Journal of International Maritime Safety, Environmental

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Protracted maritime boundary disputes and maritime

laws

Md. Monjur Hasan, He Jian, Md. Wahidul Alam & K M Azam Chowdhury

To cite this article: Md. Monjur Hasan, He Jian, Md. Wahidul Alam & K M Azam
Chowdhury (2019) Protracted maritime boundary disputes and maritime laws, Journal
of International Maritime Safety, Environmental Affairs, and Shipping, 2:2, 89-96, DOI:
10.1080/25725084.2018.1564184

To link to this article: https://doi.org/10.1080/25725084.2018.1564184

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JOURNAL OF INTERNATIONAL MARITIME SAFETY, ENVIRONMENTAL AFFAIRS, AND SHIPPING
2018, VOL. 2, NO. 2, 89–96
https://doi.org/10.1080/25725084.2018.1564184

Protracted maritime boundary disputes and maritime laws

a,b
Md. Monjur Hasan , He Jiana,c, Md. Wahidul Alama,d and K M Azam Chowdhurye,f
a
School of Law, Ocean University of China, Qingdao, China; bDepartment of Law, University of Rajshahi, Rajshahi, Bangladesh; cThe
Marine Development Studies Institute, Ocean University of China, Qingdao, China; dInstitute of Marine Sciences and Fisheries, University
of Chittagong, Chittagong, Bangladesh; eCollege of Oceanic and Atmospheric Sciences, Ocean University of China, Qingdao, China;
f
Department of Oceanography, University of Dhaka, Dhaka, Bangladesh

ABSTRACT ARTICLE HISTORY

This paper concentrates on the protracted maritime boundary dispute with concern maritime Received 2 November 2018
laws. Maritime boundary dispute is a much-talked issue in the international legal arena. The Accepted 23 December 2018
countries are now becoming very much concerned with their maritime boundary for explor- KEYWORDS
ing and exploiting both its mineral and its food resources. But maritime boundary disputes Maritime boundary;
are the barrier to use marine resources for coastal countries. So, the defined maritime protracted dispute;
boundary is necessary for every coastal state to use their maritime zones. The disputes also boundary delimitation;
destroy the political harmony in international relation. Hence, the rapid settlement of mar- maritime laws; settlement
itime boundary dispute is of key importance for a peaceful coexistence of coastal states. process
Unfortunately, most of the disputes are delayed to be settled. United Nations Convention on
the Law of the Sea is the prime international instrument which deals with the procedures of
maritime boundary delimitation. This paper attempts to discuss the protracted maritime
boundary disputes and maritime laws. Many of the concepts discussed in this paper can
serve as guidelines for other countries that share coastlines.

Introduction in terms of finding out appropriate means and

measures as well as drawing attention to address some
Maritime boundary dispute is an alarming issue all over
concepts which as act as guidelines for the countries that
the world. The countries are now becoming very much
are in dispute due to share coastlines.
concerned about their marine resources because the
world economy has turned into ocean-based resources
termed as Blue Economy. So, every coastal state is aware Maritime boundary
of their maritime boundary for exploring and exploiting
Generally, a maritime boundary is a theoretical
both its mineral and its food resources. According to the
division of the Earth’s water surface areas using
Law of the Sea Convention, the length of territorial sea is
physiographic or geopolitical criteria. Thus, it
12 nautical miles, contiguous zone is 24 nautical miles,
usually bounds areas of exclusive national rights
and exclusive economic zone (EEZ) is 200 nautical miles
over marine resources, encompassing maritime fea-
from the baseline (UNCLOS 1982, Art. 3, 33, and 57). But
tures, limits, and zones. According to United
practices show that larger limit of the different maritime
Nations Convention on the Law of the Sea, mari-
zones is existing among the states. Every state claims
time boundary represents the borders of
jurisdiction to its own interest. As a result, maritime dis-
a maritime nation which serve to identify the
putes are emerging among different coastal states. When
edge of international waters. Normally, a maritime
the dispute gets serious, they try to settle it according to
boundary is demarcated at a particular distance
different methods of the settlement, but in most of the
from a jurisdiction’s coastline.
cases, the parties of the dispute fail to reach an agree-
Maritime boundaries exist in the context of terri-
ment on settlement. Many bilateral or multilateral talks
torial waters, contiguous zones, and EEZ; they do not
are held among them which delay the settlement. United
cover lake or river boundaries that are considered in
Nations Convention on the Law of the Sea refers the
respect of land boundaries. Some maritime bound-
peaceful method of the settlement of maritime dispute
aries have remained indeterminate despite efforts to
but states must be in consensus at first to accept the
clarify them. This is explained by an array of factors,
jurisdiction of this Convention. Otherwise, they will not
some of which involve regional problems. The deli-
be entitled to get any advantages of the Convention.
neation of maritime boundaries has strategic, eco-
Therefore, the purpose of this paper is to deal with the
nomic, and environmental implications.
protracted maritime boundary dispute and maritime laws

