Maritime Boundaries In The 21st Century - Legal Frameworks, Disputes, And Emerging Challenges
Author: LawSphereX
Category: International Law
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MARITIME BOUNDARIES IN THE 21ST CENTURY: LEGAL
FRAMEWORKS, DISPUTES, AND EMERGING
CHALLENGES
Anshumaan Patro, BA LLB (Hons.), ICFAI Law School
ABSTRACT:
This literature review focuses on examination of marine boundaries and sovereign rights according to international law with a special emphasis, on the significance of the United Nations Convention, on the Law of the Sea (UNCLOS) in shaping maritime zone delineation practices over time. The analysis looks into the evolution of regions such, as territorial waters and the exclusive economic zone (EEZ) as well, as the continental shelf; highlighting the ways in which state privileges are determined and practiced within these territories. The review extensively focuses on exploring how UNCLOS plays a role, in settling conflicts using its mandatory dispute resolution procedures. Customary international law is examined in relation to treaty laws and how regional and bilateral agreements can sometimes take precedence over regulations is also discussed.
In the review we examine examples like the disputes in the South China Sea and boundary claims, in the Arctic Circle to demonstrate the nature of maritime boundary setting. Through these examples, the review puts light on the legal complexities that impact the dispute resolution process. Thereafter, we will discuss hinderances that are altering how maritime borders are perceived, like rapid climate change and sea levels on the rise, which endangers established maritime borders and give rise to various legal issues concerning state rights over underwater territories. The analysis also evaluates the impact of tribunals like the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ), in managing and settling intricate conflicts.
Keywords: Maritime boundaries, State rights, UNCLOS, Customary international law, Exclusive Economic Zone (EEZ), Territorial waters, Continental shelf, Maritime disputes, Climate change, International law, Geopolitics, Resource exploitation.
INTRODUCTION:
Maritime boundaries can be defined as the lines that divide or delineate the exclusive jurisdiction over the Earth’s water surface between costal states, be it opposing or adjoining. 1 It is used to identify the international waters as it is generally demarcated at a fixed distance from the costal state’s coastline. The maritime boundaries play an important role as to marking of the Exclusive Economic Zones, Continental Shelfs, Territorial waters and contagious zone of the Costal States. 2 Such boundaries and their demarcation are governed under the “United Nations Convention on the Law of the Seas”3 (UNCLOS).
4 Such demarcation or delimitation are of utmost importance to the costal sates as many important factors such as their sovereign rights over the natural resources under the Continental Shelf and marine life within the EEZ, defensive and diplomatic stance in contagious zones, control over strategic shipping routes are depended on it. 5 Further, having clear and distinct boundaries also help in preservation and protection of marine ecosystem and environment present with in the boundary as it imposes a duty on the coastal state to undertake such initiatives. 6 It is the ever-globalising world and the importance of ocean in various aspects of global GDP such as trade & shipping, management of natural resources, oil & gas production, and tourism that makes studying maritime time boundaries crucial.
In the contemporary era, it is essential to understand various resource rights, geopolitical situations, boundary disputes and environmental concerns relating to maritime boundaries. 7 In this paper, we will primarily delve into the concept of maritime boundaries and rights of the costal states regarding the same. The objective of this paper is to organise and synthesize available resources and research pertinent to the importance, delimitations and disputes relating to maritime boundary. Our focus will be on the important legal framework which governs maritime boundaries also with the resolution mechanisms available if such boundary disputes arise. We’ll also delve into the geopolitical and economic implications on costal states and their right and liabilities over the marine zones.
1 Andreas Østhagen, Maritime Boundary Disputes: What Are They and Why Do They Matter?, 120 MARINE
POLICY 104118 (2020).
2 Md. Monjur Hasan et al., Protracted Maritime Boundary Disputes and Maritime Laws, 2 JOURNAL OF
INTERNATIONAL MARITIME SAFETY, ENVIRONMENTAL AFFAIRS, AND SHIPPING 89 (2019).
3 U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994). 4 Victoria Mitchell, Maritime Boundaries and Maritime Security, GLOBAL CHALLENGES IN MARITIME SECURITY
111 (2020).
5 Østhagen, supra note 2.
6 Mitchell, supra note 5.
7 Østhagen, supra note 1, at 2-8.
