherwise the meaning and scope of inherent rights to the continental shelf would be void of effect. Yet, this understanding appears to have been revisited in the Ghana/Côte d’Ivoire case in which a special chamber of the International Tribunal for the Law of the Sea (ITLOS) (hereinafter the “Special Chamber”) observed that although “[t]he Parties both consider such a judgment only to be of a declaratory nature[,] they disagree as to the consequences to be drawn from such a qualification”.8 According to the Special Chamber, where there is an overlap of entitlements, “[o]nly a decision on delimitation establishes which part of the continental shelf under dispute appertains to which of the claiming States. This means that the relevant judgment gives one entitlement priority over the other.”9 This proposition is difficult to reconcile with the nature of coastal States’ rights to the continental shelf. This arises as the rights pre-exist the establishment of delimitation lines. Accordingly, it is nonsensical to claim that the delimitation operation results in an amputation of areas of continental shelf. It would appear that a reason for this à priori unfortunate statement of the Special Chamber relates to an amalgam being made between the notion entitlement and title, respectively, both of which are mutually exclusive.10 The Special Chamber also takes its reasoning one step further when observing that its “decision”11 constitutes an attribution of areas of continental shelf to the respective States. Accordingly, the delimitation is said to have “a constitutive nature and cannot be qualified as merely declaratory”12 while hitherto it has been considered that the rights “can be declared (and many States have done this) but does not need to be constituted”.13 3. The relevant parts of the judgment of the Special Chamber are in many regards in variance with settled case law,14 which makes it an interesting decision.15 This paper addresses the relevant ruling of the Special Chamber in four steps. Firstly, the difference between entitlement and title will be examined in order to demonstrate that the apparent constitutive approach of delimitation, established by the Special Chamber, appears partly to originate in an amalgam and indifference being made in regard to these the two notions (Part II). Secondly, the ratio legis of the genesis of the inherency doctrine in international law, in so far as it concerns coastal States’ rights to the continental shelf, will be outlined with a view to examining whether the constitutive approach of the Special Chamber conflicts with the fundamental principle underlying the regime applicable to the continental shelf under international law (Part III). Thirdly, the Special Chamber’s conception, consistent with which its decision constitutes an apportionment of continental shelf areas, will be examined (Part IV). Fourthly, the paper will analyze and determine which consequences flow from the approach of the Special Chamber. It will be concluded that the reason for which the delimitation operation is declaratory is not coincidental. Its nature is the necessary corollary to the legal foundation applicable to the regime of the continental shelf. Deviations therefrom appear partially to be based on misconceived concepts underlying the legal regime and also a failure to pay sufficient attention to the ratio legis that generated the inherency doctrine. II. Entitlement to continental shelf 4. A recurrent confusion in the law of the delimitation is the amalgam made between title and entitlement. It is submitted that these notions are not synonyms.16 The former is genome in land disputes while the latter is alien in such disputes but occurs recurrently, but not exclusively, in continental shelf disputes. In land disputes, effectivités will determine who has title where the uti possidetis rule or treaty of cession may be ambiguous. The resolution of such disputes consists in determining which State has the “superior claim”.17 Where the claim to sovereignty is not based upon, e.g., a treaty of cession, but rather on continued display of authority, two cumulative criteria need to be fulfilled, “the intention and will to act as sovereign, and some actual exercise or display of such authority”.18 The imposition of effectivités presupposes that rights are being exercised19 but the display of authority need not be abundant. It can be sparse.20 Yet, in any event, this fundamental principle marks a conceptual difference in regard to the legal regime applicable to the continental shelf in which the “right does not depend on its being exercised”.21 Thus, there is no foundation for determining whether one continental shelf entitlement is superior to a competing entitlement of a third State. 5. In maritime delimitation disputes, courts and tribunals use interchangeably the notions title and entitlement. Yet, in contrast to entitlement, title is absolute. There can be no overlap of titles to the continental shelf while the contrary is not true in so far as entitlements are concerned. As has been observed elsewhere, “[s]peaking of overlapping ‘titles’ reveals in some measure a contradiction in terms; no sovereign title may exist in an area where another sovereign title already exists.”22 In the Black Sea case, the notion entitlement appears as the English translation23 of the notions “droit”24 and “prétention”.25 In the Bay of Bengal case it appears as “titre”.26 These three concepts are obviously not synonyms, only titre corresponds to title. The interchangeable use of these terms in the French language in regard to title is symptomatic of the prevailing disarray. This appears also in a particularly lucid manner in Libya/Malta, where the second of these three concepts, i.e. prétention, is the French translation27 of “claim”.28 The mixture of translations of the notions entitlement and title, respectively, appears also in the Jan Mayen case, where overlapping potential entitlement is translated29 in French as “zone de chevauchement des titres potentiels”.30 Further, in Territorial and Maritime Dispute (Nicaragua v. Colombia) the expression overlapping potential entitlement is translated to “zone de chevauchement potential”31 in which the notion titre is omitted, while the open compound potential entitlement is translated as “droits potentiels”.32 In the Bay of Bengal case, the ITLOS relies on three different notions in so far concerns the notion entitlement, which becomes apparent when comparing the French version with that of the English version.33 It is translated as “titre”,34 which is the correct French translation of title, “espace maritime auquel un de ces Etats a droit”35 and “droit”.36 Finally, in Ghana/Côte d’Ivoire, the Special Chamber makes use of the notion droit and “peuvent revendiquer”,37 not while referring to title but to entitlement.38 There is thus a true confusion in the use of these important concepts as is apparent in the respective translations.39 Yet, the confusion is not one that is solely due to unfortunate translations, the implications of which can be mitigated where only one linguistic version is authoritative, but arises also in the terminological disarray as to the proper meaning of entitlement and title, respectively. 