Practitioner's Guide to Maritime Boundary Delimitation [Illustrated] 0199657475, 9780199657476
This book provides a user-friendly and practical guide to the modern law of maritime boundary delimitation. The law of m
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0199657475, 9780199657476](https://dokumen.pub/img/200x200/practitioners-guide-to-maritime-boundary-delimitation-illustrated-0199657475-9780199657476.jpg)
Table of contents :
Foreword
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Preface
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Footnotes:
Acknowledgments
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Contents
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
International Court of Justice/Permanent Court of International Justice
Table of Cases
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. xvii) International Tribunal for the Law of the Sea
International arbitration
Other
List of Figures
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Abbreviations
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Part A Commentary on the Modern International Law of Maritime Boundary Delimitation, 1 Context
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 3) 1 Context
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
a. Territorial sea
b. Continental shelf
c. Exclusive economic zone (‘EEZ’)
d. The ‘régime of islands’ under Part VIII of UNCLOS
IV. The Basis of the Modern Law of Delimitation: Articles 15, 74, and 83 of UNCLOS
V. ‘The Land Dominates the Sea’
Footnotes:
Part A Commentary on the Modern International Law of Maritime Boundary Delimitation, 2 Methodology
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 30) 2 Methodology
I. Some Essential Preliminaries in the Delimitation Process
a. Is there a delimitation agreement in force?
b. Coastlines as the foundation for maritime claims
c. The ‘baseline from which the breadth of the territorial sea is measured’
Large-scale charts, other data sources, and low- and high-water lines
d. Low-tide elevations
e. Identification of the ‘relevant coasts’ and the ‘relevant area’
II. The ‘Standard’ Methodology in Modern All-Purpose Maritime Delimitations: The ‘Three-Stage Approach’
a. Stage one: equidistance
What is an equidistance line?
How is an equidistance line constructed in a legally and technically precise manner?
Opposite coasts
Adjacent coasts
Simplified v. strict equidistance
b. Stage two: adjustment of the provisional equidistance line as required by ‘special’ or ‘relevant’ circumstances in order to achieve an ‘equitable result’
The threshold for adjustment of a provisional equidistance line
Non-encroachment and the ‘cut-off ’ effect
Marked disparity in relevant coastal lengths
Distorting effect of islands, rocks, promontories, and other small features
Enclaves and semi enclaves
Low-tide elevations
Natural resources—special considerations
Hydrocarbon resources and exploitation
Fisheries resources and exploitation
Conclusion on natural resources
Navigation and security interests
Other relevant circumstances
Circumstances generally insufficient to require adjustment of a provisional equidistance line
c. Stage three: the ‘disproportionality check’
III. Situations Where the ‘Standard’ Methodology Might Be Inappropriate or Inapplicable
a. The existence of a prior delimitation agreement
b. Alternative delimitation methods absent a delimitation agreement
c. Bisectors: a true surrogate for equidistance
d. Perpendiculars: an approximate surrogate for equidistance
e. Parallels, meridians, and azimuths
IV. Special Considerations in the Delimitation of Specific Maritime Zones
a. The territorial sea: UNCLOS Article 15; historic title; other special circumstances
b. Single EEZ, fisheries zone, or continental shelf delimitations
c. The continental shelf beyond 200 nautical miles and the ‘grey area’
Footnotes:
Part A Commentary on the Modern International Law of Maritime Boundary Delimitation, 3 Practical Considerations
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 114) 3 Practical Considerations
I. Negotiation or Litigation?
a. The pre-eminence of ‘agreement’ under Articles 15, 74, and 83 of UNCLOS
b. Novel negotiated outcomes at variance with standard delimitation methodologies
c. ‘Provisional arrangements of a practical nature’
