Lines at Sea: Why do States resolve their Maritime Boundary Disputes?

Boundary Disputes?
A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
(Political Science)
(Vancouver)
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The following individuals certify that they have read, and recommend to the Faculty of Graduate
and Postdoctoral Studies for acceptance, the dissertation entitled:
Lines at Sea: Why do States resolve their Maritime Boundary Disputes?
submitted
for
In Political Science
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Abstract
This doctoral thesis was written in the period 2015–2019 at the University of British Columbia,
Vancouver. It asks: Why are half the world’s maritime boundaries unresolved? How do states
delineate such ownership and rights at sea? What does this tell us about international politics
concerning the ocean?
Boundaries in the ocean are man-made constructs of importance to everything from oil and
gas production, to fisheries and environmental protection. By examining a relatively
straightforward and simple question – why do some states settle their maritime boundary disputes
whereas others do not? – we can find the factors that underpin dispute settlement at sea.
This doctoral thesis draws on theories and assumptions within both international relations
and international law. Employing a previously compiled dataset of 184 maritime boundaries, as
well as in-depth analyses of 33 boundaries across four countries – Australia, Canada, Colombia,
Norway – I identify the conditions and the causal factors that motivate and enable the resolution
of maritime boundary disputes.
I have found it insufficient to study maritime boundary disputes only as individual cases:
they must be seen as interdependent complexes. Further, we must conceive of the dependent
variable beyond the binary option of settled/not settled. By depicting the outcome as multi-step
fluid processes, we can better understand the nuances concerning what drives and what hinders
settlement of maritime boundary disputes, at various points in that process. This, in turn, allows a
re-think of how states approach maritime space more generally, at a time when oceans are
receiving greater political attention.
Beyond relative power concerns and security considerations, states’ concern for legal
precedence and the increasing engagement of domestic actors in settlement processes confirms the
importance of taking a wider approach, acknowledging several layers of foreign policy-making.
This thesis also makes an argument for an ongoing ‘territorialisation’ of ocean space and certain
trends that might make maritime boundaries more important for society, and thus also more
difficult for states to agree on.
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Lay summary
Why do states engage in disputes over who owns what at sea? How do states delineate such
ownership and rights? What does this tell us about international politics concerning the ocean?
These are the core questions examined in this doctoral thesis, which sets out to show why states
settle their maritime boundary disputes. Boundaries in the ocean are man-made constructs of
importance to everything from oil and gas production, to fisheries and environmental protection.
Understanding what leads states to agree in ongoing disputes, when more than half of all
boundaries at sea remain unresolved today, can say something about the international relations of
ocean politics. Drawing on political science and international law, this thesis shows why we need
understand the interplay between security politics, legal considerations and the domestic audience
in order to understand what motivates states to settle maritime disputes.
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Preface
This dissertation is predominantly original, unpublished, independent work by the author, A.
Østhagen. Small portions – less than 20 percent – of chapters 7 (Canada) and 9 (Norway) of which
I am the author were published in a slightly different frame and format in the article: Byers,
Michael, and Andreas Østhagen (2017), ‘Why Does Canada Have So Many Unresolved Maritime
Boundary Disputes?’ Canadian Yearbook of International Law 54 (October): 1-62; and in the book
chapter ‘Settling Maritime Boundaries: Why Some Countries Find It Easy, and Others Do Not’,
by Michael Byers and Andreas Østhagen, pp. 162–68 in The Future of Ocean Governance and
Capacity Development (2018) from The International Ocean Institute-Canada, Leiden, NLD: Brill
Nijhoff. Permission has been obtained from the co-author to utilise the relevant sections. I have
consciously utilised only sections written by me for these portions, while also re-writing these
substantially. The co-author, Michael Byers, helped develop some of the ideas incorporated in
these sections, but I am the author for the text itself.
Further, very minor parts of chapter 9 (Norway) are based on previously published articles
by A. Østhagen, namely: 2016. ‘High North, Low Politics Maritime Cooperation with Russia in
the Arctic’. Arctic Review on Law and Politics 7 (1): 83–100; 2018. ‘Geopolitics and Security in
the Arctic’. In Routledge Handbook of the Polar Regions, edited by Mark Nuttall, Torben R.
