Boundary Disputes Research Articles

Recepcija rimskog prava na glagoljici

Zapisnik Petra Lazarića, domaćega bilježnika i kanonika potječe iz 1621. iz Mošćenica. U njemu je na glagoljičkom pismu dokumentirano rješavanje privatnoga diobenog spora među sumještanima u arbitraži. Premda pisana glagoljicom i na hrvatskom jeziku, ta isprava obuhvaća pohrvaćeno latinsko (i manje talijansko) pravnotehničko nazivlje te bilježi niz načela, koncepata i instituta koji su u izvansudskom postupku rješavanja spora dosljedno i pravilno primijenjeni po uzoru na rimsko pravo. Svi bitni pravni elementi ovoga diplomatičkog izvora odražavaju snažne odjeke tradicije rimskoga prava i ius commune. Autor u dva rada analizira sve relevantne institute primijenjene u arbitraži i postupovne i materijalnopravne, povezujući ih s rimskim i kanonskim pravnim uzorima. Ovaj izvor povezuje i s druga dva pravna svjedočanstva, koja su nastala u Mošćenicama u prvoj polovici 17. stoljeća, a koji također odražavaju snažne utjecaje rimske pravne tradicije: Mošćenički statut iz 1637. i lovransko-mošćeničko razgraničenje iz 1646.

Legal Status of MoU Determining The Limits of The Territory Area Between Indonesia and Malaysia

The border region is the front territory of the country jurisdiction and posses an important role in the matter of enforcement of national law sovereignty. Sebatik Island owned by two countries, Indonesia and Malaysia. Demarcation of territorial boundaries in Sebatik Island refers to Memorandum of Understanding between the Government of Malaysia and the Government of the Republic of Indonesia regarding Surveys and Demarcation of the Border Line of 1973 which is followed up with the results of a joint Surveys and Demarcation on the island of Borneo poured in the form of an advanced Memorandum of Understanding containing each boundary point which has been agreed upon.From 1973 to 2017 there are 9 (nine) points of Outstanding Boundary Problem (OBP) on Sebatik Island that have not been agreed by both countries. The boundary disputes have led to unclear legal status of Sebatik Island's land border territory within the framework of international treaty law and also led to the uncertainty of the status of the MoU as the legal basis for the determination of state borders between Indonesia and Malaysia on Sebatik Island.This law research questioning two issue. First, what factors make the border region not yet regulated by international agreements on borders. Second, how the legal status of the 1973 Memorandum of Understanding in stipulate the point of demarcation between Indonesia and Malaysia in the perspective of international treaty law. Based on the research, the factor that caused the border area not yet been regulated by a definitive border agreement is the disparity of reference between Indonesia and Malaysia to determining the land boundary in Sebatik Island. Indonesia uses the provisions of 4o 10 'LU degree while Malaysia uses existing pillar references. This dispute involve the overlap of the Sebatik Island border area from both countries. Thus, the legal status of the 1973 Memorandum of Understanding has not been binding as law either in national law or as an agreement in international law.

South Korea Boundary Disputes in the East China Sea and the Yellow Sea

Abstract South Korea faces a complex situation of overlapping claims in the East China Sea and the Yellow Sea, in addition to those in the East Sea (or Sea of Japan). The boundary disputes in the East China Sea and the Yellow Sea raise two distinctive challenges. The first concerns the joint development agreement signed with Japan almost four decades ago. This agreement is at a stalemate and its initial term of fifty years is fast approaching. There are also reports that the dormancy of the agreement might be partly attributed to an alleged material breach by Japan. Therefore, South Korea should consider the available alternatives, particularly if Japan does not intend to renew the joint development agreement, but instead proceed with its termination. The second challenge concerns the inter-Korean relations and the legal relevance of the Northern Limit Line as a maritime boundary. Although there is no foreseeable timeline for North and South Korea to address the matter, mainly as there are no on-going negotiations, this will ultimately be a key aspect of a future settlement. This article examines these two challenges and attempts to put forward some tentative conclusions regarding the available options for South Korea in both situations.

The Nigeria–Sao Tome and Principe Joint Development—a model for a successful joint development agreement

Abstract This work analyses the concrete application of Articles 74 and 83 of UNCLOS, 1982 which enjoins states to find a resolution to their maritime boundary disputes. It uses the Nigeria–Sao Tome and Principe model of joint development agreement to achieve this by critiquing the important provisions of the agreement. It demonstrates that amicable maritime disputes resolution for resources ownership and control can be achieved by negotiations and agreements. This is authoritative third-party authorities like the ICJ and international arbitral institutions. And pending a more permanent delimitation and resolution, cooperative resources development would emerge and possibly thrive.

