Matter commented on: Problems of overlapping governance on Arctic continental shelves
1. Introduction
The continental shelf has been the dispute par excellence in the narrative that the Arctic is an ungoverned region. The seabed of the Central Arctic Ocean is subject to overlapping “claims” by Canada, Russia, and Denmark (via Greenland), and alarming reports have suggested that competing rights over the resources might culminate in conflict between Russia and the West. This myth has been widely challenged, but another myth lives on: that the seabed beyond 200 nautical miles (M) remains ungoverned until the Commission on the Limits of the Continental Shelf (CLCS) issues recommendations on the outer limits of continental shelves and the asserting states divvy up the pie. In fact, these states already can and do exercise control over the seabed areas they assert by virtue of the doctrine of inherent rights.
This coastal state prerogative creates problems at all stages before a final delineation of the shelf’s outer limits and a final delimitation of overlapping entitlements. Most importantly, where entitlements overlap and have not yet been delimited, potential users might proceed with some activities without approval from all states asserting entitlements to the relevant shelf area. Action based on unilateral decision could sharpen tensions and undercut trust among Arctic states. To minimize the risk of this pending the final delimitation of the Arctic continental shelves, Arctic states should establish a mechanism to authorize activities on overlapping entitlements beyond 200 M. This mechanism should be created as soon as possible among the United States, Canada, Denmark, and Russia (subject to changes in the geopolitical situation). On this backdrop, this blog post explores legal issues connected with activities on overlapping continental shelf entitlements in the Arctic Ocean and pre-delineation and pre-delimitation problems that the Arctic coastal States are facing.
The agreement is a package deal, which encompasses a final delimitation between Canada and Denmark (Greenland), delimiting the maritime areas within 200 nautical miles from the baselines in the Lincoln Sea and the Labrador Sea. In addition, the agreement settles the sovereignty dispute over Hans Island in the Kennedy Channel.
Photo: Foreign Ministry of Denmark
An equitable solution
Articles 74 and 83 of the UN Convention on the Law of the Sea (UNCLOS) provide that all States are to seek an equitable solution in the delimitation of maritime areas subject to overlapping claims. The UNCLOS does not provide any further guidance on how the States should proceed in their negotiations towards reaching such solutions.
However, a relatively consistent practice has developed through a considerable body of case law, where a three-stage approach is applied. The first step is to draw a line at an equal distance from the closest points on the coasts of each of the parties. This provisionally drawn equidistance line is the result of an objective, geometric process, and serves as a practical starting point in many delimitation processes. The provisional equidistance line is then adjusted, taking into account relevant circumstances, that call for the adjustment of the provisional equidistance line in order to achieve an equitable result. Finally, the preliminary line is subject to a test of disproportionality, to verify that the adjusted equidistance line does not “lead to an inequitable result by reason of any marked disproportion [for example] between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line” (Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment) [2009] ICJ Rep 61, 103 [122].
Although the three-stage approach is primarily developed for the settlement of maritime delimitation disputes by the judiciary, it is also frequently used in maritime delimitation negotiations.
The end of the Whisky War
Hans Island is an uninhabited lime-stone island covering 1.3 square kilometres, situated in the Kennedy Channel, within 12 nm from the coast of both Canada and Denmark (Greenland), and is accordingly part of both States’ claims of territorial waters. When Canada and Denmark (Greenland) negotiated their boundaries in 1973, they were unable to agree on the issue of sovereignty over Hans Island. The 1973 agreement accordingly leaves Hans Island out, and explicitly provides in Article 2 (2) that “the dividing line shall be of two series of geodesic lines joining from the following points”, where series A is measured from point No. 114-122, and Series B is measured from point No. 123-127. There is no boundary between point 122 and 123, where Hans Island is located.
The conflict over Hans Island has become known as the “Whisky War” since 1984, when Canadian troops planted a flag on the island, a sign saying “welcome to Canada” and left a bottle of Canadian whisky. When the Danish Minister of Greenland visited the island later the same year, he replaced the Canadian offerings with a Danish flag, a bottle of Danish schnapps and a letter saying “Welcome to the Danish island”. Since then, there have been numerous trips to the island from both parties to replace the other side’s offerings. The humorous undertone aside, the parties have until now not been able to agree who has sovereignty over the Island. The island itself has little economic value, and as the parties’ maritime sones in the Kennedy Channel were agreed upon in 1973, the delimitation of the island itself does not have large consequences for the parties. However, the Kennedy Channel and Hans Island may become more important if global warming makes it possible to establish a sea route from the North Atlantic Ocean to the Arctic Ocean west of Greenland.
