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Dr. Damos Agusman

2018 ASIL Annual Meeting: Adjudicators, Negotiators, and the Evolution of Maritime Delimitation Law


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2018 ASIL Annual Meeting

Adjudicators, Negotiators, and the Evolution of Maritime Delimitation Law

Moderator:
Prof. Alina MIRON, University of Angers (France), Counsel and advocate in international litigation

Speakers:
• Ronny ABRAHAM, Judge, International Court of Justice
• Damos DUMOLI AGUSMAN, Directorate General of International Law & Treaties, Ministry of Foreign Affairs, Republic of Indonesia
• Alison MACDONALD, Barrister, Matrix Chambers
• Bernard OXMAN, University of Miami School of Law
• Jin-Hyun PAIK, President, International Tribunal for the Law of the Sea


The law of maritime delimitation, often qualified as ‘judge-made law,’ has been shaped to a large extent by international judges and arbitrators' interpretation of certain provisions of the UN Convention on the Law of the Sea. It is, therefore, case law that has helped reduce subjectivity and uncertainty in this field of international law, allowing at the same time for the evolution of the law of maritime delimitation. The panel addressed recent developments in the law of maritime delimitation, focusing on specific judgments and awards rendered over the past year, as well as the politics and negotiation of maritime delimitation agreements. Were thus discussed:

-      2 February 2017: ICJ judgment on preliminary objections in Maritime Delimitation in the Indian Ocean (Somalia v. Kenya);

-      29 June 2017: final award in Arbitration Between the Republic of Croatia and the Republic of Slovenia;

-      21st September 2017: ITLOS judgment in Dispute concerning delimitation of the maritime boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire);

-      2 February 2018: ICJ judgment in Maritime Delimitation in the Caribbean Sea and the Pacific Ocean, joined with Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua);

-      27 February 2018: ECJ (Grand Chamber), Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs, case C‑266/16;

-      6 March 2018: signature of the Treaty Between Australia and the Democratic Republic of Timor-Leste Establishing Their Maritime Boundaries in the Timor Sea, concluding the conciliation process.

Prof. Alina Miron
UNCLOS offers many possibilities to Parties to choose between various fora of dispute settlement (ICJ, ITLOS, arbitration, possible ITLOS or ICJ chamber). Flexibility is the best word to characterize the dispute settlement mechanism under UNCLOS. Flexibility though is not chaos. President Paik, Judge Abraham, do you think that the recent decisions (Ghana/Côte d’Ivoire and Somalia v. Kenya) managed to clarify to some extent the conditions under which the various fora may assert their jurisdiction? Is there a risk a risk of forum shopping?


President Jin-HyunPaik

First of all, thank you very much for the invitation. Good afternoon everyone. I will comment briefly about what happened during the Ghana v. Côte d’Ivoire case. As you know, under Part XV of UNCLOS, States Parties have freedom to choose one or more of the four procedures provided in Article 287 for dispute settlement. Now, if States Parties chose the same procedure, the dispute between them is submitted to that procedure. However, if they have accepted different procedures, then the dispute is submitted to an Annex VII arbitration. If States chose no procedure at all, they are deemed to have accepted the Annex VII Arbitration. So Annex VII arbitration is either a residual or default procedure.
 