Waves of contention: framing the complexity of unresolved EU maritime boundary disputes

ABSTRACT European Union (EU) responses to maritime boundary disputes reveal certain paradoxes of governance. The increasing interest of EU states in controlling larger maritime areas and the public and private exploitation of marine and seabed resources are enhancing the territorialization of the sea. The EU as a political project claims to transcend state-vested interests, promoting peaceful dispute resolution when it comes to maritime boundary disputes. This article highlights common drivers of maritime boundary disputes involving member states and the role played by the EU in solving them (or not). The purpose is to provide an investigative introduction that can aid further analyses by showing that EU membership is not in itself sufficient to address historical antagonisms, geographical realities and national/economic interests when it comes to the maritime space. However, the EU does have a positive role to play as a facilitator of diplomatic negotiation, potentially holding both stick and carrot. The current Blue Growth agenda naturally calls for the settlement of disputes and the peaceful use of the oceans, but it can also play a role in feeding them via the incentivization of actors involved in profit-generating activities at sea.

State Sovereignty Claims for the Dealing with Sea Boundary Disputes

State Sovereignty Claims for the Dealing with Sea Boundary Disputes

Penyelesaian Sengketa Batas Wilayah Melalui Pengujian Undang-Undang di Mahkamah Konstitusi

This research discusses the interpretation of the Constitutional Court in reviewing laws regarding the formation of regions whose decisions grant the petitioner’s petition which have implications for changes in territorial boundaries, namely the Constitutional Court Decision No. 127 / PUU-VII / 2009. There are two problems examined in this research, namely (1) How is the interpretation of the Constitutional Court in resolving territorial boundary disputes through testing the laws in review of the 1945 Constitution; (2) How the design of territorial boundary dispute resolution constitutionally. The research method used is normative juridical research using a conceptual approach. In addition, it is reviewed with case studies related to the material being studied. The results of this study are (1) Based on the review of the Constitutional Court decision no. 127 / PUU-VII / 2009 which granted the request for judicial review of Law No. 56 of 2008 concerning the Establishment of Tambrauw Regency, the Constitutional Court stated that the legislators had ignored the aspirations of the people of Tambrauw Regency who had divided its territory from 10 (ten) districts into 5 (five) districts. This decision implied that 5 districts were re-entered into Law no. 56 of 2008 added 1 (one) district namely Fef District so that Tambrauw Regency has 11 (eleven) districts. Second, the design for the settlement of territorial boundaries is regulated in Permendagri Number 141 of 2017 and Law Number 23 of 2014, namely through Administrative (nonlegal) settlement by the Governor and the Minister of Home Affairs. In addition, legal dispute resolution is carried out through the Minister of Home Affairs’ judicial review rights at the Supreme Court and the Constitutional Court through judicial review of regional formation laws.

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

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.

Land reclamation or Silk Road understanding Beijing’s initiatives in the South China Sea

Purpose Southeast Asia’s position between the continents of Asia and Oceania gave the region a distinctive identity. Over the years, Southeast Asia has witnessed several important political changes and the emergence of new security threats. Historical mistrust, enduring territorial disputes and competition for maritime claims and resources have combined to weaken the regional security structure. The purpose of this paper is to explore whether China’s growing assertive position in the region bring some fresh air in the region following Beijing’s collaborative initiatives. Design/methodology/approach Seas are a central concern for Southeast Asian countries, so it is hardly surprising that the countries in the region are strongly nationalistic in asserting and protecting their claims. Maritime policy analyst, Mark Valencia, comments, “Indeed, when countries in Asia think maritime, they think first and foremost about boundary disputes, not the protection of the deteriorating marine environment or management of dwindling fisheries […] [it] is these perceptions that must change.” This paper will explore whether China’s growing assertive position in the name of diplomatic cooperation will mellow down and bring some fresh air into the South China Sea (SCS) region following Beijing’s One Belt One Road (OBOR) initiatives. Findings The world is still unsure when it comes to SCS! It often feels like “Pengci” or the art of staging drama to get the desired outcome? Beijing has to address the increasing global fears and uncertainty about her motives and talk more about its dracoplomacy. At one point, Beijing followed Xiaoping’s famous guideline: “hide our capacities and bide our time.” But now, things have changed. China is no longer actively avoiding international limelight. The motto has become “going international.” This change was not all talk either rather it was accompanied by significant, short-term action. Since becoming president, Xi has already visited more than 40 countries with his OBOR dream! It is important for Beijing to emphasize the purpose of her massive infrastructure push. That is, to achieve economic development, rather than to satisfy her growing political ambitions on the global stage. The creation of the Asian Infrastructure Investment Bank and other major geo-economic projects are signs that Beijing is using her coercive diplomacy in a subtler way. Therefore, this paper checks whether Beijing’s Silk Road spirit will be successful enough to maintain its agility and grace in the future. Originality/value This is an original piece of work, and it adds value to the special issue titled “China’s Rise and Power Shifts in Asia: Geopolitical, Socio-Economic and Historical Perspectives.”

