Examining the Role of Delimitation of the Continental

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Examining the Role of Delimitation of the Continental Shelf and the Exclusive Economic

Zone in relation to Maritime Boundary Disputes in Africa

Njoki Mboce*, Kariuki Muigua**, Peter Munyi***1

Corresponding author’s email address: [email protected]

mobile number: +254 725862223

Abstract:

Delimitation of the continental shelf (CS) and the exclusive economic zone (EEZ) in Africa faces

significant limitations, often leading to disputes. Whereas the 1982 United Nations Convention on

the Law of the Sea (1982 UNCLOS) which has been signed by all African States and ratified by

50 out of 55 African States provides a framework for the CS and EEZ delimitation, its effective

implementation in Africa is dependent upon many varying factors. These factors include time,

interests, circumstances and relationships. This article seeks to examine how the CS and EEZ

delimitation process in Africa can be better managed in order to mitigate against disputes.

Specifically, it considers whether an African based solution through the African Union could be

more effective. In this context, the effect of colonial boundaries in Africa is presented as the place

where a significant amount of the relevant factors and experiences of time, interests, circumstances

and relationships with respect to CS and EEZ delimitation converge. This is especially because

the 1982 UNCLOS framework of delimiting the CS and EEZ uses land territory of a coastal state

as a critical pillar of measuring the base point of maritime boundaries. African States inherited

their colonial boundaries. The paradoxical resource curse emerges as a consistent thread in this

*Doctoral in Law Scholar, Department of Public Law, School of Law, University of Nairobi , Kenya

** Senior Lecturer, Department of Private Law, School of Law, University of Nairobi, Kenya

***Lecturer, Department of Commercial Law, School of Law, University of Nairobi Law, Kenya

mailto:[email protected]

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discussion, to the extent that the wealth of resources in Africa informed the scramble and partition

of Africa and continue to afflict African States.

I. Introduction

Fixed maritime boundaries are a double edged sword for African States. On one hand, the

boundaries have the potential for generating boundary disputes as it has happened in some parts

of Africa. An example of this is the Somalia v. Kenya maritime boundary dispute commenced

before the ICJ on 28th August 2014 and final judgement delivered on 12th October 2021.2 On the

other hand, they have the potential of being bridges of stability and cooperation as they have done

in other parts of Africa, such as in the case the agreements on the delimitation of maritime borders

between the Comoros, Mozambique and Tanzania signed in 2011 through the African Union

Border Programme (AUBP).3 This article examines the role of the 1982 UNCLOS framework for

delimitation of the CS and the EEZ, in relation to maritime boundary disputes in Africa. The article

seeks to identify a way through which Africa can rise through the challenges of this framework to

a peaceful and sustainable existence.

2 ‘Latest Developments | Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) | International

Court of Justice’ <https://www.icj-cij.org/en/case/161> accessed 13 October 2021; Lara Van Dousselaere,

‘The Court Determines the Course of the Maritime Boundary between the Federal Republic of Somalia

and the Republic of Kenya’ ICJ Press Release 6.

3 Tchioffo Kodjo, ‘Signing Ceremony of the Agreements on the Delimitation of Maritime Borders

between the Comoros, Mozambique and Tanzania-African Union - Peace and Security Department’

(African Union,Peace and Security Department) <https://www.peaceau.org:443/en/article/signing-

ceremony-of-the-agreements-on-the-delimitation-of-maritime-borders-between-the-comoros-

mozambique-and-tanzania> accessed 4 May 2021.

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Theoretically, the article argues that whether or not delimitation of the CS and EEZ in Africa leads

to disputes depends on a number of factors, divided into the historical context of Africa’s existing

land boundaries, the efficacy of 1982 UNCLOS delimitation framework in Africa and finally,

alternatives towards a peaceful delimitation and/ or management. To achieve its objectives, the

article is divided into six sections.

