Maritime boundary delimitation in Africa : developing a normative and institutional approach for the African Union Border Programme to manage maritime boundary delimitations

Abstract

Jurisdictional certainty in Africa’s ocean spaces, as indicated in the 2050 Africa’s Integrated Maritime Strategy (AIMS), is essential if the continent’s oceans economy is to make a meaningful contribution towards socio-economic development. Indeed, the AIMS directs the Africa Union (AU), through its Border Programme (‘the AUBP’) to ‘make an assertive call to peacefully solve existing maritime boundary issues between Member States […]’ in accordance with the 1982 United Nations Convention on the Law of the Sea (LOSC). The AU Strategy for Better Integrated Border Governance (AU-BIBG) is the AUBP’s strategy for, among other things, resolving boundary issues in Africa. Contributory to the Strategy’s efficacy in this regard is the development of a model by the AUBP from which AU Member States can draw. The basis for inviting the AUBP to develop such a model is because AU Member States, as part of the Strategy’s rollout, are encouraged to develop a comprehensive national Border Governance Policy inclusive of normative, institutional, collaborative and financial frameworks with strategic partnership and communication components that take AU and [Regional Economic Communities (RECs)] policies and legislative blueprint documents [into] account.

In a normative and institutional sense, the aim of this study has been to develop, within the continent’s regional and subregional legal infrastructure, approaches to aid the management of maritime boundary delimitations involving AU coastal Member States for the AUBP. Such development represents, in part, the model envisaged by the AU-BIBG from which AU coastal Member States can draw for delimiting their maritime boundaries and/or resolving disputes concerning delimitation, should they arise. Included in the study are discussions on ‘mixed disputes’, which are maritime boundaries that are undelimited owing to an undelimited land boundary or territorial sovereignty dispute over a coastal terrestrial territory. Achieving this study’s objective hinged on developing a normative framework for analysis and applying it to Africa’s factual and legal context. Four undertakings were thus integral in this regard.

The first is an understanding of the circumstances and/or issues affecting the lack of delimited maritime boundaries among or involving AU coastal Member States, which is undertaken in chapter two. In this chapter, delimitations are classified in aid of developing the normative and institutional approach. Key findings in this chapter are that: (i) Africa’s colonial past complicates maritime boundary delimitations as past colonial practices have to be interpreted and considered in effecting delimitation; and (ii) a lack of or insufficient diplomatic relations, which speaks to negotiating delimiting boundaries, inhibit the prospect of delimitation.

The second undertaking involved developing a normative framework for analysis by achieving two objectives. First, by isolating the AUBP’s mandate and challenges regarding boundary delimitation. This involved discussions on: (i) the AUBP’s fundamental and implementation principles and their relationship with general international law, as well as the AUBP’s objective; and (ii) the legal substance of the outlined principles together with the legal provisions enabling the AUBP to achieve its objective on the continent. The second objective was to shed light on the extent to which Africa’s legal environment impacts on maritime boundary delimitation on the continent. This is done in order to reveal the available legal avenues useful for executing the AUBP’s mandate. Originating from these discussions is that Africa’s regional and subregional legal environment is generally inadequate for addressing delimitations. In varying degrees however, RECs such as the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), and the Southern Africa Development Community (SADC) have viable legal avenues that can be leaned on to execute the AUBP’s mandate for their Member States, which comprise a majority of AU coastal Member States. Informed by the mandate, its implementing challenges and Africa’s legal environment, a three-tiered normative framework is developed and used to analyse the extent to which the AUBP’s mandate in Africa’s legal environment can be executed in light of the LOSC’s provisions concerning maritime boundary delimitation.

The third undertaking pertained to understanding the extent to which the LOSC and other tools of international law (such as advisory opinions sought from the International Court of Justice in terms of article 65 of the Court’s Statute) are useful for the mandate’s execution and implementation, which is undertaken in chapters four and five with regard to non-judicial and judicial methods to affect boundary delimitation, respectively. Herein, two of the three tiers of the normative framework for analysis are engaged. Notable findings are that the AUBP’s mandate can be executed at a regional (AU Commission) and subregional level (ECCAS, ECOWAS, SADC) for non-judicial and judicial settlement for delimitations. Assistance in terms of the mandate concerning the non-judicial methods includes facilitating negotiations, which include negotiations for a provisional arrangement of a practical nature over undelimited ocean spaces whilst a delimitation agreement is pending. Where disputes are mixed, assistance in terms of the AUBP mandate may be granted where the land component of the dispute pertains to the location of a land boundary. On judicial settlements, it is noted that the AUBP’s mandate extends to the method where a third-party has jurisdiction to adjudicate over the submitted dispute. States using third-party procedures provided for in section 1, Part XV of the LOSC, do so when there are general, regional and bilateral agreements to this effect in accordance with article 282. On compulsory procedures entailing binding decisions, the AU Commission as well as RECs like the ECCAS, ECOWAS and SADC are viable avenues through which Member States may obtain assistance pursuant to the AUBP mandate. This assistance extends to those States who may submit a dispute to compulsory non-binding conciliation owing to one of them having raised an exception regarding delimitation, historic bays or titles in terms of article 298(1)(a)(i) of the LOSC.

In the fourth undertaking, which reflects the normative framework’s third tier, recommendations for a normative and institutional approach for non-judicial and judicial methods for maritime boundary delimitation are advanced. The recommendations are advanced to aid the AUBP in managing delimitations involving AU coastal Member States. Relying on articles 3(2)(h) of the Statutes of the Commission of the AU, articles 7(b) and (c) read together with article 12(c) of the 2019 Protocol Amending the 2008 Protocol on Relations between the AU and RECs AU-REC Protocol, the recommendations show how the AUBP mandate can be executed in the current regional and subregional legal environment.