Ownership of the sea: evaluating how culture affects the success of dispute resolution techniques in resolving maritime boundary conflicts

Abstract

This article examines how culture affects the success of different alternative dispute resolution (ADR) mechanisms in resolving maritime boundary disputes. In order to measure the role that culture plays for the nations in conflict, the following explores nations’ bilateral diplomatic history and Hofstede’s Power Distance (Hofstede’s Cultural Dimensions is a framework to evaluate countries’ cultural differences. This research focuses on the Power Distance dimension, which is further explained beginning on page 14) to determine what is the best means to resolve the dispute. Considering the wide range of dispute resolution techniques available to solve maritime conflicts, negotiation seems to be the most efficient means to resolve maritime boundary disputes, as it retains the bond of the parties in conflict. This was seen with the maritime boundary delimitation case between the low power distance countries of Australia and New Zealand, who preserved their strong relationship while determining who has jurisdiction over what. However, negotiation may be idealistic in a situation where states have a history of disagreements or political tension. Such is the situation between Eritrea and Yemen, where arbitration was ideal. Conversely, despite the aforementioned arbitration being between two high power distance countries, arbitration between other nations within a similar power distance bracket could not be as accepting. As seen within the landmark South China Sea case between the Philippines and contested China, the court arbitration result may be favourable to one country, but not by all parties involved. These case studies provide useful examples of how the cultures of the nations in conflict affect what ADR technique is appropriate in resolving maritime boundary disputes and the outcome of the resolution.

INTRODUCTION

Many people first become interested in the laws of the sea after watching films like Pirates of the Caribbean. While getting caught up in the action and romance, enjoying the tales of fictional pirates, one may uncover hints of historical fiction that underlie the narrative. Soon after, intrigue regarding trade treaties and negotiations may arise when these are also discussed in the film. Viewers may wonder: if the sea is so vast and boundaries are hard to determine, how are the laws of the sea upheld? Maritime law is centuries old, established during the early developments of aquatic trade routes. Since the establishment of such laws, nuances over oceanic ownership have grown due to issues such as proprietorship claims and climate change.¹ After all, maritime boundaries are difficult to establish because the seas are continuously occupied and desolate areas make it difficult to distinguish whose sea is whose. Disagreements frequently arise.

Marine boundaries are man-made concepts that designate ownership of a region to a particular state. They are essential for delegating fisheries, environmental protection duties, oil and gas exploration rights, and other economic matters concerning the sea.² Territory is power, and the centuries-old idea that the ocean would remain part of the global commons has turned to states vying for ownership of the sea. As ‘more than half of all maritime boundaries are still disputed, across all continents,’³ one must understand the long-lasting history and reasoning behind these disputes, how these cases are resolved, and what affects the success of different kinds of resolution. These cases are sensitive, as territory ownership accounts for the geopolitical, economic, and nationalistic pride of countries. An important question is therefore raised: historically, what has been the most successful dispute resolution technique to resolve maritime boundary disputes and how does culture play a role in the varying effectiveness of alternative dispute resolution (ADR) techniques?

When we think of two parties resolving legal disputes, we often jump to thinking about litigating through courts. However, litigation is often not applicable to maritime disputes, as abiding by a particular court system may not be fair for all parties present. A set, universal rule of law does not always account for the cultural nuances behind a dispute. Courts recognize this issue and, when deemed appropriate, urge parties to settle a case through various methods rather than abiding by the order of a court. One such method, ADR, involves negotiation, conciliation, mediation, and arbitration. ADR adheres to established laws within a particular maritime dispute in a timely manner, carefully considering the concerns and maritime protocols of all international parties present. As ADR includes a wide array of different techniques and strategies, and their success may vary based on historical background and culture, it is important to examine how culture intersects with the effectiveness of these resolution methods. Previous work has not sufficiently presented which technique may be more or less effective in the case of maritime boundary disputes through a cultural lens.