II. Third-Party Dispute Resolution
a. The duty to negotiate
b. The duty to litigate/arbitrate
c. Non-appearance by a State party to the dispute
III. Practical Considerations Surrounding the Choice of Forum: ICJ, ITLOS, or Arbitration?
IV. The Life of a Typical Delimitation Case
a. Provisional measures
b. Questions of jurisdiction, scope, and mandate
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
a. The composition of the team
b. The structure, management, and leadership of the team
c. The role of the technical expert
VIII. The Judgment or Award and Its Implementation
a. Different forms of judgment and award
b. Post-judgment or award considerations: revision, interpretation, and related procedures
c. Implementation: challenges and pitfalls
d. The role of the technical expert in ensuring the smooth interpretation and implementation of a delimitation judgment or award
Footnotes:
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)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 161) 1 North Sea Continental Shelf Cases (Judgment of the International Court of Justice, 20 February 1969)
I. Introduction and Context
II. Positions of the Parties and Summary of the Judgment
a. Procedural issues arising from the involvement of three States Parties to the dispute
b. Strict equidistance versus entitlement to a ‘just and equitable share’
Rejection of delimitation based on a ‘just and equitable share’
Rejection of the equidistance/special circumstances principle as a mandatory rule under the 1958 Convention and customary international law
c. The court’s determination as to the principles and rules of international law applicable in the delimitation
III. Technical Considerations
Page Id: 171ReferencesContinental Shelf, Libyan Arab Jamahiriya v Malta, Merits, ICJ GL No 68, [1985] ICJ Rep 13, ICGJ 118 (ICJ 1985), 3rd June 1985, United Nations [UN]; International Court of Justice [ICJ] ICGJContinental Shelf, Tunisia v Libyan Arab Jamahiriya, Merits, ICJ GL No 63, [1982] ICJ Rep 18, ICGJ 126 (ICJ 1982), 24th February 1982, United Nations [UN]; International Court of Justice [ICJ] ICGJ(p. 172) 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
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 2 Argentina v. Chile (Award of the Arbitral Tribunal, 18 February 1977)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 177) 2 Argentina v. Chile (Award of the Arbitral Tribunal, 18 February 1977)
I. Introduction and Context
II. Positions of the Parties and Summary of the Decision
a. Submissions of the parties
b. Interpretation of Article III of the 1881 Treaty and attribution of sovereignty over the islands of Picton, Nueva, and Lennox
c. Attribution of sovereignty over islets and other small features and delimitation of the maritime boundary in the Beagle Channel
III. Postscript to the 1977 Award
IV. Technical Considerations
V. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 3 United Kingdom of Great Britain and Northern Ireland v. French Republic (Decision of the ad hoc ‘Court of Arbitration’, 30 June 1977)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 186) 3 United Kingdom of Great Britain and Northern Ireland v. French Republic (Decision of the ad hoc ‘Court of Arbitration’, 30 June 1977)
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
Page Id: 193ReferencesNorth Sea Continental Shelf, Germany v Denmark, Judgment, merits, ICJ GL No 51, [1969] ICJ Rep 3, ICGJ 150 (ICJ 1969), 20th February 1969, United Nations [UN]; International Court of Justice [ICJ] ICGJ(p. 194) The English Channel and Eddystone Rocks
The Channel Islands
The ‘Atlantic region’
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
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 4 Dubai-Sharjah Border Arbitration (Award of the ad hoc ‘Court of Arbitration’, 19 October 1981)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 210) 4 Dubai-Sharjah Border Arbitration (Award of the ad hoc ‘Court of Arbitration’, 19 October 1981)
I. Introduction and Context
II. Positions of the Parties and Summary of the Award
a. The applicable law
b. The Tripp Decisions and the land boundary terminal point
c. Delimitation of the maritime boundary
The positions of the parties
The tribunal’s assessment of its task
The use of harbour works as base points
Treatment of the island of Abu Musa
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 5 Tunisia v. Libya (Judgment of the International Court of Justice, 24 February 1982)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 221) 5 Tunisia v. Libya (Judgment of the International Court of Justice, 24 February 1982)
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
Geological structure and history in the relevant area
Geomorphology and bathymetry
Conclusion on natural prolongation and physical features
c. Analysis of ‘equitable principles’
