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.