6. This is apparent in the interchangeable referral to either “entitlement”40 or “title”41 in the Black Sea case while apparently intending to refer to the same meaning. This arises if one looks closely at the observations of the Special Chamber in Ghana/Côte d’Ivoire where it is held that the disputing parties “have an entitlement to the relevant continental shelf on the basis of their relevant coasts”,42 while the ICJ observes in the Black Sea case that “[t]he title of a State to the continental shelf […] is based on the principle that land dominates the sea.”43 Yet, the notions title and entitlement are not synonyms, as eloquently observed by one of the counsel in Maritime Dispute (Nicaragua v. Colombia), “[e]ntitlement, of course, is not title.”44 This matter was also addressed by another counsel of Nicaragua. The question was raised how are “ces entitlements se transforment-ils en ‘droits’ véritables? En d’autres termes, comment passe-t-on de la vocation à des espaces maritimes ou à des droits souverains sur ceux-ci à la delimitation de ces espaces ? Par l’application de la méthode standard de delimitation.”45 7. It appears from the above that the matter can be bifurcated. On the one hand, if there is no entitlement of another State that overlaps with the 200-nautical-mile (M) entitlement a coastal State, the entitlement of the latter will correspond in size to the area to which the State holds title, within which its sovereign rights to explore and exploit the continental shelf exist ab initio. Thus, in situations where there is no overlap of entitlements, entitlement equates with title. On the other hand, if there is an overlap with a competing entitlement of another State, the States are obliged to pursue a delimitation. Each State holds title to the area that is landward of the delimitation line,46 which obviously will not necessarily correspond in size to the area of their respective entitlements that jointly comprise the area of overlapping entitlements. The area landward of the delimitation line corresponds to the zone in which the coastal State is vested with title, while the area seaward of the delimitation line, but within the 200 M distance line from its baselines, or as appropriate within the outer limits delineated pursuant to Article 76 of UNCLOS, is part of the area to which the relevant States may have entitlement, but in which they are not vested with inherent rights. Consequently, they cannot be considered to have title to the area in question, either prior to, or subsequent to, the establishment of a delimitation line, certainly not subsequent to. To ignore this difference between the two concepts in conjunction to treating the areas in a similar fashion may impact the foundation that underlies the inherency doctrine in so far as coastal States’ rights to the continental shelf are concerned. III. Ratio legis for inherent rights 8. The recognition of inherent rights to the continental shelf did not appear like Venus rising from the sea. In point of fact the inherency regime arose during a period of time when the idea of occupation of seabed areas was not excluded. Scholars advocated that the sea-bed was considered “a res nullius susceptible of a single act of appropriation”,47 and that “occupation is left as the most satisfactory explanation of existing claims to the sea-bed”.48 This reasoning was also echoed by Cecil Hurst, who advocated that the “sub-soil beneath the bed of the open sea outside the marginal belt of territorial waters is a no man’s land, property which can be acquired on the part of the littoral state through occupation starting from the sub-soil beneath the bed of the territorial maritime belt”.49 In the same vein, Richard Young, while contesting proclamations of occupation, advocated that only those areas of seabed that were under effective “exploitation could be regarded as being under the exclusive authority of the claiming State.”50 Yet, the nature of a proclamation of title to an area of seabed by contrast to a proclamation seeking to assert sovereign rights to such an area does not appear clear, as a proclamation “is a means by which a title, claimed or acquired, is announced. It is not a source of a title or a means of acquiring it.”51 9. Neither the Truman Proclamation nor subsequent declarations of a large number of States made use of referring to effective or any other sort of occupation of the seabed.52 Some authors have asserted that these proclamations were already intended to rely on an inherency nature of rights to the continental shelf to which the rights existed ipso facto and ab initio regarding areas “acquired by or belonging to the state by reference to a legal basis other than occupation.”53 Be that as it may, the proponents of the doctrine of occupation of the continental shelf did not manage to ensure its upper hand within the International Law Commission (ILC). The special rapporteur, Professor Francois, also noted in his first report that “[i]t would seem to serve no purpose to refer to the sea-bed and subsoil of the submarine areas in question as res nullius, capable of being acquired by the acquirer.”54 In the view of the special rapporteur such a “conception might lead to chaos”.55 10. From this background, it is clear that the doctrine of inherent rights to the continental shelf was a counter-reaction to the doctrine of occupation of the continental shelf. Gidel observes in this regard that it is “avant tout dans les critiques dirigées contre les doctrines de l’occupation que [ILC] a puisé”56 that the inherency doctrine appeared, consistent with which “[t]he rights of the coastal State to the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.”57 Further, it is well established that in order to exercise the rights to explore the continental shelf and exploit its resources, “no special legal process has to be gone through, nor have any special legal acts