After an overview of maritime dispute resolution techniques and evaluations of the effectiveness of each, this article will argue that shared culture, such as historic diplomatic ties between the nations in conflict and Hofstede’s Power Distance Index, dramatically affects the success of different ADR techniques. The subsequent section will detail the case study methods behind the research and will be followed by three case studies. Through utilizing a mixed-method research approach, comprised of one expert interview and the investigations of relevant case studies, the following examination relies on qualitative data and analysis to dissect the role countries’ histories and cultures play in resolving a maritime boundary dispute. The cases will include the negotiation between Australia and New Zealand, the arbitration between Eritrea and Yemen, and China’s refusal for arbitration with the Philippines in the South China Sea. In order to test how culture affects the outcome of a maritime boundary resolution and what dispute resolution mechanism ought to be used, the analysis will pay particular attention to the importance of culture in maritime boundary disputes, accompanied by research on efficient dispute resolution techniques. The study finds that nations in conflict that have strong diplomatic relations prior to their attempts at achieving solvency and have a low power distance, according to Hofstede’s Cultural Dimensions, generally find success in resolving the conflict through negotiation. However, nations in a dispute with historical diplomatic tensions and high power distance should defer to arbitration. It should also be noted that all maritime boundary disputes must be assessed on a case-by-case basis, as these principles do not always apply.

MARITIME DISPUTE RESOLUTION TECHNIQUES

Changes in sea boundaries due to natural impacts or unclear oceanic borders have led states to disagree on their ownership of maritime space.⁴ While it is unclear exactly how many maritime disputes there have been over time, scholars largely agree that only half of them have been resolved.⁵ There is a substantial amount of research that details the uses of law to resolve maritime boundary disputes. Maritime dispute resolution ruling bodies, such as the Law of the Sea (LOS), provide a framework in which to mitigate these conflicts.

LOS

A large body of interstate property disputes and arguments about whether litigation or a ‘creative resolution’ outside of international laws used by courts and tribunals should be applied to those disputes led to the creation of the United Nations Convention on Law of the Sea (UNCLOS).⁶ Since its establishment in 1982, states have successfully used UNCLOS as a ground to survey many international boundary disputes through negotiation. These settlements conclude in a mutual agreement or the result of an ‘international adjudication process in which a third-party resolves a boundary dispute.’⁷ Furthermore, LOS created four venues to settle bilateral disputes. In time, many realized that judicial settlements alone may not be impartial. This had put a greater emphasis on the use of third-party systems that would be less biased towards a state. For example, research shows that ‘relevant circumstances’ behind maritime boundaries—such as geographical issues, economic factors, historical rights and the conduct of parties, security interests, navigational aspects, environmental considerations, and sociocultural matters—can affect the ‘objectivity’⁸ of cases. As there is such a broad way that maritime conflicts can occur, ocean governance may have to reevaluate the effectiveness of court-based decision-making. Litigation, which is resolution through court systems, works in a legal framework that limits innovative solutions. Additionally, tribunals only evaluate the cases which they deem important, meaning that even if a case is of utmost importance to a country, the case can be overlooked by the court if it seems lesser than another.⁹ Beyond court systems, creative means to resolve maritime disputes are needed.

In addition to the aforementioned questions of bias, marine boundary disputes are becoming more unclear due to problems such as climate change and geopolitical disputes, heightening the question of whether litigation is the best mechanism for solving maritime disputes.¹⁰ There are concerns that litigation ‘is a fight unto death with severe economic, psychological, and spiritual harm done to parties.’¹¹ With this view, those who are hesitant to settle disputes not only believe that litigation could be more long-lasting and expensive, but might find that this system does not approach cases with cultural sensitivity. An example of this was the dispute between Saint Vincent and the Grenadines, a small Caribbean Island, and the Kingdom of Spain over the arrest of the MV Louisa.¹² The MV was a Saint Vincent and the Grenadines research vessel that was allowed to conduct research in Spain by Spanish authority, but Spanish officials commandeered the vessel, claiming it was polluting the water, after it had been swelling too long in the docks. This dispute resorted to Saint Vincent and the Grenadines, whose GDP is 700 million, paying roughly 500,000 Euros to Spain (an estimated 500,000 USD in cost).¹³ The playing field, however, was never even; Spain has a GDP of 1.35 trillion. As a result, this charge was more costly for Saint Vincent and the Grenadines. Maritime boundary scholars, such as Ásgeirsdóttir & Steinwand, agree that these costs likely could have been lessened if the dispute was resolved through a more flexible resolution process other than litigation. While litigation has its uses—particularly in terms of practicality for cases with a similar legal system or national structure—its rigid process often does not account for whether states could handle the costs of the decisions made.

