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A Practitioner’s Guide to Maritime Boundary Delimitation by Fietta, Stephen; Cleverly, Robin (24th March 2016)
- Preliminary Material
- Main Text
- Part A Commentary on the Modern International Law of Maritime Boundary Delimitation
- 1 Context
- Preliminary Material
- I What is the International Law of Maritime Boundary Delimitation?
- II The Early History of Maritime Claims and Maritime Boundary Delimitation
- III The Relevant Zones of Maritime Sovereignty and Jurisdiction under the Modern Law
- IV The Basis of the Modern Law of Delimitation: Articles 15, 74, and 83 of UNCLOS
- V ‘The Land Dominates the Sea’
- 2 Methodology
- I Some Essential Preliminaries in the Delimitation Process
- II The ‘Standard’ Methodology in Modern All-Purpose Maritime Delimitations: The ‘Three-Stage Approach’
- a Stage one: equidistance
- b Stage two: adjustment of the provisional equidistance line as required by ‘special’ or ‘relevant’ circumstances in order to achieve an ‘equitable result’
- c Stage three: the ‘disproportionality check’
- III Situations Where the ‘Standard’ Methodology Might Be Inappropriate or Inapplicable
- IV Special Considerations in the Delimitation of Specific Maritime Zones
- 3 Practical Considerations
- I Negotiation or Litigation?
- II Third-Party Dispute Resolution
- III Practical Considerations Surrounding the Choice of Forum: ICJ, ITLOS, or Arbitration?
- IV The Life of a Typical Delimitation Case
- V The Critical Role of Evidence in Modern Delimitation Disputes
- VI Intervention by Third States and Role of Third-State Interests
- VII The Preparation of a Claim and the Importance of an Effective and Well-Managed Delimitation Team
- VIII The Judgment or Award and Its Implementation
- 1 Context
- Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes
- 1 North Sea Continental Shelf Cases (Judgment of the International Court of Justice, 20 February 1969)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- III Technical Considerations
- IV The Aftermath: The Continental Shelf Delimitation is Agreed by the Parties Pursuant to the Court’s Judgment
- V Significance of the Decision and its Contribution to International Law
- 2 Argentina v. Chile (Award of the Arbitral Tribunal, 18 February 1977)
- 3 United Kingdom of Great Britain and Northern Ireland v. French Republic (Decision of the ad hoc ‘Court of Arbitration’, 30 June 1977)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a Lack of competence to delimit the territorial sea
- b Applicable law and relevance of French reservations to the 1958 Convention on the Continental Shelf
- c Coastal relationship of the parties and methodology of delimitation
- d Application of the rules of the delimitation treaty to the geographical context
- III Post Decision Application Related to Meaning and Scope of the Court’s Decision
- IV Technical Considerations
- V Significance of the Decision and its Contribution to International Law
- VI Postscript: Developments since the Decision
- 4 Dubai-Sharjah Border Arbitration (Award of the ad hoc ‘Court of Arbitration’, 19 October 1981)
- 5 Tunisia v. Libya (Judgment of the International Court of Justice, 24 February 1982)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a The applicable law and the scope of the court’s mandate
- b Analysis of the juridical continental shelf, the principle of natural prolongation, and its relationship to delimitation
- c Analysis of ‘equitable principles’
- d Identification of ‘relevant circumstances’
- e Practical method for the application of the principles and rules of delimitation
- f Post-judgment application for revision and interpretation
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 6 Canada v. United States of America (Judgment of the Chamber of the International Court of Justice, 12 October 1984)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a Jurisdiction and the starting and termination points of the delimitation
- b Delimitation of the maritime boundary
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 7 Guinea v. Guinea-Bissau (Award of the Arbitral Tribunal, 14 February 1985)
- 8 Libya v. Malta (Judgment of the International Court of Justice, 3 June 1985)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a Applicable law and scope of jurisdiction under the Special Agreement
- b Request by Italy to intervene
- c The parties’ respective arguments with regard to historic conduct
- d Libya’s argument for delimitation based on natural prolongation
- e Rejection of Malta’s assertion of a rule of equidistance
- f Other arguments advanced by the parties
- g The court’s approach: construction of a provisional equidistance line and adjustment for relevant circumstances
