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Peru v Chile (also called the Chilean–Peruvian maritime dispute) is a public international law case

concerning a territorial dispute between the South American republics of Peru and Chile over the The maritime boundary between Chile and Peru as defined by the International Court of Justice on 27
sovereignty of an area at sea in the Pacific Ocean approximately 37,900 square kilometres (14,600 sq mi) January 2014.
in size. Peru contended that its maritime boundary delimitation with Chile was not fixed, but Chile On January 27, 2014, in the final ruling of the Court, Peru gained some maritime territory. The maritime
claimed that it holds no outstanding border issues with Peru. On January 16, 2008, Peru brought forth the boundary extends only to 80 nautical miles off of the coast. From that point, the new border runs in a
case to the International Court of Justice at The Hague, the Netherlands, which accepted the case and southwest direction to a point that is 200 miles equidistant from the coast of the two countries.
formally filed it as the Case concerning maritime delimitation between the Republic of Peru and the
Republic of Chile - Perú v. Chile. Under the ruling, Chile lost control over part of its formerly claimed maritime territory and gives
additional maritime territory to Peru.
The dispute primarily concerned an area at sea between the parallel that crosses the end point of the land
border between Chile and Peru, and the bisecting line perpendicular to the coasts of Chile and Peru. This From the 27 January 2014 court press release: [1] The Court concludes that the maritime boundary
line was formed by the overlapping of the baselines of both countries, forming a trapezoid of 67,139.4 between the Parties starts at the intersection of the parallel of latitude passing through Boundary Marker
square kilometres (25,922.7 sq mi). Peru requested an equitable division of the maritime territory, but No. 1 with the low-water line, and extends for 80 nautical miles along that parallel of latitude to Point A.
Chile demanded sovereignty over approximately 38,000 square kilometres (15,000 sq mi) of the territory. From this point, the maritime boundary runs along the equidistance line to Point B, and then along the
On a secondary level, the dispute included the status of a maritime triangle to the left of the 200-nautical-mile limit measured from the Chilean baselines to Point C. In view of the circumstances of
aforementioned trapezoid, approximately 28,471.86 square kilometres (10,993.05 sq mi) in size, which the case, the Court has defined the course of the maritime boundary between the Parties without
Chile considered part of the high seas and Peru as part of its maritime domain. determining the precise geographical co-ordinates.*

Physicist Frank Duarte has been a consistent and early critic of the Chilean Government's handling of this
The background of this dispute goes back to the mid-1980s. In 1985, the then Foreign Minister of Peru,
dispute. In particular, he has sharply criticized President Sebastián Piñera's performance (deemed as
Allan Wagner first addressed this issue formally with the Minister of Foreign Affairs of Chile at the time,
favoring commercial interests over the interest of the Chilean people) and called for Chile's withdrawal
Jaime del Valle. The following year, the Peruvian Ambassador Juan Miguel Bakula Patino had an
from The Hague, early in 2012.[5] Following the ruling, several political figures in Chile, of various
interview with Foreign Minister Jaime del Valle on this matter, and handled a diplomatic note, dated May
political parties, have also called for Chile's withdrawal from The Hague that would, in addition, imply a
23 of 1986. By the aforementioned note, issued by the Embassy of Peru in Santiago de Chile, Peru stated
withdrawal from the Pact of Bogota. Senators and members of parliament advocating this position include
its position regarding the necessity of "concluding a treaty on maritime boundaries", on the premise that it
Ivan Moreira,[6] Jorge Tarud,[6] Jaime Orpis,[7] and Fulvio Rossi.[7] Former president Ricardo Lagos
must reach a formal and definitive delimitation of maritime spaces, which complement the geographical
has added his voice to the criticism of the tribunal's ruling.[8] Furthermore, the newly designated minister
proximity between Peru and Chile. In ICJ proceedings Chile disputes that these meeting was ever about
for foreign relations, Heraldo Muñoz, has declared that the topic of membership in the Pact of Bogota
Peru wanting a maritime boundary treaty, in the contrary Chile argued that Peru recognized the Treaties
should be under "legitimate discussion".[9] On February 11, 2014, President Sebastián Piñera, originally a
signed in 1950's and that meetings had a totally different basis.
strong advocate of The Hague, requested a report on the advantages and disadvantages of Chile's
Chile ratified the Convention on the Law of the Sea in 1997 and, according to its text, in September 2000, membership in the Pact of Bogota.
deposited it with the United Nations. Its nautical charts indicated the parallel 18º21'00" South as the
maritime boundary between the two countries. The constitution of Peru prevents its government to ratify
the sea convention however its Peruvian Government formalized its position on the issue, through a note
sent to the United Nations on January 7, 2001, which does not recognize the line of latitude as the
maritime boundary between the two countries.

Public discussion on this subject was revived in 2005, when the Congress of Peru began to process a bill
on determining the baseline of maritime domain, which are sequences of points that determine where it
finishes the coastal edge and therefore begins the territorial sea as such, setting the width of the maritime
domain of Peru to the distance of 200 nautical miles, using a line bisector in the south, bordering with
Chile. The Peruvian law was passed and promulgated on November 3, 2005.

On January 16, 2008, the government of Peru introduced in the International Court of Justice the "Case
Concerning Maritime Delimitation between the Republic of Peru and the Republic of Chile", also called
Peru v. Chile. The case is meant to adjudicate the re-delimitation of the maritime border between these
two countries.

In the case, Peru, whose legal team included jurist Juan Vicente Ugarte del Pino,[1] argued that the
maritime boundary has never been defined by a treaty and should run on a southwestern direction from
their land border, perpendicular to the natural slope of the South American coast in an equidistant angle
from both coastlines. Chile claims that in trilateral treaties signed together with Peru and Ecuador in 1952
and 1954, it is clearly stated that a maritime boundary (written as "límite marítimo" in Spanish) runs in a
western direction, parallel to the equator.[2][3] The Chilean agent to the Court is former Undersecretary
for Foreign Affairs, Ambassador Alberto van Klaveren. The Peruvian agent is the current Ambassador to
The Netherlands, Allan Wagner.

The Maritime Dispute Between Peru and Chile Peru and Bolivia, which revolved around control over nitrate resources in the Atacama Desert. Chile
ultimately proved victorious and annexed the Peruvian provinces of Tacna, Arica and Tarapacá. In 1883
Chile and Peru entered into a peace treaty known as the Treaty of Ancón and hostilities came to an end.
Under the terms of the treaty, Chile was supposed to organise a plebiscite after ten years in which the
On 27 January 2014, the International Court of Justice (ICJ) delivered its judgment on the maritime
populations of Tacna and Arica would decide which country they wanted to belong to. It failed to do this
boundary dispute between Peru and Chile (Peru v. Chile, Judgment, General List No. 137). The Court had
and following mediation by the President of the United States in 1929 the two countries entered into the
to determine first whether a maritime boundary existed between Peru and Chile. If so, then it also had to
Treaty of Lima whereby they agreed that Tacna would be returned to Peru and Chile would retain Arica.
consider the nature and extent of the boundary.
They also agreed to the establishment of a Mixed Commission of Limits to determine the land boundary
between the two countries, which was accomplished by its 1930 Final Act (see sketch-map No. 2).

Peru’s application instituting proceedings in 2008 asserted that the limits of its southern maritime
While Peru and Chile agreed that their land boundary had been conclusively determined, Peru maintained
boundary and Chile’s abutting northern maritime boundary were uncertain and requested the ICJ to
that this was not the case with the party’s common maritime boundary and requested the Court to delimit
delimit the respective maritime zones based on a line “equidistant from the baselines of both Parties, up to
the maritime zones between the parties by means of a line equidistant from the baselines of both parties.
a point situated at a distance of 200 nautical miles (nm) from those baselines” (Peru v. Chile, para. 14).
Peru asserted that the start of the boundary should be at Punta Concordia, where the land border hits the
Chile disputed this uncertainty and maintained that the maritime boundary had been settled by a prior
sea. As noted, Peru also requested the ICJ to declare the “outer triangle” subject to its sovereign rights and
agreement. Chile maintained that the delimitation under the agreement was based on a “parallel of latitude
jurisdiction as within 200 nm of its baselines, but more than 200 nm from Chile’s baselines. Chile argued
passing through the most seaward boundary marker of the land boundary between Chile and Peru” and
contra-wise that a definitive boundary had been agreed in the 1952 Santiago Declaration, as supported by
extending 200 nm (id.). The respective positions of both Chile and Peru are shown below in sketch-map
a reading of preceding and subsequent instruments and their travaux preparatoires. Chile maintained that
No. 2 of the Court’s judgment (Peru v. Chile, para 22). Peru also argued that if the parallel of latitude
the maritime boundary line followed the parallel of latitude passing through the most seaward boundary
method of delimitation was adopted, then at the end of the common boundary it was entitled to exercise
marker of the land boundary (250 meters north of Punta Concordia), Boundary Marker No. 1 (referred to
exclusive sovereign rights over a maritime area lying out to a distance of 200 nm from its baseline (and
as Hito No. 1 in the 1930 Final Act) and extending to 200 nm. Chile requested the Court to recognize and
beyond 200 nm from the Chilean baseline). Peru referred to this area as the “outer triangle” (shown shaded
declare this pre-existing maritime boundary and dismiss Peru’s claim in its entirety.
in blue).

