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The Role of the Archipelagic Baselines in Maritime Boundary Delimitation

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The Role of the Archipelagic Baselines in Maritime Boundary Delimitation THE ROLE OF THE ARCHIPELAGIC BASELINES IN MARITIME BOUNDARY DELIMITATION Sora Lokita The United Nations-Nippon Foundation Fellowship Programme 2009 - 2010 DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA OFFICE OF LEGAL AFFAIRS, THE UNITED NATIONS NEW YORK, 2010 DISCLAIMER The views expressed herein are those of the author and do not necessarily reflect the views of the Government of Indonesia, the United Nations, the Nippon Foundation of Japan, or the Australian National Centre for Ocean Resources and Security (ANCORS) of the University of Wollongong or those of the Indonesian National Coordinating Agency for Survey and Mapping (BAKOSURTANAL). © 2010 Sora Lokita. All rights reserved. - i - Abstract The codification of the concept of the archipelagic State through the United Nations Convention on the Law of the Sea of 1982 (hereafter: LOSC) represented a significant development of the international legal status of waters within and around certain States which can be geographically and legally considered as archipelagos. Once a country has satisfied all the requirements to qualify as an archipelagic State, as prescribed by Article 46 of LOSC, then it may have the right to draw straight archipelagic baselines. There are, however, a number of conditions to fulfil in the construction of archipelagic baselines in accordance with Article 47 of LOSC. Where such archipelagic baselines are defined in accordance with Article 47 of LOSC, the maritime area enclosed becomes archipelagic waters and is under the sovereignty of the coastal State. Moreover, archipelagic States can also generate their maritime zones from their archipelagic baselines, as long as there are no overlapping claims with neighbouring States. If there are, then the parties should negotiate the boundaries in order to achieve an equitable solution. In the context of maritime boundary delimitation involving archipelagic States, it can be anticipated that such a State will argue that archipelagic baselines should be given full effect, for instance, in the construction of an equidistance based maritime boundary delimitation line. However, in many agreed boundary cases, it is unclear whether the system of straight archipelagic baselines in question had any real significance in determining the final location of the maritime boundary delimitation line. This research identifies and critically analyses the role of archipelagic baselines in maritime boundaries delimitation. The first part of the research identifies the evolution of the concept of the archipelagic State in international law together with the associated international legal rules concerning the application of archipelagic baselines. The second part analyses the legal and technical aspects of maritime boundary delimitation. In the third part of the research, discussion turns to practical consideration and, in particular, how archipelagic States have defined their baselines and delimited their maritime boundaries with their neighbours. The research also identifies and analyses legal and technical issues, case studies are provided, in order to illustrate and highlight key complexities in maritime boundary delimitation facing archipelagic States, particularly with reference to their archipelagic baselines. At the end of the discussion, it can be concluded that there is still a gap between the law and the practice, especially on the technical aspect, on how archipelagic baselines can be used in maritime boundary delimitation. - ii - SUPERVISORS: Dr. Clive Schofield Dr. François Bailet - iii - Acronyms BAC British Admiralty Chart EEZ Exclusive Economic Zone GIS Geographic Information System ICJ The International Court of Justice ILC The International Law Commission ITLOS International Tribunal for the Law of the Sea LOSC Law of the Sea Convention UN United Nations UNCLOS I The First United Nations Conference on the Law of the Sea (1958) UNCLOS II The Second United Nations Conference on the Law of the Sea (1960) UNCLOS III The Third United Nations Conference on the Law of the Sea (1973-1982) TALOS Technical Aspects of the Law of the Sea UK United Kingdom US United States WGS-84 World Geodetic System 1984 - iv - Dedication For Mama, Papa and Indonesia - v - Acknowledgements It has been a great opportunity for me for being awarded the United Nations - Nippon Foundation of Japan Fellowship. I would like to convey my sincere gratitude to the Division for Ocean Affairs and Law of the Sea (DOALOS), Office of Legal Affairs, United Nations and The Nippon Foundation of Japan for this opportunity. I thank Mr. Serguei Tarassenko (Director of DOALOS), Dr. Francois Bailet (Program Adviser and supervisor), and all DOALOS staff members for their support and warm welcome. I also appreciate my all UN-Nippon 2009-2010 fellow for our warm friendship and mutual collaboration. I thank Dr. Clive Schofield for being such a great supervisor for me. I also thank Prof. Martin Tsamenyi and Myree Mitchell from the Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong for their assistance during my first-phase placement. I also have to highly acknowledge the support, assistance and friendship given to me by I Made Andi Arsana. I would not be part of this program if it is not based on the support given by the Indonesian government, especially the Indonesian National Coordinating Agency for Surveys and Mapping (Bakosurtanal) and the Department of Foreign affairs of the Republic of Indonesia. I am indebted to those institutions. I dedicate this work to Papa, Mama, Eyangkung , Novi, Mas Ipul, Henry and Gita for their supports, prayers, endless courage and love. Supports from my family are undisputable so I can achieve this far. I am indebted to them all. Astrit Rimayanti, the woman that I love has always been my source of encouragement and inspiration. Her constant love and support was the reason for me to always move forward. Without support from her, I would not have been able to accomplish this. Finally, I acknowledge everybody whose name cannot be mentioned one by one in this acknowledgement page. However, their supports never lose their meaning. - vi - Table of Contents Abstract.................................................................................................................................ii Acronyms.............................................................................................................................iv Dedication.............................................................................................................................v Acknowledgements..............................................................................................................vi Table of Contents ................................................................................................................vii List of Figures and Maps ......................................................................................................x 1 Introduction......................................................................................................................1 1.1 Background and Context..........................................................................................2 1.2 Scope and Objectives...............................................................................................4 1.3 Achievements...........................................................................................................5 1.4 Overview of the Report............................................................................................5 2 The Evolution of Archipelagic State and Archipelagic Baselines Concept .....................6 2.1 Definition .................................................................................................................6 2.1.1 Historical Perspective .........................................................................................6 2.1.1.1 Institut de Droit International......................................................................7 2.1.1.2 International Law Association.....................................................................8 2.1.1.3 The Hague Codification Conference of 1930..............................................9 2.1.1.4 International Law Commission .................................................................10 2.1.1.5 1958 United Nations Conference on the Law of the Sea (UNCLOS I) ....12 2.1.1.6 1960 United Nations Conference on the Law of the Sea (UNCLOS II) ...14 2.1.1.7 Third United Nations Conference on the Law of the Sea (UNCLOS III).14 2.1.2 Legal Perspective..............................................................................................15 2.1.3 Technical Perspective........................................................................................17 2.2 State Practice..........................................................................................................22 2.3 Concluding Remarks..............................................................................................26 3 Maritime Boundary Delimitation...................................................................................28 3.1 The Evolution of Maritime Boundary Delimitation...............................................28 3.1.1 The work of the International Law Commission ..............................................29 3.1.2 Formulation of the rules in the UNCLOS I.......................................................31 3.1.3 Relevant Jurisprudence Pre-1982......................................................................33
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