Section I presents the overall layout of the article and establishes the article’s relevance. Section

II locates the role of CS and EEZ delimitation to maritime boundary disputes in Africa. This

section identifies Africa’s abundance of resources as a core reason for overlapping claims and

resulting need for delimitation. This discussion sets the stage for section III which examines the

1982 UNCLOS framework for delimiting the CS and the EEZ. Section IV locates the geographical

scope of this article as Africa. It specifically explores the nature of Africa’s boundaries, and

juxtaposes it against the application of the 1982 UNCLOS framework for delimiting the CS and

EEZ. Section V presents the AUBP as an existing vehicle under the African Union as

complementary to the role of the1982 UNCLOS delimitation of the CS and EEZ in relation to

maritime boundary disputes in Africa. Finally, section VI sums up the discussions and packages

the recommendations from the article.

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II. The role of delimitation of the CS and the EEZ in relation to maritime boundary

disputes in Africa - the Paradox of Plenty4

In this article, ‘coastal State ‘refers to a State that is situated by the ocean, and which has adjacent

territorial waters, CS and EEZ.5 150 of the 192 member states of 1982 UNCLOS are coastal States.

Out of the global 150 coastal States, 38 are coastal and island States in Africa.6 All African States

have signed the 1982 UNCLOS, and 50 out of 55 African States have ratified it. The five that are

yet to ratify it are Burundi; Central African Republic; Ethiopia; Libya; and Rwanda.7 This

effectively means that the 1982 UNCLOS is widely applicable among coastal States in Africa with

respect to their to CS and EEZ delimitation.

The1982 UNCLOS prescribes specific rights of a coastal State over its CS, different from other

States.8 First is that the coastal State exercises exclusive sovereign rights over the CS for the

purpose of exploring it and exploiting its natural resources.9 On the same breath, the 1982

4 Ukertor Gabriel Moti, ‘Africa’s Natural Resource Wealth: A Paradox of Plenty and Poverty’ (2019) 6

Advances in Social Sciences Research Journal.

5 Vice Admiral MP Muralidharan AVSM&Bar, ‘Indian Coastal Zone Management: Security Challenges

and Policy Options’ (2021) 2 Electronic Journal of Social and Strategic Studies 15.

6 ‘With 38 Coastal, Island States, Africa Well Placed to Reap Benefits of “Blue Economy”, Secretary-

General Says at Addis Ababa Event | Meetings Coverage and Press Releases’ 38

<https://www.un.org/press/en/2020/sgsm19965.doc.htm> accessed 22 June 2021.

7 UN Division for Ocean Affairs & Law of the Sea, ‘Chronological Lists of Ratifications, of Accessions

and Successions to the UNCLOS III and the Related Agreements’

<https://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The%20United%

20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea> accessed 14 August 2020.

8 ‘1982 UNCLOS’ <https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-

TOC.htm> accessed 27 January 2020, article 77. .

9 ibid, article 77.

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UNCLOS prescribes the rights of the coastal State in the EEZ.10 It effectively gives a coastal State

sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural

resources of its EEZ. The coastal state also has jurisdiction to: establish and use of artificial islands,

installations and structures; marine scientific research; and protection and preservation of the

marine environment.11

From the foregoing rights conferred upon coastal States, it is therefore natural that the abundance

of resources in Africa’s maritime space can be a trigger for many maritime boundary disputes.12

For instance, at the heart of the said Somalia v. Kenya maritime boundary dispute before the ICJ

are disputed oil blocks.13 Land and Maritime Boundary between Cameroon and Nigeria

(Cameroon v. Nigeria: Equatorial Guinea intervening) also before the ICJ has been attributed to

similar resource factors.14 History shows that the resources often trigger fresh or rekindling of old

maritime boundary disputes.15 This is because the resources attract interest of global powers and

corporations, many of which spare no harm in pursuing these resources.

10 ibid, article 56.

11 ibid, article 56.

12 Andreas Østhagen, ‘Troubled Seas? The Changing Politics of Maritime Boundary Disputes’ (2021) 205

Ocean & Coastal Management 105535; Harriet Njoki Mboce and Robert McCabe, ‘Kenya: From ‘Sea-

Blind’to “Sea-Vision”’, Capacity Building for Maritime Security (Springer).


Court of Justice’ (n 2).

14 ‘Judgments | Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:

Equatorial Guinea Intervening) | International Court of Justice’ <https://www.icj-

cij.org/en/case/94/judgments> accessed 10 October 2020.

