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Stability of maritime boundaries and the challenge of geographical change: A reply to Snjólaug Árnadóttir
Published online by Cambridge University Press: 03 February 2022
Abstract
Geographical phenomena impacting the shape of coastlines may have implications for the stability of maritime boundaries delimited by agreement or judicial process. Sea level rise resulting from human-caused climate change has recently arisen as an additional phenomenon compelling the re-assessment of the stability of maritime boundaries over time. In a recent article published in this Journal, Dr. Snjólaug Árnadóttir has argued that a solution to the challenges of coastline change could be for maritime boundaries to fluctuate following the fluctuation of the baselines on which their course depends. By way of reply to Dr. Árnadóttir’s suggestion, this article argues that fluctuating boundaries have no legal basis either in the United Nations Convention on the Law of the Sea or in judicial decisions. Moreover, the delimitation process in three stages, commonly applied by international courts and tribunals since the Black Sea judgment, appears to be ill-suited for establishing fluctuating boundaries. There seems to be other solutions to the problem of coastline change, which this article also briefly explores.
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Footnotes
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The author would like to thank Snjólaug Árnadóttir, Michael Tsimplis, and the Journal’s editors for their comments. The usual caveats apply.
References
1 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 3, at 51, para. 96.
2 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), 167 ILR 1 (2017), at 74, para. 212.
3 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3.
4 Y. Tanaka, The International Law of the Sea (2019), 55.
5 UNCLOS, Art. 7(1).
6 UNCLOS, Art. 7(3).
7 An exception is the situation under Art. 7(2) of UNCLOS, concerning highly unstable coastlines. Under this provision, straight baselines remain valid until the relevant coastal state changes them. Yet, that change, or lack thereof, may be judicially reviewed. See infra note 9.
8 UNCLOS, Art. 16.
9 In relation to straight baselines, see Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, [2001] ICJ Rep. 40, at 103–4, paras. 201–14.
10 UNCLOS, Arts. 3 (territorial sea) and 57 (EEZ).
11 UNCLOS, Art. 76.
12 Art. 15 of UNCLOS is regarded to be part of customary international law. See Qatar v. Bahrain, supra note 9, at 94, para. 176.
13 For the text of Arts. 74 and 83 of UNCLOS, see Section 2.1 below. Both provisions are considered to be part of customary international law. See Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment of 19 November 2012, [2012] ICJ Rep. 624, at 674, para. 139.
14 M. Lando, Maritime Delimitation as a Judicial Process (2019), 334–56 (Appendix 2).
15 On the process of maritime delimitation see Section 3.1 below.
16 D. R. Rothwell and T. Stephens, The International Law of the Sea (2016), 43. See also A. Boyle, ‘Climate Change, Ocean Governance and UNCLOS’, in J. Barrett and R. Barnes (eds.), Law of the Sea – UNCLOS as a Living Treaty (2016), 211. The first assessment report of the Intergovernmental Panel on Climate Change was published in 1990, eight years after the adoption of UNCLOS.
17 On the exceptions to pacta sunt servanda, see Arts. 42–72 of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331(‘VCLT’). Judicial decisions can be re-opened only by filing an application for revision, such as under Art. 61 of the Statute of the International Court of Justice and Arts. 127–128 of the Rules of Procedure of the International Tribunal for the Law of the Sea.
18 International Law Association, Report of the Committee on International Law and Sea Level Rise (2018), at 1.
19 Ibid.
20 See Section 3.2 below.
21 S. Árnadóttir, ‘Fluctuating Boundaries in a Changing Marine Environment’, (2021) 34 LJIL 471.
22 Ibid., at 473–82.
23 Ibid., at 482–5.
24 Ibid., at 485.
25 Ibid.
26 As Dr. Árnadóttir wrote, land boundaries running along rivers, whether along the thalweg or elsewhere, shift as a result of river changes. See ibid., at 476. In any case, land boundaries are essentially distinct from maritime boundaries, which justifies not discussing the former in an article focused on the latter.