CONTACT Md. Monjur Hasan [email protected] School of Law, Laoshan Campus, Ocean University of China, 238 Songling Road,
Laoshan District, Qingdao 266100, China
© 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use,
distribution, and reproduction in any medium, provided the original work is properly cited.
90 M. M. HASAN ET AL.

Maritime boundary dispute other bilateral issues with the adjacent coastal
states other than maritime disputes. They suffer from
Maritime boundary dispute is a dispute relating to demar-
lack of confidence to win in the dispute. So, they
cation of the different maritime zones between or among
delay to take necessary steps to settle the issue. The
states. It is a common scenario all over the world. Of the
government is afraid of the people of the country
World’s 512 potential maritime boundaries, fewer than
because the people are the source of state power in
half have been agreed, creating uncertainty and room for
a democratic country. So, the government does not
disputes for the remainder (Newman, N.). In addition,
give an opportunity to the opposition party making
maritime boundary disputes regularly occur over com-
any issue by which they can position against the
mercial, economic, and security interests and are
government with the people of the country. In the
a common but underrated investment risk in the energy
same way, the people do not pressurize the govern-
sector (Newman, N.). Every coastal state is becoming very
ment to settle the dispute due to their ignorance
much concerned about the marine resources because the
about the sea and the sea resources. Another reason
world economy is turning into the ocean-based resources
for delayed settlement of a maritime dispute is less
which are being termed as Blue Economy. So, all the
expertise about the law of the sea. Due to these
states claimed their different maritime zones according
domestic obstacles, the maritime boundary dispute
to their own interest. Maritime boundary dispute is occurs
between or among states is protracted.
mostly due to the overlapping claims between adjacent
When a maritime dispute occurs between or
or opposite states for 12 nautical miles territorial seas, 200
among states, the first and foremost step to settle
nautical miles EEZs, and continental shelves which may
the dispute is negotiation between them. Mostly, the
extend beyond 200 nautical miles and due to the contest-
parties of the dispute fail to negotiate to arrive at
ing claim of sovereignty over the same island or the same
a solution. In most of the cases, the maritime bound-
area of mainland, e.g., Bakassi peninsula in ICJ Cameroon
ary dispute occurs due to the overlapping claims in
v. Nigeria (ICJ 1994). The maritime boundary disputes
different maritime zones and the contesting claims of
between Bangladesh, India, and Myanmar in the Bay of
sovereignty over the islands. It can be settled by their
Bengal were long-standing disputes which have already
joint survey, but most of the time, the parties of the
been settled by the International Tribunal for the Law of
dispute fail to reach an agreement to do this. On the
the Sea (ITLOS) and Arbitral Tribunal peacefully under the
other hand, the international law has nothing to do
Law of the Sea (LOS) Convention (ITLOS 2012; PCA 2014).
until the parties make an agreement to take the
The dispute between Bangladesh and Myanmar occurred
advantage of an international instrument by signing
due to the overlapping claim over their EEZ and conti-
and ratifying it.
nental shelf, and the dispute between Bangladesh and
Article 287 of the United Nations Convention on
India occurred due to the overlapping claim over their
the Law of the Sea states that when signing, ratifying,
EEZ and continental shelf and the contesting or contro-
acceding, or at any time thereafter, a state shall be
versial claim over South Talpatti/New Moore Island.
free to choose, by means of a written declaration, one
or more of the following means for the settlement of
disputes concerning the interpretation or application
Protracted maritime boundary dispute
of this Convention:
When a maritime dispute remains unresolved for
a long time or when it takes a long time to be settled (a) the ITLOS established in accordance with
or when it cannot be settled within a reasonable Annex VI,
period of time, it is considered as a protracted mar- (b) the International Court of Justice (ICJ),
itime dispute. Maritime boundary dispute settlement (c) an arbitral tribunal constituted in accordance
among states is an international phenomenon which with Annex VII,
is regulated by international laws. However, interna- (d) a special arbitral tribunal constituted in accor-
tional law helps the parties to settle their dispute if dance with Annex VIII for one or more of the
they ask for advantage of it by their agreement. categories of disputes specified therein
Otherwise, it is unable to do anything on a particular (UNCLOS 1982).
disputed issue spontenously. In case of maritime
affairs, the United Nations Convention on the Law of So, after the failure of all the efforts between dis-
the Sea (UNCLOS 1982) is the Specific codification puted coastal states when they agree to settle their
which was promulgated in 1982 and came into force dispute in accordance with the Convention, they cre-
in 1994. ate another problem with regard to the selection of
A dispute is delayed to be settled when the coun- abovementioned means for the settlement. In most
tries fail to reach a permanent solution due to various cases, they do not agree to accept the jurisdiction of
national and international obstacles. Sometimes, the the same organ. This is a common cause to delay the
governments of the coastal states give priority to settlement. In Bangladesh-Myanmar maritime
 JOURNAL OF INTERNATIONAL MARITIME SAFETY, ENVIRONMENTAL AFFAIRS, AND SHIPPING 91

