Resources that are seen to have an economic value have been very instrumental in heightening territorial and frontier disputes. The situation is worsened even further if there happen to be islands on the shared waters because commonly any country would like to claim any island that falls around its borders (Alexander, 1983). For instance, in 2009 there was a near-crisis dispute between two East African countries i.e. Kenya and Uganda over the ownership of a one-kilometer square island on the Lake Victoria waters which separates the separates two nations. The island was declared part of Kenya in maps drafted in 1926. The waters around the rocky island are said to have plenty of Nile perch and fishermen from both countries have set camp on the island. The dispute arose when the Ugandan government placed its administration officers and pinned a flag on the island declaring it part of its property. Kenya on the other hand claims legal sovereignty of the land as accorded by maritime laws (Gerard, 1990). Kenyan fishermen also want their Ugandan counterparts barred from fishing around the Island on the premise that overfishing has led to a reduction in numbers of the Nile perch.
This is but one of the many border disputes that have been reported around the globe. Other resources especially those with high economic value like oil and natural gas have caused tension between countries all over the world. Cooperation on issues involving the sea between states is crucial in the contribution to the political and socioeconomic well-being of people around the globe (Prescott and Schofield, 2005). In order to reduce the impact of disputes, International laws have been drafted to act as to guides in the peaceful resolution of the conflicts (Galdorisi, & Kaufman, 2002; Djalal, Yankov, & Bergin, 2005). One of these laws (and particularly for the purposes of the discussion at hand) is the Law of the sea passed in 1982 by the United Nations convention (Hailbronner, 1983). This law was well structured in order to address any issue of delimitation within the context of maritime zones (Prosper, 1989).
This essay seeks to illustrate how the dispute between the two nations (State A and State B) listed in the statement of facts can be resolved. To this end, the document presented by the United Nations Convention on the Law of the Sea shall be extensively consulted and, certain key articles within it given prominence based on their relevance to the issue.
Overview of Maritime boundaries and the international law
In 1958, 86 states participated in the first United Nations Convention on the Law of the Sea (hereafter: UNCLOS 1) that saw various treaties being signed amongst participating countries (UNCLOS, 1958). The period between the 1950s and the 1960s saw the emergence of newly independent states occasioned by the decolonization wave of the time. As a result, new international laws had to be designed in order to cato for the rising young states. This led to the third United Nations Convention on the Law of the Sea (hereafter: UNCLOS 3) which saw a record 165 countries participate in the period between 1973 and 1982. This convention saw the advent of the international law of the sea (UNCLOS, 1982). This law covered all the aspects of the sea that could result in conflict between neighboring nations including the configuration of the coasts and islands. In essence, the law of the sea divided the seas into regions or zones and categorically specified the rights and obligations of the nations allocated sovereignty over the zones (Victor, & Schofield, 2005).
Due to the availability of non-living natural resources like oil on the beds of the high seas, the continental shelf was established and accepted as customary international law (Umberto, 1993). Nations rushed towards acquiring exclusive rights to the resources on the continental shelf and even beyond their boundaries (Erik, 2001; Edward, & Rogoff, 1982). In order to prevent international conflicts, the Laws of the Sea agreed on in 1982 suggested the concept of boundary delimitation. As a result regions in the sea referred to as exclusive economic zones (EEZs) emerged as off-shore zones and these were to be 200 nautical miles from the baseline of a state (Attard, 1987).
Articles of the UNCLOS 3 that apply to this case
Article 15 serves as a guide for the delimitation of territorial sea between states that are either opposite or adjacent to each other (Andronico, 1979; Legault, & Hankey, 1985). This article proposes that should the two countries fail to agree on the limits of territorial seas, none of them is allowed to extend its territorial sea beyond the median line separating the two nations (UNCLOS, 1982). This condition however does not apply in a situation whereby historic sovereignty grants one state the right to delimit its territorial sea in a way that gives it more advantage.
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Article 46 offers the definition of archipelagic state where by it is described as a state that is composed entirely of either one or more archipelagos and may at times include other islands (Prescott, & Triggs, 2005). An archipelago is an amalgamation of islands including portions of islands interlinking waters and other natural features in such a way that the islands, the waters and the features are regarded as one geographic, political or economic unit (UNCLOS, 1982).
