Maritime and Territorial Disputes | Law of the Sea | PUBLIC INTERNATIONAL LAW

XVI. Public International Law

N. Law of the Sea

3. Maritime and Territorial Disputes

Maritime and territorial disputes are a significant aspect of international law, particularly under the framework of the United Nations Convention on the Law of the Sea (UNCLOS). These disputes typically arise over claims to maritime zones such as territorial seas, exclusive economic zones (EEZ), and continental shelves. Here, we analyze the key legal concepts, principles, and case precedents that govern these disputes, especially in the context of the Law of the Sea.

1. Key Concepts in the Law of the Sea

A. Maritime Zones

1. Territorial Sea:

   • Extends up to 12 nautical miles from the baseline of a coastal state.
   • The coastal state exercises sovereignty over the territorial sea, including its airspace and seabed, but subject to the right of innocent passage by foreign vessels.
   • Disputes often arise over the delimitation of territorial seas when adjacent or opposite states claim overlapping territorial waters.

2. Exclusive Economic Zone (EEZ):

   • Extends up to 200 nautical miles from the baseline.
   • The coastal state has sovereign rights over natural resources (fishing, oil, gas) and jurisdiction over environmental protection, scientific research, and the construction of artificial islands.
   • The high seas beyond the EEZ remain open to all states for navigation, overflight, and laying submarine cables.

3. Continental Shelf:

   • Extends up to 200 nautical miles or beyond if the natural extension of the continental margin extends farther.
   • The coastal state has the right to exploit the seabed and subsoil, particularly for mineral and petroleum resources.

4. High Seas:

   • Areas of the ocean that are beyond any national jurisdiction, open to all states for navigation, fishing, and resource exploitation subject to international regulation.

B. Baselines

• Baselines are the starting point for measuring the breadth of maritime zones. Typically, they follow the low-water mark along the coast, but in cases of indented coastlines, archipelagic states, or islands, special methods like straight baselines may be employed.
• Archipelagic baselines, as recognized under UNCLOS, are drawn around the outermost points of an archipelago, connecting islands and waters into a single territorial unit.

C. Delimitation Principles

• When maritime zones overlap between neighboring states, delimitation must occur to determine boundaries.
• UNCLOS prescribes that delimitation should be achieved by agreement based on equity, taking into account geographical and other relevant circumstances.
• If an agreement cannot be reached, the dispute may be submitted to arbitration or adjudication by international bodies such as the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS).

2. Resolution of Maritime Disputes under UNCLOS

UNCLOS provides a dispute settlement framework to resolve conflicts related to maritime zones. This includes mechanisms for peaceful settlement such as negotiation, mediation, conciliation, and judicial settlement. The two primary judicial bodies for resolving disputes are:

A. International Court of Justice (ICJ)

• The ICJ has handled several cases involving maritime boundaries and territorial disputes, such as the North Sea Continental Shelf cases and the Nicaragua v. Colombia case.
• The ICJ bases its decisions on legal principles like equity, proportionality, and the application of customary international law.

B. International Tribunal for the Law of the Sea (ITLOS)

• ITLOS, established under UNCLOS, is dedicated to resolving disputes specifically related to the Law of the Sea.
• Its jurisdiction covers disputes regarding the interpretation or application of UNCLOS, and it has handled cases like the Bangladesh v. Myanmar case concerning delimitation of the EEZ and continental shelf.

C. Arbitral Tribunals

• UNCLOS also allows for arbitration, as seen in the South China Sea Arbitration (Philippines v. China), where the arbitral tribunal issued a landmark ruling in favor of the Philippines, invalidating China’s "nine-dash line" claim. However, China rejected the ruling, leading to ongoing tensions.

3. Maritime and Territorial Disputes Involving the Philippines

The Philippines is at the center of several key maritime disputes, most notably in the West Philippine Sea (part of the South China Sea). These disputes involve overlapping claims with China, Vietnam, Malaysia, Brunei, and Taiwan over islands, reefs, and maritime zones.

