This article is a rejoinder to Dr. Massimo Lando’s ‘Stability of maritime boundaries and the challenge of geographical change’ which proposes that positive international law offers no legal basis for the delimitation of fluctuating boundaries and discusses the many complexities involved in the delimitation and management of such boundaries. This rejoinder delves deeper into the main point of contention: the legal basis for fluctuating boundaries. It argues that coastal states have an inherent entitlement to a territorial sea and that Article 15 of The United Nations Convention on the Law of the Sea (UNCLOS) entails a default rule for the establishment of provisional fluctuating boundaries. This limit is not necessarily a strict median line because it may be adjusted by reference to special circumstances. Furthermore, the lack of explicit reference to provisional arrangements in UNCLOS Article 15 should not be read as an indication that there are no provisional boundaries in the absence of boundary agreements.

This article further argues that there are judicial precedents for fluctuating boundary-segments. The Nicaragua v. Honduras decision left a segment of the territorial sea un-delimited, resulting in a partially fluctuating boundary, until otherwise agreed. Moreover, the International Court of Justice (ICJ) explicitly established a mobile boundary-segment in Costa Rica v. Nicaragua but as highlighted by Dr. Lando, this was done with the permission of the parties. Much depends on the claims brought by disputing parties and their stance on fluctuating boundaries but this decision demonstrated the ICJ’s willingness to employ fluctuating boundaries in response to coastal instability.

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.

Canada has five unresolved maritime boundaries. This might seem like a high number, given that Canada has only three neighbours: the United States, Denmark (Greenland), and France (St. Pierre and Miquelon). This article explores why Canada has so many unresolved maritime boundaries. It does so through a comparison with Norway, which has settled all of its maritime boundaries, most notably in the Barents Sea with Russia. This comparison illuminates some of the factors that motivate or impede maritime boundary negotiations. It turns out that the status of each maritime boundary can only be explained on the basis of its own unique geographic, historic, political, and legal context. Canada’s unresolved maritime boundaries are the result of circumstances specific to each of them and not of a particular policy approach in Ottawa.

Recent international jurisprudence has shown considerable uncertainty with regard to the delimitation of the territorial sea. While international tribunals endorse a two-stage approach to territorial sea delimitation, there is a lack of judicial consensus on the practical implementation of such an approach. This article argues that the rule-exception relationship between equidistance and special circumstances, as reflected in the drafting history of LOSC Article 15 and in jurisprudence prior to 2007, should inform the delimitation of the territorial sea. Cases since 2007 which have strayed from the earlier jurisprudence on LOSC Article 15, should be seen as a misconstruction of the law applicable to territorial sea delimitation.