The Court began its analysis by considering a series of instruments and agreements between Peru and
Chile, including the 1947 unilateral Proclamations (1947 Proclamations) by both states claiming a 200 nm
Delimiting the boundary by the use of the parallel of latitude method urged by Chile (instead of based on
exclusive maritime zone of each coast, the 1952 Santiago Declaration on the Maritime Zone (1952
the equidistance principle favoured by Peru) greatly enlarges the ocean space subject to Chilean sovereign
Santiago Declaration), and related agreements concluded over the next two years, especially the 1954
rights and jurisdiction, whilst significantly diminishing those of Peru. The significant economic impact for
Agreement Relating to a Special Maritime Frontier Zone (1954 Agreement), as well as relevant state
both states in where the boundary line is set is readily apparent. The water column seaward of the coasts of
practice. Of course, at this period of time customary international law was silent about the declaration of
Peru and Chile, known as the Humbolt Current, is extremely rich in living marine resources. In 2008, it
200 nm exclusive maritime zones in relation to living marine resources, although the Truman
was said to be the most productive marine ecosystem in the world and approximately 18%-20% of world’s
Proclamation did serve to crystalize the customary international law over the delimitation of overlapping
total fish catch is harvested in the waters off Peru and Chile (Mark McGinley, Humboldt Current large
claims over the continental shelf.
marine ecosystem, Encyclopedia of Earth). Given this economic significance, since 1982 Peru had
repeatedly sought to negotiate, presumably pursuant to Article 74 of the United Nations Convention for
the Law of the Sea, an agreement finally establishing a maritime boundary with Chile. However, in In terms of the 1947 Proclamations, the ICJ ruled (as conceded by Chile) that they did not, of themselves,
Chile’s view the boundary had been formally delimited by an agreement reflected in Paragraph IV of the establish an international maritime boundary between the parties. However, the Court did find that the
1952 Santiago Declaration and that this boundary was protected from challenge on the basis of pacta sunt Proclamations were evidence of the necessity of an understanding of the need to establish the lateral limits
servanda (agreements must be kept) and the need to ensure the stability of boundaries. of the claimed maritime zones in the future. The Court then examined the 1952 Santiago Declaration, in
particular paragraph IV which states:
Ultimately, the Court fashioned a boundary that neither Peru nor Chile had pleaded. The Court delimited
the starting point (Boundary Marker No. 1) and a parallel maritime boundary line that extended 80 nm In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island
(Point A) on the basis of a tacit agreement. Beyond that initial 80 nm segment, the Court called on or group of islands. If an island or group of islands belonging to one of the countries making the
customary international law in order to delimit the seaward boundary related to overlapping claims out to declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of
200 nm (Point B) then dropping down to where the maritime entitlements of the parties end (Point C). The those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the
final boundary declared delimited by the Court is shown in sketch-map No. 4 of the judgment (Peru v. point at which the land frontier of the States concerned reaches the sea.
Chile, para 195).
For Chile, paragraph IV clearly indicated a general maritime delimitation between Peru and Chile
extending to 200 nm had been intended. If this were not the case, then it would be impossible to know if
an island was within 200 nm of the “general maritime zone” of the neighbouring State. The Court
The Treatment of the Dispute by the ICJ disagreed. Interestingly, the Court held that the 1952 Declaration, which presumably started life as a
declarative political instrument, was transformed into a treaty (properly so called) by virtue of its
The Court starts by noting that its jurisdiction arises, according to Peru and unchallenged by Chile, by ratification by each signatory and its registration with the U.N. under Article 102 of the U.N. Charter.
virtue of the compromissory clause in the 1948 American Treaty on Pacific Settlement (Art. XXXI). The Treaty though it became, the Court held that it did not constitute an agreement to establish a maritime
judgment then briefly recounts the fascinating genesis of the maritime boundary dispute between Peru and boundary.
Interpreting the 1952 Declaration according to the ordinary meaning of its terms, the Court found that the
The dispute is traced back to the 19th Century and in the “War of the Pacific” (1879-1883) between Chile, Parties had only agreed on the limits of certain insular maritime zones and the zones generated by the
continental coasts that abut these zones. The Court further considered the object and purpose of the 1952 delimitation of the Parties’ overlapping maritime entitlements beyond Point A was by way of an
Declaration and found the focus to be on conservation and protection of natural resources. It found it was equidistance line and it did not present an “outer triangle.” Thus, the Peruvian entitlement by virtue of the
not necessary to consider the situation of small islands located close to the coast near the Peru-Chile land maritime boundary extends south of Point B to Point C for approximately 22 nm following the 200 nm
boundary because the concerns about insular zones arose from a concern expressed by Ecuador. Finally limit of Chile.
the Court rejected Chile’s claim that the Minutes of the 1952 conference leading to the Declaration
constitute an “agreement relation to the treaty” under Article 31(2)(a) of the Vienna Convention on the
At the second step – the consideration of other relevant circumstances that might alter the provisional
Law of Treaties. The Court found they were not an agreement but more in the nature of travaux, which
equidistance line – the Court found that there were no relevant circumstances calling for adjustment of the
were not needed as supplementary means of interpretation in this case.
provisional equidistance line.

Yet, the Court accepted Chilean reliance on the provisions of various agreements from 1952 to 1954,
At the third step – proportionality analysis – the Court examined whether the result achieved was
within the context of the 1947 Proclamations and the 1952 Santiago Declaration, was sufficient to
significantly disproportionate in relation to the lengths of the relevant coasts. The Court noted that the
establish a tacit agreement for a general parallel maritime boundary starting at Boundary Marker No. 1. In
object of delimitation was to achieve an equitable result, not an arithmetical equal apportionment of
reaching this conclusion the Court examined relevant practice of the Parties in the early and mid-1950s, as
maritime areas. In this case, the existence of an agreed boundary running along a parallel for 80 nm made
well as the wider context including developments in the law of the sea at that time. It also assessed the
the calculation of the relevant coastal length and coastal areas “difficult, if not impossible” (Peru v. Chile,
practice of the two Parties subsequent to 1954. The ICJ noted that the practice and agreements before 1954
para. 193). The Court, accordingly, did not calculate any sort of precise ratios of entitlement, but instead
“suggested an evolving understanding between the Parties concerning their maritime boundary” (Peru v.
broadly assessed the proportionality of the delimitation and concluded no significant disproportionality
Chile, para. 91). The Court also considered the 1954 Agreement as it addressed violations of the maritime
existed that militated against the equitable nature of the provisional equidistance line beyond Point A
frontier by small fishing vessels. Article 1 of the 1954 Agreement established a special zone “at a distance
(Peru v. Chile, para. 194).
of 12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either side of the
parallel which constitutes the maritime boundary between the two countries.” The ICJ found that the 1954
Agreement constituted an acknowledgement by the Parties that a maritime boundary was in existence Some Thoughts about the Judgment
(even though the Agreement gave no indication of the nature or extent of that boundary). Recognizing the
heavy burden of the pre-existing implied agreement, the Court stated:
The peaceful resolution of this maritime boundary dispute is to be welcomed, especially given that its
origins began through hostilities and the use of force. It seems plain that the Court achieved (even if it was
In an earlier case, the Court, recognizing that “[t]he establishment of a permanent maritime boundary is a not striving for) a reasonable compromise between the absolutist positions that had been staked out by
matter of grave importance”, underlined that “[e]vidence of a tacit legal agreement must be compelling” Peru and Chile. Chile has a lateral boundary out to 80 nm and the some of the richest fisheries in the area
(Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v of overlapping claims. Peru has an equidistant boundary from that point out to 200 nm which gives it
Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253). In this case, the Court has before it an roughly 21,000 sq km of the disputed 38,000 sq km overlapping claims, including its “outer triangle”.
Agreement which makes clear that the maritime boundary along a parallel already existed between the Thus, both parties are able to claim “victory” to a degree.
Parties. The 1954 Agreement is decisive in this respect. That Agreement cements the tacit agreement.

The Court found that certain 1968-1969 lighthouse arrangements, while not constituting maritime Importantly, however, the judgment broadly adheres to the proposition that the delimitation of maritime
boundary delimitation, proceeded on the basis that a maritime boundary already existed extending along boundaries represent a just and “equitable solution”. It is true that the Court in reaching its judgment has
the parallel of latitude from Boundary Marker No.1 (and not Punta Concordia). been proactive in achieving an outcome that was pleaded by neither party. In this regard, the Declaration
of Judge Donoghue bears attention. Because neither party convinced the Court on the law, neither party
fully briefed the Court on the delimitation actually made by the Court; either the initial 80 nm segment
The Court next examined the character of the maritime boundary that had been established by tacit settled by agreement or the area beyond Point A delimited on the basis of equidistance. Judge Donoghue
agreement. Because the 1947 Proclamations and the 1952 Declaration referred to both the sea-bed and the would have the Court in such circumstances consider the need to request additional briefing or evidence
waters above the sea-bed, making no distinction between these two different maritime aspects. The Court from the parties and/or render an interim decision while seeking additional submissions on the new or
concluded that the tacitly agreed boundary was a single maritime boundary applicable to the water remaining issues. Just as importantly, Judge Donoghue is cognizant of opportunities for judicial cross-
column, the sea-bed and its subsoil. fertilization and calls on the Court to be open to making use of appropriate procedural approaches and
practices of other tribunals.
Turning to the extent of the existing maritime boundary established by tacit agreement, the Court focused
on the purpose of the 1954 agreement and the practice of the parties. As the 1954 Agreement was Significantly, the Court took detailed, hands-on approach to the practice of the parties in the pre-exclusive
specifically concluded to regulate fisheries and prevent innocent and inadvertent violations of the frontiers economic zone era and to the assessment of the evidence in an attempt to identify what was the outer point
of each state, the Court concluded that the boundary must extend at least to the distance where such of the tacitly agreed boundary. The Court relied on fisheries statistics cited by both Chile in its written
activity was taking place at the time. The Court noted that the fish species making up the bulk of the statements in order to determine which species were fished in the 1950s. The Court also utilized
annual catch of the two states in the 1950s were mostly harvested within 60 nm of the coast. On the basis statements made by Peru at the 1958 United Nations Conference on the Law of the Sea to determine the
of 1950s fishing practices and the law of the sea existing at the time, the ICJ concluded that the agreed range of such species at the time. The evidence, thus, gives the 80 nm initial established by the Court a
maritime boundary did not extend beyond 80 nm from its starting-point (Point A on sketch-map No. 4). basis in fact, although an empirical scientific basis is absent and six members of the Court did not reach
this conclusion.
The Court then addressed the delimitation of the boundary beyond Point A following its three-step method
it has established to help reach an equitable delimitation. At the first step – the application of the In terms of the methodology of delimitation beyond Point A employed by the Court, not much new
equidistance principle – the Court constructed a provisional equidistance line, drawing a circle with an 80 appears in the judgment. The delimitation follows the doctrinaire three-step methodology repeatedly
nm radius from Point A, in order to determine the relevant base points on the Peruvian coast. This approved by the Court in what is an unexceptional geographic setting.
equidistance line was extended out to 200 nm from the Chilean coast (to Point B). The Court did not find
it necessary to address the submission of Peru regarding the “outer triangle” because it did not arise. The
Whether or not the judgment finally settles the nationalist competition that has surrounded the claims and
litigation remains to be seen, with some press reports indicating continued jingoistic reaction (e.g. César
Uco and Bill Van Auken, ‘World Court decision on Peru-Chile border fails to quell nationalist rivalries’,
World Socialist Web Site, 4 Feb 2014) and others reporting cooperation on implementation between the
parties (e.g. Ryan Dube, ‘Peru, Chile Agree to ‘Gradually’ Implement Sea-Border Ruling’, Wall Street
Journal, 30 Jan 2014). Beyond the dispute between Peru and Chile, next on the next case on the radar is
Bolivia’s request to the ICJ seeking an Order that Chile grant to Bolivia a corridor to access the Pacific
Ocean; a claim that has a common genesis in the 19th Century War of the Pacific.

The March 2012 decision of the International Tribunal for the Law of the Sea (ITLOS) in the long-
standing Bangladesh/Myanmar maritime border dispute opened up new possibilities for peaceful
resolution of such disputes in Asia. While the judgment itself broke important—if technical—legal
ground, the two parties’ incentives for entering into litigation in the first place offer equally valuable
lessons for future disputes.

Bangladesh and Myanmar were driven to seek the tribunal’s opinion because both realized that continued
uncertainty over their maritime boundary was worse than almost any award the judges might realistically
grant. The undefined status of the continental shelf in the northeastern Bay of Bengal was scaring away
international investors and energy companies who would otherwise have jumped at the chance to explore
potentially vast new natural gas fields. The dispute cast a pall over the whole region; energy companies
were reluctant to invest even in areas far from the disputed waters. And since any ruling was likely to
leave each country with some of the area believed to hold gas deposits, both were able to accept the risk of
submitting to a neutral arbiter.

This is a reminder of the rather obvious—it is easier to convince both parties in a dispute to submit to
third-party resolution when the result is likely to objectively benefit both. The tribunal’s judgment was
accepted with some degree of warmth by both sides (each of whom could plausibly claim that it had The two countries had irreconcilable views of their respective maritime boundaries but the dispute largely
“won” the case). Even more importantly, the decision has stuck; the two states have not returned to remained on the back burner until late 2008, when South Korea’s Daewoo, at the behest of Myanmar,
conflict and have instead been competing to offer the most favorable terms to international energy began natural gas exploration in waters claimed by Bangladesh. A few weeks later, Bangladesh submitted
companies interested in natural gas deposits in the Bay of Bengal. its continental shelf claim to the United Nations’ Commission on the Limits of the Continental Shelf. The
public declaration was a stark reminder of Bangladesh’s and Myanmar’s conflicting claims in the area.
Both countries mobilized naval forces in the disputed area and the conflict narrowly escaped escalation.