Now what happened in Ghana / Côte d’Ivoire
case: the dispute was submitted to annex VII arbitration in accordance with article 287 of the Convention, because both parties didn’t choose any procedure at all. So according to article 287, the dispute was referred to arbitration. However a few months after the institution of arbitral proceedings, both parties negotiated and concluded a special agreement to transfer their dispute to the special chamber of the Tribunal. I must add that this was not the first time that this kind of transfer took place. This happened before, in M/V Saïga case, the first case that the Tribunal had to deal with in 1998. This also happened in the Bay of Bengal case. The dispute between Ghana and Côte d’Ivoire was submitted not to the Tribunal but to a Special Chamber of the Tribunal, at the request of the parties. In fact, article 15 of the Statute of the Tribunal provides that the Tribunal shall form a special chamber if parties so request. The composition of such a chamber is determined by the Tribunal with the approval of the parties. Again, this was not the first time that the Tribunal formed a special chamber; this happened before, in a case concerning Conservation and sustainable exploitation of Swordfish stocks between Chile and European Community. Now, some may call this risk of forum shopping. I must confess that I don’t know exactly what is meant by risk of forum shopping, but I consider what happened in Ghana/Côte d’Ivoire Case as a positive development not only for the Tribunal but also for the parties to the dispute. So far, many disputes have been submitted to Annex VII arbitration, not because parties to the disputes chose Annex VII arbitration as their preferred procedure, but essentially because they have not chosen any procedure at all. In other words, not by choice but by default. Because Annex VII arbitration is a default forum. As far as I recall, more than two thirds of States Parties to the Convention haven’t chosen any procedure at all. Therefore, any dispute involving them should go to the Annex VII arbitration. This is the reality. So, in light of this reality, I think it’s not a bad idea that even after a dispute was submitted to Annex VII arbitration, parties to the dispute think twice if it would serve their best interest to refer their dispute to arbitration or if there is a better option for them.
So you may call it forum shopping or cafeteria approach, you may call it whatever you like, but I think it is basically a positive development for my Tribunal as well as for parties to the dispute.
If I may add one more thing from the standpoint of Tribunal, you would not be surprised if I say that we are not entirely happy with Article 287, especially with the fact that arbitration is a residual forum. But this is what article 287 provides for, and there is not much we can do about it. But when a dispute is submitted to annex VII arbitration, I think that it’s always not a bad idea for parties to the dispute to consider whether that’s really what they want or whether there would be any other option for them, as far as the choice of procedure is concerned.

Judge Ronny Abraham

I will focus on one particular aspect of the judgment on preliminary objections rendered by the International Court of Justice (hereinafter “ICJ”) on 2 February 2017 in the case concerning a Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). In this case, the Court was confronted with a delicate legal issue which arose out of a potential conflict of jurisdiction between the ICJ, on the one hand, and on the other hand, the dispute settlement mechanisms instituted by Part XV (entitled “Settlement of Disputes”) of the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”).

It is recalled that both Parties had each made an optional clause declaration under Article 36, paragraph 2, of the Statute of the Court, none of which contained reservations excluding maritime disputes or disputes relating more generally to the law of the sea. In addition, both Kenya and Somalia are parties to UNCLOS, and neither of them having made a declaration under Article 287, paragraph 1, of that Convention, which provides that parties to that instrument may choose, by way of  written declaration, one or more of the specific means of dispute settlement set out in that provision in order to solve their disputes concerning the interpretation or application of the Convention, they are deemed, in accordance with paragraph 3 of the same provision, to have accepted to resort to arbitration under Annex VII of the Convention.

On the basis of the previous elements, and only them, the ICJ would certainly have had jurisdiction to entertain the Parties’ dispute, and not an arbitral tribunal under Annex VII, by virtue of Article 282 of the Convention, which states that

“[i]f the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree”.

Indeed, the phrase “or otherwise” which appears in this Article is to be construed as encompassing declarations made under Article 36, paragraph 2, of the Statute of the Court – with the result that when both parties to a dispute have made such declarations, there exists an agreement between them, within the meaning of Article 282 of the Convention, to submit their dispute to the Court. Such interpretation was confirmed by an analysis of the travaux préparatoires of UNCLOS, and was undisputed by the Parties, who accepted that their two optional clause declarations under Article 36 of the Statute constituted an agreement on a procedure that entails a binding decision, namely a judgment by the Court. 

But the difficulty in the case stemmed from the fact that Kenya’s optional clause declaration contained a reservation excluding the Court’s jurisdiction with respect to “disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”. Kenya argued that Part XV of UNCLOS amounted to an agreement between the Parties to have recourse to some or other method or methods of settlement within the meaning of its reservation, which therefore applied in this case, with the effect of excluding the Court’s jurisdiction.

The Court was thus faced with a situation of double exclusion or “negative cross-reference”: on the one hand, an optional clause declaration made under Article 36 of the Statute of the Court which however expressly excluded from the Court’s jurisdiction disputes with respect to which the Parties agreed on another method of settlement, namely, according to Kenya, the procedures provided for in Part XV of UNCLOS; and on the other hand, an acceptance by both Parties of the jurisdiction of an arbitral tribunal under Part XV of UNCLOS, one provision of which (Article 282) states that the dispute settlement procedures laid down in Part XV do not apply when the parties agreed on another procedure leading to a binding decision, which is the case of the two optional clause declarations made by the Parties under Article 36, paragraph 2, of the Court’s Statute. This relationship between the Parties’ optional clause declarations and Part XV of UNCLOS was described by the Parties as potentially giving rise to circularity, because Kenya’s reservation to its optional clause declaration could lead each of the two possible basis for the Court’s jurisdiction to exclude each other. Each Party attempted to break this “cercle vicieux”, but of course the Parties did it in opposite ways.

