Towards the conceptualisation of maritime delimitation: legal and technical aspects of a political process

Abstract

The United Nations Convention on the Law of the Sea sets a normative framework for an integrated governance of the oceans, with far-reaching implications for states. Its implementation - as to navigation rights, preservation of marine environment, exploitation of resources, economic jurisdiction, or any other marine issues - depends however on one central issue: the spatial allocation of authority. This thesis examines one specific aspect of this international legal problem - maritime boundary delimitation. A major challenge for this thesis lies in the fact that its subject has been extensively and thoroughly reviewed, both in scholarship and in jurisprudence. Notwithstanding this, a closer look reveals a paucity of conceptual analysis. Drawing on historical elements, as well as on state practice and case law, the present thesis endeavours to further the understanding of maritime delimitation from a conceptual standpoint. Focusing on the development of conventional provisions on delimitation, Part I eventually argues that the so-called 'equitable principles doctrine' is not customary law. What is part of customary law is an obligation of result: maritime delimitations must resulting equitable solutions. The distinction between these propositions becomes clear in Part II. By deconstructing the subject into its three core issues - concept, methods and normativity, this thesis submits that the said obligation is to be met through the optimisation of two legal principles: the principle of maritime zoning and the principle of equity. Whilst suggesting that the watchword is reasonableness, it proposes that the reasonableness of the boundary be objectified by reference to a novel concept: the average 'distance ratio' of the line. As a denouement, Part III investigates the 'discovery' of boundary-lines. Recognising that the legal determination of maritime boundaries consists of a multiple-factor analysis, in which the sphere of discretion conferred upon courts is critical, it aims at improving reasoning discourse through 'multicriteria decision-making' and the utilisation of 'yardsticks'. After discussing which elements of the 'factual matrix' are legally relevant, and how they bear on the 'discovery' of the boundary-line, this thesis offers a test study intended to validate the conceptualisation proposed.