The case had its origins equally in law and politics. Bangladesh’s long, concave coastline makes maritime
boundary disputes almost inevitable. Under a standard application of maritime boundary law, the
intersecting arcs of India’s and Myanmar’s 200 nautical mile exclusive economic zones (EEZs) would cut ITLOS had never before ruled on a maritime boundary dispute and its perceived neutrality and status as a
off Bangladesh’s access to the continental shelf and leave it with a disproportionately small EEZ relative blank slate increased the two countries’ willingness to submit the case to the tribunal. As the National
to the length of its coastline. As a result Myanmar and Bangladesh made competing claims to a section of Bureau for Asian Research’s Jared Bissinger makes clear, Bangladesh hoped that considerations of equity
ocean and seabed extending southwest in a widening sliver from the seaward terminus of their land would persuade the court to employ relatively untested methods of boundary delimitation. Myanmar, for
border. its part, was confident that the application of the traditional principle of equidistance would lead to a
favorable result, and that the court would avoid ruling on the issue of the continental shelf and focus solely
on dividing up waters within 200 nautical miles of shore. Thus both sides believed they had a winning
case—a strong incentive to seek legal redress.

In the end the tribunal chose, quite literally, a middle path. It modified the boundary that would have
resulted from the equidistance approach (which sets the maritime boundary between two states by drawing
a line equidistant from a series of “base points” on each state’s coastline) in order to avoid cutting off
Bangladesh from the outer reaches of its EEZ. The resulting line was almost exactly in the center of the
boundaries proposed by Bangladesh and Myanmar.

The ruling was noteworthy in part for the court’s decision that it had jurisdiction to decide not only
competing claims to waters but also the continental shelf, and for the creation of a “grey area” that is on
Bangladesh’s side of the boundary line drawn by the court but within the potential 200-nautical-mile EEZ
of Myanmar. In this grey area, Bangladesh controls the seabed but Myanmar the superjacent waters.
Similar grey areas have since been created by other bodies, including in the Permanent Court of
Arbitration’s July 2014 ruling on the India/Bangladesh boundary dispute. The grey area is the result of the
tribunal’s concern for an equitable resolution of the dispute. In this case, allowing Myanmar to claim the
seabed in the grey area—to which it would normally be entitled—would cut Bangladesh off from a much
larger section of its own continental shelf.

Unfortunately the tribunal’s success in attracting this relatively low-stakes case might actually diminish
larger powers’ willingness to submit to its judgment. ITLOS is no longer a blank slate onto which both
Equally important was the court’s treatment of St. Martin’s Island, a small island belonging to Bangladesh parties can project their hoped-for outcomes. Its decisions on maritime boundary disputes, together with
but located directly west of Myanmar. The Tribunal gave full effect to the island when delimiting the two those of other bodies, are evolving into an established body of jurisprudence on the subject. Parties to
countries’ territorial seas, but did not allow Bangladesh to use the island as a base point when marking the disputes increasingly have at least a general idea of what the outcome of their case might be, and they are
equidistance line between the two states’ EEZs and continental shelves. The decision also minimized the unlikely to enter into litigation if they might not like the result.
island’s importance by declining to identify it as a “relevant circumstance” that should be considered
when making adjustments to the boundary line.

The treatment of St. Martin’s island came in for strong criticism in the separate opinion of Judge Zhiguo
Gao, China’s appointee on the tribunal, who described the decision to give full effect to the island in
delimiting the territorial seas but to ignore it in delimiting the EEZ and continental shelf boundaries as
“wrong and unacceptable.” Gao argued that the result was unfair to Bangladesh and that the island should
be given half effect in delimiting the larger maritime boundary. In his dissenting opinion, he gave special
weight to the island’s degree of economic development, the size of its population, and its closeness to the
mainland—implying that in his view not all islands are created equal for maritime boundary delimitation
purposes. This debate over St. Martin’s has far reaching implications for small islands in disputed waters
elsewhere in Asia.
Case concerning maritime delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ 3 is a decision The court delivered its judgment on February 3, 2009,[6] dividing the Black Sea with a line between the
of the International Court of Justice. On September 16, 2004, Romania brought its case to the court after claims of each country. On the Romanian side, the ICJ found that the landward end of the Sulina dyke (not
unsuccessful bilateral negotiations. On February 3, 2009 the court handed down its verdict, established a the manmade end) should be the basis for the equidistance principle. The court noted that a dyke has a
maritime boundary including the continental shelf and exclusive economic zones for Romania and different function from a port, and only harbor works form part of the coast.[7]
On the Ukrainian side, the court found that Snake Island did not form part of Ukraine’s coastal
Facts configuration, explaining that "to count [Snake] Island as a relevant part of the coast would amount to
grafting an extraneous element onto Ukraine’s coastline; the consequence would be a judicial refashioning
In 1997, Romania and Ukraine signed a treaty in which both states "reaffirm that the existing border of Geography" The court concluded that Snake Island "should have no effect on the delimitation in this
between them is inviolable and therefore, they shall refrain, now and in future, from any attempt against case, other than that stemming from the role of the 12-nautical-mile arc of its territorial sea".[7] While the
the border, as well as from any demand, or act of, seizure and usurpation of part or all the territory of the judgment drew a line equitable for both parties, Romania received nearly 80 percent of the disputed area
Contracting Party".[1] Both sides agreed that if no resolution on maritime borders could be reached within (allowing it to exploit a significant—but undetermined—portion of an estimated 100 billion cubic meters
two years, either side could seek a final ruling from the International Court of Justice. Ten million tonnes of deposits and 15 million tonnes of petrol under the seabed).[8] However, according to UN International
of oil and a billion cubic meters of natural gas deposits were discovered under the seabed nearby.[when?] Court Ukrainian commissioner Volodymyr Vasylenko nearly all the oil and gas reserves are concentrated
in the seabed going to Ukraine.[9]Ukrainian President Viktor Yuschenko considered the ruling "just and
BP and Royal Dutch/Shell signed prospect contracts with Ukraine, and Total contracted with Romania.
final", hoping that it "opens new opportunities for further fruitful cooperation in all sectors of the bilateral
The Austrian OMV (owner of Romania's largest oil company, Petrom) signed a contract with Naftogas of
cooperation between Ukraine and Romania".[10]
Ukraine and Chornomornaftogaz to participate in an auction of concession rights to the area.[citation

Due to its location, Snake Island affects the maritime boundary between the two countries. If Snake Island
is an island, its continental shelf area would be considered Ukrainian waters. If it is an islet, in accordance
with international law the maritime boundary between Romania and Ukraine would not take it into
consideration. Romania claimed that Ukraine was developing Snake Island to prove it was an island,
rather than an islet.[2]

Court hearings

On 16 September 2004 Romania brought a case against Ukraine to the International Court of Justice as
part of a dispute over the maritime boundary between the two states in the Black Sea, claiming that Snake
island had no socioeconomic significance.[3] Islands are generally considered when boundaries are
delimited, by the states themselves or by a third party (such as the ICJ). Depending on individual
circumstances, islands may theoretically have a full, partial or no effect on determinations of entitlement
to maritime areas.

However, in practice even islets are often respected in maritime delimitation. For example, Aves Island
was considered in the United States – Venezuela Maritime Boundary Treaty despite its small size and the
fact that it was uninhabited. Most states do not distinguish between islands and LOSC Art. 121(3) islets,
claiming the shelf as an EEZ for all their islands. Examples include the UK's Rockall Island, Japan's
Okinotorishima, the United States' Hawaiian Islands and a number of uninhabited islands along the
equator, France's Clipperton and other islands and Norway's Jan Mayen.

Decisions by international courts, tribunals and other third-party dispute-resolution bodies have been less
uniform. Although Art.121(3) rocks are taken into account when delimiting maritime boundaries, they
may be overlooked, discounted or enclaved if they have an inequitable distorting effect in light of their
size and location. Even if such islands are not discounted, their influence on the delimitation may be
minimal. Therefore, existing decisions have not reached the level of uniformity necessary for a rule of

Until this dispute, there had been no third-party international review of a particular feature's status as a
LOSC Art.121(3) rock or Art.121(2) island, and the ICJ's decision was difficult to predict. If it declared
Snake Island an island, in delimiting the maritime zones the court could consider “special” or “relevant”
circumstances (giving Snake Island full, some or no effect on the boundary). On September 19, 2008, the
court closed its public hearing.[4][5]


Maritime boundary established by the ICJ

Costa Rica–Nicaragua San Juan River border dispute turrets to display the Nicaraguan flag;
3. As regards subsistence fishing, the court Finds that fishing by the inhabitants of the Costa Rican bank
The Nicaragua–Costa Rica San Juan River border dispute is a series of periodical conflicts between the of the San Juan river for subsistence purposes from that bank is to be respected by Nicaragua
two Central American nations over the correct delimitation of their common border at its east-end, and the as a customary right;
interpretation of the navigation rights on the San Juan River established in the Cañas-Jerez Treaty of 4. As regards Nicaragua’s compliance with its international obligations under the 1858 Treaty, the court
1858.[2] finds that Nicaragua is not acting in accordance with its obligations under the 1858 Treaty
when it requires persons travelling on the San Juan River on board Costa Rican vessels
The most recent disputes include an interpretation about the scope and limits of Costa Rica's rights for free
exercising Costa Rica’s right of free navigation to obtain Nicaraguan visas; when it requires
navigation and Nicaragua's sovereign control over the San Juan River, which was resolved by the
persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s
International Court of Justice in 2009; and the ongoing dispute that began in October 2010 regarding the
right of free navigation to purchase Nicaraguan tourist cards; and when it requires the operators
dredging of San Juan River, in the area of Isla Calero.
of vessels exercising Costa Rica’s right of free navigation to pay charges for departure
clearance certificates.

According to the Cañas-Jerez Treaty of 1858, reaffirmed in arbitration by President Grover Cleveland of 2010 Isla Calero dispute
the United States in 1888 and interpreted by the Central American Court of Justice in 1916 (case Costa
Rica v. Nicaragua), Nicaragua is sovereign over the Río San Juan, and Costa Rica has the right to navigate
over part of the river with articles for trade which in case of need, as determined by Nicaragua can be The boundary between Costa Rica and Nicaragua as claimed by the Nicaraguan and Costa Rican
accompanied by revenue cutters. The treaty also states that no taxes would be imposed on Costa Rican governments, autumn 2010 [4]
trade in goods except those accepted by mutual agreement. On October 8, 2010, the Nicaraguan government initiated operations to dredge 33 kilometres (21 mi) of
the San Juan River and the works are in led by commander Edén Pastora.[5][6] On October 20, the Costa
Historically, the possibility that the Río San Juan might become the route for a Nicaragua Canal has Rican government complained to Nicaraguan authorities regarding an alleged violation of its sovereignty
exacerbated the dispute. The construction of the Panama Canal as well as Nicaragua's dry ecocanal project as Nicaraguan troops had entered Costa Rican territory, and the dredging of the river caused
have largely deflated this motive for friction.[citation needed] environmental damage in the wetlands at Isla Calero, which is part of the island nature reserve, in an area
that is owned by the Costa Rican Ministry of the Environment.[6][7] Nicaragua rejected all claims and
2009 International Court of Justice case replied that, in fact, Costa Ricans had been invading their territory[7] and the Vice President of Nicaragua
A dispute emerged in 1998 when Nicaragua forbade the transit of Costa Rican policemen in the river, commented that "We cannot invade our own territory".[8] The Costa Rican government responded by
which Nicaragua claims to be a breach of sovereignty, and unilaterally imposed a US$25 tax for any Costa sending 70 police reinforcements to the border area on October 22.[7][9] Nicaragua stationed around 50
Rican tourists who enter the San Juan river, as persons are not objects of trade but subjects of trade and soldiers in Isla Calero
are, therefore, not covered by the treaty. This and other subjects were the subjects of a case in the
International Court of Justice.

