Due regard to the interests of coastal communities in maritime delimitation cases: towards participation, persuasion and equity
by Carlos A. Cruz Carrillo
Published on 6 October 2023
First and foremost, I would like to thank the Editors for the kind invitation to participate in this symposium commenting the innovative and insightful article by Dr. Yusra Suedi. The proposals formulated by Dr. Suedi attempt to bring the voices of those directly affected by a territorial and maritime delimitation dispute into play. The task is not easy given the international jurisprudence showing certain reticence to consider human components in territorial and maritime delimitation disputes. Nevertheless, one could argue that international law is evolving to accommodate and balance the voices of states and various non-state actors in traditionally state-centred issues, such as maritime delimitation disputes.
My post reflects on the role of the human factor in maritime delimitation disputes by examining the role of coastal communities as a potentially relevant circumstance which may justify the adjustment of a delimitation line. First, it briefly elaborates on the maritime delimitation method and the role of equity; and second, it examines the relevance of public participation before and during the preparation of a maritime delimitation case.
Maritime delimitation in a nutshell
Maritime delimitation consists of resolving the overlapping claims of two or more states by drawing a line of separation of the maritime areas concerned. (ICJ, Black Sea, Romania v. Ukraine). States can do so either by agreement or through adjudication. The international law of the sea (e.g. Article 74 and 83 of UNCLOS) establishes that the delimitation should be effected on the basis of international law to reach an equitable solution. Regarding the methodology to draw a delimitation line, the international jurisprudence tends to support the sometimes called ‘tried and true’ three stages process or equidistance/relevant circumstances method, which entails: first, drawing a provisional equidistance line; second, assess whether the existence of geographical and non-geographical relevant circumstances calls for the adjustment of the equidistance line; and third, run a proportionality test to ensure an equitable result (ICJ, Maritime Delimitation in the Indian Ocean, Somalia v. Kenya, paras. 122-125).
The course of a maritime delimitation process may impact the socio-economic and cultural interests that coastal communities (including local communities and Indigenous People) may have over the disputed maritime area. Such interests may entail artisanal fishing, aquaculture activities, navigation, or cultural identity links. The question then arises as to whether the interests of coastal communities can and should influence a maritime delimitation process. As discussed by Suedia, it is in the second stage of a maritime delimitation where human considerations may lead to the adjustment of the line. She underscores that the equitable consideration of local populations is the mere application of equity in conformity with the law (Suedi, p. 46). It will be then to the relevant court or tribunal to consider the interests of coastal communities as a relevant circumstance by applying equity infra legem. Yet, the threshold to adjust a line in those circumstances requires that the proposed delimitation line will ‘entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned’ (ICJ, Gulf of Maine, Canada/United States, para. 237). Only in few cases have fishing activities justified modifying an equidistance line (e.g. PCA, Grisbadarna, Norway v. Sweden; ICJ, Jan Mayen, Denmark v. Norway, para. 76) while in many others states attempted to argue the same without success. As Lando suggests, the restrictive approach adopted by international tribunals on this regard may have been determined by the difficulty to formulate a possibly objective standard on the basis of which provisional equidistance lines could be adjusted in order to ensure natural resources (Lando, 2019, p. 201). Ultimately, it is upon states to bring up to the attention of courts and tribunals the concerns of coastal communities (Suedi, p. 50).
Public participation and prior consultation: from an obligation to a mutual benefit
Coastal communities may have an active role in a maritime delimitation case influencing the equitable result. In this respect, two questions arise: (1) whether states are obliged to consult affected coastal populations before and during a maritime delimitation process; and (2) whether their inclusion in the process may influence the decision of a tribunal.
