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Home Law of the Sea Archive for category "Maritime Delimitation"

The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

Published on February 8, 2017        Author: 

The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate before the French National Assembly).

Tromelin is a flat and small feature, about 1,700 metres long and 700 metres wide, with an area of about 80 hectares (200 acres). Its flora is limited, while the site is known to host significant numbers of seabirds. There is no harbour nor anchorages on the island, but a 1,200-metre airstrip, and there appears to be no continuous human presence.

Tromelin was discovered by a French navigator in 1722, and France today claims sovereignty over it by virtue of historical title (discovery of terra nullius) dating back to that date. The islet was the scene of a sad – and little known – episode of history as the place where approximately 60 Malagasy men and women were abandoned for 15 years in the 18th century after a French ship transporting slaves eschewed on the island. Most of the slaves died within a few months. The survivors were finally rescued in 1776, when Bernard Boudin de Tromelin, captain of the French warship La Dauphine, visited the island and discovered seven women and an eight-month-old child. Captain Tromelin also raised a French flag on the island – and his name was given to it.

French possession of Tromelin was interrupted by Britain which took control of the island in 1810. Then in 1954, the British gave their consent to France’s effective control over Tromelin. But sovereignty over Tromelin is still disputed, and the island has been claimed by the newly independent Mauritius since 1976, and reportedly also by Madagascar and the Seychelles (see V. Prescott, ‘Indian Ocean Boundaries’ at 3462-63). The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (cogestion) of the island and of surrounding maritime areas. Read the rest of this entry…

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The Admissibility of a Claim of Continental Shelf Rights Beyond 200nm Before an International Tribunal Absent a Recommendation by the CLCS: A Few Words About the ICJ’s 2016 Judgment in Nicaragua v. Colombia

Published on May 13, 2016        Author: 

The International Court of Justice (ICJ) recently set the arena for a timely discussion of the question of the admissibility of a claim of continental shelf rights beyond 200 nm, absent a recommendation by the Commission on the Limits of the Continental Shelf (CLCS). The litigation concerned the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (NICOL II). In its 17 March 2016 Judgment on Preliminary Objections, the ICJ dismissed Colombia’s preliminary objections against the jurisdiction of the Court and the inadmissibility of Nicaragua’s first claim. While the ICJ upheld Colombia’s contentions against the admissibility of Nicaragua’s second submission – a rather unusual request for the establishment of a provisional regime of conduct in the area of overlapping entitlements pending delimitation – the case will now move to the merits with respect to Nicaragua’s request for the Court to adjudge and declare:

“The precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its Judgment of 19 November 2012.”

This post will focus on the decision of the ICJ to reject, by 11 votes to 5, Colombia’s overarching claim on inadmissibility. ICJ’s 2016 ruling seems to definitely settle the doctrinal debate concerning admissibility of maritime rights beyond 200 nm without exhaustion of the procedure in UNCLOS Article 76(8). Read the rest of this entry…

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A New Theory for Enforcing ICJ Judgments? The World Court’s 17 March 2016 Judgments on Preliminary Objections in Nicaragua v. Colombia

Published on April 6, 2016        Author: 

The International Court of Justice simultaneously issued two intriguing judgments on 17 March 2016, both involving applications filed by Nicaragua against Colombia, and both of which have some nexus to the Court’s 19 November 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia). To recall, the Court in its 2012 Judgment had affirmed Colombia’s sovereignty over seven islands, drawn a single maritime boundary delimiting the continental shelf and exclusive economic zones of Nicaragua and Colombia, and rejected Nicaragua’s request to have Colombia declared in breach of international law for allegedly denying Nicaragua’s access to natural resources to the east of the 82nd meridian. (2012 Judgment, dispositif, para. 251)