Political Territorial Boundary Dispute (Kupang City and Kupang Regency)

This study is to analyze the impact of Political Border Disputes in the City of Kupang and Kupang Regency. Regional boundary disputes that occurred in the Nasipanaf region began since the enactment of Law Number 5 of 1996 Establishment of the Kupang Second Level Regional Municipality. on April 25, but the territorial borders were not taken seriously by the Government. The physical boundary between Kupang City and Kupang Regency on the ground is that there are still unclear boundary points, especially in the Nasipanaf region between Kelurahan Penfui and Desa Baumata Barat which have not been agreed between the two parties. The method used in this research is a qualitative descriptive method based on case studies as the sample in this study there are people from both the research locus and the government as the authorized party for decision making. The findings obtained in this study indicate that there has been a clash between residents resulting in conflict over the past few years. In addition, administrative issues also become a problem for people who are in the border area and infrastructure development also influence in the dispute over this area.

Compulsory Conciliation of the Long-Running Timor Sea Boundary Dispute between Timor-Leste and Australia

In April 2016, Timor-Leste initiated compulsory conciliation proceedings against Australia under the UN Convention on the Law of the Sea (UNCLOS). This is the first time a Conciliation Commission has been constituted for the purpose of aiding the settlement of a maritime boundary dispute under UNCLOS. This brief comment considers possible arguments about the competence of the Commission and the admissibility of the Timor-Leste's claim.

Harnessing Kenya’s Blue Economy: prospects and challenges

ABSTRACT Kenya enjoys a marine coastline of about 640 km giving a total area of territorial waters of 9700 km2 while the EEZ is 142,400 km2. She further lays claim to an extended EEZ of approximately 103,320 km2 and has 13,600 km2 of inland waters. The government recognizes the potential of this maritime resource to boost the country’s economic outlook and has made Blue Economy (BE) part of the economic pillar in its development blueprint. For effective development of the BE, Kenya needs, among other things, to: build human resource capacity through investing in marine education and training; boost marine scientific research; support the traditional industries of fisheries, aquaculture, tourism, blue biotechnology, ports and shipping; develop BE database; resolve outstanding boundary disputes; and reduce illegal unreported and unregulated fishing. The study posits that Kenya already has sector-wise experiences and assets as demonstrated by the numerous government institutions participating in the BE and is only lacking policy integration, coordination and coherence.

Joint management of shared resources as an alternative approach for addressing maritime boundary disputes: the Kenya-Somalia maritime boundary dispute

ABSTRACT Socio-economic security has motivated African states to explore natural resources in areas of overlapping maritime claims. However, Africa’s maritime boundaries are characterized by unresolved disputes. Resolution of these disputes is time-consuming, expensive and can undermine the state’s ability to exploit natural resources. The Somalia and Kenya maritime dispute under litigation with the International Court of Justice demonstrates the continental commitment to peaceful resolution. Citing cases from across Africa, we discuss outright delimitation or Joint Management Zones (JMZs) as means to address disputes over shared resources, particularly transboundary fisheries, which have received little attention. Reframing the Kenya-Somalia maritime dispute resolution process as cooperation over fisheries management will have spill-over effects into greater diplomatic relations. Fish do not abide by maritime boundaries. As such, we posit that the peaceful resolution of maritime boundary disputes lies in Africa’s ability to consider settlements by way of JMZs to motivate sustainable use of natural resources.

