Drawing Lines at Sea: Australia’s Five Decades of Maritime Boundary Delimitation

Boundaries in the ocean are man-made constructs of importance to everything from oil and gas production, to fisheries and environmental protection. How do states delineate such ownership and rights? These are the core questions examined in this article, which studies Australia’s maritime boundary agreements, starting with Indonesia in 1971 and ending with Timor-Leste in 2019. In addition to depicting and documenting the main drivers and impediments to these agreements whenever Australia has had to negotiate with a third country, it examines Australia’s approach to boundary-making at sea more generally. Drawing on international law and political science, this article shows why we need understand the interplay between security politics, legal considerations and domestic interests in order to understand what motivates states to settle their maritime disputes.

A Legal Appraisal of the Interplay between the Obligations to Publish/Deposit Charts and Lists of Geographical Coordinates and Unilateral Maritime Claims

According to Articles 16, 75 and 84 of the 1982 United Nations Convention on the Law of the Sea (LOSC), States Parties are under a triple obligation to draw, publish and deposit with the UN Secretary-General charts and/or lists of geographical coordinates of points concerning straight baselines, the outer limits of their maritime zones and delimited maritime boundaries. Interestingly, several States Parties have chosen to advance their maritime claims through the exercise of these duties. The expression of claims through these obligations prior to the reaching of maritime boundary delimitation could be accepted, if the claims are in compliance with the LOSC and the submission is merely of a declaratory nature seeking to ‘formalise’ a State Party’s claims, with the caveat that such assertions are subject to the designation of a definitive boundary, given that there is no such thing as ‘unilateral’ delimitation in international law.

Law and Diplomacy, Sovereignty and Consent

This article reflects on the first-ever compulsory conciliation under the law of the sea and its significance to international law and diplomacy. The conditions for ending the dispute between Timor-Leste and Australia were only created through a genuine combination of both law and diplomacy as facilitated by an expert commission. Through successive milestones, the United Nations Convention on the Law of the Sea (unclos) conciliation framework and the conciliation commission itself, was able to successfully shift the reluctant State (Australia) from resistance, to engagement, and ultimately, to resolution. The conciliation also showed how Timor-Leste’s sovereign interpretation of maritime rights under international law was a compelling argument in the context of historical factors and its self-determination. Ultimately, a treaty was agreed through the conciliation despite competing views of international law’s relationship to diplomacy and indeed on maritime boundary delimitation methodology itself. A reflection on this triumph of the liberal international order is beneficial for both Timor-Leste and Australia as they seek further cooperation under the new treaty, and for other States facing entrenched disputes as well.

Equity before International Courts and Tribunals

Equity first made its way in international decision-making through claims commissions and early arbitration tribunals, whereupon it started to be incorporated in the jurisprudence of international courts. Today, equity in international law is often associated with ICJ judgments, especially those involving maritime boundary delimitation. Recourse to equitable considerations in this field evolved over time, hardening into something very much approximating a method of equitable delimitation. However, iconic a status though the treatment of equity in the delimitation of maritime boundaries may have reached, equity is relevant to all of international law. In effect, some of the most interesting applications of equity have been made by interstate tribunals deciding other types of disputes. The chapter reviews ‘classic’ pronouncements on equity by international courts and tribunals and documents this jurisprudential history that conditions how we perceive equity in international law.

Fuzzy comprehensive evaluation of maritime boundary delimitation schemes based on AHP-entropy weight method

There are 11 provinces along the coastal regions in the Chinese Mainland and the scientific division of marine management boundaries among different provinces within the extents of the territorial sea is of important significance in promoting the sustainable development of the marine economy in China. A fuzzy evaluation index system that includes 14 indices of three subsets was established based on a case study of maritime boundary delimitation between Jiangsu and Shandong Provinces to evaluate the advantages and disadvantages of maritime boundary delimitation and determine the optimal scheme and offset shortages in the current evaluation index system and evaluation methods. Combined weights of indices were calculated through the analytic hierarchy process (AHP) and entropy weight method. The comprehensive evaluation indices were used to evaluate three maritime boundary delimitation schemes, namely, historical boundary delimitation scheme, angle bisector delimitation scheme, and equidistance delimitation scheme. Results show that the equidistance delimitation scheme is relatively superior to the two other schemes. The evaluation index is 0.504761 and the evaluation grade is “good”. The angle bisector delimitation scheme is the second optimal. The evaluation index is 0.361641 and the grade is “moderate”. The historical boundary delimitation scheme is the poorest. The evaluation index is 0.135345 and the grade is “poor”. In the late optimization of maritime boundary delimitation schemes, more consideration should be given to people’s livelihood and protection of national maritime rights and interests. The fuzzy comprehensive evaluation method based on AHP-entropy weight can not only provide a quantitative top-down sequence of schemes in terms of quality and solve estimation problems in maritime boundary delimitation scheme, but also assist decision-makers to select the best scheme. Therefore, it possesses great application values.

The Law of the Sea, International Courts, and Judicialization

Dispute settlement is entrenched in the 1982 UN Convention on the Law of the Sea (UNCLOS) through the Part XV compulsory mechanisms. It is also reflected in UNCLOS's indication that delimitation of the exclusive economic zone or the continental shelf is to be by way of agreement between coastal states. While maritime boundary delimitation may be viewed as dominated by judicialization, that is not reflected in UNCLOS. The maritime boundary delimitation project unleashed by UNCLOS gave primacy to delimitation by agreement, with third party settlement under Part XV the secondary mechanism. The 2018 Australia/Timor-Leste maritime boundary settlement highlights how, even when Part XV third party mechanisms were used, the coastal states were able to reach agreement on a maritime boundary by negotiation, without recourse to judicialization.

Developments in Maritime Delimitation Law over the Last Decade: Emerging Principles in Modern Case Law

The delimitation of maritime boundaries is a complex and multifaceted process with legal and technical aspects. The process involves the determination of a maritime boundary in a situation where two or more states are confronted with overlapping titles. In the absence of any precise rules in treaty law and established customary rules based on state practice, it has been left to the jurisprudence of international courts and tribunals to develop the applicable law of maritime boundary delimitation. This article provides a detailed examination of the complex and multifaceted processes involved in maritime delimitation law. In doing so, it highlights recent developments in the field, with an emphasis on the emerging principles of “non-cut-off” and “non-distortion.” The article also analyzes the crystalizing rules on delimitation beyond 200 nautical miles and questions the applicability of these rules to the ongoing maritime boundary dispute between Canada and the United States in the Beaufort Sea.