27 Ibid., at 475.
28 Ibid., at 474.
29 Ibid.
30 Ibid.
31 The absence of such a provision was noted in the Virginia Commentary. See Nordquist et al. (eds.), United Nations Convention on the Law of the Sea 1982, A Commentary – Volume II (1993), 143. Arts. 74(3) and 83(3) UNCLOS are part of the context of Art. 15 for the purposes of interpretation pursuant to Art. 31 VCLT.
32 Dsipute concerning Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment of 23 September 2017, [2017] ITLOS Rep. 4, at 166–7, para. 627.
33 Ibid.
34 Even if UNCLOS was drafted by different negotiating groups, the core procedures of the Third UN Conference on the Law of the Sea included the ‘single text approach’ and the approval of proposals by consensus. These procedures emphasize the character of UNCLOS as a unified treaty, even if specific parts of it may have been drafted by separate negotiating groups. See Tanaka, supra note 4, at 34–6; J. Evensen, ‘Working Methods and Procedures in the Third United Nations Conference on the Law of the Sea’, (1986) 199 Recueil des Cours 415.
35 UNCLOS, Art. 2.
36 UNCLOS, Arts. 56, 77.
37 1958 Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 206. See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, [2007] ICJ Rep. 659, at 744, para. 280. See also M. Lando, ‘Judicial Uncertainties concerning Territorial Sea Delimitation under Article 15 of the United Nations Convention on the Law of the Sea’, (2017) 66 International and Comparative Law Quarterly 589, at 599.
38 ‘Commentary to the Articles concerning the Law of the Sea’, 1956 YILC, Vol. II, at 271–2.
39 Art. 12(1) of the 1956 Draft Articles stated that ‘[t]he boundary of the territorial sea between two States, the coasts of which are opposite each other at a distance less than the extent of the belts of territorial sea adjacent to the two coasts, shall be fixed by agreement between those States. Failing such 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 on the baselines from which the breadths of the territorial seas of the two States are measured’. Under Art. 14(1) of the 1956 Draft Articles, ‘[t]he boundary of the territorial sea between two adjacent States shall be determined by agreement between them. In the absence of such agreement, and unless another boundary line is justified by special circumstances, the boundary is drawn by application of the principle of equidistance from the nearest points on the baseline from which the breadth of the territorial sea of each country is measured’.
40 Commentary, supra note 38, at 271.
41 Special circumstances include the presence of islands or navigational channels in the delimitation area. See Lando, supra note 37, at 591.
42 Árnadóttir, supra note 21, at 479–80.
43 Ibid., at 479.
44 Ibid., at 480.
45 Nicaragua v. Honduras, supra note 37, at 672–3, paras. 31–2.
46 Ibid., at 755, para. 307.
47 Ibid., at 755, para. 308.
48 Ibid., at 755, para. 309.
49 Ibid.
50 Ibid., at 756, para. 311.
51 Ibid.
52 The Border Dispute between Honduras and Nicaragua (Honduras v. Nicaragua), Award of 23 December 1906, XI RIAA 101.
53 Nicaragua v. Honduras, supra note 37, at 677, para. 47.
54 Ibid., at 748, para. 294.
55 Ibid., at 756, para. 311.
56 Section 2.1 above.
57 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua); Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment of 2 February 2018, [2018] ICJ Rep. 139, at 171–3, paras. 80–5.