d. Identification of ‘relevant circumstances’
Coastal geography and geomorphology
The land frontier terminus
(p. 232) The conduct of the parties: unilateral claims, modus vivendi, and hydrocarbon concession activity
Historic fishing rights
Economic and resource factors
e. Practical method for the application of the principles and rules of delimitation
Division of the disputed area into two sectors
Delimitation in the first sector dictated by petroleum licensing practice of the parties
Change in coastal direction and ‘half effect’ of islands in the second sector
Proportionality test
f. Post-judgment application for revision and interpretation
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 6 Canada v. United States of America (Judgment of the Chamber of the International Court of Justice, 12 October 1984)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 243) 6 Canada v. United States of America (Judgment of the Chamber of the International Court of Justice, 12 October 1984)
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
The Chamber’s assessment of the Gulf of Maine area
Role of political and economic considerations in the delimitation process
The parties’ claims
The applicable principles and rules of international law
Analysis of ‘equitable criteria’ and ‘practical methods’
Assessment of criteria and methods applicable in principle
Criteria and methods proposed by the parties
The Chamber’s assessment of the criteria and methods applicable to the delimitation
Check of the proposed delimitation against fishing and other economic and political considerations
III. Technical Considerations
Page Id: 261ReferencesMaritime Dispute, Peru v Chile, Judgment, ICJ GL No 137, [2014] ICJ Rep 3, ICGJ 473 (ICJ 2014), 27th January 2014, United Nations [UN]; International Court of Justice [ICJ] ICGJ(p. 262) IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 7 Guinea v. Guinea-Bissau (Award of the Arbitral Tribunal, 14 February 1985)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 264) 7 Guinea v. Guinea-Bissau (Award of the Arbitral Tribunal, 14 February 1985)
I. Introduction and Context
II. Questions Posed, Constitution of the Tribunal, and Applicable Law
III. Positions of the Parties and Summary of the Award
a. The First and Second Questions related to the 1886 Convention
b. The Third Question related to the course of the maritime boundary
Identification of an equitable maritime boundary
Test of the equitableness of its proposed delimitation
IV. Technical Considerations
V. Significance of the Decision and its Contribution to International Law
VI. Postscript to the 1985 Award
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 8 Libya v. Malta (Judgment of the International Court of Justice, 3 June 1985)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 282) 8 Libya v. Malta (Judgment of the International Court of Justice, 3 June 1985)
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
Overriding importance of distance as a basis for continental shelf entitlement within 200M and relationship with the overlapping EEZ
Rejection of Libya’s ‘rift zone’ argument
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
Base points
Lengths of coasts
(p. 293) Geography of the region
Resulting adjustment of the provisional median line
Proportionality check
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 9 Guinea-Bissau v. Senegal (Arbitral Award, 31 July 1989)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 297) 9 Guinea-Bissau v. Senegal (Arbitral Award, 31 July 1989)
I. Introduction and Context
II. Positions of the Parties and Summary of the Award
a. Positions of the parties
b. The tribunal’s analysis of Guinea-Bissau’s opposition to the 1960 Agreement
Non-existence and nullity of the 1960 Agreement
Uti possidetis and the non-opposability of the 1960 Agreement
Failure to register the 1960 Agreement with the United Nations
Assertion of a ‘right of verification or review’
c. The scope and application of the 1960 Agreement
d. The tribunal’s conclusion as to the course of the maritime boundary
III. Challenge to the Award before the ICJ
IV. Technical Considerations
V. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 10 Canada v. France (Award of the Arbitral Tribunal, 10 June 1992)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 311) 10 Canada v. France (Award of the Arbitral Tribunal, 10 June 1992)
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
The applicable law and the principles or criteria invoked by the parties
The division of the area in two sectors and the rejection of equidistance in favour of delimitation based upon‘frontal projection’
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
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 11 Denmark v. Norway (Judgment of the International Court of Justice, 14 June 1993)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 329) 11 Denmark v. Norway (Judgment of the International Court of Justice, 14 June 1993)