Christensen, and Martin Siegert, 348–56. Abingdon, UK: Routledge; and 2018. ‘Managing
Conflict at Sea: The Case of Norway and Russia in the Svalbard Zone’. Arctic Review on Law
and Politics 9: 100–123.
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1. INTRODUCTION .............................................................................................................................................. 1
1.1. Sea of troubles ....................................................................................................................................... 1 1.2. The Puzzle .............................................................................................................................................. 5 1.3. The Question .......................................................................................................................................... 8 1.4. Approach and framework ...................................................................................................................... 9 1.5. Methodology ........................................................................................................................................ 13 1.6. Next steps ............................................................................................................................................. 19
2. STATES, BORDERS AND MARITIME BOUNDARIES ........................................................................... 21
2.1. States and territory .............................................................................................................................. 21 2.2. Maritime space and maritime boundaries ........................................................................................... 24 2.3. Resolving maritime boundary disputes ................................................................................................ 27
3. MARITIME DISPUTES ACROSS PARADIGMS ....................................................................................... 35
3.1. Political science and maritime disputes............................................................................................... 35 3.2. Legal studies and maritime disputes .................................................................................................... 40 3.3. Case studies ......................................................................................................................................... 44 3.4. Relevant factors ................................................................................................................................... 46 3.5. What’s missing? ................................................................................................................................... 51
4. APPROACHES TO EXPLAINING MARITIME BOUNDARY DISPUTE SETTLEMENT .................. 53
4.1. Policy process ...................................................................................................................................... 53 4.2. System approach .................................................................................................................................. 57 4.3. International institutions: Law ............................................................................................................ 61 4.4. Domestic factors .................................................................................................................................. 65 4.5. Hypotheses and their interaction ......................................................................................................... 69
5. QUANTIFYING MARITIME DISPUTES .................................................................................................... 73
5.1. Overview of maritime boundaries ........................................................................................................ 73 5.2. A quantitative study ............................................................................................................................. 76 5.3. Finding a middle path .......................................................................................................................... 78 5.4. Case selection ...................................................................................................................................... 80
6. AUSTRALIA .................................................................................................................................................... 86
6.1. Australia’s Maritime Boundaries ........................................................................................................ 88 6.2. Australia–Indonesia (seabed: 1971-72-73) ......................................................................................... 91 6.3. Australia–Indonesia (maritime boundary: 1981/1997) ....................................................................... 93 6.4. Australia–Papua New Guinea (1978) .................................................................................................. 96
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7. CANADA ........................................................................................................................................................ 117
8. COLOMBIA ................................................................................................................................................... 140
9. NORWAY ....................................................................................................................................................... 172
10. MARITIME BOUNDARIES ACROSS CASES: A SUMMARY .............................................................. 194
10.1. Categorising Factors ......................................................................................................................... 204
11. SYSTEMIC, LEGAL AND DOMESTIC FACTORS IN OCEAN BOUNDARY-MAKING.................. 211