HISTORICAL BACKGROUND:
The evolution of maritime boundaries can be tracked back to the colonial era and the Europeanisation of the world. The origin of definite boundaries, argued by many as a European concept, has now been widely accepted all over the globe. 8 To begin with, the maritime boundaries were demarcated three nautical miles from the coastline. This was known as “Cannon shot rule” and was so developed as to enable the coastal states to protect their territory. 9 After the World Wars and with the establishment of League of Nations followed by the United Nations, a more refined or formalised version of Maritime law started to take shape. “The Geneva Convention on the Law of Sea, 1958” can be considered a first step towards the codification of such law, which for the first time, introduced certain provisions for the delimitation of marine boundaries.
10 In 1982, The UNCLOS provided a comprehensive approach towards almost all possible areas of Marine Law, encompassing the division of marine zones into several sectors such as Exclusive Economic Zones, Contagious Zones, territorial waters and Continental shelf. For example, Article 4 of UNCLOS by stating that, “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention;”11 provides for the Territorial Waters of the Coastal State. Further, Article 15 of UNCLOS provides for the demarcation of the marine zone among states with adjacent or opposite coasts and similarly, Part V provides for demarcation of Exclusive Economic Zones belonging to Coastal States.
DEVELOPMENT OF STATE RIGHTS OVER MARITIME ZONES:
As already stated above, state rights over the maritime zone can broadly be classified into Territorial Sea, Contiguous Zones and Exclusive Economic zones, each having their own set of characteristics and delimitation rules. Territorial sea is essentially related to the territorial sovereignty of the coastal state and can hence be considered be belong to it. Under the UNCLOS, the territorial sea limit is 12 nautical miles from the base line of the coastal state12. On the other hand, contiguous zones can be considered to be a restricted zone of the high sea
8 George Joffé, Boundary Delimitation : The Role of History, 81 (2020).
9 Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, 88 AMERICAN JOURNAL OF INTERNATIONAL LAW 227 (1994).
10 Id.
11 UNCLOS, supra note 3, art. 4.
12 Id.
which is though not the territorial sea of the state but is essentially enables the state to protect their territorial sovereignty including their territorial sea. This can be termed as a compromise between the rights and interests of one coastal state and the other coastal states who are seeking their right to the stats of high seas. Exclusive Economic Zones, similarly, enables costal states to explore and exploit the marine resources including but not limited to aquatic organisms or oil, gases and minerals. This right of the Coastal State, though gives it economic privileges, does not grant it full sovereignty over the 200 miles of marine zone from its coasts. For the in-depth understanding of the above-mentioned marine zone and their delimitation, a few landmark decisions can be taken into consideration.
In the Anglo-Norwegian Fisheries Case13, the issue was whether the system used by Norwegian, i. e. , rule of straight baseline for demarcating the boundaries of their territorial waters was consistent with the international rule and law relating to such demarcation? This actually was a tussle between Customary international law and international law arising out of treaties. The International Court Of Justice (herein after referred to as the ICJ), held that Norway was allowed to demarcate its territorial water by using the system of straight baseline as it was a longstanding and consistent practise. 14
LEGAL FRAMEWORK:
After the Second World War, the Geneva Convention of 195815 or “UNCLOS I” can be considered a stepping stone for legal framework relating to marine border delimitation. Here, four different conventions relating to territorial sea, contiguous zone, fishing and continental shelf were adopted. But there were major setbacks as the limits of various maritime zones were not decided. Further, the conventions only partially addressed the concerns related to the delimitation of maritime boundaries and fishing. The “UNCLOS II, 1960”, also went futile in addressing the shortcoming of its predecessor. The “UNCLOS III”16, can be considered a comprehensive set of rules and regulations for extensive use of oceans. Further, it beautifully balances international obligations and national interests.
It gave proper measurements for the delimitation of marine zones and boundaries as well as a mechanism to resolve disputes, if any, which can arise in relation to the delimitations. It further established the “International Tribunal for the Law of the Sea”, to judicially resolve any disputes arising among the Coastal
13 Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. 116 (Jan. 18).
14 Id.
15 1958 Geneva Conventions on the Law of the Sea, (A/CONF.13/L.58, 1958, UNCLOS, Off. Rec. vol. 2, 146).
