This Blog will be serialized in two main parts. Part 1 will have the main Introduction and address Maritime Disputes under public international law, while Part 2 will address maritime disputes under private international law together with the general conclusion for both Parts 1 and 2.
A Look At Dispute Resolution Under International Maritime Law
It is believed that 80 percent of the world’s population lives on coastal areas whilst 90 percent of international trade is done by sea. Furthermore, approximately 65 percent of the world’s oil reserves and 35 percent of the world’s gas reserves are located in the oceans. Historically, nations which have become great powers have been those with access to the sea, examples can be drawn from the United Kingdom, the United States, France, Germany, Holland, Spain, and Japan to name but a few. Again, in modern times, seafaring countries such as China, India and Brazil have been predicted as emerging powers within the international community. The above statistics show that maritime activity substantially accounts for the economic strength of countries and it is in this regard that international law is critical to navigating challenges/disputes that occur on the seas.
International Maritime disputes cover a wide expanse falling within the categories of public international law and private international law. This article will look at the two categories bearing in mind that though they both involve forms of maritime disputes they are different contextually and in terms of the mechanisms or rules used towards the resolution of disputes.
Part One – Maritime Disputes Under Public International Law
Public International Law refers the laws, rules, and principles of general application that deal with the conduct of nation states and international organisations. It is sometimes referred to as the “law of nations” or just simply International Law. It is distinct from private international law. Under public international law, sovereign states adopt by ratification /accession, international treaties and conventions to govern their relations with one another and international organisations.
The most comprehensive Convention in the sphere of maritime relations amongst countries, is the 1982 United Nations Convention on the Law of the Sea. There are now 167 State members to the Law of the Sea Convention (LOSC) and 147 States parties to the 1994 Agreement relating to the Deep Seabed.
The LOSC categorises the seas into three distinct areas namely, territorial waters, exclusive economic zone, and international waters. Territorial waters are those under the sovereign control of coastal states and recognised under the Convention as “twelve nautical miles from the low water mark of a coastal state.” This zone is under the exclusive control of the specific coastal country. Ships of all nations are however allowed “innocent passage” in territorial waters. Beyond the territorial waters’ twelve nautical miles is the Exclusive Economic Zone (EEZ), which goes further seaward to 200 nautical miles. Within an EEZ, the coastal state has special rights “to use and exploit marine resources, enjoys freedom of navigation and other specified rights such as laying of marine cables. The area beyond 200 nautical miles is delimited as international waters in which all states (coastal/non-coastal), have equal access enabling them enjoy the freedom of the seas with other activities. The LOSC also provides rules pertaining to straits, archipelagos, enclosed seas, landlocked states, rules on jurisdiction over ocean vessels.
In spite of clearly defined boundaries, maritime disputes are common. For instance, in 1982 the United Kingdom and Argentina fought the Falklands War over islands in the south Atlantic lying approximately 300 miles from South America and 700 miles from Antarctica.
Law of the Sea Dispute Resolution Mechanisms
The LOSC has put in place a number of dispute resolution mechanisms. The actors in such dispute settlements are mostly states. However, there are some avenues for nationals to engage in these dispute settlement mechanisms as more often than not, their interests are behind the interests of State actors.
Though the LOSC provides for the rules to identify the 3 categories of the sea as discussed above, it leaves the actual delineation to States. States are therefore expected to hold discussions to arrive at consensus based on “international law in order to achieve an equitable solution.”
Where States are unable to arrive at an agreement within a reasonable time, they would then be expected to resort to various dispute settlement procedures under Part 15 of the LOSC. This includes non-compulsory dispute procedures such as mediation or the compulsory dispute procedures which include the International Tribunal for the Law of the Sea (ITLOS) under Annex VI, the International Court of Justice (ICJ), amongst others.
Negotiation is the preferred method of non-compulsory dispute settlement by States and the other avenues are considered only when negotiations stall. This is due to the fact that there is an increasing interest in exploiting maritime resources. During negotiations, State parties pursue a process of joint development in the maritime space to enable them set aside the legal dispute to focus on practical measures that ensure each State party’s underlying objective. This is particularly so, when each State party intends to pursue different types of exploitation. Studies however reported only 16 successful negotiations from 1994 to 2012. These included the 2003 Negotiation between Azerbaijan, Kazakhstan and the Russian Federation; the 2004 Negotiation between Australia and New Zealand and the 2008 Mauritius-Seychelles EEZ Delimitation Treaty.