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 9 Guinea-Bissau v. Senegal (Arbitral Award, 31 July 1989)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Award
- III Challenge to the Award before the ICJ
- IV Technical Considerations
- V Significance of the Decision and its Contribution to International Law
- 10 Canada v. France (Award of the Arbitral Tribunal, 10 June 1992)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Award
- a The tribunal’s designation of the geographical area relevant to the dispute
- b Delimitation of the EEZ/continental shelf
- c Incompetency of the tribunal to delimit the continental shelf beyond 200M
- d Role of fisheries and mineral resources in the delimitation
- e Application of the ‘test of proportionality’
- f Dissenting opinions
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- V Developments since the Award
- 11 Denmark v. Norway (Judgment of the International Court of Justice, 14 June 1993)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a The court’s designation of three maritime areas relevant to the dispute
- b The 1965 Agreement and related arguments of historic agreement or acceptance by Denmark of coincident median line boundaries
- c The law applicable to the delimitation and associated questions about the task of the court
- d The delimitation of the continental shelf and fishery zones
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 12 Eritrea v. Yemen (Award of the Arbitral Tribunal in the Second Stage of the Proceedings, Phase II: Maritime Delimitation, 17 December 1999)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Awards
- a Procedural considerations: two-stage arbitration process; determination of scope of dispute; additional hearings requested by tribunal to address questions arising out of certain offshore petroleum contracts
- b Sovereignty over disputed islands
- c Perpetuation of the ‘traditional fishing regime’
- d Delimitation of the maritime boundary
- The applicable law
- Delimitation of a single all-purpose median line calculated from the low-water mark
- Northern and southern extremities of the boundary
- Delimitation in the northern, middle, and southern sectors of the boundary
- Rejection of delimitation based on fishing or fisheries; perpetuation of traditional artisanal fishing regime
- Further joint obligations in respect of shared hydrocarbon resources
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 13 Qatar v. Bahrain (Judgment of the International Court of Justice (Merits), 16 March 2001)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 14 Newfoundland and Labrador v. Nova Scotia (Awards of the Tribunal in the First and Second Phases of an Arbitration Concerning Portions of the Limits of the Parties’ Respective Offshore Areas, Dated 17 May 2001 and 26 March 2002 Respectively)
- Preliminary Material
- I Introduction and Context
- II First Phase: No Delimitation by Agreement
- III Second Phase: Determination of the Line Dividing the Parties’ Respective Offshore Areas
- IV Technical Considerations
- V Significance of the Decision and its Contribution to International Law
- 15 Cameroon v. Nigeria: Equatorial Guinea intervening (Judgment of the International Court of Justice, 10 October 2002)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a Preliminary issues: provisional measures, jurisdiction, and admissibility and intervention by Equatorial Guinea
- b The court’s judgment in relation to the parties’ land boundary dispute
- c Delimitation of the maritime boundary
- Outstanding questions relating to jurisdiction, admissibility, and third State interests
- Delimitation of the maritime boundary up to ‘point G’
- Delimitation of the maritime boundary beyond ‘point G’
- Applicable law and methodology
- Base points
- Relevant circumstances
- Oil practice of the parties
- Conclusion and identification of ‘point X’
- Cameroon’s claims against Nigeria in respect of certain boundary incidents
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 16 Barbados v. Trinidad and Tobago (Award of the Arbitral Tribunal, 11 April 2006)
- Preliminary Material
- I Introduction and Context
- II Position of the Parties and Summary of the Judgment
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- V Postscript to the 2006 Award
- 17 Guyana v. Suriname (Award of the Arbitral Tribunal, 17 September 2007)
- 18 Nicaragua v. Honduras (Judgment of the International Court of Justice, 8 October 2007)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Award
- a Procedural issues: admissibility of claims relating to sovereignty over islands in the disputed area; requests by third States for copies of pleadings and other related documents
- b The ‘critical date’
