Appunti di Ocean Resources Law and Policy

Ocean resources law and policy

Introduction - Marine delimitation

The Mediterranean can be considered as an enclosed or a semi-enclosed sea (art 122 of UNCLOS) with bubbles of HS (for example between Sicily and Tunisia). Maritime boundaries limitations: we have to define the difference between limits and boundaries.

During “ITLOS” we studied limits, reflection of maritime spaces. We are now considering boundaries, which are how States consider delimitation of their maritime spaces. Starting point of the maritime spaces measurements are baselines but now we will consider what will happen when the interest of two States overlap. Rules must have predictability but the flexibility of a rule is required in specific situations (typical dilemma of the Law of the Sea —> Law vs Nature).

Maritime delimitations can be considered as a process of establishing lines separating the spatial ambit of a certain coastal state jurisdiction over a certain maritime space where the legal title overlaps with that of another State. First we have to set limits, thanks to a unilateral act. Then we have to identify boundaries: in this case the involvement of two or more States is required! An international agreement is necessary.

The Chamber of International Court of Justice stated that no maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States (they must agree on the boundary). International Organizations cannot participate, States are necessary when defining Boundaries. States have territory while International Organizations do not have a territory! The process of maritime delimitation only concerns states for this reason. Coastal Marine Spaces (besides HS) are inherently associated with a territory, they do not exist without the existence of a territory.

Cases of maritime delimitation

1^o case: “The rights of the coastal State over the sea are “an essential appurtenance of land territory, which would automatically form part of a cession” Arbitral Tribunal, Grisbådarna Case (Norway vs Sweden 1909). A cession or a giving up of a territory (ex. Alaska from Russia to USA) is associated with the cession of the maritime spaces, we cannot divide them. The land dominates the sea!

2^o case: Dispute between UK and Norway. The ICJ stated that “There is a close dependence of the territorial sea upon the land domain as it is the land which confers upon coastal State a right to the waters off its coasts”. The Land confers rights on waters to the Coastal State.

3^o case: Beagle Channel (Argentina vs Chile) “…” A dispute between States on land and on sea we have to first consider the one on the territorial, on the land, in order to understand who has the jurisdiction.

• Ascertain land sovereignty before maritime sovereignty
• Coastal waters are measured from land. No state may establish a coastal zone that is detached from its territory.

From sea limits to sea boundaries

From sea limits to sea boundaries we have to consider that marine boundaries have a dual nature (different from the boundaries on land):

• On land we have boundary lines that separate states (the only exception is in Antarctica, in which we have an unclaimed sector, so States are facing something that is nothing), in sea instead we may have limits or boundaries so lines between two states or lines separating areas between two regions with a completely different regime or with the common heritage of mankind like in the Area.
• Methods of delimitation: the question of the definition of a boundary is set when we have not enough space. At sea, we do not have an effective coastal state jurisdiction so the rules are different. The International Law of the Sea tries to set definite lines in an environment that is completely fluid. The geographical factors are considered for each situation, they influence the definition of boundaries. Some of the methods were added to the Geneva and the UNCLOS and became customary law. There is not a single method used, it is all very fluid and under decisions of judges. The International Court of Justice and other tribunals placed an important rule that we will see.

Under Geneva and UNCLOS we can recognize four different types of delimitations:

• Delimitation of the territorial sea
• Delimitation of the contiguous zone
• Delimitation of the CS —> the Geneva conventions already included a provision regarding boundaries, that was used also in the UNCLOS (art 83, which is identical to the art 74, with the only difference in the name of the maritime zone)
• Delimitation of the EEZ (use a single line for the CS and the EEZ, trend of States nowadays)

No provisions regard the delimitation of internal waters. States not party to the UNCLOS are following the rules because they became customary laws.

Art 12 Geneva Conventions

Territorial Sea

“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The provisions of this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of two States in a way which is at variance with this provision.”

Historic title is a claim that is based on its historic presence on those waters. They are not linked to other provisions (ex. Gulf of Taranto). They act as a special circumstance so it can adjust the line of the boundary (ex. Fishing in that particular area).

Same can be found in art 6: Art 6 Geneva Conventions

Continental Shelf

“1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraph 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date and reference should be made to fixed permanent identifiable points on land.”

Special circumstances can justify a change in the equidistance. In paragraph 3 it is stated that the structure cannot be fluid, it must be fixed and permanent, not subject to changes (the geographical circumstances may become inequitable if the situation suddenly changes, so for this reason we cannot consider such structures).

Art 24 Geneva Conventions

Contiguous Zone

“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of the two States is measured.”

In this case, special circumstances are omitted: this can be explained with the limited powers of the States on this particular maritime space.

In the Geneva Conventions, no rules refer directly to the internal waters, but we can apply the rules for the territorial sea.

The UNCLOS instead: Art 15 UNCLOS

Territorial sea

“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. [This] provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of two States in a way which is at variance therewith.”

We have the confirmation of what the Geneva Conventions already stated. No provisions on the contiguous zone in the UNCLOS (gap), so we have to consider the Geneva Conventions.

Art 74 / 83 UNCLOS

Exclusive Economic Zone / Continental Shelf

“1. The delimitation of the exclusive economic zone/continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone/continental shelf shall be determined in accordance with the provisions of that agreement.”

(Considered together because the two articles are identical). The International Court of Justice is the judicial organ of the UN. The Statute is the instrument that provides for the establishment of the court and the functioning of the court. Art 38 of the Statute says that ICJ must decide on the basis of the international law and this article quotes the sources of International Law, which are customary law, treaties, judicial decisions (they may be considered in certain cases with caution). The equitable solution pops up only in the UNCLOS. Part XV deals with the settlement of disputes in the law of the sea (when there is a dispute, it must be resolved in front of a judge that can be of different type, not necessarily the ICJ).