boundary dispute in the Bay of Bengal, Bangladesh Conference, participants were trying to settle the
wanted to settle it by the ITLOS but Myanmar refused question of the breadth of territorial sea, but failed
to accept the jurisdiction of the Tribunal. Later on, because of the irreconcilable economic, political,
Myanmar agreed with Bangladesh and the 40 years and military conflicts among the states on the
long-standing maritime boundary dispute between oceans.
these two nations was settled by the ITLOS (ITLOS So, this Conference failed to agree on the British
2012). In the same way, Bangladesh wanted to settle 6 + 6 compromise (6 miles territorial sea + 6 miles
her maritime boundary dispute with India in the ITLOS contiguous zone) proposals.
but India wished to settle it in Arbitral Tribunal. Finally, the third UN Conference on the Law of the
Bangladesh accepted their claim and settled the dis- Sea was held from 1973 to 1982 in which 167 inde-
pute in 2014 by Arbitral Tribunal (PCA 2014). Another pendent states and more than 50 independent terri-
important reason for protracting maritime boundary tories participated; the Movement for the Liberation
dispute is the selection of the method of boundary of National Liberation and international organizations
delimitation. Almost in every case the coastal states were represented by observers. In this Conference,
fail to choose the method whether it be “equidistance The United Nations Convention on the Law of the
or equitable principle.” In the maritime boundary deli- Sea was adopted by voting of 167 independent states.
mitation case between Bangladesh and Myanmar as One hundred and thirty states voted in favor of this
well as Bangladesh and India it was the most impor- convention, four states (USA, Israel, Turkey, and
tant question before the Tribunal. Bangladesh claimed Venezuela) were against this, and 17 states abstained.
the equitable principle due to the special circum- The Convention provides the legal framework to
stances of her coast, but India and Myanmar always be followed for the conduct of various maritime activ-
claimed the equidistance principle. ities and it is the most important international legal
instrument of the twentieth century following the
Charter of the United Nations. To date, 167 countries
Codification of the maritime laws
and the European Community have joined in the
The first conference concerning the Law of the Sea was Convention. However, it is now regarded as
held in 1930 in Hague and named “The Hague a codification of the customary international law on
Conference for the Codification of International Law the issue.
1930.” It was initiated by the League of Nations between
13 March and 12 April 1930 and was attended by 47
Subject matter of maritime boundary
governments and an observer. The Conference was
disputes and maritime laws
unable to adopt a convention concerning territorial
waters as no agreement could be reached on the ques- Maritime boundary dispute mostly relates to the delinea-
tion of the breadth of territorial waters and the problem tion of the baseline and delimitation of the territorial sea,
of the contiguous zone. There was, however, some mea- the EEZ, and the continental shelf within or beyond
sure of agreement regarding the legal status of territorial 200 nm between or among the coastal states. Maritime
waters, the right of innocent passage, and the baseline boundary dispute is a result of overlapping claims over
for measuring the territorial waters. the abovementioned maritime zones by coastal states.
The First UN Conference on the Law of the Sea was The United Nations Convention on the Law of the Sea,
held in Geneva in 1958 in which 86 states partici- 1982 is the core law of looking after the different mar-
pated. In this conference, the following four itime disputes. This instrument has few limitations in
Conventions were adopted (UNCLOS I, 1958): respect of implementation upon the states of the dispute.
Unless and until the parties of the dispute seek solution
(1) The Convention on the Territorial Sea and the under the Convention, the dispute cannot solved.
Contiguous Zone,
(2) The Convention on the Continental Shelf,
Baseline
(3) The Convention on the High Sea,
(4) The Convention on Fishing and the Conservation The baseline is the line from which the outer limits of the
of the Living Resources of the High Sea. territorial sea and other coastal zones are measured. So,
it is the foundation for claiming subsequent maritime
Through these Conventions, the Law of the Sea zones to the Sea. Article 7 of the LOS Convention states
began to change from customary law in to codified two types of baseline, such as normal baseline and
international law and it mainly reflected the will of straight baseline. According to this article, the normal
Western powers of the sea, ignoring the interests baseline for measuring the breadth of the territorial sea
of the developing countries. is the low-tide waterline along the coast and the
After that, the Second UN Conference on the Law method of demarcation of a normal baseline is com-
of the Sea was held in Geneva in 1960. In this paratively easy. In this case, the determination of
92 M. M. HASAN ET AL.

