Maritime Energy Resources in Asia: Legal Regimes and Cooperation

The Implications of Recent Decisions on the Territorial and Maritime Boundary Disputes in East and Southeast Asia

105 the national bureau of asian research nbr special report #37 | february 2012 LOWELL B. BAUTISTA is a Research Fellow at the Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, as well as a practicing lawyer. He was formerly Senior Legal Researcher and Head of the Law of the Sea Program at the Institute of International Legal Studies, University of the Philippines Law Center. His areas of research include the law of the sea, international environmental law, maritime boundary delimitation, the South China Sea, maritime piracy and terrorism, Philippine maritime and territorial issues, and international humanitarian law. He can be reached at . The Implications of Recent Decisions on the Territorial and Maritime Boundary Disputes in East and Southeast Asia Lowell B. Bautista EXECUTIVE SUMMARY This essay examines recent decisions of international courts and tribunals—specifically, the 2009 Maritime Delimitation in the Black Sea case between Romania and Ukraine—and draws implications for the territorial and maritime boundary disputes in East and Southeast Asia. MAIN FINDINGS • ThejudgmentoftheInternationalCourtofJustice(ICJ)intheBlackSeacaseisalandmark jurisprudential contribution to the development of the law of maritime delimitation. In this case, the ICJ explicitly provided a three-stage delimitation method—which, although not novel, is a clarification and clear articulation not seen in previous cases. • The peaceful settlement of disputes over territory and over unresolved maritime boundaries is fundamental for the prevention of interstate conflict. Disputed territorial sovereignty and contested maritime boundaries impair maritime security, hamper effective interstate cooperation, compromise sustainable use of scarce natural resources, and hinder the flow of goods and resources. International adjudication offers one important way to resolve long-standing and apparently intractable disputes, especially concerning sovereignty over territory. However, this mode of dispute settlement is only one of the options open to states and is not necessarily ideal, as the vast majority of boundary agreements have resulted from diplomatic negotiations. POLICY IMPLICATIONS • States have an obligation under international law to cooperate, negotiate in good faith, and settle their disputes peacefully. • The claimant states should be willing to submit their territorial and maritime disputes to any of the various dispute resolution mechanisms available under international law. • The parties must be willing to negotiate on the basis of international law and in particular the provisions of the UN Convention on the Law of the Sea (UNCLOS). • Maritime delimitation can only proceed after the sovereignty issues are resolved; these disputes must, therefore, be addressed first. However, states can set aside the issue of sovereignty and consider joint development of the resources as an option; or cooperate on other issues such as marine environmental protection, marine scientific research, and counterterrorism, without prejudice to their respective claims. • The resolution of the disputes should consider the political dynamics and cultural sensitivities of the region and allow a greater role for intraregional mechanisms. 107 IMPLICATIONS OF RECENT DECISIONS u BAUTISTA M aritime delimitation—and thus, jurisdictional certainty—is an essential requirement to ensure comprehensive and sustainable management of living resources and the preservation and protection of the marine environment.1 Disputed territorial sovereignty and contested maritime boundaries impair maritime security, hamper effective interstate cooperation, compromise sustainable use of scarce natural resources, and hinder the flow of goods and resources.2 In this regard, clearly delineated state boundaries remain important despite the growing trend toward a “borderless world” and increasing interdependence between nation-states. In fact, many of the world’s territorial and maritime boundaries have yet to be resolved and delimited.3 In the resolution of these disputes, states have the option to submit their competing claims before an international court or tribunal for adjudication. Consequently, there have been more judgments and awards concerning maritime boundary disputes than any other aspect of international law, an apparently continuing trend.4 Alternatively, and more commonly, agreements may be negotiated on the basis of international law.5 The primary purpose of this essay is to provide a concise examination and assessment of the current state of international law on maritime boundary delimitation, especially recent developments in international case law or jurisprudence that have a bearing on maritime boundary delimitation. In particular, the delimitation methodology enunciated by the International Court of Justice (ICJ) in the Maritime Delimitation in the Black Sea case between Romania and Ukraine (hereafter referred to as the Black Sea case) has made an important contribution to the field.6 This essay will examine the Black Sea case, along with other recent maritime boundary cases adjudicated...