As to the first point, states have the obligation to guarantee human rights to individuals within their jurisdiction. Among others, these rights comprise those generated by the nexus between the ocean and coastal communities, such as the right to life, health, property (and its special dimension for local communities and indigenous people), access rights in environmental matters or—almost globally—the right to a healthy environment. Any decision adopted by a state which could affect these rights requires at least prior consultation and public participation. In some jurisdictions, access rights on environmental matters (Aarhus Convention, Escazú Agreement) bind states to guarantee access to information, public participation and access to justice in environmental matters. Access rights may prove to increase accountability to ensure that the voices of coastal communities actively participate in ocean affairs, including the preparation of a maritime delimitation case. In fact, a state failing to guarantee these rights could face a judicial or quasi-judicial process (e.g., Implementation Committees of the Aarhus Convention and Escazù Agreement). On the contrary, a state’s sovereign and territorial rights, and its human rights responsibilities can support each other, while buttressing the important essential interests of individuals in a disputed area (Tignino-Kohen, 2013, p. 120; Dupuy, 2006, pp. 714-715).
As to the second point, the existence of catastrophic repercussions on the economic livelihood and well-being of coastal communities may lead to the adjustment of a provisional equidistance line. Yet the consideration of coastal communities in interstate maritime disputes, including maritime delimitation, is scarce. Nevertheless, engaging with affected coastal communities during the preparation of the case may strengthen the position of a state in this respect.
One could stress the role of the Indigenous People Raizales in shaping some Colombian arguments during the Colombia-Nicaragua maritime saga before the ICJ. During the case Territorial and Maritime Delimitation in 2001, the Raizales sought to intervene as a third interested party, without success. In Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, Colombia attempted a counter-claim arguing inter alia that Nicaragua infringed the artisanal fishing rights of the Raizales. To support its case, Colombia included in the proceedings the so-called ‘Raizal team’ and presented eleven affidavits (Counter-Memorial of Colombia, 2016, p. 55 ff.) to prove the existence of a long-standing practice of artisanal fishing by the inhabitants of the San Andrés Archipelago. Nonetheless, the Court considered that the affidavits fell short of proving the existence of a local customary practice relating to artisanal fishing by the Raizales (ICJ Judgment, 2022, paras. 219-224). Yet the Court noted two aspects: the importance of the Parties negotiating a bilateral agreement on the access to fisheries; and the freedom of navigation that the Raizales could exercise within the Nicaraguan exclusive economic zone (ICJ Judgment, 2022, paras. 232-233). Following the latest decision of the saga (ICJ Judgment, 2023), Colombia expressed its intention to negotiate with Nicaragua access to fisheries for the Raizales. Overall, the experience with the Raizales denotes some venues in which a state can bring to the front of a maritime dispute the interests of coastal communities.
Notably, the outcome of the participation of coastal communities in the preparation of a case may lead to the inclusion of testimonies of representatives of coastal communities as affidavits in the written and oral proceedings (e.g. the written and oral statements of Madame Liseby Elisè in the 2019 Chagos Advisory Opinion). Moreover, the state can complement its argument with experts to elaborate on the social, economic and cultural repercussions of a potential maritime delimitation line on coastal communities. Doing so may persuade the judges about the existence of a relevant circumstance that requires the adjustment of the median line to achieve an equitable result. In the end, the state may ensure its maritime claims and coastal communities can rest assured that their rights related to the ocean be adequately protected.
Conclusion
The case law of territorial disputes underscore the need of states to have due regard to the interests of local populations (ICJ, Frontier Dispute, Burkina Faso/Niger, 2013, para. 112; Eritrea/Ethiopia Boundary Commission, 2002, para. 7.3). In maritime delimitation cases, this level of regard is narrowed to the second stage of the delimitation process. If well-argued by a state, affectations to coastal communities may constitute a non-geographical circumstance justifying the adjustment on an equidistance line. This will depend on the level of interaction that a state has with coastal communities to understand and channel their interests through the arguments of the state. Such proactivity from the state will not ensure the success of a claim but may increase the chances for a court to consider human aspects in a maritime delimitation case. Ultimately, the judicial function comes into play in consonance with the application of equity infra legem. As stated by Judge Lachs, ‘equity enriches international law and in many domains of life, makes it respond effectively to the needs of the international community in the interest of peaceful cooperation’ (Lachs, 2009, p. 329).