16 UNCLOS, supra note 4.
States17.
ROLE OF CUSTOMARY LAW IN THE ABSENCE OF FORMAL TREATIES:
According to the Article 3818 of the Statute of the International Court of Justice (referred to as the Statute of ICJ), gives 4 broad sources of international law, i. e. , Treaties, Customs, Judicial Preachments and general principles of law. Before treaties, there exists customs, according to which the states behaviours are measured and regulated. It can also be argued that customs after some development takes a form of treaty, for example, the Cannon shot rule was also a custom. There are many cases where, the ICJ has ruled that the customs and the treaties exist side by side19. Thus, customary law plays an important role even when a treaty exists as both are primary sources of international law. The major example of such case is the Fisheries20 case, where the ICJ reaffirmed the Nicaragua21 Jurisprudence and went on to state as above.
Further, in another case between Nicaragua and Columbia22, the court while dealing with an issue relating to the delimitation of continental shelf between the two parties, as Columbia was not a signatory of UNCLOS23, decide on the basis of customary law that, A state's entitlement to an extended continental shelf cannot intrude upon the 200 nautical mile zone of another state.
REGIONAL TREATIES AND AGREEMENTS:
Regional Treaties and Agreements tend to harmonise disputes and increase cooperation and are often considered as actions which enhance trust and prevent any further disputes. It can be argued that while such agreement and treaties improve the relations among the states, they pose a threat to the set procedure of dispute resolutions provided under UNCLOS24. Further, articles
17 Id, art. 186.
18 Statute of the International Court of Justice art. 38, Apr. 18 1946, 33 UNTS 993.
19 See, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgement, I.C.J. 1969 I.C.J. 3, (February 20) and Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 190 (June 27). 20 Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. 116 (Jan. 18)., supra note 14. 21 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 190 (June 27). 22 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast, Nicaragua v Colombia, Judgement, [2016] ICL Rep 100 (March 17).
23 UNCLOS, supra note 4.
24 Phan Duy Hao et al., Concluding Bilateral and Regional Agreements Relating to Maritime Disputes: Possible Implications for the Compulsory Dispute Settlement Mechanisms under the 1982 United Nations Convention on the Law of the Sea, 38 VNU JOURNAL OF SCIENCE: LEGAL STUDIES (2022).
281 and 282 of the UNCLOS25, if certain conditions are met, allows such agreements to bypass
its dispute resolution process. It provides under Art. 281 that the parties can use any peaceful method which is provided under such agreement among them or they under Art. 282 can go for any alternative dispute resolution process with has been mentioned by them in the treaty or agreement. Peel highlighted, by taking the example of The Southern Bluefin Tuna arbitration, how regional agreements can potentially exclude procedures given under the UNCLOS, even without having binding dispute settlement provisions in regional treaties or agreements26. Phan Duy Hao argues that, if such exemptions are allowed, there may be several repercussions such as undermining the “integrity of the UNCLOS, Inequality Between States, Lack of Binding Legal Outcomes, Dispute Resolution Delays, Increased Political Influence in Dispute Resolution and Precedent for Future Exemptions”27.
Further, Kamalnath analyses how the South China Sea arbitration demonstrated the complex results of treaty parallelism and jurisdictional issue in the maritime disputes28.
MAJOR DISPUTES:
The South China Sea Arbitration is one of the key legal disputes between the Philippines and China relating to issues regarding maritime rights and environmental protection of the said area29. The tribunal ruled out that the "nine-dash line" of China violated the provisions of the United Nations Convention on the Law of the Sea. Instead, the tribunal declared the features of the Spratly Islands as "rocks," which had very restricted maritime rights30. There was also the environmental damage resulted from the island-building projects of China and breached fishing prohibitions included in the award31. While there were adverse comments on the tribunal jurisdiction and some other findings of it, still, the award represents a significant step in the law of the sea32. Despite China's refusal to engage and the lack of focus of the ruling on
25 UNCLOS, supra note 3, art 281, 282.
26 Jacqueline Peel, A Paper Umbrella Which Dissolves in the Rain?: The Future for Resolving Fisheries Disputes under UNCLOS in the Aftermath of the Southern Bluefin Tuna Arbitration, 3 MELBOURNE JOURNAL OF INTERNATIONAL LAW 53 (2002).
