Defining Seaward Boundaries in a Domestic Context: Norway and the Svalbard Archipelago

Abstract

This article analyzes a little-noticed aspect of the international legal controversy pertaining to Svalbard’s maritime zones. It concerns where and by which method Norway should draw the boundaries between Svalbard’s continental shelf and the 200-mile zone, on the one hand, and other maritime zones subject to Norwegian jurisdiction, on the other. The assumption upon which the discussion rests is that the Spitsbergen Treaty signatories enjoy treaty rights in the maritime zones beyond Svalbard’s territorial waters. The law of the sea does not contain rules on the drawing of maritime boundaries between different parts of a state’s territory, but the rules on delimitation between states offer a strong analogy. In the search for an equitable solution, primacy should be given to geographical factors. The article argues that Norway could do more to enhance the openness regarding the Svalbard delimitation question since its outcome will be of significant interest to other states.     

The Dispute Concerning the Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire: Implications for the Law of the Sea

The final judgment in the maritime boundary delimitation case between Ghana and Côte d’Ivoire was delivered by an ad hoc special chamber (the Chamber) of the International Tribunal for the Law of the Sea (ITLOS) on 23 September 2017. The decision addressed important legal questions relating not only to maritime boundary delimitation but also to the balancing of various rights and interests at the provisional measures stage and international responsibility for unilateral resource exploitation activities in disputed zones pending delimitation. This article analyzes the decision of the Chamber with respect to its findings on tacit boundary agreements, delimitation methodology, and international responsibility.     

The technical delimitation of a modern equidistant boundary

Abstract

Delimitation of maritime boundaries represents a recent state activity. The main impetus stems from the 1958 Geneva Conventions on the Territorial Sea … and on the Continental Shelf. State practice since 1958 has shown a marked preference for the equidistance principle for maritime boundary delimitation. At first many of these limits were geometrically constructed on existing nautical charts or on specifically designed small‐to medium‐scale maps. With increasing ability to exploit marine resources and the associated need to delimit boundaries farther from the baseline, inequities have developed as a consequence of map projections utilized, differences in horizontal and vertical datums, and so on. This paper discusses the principles behind, and the development of, conventional techniques of equidistant boundary delimitation; illustrates the errors that may result; and points out means, through modern computer technology, to compute equitable, equidistant maritime boundaries at great distances from the baselines.     

The Regime for Transboundary Hydrocarbon Deposits in the Maritime Delimitation Treaties and Other Related Agreements of Arctic Coastal States

This article assesses the treaty practice of the five Arctic Ocean coastal states and Iceland in dealing with the issue of transboundary hydrocarbon deposits as part of the conclusion of maritime delimitation and other related agreements. That practice suggests a number of different ways in which states deal with the issue of hydrocarbon deposits bisected by a maritime delimitation: (1) silence, (2) a standard unity of deposit clause, (3) more complex variations on the standard clause including framework agreements for the development of transboundary deposits, and (4) a delimitation line with some form of joint development zone. This article assesses the Arctic state practice within this typology seeking to supplement the existing literature which tends to focus on the North Sea and Southeast Asia.     

The 1985 guinea/guinea‐bissau maritime boundary case and its implications

The 1985 Guinea/Guinea‐Bissau maritime boundary case was a landmark decision in maritime delimitation. For the first time, sub‐Saharan African states resorted to third‐party settlement, thereby making a significant contribution to the developing state practice on maritime delimitation. The Arbitration Tribunal took an unprecedented “regional approach,”; which had a direct effect on the two neighboring countries, Senegal and Sierra Leone. The Award provides lessons for unresolved conflicts and has implications for areas of future dispute such as in the Gulf of Guinea, where Cameroon has initiated proceedings against Nigeria.     

Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf

The purpose of this article is to examine the outer continental shelf submissions made by the coastal states of the South China Sea and their potential impact on legal and political developments in the South China Sea. In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establish the outer limits of their continental shelf where it extends beyond 200 nautical miles. Meeting this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as in the South China Sea.     

Some problems concerning the delimitation of the maritime boundary between the republic of china (Taiwan) and the Philippines

Abstract

This paper analyzes the issue of how the relevant provisions of the 1982 United Nations Convention on the Law of the Sea can be applied to the delimitation of the maritime boundary in the Bashi Channel between Taiwan and the Philippine island of Luzon and in the South China Sea area. It concludes that the Philippines’ extensive territorial sea claim based on the 1898 U.S.‐Spanish Peace Treaty can hardly find any basis in customary rules of international law and the U.N. Convention and, therefore, should be disregarded in such delimitation. On the other hand, the archipelagic principle provided in the Convention can be applied here. With respect to rules of delimitation, it suggests that the equitable principle of the delimitation of the continental shelf, enunciated in the Anglo‐French Continental Shelf Arbitration (1977) and the Tunisian‐Libyan Continental Shelf Case (1982), can mutatis mutandis be applied to the delimitation of the maritime boundary. As an interim solution, the maritime boundary of certain disputed islands in the South China Sea should be declared neutral zones open to nationals of both countries.     