On July 13, 2009, the International Court of Justice published the following ruling:[3] Map, dated March 2, 1898, from the official proceedings of the binational commission presided by
engineer arbitrator Gen. Edward Porter Alexander, to define the frontier between the Republics of
1. As regards Costa Rica’s navigational rights on the San Juan river under the 1858 Treaty, in that part Nicaragua and Costa Rica.[10]
where navigation is common, the court finds: that Costa Rica has the right of free navigation According to a Costa Rican newspaper, Edén Pastora justified his actions based the border as shown by
on the San Juan river for purposes of commerce including the transport of passengers and the Google Maps and to be performing anti-drug dealing operations.[8][11][12][13] However, Pastora denied
transport of tourists. People travelling on the San Juan river on board Costa Rican vessels making any claims about relying on Google Maps to determine the border, and said to the Nicaraguan
exercising Costa Rica’s right of free navigation are not required to obtain Nicaraguan visas or press that his understanding of the border is based on the original text of the 1858 Cañas-Jerez Treaty.[14]
to purchase tourist cards. That the inhabitants of the Costa Rican bank of the San Juan river A senior manager for public policies for Google Latin America made a public statement saying that while
have the right to navigate on the river between the riparian communities for the purposes of the “Google maps are of very high quality and Google works constantly to improve and update existing
essential needs of everyday life which require expeditious transportation. That Costa Rica has information, by no means should they be used as a reference to decide military actions between two
the right of navigation on the San Juan River with official vessels used solely, in specific countries.”[14] He added that "In this instance Google has determined that there was an inaccuracy in the
situations, to provide essential services for the inhabitants of the riparian areas where shaping of the border between Costa Rica and Nicaragua and is working to update the information as
expeditious transportation is a condition for meeting the inhabitants’ requirements. That Costa quickly as possible.”[8][14] The border has since been updated and corrected by Google on Google Earth
Rica does not have the right of navigation on the San Juan river with vessels carrying out and in Google Maps.[12][15]
police functions. That Costa Rica does not have the right of navigation on the San Juan river
for the purposes of the exchange of personnel of the police border posts along the right bank of Both countries took different approaches on how to solve the issue, Nicaragua argued it was a border
the river and of the re-supply of these posts, with official equipment, including service arms dispute that should be resolved by International Court of Justice, while Costa Rica claimed it was a
and ammunition. military incursion and that the Organization of American States (OAS) should solve the issue,[7]
2. As regards Nicaragua’s right to regulate navigation on the San Juan river, in that part where navigation OAS General Secretary José Miguel Insulza met with both governments and inspected the conflict area.
is common, the court finds that Nicaragua has the right to require Costa Rican vessels and their He then called for both countries to remove all troops and security personnel from the disputed territory as
passengers to stop at the first and last Nicaraguan post on their route along the San Juan River; a first step towards opening a dialogue in order to resolve the situation peacefully and demarcate the
That Nicaragua has the right to require persons travelling on the San Juan river to carry a boundary to prevent further conflicts.[16] Costa Rica agreed to these terms but Nicaragua refused to
passport or an identity document; that Nicaragua has the right to issue departure clearance remove its troops.[13] On a meeting on November 12, by a vote of 22 to 2, the OAS ambassadors
certificates to Costa Rican vessels exercising Costa Rica’s right of free navigation but does not approved a resolution requesting Costa Rica and Nicaragua to pull out their troops from a conflict zone
have the right to request the payment of a charge for the issuance of such certificates; that along their common border and to hold talks to settle their dispute.[17] Nicaragua's President Daniel
Nicaragua has the right to impose timetables for navigation on vessels navigating on the San Ortega discarded the possibility of withdrawing the troops and disregarded OAS resolution because his
Juan River; that Nicaragua has the right to require Costa Rican vessels fitted with masts or government considers that this organization does not have jurisdiction to resolve border disputes.[16] In
the same press conference, President Ortega announced his intentions to file a claim under the
International Court of Justice for permission to navigate the Costa Rican Colorado River.[18]

On the political side, some commentators criticized Daniel Ortega for allegedly taking advantage on this
matter to promote his re-election.[9][19] Costa Rica's President Laura Chinchilla was criticized by former
President Óscar Arias for her naïve handling of the situation.[19]

On November 18, 2010, Costa Rica filed proceedings against Nicaragua in the International Court of
Justice. The complaint alleges an incursion into, occupation of and use by Nicaragua's Army of Costa
Rican territory, breaches of Nicaragua's treaty obligations toward Costa Rica, and “ongoing and planned
dredging and the construction of the canal (that) will seriously affect the flow of water to the Colorado
River of Costa Rica, and will cause further damage to Costa Rican territory, including the wetlands and
national wildlife protected areas located in the region”. Costa Rica also filed a request for provisional
measures, including the withdrawal of all Nicaraguan troops from Isla Calero, the cessation of the
construction of a canal across Costa Rican territory, the immediate cessation of the dumping of sediment
in Costa Rican territory and immediate cessation of the felling of trees, removal of vegetation and soil
from Costa Rican territory, including its wetlands and forests.[20][21] On the same day, OAS approved a
Costa Rican request, by a vote of 22 to 1 (and 7 abstentions), to convene a Consultative Meeting of OAS
Ministers of Foreign Affairs to analyze the situation between Costa Rica and Nicaragua in the border zone
of the San Juan River. The meeting took place on December 7, 2010.[22][23]

In March 2011, The International Court of Justice provisionally ruled that Costa Rica and Nicaragua both
must refrain from sending or maintaining civilians, security forces or police in this disputed border area,
but that Costa Rica was allowed to send civilian teams concerned with environmental matters. Dredging
by Nicaragua within the San Juan River itself was allowed to continue since Nicaragua has sovereignty
over the river proper.[24]

Nowadays the problem is for a road Costa Rica made in the border with Nicaragua. Conflict in which
Nicaragua says the wetlands and national parks from Costa Rica are being damaged. Nevertheless, Costa
Rica argues it was necessary for protecting from the "Sandinistas" and for providing electricity and other
needs to people who live in a remote location, to which before the road was made, the only way in was
sailing in the San Juan River.[25]

2015 Resolution
On December 16, 2015, The International Court of Justice published its ruling:.[26] The court found that:

• Costa Rica has sovereignty over the disputed territory. By excavating three caños and establishing a
military presence on Costa Rican territory, Nicaragua violated the territorial sovereignty of
Costa Rica. By excavating two caños in 2013 and establishing a military presence in the
disputed territory, Nicaragua breached the provisional ruling issued by the Court on 8 March
2011. Furthermore, Nicaragua breached Costa Rica’s rights of navigation on the San Juan
River pursuant to the 1858 Treaty of Limits. Nicaragua has the obligation to compensate Costa
Rica for material damages caused by Nicaragua’s unlawful activities on Costa Rican territory.
Said compensation will be agreed upon by the parties before December 16, 2016, or, failing
agreement, shall be determined by the court.
• Costa Rica violated its obligation under general international law by failing to carry out an
environmental impact assessment concerning the construction of Route 1856.
In June 2016, Costa Rica made an estimation of the damage to be paid of US$6,700,000. It accepted to
make a second evaluation of the damages if Nicaragua requested it[27].

Just before the end of the deadline, on December the 6th 2016, the president of Nicaragua Daniel Ortega
publicly stated that his country was willing to pay the fine.[28] This lead Costa Rica to extend the deadline
for the amount agreement.

On 16 January 2017, still no agreement on the amount was reached. The Costa Rica government filled a
new case to the International Court of Justice concerning new military presence on its territory[29] and
asked the court to fix a final amount and a deadline concerning the 2015 resolution's compensation.
The South China Sea Arbitration China directly countered this, arguing that the heart of the dispute concerned territorial sovereignty, not
the “interpretation or application” of UNCLOS. [13] In the alternative, China argued that the rock-or-
Introduction island determination concerned maritime boundary delimitation, which, as result of China’s Declaration of
August 26, 2006,[14] was exempted from compulsory adjudicative jurisdiction under UNCLOS.[15]
Since the 1970s, the South China Sea has been a nest of competing sovereignty claims over the island
features and ocean spaces by a number of adjacent countries. Included in this is China’s nine-dash line, In reaching the conclusion that it had jurisdiction to determine the status of the contested features, the
first officially communicated in notes verbale to the United Nations in 2009.[1] In addition, China has Tribunal stated that it “does not accept . . . that it follows from the existence of a dispute over sovereignty
recently engaged in, amongst other things, the physical enhancement of many of the small features of the that sovereignty is also the appropriate characterization” of the Philippine claims that the features were
Spratly Islands and enforcement of a moratorium on fishing in the South China Sea. rocks or low-tide elevations.[16] In making this determination, it noted that none of the Philippine
Submissions required a determination of sovereignty. [17]
The decision of the South China Sea Arbitration[2] by a tribunal established pursuant to the UN
Convention on the Law of the Sea[3] (UNCLOS) has landed in this cauldron. UNCLOS provides for The Tribunal did not accept China’s assessment of the dispute as involving maritime boundary
compulsory adjudication of disputes concerning the interpretation and application of the Convention, delimitation, stating that it was “not convinced,” and that “[i]t does not follow . . . that a dispute over an
subject to a number of exceptions. In 2013, the Philippines commenced the case against China.[4] issue that may be considered in the course of a maritime boundary delimitation constitutes a dispute over
Although a long-standing party to the Convention, China declined to participate in the establishment of the maritime boundary delimitation itself.”[18] More specifically, the Tribunal commented that entitlement to
Tribunal or to appear before it.[5] In deciding not to appear, China has followed a small number of states maritime zones “is distinct” from delimitation of those zones in an area where entitlements overlap.”[19]
that have similarly declined to participate in cases before the International Court of Justice (ICJ), as well
as the more recent nonparticipation by the Russian Federation in UNCLOS procedures in the Arctic Merits
Sunrise Case brought by the Netherlands.[6]
In the period immediately prior to the issuing of the Award, China had significantly modified and
There were fifteen Philippine Submissions dealt with by the Tribunal.[7] The Submissions that have enhanced numerous features in the Spratly Islands. The Tribunal clearly stated that UNCLOS “requires
received the most post-decision attention and that are the focus of this Insight include the legal validity of that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of
China’s claim of rights within the nine-dash line in light of UNCLOS and what—if any—maritime zones significant human habitation.”[20]
appertain to the insular features in the South China Sea.
The Tribunal accepted that in order to examine the Submissions regarding the location of the Philippine
China viewed the principal subject matters in dispute as political and beyond the jurisdiction and exclusive economic zone (EEZ), it was necessary to determine the legal status of all of the relevant high-
competence of the Tribunal. The Philippines characterized the subject matters in dispute as involving the tide features that are part of the Spratly Islands.[21] The Tribunal focused upon the six largest features,
interpretation and application of UNCLOS and thus within the jurisdiction of the Tribunal. As a result of observing that if these were characterized as rocks under UNCLOS, then the same conclusion would apply
this difference of views, it was necessary for the Tribunal to assess whether it had jurisdiction to deal with to the other high-tide features in the Spratly Islands.[22]
the merits of the Philippine submissions.
Unlike previous international tribunals that had accepted certain features as islands or rocks without
The Tribunal held that it had jurisdiction to consider the merits of almost all the Submissions made by the explicitly applying UNCLOS Article 121(3),[23] the Tribunal analyzed its application in detail.[24] The
Philippines and, overall, accepted the claims and arguments on the merits asserted by the Philippines.[8] Tribunal’s interpretation placed great emphasis on the physical conditions of the feature in question such
as “the natural capacity, without external additions . . . to sustain human habitation or an economic life of
Legal Status of the Award its own.”[25] The Tribunal also delved into the definition of the terms involved in this standard.
Additionally, the Tribunal directed that where the physical conditions did not determine clearly whether a
UNCLOS, the international legal basis for the arbitration, is very clear in Annex VII, Arbitration, Article feature is a rock or island then the historical use will be relevant. In this regard, the Tribunal concluded
11 that “[t]he award of the arbitral tribunal shall be final and binding and without appeal . . . . It shall be “that a feature that has never historically sustained a human community lacks the capacity to sustain
complied with by the parties to the dispute.”[9] human habitation.”[26]