to be performed”.58 11. The declarative understanding of the delimitation operation is in full concordance with the ab initio relation between the title-holder, i.e. the relevant coastal State, and the temporal scope of its rights to explore the continental shelf and exploit its resources. Further, as the ICJ observed in the North Sea cases, the right of the coastal State to exploit the resources and explore the continental shelf “can be declared (and many States have done this) but does not need to be constituted”.59 In this regard, it has been observed that it was “an implicit consequence of [the ipso facto and ab initio] doctrine that the areas of continental shelf falling under the jurisdiction of each party were predetermined ab initio”.60 Judge Oda observes further that each of the entitlements are “mutually exclusive of the other, so that the function of the delimitation of the continental shelf consisted ‘merely’ in discerning and bringing to light a line already in potential existence”.61 This is the reason for which the establishment of a delimitation line was not considered to create sovereign rights but merely clarifies the geographical scope with the force of res judicata.62 12. It is difficult to accept that the above does not stand in variance with the statement of the Special Chamber in the Ghana/Côte d’Ivoire case consistent with which a delimitation “has a constitutive nature”.63 This arises as the inherency regime has its purpose to eliminate any constitutive effect to actions on the seabed in so far concerns the delimitation of continental shelf areas. To the extent the delimitation operation is constitutive and the delimitation operation creates the confines within which the relevant disputing parties are vested with title, they will have a natural inclination to undertake activities in the area with overlapping entitlements. This becomes particularly clear, given the Special Chamber’s inclination to accept that “maritime activities undertaken by a State in an area of the continental shelf which has been attributed to another State by an international judgment cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out before the judgment was delivered and if the area concerned was the subject of claims made in good faith by both States”.64 13. In point of fact it is only natural to conclude that the approach of the Special Chamber constitutes, or seeks to achieve the same, a paradigmatic change in regard to the foundation on which the delimitation methodology lies. It will be recalled that in the North Sea cases, the ICJ observed that “the doctrine of the just and equitable share appears to be wholly at variance with what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf […] namely that the rights of the coastal State […] exist ipso facto and ab initio”.65 The statement of the Special Chamber that a delimitation “has a constitutive nature and cannot be qualified as merely declaratory”66 is thus in variance “with what the [ICJ] entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf”.67 IV. Apportionment of areas 14. While courts and tribunals have clarified that the corollary to the inherency doctrine is that the delimitation operation is declaratory, there have been some doctrinal reservations on this particular understanding. It has been observed that the course of the delimitation line “follows from the Courts act of balancing and is not inscribed in some transcendental code ex ante.”68 The point of fact that the “rights are said to pre-exist the actual act of listing and evaluating the various circumstances appears only as a strenuous fiction: for practical purposes, they become dependent on the act of establishing the balance, on taking a view on equity by the Court.”69 In his Dissenting Opinion in Tunisia/Libya, Judge S. Oda observed that the ICJ should “be inhibited from realizing that the present delimitation was simply a question of equitably dividing, or apportioning, between the Parties, by means of a justifiable line of demarcation, those submarine areas which either could potentially have claimed.”70 Upon referral to the legal basis of the entitlement “under the new concept of the continental shelf”,71 Judge Oda contended that “no line which could have been suggested by the [ICJ] would have been an absolute line in the sense of being the only possible legal line, deviation from which would mean encroachment upon the rights possessed ab initio by one party or the other.”72 Therefore the ICJ was only requested to “indicate the principles and rules of international law for dividing the area which both parties might claim under the concepts of the continental shelf.”73 Yet, this understanding has repeatedly been rejected by courts and tribunals in the edification of the “delimitation methodology”,74 which, there can be no doubt, is a legal operation although of a “purely praetorian origin”.75 15. Notwithstanding these dogmatic reservations, the doctrinal understanding of the ICJ in so far as the nature of the delimitation operation is concerned is not isolated to the explicit establishment of the previously mentioned meta-principle in the North Sea cases. Other than confirming in subsequent disputes the ab initio nature of the rights to the continental shelf, in the Jan Mayen case, the ICJ explicitly reinstated the declarative nature of delimitation when observing that “the sharing-out of the [disputed area] is the consequence of the delimitation, not vice versa”.76 This observation was also embraced by the ICJ in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain.77 16. Where areas are shared the necessary implication is that the delimitation operation results in an amputation of title. Interestingly, in the Ghana/Côte d’Ivoire case, the Special Chamber observed that a delimitation “gives one entitlement priority over the other”.78 Consequently, the Special Chamber is giving resonance to the doctrine consistent with which a delimitation implies the amputation of entitlements79 notwithstanding that it is difficult to digest this statement in coherence with the understanding that “the sharing-out of the [disputed area] is the consequence of the delimitation, not vice versa”.80 It may be inferred from the apparent reasoning of the Special Chamber that it is embracing the idea that delimitation consists in the recognition that one’s claimed entitlement is a “superior claim”81 than the claim(s) of the other. Yet, that conception has manifestly no role in maritime delimitation. 