INTERNATIONAL LAW

OF THE SEA

Seminar 10
MARITIME BOUNDARY
DELIMITATION

LLM. NGUYEN Cong Dinh

Overview
 THE DELIMINATION OF THE TERRITORIAL SEA

Opposite States whose coastlines are less than 24 nm

Territorial sea delimitation emerge

Arccording to article 15 of the UNCLOS 1982 – absence of

agreement to the contrary, States may not extend their
territorial seas beyond the median or equidistance line unless
there are historic or other special circumstances that dictate
otherwise
 THE DELIMINATION OF THE TERRITORIAL SEA

Territorial and Maritime Boundary Dispute between

Nicaragua and Honduras in the Caribbean case
ICJ, while emphasizing that equidistance remained the
general rule, thought that both the configuration and unstable
nature of the relevant coastal area made it impossible to
identify basepoints from which to construct a provisional
equidistance line and that this “special circumstance” justified
the use of an alternative method, this being the use of a line
bisecting two lines drawn along the coastal fronts of the
States.
THE DELIMINATION OF THE TERRITORIAL SEA
 THE DELIMINATION OF THE TERRITORIAL SEA
equidistance/special
circumstances
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.
equitable principles/relevant
circumstances
Delimitation is accordance with
equitable principles, and taking
account of all the relevant
circumstances, in such a way as
to leave as much as possible to
each Party all those parts of the
continental shelf that constitute a
natural prolongation of its land
territory into and under the sea,
without encroachment on the
natural prolongation of the land
territory of the other.
THE DELIMINATION OF THE TERRITORIAL SEA
THE DELIMINATION OF THE TERRITORIAL SEA
THE DELIMINATION OF THE TERRITORIAL SEA
 THE DELIMINATION OF THE TERRITORIAL SEA

Three-stage test

• In the Black Sea case in 2009, the ICJ systematized a delimitation

methodology comprising a “three-stage” approach
• First: (a) between adjacent coasts draw a provisional line (an
equidistance line), unless there are compelling reasons that
make this unfeasible in the particular case; (b) between
opposite coasts, the provisional line “will be” the median line;
• Second: consider whether there are factors calling for the
adjustment or shifting of the provisional equidistance line in
order to achieve an equitable result;
• Third: verify that the line does not, as it stands, lead to an
inequitable result by reason of any marked disproportion
between the ratio of the respective coastal lengths and the
ratio between the relevant maritime area of each State
THE DELIMINATION OF THE TERRITORIAL SEA

Bay of Bengal
(Bangladesh/Myanmar)
case
THE DELIMINATION OF THE TERRITORIAL SEA
THE DELIMINATION OF THE TERRITORIAL SEA

Peru v Chile case

 THE PROCESS OF DELIMITATION

Establishing entitlement

• the task of delimitation consists in generating of a

line separating the overlapping entitlements of
States => establishing whether the parties to a
dispute do indeed have entitlements which overlap
is necessary
• entitlement to a territorial sea;
• entitlement to an EEZ; and
• entitlement to the continental shelf.
 THE PROCESS OF DELIMITATION

Establishing entitlement

Disputes regarding overlapping entitlement

• Disputes concerning sovereignty over land territory
or insular features;
• Disputes concerning the legitimacy of the baselines
used for the generation of distance-based maritime
zones;
• Legal regime of islands and low tide elevations.
 THE PROCESS OF DELIMITATION

The elements of the process

The identification of the relevant area – the first stage

• The area within which the delimitation is to be conducted;
(can be relevant coasts);
• The relevant area may include certain maritime spaces and
exclude others which are not related to the case in hand;
• The relevant area comprises that part of the maritime space
in which the potential entitlements of the parties overlap;
• The identification of relevant coasts and areas has become
entrenched as a foundational element of the delimitation
process.
 THE PROCESS OF DELIMITATION

The elements of the process

Identification of the primary method of delimitation –

the second stage
• This stage has varied over time;
• (i) there is evidence of a prior agreement between
the parties stipulating what that boundary is;
• (ii) If this is not the case, it is for the court to
determine the approach, and three-stage test is
applied. It means a provisional line will be drawed.
 THE PROCESS OF DELIMITATION

The elements of the process

Determining whether there are reasons to adjust

the provisional line – the third stage
• Identifying whether there are any “special” or
“relevant” circumstances;
• The types of circumstance which may affect the
placement of the boundary tend to be either
geographic or non-geographic in nature.
 THE PROCESS OF DELIMITATION

The elements of the process

Determining whether there are reasons to adjust the

provisional line – the third stage
• Geographic factors has to be considered
• Delimitation must be conducted without encroachment
on the natural prolongation of the land territory of the
other;
• whether there is any significant disparity in the ratio
between the lengths of the relevant coasts of the parties;
• the presence of islands.
 THE PROCESS OF DELIMITATION

The elements of the process

Determining the equitability of the solution – the

final stage
• Whether there was significant disproportionality
between the relevant coasts and the relevant
area?;
• Whether it really is the case that there are no other
issues which might reasonably be thought to have
a bearing on the “equitability” of the solution.
 PRACTICE CASES

Issues concerning the identification of the relevant area

In practice, the calculations of the Tribunal are highly

arbitrary
• Black Sea case;
• Nicaragua v Colombia case.
PRACTICE CASES

Black Sea case

Romania relevant
coast:
• Romania: 270 km;
• Ukraine: 204 km;
• The Court: 248 km.
Ukraine relevant coast:
• Ukraine: 664 km;
• Romania: 293 km;
• The Court: 704 km
PRACTICE CASES

Nicaragua v Colombia
Nicaragua relevant
coast:
• Nicaragua: 701 km;
• Colombia: 551 km;
• The Court: 531 km.
Colombia relevant
coast:
• Ukraine: 21 km;
• Romania: 75 km;
• The Court: 65 km
 PRACTICE CASES

Issues concerning islands and low-tide elevations

Whether the presence of islands may have an effect on the

method of delimitation?

• 1977 Anglo-French Continental Shelf Arbitration case:

islands belonging to mainland States had something less
than a full generative entitlement when opposed to the
mainland of another;
• Nicaragua v Colombia case: stressing that islands and other
land territory enjoy the same entitlement;
• Libya v Malta case: despite their equal generative capacity,
islands are rarely treated equally with mainland coasts within
the delimitation process.
 PRACTICE CASES

Issues concerning islands and low-tide elevations

Whether the presence of islands may have an effect on the

method of delimitation?

• 1977 Anglo-French Continental Shelf Arbitration case:

islands belonging to mainland States had something less
than a full generative entitlement when opposed to the
mainland of another;
• Nicaragua v Colombia case: stressing that islands and other
land territory enjoy the same entitlement;
• Libya v Malta case: despite their equal generative capacity,
islands are rarely treated equally with mainland coasts within
the delimitation process.
 PRACTICE CASES

Other relevant issues need to be concerned in the

delimitation process

• Issues relating to economic activity - Norway v Sweden

case (1909) : the Tribunal sought to preserve the
separation of existing fisheries interests;
• Catastrophic repercussions for the livelihood and well
being of the population of the countries concerned -
Gulf of Maine case;
• legitimate security concerns might be a relevant
consideration - Nicaragua v Colombia case.
PRACTICE CASES