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
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 12 Eritrea v. Yemen (Award of the Arbitral Tribunal in the Second Stage of the Proceedings, Phase II: Maritime Delimitation, 17 December 1999)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 343) 12 Eritrea v. Yemen (Award of the Arbitral Tribunal in the Second Stage of the Proceedings, Phase II: Maritime Delimitation, 17 December 1999)
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
(p. 347) 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
The ‘northernmost stretch’
The ‘middle stretch’
The southern sector
Proportionality
Rejection of delimitation based on fishing or fisheries; perpetuation of traditional artisanal fishing regime
Fishing rejected as a factor relevant to the delimitation
Elaboration upon the ‘traditional fishing regime’ preserved at Phase I of the arbitration
Further joint obligations in respect of shared hydrocarbon resources
Page Id: 360ReferencesNorth Sea Continental Shelf, Germany v Denmark, Judgment, merits, ICJ GL No 51, [1969] ICJ Rep 3, ICGJ 150 (ICJ 1969), 20th February 1969, United Nations [UN]; International Court of Justice [ICJ] ICGJ(p. 361) III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 13 Qatar v. Bahrain (Judgment of the International Court of Justice (Merits), 16 March 2001)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 364) 13 Qatar v. Bahrain (Judgment of the International Court of Justice (Merits), 16 March 2001)
I. Introduction and Context
II. Positions of the Parties and Summary of the Judgment
a. Procedural issues: challenge to jurisdiction
b. Resolution of the land sovereignty dispute
c. Delimitation of the maritime boundary
The applicable law and the division of the disputed area into two ‘sectors’
Delimitation of the territorial sea in the ‘southern sector’ and Bahrain’s claim to archipelagic status and use of straight baselines
Delimitation of the EEZ and continental shelf in the ‘northern sector’
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 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)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 382) 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)
I. Introduction and Context
II. First Phase: No Delimitation by Agreement
III. Second Phase: Determination of the Line Dividing the Parties’ Respective Offshore Areas
a. Positions of the parties
b. Applicable law and competence to delimit beyond 200M
c. Nova Scotia’s claim based on the conduct of the parties and access to resources
d. Analysis of the geographical context and delimitation of the maritime boundary
Relevant coasts and relevant areas
Treatment of islands
Construction of the provisional equidistance line and consideration of circumstances requiring its adjustment
IV. Technical Considerations
V. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 15 Cameroon v. Nigeria: Equatorial Guinea intervening (Judgment of the International Court of Justice, 10 October 2002)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 400) 15 Cameroon v. Nigeria: Equatorial Guinea intervening (Judgment of the International Court of Justice, 10 October 2002)
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
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 16 Barbados v. Trinidad and Tobago (Award of the Arbitral Tribunal, 11 April 2006)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 420) 16 Barbados v. Trinidad and Tobago (Award of the Arbitral Tribunal, 11 April 2006)
I. Introduction and Context
II. Position of the Parties and Summary of the Judgment
a. Jurisdiction and admissibility
b. Applicable law
c. The delimitation process
d. The delimitation effected in the three sectors of the boundary
The ‘western’ (or ‘Caribbean’) sector
The ‘central’ sector
The ‘eastern’ (or ‘Atlantic’) sector
Acquiescence and estoppel
Trinidad and Tobago’s claim to an outer continental shelf
The adjustment of the equidistance line
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
V. Postscript to the 2006 Award
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 17 Guyana v. Suriname (Award of the Arbitral Tribunal, 17 September 2007)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 439) 17 Guyana v. Suriname (Award of the Arbitral Tribunal, 17 September 2007)
I. Introduction and Context
II. Positions of the Parties and Summary of the Award
a. Procedural issues: Suriname’s objections to jurisdiction and admissibility; access to documents
b. Delimitation of the territorial sea
c. Delimitation of the EEZ/continental shelf
d. The CGX incident/UNCLOS Articles 74(3) and 83(3)