11.1. Systemic aspects ................................................................................................................................. 211 11.2. Legal aspects ..................................................................................................................................... 221 11.3. Domestic aspects ............................................................................................................................... 227
12. WHY DO STATES RESOLVE THEIR MARITIME BOUNDARY DISPUTES? .................................. 238
12.1. A three-step process with barriers and drivers .................................................................................. 238 12.2. Oil and gas: Do we need a boundary? .............................................................................................. 244 12.3. Legal characteristics: Is context everything? .................................................................................... 249 12.4. Fisheries and conflict: The neglected dimension of boundary disputes? .......................................... 253
13. THE FUTURE OF OCEAN POLITICS AND MARITIME BOUNDARY DISPUTES ......................... 259
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List of Tables
Table I: List of factors described as relevant in maritime boundary outcomes.………………… 49 Table II: Overview of hypotheses……………………………………………………………….. 69 Table III: Total number of maritime boundaries as dyads, per continent………………………..74
Table IV: Overview of countries and their maritime boundaries within set range………………82 Table V: Overview of the four countries on a range of metrics………………………………… 84 Table VI: Overview of each maritime boundary………………………………………………. 194
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List of Figures
Figure I: The methodological steps in this thesis………………………………………………...18 Figure II: The process of settling a maritime boundary………………………………………….56 Figure III: Maritime boundaries per continent…………………………………………………...75
Figure IV: Timing of agreement……………………………………………………………….. 204 Figure V: The process of settling a maritime boundary……………………………………….. 205 Figure VI: Factors influencing outcome, all boundaries………………………………………. 207 Figure VII: Factors influencing outcome, settled boundaries…………………………….……..207 Figure VIII: The policy process when settling maritime boundaries with hypotheses…………239
Figure IX: The policy process in settling maritime boundaries, with cases…………………… 242
List of Illustrations
Illustration I: The maritime zones of a state under UNCLOS…………………………………... 27 Illustration II: The Exclusive Economic Zones in Oceania/the South Pacific…………………...28 Illustration III: World map of countries with maritime boundaries……………………………...75
Illustration IV: Countries with outstanding maritime boundary disputes per 2008……………...76 Illustration V: Map of countries within the set range…………………………………………… 81 Illustration VI: Map of Australia’s territory, including external territories……………………... 88 Illustration VII: Map of Australia’s maritime zones……………………………………………..90 Illustration VIII: 2018 Maritime Boundary Agreement………………………………………...112
Illustration IX: Map of Canada………………………………………………………………… 119 Illustration X: Canada’s maritime zones………………………………………………………..121 Illustration XI: Maps of Colombia (historic)…………………………………………………... 141
Illustration XII: Colombia and its maritime zones…………………………………………….. 144 Illustration XIII: Decision made by ICJ in 2012………………………………………………. 161 Illustration XIV: Map of Norway……………………………………………………………… 173
Illustration XV: Norway’s maritime zones…………………………………………………….. 176
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Acknowledgements
There are a number of people that deserve my acknowledgement and gratitude, having helped me
along the path to complete this thesis, and more importantly, guiding me along my career path
over the last decade.
First and foremost, I must thank my supervisor Michael Byers at the University of British
Columbia (UBC) for having convinced me to venture across the world (literally) to pursue a
doctorate. Having first met in the context of Arctic studies, Michael convinced me to expand my
interests and grapple with something novel, of which this thesis is the product. I could have
continued to write about the political changes taking place in the Arctic. Instead, with the
assistance of Michael, I dove into Law of the Sea, maritime boundaries, and regional contexts I
knew very little about. For the guidance and feedback, I am forever grateful.
When I left the London School of Economics in 2010 having completed a Master’s Degree,
I vowed to never return to academia. Continuing with a doctorate was out of the question. Alas,
never say never. While working in Brussels, Kristine Offerdal was the first person who included
me in an academic project and guided me towards becoming a researcher. For that, I am thankful.
Eventually leaving the hallways of bureaucracy and lobbying at the end of 2013, my new
colleagues at the Norwegian Institute for Defence Studies in Oslo – especially Paal Sigurd Hilde,
Håkon Lunde Saxi, Robin Allers, Ingrid Lundestad and Rolf Tamnes – helped me develop as a
young researcher.
Returning to graduate studies at UBC in autumn 2015 took some adjustment. Fellow
graduate students in Vancouver helped keep it light and fun, which cannot be underestimated with
all the seriousness surrounding PhD-studies. A special thanks goes to the three I started with;
Guðrún Rós Árnadóttir, Hema Nadarajah and Gregor Sharp. In addition to Michael, several
academics at UBC helped me develop this thesis topic and gave me valuable insights, especially
Richard Price, Katharina Coleman, Antje Ellermann, Lisa Sundstrom and Alan Jacobs, in addition
to my committee members Brian Job and Philippe Le Billon.
Moreover, my connection to Bodø, my hometown in North Norway, has been kept alive
through a part time affiliation with the High North Center at Nord University. Frode Mellemvik at
the Center has been a continuous source of encouragement and backing, regardless of the venture
or idea, for which I am very appreciative. My other colleagues at the Center and at Nord University
help me keep a ‘northern’ perspective on life, despite residing in the capital.