subsequent maritime zones from the baseline is also the territorial sea. It specifies that where the coasts of the
easier. The provisions on straight baselines contained two states are opposite or adjacent to each other, neither
in Article 4 of the 1958 Geneva Convention and, subse- of the two states is entitled to extend its territorial sea
quently, Article 7 of UNCLOS were in large part moti- beyond the median line, every point of which is equidi-
vated by the ruling of the ICJ in the Anglo-Norwegian stant from the nearest points of the baseline of both the
Fisheries case (ICJ 1951). According to article 7 of LOS states. The second part of Article 15 allows the limit of the
Convention, a straight baseline can be drawn in two territorial sea beyond median line if it is necessary by
circumstances: first situation is where the coastline is reason of historic title or other special circumstances.
deeply indented or if there is a fringe of islands along Sometimes, this 12 nautical mile territorial sea faces the
the coast in its immediate vicinity; second is where challenge of neighboring or adjacent coastal states
because of the presence of a delta and other natural because of establishing the claimed baseline as valid.
conditions, the coastline is highly unstable. In both
cases, the appropriate points may be selected along
the furthest seaward extent of the low waterline for Exclusive economic zone and continental
the purpose of drawing the straight baseline. shelf
Demarcation of baseline is very important for delimita- Generally, EEZ refers an area of coastal water and
tion of the subsequent maritime zones and the settle- seabed within a certain distance of a country’s coast-
ment of maritime boundary delimitation dispute with line, to which the country claims exclusive rights for
adjacent coastal states because according to the ruling fishing, drilling, and other economic activities. An EEZ
of ICJ, “the delimitation of sea areas has always an is a concept adopted at the Third United Nations
international aspect; it cannot be dependent merely Conference on the Law of the Sea (UNCLOS 1982),
upon the will of the coastal State as expressed in its whereby a coastal state assumes jurisdiction over the
municipal law. Although it is true that the act of delimi- exploration and exploitation of marine resources in its
tation is necessarily a unilateral act because of only the adjacent section of the continental shelf, taken to be
coastal State is competent to undertake it but the valid- a band extending 200 miles from the shore.
ity of the delimitation with regard to other States Continental shelf refers the area of seabed around
depends upon international law” (ICJ 1951). a large landmass where the sea is relatively shallow
In the Bay of Bengal, delineation of straight baseline compared with the open ocean and it is a geologically
following “depth method” by Bangladesh was opposed part of the continental crust. Article 74 of the LOS
by India and Myanmar from the beginning although it Convention provides mechanisms for the delimitation
was not inconsistent with the provision of Article 7 of LOS of the EEZ and Article 83 provides the procedure for
Convention. Article 7(2) of LOSC makes an exception from the delimitation of the continental shelf. In both
normal baseline (low watermark) where the coastline is cases, the respective provisions use the same lan-
highly unstable because of the presence of a delta and guage, in that delimitation EEZ and continental shelf
other natural conditions (UNCLOS 1982). So, Bangladesh’s with opposite or adjacent states should be effected by
claim was valid with this expression “other natural condi- agreement on the basis of international law in order
tions” because the coastline of Bangladesh is highly to achieve an equitable solution.
unstable due to the cumulative effects of river floods, Article 76 of the UNCLOS defines the continental
monsoon rainfall, cyclonic storms, and tidal surges shelf as follows:
which have contributed to a continuous process of ero-
sion and shoaling (Platzoeder 1984). International Law “The continental shelf of a coastal State comprises the
seabed and subsoil of the submarine areas that
also does not restrict delimitation of a sea area by taking
extend beyond its territorial sea throughout the nat-
into account the local requirements. But this rejection of ural prolongation of its land territory to the outer
India and Myanmar was the vital issue to delay the mar- edge of the continental margin or to a distance of
itime boundary dispute settlement among Bangladesh, 200 nautical miles from the baselines from which the
India, and Myanmar in the Bay of Bengal (ITLOS 2012; PCA breadth of the territorial sea is measured where the
2014). outer edge of the continental margin does not extend
up to that distance”. (UNCLOS 1982)