Hence, there is no argument to be made that nonappearance by a state changes or effects the “final and Applying their understanding of Article 121(3) to the relevant high-tide features in the Spratly Islands, the
binding” nature of the Award. Moreover, while China has asserted both after the release of the 2015 Tribunal noted that although the features were “capable of enabling the survival of small groups of
Award on Jurisdiction and the 2016 Award that the both are “null and void” and have “no binding people”[27] and that the features could not be “dismissed as uninhabitable on the basis of their physical
force,”[10] there is no legal basis in UNCLOS for such assertions. characteristics,” nevertheless, there was “no indication that anything fairly resembling a stable human
community has ever formed on the Spratly Islands” with the result that all of the high-tide features were
China has further stated that it “neither accepts nor recognizes” the Award.[11] There is a modest practice classed as rocks.[28]
of states opting not to accept or recognize, and thus not comply with, decisions of the ICJ, the
International Tribunal for the Law of the Sea (ITLOS), and a tribunal established pursuant to UNCLOS. The Nine-Dash Line and Historic Rights[29]

Rocks/Low-Tide Elevations or Islands The principal jurisdictional question concerning the nine-dash line and possible Chinese historic rights
therein was whether such a claim was captured by the wording of Article 298(1)(a)(i) of UNCLOS,
Jurisdiction covering “disputes . . .involving historic bays or title”[30] and thus that the Tribunal was without
jurisdiction due to China’s 2006 Declaration.[31] On the merits, at issue was the relationship between the
The Philippines argued that the Tribunal had jurisdiction to determine whether certain insular features in historic rights asserted by China within the nine-dash line and the rights of the Philippines based on
the South China Sea were either rocks (entitled to a 12 nm territorial sea), low-tide elevations no territorial UNCLOS in areas beyond China’s EEZ or continental shelf and within the EEZ or continental shelf of the
sea), or islands (entitled to a 200 nm zone), even though the features in question were subject to territorial Philippines.
sovereignty disputes, as this involved interpretation of the relevant provisions of UNCLOS.[12]
To deal with both questions, the Tribunal assessed “the nature of any historic rights claimed by China”
within the nine-dash line, which was “complicated by some ambiguity in China’s position.”[32] The
Tribunal undertook an examination of China’s statements and actions[33] concluding “that China claims
rights to living and non-living resources within the ‘nine-dash line’ but (apart from the territorial sea
generated by any islands) does not consider that those waters form part of its territorial sea or internal

The Tribunal indicated that the term historic title in Article 298 centered on the historic title wording in
Article 12(1) of the 1958 Convention on the Territorial Sea and Contiguous Zone.[35] The Tribunal took
the view that the 1958 “historic title” wording was tied directly to the historic terminology as used in the
1951 Anglo-Norwegian Fisheries case, where the area in question was “an area of sea claimed
exceptionally as internal waters.”[36] Based upon this, the Tribunal took the view that the meaning of
historic title in Article 298 was “claims to sovereignty over maritime areas derived from historical
circumstances.”[37] Having determined that China was claiming historic rights and not historic title, the
Tribunal concluded that China’s 2006 Declaration was not available as regards China’s historic

Concerning the merits, the relationship between the historic rights asserted by China within the nine-dash
line and the rights of the Philippines based on UNCLOS, the Tribunal sided with the Philippines
concluding that UNCLOS “leaves no space for an assertion of historic rights,” and that “China’s claim to
historic rights to the living and non-living resources within the ‘nine-dash line’ is incompatible with the

Concluding Comments

In the immediate aftermath, the reactions indicate little hope that the South China Sea Award will result in
a period of peaceful management of the tangled disputes within the South China Sea. China has loudly
condemned the Award and a joint statement from ASEAN and China did not even mention it. Somewhat
more encouraging are the preparatory talks that have taken place between the Philippines and China.[40]

It has long been recognized by those who have a significant history with the South China Sea disputes that
if the numerous maritime features in the South China Sea were all categorized as either low-tide elevation
or rocks, the result would be that the 200 nm zones in the region would be measured from the mainland
coasts. This would cause almost all of the maritime claim disputes to become bilateral, rather than
multilateral, which could in turn create a possibility for resolution and de-escalation. Part of this as well is
that the nine-dash line be without legal effect. As of 2009, the South China Sea ASEAN states advocated
such a position.[41] In light of the Tribunal’s ruling, this could be a potential path forward.

Article 121(3) was a provision of deliberately negotiated vagueness, thus Tribunal’s rock/island criteria
can be viewed perhaps as “missionary” work. The rock or island criteria in the Award may result in states
able to more readily reach maritime boundary agreements and adjudicative bodies more readily make such
determinations. It will be future tribunals, courts, and state practice that will determine whether this
“missionary” aspect of the Award finds favour.

Of final note, concerns about whether the Award and China’s rejection of it have undermined confidence
in UNCLOS dispute resolution procedures are perhaps misplaced. Subsequent to the commencement of
the South China Sea Arbitration, three parties have brought cases before ITLOS and two have commenced
UNCLOS, Annex VII arbitration cases.
MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011 Art 47 (2): the length of baselines shall not exceed 100 mm.

Facts: KIG and SS are far from our baselines, if we draw to include them, we’ll breach the rules: that it should
follow the natural configuration of the archipelago.
In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an
Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over their
territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in R.A. 3046 reserving
the drawing of baselines around Sabah.

In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The
requirements complied with are: to shorten one baseline, to optimize the location of some basepoints and
classify KIG and Scarborough Shoal as ‘regime of islands’.

Petitioner now assails the constitutionality of the law for three main reasons:

1. it reduces the Philippine maritime territory under Article 1;

2. it opens the country’s waters to innocent and sea lanes passages hence undermining our sovereignty and
security; and

3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over those territories.

Issue: Whether R.A. 9522 is constitutional?


1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that
regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints along
coasts, serving as geographic starting points to measure. it merely notices the international community of
the scope of our maritime space.

2. If passages is the issue, domestically, the legislature can enact legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passages. but in the absence of such, international
law norms operate.

the fact that for archipelagic states, their waters are subject to both passages does not place them in lesser
footing vis a vis continental coastal states. Moreover, RIOP is a customary international law, no modern
state can invoke its sovereignty to forbid such passage.

3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it
increased the Phils.’ total maritime space. Moreover, the itself commits the Phils.’ continues claim of
sovereignty and jurisdiction over KIG.

If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent from the general
configuration of the archipelago’.
Southern Bluefin Tuna Case (Australia And New Zealand v Japan) (Jurisdiction And A Scientific, Industrial and Diplomatic Background
The Catch of Poseidon’s Trident: The Fate of High Seas Fisheries in the
Southern Bluefin Tuna Case
The dispute in question began because of SBT’s status as a highly migratory and highly prized culinary
INTRODUCTION delicacy. Traversing the high seas of the Southern Hemisphere and the exclusive economic zone and
territorial waters of states such as Australia and New Zealand,[12] SBT is also on the main marketing
menu as sashimi in Japan[13] — so much so that SBT stocks have diminished drastically since
commercial harvesting began in the 1950s.[14] Despite the setting in 1989 of a TAC of 11 750 tonnes for
On 18 April 2001, Australia, New Zealand and Japan met for the Seventh Annual Session of the
the three states collectively, stocks continued to deplete. For this reason, it is particularly distressing that
Commission for the Conservation of Southern Bluefin Tuna (‘Commission’).[1] Although they have now
11 750 tonnes is the exact TAC used today.[15] Indeed, the ongoing inability of the parties to negotiate a
agreed to a joint scientific research program on how to conserve depleting stocks of southern bluefin tuna
revised TAC provides a strong reason alone why the Tribunal ought to have found that it had jurisdiction,
(‘SBT’),[2] they failed (as they have since 1994) to conclude a total allowable catch (‘TAC’) of tuna for
so that it could have set a new TAC itself.
2001.[3] Until a TAC is formally set, each state will adhere to the national quotas last allocated by the
Commission — but here’s the catch: Japan wants another 711 tonnes on top.[4]
The 11 750 tonne TAC has, as mentioned, been maintained since it was first created in 1994, pursuant to
article 8(3) of the 1993 Convention for the Conservation of Southern Bluefin Tuna.[16] The fact that a
Japan’s claim for an extra 711 tonnes of tuna is based on the SBT Case,[5] which is the subject of this case
TAC has been established (subject to revision), however, has not deterred Japan from seeking catches
note. In that case, the majority of an arbitral tribunal (‘Tribunal’) convened under the United Nations
above its national quota of 6065 tonnes. After failing in a request for an additional 6000 tonnes and a joint
Convention on the Law of the Sea[6] decided that it was without jurisdiction to hear the claim of Australia
EFP, in 1998 Japan commenced a unilateral, three-year EFP with an estimated catch of 1464 tonnes of
and New Zealand that Japan had breached international legal obligations by fishing tuna in excess of its
SBT, despite strong protests from Australia and New Zealand.[17] This is how the legal battle began.
TAC while conducting a unilateral ‘experimental fishing program’ (‘EFP’).[7] In addition, the Tribunal
unanimously revoked[8] provisional measures implemented by the International Tribunal for the Law of
the Sea (‘ITLOS’) which had required the parties to ensure that their annual catches did not exceed the B Legal Background: Dispute Resolution Mechanisms under the 
TAC.[9] Specifically, ITLOS had ordered that, in calculating the annual catches for 1999 and 2000,
account should be taken of the catch during 1999 that was part of an EFP — namely, 711 tonnes of tuna.
With the ITLOS Order revoked by the SBT Case, Japan now wants the tuna back.[10] The outcome of the legal dispute which emerged turned on a close analysis of the dispute resolution
procedures under the CCSBT and UNCLOS. Before addressing the way in which the parties relied on these
mechanisms, the relevant provisions are summarised in the following outline:
This case note examines the SBT Case and its implications for fisheries management and international
law. The principal argument of the case note is that the Tribunal adopted an unfavourable approach in
interpreting the treaties central to the parties’ dispute and should have found that it had jurisdiction, The CCSBT applies to resolve a dispute where the parties:
particularly as a decision on the case’s merits would have assisted future tribunals formed — as this one
was — under UNCLOS. However, it is conceded that, while the importance of the rule of law should have
led to a finding of jurisdiction in the SBT Case, this may not always be so for subsequent tribunals. 5. article 16(1): consult to resolve the dispute by using:
6. negotiation, inquiry, mediation or conciliation; or
7. arbitration or judicial settlement; or
The analysis in this case note is divided into three parts. Part II summarises the main factual and legal 8. ‘peaceful means of their own choice’; but
background to the SBT Case and argues that the ITLOS Order was correct in its finding that the Tribunal 9. article 16(2): if the methods in article 16(1) do not work, the parties must:
would prima facie have jurisdiction to hear the dispute. Part III examines the case itself. First, it considers 10. with every party’s consent, refer the dispute to arbitration or the International Court of Justice (‘ICJ’);
the parties’ arguments. Second, it assesses the Tribunal’s decision and argues that the Tribunal used a or
three-pronged policy instrument — termed ‘Poseidon’s Trident’ — in reaching its conclusions. The 11. without every party’s consent, continue to seek to resolve the dispute using the methods in article
majority’s findings are critiqued and it is argued that the majority based its holding of no jurisdiction on 16(1).
only two of the trident’s three policy prongs, namely ‘positivism’ and ‘caution’. Then the dissent is UNCLOS Part XV applies to resolve a dispute where the parties:
examined and is seen to have been influenced predominantly by the last of the policy prongs, ‘clarity’. It is
argued that this third prong constitutes a sensible policy ground for assessing jurisdiction, and should have
been a guiding force in the majority’s decision-making process. Part IV considers the implications arising • article 283(1): have an ‘exchange of views’ towards settling by peaceful means; and
from the Tribunal’s three-pronged policy instrument and from its decision that it had no jurisdiction. First, • article 280: ‘agree at any time’ to settle the dispute by ‘any’ peaceful means; and
the implications for UNCLOS interpreters (lawyers and adjudicators) are addressed, with particular • article 281(1):
reference to the relationship of UNCLOS to the 1995 Straddling Stocks Agreement.[11] Second, • limb 1: they have so ‘agreed’ and no settlement has been reached; and
implications for the development of fisheries management are suggested. Finally, the implications for the • limb 2: that ‘agreement’ ‘does not exclude any further procedure’.
role of UNCLOS tribunals are considered and it is argued that this Tribunal, while having a function in Australia and New Zealand first responded to Japan’s actions by invoking article 16(1) of the CCSBT, in
encouraging the parties to settle the dispute themselves, could have played a more important part in order to negotiate new terms for a joint EFP. However, ‘an accord was not achieved’[18] — far from it.
perpetuating the rule of law. It is concluded that tribunals such as the one in the SBT Case should ‘catch’ Instead, Japan issued an ultimatum in May 1999 to the effect that, unless Australia and New Zealand
their decisions using all three prongs of Poseidon’s Trident, and at least comprehensively consider accepted Japan’s proposal for a joint EFP, Japan would recommence its unilateral EFP.[19] Australia and
(without necessarily favouring) the benefits of the rule of law in deciding whether or not to accept New Zealand did not accept this proposal, seeing Japan’s EFP as a significant risk to the SBT stock.[20]
jurisdiction. They then issued their own ultimatum, stating that if Japan recommenced unilateral experimental fishing,
they would regard this as a ‘termination by Japan of negotiations’ under article 16(1) of the CCSBT.[21]
Japan ignored this notice and resumed its EFP on 1 June 1999, replying that it had no intention of
II BACKGROUND: DISPUTES OVER TUNA FISHING terminating negotiations under the CCSBT.[22]
The next response of Australia and New Zealand was to argue, on 23 June 1999, that the dispute related to ITLOS, although with a few added technical twists. Its arguments, sprawled and ‘summarised’ across 22
Japan’s obligations not only under the CCSBT, but also under UNCLOS, whose article 283(1) (a main step sub-paragraphs of the Tribunal’s judgment, were, in brief, either that:
in triggering the application of UNCLOS) had been met because there had been the requisite ‘exchange of
views’ between the parties.[23] Accordingly, Australia and New Zealand maintained, the UNCLOS
dispute resolution mechanism could be used.[24] On the very same day, Japan once again ignored its 1. the dispute should be governed by the CCSBT, but not by UNCLOS, because the CCSBT is the lex
opponents’ arguments and offered mediation under the CCSBT.[25] Australia said that it would agree, specialis which supplants the UNCLOS provisions and whose article 16 had the capacity to
subject to Japan’s halting its unilateral EFP in the meantime.[26] Japan refused.[27] Consequently, deal with all the claims in the case;[40] or
Australia notified Japan that it had decided to commence compulsory dispute resolution under UNCLOS 2. if the dispute did arise under both conventions, only the CCSBT applied here because:
Part XV.[28] Australia and New Zealand requested the establishment of an arbitral tribunal pursuant to (a) pursuant to UNCLOS article 280, UNCLOS could not apply, since:
UNCLOS Annex VII[29] and, pending the constitution of this tribunal, sought the prescription by ITLOS
of provisional measures (including the immediate cessation of Japan’s EFP) under UNCLOS article (i) the parties had chosen CCSBT article 16 as their ‘peaceful means’ of dispute settlement; and