In its judgement, the Court decided that in such a situation, its jurisdiction based on Article 36, paragraph 2, of the Statute took precedence over any jurisdiction based on Part XV of UNCLOS. It must be emphasized that in its reasoning, which can be found at paragraphs 121 to 132 of the judgement, the Court did not propose a general interpretation of Part XV of UNCLOS, but rather responded to very specific circumstances. The Court concluded that it had jurisdiction to entertain the case before it on the basis of the Parties’ optional clause declarations. That conclusion was reached on the basis of an interpretation of Article 282 of UNCLOS and considering in particular the travaux préparatoires of the Convention. It seems clear that, should the declaration of Kenya have specifically excluded disputes relating to maritime delimitations or more generally disputes concerning the law of the sea, the Court would have found that it had no jurisdiction and that only the methods of dispute settlement provided for by UNCLOS were applicable.

Prof. Alina Miron
The first use of the mechanism of compulsory conciliation under Annex V of UNCLOS by Timor Leste was undoubtedly a resounding success, though the process was not devoid of any obstacles (Australia was at first unwilling to engage in conciliation). Professor Oxman, what are according to you the lessons which can be learnt from this first experience? How different from the judicial mechanisms were the commission’s functions and procedures?

Professor Bernard H Oxman:
We must begin by congratulating both the parties and the conciliation commission on the signature on March 6, 2018 of the maritime delimitation treaty between Australia and Timor-Leste. There is, we trust, more good news to come in terms of formal processes and practical implementation of both the treaty and the comprehensive action plan agreed by the parties on August 30, 2017 in the course of the conciliation process. And we look forward to the forthcoming release of the Commission’s final report.[1]
Conciliation is typically viewed as a process to which a dispute is submitted by agreement of the parties after a dispute arises. Among the reasons is that conciliation does not result in a legally binding judgment or award.
The UN Convention on the Law of the Sea (UNCLOS) nevertheless contains advance agreement to conciliation of certain types of disputes that have been excluded from compulsory arbitration or adjudication.[2] It is accordingly important to bear in mind that the broader the competence of a conciliation commission in that particular context, the broader may be the implicit exclusion from compulsory and binding arbitration or adjudication under the Convention, perhaps especially in the context of the text on maritime boundary disputes.[3] This in turn may lead to an unusual situation in which both parties in such a conciliation process, albeit for very different reasons, may have an interest in a broad interpretation of a conciliation commission’s competence.
In its decision on competence, the commission indicated that its competence includes transitional matters pending delimitation.[4] In this connection I note that no court or arbitral tribunal has yet to decide that a declaration under Article 298(1)(a) of UNCLOS excludes jurisdiction with respect to the obligations of the parties to exercise restraint prior to delimitation of their overlapping entitlements. That obligation arises not only under paragraph 3 of Articles 74 and 83 but under other provisions of UNCLOS as well, including those that refer to the Charter of the United Nations[5] and international law as well as the basic principle of due regard to the rights and interests of other states[6] and the prohibition on abuse of rights.[7] It may be particularly pertinent to note that the ICJ recently had the occasion to recall the wise counsel of the PCIJ in 1927 that, in making jurisdictional decisions involving alternative fora, we should be wary of “a negative conflict of jurisdiction involving the danger of a denial of justice.”[8]
Because the object of conciliation differs from that of arbitration and adjudication, the procedures of conciliation differ as well. Timor-Leste made clear during the hearing on competence that it “do[es] not think that these proceedings should be conducted as if they are international litigation at all.”[9] In the same vein, at the treaty signing ceremony on March 6, the chairman of the Conciliation Commission stated, “This conciliation was a brave new world for all of us, even for those of my fellow Commissioners who have spent much of their careers at the UN, the International Court of Justice, the International Tribunal for the Law of the Sea, the International Law Commission, the International Maritime Organization, and countless international arbitration tribunals.”
It is already clear from the public record that the nature of this Commission’s work at different times fell at different points in a continuum extending from arbitration to mediation. The hearings and decision on competence certainly have the feel of an arbitration. There the similarity ends. As the chair noted, “The Commission is not here to decide the Parties’ dispute, but to help them find an agreement that is both fair and achievable, in accordance with the UN Convention on the Law of the Sea.”[10]  The myriad meetings held in multiple cities with the parties, and on some occasions with a joint venture entity as well, are repeatedly described “as part of a structured dialogue”. Toward the very end of the process, the Commission, with expert assistance, presented the parties with an economic analysis of alternative options for moving forward with the joint development of part of the area. We are clearly quite far afield from adjudication or arbitration, while undoubtedly well within the scope of facilitating the ability of the parties to reach agreement.
I conclude by noting that, insofar as the public record indicates at this juncture, the Commission, wisely in my view, did not address sub-paragraph a(ii) of Article 298, paragraph 1, of the Law of the Sea Convention as such. That paragraph concerns what comes after the conciliation. Hopefully the agreement reached by the parties renders those questions moot. 


