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Title: The unbalanced protection of private rights in land and maritime delimitation : the necessity of an equilibrium
Author: Pappa, Marianthi
ISNI:       0000 0004 7425 8194
Awarding Body: University of Aberdeen
Current Institution: University of Aberdeen
Date of Award: 2018
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This study is concerned with the protection of private rights situated in maritime areas under delimitation. An increasing number of coastal States grant private exploratory, fishing, and scientific research rights in marine and submarine areas which are also claimed by neighbouring States with adjacent or opposite coasts. One of the main challenges for private rights situated in those waters is their potential reallocation from the State which originally created them to the neighbouring State due to the boundary's final course. The sudden displacement of private rights from one jurisdiction to another may have serious legal implications for the rights themselves and for the interests of their respective holders. A question that arises is: can the rules which govern maritime delimitation protect effectively offshore private rights from the challenge of a potential reallocation? To address this question, the study uses as benchmark the place that private rights possess in land delimitation. Land boundary-making is much more developed than its maritime counterpart, and has been dealing systematically with private rights situated in areas of overlapping sovereign claims. In particular, it is observed that the international treaties and the judicial or arbitral rulings which perform land delimitation tend to allow private rights to affect the boundary's course, preventing a potential reallocation. And even when reallocation is inevitable, certain legal mechanisms are employed by States and international judges in order to accommodate the affected private rights post delimitation. The above trends in State practice and jurisprudence demonstrate that international law offers a high level of protection for private rights in the context of land delimitation. What remains to be examined is whether private rights enjoy a similar level of protection in the context of maritime delimitation too. The common features of land and maritime delimitation may primarily imply that the protection of private rights extends in contested waters too. Both on land and at sea, the purpose of boundary-making is to set the limits of two contiguous jurisdictions in a final and peaceful manner. Also, in both settings, delimitation is effected by treaties entered between the concerned States and by rulings awarded by international courts or tribunals on the basis of international law. However, a comparative analysis between the processes of land and maritime delimitation reveals that a significant asymmetry is in place: while private rights have an extensive effect on the course of land boundaries, their impact on the course of maritime boundaries is almost non-existent. This means that the risk of reallocation of private rights is significantly higher at sea than on land. Also, the treatment of reallocated private rights is considerably different between the two settings. On land, a series of legal mechanisms are systematically employed by States and international jurisprudence for the accommodation of reallocated private rights post delimitation. At sea, similar mechanisms are also available but they are scarcely employed. This means that private rights have significantly greater chances to be preserved by the absorbing State on land than at sea. The different treatment of similar rights in the contexts of land and maritime boundarymaking has serious implications for private interests situated in contested waters and for international law in general. It cultivates the misconception that offshore private rights are inferior to their counterparts on land, and as such, they do not deserve to be protected against a potential reallocation. It further creates a conflict between the processes of land and maritime delimitation, which are both governed by international law and as such, they should adhere to similar rules and principles. The significantly greater protection that international law offers to private rights in the context of land delimitation provides a number of valuable lessons for maritime delimitation, demonstrating the need for changes in the rules and practices of ocean boundary-making. The recommendations made in this study seek to provide a balanced protection of private interests in all areas of overlapping sovereign claims and in all situations of boundary-making.
Supervisor: Partain, Roy ; Couzigou, Irène Sponsor: University of Aberdeen
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Territorial waters ; Law of the sea ; Conflict of laws ; Right of property ; Boundaries ; Boundary disputes