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From the North Sea to the Bay of Bengal: Maritime Delimitation at the International Tribunal for the Law of the Sea

Published on March 23, 2012        Author: 

Last week, the International Tribunal for the Law of the Sea delivered its judgment in the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar). Although Bangladesh and Myanmar started negotiations for the delimitation of their maritime boundaries since 1974, when Bangladesh became independent from Pakistan, the boundary had still to be settled by 2009, when Bangladesh initiated the proceedings. The dispute was fuelled in 2008 when, following the discovery by Indian and Myanmar of gas deposits, Myanmar authorised exploration in the contested area. Bangladesh replied by sending its warships in the disputed area. Luckily, conflict was avoided following intense negotiations between the parties and the dispute has now been solved peacefully by having recourse to the dispute settlement provisions (Part XV) of the United Nations Convention on the Law of the Sea (UNCLOS).

The decision established the boundary of the territorial sea, exclusive economic zone and continental shelf [including the area of continental shelf beyond 200 nautical miles (nm) from the baselines], between the two States in the Bay of Bengal. It also addresses navigation in the territorial waters of Bangladesh by vessels of Myanmar and discusses the rights and duties of the parties in the area where the continental shelf of Bangladesh beyond 200 nm overlaps with the water column within 200 nm from the coast of Myanmar.

This case is the first to be decided between the two initiated by Bangladesh for the delimitation of its maritime boundaries with its neighbouring States, Myanmar and India. As Dapo has already reported, delimitation of the Bangladeshi-Indian boundary has been submitted to arbitration. It is to be expected that, following the decision on the boundary, Bangladesh and Myanmar will now start exploitation activities in the bay of Bengal.

For those familiar with maritime delimitation, a quick glance at the map of the region will bring immediately in mind the geography of the North Sea continental shelf cases, decided by the ICJ in 1969. There are indeed at least three similarities between the two cases. Read the rest of this entry…

 
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A Response to Milanovic on Extraterritorial Application of Human Treaties: The Significance of International Law Concepts of Jurisdiction

Published on December 4, 2011        Author: 

Irini Papanicolopulu is Marie Curie Fellow, Faculty of Law, University of Oxford and a Senior Researcher in international law at the University of Milano-Bicocca (on leave).

In his book, Marko Milanovic addresses the fascinating topic of the extraterritorial application of human rights treaties. The strengths of this book are numerous. In a style that is clear, well-structured and captivating, the author engages in an in-depth analysis of the relevant provisions of the main human rights treaties as well as an analysis of the case-law produced by international courts and quasi-judiciary bodies in applying these provisions. The examination does not shy away from sensitive, complex, or dangerous topics, such as the policy considerations which often underlie treaty making and treaty interpretation or the unwelcome consequences of excessively broadening the scope of application of human rights treaties.  Marko Milanovic is not only aware of these and other problematic aspects, but honestly acknowledges them and bravely engages in their discussion. He is not afraid of acknowledging the inconsistencies, drawbacks or limitations of the different approaches – even his own! But this is not all; he also goes further and proposes an alternative model for the determination of the scope of human rights treaties, intended to ensure that considerations of effectiveness do not curtail excessively the aspiration to universality.

One of the greatest merits of this book is that it finally provides order where there was confusion, especially at the time when it was written but also, to some extent, after the European Court of Human Rights decisions in the Al-Skeini and Al-Jedda cases. The extensive and attentive discussion and evaluation of the territorial and personal concepts and their constituent elements is one such example. The taxonomy of the different meanings that the word ‘jurisdiction’ may assume in the human rights context is another. With respect to the latter point, the author rightly distinguishes between the meanings of jurisdiction under general international law and the notion of the same term in the context of determining the applicability of human rights treaties. Attribution of the power to legislate, enforce, or judge, indeed, is different from the actual exercise of the legislative, enforcement or judicial function by a state. Similarly relevant is the distinction between positive and negative obligations pending on States. The consequence is that negative obligations bind states whenever their agents act, irrespectively of the place and person addressed, while positive obligations require that there should be jurisdiction by the state. While the means used for reaching this result may benefit from further elaboration, in particular with respect to the textual analysis, the   conclusion itself appears unassailable.

The one point with which I have some difficulties is however the inference that the author draws from the distinction between different notions of jurisdiction, in combination with his distinction between positive and negative obligations of states. As the author poses it, there is jurisdiction when a state exercises power and:

‘This power is a question of fact, of actual authority and control. Despite its name, it is not a legal competence, and it has absolutely nothing to do with that other notion of jurisdiction in international law which delimits the municipal legal systems of states’. (p. 53).

The conclusion is that one should completely disregard the ‘legal’ notion of jurisdiction, in favour of a purely factual one and that the application of human rights treaties ‘should never depend on naked title over a territory, but on actual power exercised over it’ (p. 61).

This thesis however brings with it some problems that do not seem to be sufficiently addressed. Read the rest of this entry…

 

Mauritius v. United Kingdom: Submission of the dispute on the Marine Protected Area around the Chagos Archipelago to arbitration

Published on February 11, 2011        Author: 

Irini Papanicolopulu is Marie Curie Fellow, Faculty of Law, University of Oxford and a Senior Researcher in international law at the University of Milano-Bicocca (on leave).

On 20 December 2010, Mauritius initiated proceedings against the United Kingdom under the dispute settlement provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (see report here). The dispute, to be submitted to an arbitral tribunal (since both States have opted for different dispute settlement methods under UNCLOS), concerns the creation by the United Kingdom of a marine protected area (MPA) up to the outer limit of the exclusive economic zone of the Chagos Archipelago. According to the notification and statement of claim,

Mauritius requests the Annex VII arbitral tribunal to declare, in accordance with the provisions of UNCLOS and the applicable rules of international law not incompatible with the Convention that, in respect of the Chagos Archipelago:

  • The ‘MPA’ is not compatible with the 1982 Convention, and is without legal effect; and/or
  • The United Kingdom is not a ‘coastal state’ within the meaning of the 1982 Convention and is not competent to establish the ‘MPA’; and/or
  • Only Mauritius is entitled to declare an exclusive economic zone under Part V of the 1982 Convention within which a marine protected area might be declared.

Background to the dispute

The Chagos Archipelago, situated in the Indian Ocean, consists of some 65 islands for a total of approximately 60 sq km, generating marine areas that cover 54,400 sq km of ocean; the biggest island, Diego Garcia, has a surface of 44 sq km (see here and here). Formerly under UK colonial rule, since 1965 the Chagos Archipelago forms the British Indian Ocean Territory (BIOT). In the period 1967-1973 the inhabitants of the islands were forcibly displaced to Mauritius, Seychelles and the United Kingdom and were prevented from returning to the archipelago. This forced removal has been challenged before the courts of the United Kingdom and the United States and a case is now pending before the European Court of Human Rights. Read the rest of this entry…