On 23 September 2017, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) delivered its judgment on the longstanding maritime boundary dispute between Ghana and Côte d’Ivoire.
The Special Chamber reconfirmed the relevance of the equidistance methodology in determining the maritime boundary between the two States. The judgment also touches on important issues affecting States and international companies operating in disputed waters such as the applicable obligations pending resolution of such disputes.
Herbert Smith Freehills' consultant Antonio Pastor is pleased to announced the release of his book 'Delimitation of maritime boundaries between states. Insular formations and low-tide elevations' (TIRANT LO BLANCH, Valencia, 2017).
Commenting on the book, Antonio said: "There is an economic dimension of this subject matter. The settlement of maritime boundaries can have a significant impact on the economic decisions of States as well as of commercial actors. Businesses need to know which State exercises sovereignty or jurisdiction over an insular formation, and therefore to grant commercial concessions in relation to that territory."
On 12 July 2016, the final Award in the arbitration between the Republic of the Philippines and The Peoples' Republic of China was issued by the Tribunal constituted under the United Nations Convention on the Law of the Sea ("UNCLOS"). Much international media attention has been focused on the arbitration, which concerned a number of issues in relation to the rights and maritime entitlements in the South China Sea, in respect of an area known as the "nine-dash line". The Award has been hailed as "historic" in terms of the interpretation and application of UNCLOS.
In the Award, the Tribunal emphasised that in light of limitations on compulsory dispute settlement under UNCLOS, it would not rule on any question of sovereignty over territory and would not delimit any boundary between the Parties. The Tribunal found in favour of the Philippines on the main points in issue. In the Award, amongst other things, the Tribunal made a number of important statements on the interaction between UNCLOS and claimed historic rights, the nature and features of "low tide elevations", "rocks" and "islands", and the obligations of States in relation to the protection of the marine environment.
A summary of the 500-page Award and the key findings of the Tribunal are set out below.
The United Nations Commission on the Limits of the Continental Shelf (the CLCS) has now published its full recommendations on the limits of Argentina's continental shelf. There was considerable press speculation following the issue of a preliminary CLCS press release in March 2016 that its recommendations may have impacted on areas of the continental shelf subject to the sovereignty dispute between the United Kingdom and Argentina relating to the Falkland Islands. This would have been a clear departure from its own rules of procedure, and its previous practice. For this reason, we suggested on our blog that the press speculation was likely to prove unfounded. The full recommendations available here have proved this correct – whereas the recommendations do clarify the limits of Argentina's continental shelf in uncontested areas, they make clear that the CLCS did not consider and qualify the parts of Argentina's submissions that were subject to the sovereignty dispute.
At a ceremony in Singapore on 31 August 2015, representatives of the International Tribunal for the Law of the Sea (ITLOS) and the Singaporean Ministry of Law signed a Joint Declaration for Singapore to provide facilities to ITLOS whenever it is desirable for ITLOS or a special chamber of ITLOS to exercise its functions in Singapore. ITLOS announced the arrangements in a joint press release, available here.
Established by the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) in 1982, ITLOS sits to hear any dispute concerning the interpretation or application of the Convention. Currently, there are 167 parties to the Convention, which comprises 166 States and the European Union. Importantly, the United States has not signed or ratified the UNCLOS. Since it was founded in 1996, ITLOS has heard 24 cases (only five of which have been on the merits).
As Scotland is poised to decide on its future, a number of questions remain unexplored and unresolved in the politics of the Referendum debate.
In our July 2014 webinar, “Cutting through the politics of the Scottish Independence Referendum: The International Law Implications of Independence”, our speakers considered the legal ramifications of an independent Scotland from an international law perspective; including
- Would Scotland automatically be bound by, and benefit from, the UK’s international treaties after independence, and would the remaining UK’s international law rights and obligations be affected?
- How can Scotland negotiate continued membership of the EU and what are the implications?
- How would Scotland’s maritime boundaries be drawn in the event of independence and how does that impact oil and gas reserves in the North Sea?
- What impact would independence have on oil and gas sector regulation?
To access a recording of this webinar, please contact Prudence Heidemans.