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Further, having arrived back in Oslo to the Fridtjof Nansen Institute in the summer of 2017,
my colleagues there have been of tremendous help giving both feedback and encouragement. In
particular, Geir Hønneland, Svein Vigeland Rottem, Arild Moe, Pål Wilter Skedsmo, Øystein
Jensen, Anne-Kristin Jørgensen, Lars Rowe, Tor Håkon Jackson Inderberg, Davor Vidas, Olav
Schram Stokke and Claes Lykke Ragner have provided invaluable input and support.
Another crucial component of the thesis writing has been the support provided by my
fellow colleagues in The Arctic Institute. Having assisted Malte Humpert in setting up this network
of Arctic-engaged young scholars back in 2011, having a group of other young professionals
grappling with the same challenges have been a relief. Having met through this network, Andreas
Raspotnik has not only given me the most feedback and listened to my complaining more than
anyone else; he has also become one of my closest friends.
Others have provided brief but treasured input and inspiration during short work stints in
North America: Heather Conley during my time at the Center for Strategic and International
Studies in Washington DC; Sarah French Rooke during my time at the Munk-Gordon Arctic
Security Program in Toronto; and Oran Young during my time at the University of California:
Santa Barbara. Moreover, several individuals have taken the time to meet with me over the years
and have provided support and insight. These include: Mark Alcock; Walter Arévalo; Snjólaug
Árnadóttir; Áslaug Ásgeirsdóttir; David Balton; Grant Boyes; Henry Burmester; Klaus Dodds;
Rolf Einar Fife; Richardo Abello Galvis; Gunhild Hoogensen Gjørv; Camille Goodman; Wilfrid
Greaves; Douglas Guilfoyle; Alf Håkon Hoel; Kalevi Holsti; Rob Huebert; Christoph Humrich;
Stuart Kaye; Natalia Klein; Berit Kristoffersen; Whitney Lackenbauer; Suzanne Lalonde; Ted
McDorman; Ingrid Agnete Medby; Sara B. Mitchell; Petter Nore; Indra Øverland; Anne Kari
Ovind; Julio Londoño Paredes; Tony Penikett; Rosemary Rayfuse; Donald Rothwell; Elana
Wilson Rowe; Clive Schofield; Marina Tsirbas; David VanderZwaag; Ernst Willheim; and the
excellent language editors Susan Høivik and Chris Saunders.
Finally, all the academic and professional support would be futile without the comfort and
stability provided by close family and friends. My family has never questioned the pursuit of a
doctorate, nor have they waivered in their support of my efforts. My friends have continued to
engage in a topic far from their own everyday lives. Most importantly, my wife-to-be, Victoria,
has kept up with my dissertation stress, mood swings and continuous rambling about maritime
boundaries. I could not have asked for more love or support.
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Dedication
1
1.1. Sea of troubles
In 2010, Norway and Russia agreed on a maritime boundary in the Arctic, stretching from the
Eurasian landmass almost all the way to the North Pole. The new 1,750-kilometre (1,087-mile)
boundary was ten times the length of the land border between the two countries and it was hailed
as a sign of a new ‘era’ in Norway–Russia relations, as well as Arctic governance more broadly
(Lavrov and Støre 2010, Moe, Fjærtoft, and Øverland 2011). Pundits were quick to argue that the
primary reason for the maritime boundary agreement must have been the presence of oil and gas
resources, not least as resource extraction figured prominently in the two countries’ newly
launched Arctic strategies (Holsbø 2011).
However, the presence of oil and gas resources does not always prompt agreement. In the
summer of 2019, Cyprus issued arrest warrants for the crew of a Turkish vessel found drilling off
the west coast of the island, within what Cyprus deems its Exclusive Economic Zone (EEZ)
(Andreassen 2019). The US State Department called the actions by Turkey ‘highly provocative’
and French President Macron ‘urged Turkey to stop ‘illegal activities’’ (Vey 2019). Turkish
President Erdogan countered. ‘The legitimate rights of Turkey and the Turkish Republic of
Northern Cyprus over the energy resources of the Eastern Mediterranean are not debatable’
(Guggenheim 2019).
Despite having very different origins,1 the Cyprus maritime dispute in 2019 concerns the
same issue that was resolved between Norway and Russia in 2010, namely delimitation of
sovereign rights and space at sea. What drove Norway and Russia to agreement in 2010? Why was
it not settled in 1977, when the dispute arose, or the late 1990s when negotiations were restarted?