The delimitation agreement solves the Hans Island Sovereignty dispute, dividing the island between Canada and Denmark (Greenland). The considerations discussed by the parties are not known to the public. The agreed border does provide some clues, as the limit appears to be drawn along the natural ridges on Hans Island. This delimitation method is familiar both from the law of the sea and from other land demarcation.
79 000 square kilometres of overlapping entitlements in the Labrador Sea
In addition to achieving a final solution for Hans Island, Canada and Denmark (Greenland) have also concluded the remaining of the unresolved maritime boundaries between the two States, including the geographical areas southwest and northwest of Greenland.
UNCLOS Article 57 provides a right for coastal states to establish an exclusive economic zone in an area up to 200 nautical miles measured from the coastal baseline. In addition, coastal states’ entitlement to the continental shelf may continue beyond 200 nm if the continental margin continues beyond such distance (Article 76). The Labrador Sea is an arm of the North Atlantic Ocean between the Labrador Peninsula and Greenland, where the entitlements provided by the UNCLOS resulted in an 79 000 square kilometres area of overlapping claims of Canada and Denmark (Greenland), which is now delimited between the parties.
The parties have not disclosed the rationale behind the negotiated delimitation line in the Labrador Sea, but a close study of the official map suggests that the delimitation is based on an equidistance line, with some minor adjustments taking into account relevant circumstances. The parties accordingly seem to have based their negotiation on the recognized three-stage approach, as a means to achieve an equitable solution as provided in UNCLOS articles 74 and 83.
Indicating a direction for the future delimitation of the Central Arctic Ocean
The parties have also succeeded in establishing a common delimitation line in the Lincoln Sea, a body of water in the Arctic Ocean. The limit is based on a preliminary boundary agreement from 2012, and has finally been provided a permanent status in the 2022 maritime delimitation agreement between Canada and Denmark (Greenland).
In the Lincoln Sea, the parties have apparently confined themselves to applying an objective approach to establish an equidistance line between themselves. This sends a very important political signal, indicating that both Canada and Denmark (Greenland) most likely will argue for the application of an equidistance approach also further north, in the Arctic Ocean, where the Danish and the Canadian continental shelf both allegedly overlap with areas subject to Russian claim of entitlement.
The geopolitical side-effects of the delimitation agreement
The agreement dividing Hans Island and the delimitation of the disputed maritime areas are not only of symbolic value, but also of great practical significance for the parties. The negotiated agreement is of particular importance for the Inuit settlement of Ausuittuq in Canada and the Greenlandic settlement of Qaanaaq, and contributes to laying the foundations for a closer and broader cooperation between Canada and Greenland. The ambition of future cooperation and mobility between the States is explicitly included in the agreement. The delimitation comes shortly after Canada, Denmark and five other Arctic states announced their intent to resume Arctic cooperation in projects that do not involve Russian participation. At a time when the international legal order is under severe pressure, and there is an increasing concern relating to the extent to which States will comply with their obligations under international law, the delimitation agreement between Canada and Denmark (Greenland) demonstrates that the Arctic states have a strong will and commitment to follow up their obligations under the Law of the Sea and the Ilulissat Declaration of 2008.
In Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), the International Court of Justice (ICJ) was requested to establish the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone and continental shelf, including the continental shelf beyond 200 nautical miles (nm). This is the fourth time an international court or tribunal has delimited the continental shelf beyond 200 nm from the baselines. Although the Judgment seemingly follows a pattern established through previous delimitation cases, the separate opinions of several judges reveal ripples below the surface.
The purpose of this post is to take a closer look at the parts of the Judgment dealing with the outer continental shelf delimitation, and assess whether the ICJ in Somalia v. Kenya acted in accordance with previous judicial practice.
This commentary takes a particularly deep dive into the question of entitlement to the continental shelf beyond 200 nm as a prerequisite for delimitation and echoes some of Judge Robinsons’ concerns about the ICJ seemingly replacing the geological and geomorphological criteria with a simple distance criterion of a maximum of 350 nm.
Matter commented on: Maritime claims in the Aegean and Eastern Mediterranean; upcoming European Council 1/2 October 2020
I. Introduction
The situation in the Eastern Mediterranean is on the agenda of the meeting of the EU Heads of State and Government (European Council) on 1 and 2 October 2020. This paper looks into the international law issues surrounding the maritime disputes in the Eastern Mediterranean and the Aegean Sea and draws on the way forward for the resolution of the disputes involving Greece, Turkey and Cyprus.