The Rejection of a Theoretical Beauty: The Foot of the Continental Slope in Maritime Boundary Delimitations Beyond 200 Nautical Miles

This article addresses maritime boundary delimitation concerning the continental shelf beyond 200 nautical miles. The focal point is how the foot of the continental slope can be used as the point of departure in drawing the provisional equidistance line in outer continental shelf boundary delimitations between neighboring states. The article examines the strength and weaknesses of this approach and asks whether the International Tribunal for the Law of the Sea indirectly rejected this approach in the 2012 Bangladesh v. Myanmar Case.     

Reflections on the Principle of Non-Cut Off: A Growing Concept in Maritime Boundary Delimitation Law

The application of the principle of non-cut off is a significant tool in maritime delimitation to provide an equitable solution. Unfortunately, scholars and experts have paid scant attention to this principle of maritime delimitation. This article analyzes the growing role of the principle of non-cut off in the law of maritime boundary delimitation and examines the related jurisprudence on the issue.     

Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities

Maritime security concerns in the South China Sea are increasing for several reasons: higher volumes of shipping traffic, protection of exclusive economic zone resources, piracy, terrorist threats, greater international scrutiny of ports and shipping, and the modernization of regional naval and coast guard forces. Coastal states and international user states have many overlapping interests in the South China Sea, for example, in promoting safe navigation through its busy sea-lanes. On other issues, in particular, antipiracy or anti-maritime terrorism measures, they have different views about the seriousness of the threats and the responses necessary to address them. This article examines the convergent and divergent maritime security interests of coastal states (China, Indonesia, Malaysia, and Singapore) and international user states (Australia, India, Japan, and the United States) in the South China Sea. It finds that multiple stakeholders pursuing diverse interests have yet to close the gap between goals and means of achieving maritime security.     

The Spratlys: Are They Rocks or Islands?

The South China Sea is a multilateral battlefield of conflicting claims to sovereignty over island features and vast areas of maritime jurisdiction. In the middle of the South China Sea lies the Spratly archipelago - some 150 small island features to which six states have made claims. The core of the SCS dispute is access to natural resources, and the rivalling claims to sovereignty over islands are largely based on the assumption that whoever has sovereignty to the features can also claim large areas of ocean space attached to them. The United Nations Convention on the Law of the Sea has codified the regimes of the continental shelf and the exclusive economic zone, and it is accepted that islands, as well as continental territory, generate such zones of maritime jurisdiction. However, one category of islands cannot generate these extensive maritime zones. Article 121(3) of the convention states that "rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf." This provision, if applied to certain features, has the potential to significantly change the scope of the conflict in the Spratlys.     

The Islands in the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?

A number of small islands (the Paracel Islands, Pratas Island, the Spratly Islands, and Scarborough Reef) may have a considerable influence on the extent of maritime zones in the South China Sea. The maritime zones of these islands can limit the extent of the high seas and the Area in the South China Sea and the extent of the maritime zones of the mainland coasts. To assess the impact of the islands, it is necessary to establish whether they can generate the full suite of maritime zones. Under international law, some islands do not have an entitlement to an exclusive economic zone and continental shelf. Where islands can generate these maritime zones, a second issue arises, namely, how to delimit these zones with those of the mainland coasts bordering the South China Sea.     

A Tribunal Navigating Complex Waters: Implications of the Bay of Bengal Case

The International Tribunal on the Law of the Sea's March 2012 Judgment in the Bay of Bengal Case is a landmark decision in multiple ways. It represents the first maritime boundary to be delimitated by the Tribunal. It is the first adjudication of a maritime boundary in Asia, and it is also the first judicial delimitation of a maritime boundary for parts of the extended continental shelf located seaward of the 200-nautical-mile limit from baselines. While the Tribunal's ruling largely resolves the maritime dispute between Bangladesh and Myanmar, it also raises a number of questions and concerns that are highlighted in this article, including the Tribunal's approach to delimitation both within and beyond the 200-nautical-mile limit, the treatment of islands, the interplay between law of the sea institutions and the creation of a so-called grey area where continental shelf jurisdiction falls to one state and water column jurisdiction to the other.     

