Maritime Boundary Delimitation: Recent ICJ Jurisprudence Nicaragua v Colombia; Peru v Chile

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1 Maritime Boundary Delimitation: Recent ICJ Jurisprudence Nicaragua v Colombia; Peru v Chile May 28, 2014 Prof. Seokwoo LEE Inha University Law School leeseokwoo@inha.ac.kr 1

2 Recent Developments The Black Sea Case (Romania v. Ukraine) The Bay of Bengal Case (Bangladesh/Myanmar) Nicaragua v Colombia Peru v. Chile 2

3 The Black Sea Case, 3 February 2009 Key issue: Role of Ukraine s Serpents Island Located c.19nm off the Romanian mainland coast 39.6m high 0.135km 2 Island capable of generating an EEZ? Or mere rock capable of generating a 12nm territorial sea? 3

4 A Three-stage Approach? : The Black Sea Case The Court outlined a clear approach to delimitation: First establish a provisional delimitation line [A]n equidistance line will be drawn unless there are compelling reasons that make this unfeasible in the particular case The strongest statement yet in favour of equidistance as a starting point for maritime delimitation Second consider factors calling for an adjustment to the provisional line in order to achieve an equitable result Third verify the line by applying a disproportionality test 4

5 Application in the Black Sea Case The Court was selective in choice of basepoints for drawing the provisional delimitation line Serpents Island ignored To use it as a basepoint would be judicial refashioning of geography Serpents Island only awarded a 12nm zone When line checked: No marked disproportion between ratio of relevant coastal lengths and maritime areas found 5

6 Implications of the Black Sea Case Clear three-stage approach to maritime delimitation articulated by the Court Choice of basepoints for drawing provisional equidistance line Overt statement in favour of using equidistance as a starting point unless there exist compelling reasons not to Treatment of islands reduced effect for an island distant from mainland coast of the State which holds sovereignty over it 6

7 The Bay of Bengal Case: A number of Firsts Significance: First delimitation case for the Tribunal First Asian maritime delimitation to be settled by international adjudication First delimitation of the extended shelf through international adjudication 7

8 The Bay of Bengal Case Bangladesh on a concave coastline equidistance inequitable Myanmar argued that equidistance = equitable Island issues: Bangladesh s St Martin s Island Delimitation of: Territorial Sea EEZ Extended Continental Shelf 8

9 INDIA Mandabaria Island (b2) BANGLADESH Kutubdia Island MYANMAR Bhiff Cape Cape Negrais Animation by Andi Arsana and Clive Schofield (2012) Maritime Delimitation In the Bay of Bengal (Bangladesh/Myanmar) Bangladesh s relevant coast Myanmar s relevant coast Bangladesh s claim Myanmar s claim Area beyond 200nm Tribunal s provisional Eq. line Adjusted Equidistance line Line from Kutubdia Island Tribunal s delimitation line Bangladesh 200nm Myanmar 200nm Grey area Area = 283,471 sq km 9

10 Nicaragua v Colombia case: Constructing a Provisional Delimitation Line Three-stage approach to delimitation confirmed despite existence of overlapping entitlements to the east of Colombia s islands Court selective in determining basepoints for construction of provisional line Line then adjusted at the second stage 10

11 Nicaragua v Colombia case: Recent Developments and Emerging Clarity Quitasueño a substantial bank numerous small features located on it close to tidal levels Appropriate tidal level? Composition: Only coral debris and not a naturally formed area of land Size: Very small area above high tide 11

12 Nicaragua v Colombia case: ICJ Decision on Quitasueño Above high tide: Conservative view adopted but one feature, QS32 determined to be above high tide Composition: The fact that the feature is composed of coral is irrelevant Size: The fact that the feature is very small does not make any difference Parties in agreement that Quitasueño a rock 12

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14 Peru v. Chile 14

15 Peru v. Chile 15

16 Maritime Boundary Delimitation: Recent ICJ Jurisprudence Progressive retreat from equidistance as a privileged method of delimitation. However: Equidistance often provides equal distribution of maritime space, proximity and objectivity Equidistance lines often provides the starting point for negotiations, and third-party dispute resolution, even if they are subsequently considerably modified Current approach is to define a provisional line based on equidistance, then see whether there is a need to modify that line to reach an equitable result (and then to test it) 16

17 Maritime Boundary Delimitation: Recent ICJ Jurisprudence Development of a three-stage approach to delimitation Welcome clarity of approach should lead to more predictable results? BUT selectivity over basepoints at the first stage undermines certainty Impossible to distinguish between islands and mere rocks with certainty Strong trend towards awarding small and/or uninhabited islands, remote from the coast a reduced (nil?) effect in delimitation 17

18 Maritime Boundary Delimitation: Recent ICJ Jurisprudence Significant progress but challenges remain A more rigorous approach?: Draw a strict equidistance line and then adjust it to take into account exceptional features that have an undue impact on the line leading to an inequitable result Still a long way to go. 18