15 Ioannis N Grigoriadis and Lennart T Belke, ‘UNCLOS and the Delimitation of Maritime Zones in the

Eastern Mediterranean’ [2020] Policy.

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It is natural therefore that Africa’s natural resources, including her naturally strategic geographical

location has been a double edged sword, considering her experiences such as colonialism and neo-

colonialism as a result of clamour for her resources by external powers show that her wealth in

resources have exposed her to great vulnerabilities and driven this blessing of resource into a great

burden.16 On this basis and given ongoing speculation and resource discoveries in Africa, there is

potential of more disputes emerging in the coming years.

III. African Maritime Boundaries

It is difficult to obtain a verifiable map of indigenous pre-colonial Africa.17 This article attributes

this factor to the fact that relatively scanty attention has been directed at documenting this.18

Nevertheless, a common feature of the various available maps and literature in the area show that

pre-colonial African territories was demarcated along various factors such as: (a) culture; and (b)

topographical features such as the sea, lagoons, lakes, rivers, boulders, hills, mountains; valleys;

certain outstanding trees and plants; and man-made constructions such as mounds.19 These

territories were often separated by large uninhabited and unclaimed spaces, perhaps as a result of

16 Eliza M Johannes, Leo C Zulu and Ezekiel Kalipeni, ‘Oil Discovery in Turkana County, Kenya: A

Source of Conflict or Development?’ (2015) 34 African Geographical Review 142.

17 Anthony I Asiwaju, ‘The Concept of Frontier in the Setting of States in Pre-Colonial Africa’ (1983)

127 Presence Africaine 43.

18 Gregor Dobler, ‘Boundary Drawing and the Notion of Territoriality in Pre-Colonial and Early Colonial

Ovamboland’ (2008) 3 Journal of Namibian Studies: History Politics Culture 7; Asiwaju (n 17).

19 ‘Was the Colonial Map of Africa a Bad Thing? And If so, What Should Be Done About It Now?’

<https://www.bu.edu/africa/files/2013/10/Colonial-map-of-Africa-bad.pdf> accessed 12 June 2021.

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the relative low population at the time.20 Many pre-colonial African communities often migrated

if their circumstances such as land productivity changed. For this reason, pre-colonial African

boundaries were therefore also fluid.

The scramble for Africa started in the late 19th century and crystalised through the partitioning of

Africa at the Berlin conference from November 1884 till February 1885.21 While the Berlin

conference mainly discussed the boundaries of Central Africa (the Congo Free State), it also laid

down the principles that would be used among Europeans to divide the African continent.22 The

rationale behind laying these principles was to end conflict among the European States and the

United States of America (USA), which characterised the countries’ scramble for African

territories before the conference.23

The colonial partition of Africa and subsequent colonial delimitation bear four cross-cutting

characteristics. Firstly, the colonial boundaries were based on shifting interests and rivalries

between European countries, without factoring direct consultation and participation of the

indigenous communities and their interests.24 Consequently, these boundaries placed many

20 Dobler (n 18).

21 Muriel Evelyn Chamberlain, The Scramble for Africa (Routledge 2014).

22 Stelios Michalopoulos and Elias Papaioannou, ‘The Long-Run Effects of the Scramble for Africa’

(2016) 106 American Economic Review 1802.

23 ibid, The Berlin conference included 13 European powers and the United States. The 13 European

powers are: Austria- Hungary, Belgium, Denmark, France, Germany, Italy, Netherlands, Ottoman

Empire, Portugal, Russia, Spain, Sweden- Norway, United Kingdom, and the United States.

24 Tchioffo Kodjo, ‘Ending Conflicts, Sustaining Peace - African Union - Peace and Security Department’

(African Union,Peace and Security Department) <http://aubis.peaceau.org/en/> accessed 17 June 2021.

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Africans within countries that do not represent their culture and similar systems, a contradiction

that still troubles many to-date.25 Secondly, most of the colonial boundaries were poorly defined.

