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

2020 ◽  
Vol 57 ◽  
pp. 156-222
Author(s):  
YUNUS EMRE ACIKGONUL ◽  
EDWARD R. LUCAS
Keyword(s):  
Case Law ◽  
The United States ◽  
Detailed Examination ◽  
International Courts ◽  
Applicable Law ◽  
Maritime Boundary ◽  
State Practice ◽  
Recent Developments ◽  
Maritime Boundary Delimitation

AbstractThe 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.

The Problem of Delimitation of Bangladesh’s Maritime Boundaries with India and Myanmar: Prospects for a Solution

2010 ◽  
Vol 25 (3) ◽  
pp. 405-423 ◽  
Author(s):  
M. Shah Alam ◽  
Abdullah Al Faruque
Keyword(s):  
Natural Resources ◽  
Mineral Resources ◽  
Third Party ◽  
Law Of The Sea ◽  
Coastal Zones ◽  
International Courts ◽  
Fish Stocks ◽  
Maritime Boundary ◽  
State Practice ◽  
Maritime Boundary Delimitation

AbstractThe sea areas of Bangladesh are reportedly rich in straddling fish stocks and mineral resources, including hydrocarbons. But a long-standing dispute over maritime boundary delimitation with India and Myanmar remains a major stumbling block in exploration of these resources. The overlapping claims of these three countries over the maritime zones in the Bay of Bengal need to be settled for peaceful exploration of natural resources. While India and Myanmar want to delimit the maritime boundary on the basis of the equidistance principle, Bangladesh demands that delimitation should be based on the equitable method. The special geographical circumstances of the coastal zones of these countries warrant that any delimitation, whether agreed or determined by a third party, must result in an equitable solution. The decisions of the international courts and tribunals, state practice, and the Law of the Sea Convention clearly demonstrate that there has been a shift from the equidistance principle to the equitable principle of delimitation and strongly indicate that the equitable principle is the preferred method of delimitation.

Does Undisputed Title to a Maritime Zone Always Exclude its Delimitation: The Grey Area Issue

1998 ◽  
Vol 13 (2) ◽  
pp. 143-192 ◽  
Author(s):  
Alex G. Oude Elferink
Keyword(s):  
Case Law ◽  
The Other ◽  
Outer Limit ◽  
Grey Area ◽  
Maritime Boundary ◽  
State Practice ◽  
Political Compromise ◽  
Bilateral Treaties

AbstractA grey area is an area lying within 200 miles from the coast of one state, but beyond a maritime boundary with another state. One state is excluded from exercising jurisdiction in this area because it lies beyond the maritime boundary, and the other state is excluded from exercising 200-mile-zone jurisdiction because the grey area on its side of the boundary lies beyond 200 miles from its coast. The possibility of creating a grey area stems from the fact that there is a discrepancy between entitlement to the EEZ and the principles applicable to its delimitation. Entitlement to this zone is solely based on distance from the coast, but its delimitation between states can be effected on the basis of principles other than distance from the coast. This results in a line which reaches the outer limit of the EEZ at a point which is non-equidistant from the coasts of the states concerned. If such a line is applied to limit the maritime zones of both states involved, a grey area is created. Apart from an EEZ delimitation, a grey area can also result from a territorial sea delimitation. A number of bilateral treaties have established a grey area. This raises the question whether such delimitations are only the result of practical considerations or a political compromise, or whether it is also possible to create a grey area in the legal determination of a boundary. This article seeks to answer this question looking at state practice and the case law.

scholarly journals Delimitation of Maritime Boundaries: Continental Shelf and Exclusive Economic Zone, in Light of the Gulf of Maine Case, Canada v. U.S.A. (1984)

2019 ◽  
Vol 16 (2) ◽  
pp. 363-386 ◽  
Author(s):  
Donat Pharand
Keyword(s):  
International Law ◽  
Gulf Of Maine ◽  
The United States ◽  
Third Party ◽  
Applicable Law ◽  
International Court ◽  
Maritime Boundary ◽  
The Difference ◽  
The One ◽  
Maritime Boundary Delimitation

The international law applicable to maritime boundary delimitation is very imprecise and, consequently, decisions of international tribunals are of the utmost importance. The recent decision of a Chamber of the International Court of Justice in the Gulf of Maine Case, between Canada and the United States, makes a significant contribution to the development and clarification of the applicable law. The Chamber's judgment, which is considered as one rendered by the Court itself, clarifies the difference between principles and rules of international law, on the one hand, and equitable criteria and practical methods, on the other. Principles of law are limited to a few basic norms, such as the obligation to seek an agreement and, if one cannot be reached, to have recourse to third party procedure with a view to arriving at an equitable delimitation by taking all relevant circumstances into account. Equitable criteria, such as the geographical configuration of the area, and practical methods, such as that of equidistance, are numerous and vary with each concrete situation.