58 Ibid., at 171, para. 80, and at 178, para. 104.
59 Ibid., at 171, para. 81. For the Treaty of Limits see Consolidated Treaty Series, vol. 118, at 439.
60 Costa Rica v. Nicaragua, supra note 57, at 171, para. 82.
61 Ibid., at 171, para. 83.
62 Ibid., at 173, para. 84.
63 Ibid.
64 Ibid., at 173, para. 86.
65 Ibid.
66 Lando, supra note 14, at 308–10.
67 Qatar v. Bahrain, supra note 9, at 94, para. 176.
68 The methodology for territorial sea delimitation requires no identification of the relevant coast and relevant area. On the identification of the relevant coast and the relevant area see Lando, supra note 14, at 34–101; Y. Ishii, ‘Relevant Coasts and Relevant Area in the Maritime Delimitation of the EEZ and Continental Shelf’, (2020) 51 Ocean Development and International Law 307; A. G. Oude Elferink, ‘Relevant Coasts and Relevant Area: The Difficulty of Developing General Concepts in a Case-Specific Context’, in A. G. Oude Elferink, T. Henriksen and S. Veierud Busch (eds.), Maritime Boundary Delimitation: The Case Law – Is it Consistent and Predictable? (2018), 173.
69 Relevant circumstances in EEZ and continental shelf delimitation are broadly similar to special circumstances in territorial sea delimitation. See M. Evans, ‘Relevant Circumstances’, in Oude Elferink, Henriksen and Veierud Busch, ibid., at 223–8.
70 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, [2009] ICJ Rep. 61, at 101–3, paras. 115–22. See also Dispute concerning Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, [2012] ITLOS Rep. 4, at 67–8, para. 240. On the EEZ and continental shelf delimitation process in general see Y. Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2019); S. Fietta and R. Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation (2016); T. Cottier, Equitable Principles of Maritime Boundary Delimitation (2015).
71 Bangladesh v. India, supra note 2, at 74, para. 212.
72 This second way to delimit fluctuating boundaries is discussed in Section 3.2 below. A third question which could arise is whether geographical changes could be the basis for states to argue that maritime boundaries previously established by judicial process could be re-delimited. This question is linked to the principle of res judicata, the detailed treatment of which is beyond the scope of this article.
73 For example, see Nicaragua v. Colombia, supra note 13, at 678, para. 145, and at 679–80, paras. 150–4.
74 For example, see Bangladesh/Myanmar, supra note 70, at 58–9, paras. 200–5.
75 L. Lima, ‘The Evidential Weight of Experts before the ICJ: Reflections on the Whaling in the Antarctic Case’, (2015) 6 JIDS 621; I. Van Damme, ‘The Assessment of Expert Evidence in International Adjudication’, (2018) 9 JIDS 401; K. Cook, ‘Judging “Best Available Science”: Emerging Issues and the Role of Experts’, (2018) 9 JIDS 388.
76 For example, see Naughten et al., ‘Two-timescale Response of a Large Antarctic Ice Shelf to Climate Change’, (2021) 12 Nature Communications 1991; A. A. Robel, H. Seroussi and G. H. Roe, ‘Marine Ice Sheet Instability amplifies and skews Uncertainty in Projections of future Sea-level Rise’, (2019) 116 Proceedings of the National Academy of Sciences 14887.
77 Lando, supra note 14, at 48–56.
78 Ibid., at 52–6.
79 On the limits of the relevant area see Lando, ibid., at 81–98; Ishii, supra note 68, at 321–4.
80 Bangladesh v. India, supra note 2, at 86, paras. 260–1.
81 Qatar v. Bahrain, supra note 9, at 104, para. 216.
82 Lando, supra note 14, at 173–8.
83 Nicaragua v. Colombia, supra note 13, at 702, para. 211.
84 Bangladesh/Myanmar, supra note 70, at 126, para. 498.
85 On disproportionality see Y. Tanaka, ‘The Disproportionality Test in the Law of Maritime Delimitation’, in Oude Elferink, Henriksen and Veierud Busch, supra note 68, at 291.
86 M. Evans, ‘Maritime Boundary Delimitation: Where Do We Go From Here?’, in D. Freestone, R. Barnes and D. Ong (eds.), Law of the Sea: Progress and Prospects (2006), 137, at 156.
87 M. Evans, ‘Maritime Boundary Delimitation: Whatever Next?’, in J. Barrett and R. Barnes (eds.), Law of the Sea: UNCLOS as a Living Treaty (2016), 41, at 70.
88 VCLT, Art. 59. See also H. Thirlway, The International Court of Justice (2016), 135–6.
89 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment of 19 December 1978, [1978] ICJ Rep. 3, at 35–6, para. 85.