When States reach a deadlock during negotiations, they resort to the compulsory dispute resolution mechanisms. under Section 2 of Part 15 of the LOSC. Such mechanisms include the International Tribunal for the Law of the Sea (ITLOS) under Annex VI, the International Court of Justice (ICJ), the creation of an Arbitral Tribunal under Annex VII, and the creation of a Special Arbitral Tribunal which is a panel of experts dealing with disputes relating to specific areas such as fisheries, marine environment and scientific research, to name but a few.
Since 1994, arbitrations under Annex VII of the Convention (LOSC) have become a popular means of resolving maritime disputes falling within the ambit of public international law.
Some examples of the LOSC Annex VII Arbitrations include:
- Australia and New Zealand v. Japan (“southern Bluefin Tuna Arbitration”)
- Ireland v. UK (“Mox Plant Arbitration”)
- Malaysia v. Singapore (“Land Reclamation Arbitration”)
The main source of contention among States under the LOSC has been maritime boundary disputes. They relate mostly to the delineation of the baseline and delimitation of the territorial sea, the EEZ, and the continental shelf within or beyond the designated 200 nautical mile area.
In the Philippines v. China arbitration, the Philippines are challenging China’s activity in the South China Sea and Seabed Area and argues that China’s claims over the area delimited by the “Nine-Dash Line” are not lawful under the LOSC. The Philippines are therefore seeking a finding that China’s claims over this area are unlawful.
Another significant mechanism of dispute resolution introduced by the LOSC, is the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, which hears both contentious and non-contentious matters. It plays a significant role in hearing “prompt release” cases which are expedited due to the nature and context of such cases, for instance, seizure of a foreign ship and its crew, by a coastal State (usually in its Exclusive Economic Zone). Such disputes are not limited to State actors and natural or legal persons may appear before ITLOS, with the permission of their flag State.
It is worth noting that even though ITLOS provides an avenue for settling both contentious and non-contentious matters, disputes brought before it, have been relatively minimal, most of which, have related to “prompt release” matters. In effect, ITLOS rarely decides cases on the merits. Although States have mostly preferred litigating before the International Court of Justice (ICJ), this trend is changing and the number of cases being registered before ITLOS are increasing. These include ITLOS Case No. 16 “Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal” and ITLOS Case No. 23 “Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean”.
As already indicated, dispute settlement by the ICJ is the predominant mechanism for maritime disputes under public international law. Therefore, the main forum for States seeking judicial settlement under the LOSC, is the International Court of Justice (ICJ). In addition to law of the sea cases, the ICJ also decides on maritime and sovereignty issues. Some of the ICJ Judgments on the law of the sea since 1994 include:
- 1998 Fisheries Jurisdiction (Spain v. Canada) 2001 Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)
- 2002 Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea intervening)
- 2007 Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v. Honduras)
- 2012 Territorial and Maritime Dispute (Nicaragua v. Colombia)
- 2009 Maritime Delimitation in the Black Sea (Romania v. Ukraine)
- 2014 Maritime Dispute (Peru v. Chile)
- 2014 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
Very recently, the ICJ has delivered its Judgement in the long standing maritime border dispute between Kenya and Somalia, over the oil and gas rich territory in the Indian Ocean. Largely, the ruling was delivered in favour of Somalia (Ref. ICJ MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA v. KENYA delivered October 12, 2021) It is interesting to note that in unfolding events, Kenya has refused to recognise the ICJ’s jurisdiction/Judgement and considering that the ICJ has no means to enforce its judgements, further dispute settlement processes may have to be explored to curtail rising frictions between the two States. Indeed, it is possible that the matter might be elevated to the level of the UN Security Council, as the rising of tensions could lead to possible warfare. (This hinges on the concept of sovereignty of states in international law and thus goes beyond the scope of this blog.)
Geographic considerations have been the main driving force of these cases. However, other related disputes involving the impact of climate change are emerging, due to melting glaciers, arctic ice, rising seas and the expansion of water bodies generally.
Other forms of dispute resolution falling under the LOSC, with increasing impact include Advisory Opinions and Recommendations of the Continental Shelf Commission.
© 27/9/2021 Ellen Bannerman-Quist FCIArb