Thereafter, Nicaragua instituted two Applications on matters appearing to flow from, but alleged to be extraneous to, the Court’s 2012 maritime delimitation Judgment. In its 2013 Application in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Application on Sovereign Rights and Maritime Spaces Violations”], Nicaragua alleged, among others, that Colombia violated Nicaragua’s rights pertaining to maritime zones defined under the Court’s 2012 maritime delimitation Judgment and that Colombia had also breached the obligation not to use or threaten to use force. On the other hand, in its 2013 Application in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Application”], Nicaragua requested the Court to declare “the precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to them beyond the boundaries determined by the Court in its Judgment of 19 November 2012” [hereafter, “first Request”], as well as “the principles and rules of international law that determine the rights and duties of the two States in relation to the area of overlapping continental shelf claims and the use of its resources, pending the delimitation of the boundary between them beyond 200 nautical miles from Nicaragua’s coast.” [hereafter, “second Request”] (Continental Shelf beyond 200 NM Application, para. 12).

At the core of Colombia’s preliminary objections in both cases was the argument that the Court had already resolved the alleged matters in the 2012 Judgment, and accordingly, incidents related to these matters thereafter ought to be enforced under the canonical rule in Article 94(2) of the UN Charter (“[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”). Nicaragua’s theory was essentially based on the characterization of fresh disputes with Colombia that may have some factual/legal nexus with the 2012 Judgment, but were, ultimately, left undetermined or outside the purview of the 2012 Judgment. It is highly interesting to see how this theory mainly prevailed in the Court’s 17 March 2016 Judgment on Preliminary Objections in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Sovereign Rights and Maritime Spaces Violations Judgment on Preliminary Objections”] and its 17 March 2016 Judgment on Preliminary Objections in the Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Judgment on Preliminary Objections”]. The Court’s unprecedented acceptance of jurisdiction for certain claims in both of these Nicaraguan applications certainly provoke new lines of inquiry on lines of demarcation between issues of enforcement of the Court’s judgments, and related but separate claims that could be instituted fresh with the Court, without triggering the rule on enforcing ICJ judgments through the more political forum of the Security Council. How was the Court able to assume jurisdiction in these cases, and what do these decisions bode for the settled rule on the finality of the Court’s judgments?

Read the rest of this entry…

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The Continental Shelf Delimitation Agreement Between Turkey and “TRNC”

Published on May 26, 2014        Author: 

nicholasioanNikolaos A. Ioannidis is a PhD candidate in Public International Law at University of Bristol.

Last month, Turkey submitted a note verbaleto the Secretary-General of the United Nations setting out the geographical coordinates of its continental shelf in the Eastern Mediterranean, as established by a delimitation agreement with the “Turkish Republic of Northern Cyprus” (“TRNC”). The agreement was signed on 21 September 2011 and ratified by the Turkish government on 29 June 2012. A map published by the Turkish Ministry of Foreign Affairs depicting the agreement is pictured below. (The reasons why the “TRNC” is in quotation marks will be elaborated below.) By transmitting this document to the UN Secretary-General, Turkey sought to achieve the publication of the agreed coordinates in the Law of the Sea Bulletin (LSB), where official submissions by states regarding the law of the sea are published. Although Turkey has not acceded the UN Law of the Sea Convention (‘LOSC’), it acted in accordance with article 84(2) LOSC (due publicity of charts or lists of geographical coordinates regarding continental shelf delimitation). Nonetheless, the submission of Turkey was not listed as an official deposit on the website of the Department of Oceans and the Law of the Sea (DOALOS).TRNC

The Turkish approach on the regime of islands

The delimitation agreement outlines some of Turkey’s longstanding positions on the law of the sea. It deals only with the continental shelf and does not provide for the delineation of an exclusive economic zone (EEZ). While there is nothing precluding coastal states from choosing which maritime zones to claim and/or to delimitate, Turkey’s choice not to delimit an EEZ with the “TRNC” alludes to the Turkish position that islands in certain regions (implying the Aegean Sea) should not be entitled to claim maritime zones of their own other than territorial sea or should have reduced capacity to generate such zones. This stance was formulated in the context of the dispute between Turkey and Greece concerning sovereignty over the maritime space of the Aegean Sea;  since the 1970s, Turkey has sustained that the Aegean islands are situated on the continental shelf of Anatolia (Turkey) and, consequently, do not have a continental shelf of their own. This matter was an apple of discord between the Turkish and the Greek delegations over the course of the Third United Nations Conference on the Law of the Sea (‘UNCLOS III’). In the end, by virtue of article 121(2) LOSC, the Conference recognised the rights of islands to generate maritime zones. Article 121 LOSC reflects customary law (ICJ, Nicaragua v Colombia (2012), para 139) and, accordingly, applies to non-states parties as well.

