According to a study by Philippe Gautier, Registrar of the ITLOS, there has been
a surge in the number of law of the sea-related cases referred to ITLOS since 1994. In
the pre-UNCLOS era, only as much as 12 cases affiliated to boundary delimitation,
navigation and fisheries had been brought either to the ICJ or to international
arbitration. Between the entry into force of the Convention and 2011, a total of
35 ocean-related disputes had been brought to international adjudication, of which
18 landed at ITLOS docket. At the time of writing, the number of cases decided by
the Tribunal has risen to 25, a significant one compared to the status quo ante
UNCLOS.
112 Such growth corroborates the key role of international courts and
tribunals in settling ocean-related disputes and contributing to a law-based public
order of the oceans.
The ITLOS was acknowledged the purest form of jurisdiction, i.e. to interpret and
apply the treaty from which it was born, in pursuance of Art. 288 (1) of the
Convention and Art. 21 of the Statute of the Tribunal.
113 The Tribunal has, thus,
jurisdiction over a vast array of disputes related to the content of the Convention,
such as maritime delimitation claims, especially of boundaries involving the territorial sea, the exclusive economic zone and the continental shelf. Yet, the aim of the
current item is to assess the Tribunal’s competence to entertain both delineation and
delimitation issues; the former, in which no competing entitlements are at stake, but
solely the actions by the CLCS and coastal states, upon excessive or abusive
determination of the outer limits of their continental shelves; the latter, in which
translucent antagonistic claims exist.
3.4.1 Maritime Delimitation of Continental Shelves Beyond
200 nm
The ITLOS and other international courts face a legal challenge when delimiting
continental shelves beyond 200 nm, which is to determine jurisdiction, where the
distance criterion may play no role at all, and scientific and technical intricacies will
come to the spotlight. That could be the case of outer limits to be established through
the 2500-meter isobath, of Art. 76 (4) (a) (ii) UNCLOS. While it is a task for the
judicial or arbitral forum, competent in such disputes, to determine the geographical
extent of entitlements in maritime disputes within 200 nm, the situation with regard
to the continental shelf beyond such limit is slightly different.
An analysis of this issue must ineluctably refer to the most paradigmatic case of
maritime delimitation beyond 200 nm from the baselines that has made it to the
ITLOS jurisprudence. In the Bay of Bengal case, between Bangladesh and Myanmar, the parties disagreed on the Tribunal’s jurisdiction to delimit the continental
112 Gautier (2014), p. 574.
113 Under Art. 288, paragraph 2, UNCLOS, the Tribunal has also been given jurisdiction over any
dispute concerning the interpretation or application of other agreements.
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
71
a surge in the number of law of the sea-related cases referred to ITLOS since 1994. In
the pre-UNCLOS era, only as much as 12 cases affiliated to boundary delimitation,
navigation and fisheries had been brought either to the ICJ or to international
arbitration. Between the entry into force of the Convention and 2011, a total of
35 ocean-related disputes had been brought to international adjudication, of which
18 landed at ITLOS docket. At the time of writing, the number of cases decided by
the Tribunal has risen to 25, a significant one compared to the status quo ante
UNCLOS.
112 Such growth corroborates the key role of international courts and
tribunals in settling ocean-related disputes and contributing to a law-based public
order of the oceans.
The ITLOS was acknowledged the purest form of jurisdiction, i.e. to interpret and
apply the treaty from which it was born, in pursuance of Art. 288 (1) of the
Convention and Art. 21 of the Statute of the Tribunal.
113 The Tribunal has, thus,
jurisdiction over a vast array of disputes related to the content of the Convention,
such as maritime delimitation claims, especially of boundaries involving the territorial sea, the exclusive economic zone and the continental shelf. Yet, the aim of the
current item is to assess the Tribunal’s competence to entertain both delineation and
delimitation issues; the former, in which no competing entitlements are at stake, but
solely the actions by the CLCS and coastal states, upon excessive or abusive
determination of the outer limits of their continental shelves; the latter, in which
translucent antagonistic claims exist.
3.4.1 Maritime Delimitation of Continental Shelves Beyond
200 nm
The ITLOS and other international courts face a legal challenge when delimiting
continental shelves beyond 200 nm, which is to determine jurisdiction, where the
distance criterion may play no role at all, and scientific and technical intricacies will
come to the spotlight. That could be the case of outer limits to be established through
the 2500-meter isobath, of Art. 76 (4) (a) (ii) UNCLOS. While it is a task for the
judicial or arbitral forum, competent in such disputes, to determine the geographical
extent of entitlements in maritime disputes within 200 nm, the situation with regard
to the continental shelf beyond such limit is slightly different.
An analysis of this issue must ineluctably refer to the most paradigmatic case of
maritime delimitation beyond 200 nm from the baselines that has made it to the
ITLOS jurisprudence. In the Bay of Bengal case, between Bangladesh and Myanmar, the parties disagreed on the Tribunal’s jurisdiction to delimit the continental
112 Gautier (2014), p. 574.
113 Under Art. 288, paragraph 2, UNCLOS, the Tribunal has also been given jurisdiction over any
dispute concerning the interpretation or application of other agreements.
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
71