(ii) choosing article 16 meant that that no other dispute system applied; or
C The Case before ITLOS and the Decision on Jurisdiction

(b) pursuant to UNCLOS article 281(1), UNCLOS could not apply, since:
In accordance with article 290(5), Australia and New Zealand had to convince ITLOS ‘that prima facie the
tribunal which [was] to be constituted would have jurisdiction’ and that the urgency of the situation
required the prescription of provisional measures. They relied on certain alleged breaches by Japan of (i) the parties had ‘agreed’ to use CCSBT article 16 as their ‘peaceful means’ (so the first limb of article
281(1) was negated); and
duties to co-operate under the CCSBT and UNCLOS to conserve SBT stocks,[31] and encouraged ITLOS
to order that the parties act consistently with the precautionary principle, pending the final decision.[32]
Japan, in response, denied the operation of UNCLOS and claimed that the dispute settlement procedures (ii) the ‘agreement’ under article 16 operated to ‘exclude any further procedure’, including the UNCLOS
under the CCSBT had not yet been exhausted. compulsory system (so the second limb of article 281(1) was negated);[41] or

On 27 August 1999, ITLOS issued an order finding that prima facie the Tribunal would have (c) since some treaties (such as the CCSBT) do not contain compulsory adjudication provisions, while
jurisdiction[33] and prescribing provisional measures.[34] ITLOS held that the matter was sufficiently others (such as the Straddling Stocks Agreement[42]) do, the parties to the CCSBT ‘chose to avoid’
urgent to make an order and stressed that the parties should ‘act with prudence and caution’ and ‘intensify obligations for compulsory adjudication, such as those found under UNCLOS. To find otherwise would be
their efforts to cooperate’ to ensure effective conservation measures.[35] More critically to this discussion, to ‘disturb the host of dispute settlement provisions in treaties’ in cases relating to UNCLOS matters.[43]
ITLOS also found that the CCSBT’s application did not exclude the parties’ right to invoke UNCLOS
provisions, including the procedures under Part XV, s 2 (compulsory procedures entailing binding
decisions), whose requirements had been fulfilled.[36] In return, Australia and New Zealand relied on the findings of the ITLOS Order; the importance of the
UNCLOS dispute settlement regime which should ‘not permit evasion’; and Japan’s potential breach of
international obligations. ‘This is the old anarchy returned in procedural guise’, they said, commenting on
What is interesting about the ITLOS Order is that, of the 22 judges who presided over the case, only one, Japan’s technical arguments.[44]
Judge ad hoc Shearer, made any decisive comments on the issue of jurisdiction. While the other judges
who submitted separate opinions focused on the questions of urgency, co-operation and caution, Judge ad
hoc Shearer comprehensively dealt with all of the issues at hand. Yet, perhaps the conclusion to be drawn Procedural guise or not, however, there remained four central questions (from Japan’s submissions) to be
from the judges’ lack of commentary on jurisdiction is that they considered it indisputable that the answered by the Tribunal:
Tribunal would prima facie have jurisdiction to hear the case on its merits, and that this was therefore not
an issue needing elaboration. Indeed, it may be that some members of the Tribunal might have gone as far
1. Could the CCSBT and UNCLOS operate in parallel to cover this dispute?
as Judge ad hoc Shearer did in saying that the jurisdiction of the Tribunal even went ‘beyond the level of
2. For the purposes of UNCLOS article 280 and the first limb of article 281(1), was the choice to use
being merely prima facie’ and should be ‘regarded as clearly established’.[37]
CCSBT article 16 an ‘agreement’?
3. For the purposes of the second limb of UNCLOS article 281(1), did the ‘agreement’ to use CCSBT
Unfortunately, the Tribunal, which was constituted shortly after the ITLOS decision, did not refer to Judge article 16 ‘exclude’ UNCLOS procedures?
ad hoc Shearer’s opinion (albeit in obiter) that the Tribunal’s jurisdiction was indubitable, and simply 4. Did the CCSBT’s absence of compulsory adjudication amount to an intent to exclude UNCLOS
found that ‘[i]n any event, the ITLOS holdings upheld no more than the jurisdiction prima facie of this compulsory adjudication?
Tribunal.’[38] It therefore remained open to the Tribunal to begin consideration of Japan’s preliminary The following sections analyse the approaches of the majority and dissent to these questions. At a
objections to jurisdiction.[39] superficial level, the case turned on wholly opposite answers to question 3. At a deeper level, the case
turned on the policies underpinning the majority and dissenting judgments. It is argued that a policy of
positivism underscored the majority’s findings, which stemmed from the view that states have a will and
III THE ARBITRAL TRIBUNAL: WIELDING POSEIDON’S TRIDENT intent to ‘agree’ (as under UNCLOS articles 280 and 281) to settle disputes themselves.[45] Further, a
policy of caution influenced this decision, in that the majority judges were resistant to interfering with the
states’ activities. By contrast, a policy of clarity was what shaped the dissenting opinion: clear words,
A Challenging the Tribunal’s Jurisdiction above the ability of states to come to their own ‘agreements’, were the decisive factor. The majority and
dissenting opinions are considered below.

Unsurprisingly, Japan’s main claims attacking the Tribunal’s jurisdiction were similar to those used before
B The Majority: Striking with the Prongs of Positivism and Caution establish the inadmissibility of UNCLOS. The Tribunal’s willingness to entertain this approach is probably
due less to a belief in the logic of its answer to the ‘agreement’ question than to its underlying positivist
motivation in allowing the parties to ‘agree’ for themselves. This policy argument is no better illustrated,
1 Could the CCSBT and UNCLOS Operate in Parallel to Cover this Dispute? however, than in the Tribunal’s answer to the third question.

3 For the Purposes of the Second Limb of UNCLOS Article 281(1), Did the ‘Agreement’ to Use
In arguing the importance of UNCLOS as a regulatory treaty, Australia and New Zealand claimed that if CCSBT Article 16 ‘Exclude’ UNCLOS Procedures?
Japan were correct in asserting that the CCSBT ousted the relevance of UNCLOS to the proceedings, then
this would mean that the provisions of UNCLOS for mandatory dispute settlement are a ‘paper umbrella
which dissolves in the rain’.[46] As it happens, they succeeded on this point. Rejecting Japan’s lex
specialis argument (which said that the CCSBT eclipsed UNCLOS), the Tribunal accepted that ‘[t]here is To negate the applicability of the UNCLOS compulsory settlement provisions, Japan had to demonstrate
frequently a parallelism of treaties’, such that ‘the conclusion of an implementing convention does not under the second limb of article 281(1) that its ‘agreement’ with Australia and New Zealand ‘exclude[d]
necessarily vacate the obligations imposed by the framework convention [UNCLOS] upon the parties to any further procedure’.[56] The Tribunal found that, although CCSBT article 16 did ‘not expressly and in
the implementing convention’.[47] so many words exclude the applicability of any procedure, including the procedures of s 2 of Part XV of
UNCLOS’, ‘the absence of an express exclusion of any procedure in Article 16 is not decisive’.[57]