Turkey’s resentment at the provisions on the regime of islands was one of the reasons it voted against and has not yet acceded to the LOSC (see Plenary Meetings 160 and 189). For the sake of clarity, it should be pointed out that when it comes to maritime delimitation, the maritime space an island can claim may be diminished depending on the circumstances (see, e.g., Anglo-French Arbitration 1977, Tunisia v Libya 1982, Black Sea Case 2009, Bangladesh/Myanmar 2012). Therefore, although in principle islands are not deprived of the rights bestowed on them by article 121 LOSC, they may not always be granted full effect in maritime boundary delimitations. However, islands cannot be denied their capacity to generate maritime zones and/or to be given decreased effect a priori;each case should be scrutinised according to its own unique terms. In any event, the Turkish argument that the Greek islands in the Aegean are located on the continental shelf of Turkey has been severely emaciated by the introduction of the EEZ concept and the prevalence of the “distance criterion” of maritime delimitation over the “geological” one. The distance criterion provides that the breadth of the maritime space afforded to a state should be calculated according to a fixed distance measured from the coast. The geological criterion, by contrast, would permit a state to claim the sea waters lying over the “natural prolongation” of its territory irrespective of the distance from its coastline. In the Nicaragua v Colombia case (2012), the ICJ put an end to the argument that one state’s islands cannot have their own continental shelf because they are located on another state’s continental shelf:

“The Court does not believe that any weight should be given to Nicaragua’s contention that the Colombian islands are located on “Nicaragua’s continental shelf”. It has repeatedly made clear that geological and geomorphological considerations are not relevant to the delimitation of overlapping entitlements within 200 nautical miles of the coasts of States.” (para 214).

The delimitation agreement

According to its well-established position that islands should not have the capacity to claim extended maritime zones when facing a bigger coastline, Turkey holds the view that Cyprus, being an island, has lesser effect in terms of maritime delimitation than the longer Turkish coastline, which is opposite the northern coast of Cyprus. Hence, as the agreement provides, the continental shelf delineation was carried out in accordance with equitable principles, resulting in a delimitation line closer to Cyprus at some points, which gives Turkey a more extensive maritime space than that allocated to the “TRNC”. Turkey was a fervent advocate of the equitable principles/relevant circumstances method during UNCLOS III, vehemently rejecting the median line/special circumstances method (UNCLOS III, Negotiating Group 7). The “equitable principles” method, which was elaborated in the 1969 Continental Shelf cases, stipulates that all relevant factors should be considered in order to reach an equitable result; however, the Court gave no further guidance as to how such an equitable result would be reached, rendering this method equivocal. Read the rest of this entry…

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OUP Debate Map on “Disputes in the South and East China Seas”

Published on February 7, 2014        Author: 

Readers interested in the territorial and maritime boundary disputes between China and her neighbours in the South and East China Seas will welcome the creation by Oxford University Press of a “Debate Map” on the topic. The  “Debate Map” is a valuable way of keeping track of scholarly commentary, in journals and blogs, on the range of issues related to those territorial and maritime disputes. It is essentially an index which categorises and:

maps scholarly commentary on the international law aspects of the conflicts in and around the South China and East China Seas, including maritime boundary disputes, the question of sovereignty over the Senkaku/Diaoyu islands, China’s recent announcement of an Air Defence Identification Zone, and the Philippines/China UNCLOS arbitration. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles.

Readers can “[u]se this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.” OUP has also made available a range of online OUP materials on these issues (see the Oxford Public International Law Page).

The current Debate Map is the third such Map created by the Law team at OUP. The first was on The Use of Force Against Syria and was noted by John Louth here. The second on the Prosecution of Heads of States and Other Senior Officials at the ICC was discussed by Merel Alstein here. These debate maps are regularly updated and as Merel explains “aim to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to  . . .”

