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PICK SENSE

PICK SENSE
February 18
11:47 2019

OUR MARITIME AREAS & THE ICJ

By Assad Shoman –

Let us first deal with Section 3 of the Maritime Areas Act (MAA) of 1992, which declared a general width of 12 nautical miles (NM) for the Territorial Sea, but limited that to three miles from the mouth of the Sarstoon River to Ranguana Caye.

Belize did not abandon its claim to 12 NM in that area, but merely held back from exercising that right so that the area so delimited could be open for negotiation with Guatemala. Recall that at that time Guatemala had agreed that it would not claim the continental land territory or the islands of Belize. How Belize’s maritime areas in the south looks as a result is depicted in Figure 1. The area between the 3-NM limit and the median line is for now Belize’s Exclusive Economic Zone (EEZ), NOT a part of Guatemalan waters.

But that will not be the situation when the case reaches the Court if the referendum so determines. Before 10 May, the MAA will have been amended to claim the full extent of our territorial waters in the south as elsewhere, i.e. up to the median line. This is shown in Figure 2.

Provisions in Article 7 of the MAA relating to possible agreement over the EEZ will also be removed by amendment of the law, and “the equidistance line between Belize and the adjacent State shall constitute the outer limits of the Exclusive Economic Zone”.

The Baseline
A most important and essential consideration is: from what points is the territorial sea measured?

The Belize Constitution at Schedule 1 (c) states that the territorial sea is measured from such baselines as may have been prescribed by law. The normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast, but UNCLOS provides (Art. 7) that where the coastline is deeply indented or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline.

Article 4 (3) of the MAA states that the baseline shall consist of the straight lines formed by joining those points situated on the low-water line on or adjacent to the features listed in the Schedule. The baseline so determined is shown in both Figures 1 and 2. All that large body of sea inside of the baseline constitutes our internal waters. A State exercises sovereignty in its internal waters as if it were part of its land territory.

Territorial Sea and EEZ
Now, given that in our southern waters neither Belize nor Guatemala nor Honduras can sustain claims for 12 miles of territorial sea without clashing with the similar claims from others, we claim up to the median line.

Article 15 of UNCLOS provides that the median line principle does not apply “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

One special circumstance in the case of Guatemala is that if the median line principle were to be applied, the territorial seas of Belize and of Honduras would cut off Guatemala from access to the High Seas, and so the Court must provide a solution to that.

There are no hard and fast rules that can be used to predict exactly how a tribunal will apply the law in a particular case. That is because the physical and other circumstances that need to be taken account of by the court are unique to each case.

Nonetheless, the court has developed some general rules that it will apply in such cases. In Romania v Ukraine (ICJ 2009), the Court declared itself bound by the three-step approach laid down by maritime delimitation law, which consists

Firstly, of establishing a provisional equidistant line;
Secondly, of considering factors which might call for an adjustment of that line and adjusting it accordingly (here, the fact of Guatemala being cut off would lead the Court to go northward above the median line); and

Thirdly, of confirming that the line thus adjusted would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas. (Here, the fact that Belize has a longer coast line than Guatemala will benefit Belize.)

“Litigation Risk” does not apply

When the Court gets to the point of delimiting the maritime areas, it will already have decided that all the land and insular territory claimed by Belize in accordance with the 1859 Treaty and with customary international law remains intact, and the process of determining the maritime boundaries will start from that premise.

In other words, there are no maritime areas we can “lose” by going to the ICJ, because there is no fixed delimitation of our maritime boundaries. It will be as if there were no claim and two neighbouring countries apply to the Court to determine the maritime boundaries strictly according to the jurisprudence of the Court noted above.

Our MAA proclaims a 12 mile territorial sea, and Guatemala’s similar law proclaims a territorial sea of 12 miles, but neither of us can end up with that, because international law requires adjustments to arrive at an equitable solution within the law.

Imagine that there is no Guatemalan claim to our territory. We would still have to first try to agree on our maritime boundaries with Guatemala, and if we failed to arrive at an agreement we would go to the ICJ or the Law of the Sea Tribunal, and the exact same solution would be arrived at as will be the case if we go to the ICJ now, because when the Court comes to the maritime areas it will already have determined the land boundaries of Belize as presently exist, and there will no longer be a living claim from Guatemala.

There are no maritime areas we can lose by going to the ICJ.

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