UNCLOS, United Nations Convention on the Law of the Sea, opened for signature 10 Dec 1982, 1833 UNTS 397, entered into force 16 Nov 1994.
Vienna Convention on the Law of Treaties, 1969, 1155 U.N.T.S. 331
Cases
Island of Palmas Arbitration: U.S. v. Netherlands; 2 R. Int'l Arb. Awards 829, 846)(Perm. Ct. Arb. 1928)
Eritrea v. Yemen, 22 R. Int'l Arb. Awards 211, (Perm. Ct. Arb. 1998),
Land, Island and Maritime Frontier Dispute (El Sal. v. Honduras.), 1992 I.C.J
North Sea Continental Shelf Cases (F.R.G. v. Den/F.R.G. v. Neth.), 1969 I.C.J. 3,
North Sea; Continental Shelf (Tunis. v. Libya), 1982 I.C.J 18, 320-323
Continental Shelf (Libya v. Malta), 1985 I.C.J. 13
Denmark. v. Norway. 1993 I.C.J. 38, 58
Qatar v. Bahrain 2001 I.C.J. 40, 111
East Timor (Port. v. Austl.), 1995 I.C.J
Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.), 2002 I.C.J. 325
This essay is based upon the author's observation that despite its promising beginnings as a reliable framework for the resolution of maritime disputes, the UNCLOS has not entirely addressed the problem of delimitation, ownership and development disputes as they pertain to international boundaries. Furthermore it can be seen from the problems being faced in the resolution of the East China Sea dispute as well as subsequent to the Timor-Leste issue that perhaps there are technical and drafting ambiguities in the convention which can actually promote rather than diffuse the political deadlock being faced in these regions. The vague application of the UNCLOS to these matters has often caused the reluctance of state parties to rely on these forums of maritime dispute management.
In the vein of the above, the author's first impression of the "equidistance" delimitation methodology inherent with in the UNCLOS is that it is inherently contradictory due to the vague nature of the UNCLOS [1] drafting itself which meant that the concept of the "Continental Shelf" as a natural prolongation was in direct contradiction to the concept of a 200m long Exclusive Economic Zone (EEZ) [2] . A perusal of the pending ICJ disputes and the relevant maritime case law indicated quite simply, that the concept of applying "equitable principles to delimitation" [3] had proved to be a confusing discourse for neighbors going through politically sensitive maritime disputes and found the reasoning of the UNCLOS and its relevant case law complicated and inadequate to deal with the unique geomorphic features of many jurisdictions. As a consequence of the same it is possible to observe that a very confusing body of ICJ jurisprudence based on the UNCLOS provisions [4] has now appeared, largely at odds with customary law and its own precedent. Thereby it has come across as an uncertain means of resolving a dispute. The East China Sea and Timor Leste are often cited as significant examples of 'one size fits all approach' [5] of Maritime Law to delimitation. This is because it has been possible to see that it is largely unhelpful where states with unique geographies have chosen to come up with their own geographically convenient interpretations during disputes.
Infact subsequent to the amount of time that has been wasted trying to find a middle path for parties to such disputes it has repeatedly been the complaint by disputing parties like China and Japan and Australia and Timor Leste that the UNCLOS was formulated with the Atlantic Ocean in mind and is fundamentally incompatible with the rather complicated topography and geomorphology of the Pacific Ocean area [6] .
The main success of the UNCLOS when it came out initially was its promise of providing sovereignty to a country through its provisions on the Continental shelf and Exclusive Economic Zone [7] . The main UNCLOS delimitation methodology is set out in (see Arts. 3-16). Under Article 5 the "normal baseline…is the low-water line along the coast" which means that a state's default maritime borders will be chalked out based on its low-tide parameters and this baseline will be used to chart the EEZ of the respective countries under Arts. 55-58 [8] .The UNCLOS has also given substantive guidance where as the conservation and sharing of migratory fish stocks is concerned. Highly migratory species (stocks) in Part V of the Convention are covered by Article 64 UNCLOS [9] . The sovereignty and determination of ownership of these natural resources especially in terms of sea life has been soundly dealt by Articles 56, 63 (2) and 116 (b) in the UNCLOS convention. However the UNAO (2008) has pointed out that while Article 63(2) provides for " co- operation measures in the high seas" it fails to produce any " substantive guidance as to how the problems involved with regulating straddling stocks are to be addressed." This is so even when it is read in conjunction with Article 6 of the UNCLOS 1982 (pre-emption principle)
Taking the example of the East China Sea dispute and from the way it deals with shared hydrocarbon reserves, it seems from a precursory application of the UNCLOS that the Japanese EEZ actually overlaps with the Chinese continental shelf. Furthermore, Japan's delimitation claim has been based on the principle of Equidistance as it can be applied upon the shared Ryukyu Islands and the Asian mainland region between the two countries' maritime zones. While the UNCLOS seeks to define uninhabitable rocks and Islands as well the sovereign title to the continental shelf within and adjacent to them but somehow [10] the judicial interpretation of such measures is not always very clear giving way to differing interpretations by states in terms of their perception of the rights to the continental shelf and EEZ zones around these Islands [11] . Technical issues or delimitation therefore arise when there is a dispute as to whether these formations are to be viewed as Islands or uninhabitable rocks [12] .