According to the first part of paragraph 1, the

Territorial sea
natural prolongation of the land territory is the main
Territorial sea, as defined by the United Nations criterion. In the second part of that paragraph, the
Convention on the Law of the Sea (UNCLOS 1982), is distance of 200 nm is in certain circumstances the
a belt of coastal waters extending to almost 12 nautical basis of the delimitation of the continental shelf. The
miles from the baseline of a coastal state. Article 3 of the criteria of natural prolongation have been endorsed
LOS Convention states the breadth of the territorial sea as by the ICJ and an arbitral tribunal in the Continental
a limit not exceeding 12 nm from the baseline. Article 15 Shelf case (ICJ 1969), the Anglo-French case (ICJ 1977),
of the Convention makes provision for the delimitation of and the Gulf of Maine case (ICJ 1984). However, in its
 JOURNAL OF INTERNATIONAL MARITIME SAFETY, ENVIRONMENTAL AFFAIRS, AND SHIPPING 93

landmark judgment in the Libya-Malta case, the ICJ parties are free to accept or reject the outcome of
decided to do away with geophysical arguments, at negotiations and can withdraw at any point during
least in relation to those areas within 200 nm of the the process. All through negotiation, there is no third
coast (Alam and Faruque, 2010). party who interferes between the parties. So, it is easy
to reach a decision on the maritime boundary delimi-
tation dispute. One thing is that the litigation always
Settlement of the dispute under maritime
carries risks for the parties before the judicial body,
laws
and legal rules available to the tribunal are more
Article 33 of the UN Charter directs the parties of the restricted than the opportunities open to the nego-
dispute for the peaceful settlement by means of their tiators. In the judicial settlement, the parties are stuck
own choice (UNCLOS 1982), and subject to Article 287 within a specific legal frame before the tribunal and
of UNCLOS, every state has the right to choose one or the court which is rigid and opposed to considering
more means to settle their dispute concerning the the interest of all the parties. Nevertheless, during
interpretation and application of this Convention negotiations, the parties follow a process of joint pro-
(UNCLOS 1982). gress in the maritime zones and are able to concen-
The Law of the Sea Convention is the key interna- trate on realistic actions to safe each party’s core
tional instrument which regulates virtually all aspects objective.
of the law of the seas and sets rules to Baselines and Statistics show that from 1994 to 2012, 16 negotia-
Internal waters and all the maritime zones like terri- tions took place, and some of them were successful,
torial sea, the contiguous zone, the EEZ, the continen- such as the 2003 Negotiation between Azerbaijan,
tal shelf within or beyond 200 nm, the high seas, and Kazakhstan, and the Russian Federation; the 2004
the deep seabed area. Negotiation between Australia and New Zealand; the
Although the United Nations Convention on the Law 2008 Mauritius-Seychelles EEZ Delimitation Treaty;
of Sea regulates all the segments of the sea-based issue, etc. (Aceris Law 2015). Unfortunately, the parties of
the provisions regarding maritime boundary delimita- the dispute failed to negotiate between them due to
tion are not well defined and clear. The Convention various domestic and international obstructions which
provided for the process of delimitation of different delayed the settlement.
maritime zones between states is affected by agree-
ment on the basis of international law in order to
Mediation
achieve an equitable solution. This provision directs
the parties of the dispute to take initiative between Mediation is listed in Article 33 of the Charter of the
them and make an agreement equitably first. It does United Nations (UN Charter, 1945) as alternative
not provide any definite delimitation procedure to be means of international dispute settlement. Although
followed. If the party of the dispute fails to reach an mediation is a highly successful method to settle
agreement, they can move toward the dispute settle- international conflicts, in case of maritime boundary
ment procedure under the Law of Sea Convention delimitation dispute, states rarely resort to mediation
stated in part XV of the Convention. or good offices. For example, the 2015 OAS Mediation
There are two types of dispute settlement proce- of Belize-Guatemala Border Dispute has not resolved
dure in LOS Convention. Section 1 of Part XV states the dispute and has led the parties to take the matter
the non-compulsory procedures which are the nego- before the ICJ (Aceris Law 2015).
tiation, the mediation, and the conciliation and
Section 2 of Part XV deals with compulsory settlement
Conciliation
procedure which includes ITLOS under Annex VI, the
ICJ and Arbitral Tribunal created under Annex VII, and Conciliation is another non-judicial procedure for
the creation of a special Arbitral Tribunal formed as peaceful settlement of the maritime boundary delimi-
a panel of experts. tation which is stated in article 284 (Part XV) of LOS
Convention and the procedure of conciliation is dis-
cussed in Annex 5. The rate of the conciliation in
Negotiation
regard to maritime boundary dispute is very few.
Negotiation is the most important and peaceful Most of the states are not interested to conciliate
means to settle any bilateral or multilateral dispute. their dispute. As a result, conciliation is almost never
Maritime boundary delimitation is not an exception to used by states. The 1981 Iceland/Norway Continental
it. In case of boundary delimitation, there are some Shelf Dispute Regarding Jay Mayen Island is one of
advantages in pursuing negotiation (Aceris Law 2015). a few conciliations till now (UN 1981).
The parties of the dispute are free to shape the nego- In conciliation, the parties of the dispute have to
tiations in accordance with their own needs and no give up their control over dispute to the third party
party is forced to participate in a negotiation. The and allow the third party for a formal decision which
94 M. M. HASAN ET AL.

