Part A Commentary on the Modern International Law of Maritime Boundary Delimitation, 3 Practical Considerations
Stephen Fietta, Robin Cleverly
- Coastal states — Delimitation — Straits — Territorial sea — UNCLOS (UN Convention on the Law of the Sea)
This chapter examines issues of negotiation vs litigation in the delimitation of maritime boundaries. Articles 15, 74, and 83 UNCLOS emphasize the fundamental importance of agreement in delimitation. Delimitation by agreement offers the parties maximum control over the process. States have discretion over the methodology chosen and outcome arrived at, so that equitable solution can be achieved. When States delimit maritime boundaries by agreement, they are free to arrive at any acceptable arrangement ‘on the basis of international law’. Delimitations by agreement may differ significantly from the outcome that an international court or tribunal might arrive at if asked to delimit the same boundary. Examples are given of novel negotiated outcomes. The chapter also examines third-party dispute resolution and practical considerations surrounding the choice of forum (ICJ, ITLOS, or arbitration). It also considers a typical delimitation case, the critical role of evidence in modern delimitation disputes, and the role of third States and third-State interests. Finally, it considers the preparation of a claim and the importance of an effective and well-managed delimitation team.