The delimitation of maritime boundaries on Africa’s eastern seaboard

• Jurisdiction: South Africa
• Author: Ntola, S.Y.
• Date: 05 December 2017
• Pages: 54-104
• Published date: 05 December 2017
• Citation: 2016 JOLGA 54

54

THE DELIMITATION OF MARITIME

BOUNDARIES ON AFRICA’S

EASTERN SEABOARD

SIQHAMO Y NTOLA†

LLM candidate, Nelson Mandela Metropolitan University

PATRICK H G VRANCKEN††

Professor of Law, Nelson Mandela Metropolitan University

This article analyses the extent to which maritime boundaries

have been delimited on Africa’s eastern seaboard. The article

starts by discussing the delimitation agreements which have been

concluded. Following this, the article discusses two cases that

have been submitted to a third party, namely the Eritrean/Yemen

arbitration and the Kenya/Somalia dispute concerning maritime

delimitation in the western Indian Ocean. The article then moves

on to identify and discuss the maritime-boundary delimitations

which are outstanding, largely owing to sovereignty disputes over

dry land territory which affects claims to maritime zones between

disputing States. Lastly, the article identifies and discusses the

provisional arrangements of a practical nature that have been put in

place by those States that have not yet delimited their overlapping

maritime boundaries. The article concludes by suggesting that

African States give priority to finalising their delimitations among

themselves before attempting to resolve delimitation and related

issues with other States in the region.

[Keywords] 1982 United Nations Convention on the Law of the

Sea, delimitation, equidistance, Gulf of Aden, joint develop-

ment agreement, Mozambique Channel, provisional arrangements,

Red Sea, sovereignty dispute, western Indian Ocean.

† LLB. I hereby acknowledge the financial support of the Nelson Mandela

Metropolitan University.

†† LED LLM LLD. The co-author is the incumbent of the South African

Research Chair in the Law of the Sea and Development in Africa,

which is funded by the South African Department of Science and

Technology.

2016 JOLGA 54

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The delimitation of maritime boundaries

55

I INTRODUCTION

The 1982 United Nations Convention on the Law of the Sea

(LOSC)1 sets out the legal regimes that govern the various maritime

zones over which the coastal States may exercise jurisdiction. One

of those zones is the EEZ,2 which a coastal State may establish

with an outer limit at a maximum of 200 nm from the baselines

from which the territorial sea is measured.3 When a coastal State

proclaims an EEZ, its jurisdiction over that zone extends not only

to its waters, but also to the seabed and subsoil of the continental

shelf.4 Jurisdiction over the latter may extend beyond 200 nm when

recommendations to that effect have been made by the Commission

on the Limits of the Continental Shelf (CLCS).5 The extension of

maritime jurisdiction opens significant economic opportunities

for coastal States because they have exclusive access to both living

and non-living resources within their maritime zones.6 That is

the case especially of African coastal States,7 for which maritime

resources constitute a crucial additional opportunity to address

many of their socio-economic challenges, such as energy shortages

and food insecurity.8

The nature and extent of those challenges vary among the States

on Africa’s eastern seaboard, that is to say the coastal States from

the Isthmus of Suez to Cape Agulhas as well as the African States

1 1833 UNTS 3, (1982) 21 ILM 1245.

2 Article 55 of the LOSC. For a brief discussion of the establishment of

the EEZ, see R R Churchill & A V Lowe The Law of the Sea 3 ed (1999)

160-161.

3 Article 57 of the LOSC.

4 See art 56(1)(a) of the LOSC. In the Continental Shelf (Libyan Arab

Jamahiriya v Malta) case, the ICJ explained that, ‘although there can be

a continental shelf where there is no [EEZ], there cannot be an [EEZ]

without a corresponding continental shelf’ (1985 ICJ Reports 13 at 34).

Article 77(3) of the LOSC confirms that ‘[t]he rights of the coastal State

over the continental shelf do not depend on occupation, effective or

notional, or on any express proclamation’.