has the binding force upon the parties. So, the parties International Tribunal for the Law of the Sea
are afraid to settle their dispute through conciliation
ITLOS is one of the notable creations for resolving
because nobody wants to lose in this process.
different types of the maritime dispute under the
Arbitration is more convenient for them to have
Law of the Sea convention. The office of the
grounds to set aside the award rather than lose con-
Tribunal is situated in Hamburg, Germany. It may
ciliation and not have any legal basis to set the result
hear all kinds of cases regarding maritime
aside.
disputes whether contentious or non-contentious.
The Tribunal has a set of 21 serving judges who
are elected for 9 years by the state parties. Each
Arbitration
state party can nominate up to two candidates.
Arbitration is the most popular and successful means There is a process to ensure equitable distribution
to settle the maritime boundary dispute after the among the judges and the term of one-third of
implementation of LOS Convention in 1994. The them expires every three years. ITLOS is entitled to
Arbitral Tribunal is composed of five arbitrators hear “prompt release” cases taking place on an
under Annex VII of the Law of the Sea Convention. expedited basis when a coastal state has seized
Each party to the dispute appoints an arbitrator and a foreign vessel and its crew in its maritime zones.
both the parties jointly appoint the rest of the three. The Jurisdiction of the Tribunal comprises all
The President of IT LS acts as the appointing authority disputes and all applications submitted to it in
in this regard. accordance with the Convention. It has jurisdiction
Arbitration is one of the compulsory methods of over all disputes concerning the interpretation or
maritime boundary delimitation. When the parties of application of the convention, subject to the provi-
the dispute fail to resolve the dispute but need to sions of article 297 and to the declaration made in
solve it to explore marine resources, they then turn to accordance with article 298 of the Convention. But
compulsory dispute resolution. Through arbitration, article 297 and declaration under article 298 do not
many of coastal states settled their long-standing prevent parties from agreeing to submit to the
maritime boundary delimitation disputes. In 2014, tribunal a dispute otherwise excluded from the tri-
Bangladesh and India resolved their 40 years of long- bunal’s jurisdiction under these provisions (UNCLOS
standing maritime boundary delimitation dispute 1982). The tribunal is entitled to give an advisory
which commenced in 1974 (PCA 2014). Some exam- opinion by its Seabed Dispute chamber on legal
ples can be mentioned here which have been settled questions arising within the scope of the activities
through arbitration. of the Assembly or Council of the International
Australia and New Zealand v. Japan (Southern Seabed Authority (UNCLOS 1982). The Tribunal
Bluefin Tuna Arbitration, 4 August, 2000); Ireland may also give an advisory opinion on a legal ques-
v. UK (Mox Plant Arbitration, 6 June, 2008); Malaysia tion if this is provided by an international agree-
v. Singapore (Land Reclamation Arbitration, ment related to the purposes of the convention
1 September, 2005); Barbados v. Trinidad and (Rules of ITLOS 1997, Art. 138).
Tobago (Maritime Delimitation Arbitration, 11 April, There are 25 cases registered before the ITLOS till
2006); Guyana v. Suriname (Maritime Delimitation now; among them, most of them are “prompt
Arbitration, 17 September, 2007); Bangladesh v. India release”–related cases. Only two cases were about
(Bay of Bengal Maritime Boundary Arbitration, 7 July, maritime boundary delimitation: one is Dispute con-
2014); Mauritius v. UK (Chagos Archipelago cerning delimitation of the maritime boundary
Arbitration, 18 march, 2015); Argentine v. Ghana between Bangladesh and Myanmar in the Bay of
(ARA Libertad Arbitration, 11 November, 2013); Bengal (Case no. 16, ITLOS) case which began in
Philippines v. China (South China/West Philippines 14 December 2009 and ended in 14 March 2012
Sea Arbitration, 12 July, 2016); Denmark in respect of and another one is Dispute Concerning Delimitation
the Faroe Islands v. European Union (Atlanto-Scandian of the Maritime Boundary between Ghana and Côte
Herring Arbitration, 23 September, 2014), etc. (Aceris d’Ivoire in the Atlantic Ocean (Case no. 23, ITLOS)
Law 2015). Although the Arbitral Tribunal has which began in 3 December 2014 and ended in
resolved the majority of disputes than other means 23 September 2017. So, in case of maritime bound-
of settlement procedure, it has no power to call upon ary delimitation dispute, the position of ITLOS is not
any party of the dispute unless both the parties within expectation.
accept its jurisdiction and make an agreement to
solve their problem through it. It does not have the
power also to make any party bound to follow its International Court of Justice
decision. So, these limitations are liable for protracting
ICJ is the head judicial body of the United Nations and
maritime boundary delimitation.
is an integral part of the United Nations. It is evident
 JOURNAL OF INTERNATIONAL MARITIME SAFETY, ENVIRONMENTAL AFFAIRS, AND SHIPPING 95