President Jin-Hyun Paik

I just want to make one comment on this question, whether, in light of the success of conciliation in Timor Leste v. Australia case, conciliation can be an alternative to adjudication or arbitration. I think it is a good question. I agree with you that the latest conciliation has been a big success, and that this is certainly a positive development in terms of dispute settlement. Now States have another option for the settlement of their dispute. That being said, adjudication, in my view, has two functions :
-       the first is, of course, settlement of disputes: it is a very important function to settle disputes by applying law.
-       the second function is: adjudication, especially for the law of the sea, is an important means to protecting the integrity of the Convention regime.
You know that the UNCLOS is a product of a package deal. It represents a very complex compromise and balance between diverse interests among States. The Convention therefore doesn’t allow reservations. Also, the Convention comprehensively deals with many issues relating to the use and protection of our ocean. As such, the Convention includes many rules which are not very clear, or left intentionally ambiguous, and many gray areas as well. In light of this nature of the UNCLOS, part XV of the Convention, especially the Section 2 on compulsory procedure, is extremely important to hold together the entire edifice of the Convention which could easily fall apart if different countries start to interpret provisions of the Convention as they like. So there should be a judicial mechanism, which authoritatively interprets and applies provisions of the Convention.   This function of adjudication is crucial in guarantying the integrity of the Convention. This function cannot be expected from conciliation. Of course, modern conciliation has been significantly judicialized. The five members of the Conciliation Committee in Timor Leste v. Australia case were all lawyers, as professor Oxman said; they are lawyers, judges, members of International Law Commission and so on. But still, conciliation is conciliation. Conciliation is basically a diplomatic means of dispute settlement, not a judicial means. The bottom line is negotiation between the parties with the assistance of the conciliation commission. Therefore, there is a fundamental difference between conciliation and adjudication. Yes, for dispute settlement, conciliation is an addition to adjudication or arbitration. But, for authoritative interpretation or application of the Convention, I think that it is something which can be carried out only by adjudication.
If I may just add one point with respect to what may be called the Asian approach toward dispute-settlement, the conciliation can be a good option for Asian countries. As I happened to be President of Asian Society of International Law, I had an occasion to examine Asian attitude. Of course, in the past, I may say that Asian attitude toward international law and institutions has been rather passive. However, there has been a significant change over past twenty years or so. Now, Asian countries are more confident about a judicial approach to their problems or disputes. You can tell that there is a significant increase in terms of the number of disputes submitted to international courts and tribunals by Asian countries. If you look at the nature of those disputes, you would realize that a tremendous change has taken place to the attitude of Asian countries over past two decades. Today, I don’t see much difference between Asian States and non-Asian States in terms of attitude toward international law and international dispute settlement. It is a very positive development, in my view, that Asian countries today embrace international law and institutions more than before.

Prof. Alina Miron:
Director Agusman, what are your views on the architecture of Part XV of procedures for settling maritime disputes? On substance, do you think that the archipelagic status (which is among the innovations brought by UNCLOS), warrants a particular treatment in maritime delimitation? So far, judges tended to ignore straight and archipelagic baselines when they drew the provisional equidistance line (like for instance the ICJ in Costa Rica v. Nicaragua (2018), but also in Qatar v. Bahrain and the arbitral tribunal in Barbados v. Trindade and Tobago).


