The Implications of Recent Decisions on the Territorial and Maritime Boundary Disputes in East and Southeast Asia

EXECUTIVE SUMMARY

This essay examines recent decisions of international courts and tribunals—specifically, the 2009 Maritime Delimitation in the Black Sea case between Romania and Ukraine—and draws implications for the territorial and maritime boundary disputes in East and Southeast Asia.

MAIN FINDINGS

• The judgment of the International Court of Justice (ICJ) in the Black Sea case is a landmark jurisprudential contribution to the development of the law of maritime delimitation. In this case, the ICJ explicitly provided a three-stage delimitation method—which, although not novel, is a clarification and clear articulation not seen in previous cases.
• The peaceful settlement of disputes over territory and over unresolved maritime boundaries is fundamental for the prevention of interstate conflict. Disputed territorial sovereignty and contested maritime boundaries impair maritime security, hamper effective interstate cooperation, compromise sustainable use of scarce natural resources, and hinder the flow of goods and resources. International adjudication offers one important way to resolve long-standing and apparently intractable disputes, especially concerning sovereignty over territory. However, this mode of dispute settlement is only one of the options open to states and is not necessarily ideal, as the vast majority of boundary agreements have resulted from diplomatic negotiations.

POLICY IMPLICATIONS

• States have an obligation under international law to cooperate, negotiate in good faith, and settle their disputes peacefully.
• The claimant states should be willing to submit their territorial and maritime disputes to any of the various dispute resolution mechanisms available under international law.
• The parties must be willing to negotiate on the basis of international law and in particular the provisions of the UN Convention on the Law of the Sea (UNCLOS).
• Maritime delimitation can only proceed after the sovereignty issues are resolved; these disputes must, therefore, be addressed first. However, states can set aside the issue of sovereignty and consider joint development of the resources as an option; or cooperate on other issues such as marine environmental protection, marine scientific research, and counterterrorism, without prejudice to their respective claims.
• The resolution of the disputes should consider the political dynamics and cultural sensitivities of the region and allow a greater role for intraregional mechanisms.