5 Article 76(8) of the LOSC.

6 Articles 56(1)(a) and 77(1)-(2) of the LOSC.

7 Of the 55 African States, 71 per cent (or 39) are coastal States.

8 See B Kwiatkowska ‘Ocean affairs and the law of the sea: Towards

the 21st century’ (1993) 17 MP 11 at 11; M Baro & T Deubel ‘Persistent

hunger: Perspectives on vulnerability, famine and food security in sub-

Saharan Africa’ (2006) 35 Annual Review of Anthropology 521 at 521;

World Bank ‘Energy in Africa: Overview’ (June 2012) (available at http://

web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/

EXTAFRREGTOPENERGY/0,,menuPK:717332~pagePK:51065911~piP-

K:64171006~theSitePK:717306,00.html, accessed on 8 July 2015).

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56 JOURNAL OF OCEAN LAW & GOVERNANCE IN AFRICA

having or claiming sovereignty over the islands in the western

Indian Ocean.9 Those States (hereinafter referred to as ‘SAES’) are:

Comoros, Djibouti, Egypt, Eritrea, Kenya, Madagascar, Mauritius,

Mozambique, Seychelles, Somalia, South Africa, Sudan and

Tanzania. With the exception of Eritrea, all those States ratified

the LOSC.10 They all extended their territorial sea up to 12 nm.11

9 The Indian Ocean ‘can be divided into eastern and western sectors by

meridian 77o 35’ E that passes through Cape Comorin, the southern tip

of India’ (V Prescott ‘Indian Ocean Boundaries’ in L M Alexander et al

(eds) International Maritime Boundaries (2005) V 3453 at 3453).

10 Comoros (1994), Djibouti (1991), Egypt (1983), France (1996), Kenya

(1989), Madagascar (2001), Mauritius (1994), Mozambique (1997),

Seychelles (1991), Somalia (1989), South Africa (1997), Sudan (1985)

and Tanzania (1985). See UN ‘Chronological lists of ratifications

of, accessions and successions to the Convention and the related

agreements as at 3 October 2014’ (2014) (available at http://www.

un.org/depts/los/reference_files/chronological_lists_of_ratifications.

htm, accessed on 8 July 2015).

11 See art 3 of statute no 82-005 relating to the delimitation of the maritime

zones of the Islamic Federal Republic of the Comoros of 1982 (available

at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/

PDFFILES/COM_1982_Law.pdf, accessed on 23 January 2016) and

art 1 of decree no 10-092 of 13 August 2010 establishing the limits

of the territorial sea of the Union of the Comoros ((2011) 74 LOSB

16); art 4 of statute no 52/AN/78 concerning the territorial sea, the

contiguous zone, the exclusive economic zone, the maritime frontiers

and fishing of Djibouti (available at http://www.un.org/Depts/los/

LEGISLATIONANDTREATIES/PDFFILES/DJI_1979_Law.pdf, accessed

on 23 January 2016); art 5 of the decree concerning the territorial waters

of the Arab Republic of Egypt of 1951 as amended by the presidential

decree of 17 February 1958 (available at http://www.un.org/Depts/

los/LEGISLATIONANDTREATIES/PDFFILES/EGY_1958_Decree.

pdf, accessed on 23 January 2016); par 6(f) of the definitions in

maritime proclamation no 137 of 1953 of Ethiopia (available at http://

www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/

ERI_1953_Proclamation.pdf, accessed on 23 January 2016); as far

as Kenya is concerned, part II s 3(1) of chapter 371 of the Maritime

Zones Act of 1989 (available at http://www.un.org/Depts/los/

LEGISLATIONANDTREATIES/PDFFILES/KEN_1989_Maritime.pdf,

accessed on 23 January 2016); art 1 of ordinance no 85-013 determining

the limits of the maritime zones (territorial sea, continental shelf and

exclusive economic zone) of the Democratic Republic of Madagascar

of 1985 as amended and ratified by statute no 85-013 of 1985 ((1986)

7 LOSB 42); s 7 of the Maritime Zones Act, 2005 (Act 2 of 2005), of

Mauritius ((2006) 62 LOSB 52); art 4(2) of Mozambican statute no 4/96

of 1996 (available in Portuguese at http://faolex.fao.org/docs/pdf/

moz22054.pdf, accessed on 23 January 2016); s 4 of the Maritime Zones

Act, 1999 (Act 2 of 1999), of Seychelles ((2002) 48 LOSB 18); s 4(1) of

the Maritime Zones Act, 1994 (Act 15 of 1994), of South Africa ((1996)

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