Thirdly, the colonial boundaries themselves were fluid and kept changing as a result of various

factors such as geo-political outcomes. Fourthly, the location of strategic natural resources in

cross-border areas posed additional challenges.26

Nonetheless, whereas Africa’s founding fathers had the option of pursuing the re-demarcation,

they opted to retain the colonial boundaries.27 This is also despite the fact that in several areas

across the world, national borders have shifted over time to reflect ethnic, linguistic, and

sometimes religious divisions.28

The decision by Africa’s fore fathers to retain the colonial boundaries is anchored on two main

reasons. Firstly, they expressed reservations that re-drawing of the boundaries would more likely

cause a more violent disruption than the alternative retention of the colonial boundaries.29 This

includes the fact that many post-colonial States would effectively be fundamentally altered. To

25 E Papaioannou and S Michalopoulos, ‘The Scramble for Africa and Its Legacy’.

26 Kodjo, ‘Ending Conflicts, Sustaining Peace - African Union - Peace and Security Department’ (n 24).

27 African Union, ‘Speeches and Statements Made at the First Organisation of African Unity (OAU)

Summit, 1963 | African Union’ (African Union) <https://au.int/en/speeches/19630508/speeches-and-

statements-made-first-organisation-african-unity-oau-summit-1963> accessed 29 September 2020.

28 Emmanuel N Amadife and James W Warhola, ‘Africa’s Political Boundaries: Colonial Cartography,

the OAU, and the Advisability of Ethno-National Adjustment’ (1993) 6 International Journal of Politics,

Culture, and Society 533.

29 African Union (n 27).

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them, the fundamental unity of Africa was more paramount.30 Secondly, many of the countries had

entered into agreements with their former colonial masters that they would retain the colonial

boundaries. To many of these founding fathers, despite their personal and ideological conflicts

against colonialism, the practical factors that compelled their compliance with this commitment

such as facilitation of national programmes by the former colonial masters far outweighed the

factors calling for breach.31

This therefore acknowledges that the adoption of colonial boundaries by African founding fathers

is not the perfect scenario. Their underlying parameters expose the best alternative under the

prevailing circumstances. A common thread emerges from these considerations by the founding

fathers on how to treat colonial boundaries post-independence: that Africa’s common interests are

paramount to any individual African State and that these interests are best achieved through a

united Africa.32 These principles espouse that no State can optimally achieve its goals in relation

to its claims over internationally disputed maritime areas or resources without the cooperation of

the co- disputants.33

30 David Mathew Chacha, ‘Julius Nyerere: The Intellectual Pan-Africanist and the Question of African

Unity’ (2002) 5 African Journal of International Affairs; Julius Nyerere, ‘Freedom and Unity’ [1964]

Transition 40.

31 Garth Abraham, ‘“Lines Upon Maps”: Africa and The Sanctity of African Boundaries’ (2007) 15

African Journal of International and Comparative Law 61.

32 Julius K Nyerere, ‘A United States of Africa’ (1963) 1 The journal of modern African Studies 1.

33 Leigh L Thompson, Jiunwen Wang and Brian C Gunia, ‘Negotiation’ (2010) 61 Annual review of

psychology 491.

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This scepticism of the role of external players in Africa’s boundary disputes is buttressed by the

devastating experiences arising from implementation of ICJ disputes regarding maritime

boundaries in Africa. In the case of Cameroon v. Nigeria; Equatorial Guinea intervening, by its

Judgment issued on 10th October 2002, the ICJ gave ownership of the disputed oil-rich Bakassi

peninsula to Cameroon over Nigeria.34 This decision had significant adverse geo-political, socio-

economic and security implications against Nigeria and its citizens, especially those that had

directly invested in the area.35 Such challenges also affect ongoing cases as experienced in the

course of the hearing of the Somalia v. Kenya dispute before the ICJ where diplomatic tiffs were

witnessed in the course of the case. For instance, in February 2019, Kenya summoned its

ambassador to the Federal Republic of Somalia and instructed the ambassador of Somalia to Kenya

to depart to Somalia for consultations, citing that this was a consequence of a decision by the

Government of Somalia to auction off oil and gas blocks in Kenya’s maritime territorial area that

borders Somalia.36 This area was the subject of then ongoing case of Somalia v Kenya instituted

34 ‘Judgments | Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:

Equatorial Guinea Intervening) | International Court of Justice’ (n 14).