With the question of independence on the agenda in Scotland and Kurdistan to name only two, the possible creation of new states has potentially significant ramifications for business, and particularly investments, risk assessments and contracts. Today a panel comprised of Akok Manyuat Madut, Counsellor, Embassy of the Republic of South Sudan, Greg Marten, Associate General Counsel, Shell International B.V., Dominic Roughton, Global Head of Public International Law, and Andrew Cannon, Partner, addressed attendees from a number of different industries and national governments on issues pertaining to state succession.
Drawing on their own experiences, the panel considered: the process and challenges of achieving statehood; the practical and legal effects of state succession from the point of view of those who invest and do business where a new state has been, or may be, created; how states and governments are recognised; the consequences of state continuity and state succession; the private law implications of the creation of a new state on existing contracts; and how land and maritime boundaries can be drawn in the event of independence.
For further information about these issues, please contact Dominic Roughton or Andrew Cannon, or any other member of Public International Law Group at Herbert Smith Freehills.
On 7 July 2014, an Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea 1982 (the Convention) issued its award in the Bay of Bengal Maritime Boundary Arbitration between the People’s Republic of Bangladesh and the Republic of India, granting approximately 106,613km2 to Bangladesh and 300,220 km2 to India, out of a total relevant area of 406,833km2. The Award provides much needed clarity on the maritime entitlements of both Bangladesh and India.
Like the 2012 decision of the International Tribunal for the Law of the Sea (ITLOS) in the Bangladesh/Myanmar case, a consequence of the delimitation was the creation of a small “grey area” creating potential overlapping entitlements of Bangladesh, India and Myanmar (which was not a party to the arbitration).
While in deciding larger uncertainties over the entitlements of Bangladesh and India the Tribunal created new (albeit smaller) uncertainties over competing sovereign rights in the grey area, the Tribunal’s encouragement of the parties to cooperate in the exercise of their sovereign rights is to be welcomed. There are a number of precedents where states have shared rights in maritime areas to achieve a favourable solution for all parties.
The Award also provides an excellent precedent for the peaceful settlement of maritime boundary disputes and shows how States can de-politicise sovereignty issues and cooperate to achieve political and commercial certainty.
As reported in our earlier blog post, on 29 and 30 November 2012, the International Tribunal for the Law of the Sea (the ITLOS) heard an application by Argentina for provisional measures against Ghana under Article 290(5) of the UN Convention on the Law of the Sea (UNCLOS) regarding the detention of its naval ship, the ARA Libertad. The ARA Libertad was detained in Ghana following a successful application in the High Court in Accra by NML Capital, one of Argentina’s creditors (see our earlier blog post). Argentina commenced arbitration proceedings against Ghana under Annex VII of UNCLOS and, by way of its application for interim relief, sought an order requiring Ghana unconditionally to release the frigate.
On 15 December 2012, the ITLOS granted the requested provisional measures, ordering Ghana to release the ARA Libertad and ensure that it, its commander and crew are able to leave the maritime areas under the jurisdiction of Ghana. Ghana has complied with the ruling, and the Libertad set sail from Tema yesterday.
The full Order can be found here.
On 29 and 30 November 2012, the International Tribunal for the Law of the Sea (ITLOS) heard an application by Argentina for provisional measures against Ghana under Article 290(5) of the UN Convention on the Law of the Sea (UNCLOS). The application is regarding Ghana’s continued detention of the Argentine warship, the ARA Libertad. The ITLOS action is the latest instalment in Argentina’s long-running battle with a number of holdout bondholders who are pursuing Argentine state assets around the globe in a bid to recoup their substantial losses following Argentina’s default on US$80 billion of public debt in 2001.
The vessel was detained in the Ghanaian port of Tema on 2 October 2012 when one of Argentina’s creditors, NML Capital, successfully obtained an injunction detaining the vessel from the Ghanaian High Court in Accra. A subsequent challenge to the injunction by the Argentine government on the grounds of state immunity was unsuccessful (which we covered here). Argentina has since filed an appeal against that decision with the Ghanaian Court of Appeal, which is expected to be heard in January 2013. NML Capital is owed just under US$300 million by Argentina, and has sought to enforce judgments handed down in its favour by the US courts against Argentine state assets around the globe.