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1. Disputes concerning law of the sea matters are among those most frequently submitted to settlement by the International Court of Justice and arbitral tribunals. Among these the most frequent are disputes concerning delimitation of maritime areas. Since the North sea…
2. This rather abundant jurisprudence precedes entry into force of the United…
3. UNCLOS establishes compulsory jurisdiction - namely the possibility for…
4. Consequently, as between the parties to UNCLOS the possibilities of submitting a delimitation case to an international court or tribunal have dramatically increased. It is nonetheless true that, according to article 298(1), parties may exclude from compulsory jurisdiction disputes concerning the interpretation or application of articles 15, 74 and 83 and that a sizable number of States has taken advantage of this possibility. Nevertheless, the vast majority of States parties has not done so and a number of delimitation disputes, starting with Barbados v. Trinidad…
5. Entry into force of UNCLOS has not been the only basis for the recent expansion of the engagement of international judges and arbitrators in delimitation disputes. While the International Court of Justice (ICJ) has never been seized of a dispute, including a delimitation dispute, on the basis of UNCLOS, since the latter’s entry onto force the Court has been seized on jurisdictional bases different from UNCLOS of numerous delimitation cases. Just to quote the most relevant ones, Cameroon v. Nigeria
6. The increased likelihood of delimitation cases being unilaterally submitted to international courts and tribunals under the jurisdictional clauses of UNCLOS has especially increased the
7. This is because article 287 of UNCLOS, while providing for the possibility…
8. This is so because most States parties have not made a declaration of preference…
9. In fact, most of the disputes concerning the interpretation of UNCLOS, including those on delimitation of maritime areas, have started with a request for the establishment of an Annex VII arbitral tribunal. In several cases, however, the parties then agreed to transfer the dispute from the competent and yet to be established Annex VII arbitral tribunal to ITLOS or a Chamber thereof.(22)…
10. In its half a century of jurisprudence on delimitation cases the ICJ has seen such cases move from those concerning the continental shelf alone to those involving a single line separating not only the continental shelf but also the newly established exclusive fisheries and economic zones, and lately also – but
11. Moreover, the ICJ has developed in its jurisprudence a methodology for settling marine delimitation disputes. This methodology started as involving two steps, namely, first, the drawing of a provisional equidistance line and, second, the correction of such line if necessary in order to obtain an equitable result. Since the Black Sea…
12. This methodology has been followed by the ICJ in all cases in which it was possible to draw an equidistance line(24).…
13. Importantly, the ICJ’s three steps methodology has been followed by other adjudication bodies involved in delimitation cases, namely, the ITLOS and arbitration tribunals. Significantly, in its first delimitation case, the Gulf of Bengal one…
14. The wide-spread acceptance of the ICJ’s three steps methodology introduces…
15. However, the three steps methodology does not ensure that the outcome…
16. Most importantly, the methodology requires to make certain determinations…
17. This entails that the process followed, and the difficult to predict discretionary…
18. This notwithstanding, it remains interesting to assess the pros and cons…
19. It must be preliminarily underscored, however, that in most cases under UNCLOS there will be no real choice to be made, as the only available adjudicating body with compulsory jurisdiction will be, for the reasons explained above, Annex VII arbitration. In practice, the need to assess the pros and cons may
20. It may be argued that a permanent body is more predictable than an arbitration…
21. One real difference worth assessing is that between a big body (15 members for the ICJ and 21 for the ITLOS) and a smaller body as the arbitration tribunals normally composed of five members, and possibly three as it happened in one UNCLOS case not concerning delimitation (Malta v. Sao Tomé)
22. It must be added that this difference may be attenuated, although not for the cost aspect, if the parties agree to submit the case to special chamber of the ICJ or of the ITLOS. This practice has been resorted to in delimitation cases by both the ICJ and ITLOS, with the establishment of five-member special Chambers, respectively, in the Gulf of Maine…