35 AT Aghemelo and S Ibhasebhor, ‘Colonialism as a Source of Boundary Dispute and Conflict among

African States: The World Court Judgement on the Bakassi Pennisula and Its Implications for Nigeria’

(2006) 13 Journal of Social Sciences 177.

36 Ministry of Foreign Affairs (MFA), ‘Kenya Summons Its Ambassador to the Federal Repulic of

Somalia and Instructs the Ambassador of Somalia to Kenya to Depart to Somalia for Consultation’

<https://www.mfa.go.ke/?p=2516> accessed 12 June 2021.

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by Somalia at the ICJ in the year 2016. 37 On 14th December 2020, Somalia issued a statement that

it would cut diplomatic ties with Kenya, citing violations of Somalia’s sovereignty.38

The challenges highlighted from the cases of Cameroon v. Nigeria; Equatorial Guinea intervening

and Somalia v. Kenya over maritime boundary disputes are not unique to maritime boundary

disputes. Studies of national land boundary disputes in Africa such as: Algeria’s experience in

boundary demarcation with several of its neighbouring States, the Burkina Faso-Mali post-conflict

nature of the ICJ decision, and maintenance of the international boundaries of Mozambique, have

shown have shown similar challenges as the African maritime boundary disputes.39 These factors

therefore call for a familial form of dispute resolution in dealing with maritime boundary disputes

in Africa.

Because the colonial boundaries were mainly in relation to land, and given that the 1982 UNCLOS,

delimitation of maritime boundaries discussed in the next section is anchored on baselines whose

measurements flow from land, the colonial boundaries continue to haunt Africa maritime

boundaries to date.40

IV. Framework for Delimitation of the CS and the EEZ under the UNCLOS 1982


Court of Justice’ (n 2).

38 ‘Somalia Says It Will Cut Diplomatic Ties with Kenya | Voice of America - English’

<https://www.voanews.com/africa/somalia-says-it-will-cut-diplomatic-ties-kenya> accessed 12 June

2021.

39 Aghemelo and Ibhasebhor (n 35).

40 Amadife and Warhola (n 28).

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The 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS) establishes five

main maritime zones with distinct legal statuses being: Internal Waters, Territorial Sea,

Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas. Each of these zones also

confer varying rights and obligations upon States and non-state maritime users and stakeholders,

which often overlap leading to boundary disputes. Due to time limitations, this article focuses on

the CS and EEZ.

The 1982 UNCLOS, is an international agreement that resulted from the third United Nations

Conference on the Law of the Sea (UNCLOS III).41 It is composed of 320 articles and 9 annexes.

It deals with various aspects of the law of the sea, including: a binding procedure for settlement of

disputes between States; conservation and management of living marine resources; economic

jurisdiction; a framework for delimitation of maritime boundaries; legal status of resources on the

seabed beyond the limits of national jurisdiction; navigational rights; passage of ships through

narrow straits; protection of the marine environment; a marine research regime; and territorial sea

limits.42

The definition of the CS and the criteria by which a coastal State may establish the outer limits of

its CS are set out in article 76 of the 1982 UNCLOS.43 Additionally, the Third United Nations

41 ‘Overview - Convention & Related Agreements’

<https://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm> accessed

18 September 2020.

42 ibid.

43 ‘1982 UNCLOS’ (n 8), article 76.

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Conference on the Law of the Sea (UNCLOS III) adopted on 29 August 1980 a "Statement of

Understanding" which is contained in Annex II to the Final Act of the Conference.44 Article 76 of

the 1982 UNCLOS uses the term CS as a juridical term.45 According to this provision, the CS of

a coastal State comprises the submerged prolongation of the land territory of the coastal State - the

seabed and subsoil of the submarine areas that extend beyond its territorial sea (TS) to the outer

edge of the continental margin, or to a distance of 200 nautical miles (nm) where the outer edge of

the continental margin does not extend up to that distance.46 In exceptional circumstances, a

coastal State can extend its CS under certain conditions beyond 200 up to a maximum of 350 nm.47

The definition of the EEZ is set out under article 55 of the 1982 UNCLOS. Article 57 sets the

maximum outer limits of the EEZ at a maximum of 200 NM.