17. In the Jan Mayen case the ICJ observed that a continental shelf delimitation consists in “defin[ing] the boundary line between the areas under the maritime jurisdiction of two States; the sharing-out of the area is therefore the consequence of the delimitation, not vice versa”.82 It should be stressed that an attribution constitutes “the result of a particular thing”.83 It may be inferred from the reasoning underlying the above-mentioned statement of the ICJ in the Jan Mayen case that a delimitation operation cannot result in an attribution of continental shelf areas.84 A delimitation cannot result in attributing titles as it counters the fons et origo underlying the legal regime applicable to the continental shelf in international law consistent with which the coastal States’ rights exist ab initio. 18. Upon the consideration of the final submission 2(iii)85 of Côte d’Ivoire, the Special Chamber observes that it is necessary to determine whether the activities of Ghana “are carried out in a part of the area attributed by the judgment to the other State”.86 It is due to the point of fact “that Ghana has undertaken hydrocarbon activities only in an area attributed to it”87 that the special chamber refuses to uphold the above-mentioned final submission plea of Côte d’Ivoire. Consequently, in the view of the Special Chamber, its decision on the merits has the effect to attribute areas of continental shelf to the disputing parties. Would it be egregious to contend that to attribute is different from sharing? The response to this question would appear relevant given the well-established recognition that delimitation is not “the same thing as awarding a just and equitable share of a previously undelimited area”.88 While the ICJ has in some previous cases also made use of the notion attribution of continental shelf areas,89 the consequences therefrom appear merely descriptive as these undertakings were not pursued under the umbrella that delimitation is constitutive. 19. Attributing areas pursuant to a constitutive approach implies in fact that in principle the actions that were undertaken by either party prior to the delimitation may not necessarily result in the infringement of any rights of the other State, notwithstanding the actions in question revealed to be in areas that were, to rely on the language of the Special Chamber, attributed to the other party, whereas this is incompatible with the notion that coastal States’ rights are exclusive and preexist, from which it follows that “if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State”.90 Yet, according to the Special Chamber, “the argument advanced by Côte d’Ivoire that the hydrocarbon activities carried out by Ghana in the disputed area constitute a violation of the sovereign rights of Côte d’Ivoire is not sustainable, even assuming that some of those activities took place in areas attributed to Côte d’Ivoire by the present Judgment. Therefore, the Special Chamber finds that Ghana did not violate the sovereign rights of Côte d’Ivoire.”91 This finding of the Special Chamber appears also to challenge how authors have conceived the legal regime applicable to disputed areas.92 20. The considerations of Judge Tanaka in his Dissenting Opinion in the North Sea cases appear of particular relevance for purposes of drawing conclusions from the above-mentioned statement of the Special Chamber in Ghana/Côte d’Ivoire. According to Judge Tanaka the submission of Germany for a just and equitable apportionment “implies the concept that delimitation is not a demarcation of two sovereign spheres already belonging to two different States, but an act of division, or sharing among more than two States of res nullius or res communis. Therefore, the concept of apportionment is necessarily constitutive”.93 21. It does not appear far-fetched to infer that to the extent a judicial delimitation has the effect to attribute continental shelf areas, the judicial decision itself constitutes an apportionment of areas. It will be recalled that in the North Sea cases, the ICJ dismissed the submission of Germany, which was based on a claim for a just and equitable share. The reason for which the ICJ was not able to uphold the submission of Germany was due to its understanding that “its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned.”94 An apportionment would imply attributing the delimitation a constitutive role. In the view of the ICJ, “[d]elimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical.”95 Further, to the extent a delimitation “has a constitutive nature”,96 it cannot be conceived other than being a “previously undelimited area”.97 22. The Special Chamber accepts the premise that activities that were undertaken on the wrong side of the delimitation do not necessarily result in an infringement of rights that constitutes an international wrongful act,98 which may engage international responsibility,99 the reparation of which must “wipe out all the consequences of the illegal act”.100 Yet, the rights of both States preexist the issuance of the judgment. This approach of the Special Chamber supports an understanding that prior to the reading of the court decision the area in question was, to make use of the above-mentioned expression of Judge Tanaka, a “res nullies or res communis”101 as indeed the delimitation lines that result from the delimitation operation under a constitutive approach are “de novo”102 lines. In point of fact, if the delimitation operation is constitutive, it results in a sharing of “an as yet undelimited area [which] is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement, according to which the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected”.103 V. Contingent inherent rights 23. The acceptance by the Special Chamber of the idea that hydrocarbon activities, including exploitation of hydrocarbons, can be carried out in disputed areas stands in variance with previous findings of courts and tribunals, including the sentence of the arbitral tribunal in the Guyana/Suriname case.104 The Special Chamber observed that “hydrocarbon activities carried out by a State in a disputed area before the area in question has been delimited by adjudication may give rise to international responsibility when these activities are carried out in a part of the area attributed by the judgment to the other State.”105 The Special Chamber qualifies this possibility as it is not prescriptive but conditional. In point of fact, according to the Special Chamber, “maritime activities undertaken by a State in an area of the continental shelf which has been attributed to another State by an international judgment cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out […] if the area concerned was the subject of claims made in good faith by both States.”106 24. Leaving aside the question whether such conduct notwithstanding would constitute violations of Article 74(3) and Article 83(3) of UNCLOS,107 it is clear that lowering the threshold for permissible acts in disputed areas appears grossly to ignore the foundations that underlie the legal regime applicable to the continental shelf under international law. This may introduce a significant degree of subjectivism that States are invited to take onboard in bolstering their claims to disputed areas allowing, inter alia, alleviating positions which call for rebuttals of the other party, failing which these situations may provide basis for finding acquiescence to a particular maritime boundary by the other party. As Judge Evensen noted in his Dissenting Opinion in the Tunisia/Libya case, a serious consideration is to what extent economic considerations “should lead to the acceptance of faits accomplis; that is to say: should the dividing line be drawn in such a manner as to recognize unilaterally granted concessions by one of the Parties to the detriment of the other?”108 25. The above was to some extent reflected in the separate opinion of Judge Paik. Allowing unilateral exploitation of hydrocarbons in disputed areas “might invite aggressive attitudes, through the staking out of claims, instead of conciliatory approaches”109 with a view to creating situations of acquiescence.110 Inactions of State B in regard to State A may effectively have an impact on the reasoning of courts and tribunals. In point of fact, acquiescence relates to the inaction or silence of a State where the actions of another State impinge upon its rights, which consequently reasonably can be expected to call for an affirmative objection. It gives rise to a “rebuttable presumption of acceptance or recognition of a legal position claimed by another State.”111 26. In Temple of Preah Vihear, the ICJ held that the circumstances were such that they called for a reaction on behalf of Thailand. According to the ICJ, the actions of France did call for a reaction on behalf of Thailand. Yet, “[t]hey did not do so, either then or for many years.”112 Further, according to the ICJ, in the absence of reactions of Thailand “an acknowledgement by conduct was undoubtedly made in a very definite way”.113 This arises as “the circumstances were such as called for some reaction”114 by the Siamese authorities, if Thailand disagreed with or had serious reservations to the maps: “They did not do so, either then or for many years, and thereby must be held to have acquiesced”.115 27. It would appear that accepting such activities in disputed areas leads to the situation prior to the acceptance of the inherency doctrine, at which point the notion of occupation of the continental shelf was propagated by States and scholars. It is recalled that the ILC Special Rapporteur in rebutting the idea that actions of States should be able to acquire rights observed that such an acceptance “might lead to chaos”.116 Yet, according to the Special Chamber’s line of thinking, the threshold for determining whether actions of State A—which were conducted in an area which was, to use the vocabulary of the Special Chamber, decided to be attributed to State B—violated the rights of the latter is made contingent upon the fulfilment of the principle of good faith.117 Yet, good faith is not a rule of international law but an overarching legal principle,118 and, as such, is not the direct source of an international obligation. 28. The principle of good faith does not apply unconditionally, as it will merely assist the determination of the scope of an obligation.119In casu, this principle would not only guide the decision whether, to use the expression of the Special Chamber, the “claims”120 to maritime areas of the States were reasonable but also whether the conduct of the disputing parties is in alliance or in variance with the claim. The different geographical and regional settings of coastal configuration imply different levels of complexities in so far as the application of the “delimitation methodology”121 or the so-called “standard method”122 are concerned and, where circumstances provide accordingly, its substitute, the bisector method.123 Thus, the reasonableness of such a decision can only be determined on a casuistic basis. More importantly, the actions reflecting the various attitudes of the disputing States become important with a view to bolstering the claims, although such actions, for reasons explained earlier, should be irrelevant for the purpose of delimiting continental shelf disputes. Yet, to the extent that the principle of good faith becomes the critical factor for determining whether the actions of the above-mentioned State A resulted in a violation of the rights of State B, this implies necessarily that the rights of the latter to the continental shelf to some degree become contingent upon extraneous elements. 29. It appears important to emphasize that Ghana argued that “it can hardly be said that State A violates State B’s sovereign rights by undertaking activities in a maritime area which both States treated as belonging to State A, even if some of the area is later awarded to State B.”124 To the extent both States considered the area to belong to State A, there would most likely be no dispute at the outset. Yet, the fact the conduct of State B would correspond to that of State A, could certainly be a circumstance, while not necessarily reaching the threshold for constituting a tacit agreement on maritime delimitation,125 which would nevertheless be relevant for the purposes of determining the question whether State A should pay damages to State B, if any. 30. The undisputable fact remains that “if the coastal State [B] does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State [B].”126 To substitute “express consent”127 with a finding whether the relevant States have acted in good faith does appear to temper the legal foundation applicable to the continental shelf. The Special Chamber does not embrace these nuances in its general observation on this question. Quite the contrary. The statement of the Special Chamber appears bold128 in particular, given that it follows from the operative paragraphs of the judgment that the drilling activities that Ghana had undertaken129 were exclusively located in an area that the judgment held appertained to Ghana,130 implying therefore that the relevant submission