Dr. iur. Damos Agusman[11]

 The conclusion of the Law of the Sea Convention in 1982 (the Convention),  highlighted by the emergence of a new maritime zone (EEZ) and the extension of the breadth of territorial sea from three to twelve nautical miles,  has required Indonesia to adjust its maritime boundaries. As any other coastal State, Indonesia is entitled to all maritime zones as provided by the Convention and therefore needs to draw the boundaries for the respective zone in accordance with its provisions. Geographically, Indonesia is bordered by ten neighboring States where the maritime zones overlap.   As prescribed by the Convention, Indonesia shall enter into negotiation with its neighbors to reach an agreement. This Paper will explain how Indonesia addresses the issue.

I. Boundaries Negotiation for Archipelagic Struggle
Indonesia began negotiation on maritime boundaries in 1969 with its immediate neighbors, Malaysia and Singapore, for a specific reason. Following the Djuanda  Declaration in 1957, where Indonesia unilaterally declared itself as an archipelagic State by drawing straight baselines connecting its outermost points of the outermost islands, most countries have expressed their protests  against the unilateral move. The most affected country was Malaysia as the expansion of the breadth of the maritime zones generated from the archipelagic baselines affected   not only its immediate maritime zones but also cut into Malaysia’s high seas access  previously enjoyed by Malaysia between its Western peninsula and Borneo.
Having failed to gain recognition of its newly declared archipelagic status at the United Nations Conference on the Law of the Sea in 1958 and 1960, Indonesia approached Malaysia in order to secure Malaysia’s recognition with a view of maintaining good neighborliness. The negotiation took less than two weeks (9-22 September 1969) and resulted in the first boundary agreement on continental shelf with Malaysia in 1969 stretching from the Strait of Malacca to the South China Sea. The eagerness to gain Malaysia’s recognition for Indonesia’s archipelagic State claim had induced the Indonesian delegation to give more conciliatory and even generous approach to negotiation. Hence, the agreement appeared to be in favor of Malaysia.
The case with Malaysia is only one example which shows how a negotiation on maritime delimitation might be concluded in a quick manner when a special interest was at stake. The records suggest that Indonesia, in order to obtain recognition of its archipelagic State’s claim , has concluded delimitation agreement in a relatively quick fashion with its other neighbors. In 1971, for example, Indonesia settled the negotiations with three countries all together, i.e. Papua New Guinea, Thailand and a tri-junction point agreement with Thailand and Malaysia. In the period of 1972-1975, agreements were reached with Australia, Singapore, and India. These maritime boundary agreements have strengthened the legal position of Indonesia when advancing the archipelagic proposal during the Third United Nations Conference on the Law of Sea. The adoption of the archipelagic State regime under the Convention was therefore not contested by its neighbors.

 II. Boundaries Negotiation under UNCLOS 1982
The recognition of the archipelagic State regime by Indonesia’s neighbors    before the conclusion of the Convention, has apparently led Indonesia to switch into a ‘normal’ position in negotiating the remaining boundaries. There was no more special interest attached to the negotiations except a mutual interest based on equal respect between the countries. Since then, there was no agreement reached by Indonesia until 2003, when Indonesia and Vietnam settled their continental shelf boundary after thirty-year negotiation (1971-2003).
The Boundaries Agreement with Australia in 1997, which was negotiated only within a year, might be an exception. In this particular case, a special interest was again attached to Indonesia i.e., at that time, to acquire recognition from Australia for the integration of East Timor into Indonesia. The boundary lines were hugely in favor of Australia with the adoption of, among others, the outdated principle of natural prolongation by which the continental shelf of Australia encroached the EEZ of Indonesia.
With Malaysia, Indonesia persistently asserts the view that the existing existing continental shelf lines shall not automatically serve as the EEZ lines[12]. Malaysia has made a declaration upon its ratification of the Convention stating that the single line principle shall apply to both regimes. Indonesia has made it clear to to all neighbors that have concluded continental shelf line with Indonesia, that an EEZ agreement is still required. Whether the EEZ line will coincide with the existing continental shelf line or not would be another matter. The reason is simple, and it is rooted in the objective of the delimitation itself, i.e. equitable solutions. As explained above, some shelf lines were drawn by applying the now outdated principle of natural prolongation. Some others were on the basis of Indonesia’s courtesy for the archipelagic State recognition. To impose these lines as EEZ lines would result in inequitable solutions.
To date, boundaries with Papua New Guinea are the most complete, i.e. covering the territorial sea, EEZ and continental shelf. Negotiations are still ongoing on for the remaining areas with Malaysia, Vietnam, India, Singapore, Thailand, Australia, and the Philippines. Meanwhile, negotiations with Timor Leste and Palau have yet to recommence after a vacuum.
This shows that reaching an agreement in maritime boundary delimitation is not always an easy exercise. Although case law provides a three-step approach in delimitation process, it is hardly used in complete manner in the negotiation process. Furthermore, States may have different legal views in understanding the basic concept of maritime delimitation.

