By Neerja Gurnani*
Seas beyond a state’s coastal boundaries have been classified into various maritime zones in the UN Law of Seas Convention[1]. Beyond the 12 nm territorial sea, states have claimed and enjoyed two types of maritime entitlements. First, a state may declare entitlement to an Exclusive Economic Zone (EEZ) where it may exercise sovereign rights regarding the exploration and exploitation of natural resources. It cannot extend beyond 200 nm from the baselines.[2] Second, a state may exercise jurisdiction over the resources of the continental shelf, which however may extend beyond 200 nm, in circumstances which this post seeks to cover.[3]
Disputes arise between states when these areas overlap – the process of maritime delimitation is one utilised to demarcate separate jurisdictions of different states.[4] It is a process which involves establishing the boundaries of an area already in place, in principle, appertaining to the coastal State.[5] There has been a considerable development in this area of jurisprudence in international law,[6] primarily in two directions – a) claimant states dividing the area by agreement, or b) delimitation by an international court or tribunal. No delimitation, however, may be effected unilaterally by one of those States. It must follow negotiations in good faith.[7]
Often boundaries are delimited by drawing the equidistance line, which at each point is equidistant from the nearest points on the states’ coastal baselines; and then consider whether there are factors calling for the adjustment or shifting of the line in order to achieve an equitable result.[8] These factors may include coastal geography, length, concavity, islands, etc[9]. Delimitation is thus primarily based on equidistance, but may diverge from the same, leading to maritime spaces beyond 200 nm, which seems to be the direction that international law is tending towards.
Naturally, legal and environmental aspects and consequences of these extensions must be considered, as they not only enhance the coastal state’s obligations and responsibilities in terms of know-how, exploration and exploitation of its resources, but also influence third party rights. More maritime areas equates to more maritime power, and this cannot be used as an instrument. Coastal States are also bound to have measures to safeguard these areas, for which it requires resources and internal legislations.
When is a State granted space beyond 200 nm? (Not counting, of course, the times when states have delimited their entitlements by agreement beyond 200 nm without prior approval of the Commission on the Limits of the Continental Shelf)[10] The natural prolongation of its land mass is observed, but very sparingly. For instance, in Nicaragua v. Colombia[11], the ICJ declined to delimit any maritime spaces beyond 200 nm from Nicaragua’s coast, despite it claiming a “Nicaraguan Rise,” a shallow area allegedly overlapping with Colombia’s maritime areas. One reason cited was the absence of CLCS submissions, and a failure to establish overlapping of the continental margin with Colombia’s EEZ. It is up to the coastal State to prove to the CLCS the outer limits of its extended continental shelf beyond 200 nm. CLCS issued certain scientific and technical guidelines[12] for the same, which takes into account reference lines from the foot of the slope, sediment thickness, distance from the baselines as well as from the isobath.[13]
However, as precise as the guidelines may seem, there exist certain gray areas insofar as delimiting maritime spaces beyond 200 nm is concerned, especially if it falls within 200 nm of another state’s coastlines.[14] These gray areas are fueled in part from the decision in Bangladesh/Myanmar[15] as well as the one in Bangladesh v. India[16], especially in regards to the water column within these areas. For instance, in the above cases, the seafloor in may be under Bangladesh’s jurisdiction, the water column must either belong (1) to the opposing states as residual EEZ or (2) to the global common space known as the “high seas.” In the first option (preferred in the above two decisions), a bifurcated national jurisdiction emerges—one state has jurisdiction over the the seafloor, while the other exercises jurisdiction over the water column. Customary international law has long recognised the concept of states sharing rights in maritime spaces.[17] In the second option, the water column becomes an area of high seas in which all states share equal rights.
The first option is wrought with practical difficulties, as the water column and seafloor may be considered “inseparable”, and indeed, the ICJ has reasoned that “the public order of the oceans” requires “a simpler and more coherent division” of maritime space and maritime resources.[18]
When entitlements do not actually overlap, states often distribute their rights by arrangements which can be used to circumvent difficulties of the bifurcated gray area. In Peru v. Chile[19], the dispute was over a triangular maritime space over which Chile had no entitlement. As the nations had agreed to a boundary, the ICJ deemed itself not obliged to answer the question of further delimitation.