ADR techniques instead of litigation

ADR case filings have grown in the last decade due to the rising need for speedy resolutions outside of court, as seen specifically within maritime boundary disputes.¹⁴ After all, it is cheaper, quicker, and less complicated than appealing to a court. Essentially, ADR has the power to ‘untie the hands of states.’¹⁵ By taking account of the quarrelled nations’ cultural, economic, and political situations, ADR treats cases with sensitivity that litigation cannot. For instance, countries with disproportionately smaller economies cannot afford equitable litigation to that of parties with higher revenue, as outlined above. However, a few general critiques of ADR include certain mechanisms’ non-binding effect, the potential for bias, and the lack of appeals process.¹⁶ Yet, many ADR scholars largely believe ADR properly accounts for such disparities. They find that those involved in an ADR process generally understand the ‘economic and strategic interests’ involved that could influence biased decision-making and navigate around such hurdles.¹⁷ Due to these factors, it is no wonder that ADR has been on the rise. The following sections detail the four main types of ADR and their effectiveness: negotiation, conciliation, mediation, and arbitration.

Negotiation as an ADR technique

ADR is comprised of several different techniques, with one of the most well-known ones being negotiation. States first gravitate towards negotiation because this process is flexible compared to the binding nature of litigation.¹⁸ Negotiation is a voluntary process without a third-party interjection, typically having a high success rate. Parties can shape the negotiation to how they see fit, collaborating on a shared decision through arranged talks outside of a restrictive legal framework. Bilateral negotiations often result in a treaty that states jointly craft out of mutual respect. The Torres Strait Treaty, signed between Australia and Papua New Guinea, is a prime example of nations setting a guideline on how to respect their common border. This treaty not only defines oceanic boundaries, but also ensures that the way of life of natives of the surrounding areas are protected and organizes commercial fishery regulations. Due to dutiful collaboration, this treaty is seen as ‘one of the most creative solutions’ for an international boundary dispute, directly ‘touching on the lives of traditional inhabitants’.¹⁹

However, one of the shortcomings of negotiation is that continuous objections to a mutual decision can lead to a party leaving the negotiation, which they are allowed to do when appropriate. Furthermore, when domestic and international obstructions interfere with one or both of the parties, such as differing cultural values or laws, the process becomes overlooked.²⁰ The negotiation process could take years for any solution to form, making it a potentially costly route that could increase interstate tension. There are also many disputes with states that require a third-party to facilitate a collaboration resolution outside of litigation because they cannot find any common ground and refuse to negotiate. Although negotiation is typically the first course of action states take when trying to resolve delimitation of maritime boundaries, other means of dispute resolution come into play when negotiation fails. Even so, negotiation will remain key to ADR even if a resolution calls for a third-party facilitator, since they will still need to discuss and reach a decision. While negotiation may not be the only means of ADR used when trying to achieve solvency in maritime boundary disputes, it will be a recurring mechanism.