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Ripples in the East and South China Seas: Aid, ADIZs, Aircraft Carriers, and Arbitration

Published on December 1, 2013        Author: 

0912ChinaSeaTerritory2In the past few weeks throughout November 2013, various incidents have sharply demonstrated China’s foreign policy preferences in relation to disputes with neighbors over the East and South China Seas (pictured above left, credit), as well as its self-perception of its broader hegemonic role in the Asian region.  I recently spoke on regulatory freedom and control under the new ASEAN regional investment treaties at the international investment law panel organized and led by Dr. Stephan Schill of the Max Planck Institute and Professor M. Sornarajah of the National University of Singapore, at the Fourth Biennial Conference of the Asian Society of International Law (AsianSIL) held in New Delhi, India from 14 to 16 November, 2013.  In the same conference, I witnessed firsthand the rare exchange  between China’s Judge Hanqin Xue of the International Court of Justice during the presentation made by my former University of the Philippines colleague Professor H. Harry Roque on the Philippine arbitration claim filed against ChinaIn a detailed reply after Professor Roque’s presentation, Judge Xue noted that there was no other Chinese scholar or delegate in the AsianSIL conference, and said she would thus take the opportunity to analyze the Chinese position on the Philippine arbitration.  She did stress, however, that her remarks were made in her personal capacity, and not in any way reflective of her views as a Member of the Court and certainly not representative of China’s official position on the South China Sea.)

First, Judge Xue observed that the questions in the Philippine claim, taken in their totality, in reality amount to territorial questions that fall well outside the scope of the subject-matter jurisdiction of the UN Convention on the Law of the Sea.  Second, she stressed that around forty states (including China) had not accepted compulsory jurisdiction under the UNCLOS dispute settlement procedure.  Third, she related her experiences as China’s Ambassador to ASEAN during the passage of the Declaration of the Code of Conduct on the South China Sea, where, in her view, the littoral States signing the declaration clearly assumed the obligation to resolve the South China Sea disputes through negotiations and not through compelled arbitration.  Finally, she expressed that China decided not to participate in the UNCLOS arbitration initiated by the Philippines because no country could have “failed to see the design” of the Philippine claim which “mixed up jurisdiction and merits”, and that it tended to complicate the full range of regional maritime issues and inhibit confidence-building measures between the seven States parties to the dispute.  Judge Xue stressed that all parties to the South China Sea dispute would do better to cooperate on issues gradually (such as, first, through rapid response disaster risk reduction in maritime disasters and maritime-related environmental hazards) to build confidence steadily among the States enough to reach multilateral agreement on joint resource management and resource uses over the disputed area.  Even though issued in her personal capacity, the remarks of China’s most senior international judge certainly suggests, at least, that there is some groundswell towards peaceful cooperative actions for resolving maritime disputes in the Asian region.

Subsequent actions taken by the Chinese government in the past week, however, seem to demonstrate some equivocation to the above views.  On November 23, 2013, China announced that it was marking its own “air defense identification zone” (ADIZ) to include airspace over the disputed islands (Senkaku Islands according to Japan, Diaoyu islands according to China) in the East China Sea.  Similar to other ADIZs established by the United States, Canada, Russia, among others, China established its ADIZ by declaration, and not by treaty.  An ADIZ may be established over territorial waters or land, but it may also be declared over high seas or extended into international airspace adjacent to national airspace. (Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Martinus Nijhoff, 2002, at pp. 341-342.)  In the latter instance, foreign aircraft passing through the ADIZ would be required to provide the State administering the ADIZ with advance warning information only if the aircraft’s final destination is the said State. Read the rest of this entry…

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Philippines Initiates Arbitration Against China over South China Seas Dispute

Published on January 22, 2013        Author: 