III. Boundaries Negotiation using Archipelagic Baselines
The most delicate issue for Indonesia is the very fact that Indonesia is an archipelagic State with peculiar geographical features. As stipulated by the Convention, Indonesia has declared itself as an archipelagic State and thus defined its archipelagic straight baselines in accordance with the rules. While the Convention and case law prescribe negotiators to start with (territorial sea) baselines, neighbors are not comfortable when dealing with Indonesia’s archipelagic straight baselines. Indonesia is of the view that an archipelagic State warrants a particular treatment in maritime boundary delimitation by using base points on archipelagic straight baselines. Some neighbors have contested by invoking the principle of “land dominates the sea” and regarded Indonesia’s proposal as entailing inequitable solution.
It is likely that the debate over the use of archipelagic straight baselines for delimitation will continue in the negotiation process. Some reasons account to it. First, there is no case law available as a guideline to address the issue. No case concerning the issue of delimitation by archipelagic baselines has ever been examined by the Court or Tribunal so far. Some jurisprudences such as the Trinidad v. Barbados arbitration case (2006) addressed the issue in a nutshell by simply stating that it is not baselines (including archipelagic baselines) that determine the orientation of the coastlines.
Second, some case law tends to diminish the role of baselines as the geometrically objective basis for drawing the provisional equidistant line. In Romania v. Ukraine case (2009), the Court selected and determined its own base points and took no account of the baselines defined by the parties, even where the lines were legitimate under the Convention. The case has led many scholars to doubt the geometrically objective nature of the first stage of the three-stage approach, and even to assume that there are four[13] instead of three-stage methods, saying that the selection of base points is actually the first stage. Similarly, in Nicaragua v. Costa Rica (2018), the Court set a condition where base points should be situated on a ‘natural coast’ and ‘solid land’ that have a relatively higher stability than points placed on sandy features by ignoring the straight baselines legitimately determined by the Parties. In this regard the base points selected was not from baselines and thus ignoring the notion of “nearest points on the baselines” as envisaged in Article 15 of the Convention.
Although the Court’s judgment in this case shall not be interpreted as directly relevant to the case of archipelagic States, the judicial trend might affect the relevance of using ‘base points on archipelagic baselines’ in delimitation process. As the length of archipelagic lines may be up to 125 Nm and mostly extended further to seaward, most archipelagic ‘nearest points’ are situated on the sea far from the coasts/solid land. On the other hand, state practices by Indonesia and its neighbors however indicate an increasing trend of using archipelagic baselines for constructing the delimitation line. In the Agreement with Singapore in 2014, archipelagic baselines are used on the part of Indonesia against the normal base lines on the part of Singapore. With the Philippines in 2014 Agreement, as archipelagic States, both use their respective archipelagic baselines.