- c Sovereignty over islands in the disputed area
- d Delimitation of the maritime boundary
- e Starting-point and endpoint of the maritime boundary
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 19 Romania v. Ukraine (Judgment of the International Court of Justice, 3 February 2009)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a Procedural Issues: Scope of Jurisdiction
- b Applicable Law
- c Relevance of Existing Agreements Between the Parties
- d Relevant Coasts
- e Relevant Maritime Area
- f Delimitation Methodology
- g Establishment of the Provisional Equidistance Line
- h Relevant Circumstances
- i The line of Delimitation and the Disproportionality Test
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- 20 Bangladesh v. Myanmar (Judgment of the International Tribunal for the Law of the Sea, 14 March 2012)
- 21 Nicaragua v. Colombia (Judgment of the International Court of Justice, 19 November 2012)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgments
- III Technical Considerations
- IV Significance of the Decision and its Contribution to International Law
- V Postscript to the 2012 Judgment
- 22 Peru v. Chile (Judgment of the International Court of Justice, 27 January 2014)
- 23 Bangladesh v. India (Award of the Arbitral Tribunal, 7 July 2014)
- Preliminary Material
- I Introduction and Context
- II Positions of the Parties and Summary of the Judgment
- a Identification of the land boundary terminus and starting point of the maritime boundary
- b Delimitation of the territorial sea
- c Identification of the ‘relevant coasts’ and ‘relevant area’ for delimitation beyond the territorial sea
- d Delimitation of the EEZ and continental shelf within 200M
- e Delimitation of the continental shelf beyond 200M
- f Adjustment of the provisional equidistance line within and beyond 200M and application of the ‘disproportionality test’
- g The ‘grey area’
- III Technical Considerations
- IV Significance of the Judgment and its Contribution to International Law
- 1 North Sea Continental Shelf Cases (Judgment of the International Court of Justice, 20 February 1969)
- Part C Future Challenges
- 1 The Creeping Subjectivity of Base-Point Selection: A Lurch toward a ‘Four-Stage Approach’ (or a Return to Equitable Principles)?
- 2 The Inconsistent Approach of Courts and Tribunals in the Adjustment of Provisional Equidistance Lines to Accommodate Geographical Relevant Circumstances
- 3 Relevant Coasts, Relevant Areas, and Proportionality: Variances of Approach and a More Discrete Role for Proportionality in the Delimitation Process?
- 4 Delimitation of the Outer Continental Shelf: Questions of Delineation and Methodology
- Part A Commentary on the Modern International Law of Maritime Boundary Delimitation
- Further Material
- Annex I Technical Glossary
- Annex II Treaty Instruments
- I 1945 Statute of the International Court of Justice
- II 1945 Truman Proclamation
- III 1958 Convention on the Continental Shelf
- IV 1958 Convention on the Territorial Sea and the Contiguous Zone
- V 1969 Vienna Convention on the Law of Treaties
- VI 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’)
- Part II: Territorial Sea and Contiguous Zone
- Article 2—Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil
- Article 3—Breadth of the territorial sea
- Article 4—Outer limit of the territorial sea
- Article 5—Normal baseline
- Article 6—Reefs
- Article 7—Straight baselines
- Article 8—Internal waters
- Article 9—Mouth of rivers
- Article 10—Bays
- Article 11—Ports
- Article 12—Roadsteads
- Article 13—Low-tide elevations
- Article 15—Delimitation of the territorial sea between States with opposite or adjacent coasts
- Article 33—Contiguous zone
- Part IV: Archipelagic States
- Part V: Exclusive Economic Zone
- Part VI: Continental Shelf
- Part VII: High Seas
- Part VIII: Regime of islands
- Part XI: The Area
- Part XV—Settlement of Disputes
- Article 279—Obligation to settle disputes by peaceful means
- Article 280—Settlement of disputes by any peaceful means chosen by the parties
- Article 281—Procedure where no settlement has been reached by the parties
- Article 283—Obligation to exchange views
- Article 284—Conciliation
- Article 286—Application of procedures under this section
- Article 287—Choice of procedure
- Article 288—Jurisdiction
- Article 290—Provisional measures
- Article 293—Applicable law
- Article 296—Finality and binding force of decisions
- Article 297—Limitations on applicability of section 2
- Article 298—Optional exceptions to applicability of section 2
- Part II: Territorial Sea and Contiguous Zone
- VII UNCLOS Annex VII. Arbitration
- VIII 2008 Rules of Procedure of the Commission on the Limits of the Continental Shelf
- Annex III Sample Arbitration Agreements
- Index