A. South China Sea Dispute

• The South China Sea is a highly contested area with overlapping claims primarily between China and several Southeast Asian countries, including the Philippines.
• China asserts historic rights over almost the entire South China Sea based on its "nine-dash line" map, which UNCLOS does not recognize. This claim overlaps with the Philippines’ EEZ, particularly around the Spratly Islands and Scarborough Shoal.
• In 2013, the Philippines initiated arbitration under Annex VII of UNCLOS, resulting in the 2016 South China Sea Arbitral Tribunal ruling.

1. 2016 Arbitral Tribunal Ruling (Philippines v. China)

• Key Findings:
  • China's claim of historic rights within the "nine-dash line" was invalid under UNCLOS.
  • Scarborough Shoal is a traditional fishing ground for several nations, and China’s interference with Philippine fishing activities violated UNCLOS.
  • Certain features in the Spratly Islands (such as Mischief Reef and Subi Reef) were classified as low-tide elevations, meaning they cannot generate an EEZ or territorial sea.
  • China's construction of artificial islands and its interference with Philippine oil exploration within the latter's EEZ was unlawful.
• Legal Implications:
  • The ruling clarified that maritime entitlements must be based on UNCLOS principles rather than historical claims.
  • The decision reinforced the EEZ rights of coastal states and restricted the rights of states to exploit areas beyond their lawful jurisdiction.

Despite the ruling, China has refused to recognize the decision, and tensions remain in the region. The Philippines has pursued diplomatic negotiations, balancing enforcement of the ruling with broader foreign policy interests.

B. Territorial Disputes: Sabah

• Another territorial dispute involving the Philippines is the claim over the territory of Sabah, which is part of Malaysia.
• The Philippine claim is based on historical titles rooted in the 1878 lease agreement between the Sultanate of Sulu and the British North Borneo Company.
• Malaysia has administered Sabah since its formation in 1963, and the dispute remains unresolved despite periodic diplomatic exchanges.

4. Principles Governing Territorial Disputes

A. Uti Possidetis Juris

• This principle maintains that newly formed states should inherit the pre-independence administrative boundaries, helping to prevent conflicts after decolonization.
• In Southeast Asia, the principle of uti possidetis juris has less direct application but underpins territorial arrangements following the dissolution of colonial empires.

B. Effectivités

• The principle of effectivités involves the actual exercise of state authority over a territory. In territorial disputes, a state may claim sovereignty if it demonstrates effective control, such as administrative actions, infrastructure, and enforcement of laws.
• In the South China Sea, the principle has been argued by various claimants, but the South China Sea Arbitration emphasized that mere occupation or artificial construction does not constitute lawful sovereignty over maritime features.

5. Customary International Law and Judicial Precedents

Customary international law plays a crucial role in resolving disputes not expressly covered by UNCLOS or other treaties. Judicial decisions from the ICJ, ITLOS, and arbitral tribunals shape the application of these customary norms in maritime delimitation and territorial claims.

A. Equity and Proportionality

• In maritime delimitation cases, courts strive to achieve an equitable solution, ensuring that delimitation respects the geographical context, proportionality of coastal lengths, and the presence of any relevant circumstances (such as economic reliance on the disputed zone).

B. Relevant Judicial Cases

• North Sea Continental Shelf Cases (ICJ, 1969): Established the principles of equity and proportionality in maritime delimitation.
• Maritime Delimitation in the Caribbean Sea and Pacific Ocean (Costa Rica v. Nicaragua, ICJ, 2018): Demonstrated the importance of geographical features in determining the fairness of maritime boundaries.
• Guyana v. Suriname (2007): Arbitral award applying equity in resolving an overlapping EEZ and continental shelf dispute.

Conclusion

Maritime and territorial disputes in the context of public international law and the Law of the Sea are governed by a complex set of legal principles established by UNCLOS, customary international law, and judicial precedents. Key concepts like maritime zones, baselines, and delimitation principles serve as the foundation for resolving such disputes. In Southeast Asia, the Philippines faces critical challenges related to the South China Sea and Sabah, requiring careful navigation of international legal frameworks and diplomatic strategies.