This finding, while not crucial to the case because the dissenter reached the same conclusion on this
issue,[48] is instructive to the extent that it indicates that international agreements — such as the UN ‘Then what’, a future UNCLOS litigant or tribunal might ask, ‘is decisive’? The answer would seem to
Charter — may, and often must, operate in tandem with other agreements.[49] However, the limitation in stem initially from the notion of consent under CCSBT article 16:
this part of the decision is that the lex specialis concept is not particularly well delineated: it is merely
mentioned and then dismissed because ‘it is a commonplace of international law and State practice for The ordinary meaning of these terms of Article 16 makes it clear that the dispute is not referable ... to
more than one treaty to bear upon a particular dispute’.[50] As a result, parties wishing to rely on or arbitration, ‘at the request of any party to the dispute’ (in the words of UNCLOS Article 286). The consent
negate a lex specialis rule have little to guide them except that the ‘general’ will often take precedence in each case of all parties to the dispute is required. Moreover ... [t]he effect of [the] express obligation to
over the ‘specific’ in such cases. continue to seek resolution of the dispute by the listed means of Article 16(1) is not only to stress the
consensual nature of any reference of a dispute to either judicial settlement or arbitration. That express
2 For the Purposes of UNCLOS Article 280 and the First Limb of Article 281(1), Was the Choice to obligation equally imports, in the Tribunal’s view, that the intent of Article 16 is to remove proceedings
Use CCSBT Article 16 an ‘Agreement’? under that Article from the reach of the compulsory procedures of section 2 of Part XV of UNCLOS, that
is, to exclude the application to a specific dispute of any procedure of dispute resolution that is not
accepted by all parties to the dispute.[58]
What the Tribunal says, then, is that the requirements for consent to refer the dispute anywhere, and to
In the Tribunal’s words, ‘[t]he Tribunal accept[ed] Article 16 of the 1993 Convention as an agreement by keep seeking to resolve the dispute, mean that it was ‘the intent’ of article 16 to keep dispute resolution
the Parties to seek settlement of the instant dispute by peaceful means of their own choice’,[51] thereby well out of the bounds of compulsory adjudication elsewhere. This reading of the CCSBT was supported
satisfying the ‘terms and intent’ of articles 280 and 281(1).[52] It was necessary for the Tribunal, in by the fact that article 16(3) provides its own arbitration system.[59]
making such a finding, to show in clear terms why precisely article 16 was an ‘agreement’. It failed to do
so. What it did do was justify its finding by focusing instead on the ‘peaceful means’ feature of the
UNCLOS articles, citing article 16 as a ‘list of various named procedures of peaceful settlement’.[53] This To say that there might have been an intent specifically to exclude compulsory arbitration elsewhere,
‘list’ could hardly be seen to be an ‘agreement’ in itself. Indeed, the Tribunal, without recognising it, given the settlement options already available to the parties, seems reasonable. However, to conclude this
implicitly negated the finding of the existence of an agreement by stating that ‘[n]o particular procedure in as strongly as the Tribunal did, without detailed reference to extrinsic materials (such as Commission
this list has thus far been chosen by the Parties for settlement of the instant dispute’.[54] Thus, despite reports) could only create problems for future UNCLOS tribunal members attempting to interpret the
holding that the UNCLOS ‘agreement’ requirements had been satisfied, the Tribunal did not point to any interaction between a treaty with its own settlement system and the UNCLOS compulsory mechanism.
actual evidence of a settled agreement. Moreover, the Tribunal’s subsequent argument, that the presence of rules in UNCLOS excluding certain
claims from the treaty’s compulsory jurisdiction implied that this claim, too, could be excluded,[60] also
appears to be poorly sustained. Perhaps, because of these specific exclusions, the Tribunal could
Had the Tribunal paid more regard to the applicants’ arguments and to the decision of Judge ad hoc justifiably claim that UNCLOS ‘falls significantly short of establishing a truly comprehensive regime of
Shearer in the ITLOS Order, it may have reached a different result. For, as Judge ad hoc Shearer compulsory jurisdiction entailing binding decisions’.[61] However, it seems a far cry from this comment
commented, for the Tribunal to conclude that other ‘implied’ exclusions from the compulsory jurisdiction of UNCLOS
must also exist — particularly since this point was not even argued by Japan.
this dispute resolution procedure is essentially circular, since if the parties are not agreed on reference to
arbitration or judicial settlement the process of negotiation goes around and around, potentially without Given that the Tribunal’s formal decision-making process here is unconvincing, its conceivable
end. It was because of their frustration with the failure of Japan to agree to a binding dispute settlement underlying policy motivations might be considered again. Here, more than on the previous occasion, the
procedure under this provision that Australia and New Zealand instituted proceedings under Part XV of notion of a state’s consent to a procedure, coupled with the idea that there was some ‘intent’ embedded in
the United Nations Convention on the Law of the Sea.[55] its treaty, would seem to support the contention that the Tribunal’s decision is underpinned by an inherent
Article 16 of the CCSBT, Judge ad hoc Shearer quite rightly observes, was a merry-go-round provision positivist policy motivation.
that forced its signatories into a fruitless negotiation cycle, and Australia and New Zealand were justified
in resorting to the UNCLOS settlement system. This seems far from an ‘agreement’ to settle the dispute.
4 Did the CCSBT’s Absence of Compulsory Adjudication Amount to an Intent to Exclude UNCLOS
Compulsory Adjudication?
What can be seen, then, is that a glossed approach to Japan’s arguments had to be taken in order to
The only substantive way in which the Tribunal answered this question was by reference to the procedure shall be an exclusive one and that no other procedure (including those under Part XV) may be
resorted to”.’[67] His Honour felt that such ‘strong and particular wording would appear to be
required’,[68] given the parallelism of the two treaties and the requirement under article 30(3) of the
significant number of international agreements with maritime elements, entered into after the adoption of Vienna Convention on the Law of Treaties[69] that an earlier treaty applies ‘only to the extent that its
UNCLOS, [which] exclude with varying degrees of explicitness unilateral reference of a dispute to provisions are compatible with those of the later treaty’. Pursuing this theme of the need for definite
compulsory adjudicative or arbitral procedures.[62] expression, his Honour went on to say that:
To this extent, there is obviously overlap with the answer to the preceding question, since the Tribunal is
referring explicitly to treaties’ direct (implied or express) exclusions of compulsory adjudication
processes. This can be distinguished from the mere absence in one treaty of its own compulsory The need for clear wording to exclude the obligations to submit to the UNCLOS binding procedure,
adjudication system as a ground for seeking to establish an intent to exclude another treaty’s compulsory beyond the wording found in article 16, is further supported by other particular provisions of Part XV and
jurisdiction. In essence, the Tribunal never actually answered Japan’s last question: it simply explained it by the pivotal role compulsory and binding peaceful settlement procedures played and play in the
by assessing the rules on what happens when a treaty expressly or impliedly excludes another treaty’s preparation and scheme of UNCLOS.[70]
compulsory adjudication. Absence of a compulsory system in a treaty would therefore have to fall under This passage represents the essence of Justice Keith’s judgment. He stressed the ‘need for clear wording’
the category of an ‘implied’ rejection of the UNCLOS compulsory adjudication section. to exclude the UNCLOS compulsory jurisdiction, in direct contrast with the majority, whose approach had
been to skirt around the absence of clear wording and imply an exclusion of UNCLOS dispute settlement
into the CCSBT. Both the majority and the dissent focused on what was not in the CCSBT and also,
The Tribunal was of the view that the existence of a body of treaties which contained ‘mutually agreed interestingly enough, aimed to discern what the parties to the CCSBT had intended. The key difference
procedures’ such as those found under the CCSBT between the judgments is that, when the majority, in positivist style, attempted to ‘read in’ the will of the
states parties to the CCSBT, it did so largely in the absence of extrinsic materials. Justice Keith, by
tends to confirm the conclusion that States Parties to UNCLOS may, by agreement, preclude subjection of contrast, used other provisions of UNCLOS, as well as a variety of additional sources, to assess what the
their disputes to section 2 procedures in accordance with Article 281(1). To hold that disputes implicating parties had originally intended (rather than, as the majority saw it, what they wanted now).
obligations under both UNCLOS and an implementing treaty such as the 1993 Convention — as such
disputes typically may — must be brought within the reach of section 2 of Part XV of UNCLOS would be What follows in Justice Keith’s judgment may be seen to be a blend of positivist and clarity approaches,
effectively to deprive of substantial effect the dispute settlement provisions of those implementing which is why the two (somewhat different) approaches can be seen to stem from the same instrument.
agreements which prescribe dispute resolution by means of the parties’ choice.[63] Justice Keith looked to s 1 of Part XV of UNCLOS and observed that ‘the emphasis of the section is on the
The essence of the Tribunal’s decision is that parties should be able to create and apply their own dispute Parties’ freedom of choice of means’.[71] He then observed that the overall ‘structure itself supports the
resolution systems. This, it is submitted, is the tenor of the Tribunal’s positivist policy approach to the need for States to include clear wording in their agreements if they are to remove themselves from their
case. Moreover, a note of caution is instilled at the end: to hold that the parties were subject to UNCLOS otherwise applicable compulsory obligations arising under section 2’.[72] Extending this argument, he
dispute resolution procedures here could mean that other parties would be subject to UNCLOS whenever noted the requirement under s 3 of Part XV specifically to opt out of certain compulsory processes. While
their specific treaties did not expressly or impliedly exclude the compulsory mechanisms under UNCLOS. the majority saw the presence of this section as providing some implied portal by which a state could
From the Tribunal’s perspective, this would be too heavy a burden to place on parties to conventions who escape compulsory jurisdiction, Justice Keith viewed these specific exclusions as an indication that, where
wanted to follow their own system of dealing with disputes, and too precarious a finding to inflict on states had wanted to exclude the operation of UNCLOS, they had already provided so explicitly, with clear
parties to come. The rationale is one of cautious non-interference with states’ rights. What can be seen, wording.[73] Finally — and this is what really separated his judgment from that of the majority — Justice
therefore, is the melding of two policies, those of positivism and caution. These two policies, adopted by Keith referred to ‘the widely stated and shared understanding, expressed throughout all the stages of the
the majority, are the first two prongs of Poseidon’s Trident. The following section examines the third. Conference which prepared [UNCLOS], about the critical central place of the provisions for the peaceful
settlement of disputes’.[74] While the majority had drawn somewhat loose analogies with the Antarctic
C The Dissent of Justice Keith: The Clarity Prong Appears Treaty,[75] Justice Keith sensibly looked to the origins of the very treaty being interpreted. What he
recognised may actually amount to a dismissal in part of the positivist conception of states, since

