Maritime Delimitation Disputes and the 1982 Law of the Sea Convention
| Author | Anthony Connerty |
| Profession | Barrister and member of WIPO arbitration panel |
| Pages | 53-70 |
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For the purposes of the Manual, maritime delimitation disputes can be divided into three areas: those concerning
* the territorial sea and the contiguous zone;
* the exclusive economic zone;
* the continental shelf.
These areas are dealt with in the 1982 United Nations Convention on the Law of the Sea (UNCLOS III). It will be recalled that in an earlier chapter it was suggested that there were three international treaties that have a particular relevance to maritime disputes, international investment disputes and international trade disputes generally: UNCLOS III, the International Convention on the Settlement of Investment Disputes (ICSID Convention) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).
As in the case of territorial boundary disputes, the international dispute settlement bodies dealing with maritime boundary disputes are likely to include the International Court of Justice (ICJ) and the Permanent Court of Arbitration (PCA), both in The Hague. In addition, UNLCOS III set up a third international body dealing specifically with maritime disputes: the International Tribunal for the Law of the Sea (ITLOS).
While the concept of the freedom of the high seas is accepted internationally, it is similarly accepted that coastal states have rights in relation to the seas off their coasts and that the resources in the seas and on the seabed need to be exploited. This can lead to disputes concerning the delimitation of the territorial sea between States with opposite or adjacent coasts, disputes concerning the delimitation of the continental shelf and disputes concerning exclusive economic zones. What may well lie behind a maritime delimitation dispute, as with a land dispute, is the existence - or suspected existence - of an oil and/or gas field.
Various conferences have been held that sought to deal with these potentially conflicting areas of interest. These conferences led to the 1958 Conventions on the territorial sea and contiguous zone; the high seas; the continental shelf; and fishing and conservation of the living resources of the high seas, and then subsequently to UNCLOS III. The Preamble to the 1982 Convention sets the scene (see Box 5).
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Box 5: Preamble to the 1982 United Nations Convention on the Law of the Sea
The States Parties to this Convention:
"Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world,
Noting that developments since the United Nations Conferences on the Law of the Sea held at Geneva in 1958 and 1960 have accentuated the need for a new and generally acceptable Convention on the law of the sea,
Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole,
Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment,
Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked,
Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States,
Believing that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter,
Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law,
Have agreed as follows...."
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UNCLOS III deals with, among other things, the rights over - and the methods of prescribing the limits of - the three areas mentioned above: the territorial sea and contiguous zone, the exclusive economic zone and the continental shelf (and other areas such as islands, bays and archipelagic States). It provides various methods for settling disputes, with detailed and complex dispute resolution provisions contained in Part XV and various Annexes of the Convention.
The development of claims
While it has long been accepted that coastal States have a right to regard an 'adjacent belt of sea' as part of their territorial waters, a less certain question was how far that belt of sea around the coastline extended into the high seas.
At one time the breadth of a coastal State's territorial waters was taken to be 3 miles: the distance of a cannon-shot. The limit is now accepted as 12 miles, measured from a baseline, which is the State's low-water mark (inland waters sited on the landward side of the baseline are deemed to be part of the internal waters of a State). When the coastline of a State is deeply indented, or where there are bays or where islands run parallel to the coast, the positioning of the baseline may raise difficulties. In the case of a bay, for example, should the baseline be taken from the low-water mark on the coast or should a 'straight baseline' drawn across the mouth of the bay be used?
Islands are capable of having a territorial sea (and an exclusive economic zone and a continental shelf). Attempts have sometimes been made in the case of archipelagic States comprising a number of islands to argue that the straight baseline method can be used to define their outer limits.
A coastal State may be entitled to exercise rights beyond the 12-mile limit of its territorial sea. For example, in a zone of the high seas contiguous to its territorial sea, a coastal State may lay claim to exercise control for the purposes of preventing the infringement of its customs regulations or in order to protect its immigration or sanitary laws and regulations. Additionally, a coastal State may be entitled to enjoy rights in relation to continental shelves and exclusive economic zones. Both are considered in the following sections and both may extend jurisdiction beyond the limit of the territorial sea.
The scheme of the 1982 Convention on the Law of the Sea (UNCLOS III)
UNCLOS III comprises 320 Articles and is divided into 17 Parts.
Part I: Introduction
Part II: Territorial Sea and Contiguous Zone
Part III: Straits used for International Navigation
Part IV: Archipelagic States
Part V: Exclusive Economic Zone
Part VI: Continental Shelf
Part VII: High Seas
Part VIII: Regime of Islands
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Part IX: Enclosed or Semi-Enclosed Seas
Part X: Right of Access of Land-Locked States to and from the Sea and Freedom of Transit
Part XI: The Area (this Part of the Convention is concerned with the 'common heritage of mankind' and with seabed resources and contains provisions relating to the Seabed Disputes Chamber of ITLOS)
Part XII: Protection and Preservation of the Marine Environment
Part XIII: Marine Scientific Research
Part XIV: Development and Transfer of Marine Technology
Part XV: Settlement of Disputes
Part XVI: General Provisions
Part XVII: Final Provisions
There are nine Annexes, which include:
Annex V - Conciliation
Annex VI - Statute of ITLOS
Annex VII - Arbitration
Annex VIII - Special Arbitration
Part XV of the Convention, dealing with the settlement of disputes - and Annexes V, VI, VII and VIII containing provisions dealing with methods and processes of dispute resolution - are relevant to the later part of the Manual dealing with supranational dispute resolution bodies.
The remainder of this chapter considers Part II: Territorial Sea and the Contiguous Zone (section 2), Part V: Exclusive Economic Zone (section 3) and Part VI: Continental Shelf (section 4). Since delimitation disputes are likely to arise in relation to all three areas, it also looks at delimitation (section 5) and considers some of the cases concerning delimitation that have come before supranational dispute resolution bodies such as the ICJ and the PCA (section 6).
Territorial sea
A baseline divides the inland territories of a coastal State from its territorial sea. The inland territories may include rivers and other inland waters, and "internal waters" are dealt with in Article 8 of the Convention. As noted above, the baseline is generally measured from the low-water mark of the coastal State, although...
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