of Côte d’Ivoire was made moot. VI. Concluding remarks 31. That there are changes to and deviations from relevant international case law is no new phenomenon.131 Yet, it is rare to observe such a marked shift as the one that the Special Chamber has established in the Ghana/Côte d’Ivoire case that stands in significant variance with the principle that courts and tribunals in an apparent meticulous manner have firmly sought to establish in the governing law of delimitation. It is submitted in this paper that this approach appears partly based on a mix-up of the notions of title and entitlement. The mix-up in the use of these two notions is partly due to differences that arise in the languages of Shakespeare and Voltaire, respectively.132 However, it is also an apparent amalgam of substance, both of which, if applied in support of a constitutive approach of delimitation, may result in coastal States’ inherent rights to the continental shelf as a hollow concept deprived of substantive rights. The Special Chamber decision would not constitute such a break-up with the settled doctrine of the continental shelf in international law if it had paid particular attention on the one hand to entitlement and on the other hand to title. 32. The case law, which is the prime source in the law of delimitation, has consistently ruled in favour of the declarative understanding of delimitation for reasons that are directly related to the foundations of the regime applicable to the continental shelf under international law. Attributing constitutive effect to the delimitation operation and establishing a principle that the extent to which State A undertook activities in an area of disputed continental shelf, which subsequently is held to appertain to State B, cannot constitute a “violation of the sovereign rights of the latter if […] the area concerned was the subject of claims made in good faith by both States”133 is not only a significant deviation from the governing case-law, which to a significant degree results from cases that have been brought to international courts and tribunals, but also an apparent autonomous construction of Article 77(2) of UNCLOS consistent with which the rights to the continental shelf are “exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.”134 33. The composition of the Special Chamber was to some extent unique. Among the five members there were three former Presidents of ITLOS, Judge Rudiger Wolfrum, Judge Thomas Mensah, and Judge Jin-Hyun Paik. Further, the Special Chamber also included then ICJ President, Judge Ronny Abraham, which is the first time an ICJ judge has sat on the bench in a dispute that has been referred to Hamburg.135 It remains to be seen whether the inclusive composition of the Special Chamber may have some implications on the question whether the Special Chamber’s conceptual understanding of the delimitation operation will be reflected in future or/and pending cases that have been and will be referred to courts and tribunals, or whether it will remain a “jugement isolé”.136 Footnotes 1 Fisheries Case (United Kingdom v. Norway), ICJ Reports 1951, 116, at 132. 2 Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), ICJ Reports 1984, 292, para.87. 3 Article 83(2) of the United Nations Convention on the Law of the Sea provides: “If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.” 4 Article 77(3) of UNCLOS provides that “[t]he rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.” 5 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Reports 1969, 22, para.18. 6 See Prosper Weil, The Law of Maritime Delimitations: Reflections (1989), 23–29. 7 Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Reports 2012, para.398. 8 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, ITLOS Reports 2017, para.590. 9 Ibid., para.591 (emphasis added). 10 In this regard see Territorial and Maritime Dispute (Nicaragua v. Colombia), Oral Hearings (Paul Reichler) on 24 April 2012, CR 2012/10, 32-33, para.18. 11 Ghana/Côte d’Ivoire, above n.8, para.591. 12 Ibid. 13 North Sea, above n.5, 22, para.19. 14 For a commentary, see Youri van Logchem, The Rights and Obligations of States in Disputed Maritime Areas: What Lessons Can Be Learned from the Maritime Boundary Dispute between Ghana and Côte d’Ivoire?, 52 Vanderbilt JIL (2019), 121–177. 15 It is well known that the international legal order is not based on the Anglo-Saxon stare decisis doctrine. Yet, it is a fact notwithstanding the subsidiary source-related principle in Article 38(1)(d) of the Statute of the International Court of Justice, in conjunction with the judicial principle enshrined therein, that courts and tribunals rely heavily on previous decisions or those of other fora in order to legitimize their decisions. See Philippe Cahier, Le Rôle du Juge dans l’Élaboration de Droit International, in: Jerzy Makerczyk (ed.), Theory of International Law at the Threshold of the 21st Century (1996), 352–354; Alain Pellet, Article 38, in: Andreas Zimmermann, Christian Tomushcat and Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice–A Commentary (2006), 677–792. 16 According to the Cambridge dictionary, title means “the legal right to own a piece of land or a building, or a document that proves this right” while entitlement is defined as “something that you have a right to do or have, or the right to do or have something”. 17 Legal Status of Eastern Greenland, Judgment, 1933, PCIJ Series A/B, No. 53, 46. 18 Ibid. 19 Ibid. 20 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, 682, para.134. 21 North Sea, above n.5, at 22, para.19. 22 Nuno M. Antunes, Towards the Conceptualisation of Maritime Delimitation–Legal and Technical Aspects of a Political Process (2003), 134. 23 Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009. The French text is authoritative in the Black Sea case. 24 Ibid., at 93, para.86; at 95, para.94; at 96, para.95; at 97, para.100; at 99, para.109; at 100, para.114; at 120, para.180; at 121, para.184; at 122, para.185; at 126, para.199; at 127, para.201; at 129, para.208. 25 Ibid., at 126, para.200. 26 Bay of Bengal above n.7, para.370, para.397, para.398, para.401; para.402, para.406, para.408, para.409, para.413, para.424, para.436, para.437, para.445. 27 The English text is authoritative in the Libya/Malta case. 28 Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Merits, ICJ Reports 1985, 47, para.62. 29 The judgment in the Jan Mayen case is done in English and in French, but the English text is authoritative. 30 Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), ICJ Reports 1993, 47, para.19; 48, para.21. 