It seems fitting that the judgment embracing what has been termed the ‘clarity’ policy approach to [t]he States at that Conference moved decisively away from the freedom which they generally have in
jurisdiction contains the clearest appraisal of the law relevant to the SBT Case. Decision aside, the their international relations not to be subject in advance to dispute settlement processes, especially
explanation by Justice Keith, dissenting in the case,[64] is concise, well structured, and persuasive. The processes leading to binding outcomes.[76]
issue is its logic. This is an example of one of the ways in which UNCLOS has impinged on the longstanding freedom of
the high seas.[77] The passage indicates that, in interpreting whether or not the UNCLOS compulsory
Ultimately, the only point on which Justice Keith disagreed with the majority in any full sense was the settlement provisions apply, the positivist or cautious approach will give way to the clarity approach,
contention that the ‘agreement’ between the parties as constituted by CCSBT article 16 excluded any although the ‘delicate equilibrium of the compromise’ between states will still be present.[78]
further agreement for the purposes of the second limb of UNCLOS article 281(1). Interestingly, Justice Consequently, the objects of UNCLOS, ‘along with the plain wording’ of the UNCLOS and CCSBT
Keith did not feel convinced that CCSBT article 16 was an ‘agreement’, but because he conceded that articles, led Justice Keith to his conclusion that the CCSBT ‘does not “exclude” the jurisdiction of this
there was ‘a good argument that in their diplomatic exchanges the Parties did agree to settle the dispute by tribunal in respect of disputes arising under UNCLOS.’[79]
negotiation’,[65] he was able to proceed with his interpretation of limb 2 of article 281(1).
So there we have it: three separate but interlocking policy approaches and, as one commentator has put it,
In considering whether or not article 16 excluded the UNCLOS obligations, Justice Keith, like the two ‘radically different interpretations of the treaty’.[80] No more radically different, though, than when
majority, was forced into an analysis of whether the CCSBT article ‘impliedly exclude[d] the UNCLOS the following passage from Justice Keith, whose
procedures’,[66] since there was no express provision to that effect. In the first main step of his analysis,
Justice Keith considered the wording of article 281(1) — ‘exclude any further procedure’ — and reasons for concluding that article 16 does not exclude any further procedure and in particular the
concluded that ‘the phrase “envisages the possibility that the Parties ... may also specify that this compulsory binding procedures under section 2 of Part XV are to be found in the ordinary meaning of the
terms of the two treaties read in their context and in the light of their objects and purposes[81] it’.[86] In particular, article 4 of the Straddling Stocks Agreement provides that that agreement ‘shall be
is compared with the following words of the majority: interpreted in the context and in a manner consistent with [UNCLOS]’. Furthermore, article 30(2) adopts
mutatis mutandis, for the settlement of disputes concerning the interpretation and application of the
Straddling Stocks Agreement, the provisions set out in Part XV of UNCLOS.[87]
The ordinary meaning of these terms of Article 16 makes it clear that ... the intent of Article 16 is to
remove proceedings under that Article from the reach of the compulsory procedures of section 2 of Part
XV of UNCLOS, that is, to exclude the application to a specific dispute of any procedure of dispute As at 27 August 2001, 29 of the required 30 states had ratified the Straddling Stocks Agreement, which has
resolution that is not accepted by all parties to the dispute.[82] therefore not yet come into force.[88] When it does, as the Tribunal observed, it
These antithetical opinions on an identical issue toll the ringing irony of the SBT Case: that, even on the
‘ordinary meaning’ of words, the Tribunal could not reach agreement.
should, for States Parties to it, not only go far towards resolving procedural problems that have come
before this Tribunal but, if the Convention is faithfully and effectively implemented, ameliorate the
Anyone attempting to draw ‘principles’ from the Tribunal’s decision may have trouble doing so. The substantive problems that have divided the Parties.[89]
majority produced a judgment that was thin on logic and dense in positivist, cautious policy. More can be As far as those parties are concerned, Australia and New Zealand have ratified the Straddling Stocks
gained from Justice Keith’s dissent and ‘clarity’ approach, but when his construction of the ‘ordinary Agreement, but Japan remains only a signatory at this stage. One can be sure, though, that the Straddling
meaning’ of words wholly conflicts with that of four other judges, what hope is there for judges in the Stocks Agreement will prove very influential in the future interpretation and settlement of UNCLOS-
future? Ultimately, all we have been left with is a three-pronged policy instrument, and no clear rules. The related disputes.
Tribunal produced Poseidon’s Trident, but never showed us how or why to use it. With this in mind, the
SBT Case does not augur well for anyone trying to interpret the ambit of a convention; nor for fisheries
wishing to collect the spoils of the high seas; nor for future UNCLOS tribunals which have to make B Implications for Fisheries Management and Disputes
decisions about disputes. The next section will consider the implications of the case for each of these
interested parties.
We have already seen that the Straddling Stocks Agreement will play a key role in regulating migratory
and straddling stocks. In addition, the case law such as that stemming from the SBT Case will be vital in
INTO THE TRIDENT guiding fisheries on how to protect stocks, but at the same time maintain their commercial interests
without breaching international obligations. Lessons from the recent Patagonian toothfish incident[90] are
enough to explain this, not to mention Japan’s ‘scientific’ whaling, where ‘experimental’ specimens
A Implications for UNCLOS Analysts eventually found themselves on Japanese dinner plates. It is clear that fisheries have to tread carefully, as a
fair degree of cynicism about their activities can emerge in the political domain. Take, for example, this
Greenpeace campaign against the Japanese government in the 1980s:
Thus far, three modes of dealing with conflicting clauses in treaties have been observed: those of
positivism, caution and clarity — with each forming one prong of the jurisdiction-determining trident. The
Question: How do you define a Japanese fishing researcher?
positivist and the cautious approaches led to jurisdiction being denied in the SBT Case. A combination of
Answer: Hungry![91]
the positivist and clarity approaches saw jurisdiction asserted. However, interpreting the ‘ordinary
With this in mind, fisheries need to know just what their international obligations are. A recent article by
meaning’ of words proved a disaster in the case. What lawyers advising their clients are left with, then, is
Professor Gillian Triggs has considered the ITLOS Order and another case, Shrimp–Turtle,[92] to see
not only an absence of a decision on the merits of the case, but also a virtual absence of rules on how to
whether obligations developed in these cases could be applied successfully to Japan’s conceivably
resolve disputes where the settlement procedures of a particular treaty come up against those of UNCLOS.
illegitimate ‘scientific’ whaling.[93] In particular, the article examines emerging ‘abuse of right’ and
With this in mind, future UNCLOS analysts attempting to discern the ambit of the treaty’s dispute
‘good faith’ doctrines and finds them to be ‘recognised norms of general international law’ that are
settlement system may take into account the following, but few, implications which can be drawn from the
available to be applied by tribunals.[94] From the ITLOS Order, Triggs distils ‘persuasive authority for
SBT Case:
future fisheries disputes’ to the effect that there is ‘an international law standard requiring the exercise of
prudence and caution to prevent serious risks of depletion of fisheries stocks’.[95]
• UNCLOS will almost always apply in tandem with a particular treaty on similar terms.
• A tribunal may see the presence of a settlement system (even if slightly vague or circular) in a
Fisheries’ obligations, then, could well entail, amongst other things, exercising their treaty rights in a bona
particular treaty as impliedly ousting the compulsory jurisdiction of UNCLOS.
fide manner (the ‘abuse of right’ principle from Shrimp–Turtle) and acting with caution to conserve
• A tribunal might, however, look to the wording of the treaty, to the presence of specific exclusions in
stocks. Had the SBT Case been decided on its merits, therefore, Australia and New Zealand might have
UNCLOS, and to extrinsic material,[83] and decide that there would be jurisdiction under
had recourse to an argument that Japan was not exercising its treaty rights in good faith. Alas, as we know,
the Tribunal never came to this point. Thus, as Triggs herself pointed out (writing before the Tribunal’s
• States parties to conventions whose provisions (such as those in the CCSBT) may or may not oust the
decision was handed down), because in the ITLOS Order the substantive legal issues had not yet come
compulsory jurisdiction of UNCLOS could validly amend the treaty by agreement under VCLT
before the Tribunal, the order ‘should be employed with caution’.[96]
article 39 in order to reconcile the provisions of the treaties and specifically choose one system
over another.[84]
• Drafters of conventions involving the law of the sea should make sure that the dispute settlement This does not leave fisheries or their lawyers in an enviable position. Not only has the SBT Case failed to
provisions are in extremely clear terms — perhaps with a clause stating that, after a specifically provide them with clear procedural rules (as to when UNCLOS compulsory settlement provisions will
prescribed amount of time, certain definite events (such as automatic arbitration) should occur. apply), it has also failed to advance the jurisprudence on the substantive rules which emerged from the
• Drafters of conventions may even wish to state that the jurisdiction of UNCLOS should apply in any ITLOS Order and the Shrimp–Turtle case. The only implication that can be drawn from the SBT Case for
event, to avoid conflicts such as those found in the SBT Case. fisheries management and dispute resolution is that parties will have to resort to the former cases to find
In relation to the last suggestion, it is noteworthy that this is exactly what has happened in the Straddling out what rules bind them.
Stocks Agreement.[85] As Judge Treves wrote in the ITLOS Order, ‘[e]ven though this Agreement is
independent from the United Nations Convention on the Law of the Sea, it has remarkable links with
C Implications for the Role of UNCLOS Tribunals Australia and New Zealand won the first part of the SBT war. But when the decision of the Tribunal in the
SBT Case was handed down, they were forced back into the negotiation room with Japan, and have now
been forced into a joint EFP. This would appear to be the only major drawback of the Tribunal’s failure to
Triggs was probably correct in asserting that ‘[t]he jurisdictional findings of the ITLOS in the Southern decide the case on its merits, except that its decision means that subsequent parties to fisheries disputes
Bluefin Tuna Cases indicate that this tribunal will be a significant means for judicial resolution of high have no more principles than before on which to rely. The Tribunal, therefore, missed an ideal opportunity
seas fisheries disputes in the future’.[97] ITLOS had already made a sensible finding in the M/V ‘Saiga’ to establish a judicial regime on fisheries management. As a result, all we have now is an instrument for
Case,[98] and its decision in the ITLOS Order was arguably appropriate too. The implication, therefore, is rejecting jurisdiction on policy grounds — with no explanation as to when to apply it.
that the role of ITLOS in the future will be an important, and hopefully fruitful, one.
What, then, of the fate of high seas fisheries? That will depend on how the next sea tribunal hurls its
Less could possibly be said about the role of the next UNCLOS arbitral tribunal — at least from what we analytical instrument. What can only be hoped is that the tribunal aims to ‘catch’ its next decision using
saw in the SBT Case. The Tribunal there was ‘conscious of its position as the first arbitral tribunal to be all three prongs of Poseidon’s Trident, and that it directs that trident further from the coast of independent
constituted under Part XV’.[99] Not only was this the first time a Part XV tribunal has been formed: it was party negotiations and closer to the shore of the rule of law. Where the trident lands, however, is in the lap
also, according to Barbara Kwiatkowska, ‘the first time that an arbitral tribunal has declined to exercise of the gods.
jurisdiction over the merits of an inter-state dispute’.[100] Although this claim seems doubtful, it is true
that it is very rare for a tribunal hearing an international dispute to refuse to adjudicate a case on its
merits.[101] This fact may stem from a willingness of tribunals to come to a decision on jurisdiction while
bearing in mind the importance of the rule of law. The use of the rule of law as a foundation for deciding
jurisdiction has certainly played a part in ICJ decisions — the Nicaragua Case[102] is the best evidence of
that — so the Tribunal in the SBT Case could have followed the same pattern. Its failure to do so is
disappointing since, as the foregoing implications have shown, it could have shaped the law of high seas
fisheries for cases to come.

Naturally, though, there are cases in which it may not necessarily serve the interests of the rule of law for a
court or tribunal to find that it has jurisdiction where arguably it should not, for to do so could actually
undermine the international legal order.[103] Take, for example, the Nuclear Tests Case,[104] the NATO–

Kosovo Case[105] and the East Timor Case,[106] from which much valuable law could have emerged on
the legality of atmospheric testing; on the right of states to invoke humanitarian intervention; and on the
right of annexed territories to have the permanent sovereignty over their natural resources confirmed.
Nonetheless, there were several reasons for not supplying merits decisions in these cases, and these are all
arguments on which a supporter of the Tribunal’s decision in the SBT Case could rely. Firstly, finding
jurisdiction may undermine confidence in the international legal system. Secondly, a dispute may be seen
to be too ‘political’ to be suitable for determination by a judicial or arbitral body. In the SBT Case, for
instance, both the procedural and substantive arguments had a politically sensitive nature. As far as
procedure is concerned, it had been remarked by Judge ad hoc Shearer that ITLOS had ‘behaved less as a
court of law and more as an agency of diplomacy’[107] — and this, conceivably, is outside the scope of a
tribunal’s powers. As for substance, if a state were to argue an ‘abuse of right’ discourse before a tribunal,
this could be a ‘politically risky strategy for one nation to adopt in its relations with another’,[108] and
one in which a tribunal may not want to become involved. Finally, there is always the possibility that,
even where a tribunal or court makes a finding, it will not necessarily be implemented by the state

What, then, are the implications from the SBT Case regarding the role of UNCLOS tribunals? Firstly,
ITLOS has shown itself — albeit in only two cases — to be a reliable arbiter of sea disputes. Secondly, the
first ad hoc tribunal under Part XV has shown that it is not. That tribunal should have adopted, in addition
to its positivism and caution, a strong ‘clarity’ policy and a motivation to develop rules on fisheries
management, for the assistance of future UNCLOS interpreters. Finally, although the Tribunal in the SBT
Case should have paid more regard to the rule of law, this does not necessarily mean that future UNCLOS
(or, indeed, any) tribunals should necessarily do the same — for to wield Poseidon’s Trident in too unruly
a fashion could damage the law of the sea irreparably.