Somalia and Kenya dispute: Kenya wanted to gain more maritime area and, in order to do it, it drew a line delimiting the maritime zone following the parallel. Somalia would have lost a sector. In that portion of sea Kenya request permission for activities of prospecting or exploitation of gasses. They never reached an agreement: Kenya is continuously granting permission to companies anyway many companies left the area because of the disputes. For example, ENI responded that since there was a contract with Kenya it would have not left the area, even after the request of Somalia. This is a case in which paragraph 3 of art 74/83 is applicable. The situation can fall under paragraph 2 of the same article, in fact, Somalia required the intervention of the ICJ. Agreement will prevail over the general rules. We can see the evolution from the Geneva Conventions: we do not see a method of delimitation here, no median line is mentioned, and there is the dealing with practical issues.

Equitable solution: during the third UN conference on the law of the sea there was a disagreement between the supporters of the idea of the equidistance and the supporters of equitable principles. In ex aequo et bono judicial terms the idea of deciding (on the basis of equitable principle) was not in mandate of a judge applying rules of law —> in the past there was the practice of delivering a dispute between two states to a third States, on the basis of its own considerations. It is a quite subjective way to deal with the problems. An idea of avoiding a compulsory mechanisms in order to resolve disputes. In art 74/83 there are no reference not to equitable principle not to specific methods, like median lines, so the compromise is the equitable solution, a compromise between the two.

The substantial question of methodology that was left unanswered has to be taken up in jurisprudence. Judges had to construct the laws years after years, case after case. Most of the criteria used are geographical, not economical or historical. These decisions became a source of international law. This represents an acquis judiciaire, which means that it is something accepted as a sort of precedent that it would not be changed by following decisions. They have been the search for “predictable, objectively-determined criteria for delimitation, as opposed to subjective findings lacking precise legal or methodological bases”

Current methods and case examples

Currently the equidistance method has to be included in art 74/83 according to courts, in order to solve the disputes. We can see it in the Black Sea case, between Romania and Ukraine (2009) (the 3-stage approach was clearly explained during this case). Modern jurisprudence uses the 3-stage approach:

• Provisional delimitation line, using geometrically objective methods (median line in case of oppositeness, equidistance lines in case of adjacency)
• Relevant special circumstances requiring an adjustment of the provisional delimitation line (historic title falls into this point)
• Verification in order to secure an “equitable result” (disproportionality check)

In some cases, the first two stages are not enough because in the end we still may have a disproportion, for this reason, the point three is important (nowadays it still hasn’t changed much the result of the first two points, anyway it can change a little the situation). The three-stage approach is important because it can show the States what may be the result of the courts' decisions.

Stage one: median/equidistance line. First thing to do is to identify relevant base points (art 15 UNCLOS). Only the most proximal points to the baselines that are important for the construction of the median line. The most protruding point will contribute then to the construction of the line. Base points are located on the low water mark, if they are onto the baselines. The weight to be given can be reviewed at the second stage, resulting in adjustment. If the coast is indented only the outer points must be considered. The location will be far less obvious on smoother coasts. They can be design using computer softwares (like geocap).

Using the up-to-date charts the software will calculate the points: X has an indented coastline so the points chosen are the most outer-line points, the most seaward. From x7 to x10 are located where there are less indention but even here the point chosen are those that are more outer. All the coast is relevant but those points do not contribute because they are further away. Y has two small islands that control the median line. The coast behind it is shielded by the island. Island A instead control all the northern part. In the northern part, the two states become adjacent while in the southern part they are opposite and island A influence the line. The equidistance line must be constructed by all of the base points. The geometrical approach is not envisaged in the provisions but it was proposed by judges.

The determination of the baseline and the identification of base points are two separate issues by the ICJ. In some cases, the presence of islands or ports was ignored by the ICJ so each case is different. In the case of Bangladesh vs India the International Tribune rejected some points that instead were accepted when drawing the baselines of territorial sea. Another exception: St Martin Island was ignored in a case between Bangladesh and Myanmar. These decisions appeared to have ignored the geometrical objectivity that is interrupt to the role of equidistance and they have also put on the table more subjective elements that instead should be added in the other points of the method, not in the first.

Opposite coastlines: the criterion is based on the definition of circles tangential to the coast of the two states. The center of those circles are base points. The circle both touch the two coasts this is a manual method made by a person, but also a software can be used. The process starts by connecting the two land points nearest to each other from both coasts. The middle point of the line is point one. The perpendicular crosses point one and it is the median line (each point on the line is equidistant from A and B). Point two is found by trial and error like this: from the perpendicular the point two is equidistant from A, B and the nearest point on the coast). Point two is a turning point of the equidistance line and it is the last point in which the line is influenced by A and the first point that is influenced by C, the perpendicular crossing two is equidistant from B and C. And so on with the other points. The sum of the point is the equidistant or median line.

The median line produces an equal division of the area and it is definitive because the two coasts are not going to change. (Inherently stable, geography is not going to change!). Short distance from the coast facilitate the situation because it gives the line stability (instead the adjacent coast will face more likely the instability because of the long distance). When a State uses straight baselines that State will always rip and advantage. So it can be contentious: the use of these intermediate points is not contrary to the law (we have the straight baselines) but it is quite contentious.

Ex. Case between Bangladesh vs Myanmar and Bangladesh vs India all three states had straight baselines but the intermediate points weren’t considered! In Qatar vs Bahrain the attempt of the second state to use the intermediate point on straight baseline was unsuccessful. In Barbados vs Trinidad and Tobago case, intermediate points on the archipelagic base lines.