Conciliation as an ADR technique

Conciliation, another ADR strategy, is often thought to be a timelier reconciliation process in comparison to others, yet it is rarely used, purely due to states not being interested in this mechanism. The goal of conciliation is to improve the relationship between two nations in disagreement through an informal process.²¹ In this ADR process, the parties that fail to reach a mutual conclusion resort to turning to a third-party to offer non-binding unbiased solutions, which the parties can jointly agree to be legally binding.²² The infamous Jan Mayen Case, a dispute between Norway and Iceland over ownership of the waters off the Jan Mayan Island, can attest to the benefits of conciliation within a maritime conflict.²³ As seen within the Jan Mayan Case, the countries involved in the conciliation had good diplomatic relations that set a respectable foundation for this resolution process. After all, conciliation is rooted in strengthening two nations’ historically friendly relationship. Overseen by legal bodies such as the United Nations’ Conciliation Commission, both parties must volunteer for the conciliation. Reaching decisions via conciliation is viewed as a more peaceful, diplomatic process that tends to pave the way for future peaceful interactions between the respective parties. However, if parties do not have former diplomatic relations and are involved in a conflict, the conciliation process is not a proper mechanism due to the intentions behind it. Participants can also be wary of trusting a third-party to decide due to the increase in legal creativity used in conciliation.²⁴ As both parties would need to agree upon the conciliator’s decision in order to make it legally binding, conciliation comes with the risk that the proposed solution would not be agreed upon. Despite the flexibility and goal to improve nations’ relationships that conciliation provides, a lack of former camaraderie between nations considering conciliation or uncertainty surrounding the final result ultimately repels states from employing this mechanism.

Mediation as an ADR technique

Mediation, another means of ADR, is the process of two parties reaching an agreement with an impartial third-party, the mediator, facilitating the conversation. Unlike negotiation and conciliation, which is rooted in increasing a working relationship, mediation serves to resolve an existing dispute.²⁵ Separate from the role of the conciliator, a mediator does not provide a solution to the conflict, but instead facilitates conversations to ensure that the parties involved express their perspectives in the dispute and collaboratively reach their own resolution. It generally has a successful rate in solving international conflicts on a corporate level, but fairs poorly when it comes to maritime boundary disputes, which operate between governments. The general consensus is that mediation, within the context of maritime boundary disputes, usually results in a stalemate.²⁶ For example, the Belize-Guatemala Border Dispute is often cited as a failure of mediation. It began in mediation with the Permanent Council of the Organization of the American States, but ultimately was resolved with the LOS in 2015 when the parties failed to come to a resolution that would not undermine the militaristic and political stability of either country.²⁷ However, if parties have shared goals on what the outcome of the mediation should look like, mediation could work in favour of settling the dispute. When it comes to maritime boundary disputes, it seems that the parties involved need a third party to interject in the conflict rather than merely direct the conversation due to the diplomatic sensitivity between states. If the parties fail to reach a mutual agreement within this process because of cultural tensions, they ought to resort to another process in which the third-party can make the decision.

Arbitration as an ADR technique

There has been an increasing number of maritime disputes being settled by arbitration, a process where a decision is concluded by a neutral arbitrator.²⁸ Arbitration uses conciliation’s principle of the third-party making the final binding solution, as well as mediation’s premise, in which parties resort to this method of ADR when caught up in a dispute that the parties involved cannot independently resolve.²⁹ It is a centuries-old process, where contracts are of utmost importance. Instead of using a court of law, states submit to the facilitation and the final assessment of the arbitrator is how the conflict will be resolved. The Maritime Arbitral Tribunal, created by the LOS Convention of 1994, helps parties navigate the maritime arbitration process.³⁰ Before the arbitration, the parties chose five of the tribunal’s arbitrators to preside over their case. The extensive history of arbitration cases includes the 2015 UK and Mauritius arbitration, in which the Permanent Court of Arbitration in The Hague served as the intermediatory.³¹ Centred around the disputed Chagos Archipelago, the arbitration was conducted 5 years after its establishment. While arbitration is often cited as being faster than litigation, it could take years to reach a resolution. Another cited fault is that the arbitration process is ‘based on principles of international law’,³² making it very similar to the adjective litigation process. Although tribunals conduct arbitration in a structural way that resembles a court of law, states fail to understand that it is a distinct process that affords greater flexibility.³³ Unlike litigation, arbitration would be conducted in an informal setting, in which the arbitrator takes careful note of any form of negotiation between the parties during this process and tries to integrate their judgments in the final ruling. The flexibility of this process allows the arbitrator to assess any underlying cultural boundaries or historical tensions between the disputed countries, needed characteristics to discern how to mitigate a case and reach a resolution.

