Aditya Suresh from the National Law University Jodhpur

I. UNDERSTANDING UTI POSSIDETIS JURIS IN MARITIME DELIMITATION

The uti possidetis juris principle, which literally translates to ‘as you possess under law’, refers to the international law principle whereby the administrative divisions which were present with a State at the time of colonisation, are deemed to constitute the boundaries for the newly independent successor States, thereby theoretically excluding any gaps in sovereignty which might precipitate hostility and encourage foreign intervention.  By applying this principle, the administrative boundaries are transformed into international frontiers recognized and enforced by the law. The discussion on the uti possidetis juris principle emanates from the discussion by a Chamber of the International Court in Burkina Faso v. Republic of Mali, wherein the rule was expounded upon as being a principle of customary international law, and which was unaffected by the right to self- determination of the people residing in the areas in question. The application of this principle has the effect of freezing the territorial title at what the Chamber described as the ‘photograph of the territory’ at the critical date.

However, it has been acknowledged that the uti possidetis juris principle is unable to resolve all territorial or boundary problems and where there is a treaty applicable, then this will dispose of the matter completely. Consequently, the United Nations Convention on the Law of the Sea [hereinafter “UNCLOS”], under Article 15, provides the rule to be generally applied, and provides that in the absence of any agreement to the contrary, States may not extend their territorial seas beyond the median or equidistance line unless there are any historic or other special circumstances that indicate otherwise.The acknowledgement of “historic or other special circumstances” within this provision itself however, meant that the uti possidetis juris principle could not be disregarded altogether.

It in turn, had the effect of becoming a proviso, creating an exception superseding the general rule of equidistance.  The author argues that including uti possidetis juris as a consideration in this regard particularly presents certain issues in application, due to the nature of maritime delimitation in concept and scientific developments of the time.

II. UNDERSTANDING THE ISSUES WITH UTI POSSIDETISJURIS

The natural question that arises out of a conjoint understanding of the uti possidetis juris principle along with the equidistance rule as enshrined under Article 15 UNCLOS, is how maritime delimitation is to be done where the entitlement of one State is based on equidistance, whereas the other’s is based on uti possidetis juris. The ICJ has heavily tilted in favour of first applying the utipossidetis juris principle, failing which the equidistance rule is to be applied. The problem that is inherent to uti possidetis juris, and which led to the eventual non-application of this principle in Nicaragua v. Honduras, pertains to how it is to be proven or denied.

In Nicaragua v. Honduras, the Honduran contention on the basis of uti possidetis juris was rejected, primarily because the colonial maps drawn by the Spanish Crown were either uncorroborated or because they never drew a maritime boundary in the region. Consequently, the primary problem that is clearly identifiable pertains to what evidence can be considered relevant to establish a colonial title. The application of the principle suggests that the relevant land boundary is the factor that has to be considered in determining a maritime title.

However, giving 100% relevance to historical land factors as ascribing adequate proof of maritime jurisdiction seems patently problematic, given that this refuses to take into account tectonic shifts and climate change, which are two significant scientific factors impacting the maritime sphere. The interaction of tectonic plates could be convergent, divergent or transformative, and this has a resultant impact on the ecology and the geographical position. This has the consequent impact of shifting territorial and continental positions on the globe. At this point, ascribing a historic title on the basis of land boundary would result in significant inequities, particularly when factored into how the old maritime jurisdiction could have significant differences with the new maritime jurisdiction, in terms of natural resources such as oil or fish. In fact, the ICJ in Nicaragua v. Honduras, took this into account and suggested that the considerable disposition had to be taken into account. Therein, the uti possidetis juris principle was discarded and the equidistance principle of Article 15, UNCLOS was applied.

Another resultant problem pertains to how acquiescence or persistent objection with a boundary line which has not been identified in maps, is to be ascertained. For instance, two countries could have agreed on a land boundary, without necessarily having apportioned the maritime boundary in the past, given the relative unimportance of maritime resources to States in the past. Accordingly, it would be problematic to use the land agreement as a de facto maritime agreement.

III. THE WAY AHEAD

The author believes that uti possidetis juris presents a sense of false entitlement in terms of maritime delimitation, and in turn, creates legitimate expectations on part of sovereign States which are, due to the very nature of maritime delimitation, either inequitable or impracticable. The author consequently believes that maritime delimitation be done on an entirely latitudinal and longitudinal basis. This means that the dispute would be adjudicated such: States would, at the time of presenting their application to the ICJ, indicate the present boundaries, with a clear indication of latitude and longitude at the time of applying. In adjudicating the dispute, the ICJ would draw an equidistance line in accordance with Article 15, UNCLOS and the rules for equitable division as laid down in the Black Sea case. At the time of drawing such a line, the clear latitudinal and longitudinal position of the line would be indicated. Accordingly, should the tectonic plates shift in any direction, the maritime boundary remains unaffected.

The author contends that the date of application to the ICJ must be taken into account in this regard, since this date is the first indication of a dispute pertaining to the maritime boundary. However, the author admits that there may be other relevant dates that may be taken into account, and the relevant date to determine the latitudinal and longitudinal position could alternatively be determined with reference to the principle of critical date. The critical date in this regard, would be the date when disputes have arisen as regards the delimitation of maritime boundaries. If, however, the contentious critical date is a point wherein no maps with clear latitude and longitude are available, the author believes that the date of application to the ICJ must be considered as a de facto critical date.

IV. CONCLUSION

The uti possidetis juris principle presented an effective method with respect to land boundary delimitation, given how it allowed for the preservation of certain historic entitlements from the time preceding the colonisation of countries. In fact, India retained its current boundary in accordance with uti possidetis juris and the drawing of the Radcliffe line. However, given the scientific, geographical and legal issues as identified, this principle cannot be applied to international maritime delimitation. Consequently, there is a need for a more objective approach to the delimitation of maritime boundaries. This would result in effective denial of claims such as that of China in the South China Sea dispute, and would also be in line with the principles that the UNCLOS seeks to put forward, in terms of providing objective and fair criteria for the delimitation of maritime boundaries. Thus, the author believes that the utipossidetis juris principle is a reflection of the uncontemporaryapplication of international maritime law, and must consequently be abandoned.