This relinquishment of rights to circumvent gray areas is, ironically, a gray area in itself. While evidence of an agreement is compelling, no international court or tribunal has analysed effects of such treaties. Jurisprudence must evolve to fill such gaps, as it undoubtedly will when cases and disputes arise regarding the same.
Notes:
[1] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
[2] See Art. 57, UNCLOS, Yoshifumi Tanaka, The International Law of the Sea 5–8 (2012).
[3] See Art. 76, UNCLOS, Robin Rolf Churchill & Alan Vaughan Lowe, The Law of the Sea 145 (2d ed. 1988).
[4] Tanaka 2006, p. 7.
[5] 1969 North Sea Continental Shelf cases (Federal Republic of Germany/ Denmark/The
Netherlands), 1969 ICJ Reports, para. 18.
[6] Naomi Burke, Annex VII Arbitral Tribunal Delimits Maritime Boundary Between Bangladesh and India in the Bay of Bengal, ASIL Insights (Sept. 22, 2014), http://asil.org/insights/volume/18/issue/20/annex-vii-arbitral-tribunal-delimits-maritime-boundary-between. <last assessed 11th May 2015>
[7] 1984 Gulf of Maine case (United States/Canada), 1984 ICJ Reports, 112(1); Drawing the Borderline- The Equidistant Principle or Equitable Solutions in the Delimitation of Maritime Boundaries, GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.1, December 2012
[8] Dundua, Nugzar, ‘Delimitation of Maritime Boundaries between Adjacent States’ (United Nations- The Nippon Foundation Fellow, 2006-2007).
[9] Bjarni Már Magnússon, Is There a Temporal Relationship Between the Delineation and the Delimitation of the Continental Shelf Beyond 200 Nautical Miles?, 28 Int’l J. Marine & Coastal L. 465 (2013)
[10] See generally Bjarni Már Magnússon, Outer Continental Shelf Boundary Agreements, 62 Int’l & Comp. L.Q. 345 (2013); Recent Jurisprudence Addressing Maritime Delimitation Beyond 200 Nautical Miles from the Coast, David P. Riesenberg, ASIL, 2014
[11] Territorial and Maritime Dispute (Nicar. v. Colom.), 2012 I.C.J. 624 (Nov. 19), 8
[12] Read the CLCS guidelines here: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N99/171/08/IMG/N9917108.pdf?OpenElement <last assessed 11th May 2015>
[13] Extension of the Continental shelf beyond 200 nautical miles: an asset for France, Opinion of the Economic, Social and Environmental Council on the report submitted by Mr. Gérard Grignon, Rapporteur on behalf of the Delegation for Overseas Territories
[14] David Colson, The Delimitation of the Outer Continental Shelf Between Neighboring States, 97 Am. J. Int’l L. 91, 104–05 (2003); Alex G. Oude Elferink, Does Undisputed Title to a Maritime Zone Always Exclude Its Delimitation: The Grey Area Issue, 13 Int’l J. Marine & Coastal L. 143, 143–44 (1998).
[15] Delimitation of the Maritime Boundary in the Bay of Bengal (Bangl./Myan.), Case No. 16, Judgment of Mar. 14, 2012, 12 ITLOS Rep. 4; The Law of Maritime Delimitation and the Russian–Norwegian Maritime Boundary Dispute, Pål Jakob Aasen
[16] Bay of Bengal Maritime Boundary Arbitration (Bangl. v. India), Award (July 7, 2014), available at http://www.pca-cpa.org/showpage.asp?pag_id=1376 <last assessed 11th May 2015>
[17] Bangl. v. India, 507.
[18] Nicar. v. Colom., 230; see also Continental Shelf (Tunis./Libya), 1982 I.C.J. 18, 232, 126 (Feb. 24) (dissenting opinion of Judge Oda)
[19] Maritime Dispute (Peru v. Chile), Judgment (Jan. 27, 2014)
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