27 Phan Duy Hao et al., supra note 24, p 36.
28 Anthea Jay Kamalnath, The Exclusion of Compulsory Proceedings Entailing Binding Decisions in Light of the Southern Bluefin Tuna and South China Sea Arbitrations, SOCIAL SCIENCE RESEARCH NETWORK (2020). 29 Duncan French, In the Matter of the South China Sea Arbitration: Republic of Philippines v People’s Republic of China, Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Law of the Sea Convention, Case No. 2013-19, Award of 12 July 2016, 19 ENVIRONMENTAL LAW REVIEW 48 (2017).
30 Bernard H. Oxman, The South China Sea Arbitration Award, UNIVERSITY OF MIAMI INTERNATIONAL AND
COMPARATIVE LAW REVIEW (2016).
31 Duncan French, supra note 29.
32 Bernard H. Oxman, supra note 30.
sovereignty matters or maritime boundaries, it would be seen as influencing future disputes as well as environmental efforts on the conservations of the South China Sea33. Maritime dispute in the Eastern Mediterranean reached peak levels since 2000, mainly because of a vast hydrocarbon discovery. This conflict involves several countries such as Turkey, Greece, Cyprus, and Libya, each individually making conflicting claims on matters related to maritime boundaries and Exclusive Economic Zones34. Turkey has a well-developed legal framework, founded on the principle of distributive justice, taking into account all those criteria related to maritime delimitation35. The ratification of the Maritime Boundary Delimitation Agreement by both Turkey and Libya in 2019 was important, though displaying Turkey's assertive position regarding its sovereign rights36.
Military conflict is less likely, but the unfortunate deadlock still exists due to inapplicable political and legal positions37. There is significant continuous political pressure due to conflicts in the region, especially with regard to energy-related activities38. Conflicts over the boundary of territorial waters and continental shelves in the Arctic Ocean have created controversy over the boundary of the Arctic. Despite such fears of conflicts, it has proven to be more cooperative than confrontational39. Five littoral states of the Arctic include Russia, the United States, Canada, Denmark, and Norway. And most of their maritime borders settled by bilateral treaties exist while others remain in dispute40. This new claim exercise by Denmark and Russia in opening their continental shelves into the central Arctic Ocean has reopened debate concerning the legal geography of the region41.
It will partly depend on the UNCLOS legal architecture about how to solve claims such as this, but it will also depend on whether this "legal architecture" can successfully form a workable form of governance of the
33 Motoyasu Nozawa, Issues Surrounding the South China Sea Dispute, 3 JAPANESE SOCIETY AND
CULTURE 7 (2021).
34 Eric R Eissler et al., Maritime Boundary Delimitation in the Eastern Mediterranean, 159 RUSI JOURNAL 74 (2014). 35 Yücel Acer, Turkey’s Legal Approach to the Maritime Disputes in the Eastern Mediterranean, 23 INSIGHT TURKEY (2021).
36 Cüneyt Yüksel et al., supra note 34.
37 Eric R Eissler et al., supra note 35.
38 Yücel Acer, supra note 36.
39 Andreas Østhagen et al., An Ocean Apart? Maritime Boundary Agreements and Disputes in the Arctic Ocean, THE POLAR JOURNAL 1 (2021).
40 Brian J. Van Pay, National Maritime Claims In The Arctic, 61 (2010).
41 Irena Valková & Irena Valková, Claiming the Arctic: On the Legal Geography of the Northernmost
Sovereignty Dispute, 7 THE POLAR JOURNAL 143 (2017).
"Scramble for the Arctic"42. Such resolution of disputes in respect of Arctic maritime claims would also establish jurisprudence for similar disputes in Antarctica and the South China Sea43.
ROLE OF INTERNATIONAL COURTS AND TRIBUNALS:
In principle, the International Court of Justice, the International Tribunal for the Law of the Sea, and arbitration tribunals have a precise role for maritime boundary disputes. UNCLOS has attempted to provide an underlying basis for the settlement of such disputes as well as to afford parties in dispute with the right to select one of these bodies provided by the "Montreux formula," defined by Treves in 200644. These courts typically apply to settle interstate disputes and decide state liability, unlike regional or criminal courts45. Recent cases show that these courts are not even archaic; on the contrary, they are applied often: for example, the Bangladesh/Myanmar and Nicaragua/Colombia Maritime Boundary Delimitations were adjudicated by ITLOS and ICJ, respectively46.