Understanding the culture framework within maritime disputes

People settle conflicts in different ways. When assessing how to resolve these disagreements, it is important to understand the underlying factors that affect how the dispute could be resolved and the outcome. Everyone has an implicit bias that stems from their surroundings.³⁴ It is important to acknowledge this when trying to achieve solvency, as single mindsets can create barriers when attempting to reach a mutual agreement. Particularly within international disputes, differentiating cultures could increase underlying strains between parties. Misunderstandings of others’ thought processes and decision-making could affect the efficiency of a resolution process. After all, ‘[c]ross-cultural conflict is knowing as much about the other as knowing oneself’,³⁵ a needed awareness within international disputes. By understanding the cultural implications within a conflict, the parties involved can be more objective when searching for a conclusion.

In order to understand the role of culture within disputes, it is important to first define culture in respect to maritime-related conflicts. Based on the works of scholars that focus their research on cultural competency, culture encapsulates the respect of a state’s ties to heritage and customs.³⁶ Governments understand that power is not the only matter at stake in oceanic property disputes; internal levels of patriotism will be inevitably affected by the outcome. Furthermore, a nation’s communication styles, social norms, and laws are largely informed by its culture that has been shaped by historical experiences. States could lay claim to an oceanic boundary due to historic rights within their own society, such as ancient fishing communities and ancestral ties to coastal reefs, but could be disagreed on by another state who claims the same territory. Thus, culture adds a layer of sensitivity within such disputes. To foster cooperation between countries during maritime border disputes, it is imperative that their respective cultures are taken into account.

The prevalence of culture can be distinguished within every international dispute. Specifically regarding maritime conflicts, safeguard customary habitual ‘ocean-related living practices are recognized by international legal instruments’.³⁷ LOS respects the historical bases of oceanic territory, understanding the value of culture for a state’s identity. With this considered, ocean boundaries are argued within the context of cultural nuances. These allegations begin with claims or counterclaims from a state, stemming from disputes such as ‘ancient, historic, original title; traditional boundaries; and equitable considerations’.³⁸ International disputes must accordingly be handled with regards of global or foreign ‘legal norms and doctrines’³⁹ to settle conflicts. Particularly, past rights and the behaviour of parties indicate acknowledgement of the ‘modus vivendi (ie way of living) as evidencing a tacit boundary or an agreement between parties’.⁴⁰ Legal specialists must keep in mind that ‘laws that prohibit or place severe limits’⁴¹ can hinder a resolution on a conflict derived from historic differences. As territory could be a zero-sum game, in which one state’s sovereignty could prevail over the other due to ownership, resolving disputes must be done with care to ensure that both parties are respected. Culture is a means to preserve a nation’s identity, making it key in unravelling maritime boundary disputes, ‘infused with symbolism and intangible characteristics’.⁴² The following analysis will examine the cultural history between states in conflict through the examination of historic tensions, such as friendly relations or poor diplomacy, and Hofstede’s Cultural Dimensions Power Index.

Historic tensions and diplomatic ties stemming from nations’ culture can affect the dispute resolution process. All border countries have a history with each other, whether it is rooted in hostility or camaraderie. It is difficult to ignore the ‘mental and psychocultural roots’ of past violence between nations.⁴³ Many theorists are researching the role of ‘intangibles that resist quantification’, such as historic ‘sentiments, beliefs and values’ of nations, in creating international conflict.⁴⁴ It is essential that the backgrounds of the states in conflict are properly grasped to understand underlying tensions. Moreover, resolution of a dispute rests on nations addressing their shared history and any past cultural insensitivity or similarities to efficiently produce solvency.