Article 47 which has actually been quoted in the statement of facts deals with archipelagic baselines (Bowett, 1993). This article accords an archipelagic state the right to draw its baselines by extending straight lines to link the outermost point of the outmost atolls. The ratio of water to land should be between 1:1 and 9:1 and the length of such baselines should not exceed 100 nautical miles (Roach, & Smith, 2000). These baselines should also respect the territorial seas of other states by not cutting them either from the high seas or the exclusive economic zone (UNCLOS, 1982).
Article 51 will also come in handy in the resolution of the conflict between the two states (Pinto, 2002). This article deals with traditional fishing rights and already existing agreements. This article briefly requires that an archipelagic state respects existing agreements as pertains to traditional fishing rights and other agreed lawful activities by the immediate neighbors in waters that fall within the archipelagic region. These rights could however be modified at the request of the involved parties under mutual agreements (UNCLOS, 1982).
Article 59 provides for ways of solving conflicts concerning the rights and authority in the exclusive economic zone. This article suggests that whenever a conflict arises, it should be solved by ensuring the aggrieved parties get equal shares of the resources they are fighting over and that the well being of the whole community should be the guiding factor (UNCLOS, 1982).
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Articles 74 and 83. Both these articles deal with a delimitation agreement between adjacent or opposite countries (Paul, 1985). Article 74 suggests a temporary accord be reached at on disputes regarding the exclusive economic zone while a permanent solution is sought while article 83 proposes the same for the continental shelf awaiting a final delimitation agreement (UNCLOS, 1982).
Articles 116-118. The articles in this range concern the conservation of living resources of the high seas. Article 116 deals with the right to fish and proposes that the citizens of a particular state have the right to take part in fishing activities in the high seas subject to treaty requirements (UNCLOS, 1982; Morell, 1992). Article 117 proposes that all states have the obligation to conserve the living resources in the high seas, and this may call for collaboration with other states that exploit similar resources as suggested by article 118 (UNCLOS, 1982).
Article 121 covers the administration of islands. Of importance to the discussion about State A and State B is the third part of this article which emphatically states that rocks which cannot support human occupancy or economic life on their own shall neither have a continental shelf nor an exclusive economic zone (Oxman, 1981).
Articles 136 and 142. Article 136 puts forward the fact that all resources of an area are shared birthrights of mankind. Article 142 proceeds to propose that in case exploitation activities in an area lie outside the limits of national jurisdiction, consent should be sought from the state whose area is being encroached upon and the interests of this state should be kept in mind.
Analysis of the statement of facts
State A may have rights to the sovereignty to the islands. This could be occasioned if State B was in the past part of State A and later decided to govern itself. In this case then, State A is granted historic sovereignty. This is a legality supported by Article 15 which allows for the state with historic sovereignty to claim an unchallenged territorial island. However, this sovereignty only contradicts the purpose for which the Laws of the seas were drafted. The 1982 UNLOS 3 convention intended to factor in young states by bringing about regulations that would govern the classification of maritime zones based on the distance from the baseline of a state (Charney, 1994). Consequently, by the provision made in Article 47 these islands and rocky outcrops belong squarely to state B as they lie within the 100 nautical mile allowance.
State A, having an archipelagic coast line could also lay legitimate claim to the islands by invoking Article 47. This article provides specific distances for plotting the baselines of a state. As a result, based on the measurements provided by this article, if the islands lie within a line that connects the outermost points of the coastline of State A, then the state can maintain sovereignty over the islands. If the islands happen to lie outside this baseline, then other measurements have to be taken to establish the half on which they lie. Under this circumstance, they would most probably lie on the waters in the half of state B judging from the distance of three nautical miles that we have been given. Unfortunately the statement of facts that has been presented for analysis has left out very many details which would have enabled a reviewer make an absolute judgment and all this is arrived at by speculation.
State B has the backing of Article 51 in its argument that its fishermen have been fishing in the region around the islands since time immemorial. This is because this particular article recognizes the aspect of traditional fishing rights and therefore illegalizes attempts by State A to disregard the opinions of State B. Again, there is the probability that these islands don’t lie on the archipelagic waters of State A. In that case, then State B has full rights to fishing around these islands and it is State A that needs to request permission to carry out activities in this zone. The major advantage of this article is that it provides for flexibility and the two states could easily come to an agreement on how to carry out economic activities around the islands irrespective of who owns absolute rights. The drawback of this article is that it is not based on a strong legal premise. It operates on the assumption that anything that has been done for years can still be maintained for the foreseeable future and still have the same effect on the environment. It ignores the fact that times are changing and populations are increasing hence allowing people access to fishing grounds on the basis of traditions can easily result in the total depletion of these living resources from the sea.