Indeed, why is it not, like the case of Cyprus-Turkey, still in dispute?
It is unlikely that Norway and Russia would have been able to reach an arrangement today,
nine years later. As put by a former Norwegian foreign minister explaining one of the factors
behind the agreement: ‘There must be trust between the negotiating partners’ (Støre 2010).2 The
1 The Cyprus-dispute concerns the conflict over the division of Cyprus, and – in an extension – what maritime rights
befall the Republic of Cyprus to the south, and the Turkish Republic of Northern Cyprus (not internationally
recognised) to the north. The dispute between Norway and Russia concerned the location of a maritime boundary from
the border of the two countries on the Eurasian mainland stretching northwards into the Barents Sea. 2 Author’s translation.
2
worsening in relations between the two countries after the Russian annexation of Ukraine in 2014
have made bilateral relations resemble those of the Cold War when the two countries were on
opposing sides in the larger ‘East West’ dispute.
This speaks to the challenge of settling boundary disputes. Presently, more than half of all
maritime boundaries are still disputed, across all continents.3 As put by the Norwegian and Russian
foreign ministers in 2010: ‘unresolved maritime boundaries can be among the most difficult
disputes for states to resolve’ (Lavrov and Støre 2010). In that case, the resource potential, personal
relations between the two foreign ministers, and Russian eagerness to bolster the Law of the Sea
in the Arctic have all been ascribed a positive effect on reaching an agreement.4 But how do we
separate and weigh these various causal arguments?
In the case of Cyprus, what might lead the different actors engaged – including Turkey and
the European Union (EU) – to reach a compromise? Is a mutually beneficial arrangement even
possible? Or are the parties best served by leaving the dispute unresolved for the foreseeable
future? To answer these questions, we must examine disputes over maritime boundaries and how
these link to international politics over ocean space.
The oceans are the foundation of human life: as a point of origin for the human species, as
an essential source of food and oxygen, and as the constant regulator of global climate. At the same
time, the oceans are inaccessible and capricious, a domain never permanently conquered or
inhabited.5 The oceans have also been central in the development of civilisations.6 They have
enabled the rapid movement of peoples, goods and ideas amongst countries and between
continents. The difference between land and sea is clear; and the maritime domain has been kept
separate from land in our attempts at explaining political and economic development.7
3 As Prescott and Schofield (2004, 218) highlight, ‘out of 427 potential maritime boundaries, only about 168 (39%)
have been formally agreed, and many of these only partially’. Other figures concerning the total number of maritime
boundaries exist, with varying degrees of specificity. Some estimate that there are approximately 640 maritime
boundary disputes, with around half resolved (Cannon 2016). Newman (2018) claims there are 512 maritime
boundaries in total, again half of them resolved 4 See several extensive theses from the University of Tromsø in the period 2006–2013 concerned with the boundary
agreement both before and after it was settled in 2010 (Blomqvist 2006; Holsbø 2011; Solstad 2012; Ims 2013), as
well as articles by Moe, Fjærtoft, and Øverland (2011) and Orttung and Wenger (2016). 5 Apart from, perhaps, Plato’s lost civilisation of Atlantis. As Captain Nemo puts it: ‘The sea does not belong to
despots. Upon its surface men can still exercise unjust laws, fight, tear one another to pieces, and be carried away with
terrestrial horrors. But at thirty feet below its level, their reign ceases, their influence is quenched, and their power
disappears. Ah! sir, live – live in the bosom of the waters! There only is independence! There I recognise no masters!
There I am free!’ (Verne 1876, 56). 6 See Paine 2013; Steinberg 1999. 7 This thesis employs various terms referring to maritime space, such as ‘sea’, ‘ocean’, ‘maritime domain’, ‘maritime
3
How states have viewed and utilised the sea – eventually attempting to control and develop
a legal order for it – has varied and changed over the past millennium (Benton 2010, 153–54;
Steinberg 2001). From the 15th to the 19th centuries, the use of maritime space in exploration,
dominance and industrialisation transformed the world (Paine 2013). Since the end of the Second
World War, the increase in global trade has had a considerable effect on the use of oceans.8 Today,
some 80% of all global trade and 70% of the value of…