Greece and Turkey do not have any agreement on a maritime boundary. Historically, the territorial status of the Dodecanese Islands in the south-eastern Aegean is governed by the 1923 Lausanne Peace Treaty (where Turkey ceded the Dodecanese Islands to Italy) and the Paris Peace Treaty between Italy and the Allied Powers from 1947 (Italy had to hand over the Dodecanese Islands to Greece) fixing the modern boundaries of Greece, which had become independent from the Ottoman Empire in 1832 (see e.g. Vassalotti 2011: 387-390, Van Dyke 2005: 64-67). Cyprus, which Great Britain had acquired from the Ottoman Empire in 1878, became independent in 1960. In 1974, Turkey invaded the north of the island following a coup d’état aiming at linking the island to Greece (Kalkan 2020: 169) leading to the establishment of the northern entity on the island only recognized by Turkey.
Fig. 1 Overlap of EEZ agreements and claims in the Eastern Mediterranean. Source: Yiallourides 2020
Matter commented on: Declaration of the State of Palestine regarding its Maritime Boundaries in accordance with the United Nations Convention on the Law of the Sea, September 24, 2019
Introduction On 24 September 2019, the State of Palestine transmitted to the United Nations a Declaration whereby it promulgates its maritime assertions under the 1982 UN Convention on the Law of the Sea (‘LOSC’) including tables of coordinates and a map depicting its claimed maritime area. It is worth recalling that following its accession to the LOSC the State of Palestine sent a similar declaration to the UN in 2015, albeit without coordinates and map. Notably, a short while ago an article outlined Palestine’s strategy aiming at both promoting and safeguarding the latter’s rights over the sea waters adjacent to Gaza. This post comments on the latest Declaration by the State of Palestine and highlights certain noteworthy aspects of it.
Report commented on: Report and Recommendations of the Compulsory Conciliation Commission between Timor-Leste and Australia on the Timor Sea, Registry, Permanent Court of Arbitration, 9 May 2018
The Conciliation Commission in the dispute between Timor-Leste and Australia with respect to a permanent maritime boundary in the Timor Sea has now issued its final Report and Recommendations on what must be recorded as an exceptionally successful conciliation exercise. The report documents the process of shepherding the Parties to the conclusion and signature of the Treaty between the Democratic Republic of Timor-Leste and Australia Establishing their Maritime Boundaries in the Timor Sea, New York, March 6, 2018. This treaty not only establishes permanent maritime boundaries between the two States it also establishes (Annex B) a joint development regime for the Greater Sunrise and Troubadour deposits that fall on either side of the agreed maritime boundary. The Report also documents the ultimately unsuccessful efforts of the Commission to facilitate the Parties in reaching agreement on a development concept for the Greater Sunrise Field. In dealing with a set of issues that went beyond that of delimitation, the Report illustrates the flexibility of conciliation procedures to address (with the consent of the Parties) a broader suite of issues than could be accommodated in a more formal and constrained adjudication procedure.
The Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), which has been decided by a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) is a further addition to a long series of maritime boundary cases. In writing the concluding chapter of the edited volume Maritime Boundary Delimitation: The Case Law; Is it Consistent and Predictable?, the author of this post and his co-editors Tore Henriksen and Signe Veierud Busch made a forecast about the outcome of Ghana/Côte d’Ivoire on the basis of the existing case law – the text of the chapter was finalized on 10 May 2017 (on file with the author). This concerned the following points:
First, there is no reason to assume that […] the Chamber of the ITLOS will not apply the three-stage approach. Second, the coastal geography […] is such that we expect that a strict equidistance line, or an equidistance line very similar to the strict equidistance line, will be adopted as the provisional delimitation line. Third, we do not expect a radical departure from the equidistance line after the second-stage consideration of the relevant circumstances […]. Hydrocarbon licensing is likely to be considered as a potential relevant circumstance […], but it is not expected that this practice requires a shifting of the provisional line.
We also anticipated that the Chamber would “have no difficulty in determining the relevant coasts and the relevant area”. We indicated a couple of options for the relevant coasts of both parties, and for both Ghana and Côte d’Ivoire the Chamber adopted a relevant coast that was among the options we presented (for the Chamber’s selection see para. 379 and Sketch-map No. 2). Similarly, we submitted that:
[t]he relevant area can be expected to be bounded by the relevant coasts and the outer limits of the maritime zones of the parties. Depending on the definition of the relevant coasts, the lateral limits of the relevant area will be either perpendiculars to the general direction of these coast, lines of longitude (meridians) or the (potential) maritime boundaries with neighboring States.