Interestingly enough many commentators have observed that the 1982 UNCLOS is much more ambiguous that its predecessor, the 1958 [13] Geneva Convention on the Continental Shelf. For example the 1958 Continental Shelf Convention provided that "in the absence of agreement... the boundary shall be determined by application of the principle of equidistance... [14] ". But when we compare this to the UNLCOS wording and the relevant case law [15] the judicial tribunal is allowed to take into account all sorts of non-geographic factors in settling delimitation disputes even though equidistance alone remains the first step of their delimitation process [16] . Furthermore the case law from the ICJ is largely evident of the fact that it is the most popular method as preferred by the tribunals with "other" factors being secondary considerations to the resolution of the whole dispute [17] .
On a more positive note the UNCLOS framework seems to have envisaged in advance the possibly of disagreement over the methodology of delimitation as was evident during the earlier negotiations that led to the signing of the convention as its inception. It seems that a compromise was effected accordingly at its inception as Article 83 UNCLOS states "the delimitation of the continental shelf between States with adjacent or opposite coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution" [18] .
When we compare Article 83 with the 1969 North Sea continental shelf cases we can find support for the view that it a countries right to its Continental Shelf is "ipso facto and ab initio" simply based on the factum of its geomorphic "natural prolongation". Furthermore Art 76 UNCLOS 1985 Guinea-Guinea-Bissau Maritime Delimitation Case, also support the view that where International Arbitration Tribunal maintained that the equidistance distance criterion cannot be viewed in isolation from the equitable principles criteria. Andrew Serdy [19] has written an informative article about the problematic type of scenarios and states that such an issue generally occurs when two states are set apart geographically by less than four hundred miles of water and the geographical configuration of the sea-bed only allows one state, at the expense of the other to be able to have a continental shelf as can be interpreted under the provisions of Article 4 to 7 of the UNCLOS. This happens when the continental shelf extends more than 200 nautical miles from the baseline from which the breath of the territorial sea can actually be measured. [20] Such is a scenario is confusing to say the least and can give birth to legally correct but practically impossible claims by the disputing parties. This lends credence to the criticism that the UNCLOS at its drafting stage actually ignored the complex geomorphic structures as they occur naturally in the Asian and Australian regions.
Based on Serdy's views only two geographic locations around the world fit the description above. The first one is pending dispute between Australia and Timor Leste [21] and the other is the East China Sea Dispute [22] . There remain many problems in the future outcomes of both these disputes based on the factum that the delay, political and economic costs as faced by the parties to the dispute mean that they might resort to the joint development mechanisms as provided for by the UNCLOS.This can be seen from the example of the North Sea which has developed efficient hydrocarbon reserves after the Frigg Agreement between the North Sea between Britain and Norway.
Many jurisdictions like China and Japan, which have in effect been unable to find an amicable settlement to their boundary disputes are now trying to follow these methods of inter-country unitization which might in effect have its "theoretical" advantages of efficient hydrocarbon exploitation and pave the way for an economically efficient allocation of costs and benefits between the various stakeholders. One of such examples by the East China Sea parties has been the adoption of the 2008 Principled Consensus. The obvious advantage of such arrangements is that they do not hinder efficient utilization of resources even as the dispute remains ongoing. For example when we view the outcomes of the North Sea Continental Cases (1969) we see a good example of how years of litigation led to the International Court of Justice asking the parties to resort to compulsory negotiation and mediation to come to a solid conclusion to their delimitation disputes? This was indeed a waste of time and resources on behalf of both parties.