IV. The Way Forward: Third Party Settlement?
Encountered with such difficulties, it is most likely that a negotiation will fail to reach any agreement. In such scenario, how should Indonesia’s approach be? As held in most Asian countries, direct negotiation is preferable because maritime boundaries are still regarded by Indonesia as associated with sovereignty. For the public, including the Parliament, boundary delimitation is a highly political issue for which the ‘intervention’ of third party is not yet welcome. Indonesia sets multilevel negotiations in hierarchical manner. It starts from technical negotiation and, if deadlock, goes up to senior official and up to the highest level where necessary.
On the other hand, it is interesting to note that no state party in Southeast Asia has made a declaration to exclude maritime delimitation from compulsory procedure under the Convention, except Thailand. Indonesia has neither made such declaration nor chosen any means for the settlement of dispute under Article 287 (1) of the Convention. It is to say that while Indonesia prefers to have direct negotiation as the primary mode for settling the dispute, yet it opens the door for the other party to bring the case under the compulsory procedure. To date no case against Indonesia has been brought to a third-party dispute settlement mechanism under the Convention as the issue is still on the negotiating table and apparently the States concerned consider that the negotiations are not yet exhaustive.
The success of the Conciliation Procedure under the Convention by Australia and Timor Leste in 2018 concerning the delimitation in Timor Sea has drawn attention of many States in the region, including Indonesia. Compared to arbitration or other judicial dispute settlement, conciliation is more flexible and conciliatory in nature. It is more “friendly” and comfortable to States that not in favor of dispute settlement decision as it imposes no binding outcome. The Conciliators’ proposal seeks a win-win solution and thus secures a face-saving outcome. These are compatible to Asian culture and, at the end, might reconcile the absolutist position of the respective parties.
Like other dispute settlement mechanism, the said Conciliation appears to apply indispensable third party rule. Prior to the conclusion of the conciliation proceeding, Indonesia has made it clear to both parties through diplomatic channels that the outcome of the Conciliation shall not prejudice the sovereign rights of Indonesia over the maritime zones to which Indonesia is entitled to under the Convention. Both parties have apparently given due respect to Indonesia’s maritime interest by drawing the line in a manner not encroaching Indonesia’s waters.
Nevertheless, it is unlikely that conciliation procedure is an option for Indonesia, at least for the time being. It is because none of the negotiations has reached an exhaustive stage, even if any, continued negotiation at the higher level is preferable by, in the same time. managing potential conflicts that might arise on the ground. Time constraint is not at stake.

***

Prof. Alina Miron
Questions of maritime entitlements are brought not only under UNCLOS umbrella. The Western Sahara Campaign UK case before the ECJ is interesting on more than one account. In this case, the Advocate General considered that the bilateral treaty between EU and Morocco, which allowed European fishermen to fish off Western Sahara’s maritime areas, violated the latter’s rights of self-determination.  The Court did not follow this line of reasoning, but eventually agreed that the treaty could not lawfully apply to these areas. How do you appreciate recourse to a regional court there were UNCLOS does not seem to provide for an answer? Do you imagine any circumstances under which Western Sahara (or other de facto States) might have access to UNCLOS mechanism?

Alison Macdonald QC
Thank you, Professor Miron: it’s an honour and a pleasure to contribute to today’s discussion. To set the scene, I will begin with a bit of background about what the Western Sahara[14] decision was and how it arose. The issue of self-determination came before the Court of Justice of the European Union (“CJEU”) by an interesting route, as a reference on a point of law from the English High Court. Western Sahara was not itself a party to or litigant in the case; the claim in England was brought by an NGO, the Western Sahara Campaign (“WSC”), against the Secretary of State. The WSC sought to challenge the UK’s implementation of a fisheries agreement which had been concluded between the EU and Morocco, which on its face allowed fishing vessels registered in EU Member States to fish off the coast of, among other locations, Western Sahara. The English High Court decided to refer the question of the validity of the treaty to the CJEU, as it was entitled to do under the EU Treaties. So that is how the status of Western Sahara, and the right of its people to self-determination, fell to be decided on in litigation arising from the UK: this was the first case in which the preliminary reference procedure had been used to obtain a ruling from the CJEU on the validity of an international agreement concluded by the EU. 

As you know, when a case is referred to the CJEU, an Advocate General is assigned, and issues a reasoned opinion setting out how he or she would decide the case. Such opinions are addressed to the Court, but are publicly available as soon as they are issued. In this case, in a really interesting and richly-analysed opinion, Advocate General Wathelet concluded that the treaty breached EU law because it violated fundamental principles of international law, foremost among these the right of the people of Western Sahara to self-determination. The Advocate General’s opinion very much intrigued commentators, of course, and the Court’s decision was keenly awaited.

That decision was recently handed down. The reasoning of the Court was a little narrower than that of the Advocate General, but still very interesting. As I explained, the Advocate General had said that the treaty violated the right of self-determination which the people of Western Sahara enjoy under international law, so it’s incompatible with EU law. The Court reasoned in a slightly different way. Instead of holding the treaty to be invalid, it emphasised that legal acts of the EU must be interpreted in conformity with international law as far as possible. So in a sense it gave the EU more of the benefit of the doubt than the Advocate General had done, and interpreted the text of the treaty on the basis that it was not intended to violate international law. So, the Court reasoned, the geographical scope of the treaty should be interpreted as excluding the coastline of Western Sahara (since the grant of fishing rights in that area would violate the right of self-determination). This meant that the treaty remained in force, but with Western Sahara carved out of its scope in order to give effect to the objective which the Court attributed to the EU, namely abiding by international law.