Reflections on Arctic Maritime Delimitations: A Comparative Analysis between the Case Law and State Practice

2011 ◽  
Vol 80 (4) ◽  
pp. 459-484
Author(s):  
Yoshifumi Tanaka
Keyword(s):  
Comparative Analysis ◽  
Arctic Ocean ◽  
Case Law ◽  
The Arctic ◽  
Coastal State ◽  
Ocean Governance ◽  
State Practice ◽  
The Arctic Ocean

AbstractThe determination of spatial ambit of the coastal State jurisdiction is fundamental for ocean governance and the same applies to the Arctic Ocean. In this regard, a question arises how it is possible to delimit marine spaces where the jurisdiction of two or more coastal States overlaps. Without rules on maritime delimitation in marine spaces where the jurisdiction of coastal States overlaps, the legal uses of these spaces cannot be enjoyed effectively. In this sense, maritime delimitation is of paramount importance in the Arctic Ocean governance. Thus, this study will examine Arctic maritime delimitations by comparing them to the case law concerning maritime delimitation. In so doing, this study seeks to clarify features of Arctic maritime delimitations.

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

Thoughts on Domestic Adjudication and the Identification and Formation of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 131-149
Author(s):  
Cameron Miles
Keyword(s):  
International Law ◽  
International Courts ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Model Based ◽  
Domestic Courts ◽  
State Practice ◽  
The Icj ◽  
International Adjudication

Article 38(1)(d) of the ICJ Statute provides that “judicial decisions” may serve as a subsidiary means for the determination of customary international law. The absence of a qualifying adjective to the term “judicial decisions” confirms that, at least ex facie, there is no priority to be given to international over domestic judgments in this respect. And yet – as the International Law Commission’s Draft Conclusions on Formation and Identification of Customary International Law confirms – the reality of international adjudication is one in which domestic judicial decisions are often side-lined. In this paper, I question the ILC’s assertion that this is due to the relative expertise of international versus domestic courts, and instead posit a model based on the shifting architectonics of international adjudication. Two related developments are key: (1) the florescence of international adjudicative bodies in the post-1945 era, and (2) the tendency for international courts and tribunals to see domestic judicial decisions as evidence of state practice and opinio juris under Article 38(1)(b), rather than as subsidiary means for the determination of custom – that is, as factual rather than legal precedents.

Case Law in Russian Approaches to International Law

2018 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
International Law ◽  
Case Law ◽  
Main Method ◽  
International Courts ◽  
Russian State ◽  
State Practice ◽  
Structural Differences ◽  
History Of ◽  
History Of International Law ◽  
Distinct Approach

In her comparative study on the use of case law in international law textbooks, Anthea Roberts demonstrates a number of structural differences between textbooks in different countries. This chapter further explores the Russian situation and asks whether Roberts’s comparative findings regarding Russian international law textbooks reflect the dominant approach in Russian international law scholarship, and whether they also reflect a distinct approach in Russian state practice. It then discusses what might explain both Russian scholarly and governmental approaches and, finally, what international lawyers can learn from this practice in the context of comparative international law. Cautiousness about case law and international courts has historically been characteristic of the Russian approach to international law. The main method used in this chapter is a historical one, because only the history of international law and its ideas can teach us how concrete legal-political circumstances in a country have come into being.

Equity before International Courts and Tribunals

2021 ◽  
pp. 29-66
Author(s):  
Catharine Titi
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Courts ◽  
Maritime Boundary ◽  
Maritime Boundary Delimitation ◽  
Over Time

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.

Religion, Terrorism and Speech in a ‘Post-Charlie Hebdo’ World

2015 ◽  
Vol 10 (3) ◽  
pp. 207-228 ◽  
Author(s):  
Agnes Callamard
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
The United States ◽  
Public Order ◽  
Policy Responses ◽  
Violent Extremism ◽  
Frame Work ◽  
Judicial Reasoning ◽  
Charlie Hebdo

This article reviews the policy responses and the freedom of expression case law following the Charlie Hebdo attack. It unpacks the ‘Countering Violent Extremism’ frame-work from a freedom of expression standpoint and analyses court decisions related to glorification of terrorism and incitement to hatred with a particular focus on France and the United States as well as Russia, and Scandinavia. It shows the determination of governments to tackle the non-violent “ideological” bases of “terrorism”, and to treat religion as largely a public order issue. It concludes that in a post-Charlie Hebdo world, courts also have taken short cuts, instrumentalising not only speech to perceived higher needs, but judicial reasoning and practices as well.

Reflections on the Concept of Proportionality in the Law of Maritime Delimitation

2001 ◽  
Vol 16 (3) ◽  
pp. 433-463 ◽  
Author(s):  
Tanaka Yoshifumi
Keyword(s):  
Case Law ◽  
International Courts ◽  
State Practice ◽  
The Law

AbstractThe concept of proportionality is one of the important relevant circumstances in maritime delimitation. In the case law relating to maritime delimitations, the role of proportionality has been enlarged geographically as well as functionally by international courts and tribunals. However, such an enlarged role of proportionality is not free from problems. Thus, this paper purports to examine the concept of proportionality in maritime delimitation from a critical viewpoint by analysing relevant judgments and state practice.

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