As a matter of fact, the Chamber used the relevant coasts, meridians and the outer limits of the continental shelf beyond 200 nautical miles to define the relevant area (see paras 383-386 and Sketch-map No. 3). We concluded our analysis by noting that:
Our assessment of Ghana/Côte d’Ivoire […] strongly suggests that the law and methodology as developed by the case law result in a degree of predictability. It would not even seem unreasonable to submit that [it] suggest[s] a high degree of predictability.
Although the Special Chamber’s approach to the delimitation of the maritime boundary in Ghana/Côte d’Ivoire to a large degree aligns with the earlier case law and arguably contributes to the objective of predictability of the delimitation process, to which the Chamber explicitly refers (paras 281 and 289), there are a couple of points in the judgment that may seem to raise some concerns in that respect. The current post focusses on those points.
In Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) was requested to delimit all maritime areas appertaining to Ghana and Côte d’Ivoire in the Atlantic Ocean, including the continental shelf beyond 200 nm. This is the first time an international court or tribunal has delimited the continental shelf beyond 200 nm where one of the parties to the dispute had received recommendations concerning the location of the outer limit of its continental shelf from the Commission on the Limits of the Continental shelf (CLCS). This makes the case particularly interesting for the purpose of clarifying procedural issues and the relationship between the CLCS, its recommendations, and international courts and tribunals.
A previous post by Nigel Bankes provides a general commentary on the Judgment of the Special Chamber.
The purpose of this post is to take a closer look at the parts of the Judgment dealing with the outer continental shelf delimitation, and discuss both procedural and substantive issues. Did the Special Chamber act in accordance with previous judicial practice, contributing to establishing a predictable and consistent practice? Further, the blogpost looks ahead to future delimitation cases, and considers whether the delimitation methodology applied by courts and tribunals in delimitation disputes between adjacent States should also be applied in delimitations between opposite States. The post uses the upcoming delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nm from the Nicaraguan coast as an example.
Background to the dispute between Ghana and Côte d’Ivoire
For a long time, Ghana believed that there was a de facto maritime boundary line between Ghana and Côte d’Ivoire, and since the 1950s had conducted hydrocarbon activities based on its understanding of this ‘customary boundary’. Côte d’Ivoire, for its part, was not particularly active in protesting Ghana’s hydrocarbon activities. Only in 2009 did Côte d’Ivoire make a proposal as to its view of the maritime boundary thus forming a triangular area of overlapping maritime claims. The area claimed by Côte d’Ivoire covered significant oil and gas fields discovered by Tullow Oil plc operating under a license of Ghana. Ghana alleged that this was the main reason why Côte d’Ivoire raised its claims.
The ITLOS Special Chamber (SC) rejected Ghana’s submission that there was a tacit agreement between Ghana and Côte d’Ivoire for the delimitation of their territorial sea, exclusive economic zone and continental shelf within and beyond 200 n.m. (chapter VII, especially paras. 211-228). At the same time, the SC also rejected Côte d’Ivoire’s proposed boundary. The SC drew a single maritime boundary for the territorial sea, the exclusive economic zone and the continental shelf within and beyond 200 n.m. (chapter IX). The final boundary drawn by the SC almost coincides with the line argued by Ghana and does not affect Ghana’s petroleum fields found in the Gulf of Guinea. Therefore, it is not surprising that in many news accounts the SC’s decision is referred to as a victory of Ghana over Côte d’Ivoire.
A Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) handed down its judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean on 23 September 2017. The litigation was originally commenced by Ghana as an application initiating arbitral proceedings under Annex VII of the United Nations Law of the Sea Convention (LOSC) but in December 2014, by Special Agreement, the two states agreed to submit the dispute to a Special Chamber of ITLOS comprised of Judge Boualem Bouguetaia as President, Judge Rüdiger Wolfrum, Judge Jin-Hyun Paik, Mr Thomas Mensah, Judge ad hoc (Ghana) and Judge Ronny Abraham, Judge ad hoc (Côte d’Ivoire). ITLOS acceded to that request. The Special Agreement and the attached Minutes of Consultations indicated that the two States were agreeing to transfer the arbitral proceedings instituted by Ghana with respect to the dispute “concerning the delimitation of their maritime boundary in the Atlantic Ocean.” Ghana’s earlier application had asked the Arbitral Tribunal to “delimit, in accordance with the principles and rules set forth in UNCLOS and international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Ghana and to Côte d’Ivoire in the Atlantic Ocean, including in the continental shelf beyond 200 M.”