Due to the diminishing numbers of living resources occasioned by the fishing activities of State B around the islands, State A is right to call for the stoppage of fishermen from state B from accessing these fishing grounds. This is in concurrence with articles 117 and 118 which require that all involved states take part in the conservation of the living resources of the high seas. The brevity of the statement of facts to a large extent prevents an analyst from coming to a definite conclusion on this issue. This is because one is forced to assume that State A is objective when calling for fishermen from State B to be barred from working in the disputed zones. If fishermen from State A were also not stopped from accessing the fishing grounds, the situation could get worse since this one state will now be making benefits at the expense of the other. This article’s strongpoint is that it provides for the maintenance and conservation of resources for future use. Its major weak-point however is the fact that it ignores the fact that human beings are inherently selfish. States can easily capitalize on this article and call for the eviction of other participants from carrying out economic activities in maritime zones and then secretly use the opportunity to accumulate wealth for its people. For instance, from the dispute in the statement of facts, State A claims that it wants to stop fishermen from fishing the waters around the islands for conservation purposes. However, it beats sense why State A is so concerned about an island that may be off its territory if it is not gaining from it on a first hand basis.
If the island off of which State A has granted an international oil company the license to drill is a rock that cannot support human habitation on its own, then based on article 121 State B cannot claim sovereignty irrespective of the distance from its coast line. This is because according to the article these regions do not have either a continental shelf or an exclusive economic zone. However, if this island is established to lie on the waters of State B, it is imperative that State A consults with State B and come to an agreement on how the resources extracted from the zone will be shared. In this case, State B is under no obligation to comply with the demands of State A and can actually call for the eviction of the oil company off of its territory. If the Island lies within the archiplegic waters of State A, then it has every right to continue with extractive activities in the domain without having to consult state B.
Article 59 provides for a method of resolving the crisis that is imminent between State A and State B. It suggests the principle of ‘brotherhood’ whereby each party of the dispute is urged to relax on its stand so that an amicable solution can be agreed at. The two states according to this article should share the available resources on a 50-50 basis and that the interests of both parties be given consideration. The chance of this theory working however seems slim because the conflict recorded is multi-leveled. First, there is the issue of ownership which needs to be properly established. Secondly, there is a conflict of interest, with State A siding against fishing in the waters and State B remaining adamant of its fishing exploits in the zone. Finally, State A has already involved a third party in the form of an oil company; it will definitely be difficult for the State A to either give back the money it has received from the company or bring it out for sharing with State B should the island and its surrounding waters be established to belong to State B.
The biggest issue that if resolved would end up averting the pending crisis is the issue of delimitation which State A wants to solve by summoning Article 47 of the convention of the United Nations Law of the Sea. However, as has been explained above, this article has its limitations and cannot fully address the issue at hand. Consequently, other methods and principles of delimitation have to be called in (Oude, 1994). These are detailed below:
The equidistance principle
This principle was first proposed by the 1958 territorial sea convention. Herein equidistance was described as the line every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each of the two States is measured.” This explanation was also presented by the continental shelf convention whereby a median line was used to depict a boundary equidistant from states that are adjacent to each other (Jagota, 1985). For the case between State A and State B, this principle could be used to solve the conflict regarding ownership of the islands. The major hinderance would be if State A chooses to follow the straight line method of connecting the outermost regions of its archipelagic boundary while State B uses normal boundary outlines. This may end up giving State A an undue advantage. The major advantage of this principle is that it provides for equal division of the zone in contention.
The equity and equitability principle
This principle started in 1945 majorly applies in the delimitation of the continental shelf. According to this standard, whenever a boundary dispute occurs, delimitation should result in equitable results for all particular cases (Robert, 2003). Since the continental shelf is majorly a resource filled center, it may be difficult to establish a perfect way of splitting these resources equally. As a result, all interests by both parties on the region should be clearly laid out on the table and then an assessment for economic value be carried out before splitting the resource hubs (Roach, & Smith, 1996). For the case between State A and State B, it is evident that one zone of the region in contention has plenty of living resources in the form of fish while another has oil reserves. These two resources should be weighed with each other and then a way of equally splitting the earnings be designed.
