United Nations Convention on the Law of the Sea (UNCLOS) and delimitation of maritime boundaries : a Bangladesh perspective

Abstract

The legal regime of maritime boundary delimitation, as developed through the codification and progressive development process of international law, mainly based on two fundamental aspects: precise limit of a maritime zone, and applicable criteria (for example, applicable method, principles etc.) of its delimitation. The United Convention on the Law of the Sea (hereinafter UNCLOS or the Convention), although, provided specific provisions defining precise limit of different maritime zones, lacks specific criteria for delimitation. Article 74 and 83 of UNCLOS set the ultimate goal of delimitation-to achieve an equitable solution, but lack scant guidance to reach that solution. The International Court of Justice (hereinafter the ICJ or the Court), in the North Sea cases, first took the initiative for developing applicable principles and criteria of equitable solution. In so developing, the ICJ rejected the obligatory use of equidistance method, and applied equity as a rule of international law to develop applicable principles and criteria for reaching an equitable solution. These judicially developed principles and criteria of equitable delimitation have been applied in all subsequent cases by the international courts and tribunals. Despite such consistent use, which principles and criteria constitutes the fundamental criteria for equitable solution, in other words, what constitutes the holistic approach of equitable solution, has yet not addressed. After a careful examination, this thesis pointed out that the fundamental criteria of equitable solution that constitutes that holistic approach are emanated from equity which requires that a delimitation result will be reached in a way that will ensure a reasonable degree of proportionality and at the same time, will protect the maritime entitlement of the disputant states by way of ensuring no cut-off effect and non-encroachment of the coastal projection of the states; and this approach is equally applicable in delimitation both within and beyond 200 nm. A delimitation result, whether it is effected by negotiations or by compulsory procedures entailing binding decisions (CPBD), may reflect equitability, but it could not be seen effectively applied the law on maritime delimitation in an equitable manner unless the holistic approach of equitable solution is upheld in the delimitation result. Judicial decisions that developed principles and criteria of equitable solution, decided determined delimitation disputes within 200 nm only. Maritime delimitation beyond 200 nm, i.e.., the delimitation of the continental shelf beyond 200 nm is comparatively a new aspect of equitable solution which demand compliance with the substantive and procedural requirement of article 76 of UNCLOS, in other words, compliance with the article 76 process. Recent judgements relating maritime delimitation in the Bay of Bengal between Bangladesh, Myanmar and India (hereinafter the Bay of Bengal cases or BoB cases), for the first time, addressed maritime delimitation beyond 200 nm. These judgements have made confusion regarding compliance with this article 76 process, in particular with the process of delineation before delimitation and intermediate engagement of the Commission on the Limits of Continental Shelf (CLCS) in the delimitation beyond 200 nm, and thus gave rise of the question as to the effectiveness of the legal regime of the law on maritime delimitation in settling the maritime boundary disputes of the BoB sub-region in an equitable manner. This thesis identifies shortcomings of the BoB cases and with regard to the delimitation beyond 200 nm, argues that the adjudicative bodies could have been applied the law on maritime delimitation more effectively to produce an equitable solution in an equitable manner. Such shortcomings exemplify lack of progressive development of in this part of international law. To overcome this lacking, this thesis proposes a legal framework of equitable solution. The features of the legal framework suggested in this thesis seek to effective application of the law on maritime delimitation towards achieving an equitable solution in an equitable manner. The thesis has argued for the progressive development of the law on maritime delimitation by way of adopting a legal framework of equitable solution in light of the objectives of UNCLOS.

Date of Award	2016
Original language	English