The Timor Sea Conciliation: The Unique Mechanism of Dispute Settlement

Abstract The maritime boundary dispute between Timor-Leste and Australia was submitted to the compulsory conciliation procedure under the United Nations Convention on the Law of the Sea (UNCLOS). This is the first instance of conciliation, whether voluntary or compulsory, under UNCLOS. The Timor Sea conciliation led to the successful settlement of the long-standing deadlock between the parties that had hitherto not been settled by negotiation and had no possibility of being settled by litigation (within, for example, International Tribunal for the Law of the Sea or International Court of Justice proceedings) or arbitration (within the context of an UNCLOS Annex VII tribunal). This article aims to elucidate the unique mechanism of conciliation and, to this end, analyses both the procedural particularities of conciliation under UNCLOS and the substantive considerations in conciliation proceedings. The author places emphasis, in particular, on the fundamental importance of the economic factor in the Timor Sea maritime delimitation – namely, the sharing ratio of the natural resources in the Greater Sunrise gas fields. Being a definitive factor for the success of this conciliation, it was the economics of this dispute that incentivized the parties to compromise and settle. Furthermore, given that conciliation is a most elucidating piece in the rather complicated puzzle that is the UNCLOS dispute settlement mechanism, the Timor Sea conciliation offers valuable insights into this mechanism.

The emotional geopolitics of contested peace: the austerity crisis and the Danish minority of South Schleswig

ABSTRACT In 1920, the Treaty of Versailles attempted an innovative solution to the Danish–German boundary dispute, known as the ‘Schleswig-Holstein question’. Two plebiscites asked the populations which state they wished to be governed by, and although the conflict was far from resolved by these votes, the subsequent century has witnessed the stuttering but gradual progression from war to a ‘negative’ and subsequently a ‘positive peace’. However, austerity measures implemented by the German state in 2010 cut budgetary support for Danish minority schooling, threatening to undo decades of progress. This paper uses an ethnographic approach to the 2010 årsmøde, an important annual Danish cultural festival in German South Schleswig, which coincided with the announcement of the budget cuts. Drawing on work in geographies of peace and emotional geopolitics, it interrogates community singing at public meetings as a way to broaden narratives of responses to the budget cuts from just ‘elite’ political accounts, and to highlight the significance of everyday and emotional aspects of nationalism that serve to unsettle notions of ‘successful’ peace-making. Whilst acknowledging the achievements of peace-making in Schleswig-Holstein, it is argued that peace is not an end point, but rather a continual process subject to contestation.

Good agreements make good neighbours: Settlements on maritime boundary disputes in South East Asia

Control over marine areas is instrumental for a country's economy, resources, and security. This vested interest of States in surrounding oceans leads to maritime boundary disputes, which are common in South East Asia. Maritime boundary disputes can be resolved through many methods, and it is often difficult for individual States to determine which option to pursue. Indonesia, as the largest archipelagic State in the world, has an extensive history dealing with maritime boundary disputes. This article examines landmark cases with which Indonesia was involved to examine the effectivity of various dispute settlement methods, both casuistically and from a broader policy perspective. Firstly, a theoretical study is presented of the different forms of dispute resolution available for maritime boundary issues, including their advantages and disadvantages. Then, specific cases are discussed: The South China Sea dispute, the development of the archipelagic principle in UNCLOS, and several experiences of disputes concerning Indonesia's maritime perimeter. Ultimately, the authors recommend exhausting all possibilities for negotiated settlements before considering other avenues such to arbitration, litigation, avoidance, and temporary alternatives. Negotiated settlements offer both short-term advantages (increased utility for both parties, mutual acceptability, flexibility, amicableness) as well as long-term gains (higher implementability, positive precedents for future ventures). Some weaknesses were also determined, namely time-intensiveness and the necessity to grant concessions. In general, States are encouraged to pursue negotiated settlements based on mutual interests, as these tend to endure. Specifically, Indonesia and geographically similar States should continue pursuing diplomatic solutions for unresolved segments, reinforcing its existing rights, and preventing misinformation spread to the public.

Professional Liability and Forensic Science in the Context of the Lex Aquilia

ABSTRACTThis article examines the emergence of professional liability and forensic science in the context of the Lex Aquilia. The interpretations of jurists, found in the sections of the Digest discussing the Lex Aquilia, subjected professionals to a higher standard of responsibility and liability, both in the context of locatio-conductio contracts and outside of it. At the same time, the Roman legal system increased its reliance on professionals for determining factual issues in legal disputes. The examples of public physicians, who were dispatched to examine suspicious acts of violence; midwives, who were appointed by the court to determine contested paternity or maternity; and land-surveyors, who presided over boundary disputes, are amongst the most common. This article examines the inter-relation between legislation originating in the Lex Aquilia and the emergence of professional liability on the one hand, and the evolution of forensic science on the other hand.