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 18 Nicaragua v. Honduras (Judgment of the International Court of Justice, 8 October 2007)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 453) 18 Nicaragua v. Honduras (Judgment of the International Court of Justice, 8 October 2007)
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
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 19 Romania v. Ukraine (Judgment of the International Court of Justice, 3 February 2009)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 471) 19 Romania v. Ukraine (Judgment of the International Court of Justice, 3 February 2009)
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
(p. 488) III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 20 Bangladesh v. Myanmar (Judgment of the International Tribunal for the Law of the Sea, 14 March 2012)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 491) 20 Bangladesh v. Myanmar (Judgment of the International Tribunal for the Law of the Sea, 14 March 2012)
I. Introduction and Context
II. Positions of the Parties and Summary of the Judgment
a. Delimitation of the territorial sea
b. Delimitation of the exclusive economic zone and continental shelf
c. Delimitation of the continental shelf beyond 200M
d. The ‘grey area’
e. ‘Disproportionality test’
III. Technical Considerations
IV. Significance of the Judgment and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 21 Nicaragua v. Colombia (Judgment of the International Court of Justice, 19 November 2012)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 509) 21 Nicaragua v. Colombia (Judgment of the International Court of Justice, 19 November 2012)
I. Introduction and Context
II. Positions of the Parties and Summary of the Judgments
a. Procedural issues: challenge to jurisdiction
b. Third-party applications for permission to intervene in the proceedings
Costa Rica’s attempted intervention
Honduras’s attempted intervention
c. Sovereignty over islands in the disputed area
d. Nicaragua’s claim for delimitation of a continental shelf extending beyond 200M
e. Delimitation of the maritime boundary within 200M
Relevant coasts
Relevant maritime area
Entitlements generated by the maritime features
Method of delimitation
Determination of base points and construction of provisional median line
Relevant circumstances for the adjustment of the provisional median line
Disproportionality test
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
V. Postscript to the 2012 Judgment
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 22 Peru v. Chile (Judgment of the International Court of Justice, 27 January 2014)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 533) 22 Peru v. Chile (Judgment of the International Court of Justice, 27 January 2014)
I. Introduction and Context
II. Positions of the Parties and Summary of the Judgment
a. Existence of a maritime boundary
The 1947 Proclamations
The 1952 Declaration
The 1954 Agreement
b. Nature and extent of the tacitly agreed maritime boundary
c. The court’s delimitation of the maritime boundary
III. Technical Considerations
IV. Significance of the Decision and its Contribution to International Law
Footnotes:
Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 23 Bangladesh v. India (Award of the Arbitral Tribunal, 7 July 2014)
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 549) 23 Bangladesh v. India (Award of the Arbitral Tribunal, 7 July 2014)
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
Methodology
(p. 561) Selection of base points and construction of the provisional equidistance line
Relevant circumstances
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
Footnotes:
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)?
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 575) 1 The Creeping Subjectivity of Base-Point Selection: A Lurch toward a ‘Four-Stage Approach’ (or a Return to Equitable Principles)?
I. The Challenge
II. Context of the Problem
III. A Possible Way Forward
IV. Conclusion
Footnotes:
Part C Future Challenges, 2 The Inconsistent Approach of Courts and Tribunals in the Adjustment of Provisional Equidistance Lines to Accommodate Geographical Relevant Circumstances
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 584) 2 The Inconsistent Approach of Courts and Tribunals in the Adjustment of Provisional Equidistance Lines to Accommodate Geographical Relevant Circumstances
I. The Challenge
II. Context of the Problem
III. A Possible Way Forward
IV. Conclusion
Footnotes:
Part C Future Challenges, 3 Relevant Coasts, Relevant Areas, and Proportionality: Variances of Approach and a More Discrete Role for Proportionality in the Delimitation Process?
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 594) 3 Relevant Coasts, Relevant Areas, and Proportionality: Variances of Approach and a More Discrete Role for Proportionality in the Delimitation Process?