31 Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, ICJ Reports 2012, 678, para.145; 680, para.151. 32 Ibid., 683, para.159. 33 The judgment in the Bay of Bengal case (above n.7) is done in English and in French, both texts being equally authoritative. 34 Ibid., paras.370, 397, 398, 401, 402, 406, 408, 409, 413, 424, 436, 437, 445. 35 Ibid., para.292. 36 Ibid., para.439. 37 Ghana/Côte d’Ivoire, above n.8, para.498, para.590. 38 Ibid., para.591. 39 On this issue see Alain Pellet, then counsel for Nicaragua in the Territorial and Maritime Dispute (Nicaragua v. Colombia) case deploring that entitlement has no equivalent term in the French language, 1 May 2012, CR 2012/15 corr., 40, para.15; see also oral proceedings of Alain Pellet, then counsel for Myanmar in the Bay of Bengal case, 24 September 2011, ITLOS/PV.11/15 (E), 11, lines 6-16. 40 Black Sea, above n.23, 88, para.75; 89, paras.76 and 77; 90, para.80; 116, para.166; 118, para.168. 41 Ibid., 89, para.77. 42 Ghana/Côte d’Ivoire, above n.8, para.591 (emphasis added). 43 Black Sea, above n.23, 89, para.77 (emphasis added). Likewise in the Tunisia/Libya case, the ICJ observed that “the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it.” Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Merits, ICJ Reports 1982, 61, para.73 (emphasis added). 44 Territorial and Maritime Dispute (Nicaragua v. Colombia), Oral Hearings (Paul Reichler) on 24 April 2012, CR 2012/10, 32-33, para. 18. 45 CR 2012/15 Corr., above n.39, para. 20 (Alain Pellet). 46 On this topic, see Bjørn Kunoy, The Delimitation of an Indicative Area of Overlapping Entitlement to the Outer Continental Shelf, 83 BYIL (2013), 66. 47 Daniel P. O’Connell, Sedentary Fisheries and the Australian Continental Shelf, 49 AJIL (1955), 190. 48 Ibid. 49 Cecil Hurst, Whose Is the Bed of the Sea?, 1 BYIL (1923), 42. He later became a Judge and also President of the Permanent Court of International Justice. 50 Richard Young, The Legal Status of Submarine Areas beneath the High Seas, 45 AJIL (1951), 230. 51 Hersch Lauterpacht, Sovereignty over Submarine Areas, 27 BYIL (1951), 418. 52 See Ram P. Anand, Legal Regime of the Sea-Bed And the Developing Countries, (1976), 75-79. 53 Hersch Lauterpacht, above n.51, 419. 54 Yearbook of ILC, 1951, vol. 2, 142. 55 Ibid. 56 Gilbert Gidel, À Propos des Bases Juridiques des Prétentions des États Riverains sur le Plateau Continental : les Doctrines du “Droit Inhérent”, 1 Zeitschrift für Ausländisches und Öffentliches Recht (1958), 83. 57 Excerpt from Article 77(3) of UNCLOS. 58 North Sea, above n.7, 22, para.19. 59 Ibid. 60 Tunisia/Libya, above n.43, 254, para.154 (diss. op. Oda). 61 Ibid. 62 In the Libya/Malta case, the ICJ observed: “That the questions of entitlement and of definition of continental shelf on the one hand, and of delimitation of continental shelf on the other, are not only distinct but are also complementary is self-evident.” Libya/Malta, above n.28, 30, para.27. 63 Ghana/Côte d’Ivoire, above n.8, para.591. 64 Ibid., para.592. 65 North Sea cases, above n.7, 22, para.19. 66 Ghana/Côte d’Ivoire, above n.8, para.591. 67 North Sea cases, above n.7, 22, para. 19. 68 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), 261. 69 Ibid. 70 Tunisia/Libya, above n.43, 255, para.154 (diss. op. Oda). 71 Ibid., 253, para.152. 72 Ibid (original emphasis). 73 Ibid. 74 Expression used by the ICJ of the three-step approach in the Black Sea case, above n.23, 62, para.174. 75 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making, in: Mahnoush H. Arsanjani et al. (eds.), Looking to the Future–Essays on International Law in Honor of W. Michael Reisman (2010), 1071. 76 Jan Mayen, above n.30, 67, para.64. 77 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, ICJ Reports 2001, 112, para.234. 78 Ghana/Côte d’Ivoire, above n.8, para.591. 79 Prosper Weil, Délimitation Maritime et Délimitation Terrestre, in: Yoram Dinstein (ed.), International Law at a Time of Perplexity–Essays in Honour of Shabtai Rosenne (1989), 1023. On this topic Alain Pellet observes that “[c]ontrary to Prosper Weil’s contention, according to which ‘la délimitation maritime est condamnée à amputer le titre de chacun’, such an operation aims at describing the precise territorial scope of each State’s title”. Alain Pellet, Land and Maritime Tripoints in International Jurisprudence, in: Holger P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (2011), 251. 80 Jan Mayen, above n.30, 67, para.64. 81 Legal Status of Eastern Greenland, above n.17, 46. 82 Jan Mayen, above n.30, 67, para.64. 83 (https://dictionary.cambridge.org/dictionary/english/attribute). 84 See also Pellet who observes that “[i]t is certainly true, as the ICJ recalled in its leading 2009 Judgment in Romania v. Ukraine, ‘the task of delimitation consists in resolving the overlapping claims by drawing a line of separation of the maritime areas concerned’ [footnote reference omitted] but this does not mean that the international courts or tribunals which are called upon to perform such a task have to ‘allocate’ or ‘attribute’ or ‘share’ the areas in question between the States concerned”. Alain Pellet, Land and Maritime Tripoints in International Jurisprudence, above n.79, 251. 85 Paragraph 2(iii) of the final submission of Côte d’Ivoire reads: “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constitute a violation of […] the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by article 83, paragraph 3, of UNCLOS.” 86 Ghana/Côte d’Ivoire, above n.8, para.589 (emphasis added). 87 Ibid., para.589. 88 North Sea Cases, above n.7, 22, para.22. See also Case Concerning the Delimitation of the Continental Shelf Between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, 28 RIAA, 49, para.78. 89 Territorial and Maritime Dispute (Nicaragua v. Colombia), above n.31, 718, para.250; Jan Mayen, above n.30, 65, para.61; and Libya/Malta, above n.28, 55, para.75. 90 Article 77(2) of UNCLOS. 91 Ghana/Côte d’Ivoire, above n.8, para.594 (emphasis added). 92 Ong observes that “states are obliged to refrain from unilateral action when it risks depriving other states of the gains they might realise by exercising their sovereign right of exploitation”, David. M. Ong, Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, 93(4) AJIL (1999), 798. Churchill observes also that indubitably “there is probably a rule of international law which prohibits states from exploring […] resources in disputed areas”, Robin R. Churchill, Joint Development Zones: International Legal Issues, in: Hazel Fox (ed.), 2 Joint Development of Offshore Oil and Gas (1990), 57. 