that the number one forum for states seeking judicial and 29 recommendations have been issued so far (UN,
settlement regarding the Law of the Sea is the ICJ. It is Division for Ocean Affairs and Law of the Sea).
the largest judicial organ in the world and is called the
World Court. ICJ is not only limited to the Law of the
Conclusion
Sea affairs but also may decide both maritime and
sovereignty issues. ICJ is entitled to exercise its juris- Protracted maritime boundary dispute resolution has
diction over any dispute concerning the interpreta- a vital negative impact in maintaining the international
tion or application of LOS Convention which is relation between or among states. Due to the dispute,
submitted to it under Article 287 and Article 288 countries suffer a lot since the commencement of the
(UNCLOS 1982). There are some judgments men- dispute in different sectors. The sovereignty of the
tioned in the following relating to maritime boundary disputed countries faces threat for a long time due to
dispute mentioned here which have been declared by their conflicts. The marine environment becomes
ICJ after enforcement of LOS Convention in 1994. unstable from time to time. They experience difficulties
Fisheries Jurisdiction (Spain v. Canada) 2001; to use their coast and become deprived of utilization of
Maritime Delimitation and Territorial Questions (Qatar marine resources because of this unsettled boundary
v. Bahrain),1998; Land and Maritime Boundary dispute for an indefinite period of time. As a result, the
(Cameroon v. Nigeria: Equatorial Guinea intervening), economy of those countries suffers a lot because
2002; Territorial and Maritime Dispute in the Caribbean a defined maritime boundary is almost a necessity for
Sea(Nicaragua v. Honduras), 2007; Territorial and them. They need new sources of natural gas, oil, and
Maritime Dispute (Nicaragua v. Colombia), 2012; other marine resources, but the undefined boundary
Maritime Delimitation in the Black Sea (Romania blocks offshore exploration for them. The LOS
v. Ukraine), 2009; Maritime Dispute (Peru v. Chile), Convention is called the constitution of the sea. It is
2014; Whaling in the Antarctic (Australia v. Japan: the only international instrument which deals with all
New Zealand intervening), 2014 (Aceris Law 2015). the legal issues relating to sea. It has some limitations
Presently, the following maritime boundary delimi- in respect of its execution and applicability upon the
tation cases are in the pending list before the ICJ. states. The states which are not party or signatory to
this Convention are not bound to follow this
(1) Question of the delimitation of the continental Convention and they are not also entitled to seek the
shelf between Nicaragua and Colombia beyond advantages of this Convention. On the other hand, all
200 nautical miles from the Nicaraguan Coast the signatories of this convention are de jure bound to
(Nicaragua v. Colombia) (Case no. 5, Pending follow this convention in accordance with the princi-
case list, ICJ). ples of international law. They are entitled to get all the
(2) Maritime delimitation in the Caribbean Sea and advantages of this convention as means of rights.