The proportionality principle
According to this concept, delimitation should be achieved by taking into consideration the ration between the continental shelf and waters allotted to each state and the length of the individual coastlines (Tanaka, 2001). This is probably the most fair of all delimitation principles since it allocates resources based on a comparison of different maritime elements and not merely based on the length of the coastline. However, applied to the dispute between State A and State B, this principle may end up allocating all the contested resources to one party as they all appear to originate in one region (Surya, 1987).
The principle of relevant circumstances
This is by far the most ideal principle for solving the issue of delimitation brought up by the statement of facts. This principle is based on the equitable allocation of resources and an agreement is reached upon after taking into consideration all the relevant circumstances (Alexander, 1986; Miyoshi, 1985). In this particular case, all the
damage being caused as far as depletion of the fishing grounds is concerned as well as the historical sovereignty issues are tabled as part of the relevant circumstances under the classification of socioeconomic issues (Barbara, 1988). Geographical issues like the differences in coast lines are also assessed under relevant issues. These relevant issues are then discussed by the two conflicting states and then a solution is suggested.
Summary
The year 1958 saw the first United Nations Law of the Sea convention (UNLOS 1) which featured only 86 states. By the time the third convention-UNLOS 3 was held many nations had broken free from the yoke of colonialism and were trying to establish their maritime boundaries.165 countries were represented in this meeting. The Laws of the sea that were recorded in 1982 are in use to date and they brought about the notion of delimitation of boundaries.
Summary
In the case described by the statement of facts, various articles within the Law of the Sea can be used to give an effective analysis of the issues at hand and provide a way of solving them.
Article 15 suggests that should two conflicting countries fail to agree on boundary issues, none of them should be allowed to extend its boundary to a point further than the median line. This article also supports the concept of historic sovereignty and this is its weakness.
Articles 46 and 47 deal with archipelagic states and provides measurements that should be used to establish boundaries. The statement of facts however left out some crucial details and the application of the guidance provided by these articles was left to speculation.
Article 51 handles with traditional fishing rights and agreements that already exist (Mendelson, 1985). The argument being fronted by this article would however have given undue advantage to State B which is particularly seen to be more interested in fishing. The major weakness of this article is that it failed to appreciate the changing trends in the way things are done and also failed to factor in the increase in population over the years.
Article 59 proposes the principle of equitability in the sharing of contested resources between states. It may help in addressing the conflict between the two states mentioned in the statement of facts but unfortunately this case had been complicated by the involvement of a third party in the form of an oil drilling company.
Articles 74 and 83 both propose that a temporary accord be reached especially concerning the exclusive economic zone and the continental shelf while a proper solution is being sought.
Articles 116-118 deal with the issue of conservation of living resources. The articles in these range would easily be acceptable as they are more concerned with the issue of environmental conservation; the clarion call of today.
Article 121 proposes that rocky islands that cannot sustain human life or economic activities are not allotted a continental shelf or an exclusive economic zone. This article was very instrumental in the discussion because majority of the islands represented in the statement of facts were rocky outcrops.
Article 142 helps foster the spirit of proper interstate relations by proposing that states engaging in economic activities in areas outside their maritime jurisdiction should seek the opinion of the state in whose zone they intend to encroach on.
The major issue that need resolution amongst these states was the issue of delimitation and aside from the methods mentioned earlier, other principles that could achieve desirable results include the principle of equidistance, the equity and equitability principle, the proportionality principle and the principle of relevant circumstances (Nelson, & Dolliver, 1990; Malcolm, 1991).
Conclusion
For states to co-exist meaningfully, it is imperative that the principles of mutual respect be maintained. Boundaries are established to ensure the sovereignty of particular states and unwarranted encroachment into another state’s territory could result in severe conflict. This essay has used two States A and B to illustrate the application of maritime laws and regulations. Various articles published by the United Nations Law of the Sea convention have served as guidelines for the discussion. It has been revealed that no single article from the Law of the Sea can work on its own to resolve a dispute and that all the various clauses have to be used in tandem if an amicable solution is to be reached at in times maritime crisis.
Other methods of dealing with the issue of delimitation have also been detailed and finally a summary of all the important points that were covered in the essay has been given. It is worth noting that the statement of facts which formed the basis of argument for the paper was slightly sketchy and had omitted some crucial information. However, this might also have been a welcome opportunity as it provided for a chance to make a case for both sides of the argument whenever need arose. In conclusion, it is of paramount importance that states recognize the sovereignty of other states by respecting maritime boundaries and zones. These regions are protected by the law and it is only by impunity that some states choose to ignore them and then end up causing trouble with neighboring nations.
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