93 North Sea, above n.5, 188 (diss. op. Tanaka). 94 North Sea, above n.5, 22, para.18. 95 Ibid. 96 Ghana/Côte d’Ivoire, above n.8, para.591. 97 North Sea, above n.5, 22, para.18. 98 Article 1 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts provides: “Every internationally wrongful act of a State entails the international responsibility of that State.” 99 Case concerning the Factory at Chorzów, Jurisdiction, PCIJ Series A, No. 9, 21. 100 Case concerning the Factory at Chorzów, Merits, PCIJ Series A, No. 17, 47. 101 North Sea, above n.5, 188 (diss. op. Tanaka). 102 North Sea , above n.5, 21, para.18. 103 Ibid., 22, para.20. 104 The arbitral tribunal observed that “[i]n the context of activities surrounding hydrocarbon exploration and exploitation, two classes of activities in disputed waters are therefore permissible. The first comprises activities undertaken by the parties pursuant to provisional arrangements of a practical nature. The second class is composed of acts which, although unilateral, would not have the effect of jeopardizing or hampering the reaching of a final agreement on the delimitation of the maritime boundary. The Tribunal is of the view that unilateral acts which do not cause a physical change to the marine environment would generally fall into the second class.” Arbitral tribunal, Guyana/Suriname, Award of 17 September 2007, paras.466–467. 105 Ghana/Côte d’Ivoire, above n.8, para.89. 106 Ibid., para.592. 107 Judge Paik noted in his Separate Opinion that although the activities of Ghana were undertaken in an area which was “attributed” to Ghana should not preclude wrongfulness due to violations of the obligations in Article 83(3) of UNCLOS. According to Judge Paik, “to condone the unilateral activities of such a scale in the circumstances of the present case would certainly send a wrong signal to States pondering over their next move in a disputed area elsewhere”. Ibid., para.19. 108 Tunisia / Libya, above no.43, 318, para.26 (diss. op. Evensen). 109 Ibid. 110 In the Gulf of Maine case a Chamber of the ICJ characterized acquiescence in the following terms: “acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent.” Gulf of Maine, above n.2, 246, para.130. 111 Irina Buga, Modification of Treaties by Subsequent Practice (2018), 68; See also I.C. MacGibbon, The Scope of Acquiescence in International Law, 31 BYIL (1954), 141–145. 112 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), ICJ Reports 1962, 23. 113 Ibid. 114 Ibid. 115 Ibid. 116 Yearbook of ILC, 1951, vol. 2, 142. 117 Article 300 of UNCLOS provides: “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” 118 As to the difference between a rule and principle, Gerald Fitzmaurice observed that “[b]y a principle, or general principle, as opposed to a rule, even a general rule, of law is meant chiefly something which is not itself a rule, but which underlies a rule, and explains or provides a reason for it. A rule answers the question ‘what’: a principle in effect answers the question ‘why’.” Gerald Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 RCADI (1957), 7. 119 See Ronald Dworkin, Taking Rights Seriously (1977), 25–27. 120 Ghana/Côte d’Ivoire, above n.8, para.592. 121 Expression used by the ICJ of the three-step approach in the Black Sea case, above n.23, para.121. Ibid., para.116. 122 Territorial and Maritime Dispute (Nicaragua v. Colombia), above n.31, 698, para.199. 123 The ICJ has observed that “[t]he use of a bisector—the line formed by bisecting the angle created by the linear approximations of coastlines—has proved to be a viable substitute method in certain circumstances where equidistance is not possible or appropriate.” Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, 746, para.287. 124 ITLOS/PV.17/C23/3/Rev.1, at 26, 21-23 (emphasis added). 125 The ICJ has observed: “[t]he establishment of a permanent maritime boundary is a matter of grave importance and agreement is not easily to be presumed.” Nicaragua v. Honduras, above n.123, 735, para.253. 126 Article 77(2) of UNCLOS (emphasis added). 127 Ibid. 128 It is apparent from the incidental proceedings in the Ghana/Côte d’Ivoire case that Ghana committed itself to repair immaterial and material damage in the event that the Special Chamber would hold that all or parts of the disputed area would appertain to Côte d’Ivoire. ITLOS, Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, ITLOS Reports 2015, para.87. 129 In the decision on provisional measures the Special Chamber ordered Ghana to “take all the necessasry steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area” (para.102) but did not order Ghana to suspend ongoing activities of Ghana in respect of which drilling has already taken place (para.99). 130 Ghana/Côte d’Ivoire, above n.8, para.633. 131 See Antonio Cassese, The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18(4) EJIL (2009), 649–668; Yehuda Z. Blum, Consistently Inconsistent: The International Court of Justice and the Former Yugoslavia (Croatia v. Serbia), 103(2) AJIL (2007), 264–271. 132 Alain Pellet, then counsel for Nicaragua, in the Territorial and Maritime Dispute (Nicaragua v. Colombia) case observed in this regard that the “word ‘entitlement’ has no direct equivalent in the language of Georges Scelle and Jules Basdevant. We sometimes translate it—not particularly well—as ‘droit’ […] as this is indeed more of a potential right. In this instance, much as it pains me to admit it, English is—for once—more subtle and precise than French. I shall [use] the English word ‘entitlement’ to indicate that potential right, which should be distinguished from the concrete realization of that right at the delimitation stage.” CR/2012/15 corr., above n.39, 40, para.15. 133 Ghana/Côte d’Ivoire, above n.8, para.592. 134 Article 77(2) of UNCLOS. 135 The special chamber was presided by then Vice-President of ITLOS, Judge Boualem Bouguetaia. 136 Expression used by Gilbert Guillaume, Le Précédent dans la Justice et l’Arbitrage International, 137(3) Journal de Droit International (2010), 690. © The Author(s) 2020. Published by Oxford University Press. All rights reserved. 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TI - De Novo Delimitation Lines: A Constitutive Concept of Delimitation
JO - Chinese Journal of International Law
DO - 10.1093/chinesejil/jmaa031
DA - 2020-09-10
UR - https://www.deepdyve.com/lp/oxford-university-press/de-novo-delimitation-lines-a-constitutive-concept-of-delimitation-CeqFl4gg5l
SP - 459
EP - 480
VL - 19
IS - 3
DP - DeepDyve
ER -