Despite being challenged by other new mechanisms of dispute resolutions, "old school" fora play important roles in international law. Their decisions are authoritative and long-standing institutions that fortify their relevance in the settlement of disputes over sea boundaries47.
CONCLUSION:
Maritime boundary development and entitlements of adjacent states constitute a complex and dynamic field, intersecting both international law, geopolitical factors, and environmental issues. The present review points out the important role played by UNCLOS in providing a legal structure for the delimitation of maritime zones and the adjudication of associated conflicts. However, regional agreements and geopolitical ambitions of strong and influential countries post heavy challenges to the strength of UNCLOS, particularly to its binding disputesettlement procedures. Customary international law, however, remains as a further source of law to supplement treaty- 42 Jon D. Carlson et al., Scramble for the Arctic: Layered Sovereignty, UNCLOS, and Competing Maritime Territorial Claims, 33 SAIS REVIEW 21 (2013).
43 Id.
44 Tullio Treves, What Have The United Nations Convention And The International Tribunal For The Law Of The Sea To Offer As Regards Maritime Delimitation Disputes, 71 (2006).
45 Sean D. Murphy, International Judicial Bodies for Resolving Disputes Between States (2013).
46 Robin Churchill, Dispute Settlement in the Law of the Sea: Survey for 2012, 28 THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW 563 (2013).
47 Sean D. Murphy, supra note 46.
based law, both where states are not parties to UNCLOS and in those instances where it is superseded by bilateral or regional agreements. Such agreements may provide fertile ground for cooperation and the peaceful settlement of disputes but risks fragmenting international maritime law, undermining the global reach and authority of UNCLOS. Issues such as climate change and technological advancement in the use of marine resources add dimensions to maritime boundary legislation both in interpretation and implementation. High sea levels may endanger boundaries of long periods drawn up by nations, thus leading to disputes over the flooded areas. On the contrary, advances in technology give more countries a reason to claim over resources that had not been hitherto accessible, thus treading into loopholes in regulation to be filled by international law.
The present-day international community has to prepare for future developments by better collaborative efforts as well as correct existing legal frameworks to handle these new and emerging challenges. In this regard, the two 'functions' of international judicial bodies-those being the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ)-are imperative in order to ensure impartial adjudication over maritime disputes. Thus, while continuous efforts are still made towards adhesion according to the tenets of UNCLOS, such relevance has to be its accommodation to the changing realities of the global maritime landscape. In short, it is very essential to preserve the fine balance between state sovereignty, international law, and protection of global maritime commons with great care.
Maritime boundaries are at the threshold of further development but principles were outlined by UNCLOS which would continue to hold out significantly towards both order and codified cooperative efforts within the world's oceans. However, these principles must also be the subject of continual international dialogue with innovative legal measures so that they remain relevant and effective.
REFERENCES:
1. U. N. Convention on the Law of the Sea, 1833 3.
2. Statute of the International Court of Justice art. 38, Apr. 18 1946, 33 UNTS 993.
3. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
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4. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),
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14. Andreas Østhagen, Maritime Boundary Disputes: What Are They and Why Do They
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15. Motoyasu Nozawa, Issues Surrounding the South China Sea Dispute, 3 JAPANESE
SOCIETY AND CULTURE 7 (2021).
16. Victoria Mitchell, Maritime Boundaries and Maritime Security, Global Challenges in
Maritime Security 111 (2020).
17. Jon D. Carlson et al., Scramble for the Arctic: Layered Sovereignty, UNCLOS, and
Competing Maritime Territorial Claims, 33 SAIS Review 21 (2013).
18. Jacqueline Peel, A Paper Umbrella Which Dissolves in the Rain?: The Future for
Resolving Fisheries Disputes under UNCLOS in the Aftermath of the Southern Bluefin Tuna Arbitration, 3 Melbourne Journal of International Law 53 (2002).
19. Irena Valková & Irena Valková, Claiming the Arctic: On the Legal Geography of the
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