University of Nottingham Commercial Law Centre

Dr Marianthi Pappa chaired a UNCLC seminar on Maritime Boundary Disputes and Delimitation 

With guest speaker Professor Clive Schofield on 10 March 2021

Here is the blog written about the event by Junelle Ayettey, LLM International Commercial Law and UNCLC Research Assistant:

"Is it true that good fences make good neighbours as Robert Frost claimed or should we take the approach to love our neighbour but not to pull down our hedge as Benjamin Franklin stated? These are two interesting quotes that Professor Clive Schofield used to illustrate maritime boundaries and disputes.

There is a lot of potential for maritime boundaries. This is not only because 240/454 potential maritime boundary agreements are in force (Østhagen, 2020) but 86% of all maritime boundary agreements are post 1970. However, this figure does not include any potential extended continental shelf boundaries beyond 200 nautical miles from the coast. There is approximately 37kmmillion of extended continental shelf area. This will lead to overlapping jurisdiction claims and a new potential boundaries and maritime boundary disputes in the future. This is an exciting area of the law as it challenges and increasingly evolves the current technical and legal approaches to boundary disputes and maritime delimitation.

One may ask why States choose to delimit if they have their own exclusive economic zone, surely States are happy to explore within this area? However, the idea of delimitation is to provide jurisdictional clarity to states concerning but not limited to marine resources. This is particularly important as once the rights have been declared it reduces the possibility of disputes. There is also inevitable need for transboundary cooperation once the borders have been made. This is because arguably creating a boundary is just the beginning. There is a need to regulate the activities of the State within this area and reconcile conflicting activities. Another vital point to highlight is the global need for offshore resources. Such resources include carbons, oil, fish and gas hydrates. Although there is a move away from the global use of plastic this material is still widely used. The high use of plastic confirms the fact that as a global community we still need offshore resources. Hence why the lack of boundaries would cause more harm than good especially with the future in mind.

Coastal geography is paramount in dealing with maritime boundary disputes as it takes into consideration the natural coastline, coastline configuration, concavity/convexity, locations and status of islands and low-tide elevations. Advances in coastal geography is also linked to the popularity of equidistance. Equidistance is a method of delimitation. It is defined by the 1958 Convention as ‘the line every point of which is equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each of the two States is measured’. In cases where the baseline of one State is not balanced with another coastal geography aids in highlighting convex and unstable coasts such as Nicaragua and Honduras.

As Prof Clive Schofield mentioned, one cannot look at geography alone. There is a multidisciplinary aspect of the law regarding baseline issues, which makes it equally as exciting and complex for lawyers! For example, the existence of natural resources, economic factors, security reasons and environmental factors. As ultimately two States are looking to mutually agree on equidistance it is important to critically analyse why States have certain interests which may reveal the politics of delimitation that are not as obvious when looking directly at a coastline. One example to think about is the ongoing dispute between Kenya and Somalia where the disputed area of the Indian Ocean needs a clear boundary. It would be impractical to glance over the fact that the disputed area is rich in oil, gas and fish. Although delimitation provides clarity as mentioned above it is highly political. This dispute between the two East African countries is proving to add more friction to mounting diplomatic relations and ultimately the International Court of Justice (ICJ) has no enforcing power. This questions whether it is worth creating extra tension through court proceedings in hope for an unenforceable maritime boundary.

The ICJ in 2009 outlined the ‘Three-stage Approach’. This provides clarity on delimitation and subsequently all international cases dealing with boundary disputes have applied this approach. Kenya is arguing against the use of equidistance and has withdrawn from the ICJ hearings that only began on the 15 March 2021. Do you think this is a smart choice knowing the history of recent cases?"


University of Nottingham Commercial Law Centre

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