I. The Challenge
II. Context of the Problem in Relation to the Identification of Relevant Coasts and Relevant Areas in Delimitation
a. Relevant coasts
b. Relevant area
III. The Proportionality Paradox and a Possible Revised Role for the Principle
a. The origins of the proportionality principle
b. The geometry of proportionality
c. Use by courts and tribunals—statistics
d. (In)applicability of the proportionality principle
IV. Conclusion: Returning the Proportionality Principle to its Roots in the North Sea Cases
Footnotes:
Part C Future Challenges, 4 Delimitation of the Outer Continental Shelf: Questions of Delineation and Methodology
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
(p. 610) 4 Delimitation of the Outer Continental Shelf: Questions of Delineation and Methodology
I. The Challenges
II. Context of the Problem
III. Some Possible Solutions
a. Minimizing the risk of deadlock in delineation and delimitation processes beyond 200M
b. The role of geological and geomorphological factors in delimitation beyond 200M
IV. Conclusion
Footnotes:
(p. 621) Annex I Technical Glossary
Annex I Technical Glossary
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Footnotes:
(p. 626) Annex II Treaty Instruments
I. 1945 Statute of the International Court of Justice
Article 36
Annex II Treaty Instruments
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Article 38
Article 60
Article 62
(p. 627) II. 1945 Truman Proclamation
Adopted in Washington, USA on 28 September 1945
III. 1958 Convention on the Continental Shelf
Article 1
Article 6
IV. 1958 Convention on the Territorial Sea and the Contiguous Zone
Article 12
V. 1969 Vienna Convention on the Law of Treaties
Article 31—General rule of interpretation
Article 32—Supplementary means of interpretation
(p. 629) 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
(p. 630) 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
Article 47—Archipelagic baselines
Part V: Exclusive Economic Zone
Article 55—Specific legal regime of the exclusive economic zone
Article 56—Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
Part VI: Continental Shelf
Article 76—Definition of the continental shelf
Article 77—Rights of the coastal State over the continental shelf
Article 78—Legal status of the superjacent waters and air space and the rights and freedoms of other States
(p. 634) Part VII: High Seas
Article 87—Freedom of the high seas
Article 88—Reservation of the high seas for peaceful purposes
Part VIII: Regime of islands
Article 121—Regime of islands
Part XI: The Area
Article 136—Common heritage of mankind
Article 137—Legal status of the Area and its resources
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
(p. 635) 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
(p. 637) Article 297—Limitations on applicability of section 2
Article 298—Optional exceptions to applicability of section 2
(p. 638) VII. UNCLOS Annex VII. Arbitration
Article 1—Institution of proceedings
Article 3—Constitution of arbitral tribunal
Article 5—Procedure
Article 9—Default of appearance
Article 11—Finality of award
VIII. 2008 Rules of Procedure of the Commission on the Limits of the Continental Shelf
Rule 45—Submission by a coastal state
Rule 46—Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes
Rule 53—Recommendations of the Commission
(p. 641) Annex III Sample Arbitration Agreements
Barbados/Trinidad & Tobago
Annex III Sample Arbitration Agreements
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
Page Id: 641ReferencesBarbados v Trinidad and Tobago, Award, PCA Case No 2004-02, (2008) XXVII RIAA 147, ICGJ 371 (PCA 2006), (2006) 45 ILM 798, (2011) 139 ILR 449, 11th April 2006, Permanent Court of Arbitration [PCA] ICGJ(p. 642) Section I. Introduction
Scope of Application
Article 1
Notice, Calculation of Periods of Time
Article 2
Commencement of Proceedings
Article 3
Representation and Assistance
Article 4
Section II. Composition of the Tribunal
Number and Appointment of Arbitrators
Article 5
Replacement of an Arbitrator
Article 6
Section III. The Proceedings General Provisions
Article 7
Place of and Language of Arbitration
Article 8
Order and Content of Pleadings
Article 9
(p. 644) Preliminary Objections
Article 10
Evidence and Hearings
Article 11
Article 12
Confidentiality
Article 13
Decisions on Administration and Routine Procedure
Article 14
Section IV. The Award
Publication of the Award
Article 15
Form and Effect of the Award
Article 16
Interpretation of the Award
Article 17
Correction of the Award
Article 18
Expenses and Costs
Article 19
Article 20
(p. 646) Deposit for Expenses
Article 21
Bangladesh/India
Section I. Introduction
Scope of Application
Article 1
Notice, Calculation of Periods of Time
Article 2
Commencement of Proceedings
Article 3
Representation and Assistance
Article 4
Section II. Composition of the Tribunal
Number and Appointment of Arbitrators
Article 5
Replacement of an Arbitrator
Article 6
Section III. The Proceedings
General Provisions
Article 7
Place of Meetings and Hearings and Language of Arbitration
Article 8
Order and Content of Pleading
Article 9
Preliminary Objections
Article 10
Provisional Measures
Article 11
Evidence and Hearings
Article 12
Article 13
Decisions on Administration and Routine Procedure
Article 14
Section IV. The Award
Publication of the Award
Article 15
Form and Effect of the Award
Article 16
Interpretation of the Award
Article 17
Correction of the Award
Article 18
Expenses and Costs
Article 19
Article 20
Deposit for Expenses
Article 21
(p. 653) Index
Index
From: A Practitioner’s Guide to Maritime Boundary Delimitation
Stephen Fietta, Robin Cleverly
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