Peace-building or structural violence? Deconstructing the aftermath of Nigeria/Cameroon boundary demarcation

ABSTRACT There is a great conviction that the International Court of Justice’s ruling in 2002 on the Bakassi boundary dispute between Nigeria and Cameroon, and Nigeria’s decision to obey the ruling may have stopped a fierce inter-state war over the boundary. Indeed, many then ascribed to the whole boundary demarcation process as peacebuilding, disregarding the structural changes marked by the violence of forced migration. This article explores how the boundary delimitation has produced particular sorts of structural violence characterised by state neglect, loss of livelihoods and destitution. Thus, the article argues that although a full-blown war was avoided, the socio-economic conditions of the Nigerian populations on both sides of the border were not adequately considered and guaranteed as part of the peace-building agenda. It further argues that Nigeria, like many post-colonial states with the concentration of developments in major cities, neglects rural and border communities. Thus, the border communities accommodating the former Bakassi residents have further degenerated into ‘ill-governed’ spaces. This article uses structural violence as a framework to analyse the primary and secondary data to provide some deeper insights into the issues of violence being experienced by the local populations living on both sides of the demarcated border.

Arbitraža po uzoru na rimsko pravo u graničnom sporu između Lovrana i Mošćenica (1646.)

Granični spor između Lovrana i Mošćenica iz 1646. godine poznat je u literaturi, dok je arhivski izvor u kojemu je zabilježen paleografski i filološki odgovarajuće obrađen i vrednovan. Premda je riječ o pravnom aktu, njegova je pravna odrednica nepoznata, što se posebno odnosi na nekoliko instituta, pojmova i izričaja koji svojom preciznošću, određenošću i pravnotehničkom izraženošću odudaraju od mjesnih feudalnih običajnih pravnih shvaćanja toga vremena. K tome, premda su ti pojmovi te izričaji u ispravi dokumentirani na talijanskome, oni su prigodno talijanizirani, a zapravo pripadaju latinskom jeziku. Dodatno, kada se spominju, oni odstupaju od uobičajene srednjovjekovne deskriptivnosti pravnoga jezika i administrativno-funkcionalnog stila kojima obiluje tadašnja pravna diplomatika. Kako sve navedene naznake upućuju na mogućnost da su ključni pojmovi, izričaji i instituti u lovransko-mošćeničkom razgraničenju preuzeti iz rimske pravne tradicije koja je na ovo područje prodirala i posredstvom ius commune te dijelom iz rimsko-kanonskoga procesa, u radu se propituje njihovo pravno podrijetlo te uloga i svrha koja se njihovim korištenjem postizala u konkretnom razgraničenju. U radu se posebna pažnja posvećuje procesnom mehanizmu kojim je riješen granični spor između Lovrana i Mošćenica te mogućnosti da je on oblikovan po uzoru na rimsku arbitražu i donekle na rimsko-kanonski proces.

Recepcija rimskog prava na glagoljici

Zapisnik Petra Lazarića, domaćega bilježnika i kanonika, potječe iz Mošćenica iz 1621., u kojemu na glagoljičkom pismu dokumentira rješavanje privatnoga diobenog spora među sumještanima u arbitraži. Premda pisana glagoljicom i na hrvatskom jeziku, ta isprava obuhvaća pohrvaćeno latinsko (i manje talijansko) pravnotehničko nazivlje te bilježi niz načela, koncepata i instituta koji su u izvansudskom postupku rješavanja spora dosljedno i pravilno primijenjeni po uzoru na rimsko pravo. Svi bitni pravni elementi ovoga diplomatičkog izvora odražavaju snažne odjeke tradicije rimskoga prava i ius commune. Autor u dvama radovima koji slijede analizira sve relevantne institute primijenjene u arbitraži, i postupovne i materijalnopravne, povezuje ih s rimskim i kanonskim pravnim uzorima te, naposljetku, taj diplomatički izvor dovodi u svezu s druga dva pravna svjedočanstva, koja su nastala u Mošćenicama u prvoj polovici 17. stoljeća, a koja također odražavaju snažne utjecaje rimske pravne tradicije: Mošćenički statut iz 1637. i lovransko-mošćeničko razgraničenje iz 1646.