Therefore one of the reasons which can be discerned now, as to why the UNCLOS is often perceived as ineffective is the unrealistic expectation on behalf of both parties to the dispute that the outcome will be a zero sum game, then the failure does not entirely lie in the framework of the law but a diplomatic failure to communicate on behalf of neighbors with bitter political histories. In defence of the UNCLOS, it is a framework convention, which was negotiated abundantly by many powerful states around the world. Interestingly enough though some like the USA are not even a party to it yet. This has however not prevented the USA from asserting its diplomatic footing through allied states in many regions around the whole East Asia and Pacific region. Infact recently Hillary Clinton's recent visit to the East China Sea and her offer to resolve such issues [23] has not been seen favorably by China and has accordingly been condemned.
In conclusion while it has been seen that the UNCLOS does little for disputes arising with in anomalous geomorphic territories and the unique cases of migratory fish stocks, it should be remembered that apart from the above, there is very vague guidance with in International Law, to discern a framework for dispute resolution to be used as a guide in delimitation disputes. For this reason as a basic framework for international Maritime Law it should be lauded rather than discarded. However the author also believes that for the same reasons it is about time that the Maritime Law was revised and many aspects of it were clarified within the ambit of the unique and emerging geomorphic delimitation disputes as they have evolved after its adoption.
References Consulted
Alexander M. Peterson, "Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement? (2009) Cornell International Law Journal Vol. 42
Alexander M. Peterson, Exploration of the East China Sea: An Opportunity for Cooperation, 32 Wittenberg E. Asian Studs. J. 123 (2007).
Andrew Serdy (2008). Is There A 400-Mile Rule In UNCLOS Article 76(8)?. International And Comparative Law Quarterly, 57 , Pp 941-954
Bernard Tavern, An Introduction To The Regulation Of The Petroleum Industry: Law, Contracts And Conventions 149 (1994)
Cameron, Peter D., "The rules of engagement: Developing cross-border petroleum deposits in the North Sea and the Caribbean", ICLQ, 2006, 55, 559-586 [available online]
Carlos Ramos-Mrosovsky, International Law's Unhelpful Role in the Senkaku Islands, 29 U. PA. J. INT'L L. 903, 911 (2008)
DH Anderson ' Strategies for Dispute Resolution: Negotiating Joint Agreements' in G Blake et al (eds) (n 21)
Ian Townsend-Gault, Joint Development Of Mineral Resources-Progress And Prospects For The Future, 12 Nat. Resources F. 275, 275 (1988)
Igiehon, Mark Osa, "Present international law on delimitation of the continental shelf", IELTR, 2006, 208-215
Itoh, Shoichi. "China's Surging Energy Demand: Trigger for Conflict with Japan or the Emergence of an Energy-Environment Regime in Northeast Asia?" Paper presented at the annual meeting of the International Studies Association 48th Annual Convention, Hilton Chicago, CHICAGO, IL, USA, Feb 28, 2007 available online at http://www.allacademic.com/meta/p179839_index.html
M. Fitzmaurice and M. Szuniewicz (eds), Exploitation of natural resources in the 21st century (London: Kluwer International, 2003), p.116.
Masahiro Miyoshi, " The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation" in Maritime Briefing, Vol.2, No.5 (Durham: International Boundaries Research Unit, 1999), p.
Ong, D., Joint Development of Common Offshore Oil and Gas Deposits: "Mere" State Practice or Customary International Law?" (American Journal of International Law, Vol9 3: p.771, 1999.)
Yusuf, Yusuf Mohammad, "Is joint development a panacea for maritime boundary disputes and for the exploitation of offshore transboundary petroleum deposits?" IELR, 2009, 4, 130-137
Hillary Clinton, "Remarks" (speech, National Convention Center, Hanoi, Vietnam, July 23, 2010), available online at www.state.gov/secretary/rm/2010/07/145095.htm (accessed August 20, 2010).
UNAO (2008) United Nations Atlas of the Oceans http://www.oceansatlas.org/
R Khan (eds) The International Tribunal for the Law of the Sea: Law and Practice (The Hague Kluwer Law International 2001) 33 at 45-6.
S Oda, 'Dispute Settlement Prospects in the Law of the Sea' (1995) 44 ICLQ 863, at 866-7