Control of marine pollution: An essay review

The recently concluded agreement between Estonia and Sweden concerning the delimitation of their maritime zones in the Baltic Sea, the latest in the Baltic Sea region, raises interesting questions with respect to the continuity and/or succession of States. This is the first agreement concluded since the dissolution of the former Soviet Union in late 1991 that is totally governed by this intricate area of international law. The present article, starting from the opposite theoretical opinion both countries had on this issue, tries to illustrate how the idea of continuity has been mitigated in order to arrive at a practical solution between the parties.     

Historic Rights in International Law and in China's Practice

Despite the great expansion of maritime zones of the coastal states, consequent to the 1982 UN Convention on the Law of the Sea, state practice indicates continued attempts at using concepts of historic waters and/or historic rights to assert jurisdiction. The Chinese claim to historic rights in its 1998 Law on the Exclusive Economic Zone and Continental Shelf is a new addition to the whole picture. It is the People's Republic of China's clear intention that the historic claim applies to the water areas in the South China Sea wherever China could not establish its 200-nm exclusive economic zone. This article assesses China's historic claim in the context of international law, state practice, and judicial pronouncements.     

Ocean energy and the law of the sea: The need for a protocol

Although fossil fuels are the overwhelming source of energy for the world, and will continue to be so for the foreseeable future, demographic, environmental, political, and economic factors indicate that interest in alternative, renewable sources of energy will grow. There is a need for both global and national policies on ocean energy management. In particular, coastal states and the energy industry would benefit from guidelines that helped to create a predictable, stable environment in which long‐term, high‐cost research, development, and investment decisions could be made with confidence. Coastal states have jurisdiction over the maritime zones most relevant to energy production, but many lack the expertise and funds to develop this potential source. Industry must operate within the control of coastal states and will not be served well by a plethora of differing legal interpretations and unilaterally imposed restrictions and obligations from state to state. An Ocean Energy Protocol to the 1982 UN Convention on the Law of the Sea would afford governments and industry the opportunity to clarify their respective obligations and address particular interests for mutual benefit.     

The emerging legal principles and equitable criteria governing the delimitation of maritime boundaries between states

Abstract

The purpose of this article is to show that there is an emerging fundamental norm or rule for the delimitation of maritime boundaries between littoral states, and that customary international law is slowly evolving towards this formula. It also maintains that although only part of this formula has yet become entrenched as customary international law, the remaining part of the formula appears to have acquired the status of embryonic customary international law which will, at some future date, eventually crystallize into binding rules of customary international law.     

A Note on the United States and the Law of the Sea: Looking Back and Moving Forward

Since the Antarctic Treaty was negotiated in 1959, there have been substantial developments in the law of the sea. One of the most significant developments has been the recognition granted to coastal state entitlements to claim a range of offshore maritime areas. Yet, one of the principal aims of the Antarctic Treaty was to eliminate sovereignty disputes between territorial claimants, and the treaty placed limitations on the assertion of new claims. Nevertheless, most Antarctic territorial claimants have asserted some form of Antarctic maritime claim. This article particularly considers Australia's position toward maritime claims offshore the Australian Antarctic Territory (AAT). It reviews the limitations imposed by the Antarctic Treaty, the difficulties in determining baselines in Antarctica, Australia's practice in declaring Antarctic maritime claims, and the potential range of maritime boundaries that Australia may one day have to delimit with neighboring states in the Southern Ocean.     

Third Party Intervention in the Commission on the Limits of the Continental Shelf Regarding a Submission Involving a Dispute

The Commission on the Limits of the Continental Shelf (CLCS) was established in accordance with Article 76 of the Law of the Sea Convention. CLCS has the mandate to consider data submitted by coastal states concerning the outer limits of their continental shelf in areas where those limits extend beyond 200 nautical miles and to make recommendations to the submitting state on matters related to the establishment of the limits. For third parties that have actual or potential disputes, unresolved borders, or unresolved land or maritime disputes with the submitting state, the recommendations of the CLCS can be very sensitive. The focus of this article is on the practice of third parties in responding to submissions and how third parties have constructed their Notifications.     

A Note on the Nicaragua v. Colombia Case

The 2012 Nicaragua v. Colombia Case is the second instance where the International Court of Justice has employed the standard method in maritime delimitation since the 2009 Black Sea Case. The “standard method” involves three stages with the construction of a provisional equidistance line as the core of the methodology. There is no legal basis under the UN Convention on the Law of the Sea or customary law for the a priori position given to an equidistance line. Moreover, questions can be raised about the Court's operation at the second stage, which should consist of an adjustment or shifting of the provisional line rather than replacing it. Finally, the use of the disproportionality test as the touchstone for equity of the delimitation line is doubtful.