90 Under Art. 62(1) VCLT, ‘[a] fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty’. The ICJ had found Art. 62 VCLT to reflect customary international law. See Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep. 7, at 38, para. 46.
91 Under Art. 62(2) of VCLT, ‘[a] fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty’.
92 Árnadóttir, supra note 21, at 483. See also S. Árnadóttir, ‘Termination of Maritime Boundaries Due to a Fundamental Change of Circumstances’, (2016) 32 Utrecht Journal of International and European Law 94, at 105–6.
93 Lando, supra note 14, at 109–21.
94 Ibid., at 116–21.
95 1971 Treaty between Australia and Indonesia Establishing Certain Seabed Boundaries, 974 UNTS 308; 1972 Treaty between Australian and Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, Supplementary to the Agreement of 18 May 1971, 974 UNTS 320; 1978 Treaty between Australia and Papua New Guinea concerning Sovereignty and Maritime Boundaries in the Torres Strait, 1429 UNTS 207; 1997 Treaty between Australia and Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 36 ILM 1053 (1997).
96 The ILA’s committee on International Law and Sea Level Rise has also emphasized problems of legal certainty in its discussions concerning fundamental change of circumstances as a reason to terminate maritime boundary agreements. The committee proposed that, ‘on the grounds of legal certainty and stability, the impacts of sea level rise on maritime boundaries, whether contemplated or not by the parties at the time of the negotiation of the maritime boundary, should not be regarded as a fundamental change of circumstances’. See Report, supra note 18, at 23.
97 Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment of 3 February 2003, [2003] ICJ Rep. 7, at 30, para. 67.
98 Árnadóttir, supra note 21, at 485.
99 Bangladesh/Myanmar, supra note 70, at 21, paras. 36–9.
100 C. G. Lathrop, ‘The Provisional Equidistance Line: Charting a Course between Objectivity and Subjectivity?’, in Oude Elferink, Henriksen and Veierud Busch, supra note 68, at 211.
101 See Section 2.1 above.
102 See Section 2.2 above.
103 See Section 3.1 above.
104 See Section 3.2 above.
105 Nicaragua v. Honduras, supra note 37, at 746–9, paras. 286–98; Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (Guinea/Guinea-Bissau), Award of 14 February 1985, XIX RIAA 149, at 189–90, paras. 108–11; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, [1982] ICJ Rep. 18, at 89, para. 129; Delimitation of the Continental Shelf between the United Kingdom and France (France/United Kingdom), Award of 30 June 1977, XVIII RIAA 3, at 118, para. 254.
106 Nicaragua v. Honduras, ibid., at 742–3, paras. 277–8.
107 Lando, supra note 14, at 162.
108 Nicaragua v. Honduras, supra note 37, at 748, para. 294. See also Lando, ibid., at 163.
109 North Sea Continental Shelf, supra note 1.
110 Lando, supra note 14, at 17–20.
111 See Section 3.1 above.
112 On joint developments zones see V. Becker-Weinberg, Joint Development of Hydrocarbon Deposits in the Law of the Sea (2014).
113 For a list of treaties creating joint developments zones see Lando, supra note 14, at 355–6 (Appendix 2).
114 UNCLOS, Art. 136.
115 K. Mickelson, ‘Common Heritage of Mankind as a Limit to Exploitation of the Global Commons’, (2019) 30 EJIL 635.
116 S. Ranganathan, ‘Global Commons’, (2016) 27 EJIL 693; S. Ranganathan, ‘Ocean Floor Grab: International Law and the Making of an Extractive Imaginary’, (2019) 30 EJIL 573.
117 For example, see M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, [1999] ITLOS Rep. 10; M/V “Virginia G” (Panama/Guinea-Bissau), Judgment of 14 April 2014, [2014] ITLOS Rep. 4; M/V “Norstar” (Panama v. Italy), Judgment of 10 April 2019, [2018–2019] ITLOS Rep. 10.