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Home Posts tagged "UNCLOS"

Canute’s Kingdoms: Can small island states legislate against their own disappearance?

Published on February 20, 2019        Author: 
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It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

So the question becomes, can a state freeze the baselines from which its maritime zones are projected? Read the rest of this entry…

 
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The China-Japan and Venezuela-Guyana Maritime Disputes: how the law on undelimited maritime areas addresses unilateral hydrocarbon activities

Published on January 25, 2019        Author: 
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In December 2018, two incidents brought to the fore the importance of the rules addressing activities in undelimited maritime areas.  The first incident occurred between China and Japan in the East China Sea, and the second took place between Venezuela and Guyana in the Atlantic Ocean. Whereas the establishment of maritime boundaries is the optimum choice when it comes to the creation of a stable and secure environment for the conduct of maritime activities, the UN Law of the Sea Convention 1982 (‘LOSC’ or ‘the Convention’) provides for the regulation of operations even in the absence of maritime delimitation. With a view to avoiding tension, Articles 74(3) and 83(3) LOSC impose two obligations upon states having overlapping entitlements/claims in a given undelimited maritime area. This post scrutinises the behaviour of the parties involved in the aforementioned disputes through the lens of the LOSC.

The factual background

On the 3rd of December 2018, Japan protested China’s deployment of a jack-up rig and the drilling of boreholes near the provisional median line between the two states in the East China Sea. In response, the Chinese Ministry of Foreign Affairs stated that China was carrying out hydrocarbon activities in waters falling within its jurisdiction and that it does not recognise the provisional median line with Japan.

It is worth mentioning that China has been engaged in hydrocarbon activities in the area since 2003 (a deal on the establishment of a joint development zone reached in 2008 has not been implemented). Furthermore, it is recalled that in 2014 China performed unilateral oil and gas ventures in an undelimited maritime area within 200M of the coasts of Vietnam, triggering the latter’s vehement reaction. China had attempted to justify its activities back then by invoking its claims according to the ‘9-dash line’, a claim which was put in doubt by the Award of the Arbitral Tribunal in the South China Sea (Philippines v China) case (2016). Read the rest of this entry…

 

Part I: Analysis of Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean

Published on October 19, 2017        Author:  and
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On 23 September 2017, the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) rendered an award in Ghana/Côte d’Ivoire. It is only the second case, following the Guyana/Suriname Arbitration of 2007, in which an international adjudicating body has ascertained the meaning and scope of Articles 74(3) and 83(3) of the United Nations Convention on the Law of the Sea (UNCLOS) within the context of unilateral oil and gas operations in disputed areas.

The Special Chamber delimited the parties’ territorial sea, exclusive economic zone (EEZ) and continental shelf boundaries within and beyond 200 nautical miles (nm) with the boundary being an unadjusted equidistance line favouring Ghana. Other key questions for adjudication were a) Ghana’s claim regarding a long-standing, tacit agreement as to the existence of a maritime boundary and b) Côte d’Ivoire’s allegation that, by continuing with oil activities in the disputed area, Ghana had violated its Article 83(1) and (3) UNCLOS obligations to negotiate in good faith and to make every effort through provisional arrangements not to jeopardise or hamper arrival at an agreement.

In its judgment, the Special Chamber reached a number of conclusions which, taken with its Order for the prescription of provisional measures of 25 April 2015, will have significant, practical implications for the future conduct of unilateral oil and gas activities in disputed maritime areas, as well as for the associated rights and obligations incumbent upon States concerned. Read the rest of this entry…