the Pacific Ocean (Costarica v. Nicaragua) (Case Unfortunately, it does not have the de facto power of
no. 7, Pending case list, ICJ). applicability upon the states that have signed and
(3) Maritime delimitation in the Indian Ocean ratified it. As a result, the disputes emerged from mar-
(Somalia v. Kenya) (Case no. 8, Pending case itime issues take a long time to be settled. Maritime
list, ICJ). boundary delimitation dispute is not an exception to it.
At this moment, maritime boundary delimitation dis-
pute between or among coastal states is a much-talked
Commission on the limits of the continental
issue all over the world. Hundreds of disputes are
shelf (CLCS)
pending in every corner of the world among which
CLCS has been established under Annex 2 of the LOS most of them are long-standing. The prevailing mari-
Convention. The Commission consists of 21 members, time laws or other international instruments have noth-
experts in the field of geology and physics (UNCLOS ing to do unless and until the parties of the disputes
1982). Generally, every state claims continental shelf up seek its advantages. This is the limitation of maritime
to 200 nm but sometimes they claim their continental laws or international law as well. So, the state should
shelf beyond 200 nm which creates boundary dispute be more aware of their sea resources and they should
between coastal states. In this regard, the LOS make an effort to find out their means and measure
Convention has created the commission of continental from the provisions of maritime law within
shelf to hear the arguments of the parties of the dispute a reasonable time. The parties of the dispute should
in favor of their claim. The decision or recommendation settle their problems peacefully to live each other in
of this commission is binding for all the parties to the Law harmony. This paper makes an effort to draw attention
of the Sea convention. about protracted maritime dispute resolution with
Seventy-seven states have already filed their submis- maritime laws briefly. So, a further study may be neces-
sions to seek recommendations before the Commission sary to make a detailed account of the present topic.
96 M. M. HASAN ET AL.

Disclosure statement ICJ (International Court of Justice). 1984. Delimitation of the

Maritime Boundary in the Gulf of Maine Area (Canada
No potential conflict of interest was reported by the v. U.S), Reports 246, reprinted in 23 ILM 1197 (1984).
authors.
ICJ (International Court of Justice). 1994. Case
Concerning the Land and Maritime Boundary between
Cameroon and Nigeria. doi:10.3168/jds.S0022-0302(94)
Funding 77044-2.
ITLOS (International Tribunal for the Law of the Sea). 2012,
This work was supported by the China Scholarship Council Dispute Concerning Delimitation of the Maritime
[2016GXYO55]. Boundary between Bangladesh and Myanmar in the Bay
of Bengal.
Newman, N. Maritime Boundary Dispute. https://www.eni
ORCID day.com/en/human_en/maritime-boundary-disputes/
PCA. 2014. The Bay of Bay of Bengal Maritime Boundary
Md. Monjur Hasan http://orcid.org/0000-0003-1367-6213 Arbitration between the People’s Republic of
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