This is a very interesting and important decision for reasons which go beyond the scope of today’s panel. But I think, coming back to our focus on the law of the sea, we can  immediately see a contrast with the UNCLOS mechanism. As many of you will have seen, the majority of the Annex VII Tribunal in the case of Mauritius v United Kingdom[15] – one of those who dissented, Judge Wolfrum, is in our audience today – decided that they didn’t have any jurisdiction under UNCLOS over Mauritius’ claim to the Chagos Archipelago, which, again, was heavily based on the right of self-determination. The CJEU has been criticised recently for having a rather expansive approach to its remit – whether those criticisms are right or wrong, on this particular issue there is a clear difference in scope between the EU legal framework and UNCLOS.

Returning to the question of procedure, and to answer Professor Miron’s question about access of non-State entities to UNCLOS, I began by telling you how Western Sahara got to the CJEU so that you could see that it was actually quite a quirky process that led to this issue coming up before the Court. But I think it is potentially significant that under Article 305 of UNCLOS, the Convention is open for signature, not only by States, but by other categories of territory, including territories which have been recognised by the UN as enjoying full internal self-government but which have not yet attained full independence in accordance with General Assembly resolution 1514 (XV), as well as international organisations.

So Article 305, while not covering every form of territory, certainly embodies a more inclusive approach than many other treaties, opening membership up significantly beyond the traditional domain of sovereign States. This creates the possibility that emergent States – including those whose independence is a matter of struggle or controversy – along with supportive international organisations may take advantage of the dispute settlement provisions offered by UNCLOS.

Prof. Alina MIRON
Dear all, this concludes our panel on maritime delimitation. At the beginning, I have said that flexibility is the best world to describe the dispute settlement mechanisms in the Convention. I would just add that many ways remain to be explored until UNCLOS has revealed its full potential.
Please join me in thanking the panelists for these enlightening clarifications and their stimulating reflections. And to the organizers, and in particular Tafadzwa Pasipanodya and Peter Tzeng from Foley Hoag and Angel Horna from the Permanent Mission of Peru to the United Nations for putting up such an outstanding panel.


[1] The Report and Recommendations of the Compulsory Conciliation Commission between Timor-Leste and Australia on the Timor Sea was subsequently issued on May 9, 2018 (PCA Case No. 2016-10). Annex 21 to the Report contains the Comprehensive Package Agreement of August 30, 2017. Annex 28 contains the Treaty signed by the Parties on March 6, 2018. The report, annexes, and other documents and information regarding the conciliation cited below are available on the PCA website.
[2] United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 297, paras. 2(b), 3(b), Art. 298, para. 1(a), 1833 UNTS 397 (hereinafter UNCLOS).
[3] UNCLOS, Art. 298, para 1(a).
[4] Conciliation Commission Decision on Australia’s Objections to Competence, Sept.  19, 2016, paras. 93-99.
[5] UNCLOS, Arts. 279, 301.
[6] See Oxman, The Principle of Due Regard, in The Contribution of the International Tribunal for the Law of the Sea to the Rule of Law: 1996-2016, p. 108 (International Tribunal for the Law of the Sea, Brill/Nijhoff, 2017).  
[7] UNCLOS, Art. 300.
[8] Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Preliminary Objections, Judgment, para. 132, 2017 ICJ Rep. -- (Feb. 2), citing Factory at Chorzów (Germ. v. Pol.), Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 30.
[9] Conciliation Commission Decision on Competence, note 4 supra, para. 22, citing Competence Hearing Tr. (Final) 349:10-12.
[10] PCA Press Release, April 3, 2017.
[11] Director General for Legal Affairs and Treaties, Ministry of Foreign Affairs, Indonesia. This Article is purely his academic and personal views.
[12] Damos D. Agusman & Gulardi Nurbintoro (2015) The single line maritime boundaries of Malaysia and Indonesia in the Malacca Strait?, Australian Journal of Maritime & Ocean Affairs, 7:3, 223-227

[13] S. Fietta and R. Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation, OUP, 2015, 573-585.
[14] The Queen, on the application of Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for the Environment, Food and Rural Affairs, Case C-266/16.
[15] The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA Case No. 2011-03.