Today, the Philippines has initiated arbitral proceedings against China with regard to China’s claims over much of the South China seas. Those Chinese claims have led to serious disputes between China and several of its neighbours in East Asia with those disputes intensifying recently. Both the Philippines and China are parties to the United Nations Convention on the Law of the Sea and Part XV of that treaty provides for compulsory arbitral/judicial jurisdiction over disputes arising under that Convention. As is well known, UNCLOS Part XV provides for a choice of procedure and States parties may choose either the International Tribunal for the Law of the Sea (ITLOS); the International Court of Justice (ICJ); or an arbitral tribunal as their preferred means for compulsory settlement. In the absence of a choice, arbitration is the default mode of settlement. Also, where the disputing parties have not chosen the same means, the dispute shall be referred to arbitration under annex VII of the Convention (See Art. 287, paras. 1, 3 & 5). As neither the Philippines nor China has made a choice of tribunal, the Philippines has referred this dispute to arbitration. The Philippines notification of the proceedings and its statement of claim can be found here.

Although UNCLOS provides for compulsory jurisdiction over most matters arising under the Convention,  Art. 298 provides that a State may at any time declare that it does not accept compulsory jurisdiction over certain specified categories of disputes. In particular, a State may exclude compulsory jurisdiction with respect to “disputes concerning the interpretation or application of  articles 15, 74 and 83 relating to sea boundary delimitations, or those  involving historic bays or titles”.  China did precisely this in 2006. So, the first thing the Philippines would need to do would be to persuade the arbitral tribunal that it has jurisdiction over the case. To do that it would need to show that the dispute it has submitted to the arbitral tribunal falls outside China’s exclusion of jurisdiction under Art. 298(1)(a). This may not be so easy.

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Canada and Denmark reach agreement on the Lincoln Sea Boundary

Published on January 10, 2013        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland.

On 28 November last year Canada and the Kingdom of Denmark announced that they had reached a tentative agreement on the maritime boundary in the Lincoln Sea. The Lincoln Sea is a body of water bordering the Arctic Ocean, north of Canada’s Ellesmere Island and Greenland, which, together with the Faeroe Islands, is part of the Kingdom of Denmark. The Canadian/Danish agreement partly settles long-standing uncertainty over the northern boundary between the two countries, but it does not settle the dispute over Hans Island which is situated right in the middle of a potentially important sea route to the Arctic Ocean.

This graphic is for illustrative purposes only. The solid black line is the boundary agreed in the 1973 treaty. The broken black line is the boundary agreed ad referendum. The broken blue lines indicate 200-nautical-mile zones.
1) Lincoln Sea; 2) Nares Strait; 3) Baffin Bay 4) Davis Strait ; 5) Labrador Sea

Most of the boundary between Canada and Greenland was established by a delimitation treaty in 1973. The treaty delimited the continental shelf, covering:

‘…[The] area between Greenland and the Canadian Arctic Islands… for the purpose of each Party’s exploration and exploitation of the natural resources of that part of the continental shelf…’

Although that treaty officially concerned the continental shelf, both Canada and Denmark have used the delimitation line to define fishing zones. Thus by usage it is had become a maritime boundary.

The 1973 delimitation treaty lists 127 points from the Davis Strait in the south to the Nares Strait (also know as Robson Channel) in the north, the narrow strait of water between the northernmost part of Ellesmere Island and Greenland. That treaty established a boundary of nearly 1,500 nautical miles. At the time, it was the longest shelf boundary ever negotiated. The new agreement extends the boundary to more than 1,600 nautical miles.

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Nicaragua v Columbia: the curious question of the Commission on the Limits of the Continental Shelf

Published on December 10, 2012        Author: 

Continental shelf questions have a reputation for being arcane and technical, but an interesting point with implications for offshore resource disputes arose in last month’s ICJ judgement in Territorial and Maritime Dispute (Nicaragua v. Colombia).

First, a certain amount of (potentially dull) technical background needs to be set out, which I’ll simplify as much as possible.

Notably, Nicaragua is a party to the UN Convention on the Law of the Sea (UNCLOS) and Colombia is not. UNCLOS in Article 76(1) states a general principle:

The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to [an automatic] distance of 200 nautical miles from [its] baselines.

This 200 nm or “the outer edge of the continental margin” general definition of the limits of the continental shelf was always likely to be found to be customary international law – and now the ICJ has determined that it is (para 118: correct me if I’ve missed an earlier case). Read the rest of this entry…

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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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