Article 83(1) and article 74 (1) of the 1982 UNCLOS establishes that delimitation of the CS and

EEZ respectively between States with opposite or adjacent coasts shall be effected by agreement

on the basis of international law, as referred to in article 38 of the statute of the ICJ, in order to

achieve an equitable solution. The International law recognised in article 38 of the statute of the

ICJ is: (a) international custom, as evidence of a general practice accepted as law; (b) the general

44 ‘The Final Act of the Third United Nations Conference on the Law of the Sea’

<https://www.un.org/Depts/los/clcs_new/documents/final_act_annex_two.htm> accessed 12 June 2021.

45 ‘Continental Shelf - General Description’

<https://www.un.org/Depts/los/clcs_new/continental_shelf_description.htm#definition> accessed 12 June

2021.

46 ‘1 Nautical Miles to Kilometres Conversion - Convert 1 Nautical Miles to Kilometres (Nm to Km) -

Distance and Length Conversion’ <https://www.theunitconverter.com/nautical-miles-to-kilometers-

conversion/1-nautical-miles-to-kilometers.html> accessed 13 October 2021 The nautical mile symbolised

as ‘M’, NM or nmi] is a unit of length, defined as the equivalent of 1.852 kilometres.

47 ‘1982 UNCLOS’ (n 8), article 76 paragraphs 4 to 7.

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principles of law recognized by civilized nations; (c) subject to the provisions of Article 59, judicial

decisions and the teachings of the most highly qualified publicists of the various nations, as

subsidiary means for the determination of rules of law.48 Nevertheless, the stated sources of law

shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree

thereto.49If no agreement can be reached within a reasonable period of time, the States concerned

shall resort to the procedures provides for in Part XV of the 1982 UNCLOS.50 These procedures

relate to settlement of maritime disputes.

Pending agreement the States concerned, in a spirit of understanding and cooperation, must make

every effort to enter into provisional arrangements of a practical nature and, during this transitional

period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall

be without prejudice to the final delimitation.51 Where there is an agreement in force between the

States concerned, questions relating to the delimitation of the CS and EEZ shall be determined in

accordance with the provisions of that agreement.52

It is apparent that the legal framework under article 38 of the ICJ Statute is relatively wide and

analysis of the 1982 UNCLOS maritime delimitation framework exposes its vagueness. The

framework is left to the interpretation good will of state parties. This ambiguity in the provisions

48 ‘Statute of the Court | International Court of Justice’ <https://www.icj-cij.org/en/statute> accessed 13

August 2020, article 38 (1).

49 ibid, article 38(2).

50 ‘1982 UNCLOS’ (n 8), article 83 (2) and article 74 (2).

51 ibid, article 83(3) and article 74(3) respectively.

52 ibid, article 83 (4) and article 74 (4) respectively.

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creates a major avenue for disputes between States. While noting that the nature of the provisions

of the 1982 UNCLOS maritime boundary delimitation framework mirrors the attitude of States

towards externally binding processes, this chapter critiques the 1982 UNCLOS’ normative

approach to maritime boundary delimitation. Africa would be the most suitable author of the

solution to her maritime boundary problems. It further proposes that the solutions ought to be more

prescriptive. It is for this reason that this article calls for more thought on the most productive

approach to maritime boundary disputes in Africa.

With respect to delimitation of the CS and EEZ, the 1982 UNCLOS provides precise limits of

delimitation. However going by the number of maritime boundary disputes arising from CS and

EEZ delimitation, it is clear that the delimitation criteria is imprecise.53 Therefore, delimitation of

boundaries may not be the most effective default mode of dealing with maritime boundary disputes

in Africa.

An important step toward making boundaries responsive to African needs is to establish an African

based legal and institutional framework which can centralize information on African CS and EEZ

delimitation problems, understand the underlying factors, assess the problems against the

underlying factors and the African vision, and facilitate the peaceful and sustainable resolution of

53 ‘Cases | International Court of Justice’ <https://www.icj-cij.org/en/cases> accessed 26 April 2019;

‘Www.Itlos.Org: List of Cases’ <https://www.itlos.org/en/cases/list-of-cases/> accessed 17 September

2020.

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such disputes.54 The African Union (AU) is the only institution with the both the capacity and

mandate to do this.55

V. African Solutions

Peaceful and sustainable delimitation of the CS and EEZ delimitation in Africa and dealing with

existing disputes on this requires a purely African based solution anchored on cooperation between

states on a bilateral or, where necessary, multi- basis. These processes should be driven by the

African Union.56 Any other approach, including the 1982 UNCLOS framework encounters

challenges such as suspicion and rejection.

The African Union Border Program (AUBP) is such an available vehicle. The AUBP was

established in January 2007 by the African Heads of States AUBP’s objectives are: to complete

the delimitation and demarcation of African borders, to encourage and facilitate cross-border

cooperation through joint planning and development of shared cross-border areas and to build the

border management capacity of Member States in support of pragmatic border management and

regional integration. The initial goal for AUBP was delimitation and demarcation of African

boundaries by 2017. The deadline was extended to 2022. Given its foundation and domicile within

the AU, the AUBP understands the intricacies of Africa’s history and long-term vision in a way

54 Richard A Griggs, ‘The Boundaries of an African Renaissance’ (1997) 5 IBRU Boundary and Security

Bulletin 64.

55 ibid.

56 Magali Dauvin and David Guerreiro, ‘The Paradox of Plenty: A Meta-Analysis’ (2017) 94 World

Development 212.

17

that would be difficult for umbrella global players and instruments such as the 1982 UNCLOS can

comprehend.

Additionally, the AUBP has demonstrated success in facilitating the delimitation of CS and EEZ

by agreement between: the Comoros and Mozambique, the Comoros and Tanzania, the Comoros

and Seychelles, as well as between Seychelles and Mauritius have been concluded.57

VI. Conclusion

From the foregoing discussions, this article concludes that delimitation of Africa’s CSs and EEZs

has often led to divisive boundary disputes. Nevertheless, these zones of great resource have the

potential for being strong bridges to Africa’s peace, unity and sustainable development. In this

regard, the article draws out the following specific conclusions:

First, territorial ownership is flattering. This is because it comes with a great wealth of diverse

resources. Second, the 1982 UNCLOS framework, specifically article 83 and 74 provide the

general principles of delimitation of the CS and EEZ respectively. These provisions call for

delimitation by peaceful means. CS and EEZ delimitation under the 1982 UNCLOS is pegged on

land boundaries. Africa’s land boundaries are inherited colonial boundaries that neglected and

contradicted relevant indigenous factors. As such, the use of Africa’s existing land boundaries as

57 Tchioffo Kodjo, ‘The African Union Welcomes the Signing by Seychelles, the Comoros and Tanzania

of Agreements on the Delimitation of Their Maritime Borders-African Union - Peace and Security

Department’ (African Union,Peace and Security Department)

<https://www.peaceau.org:443/en/article/the-african-union-welcomes-the-signing-by-seychelles-the-

comoros-and-tanzania-of-agreements-on-the-delimitation-of-their-maritime-borders> accessed 17 June

2021.

18

the base point for maritime delimitation under the 1982 UNCLOS present significant inherent

limitations. Consequently, delimitation of maritime boundaries in Africa through the 1982

framework picks old wounds thereby playing a divisive role. This often translates to security

challenges.

Third, is that maritime disputes in Africa cannot be effectively resolved through adjudicative

mechanisms nor history. The article finds the need for understanding the underlying backdrop of

maritime boundary disputes as critical to resolving the dispute. By their inherent nature,

adjudicating institutions encounter significant jurisdictional as well as capacity limitations in this

regard. There is therefore need for Africa to prioritise a more cohesive approach to delimitation of

maritime boundaries in Africa.

Finally, this article calls for a formal adoption and deliberate implementation of a determinate

delimitation and management criteria as a potential way of mitigating boundary disputes in Africa,

including maritime boundaries. The article identifies the AUBP as a ready and useful vehicle

through which Africa’s maritime agenda with respect to the CS and EEZ can be peacefully aligned

and implemented.

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Documents

Examining the Role of Delimitation of the Continental