The second cultural lens this research uses is the notable Hofstede’s Cultural Dimensions, particularly the Power Distance Index. This index was created by Dutch psychologist, Geert Hofstede, who surveyed over 116,000 IBM employees from over 40 nations to create a framework in which to evaluate culture.⁴⁵ The assessment of culture is separated into five categories: individualism vs. collectivism, power distance, masculinity vs. femininity, uncertainty avoidance, and long-term vs. short-term avoidance. Nations are ranked on a scale of 0–100 to determine where they fall in each one of these categories. As maritime ADR involves dialogue between those in power, this research homes in on evaluating the power distance of nations in dispute, which refers to the level of hierarchy within a culture.⁴⁶ Low power distance countries stress the importance of equality amongst their people. Citizens are more likely to challenge authority and generally value collaboration amongst peers. High power distance cultures, however, have great respect for their people in power.⁴⁷ In these cultures, those with similar social statuses communicate with each other, differing judgments of decisions to the person with the highest formal title. By evaluating power distance of a nation, we can better understand how decision-makers collaborate with other parties involved in the conflict resolution.

Why does this matter?

The relevance of maritime boundary disputes will continue to prevail. For example, although Ukraine is currently defending their land from Russia, there has been a long-lasting dispute between the countries over the Black Sea.⁴⁸ Ukrainians argue that the livelihoods of fisherman are not the sole matter of this dispute, as they are concerned with the ‘underwater cultural heritage’⁴⁹ that ought to be preserved. The matter is yet to be resolved, and while settling a maritime boundary delimitation peacefully during a war would most likely produce poor results, researching past cases could help determine the best means to resolve it when the time comes.

As many maritime boundary disputes are still not resolved, it is important to study past cases to discover hidden lessons that could be applied to ongoing conflicts. More so, as time goes on, ‘resource pressures, international commodity prices, and new technology are exogenous to the ocean’.⁵⁰ Maritime boundary cases will continue to grow. When a maritime conflict occurs, participants in the dispute should observe the relation of culture within the conflict to better understand the premise of the situation. The assessment of dispute resolution techniques in relation to culture could help equip negotiators on how to efficiently reach mutual solvency. The faster nations gain clarity over what they have jurisdiction over, the quicker they can take care of their nautical property, such as by maintaining their ancestral heritage tied to the sea, furthering trade, or enhancing marine conservation.

HYPOTHESIS

The research developed on different ADR techniques and the various factors that lead to their successes has taken decades to develop. Each method of ADR and litigation has both their faults and promises. However, as international law is such a broad topic, it is essential to research a specific area of the field to avoid nuances that could disrupt the research. The focus of this study is on nautical law, exclusively maritime boundary disputes, to ensure that the assessment of the research is judged within a uniform framework. More specifically, evaluating the success rates and occurrences of each ADR techniques through the lens of cultural sensitivity within maritime boundary disputes is an understudied and appreciated approach. This work may be a helpful mechanism to resolve culturally complex maritime boundary disputes. Since ‘only a little over half of potential maritime boundaries have an agreement in force’,⁵¹ delving into the role of culture may provide the nuance needed to learn how to best solve such issues.

I hypothesize that low power distance countries are more likely to resolve a dispute using negotiation while high power distance countries will be more successful using third-party intermediaries to facilitate peace talks. Given the success rate of each third-party ADR technique, as previously outlined, I focused my third-party intermediary research on arbitration. Hofstede's Cultural Dimensions are a common framework to understand different cultures, in which power distance is one means to understand how societies view authority. My hypothesis is largely based on the idea that the ‘negotiator typically has authority to make agreements’ in a low power distance country, while in a high power distance culture, ‘the agreement will ultimately need to be ratified by someone higher up’.⁵² Accordingly, a conflict that begins to be resolved in negotiation may turn to arbitration, finding it more agreeable to a high-distance culture.

Secondly, I hypothesize that countries with a history of employing predatory tactics in property ownership disputes are less likely to resolve a maritime dispute without a third-party, particularly arbitration. Territory is a source of pride, a piece of a country’s identity. When nations begin to fight for ownership, it creates a lack of trust between government officials that the dispute can be resolved through independent peaceful means, such as negotiation. If countries hold a long-lasting history of unresolved maritime disputes, these battles may have been over more than a region of the sea, stretching to vast displays of power in a region. In addition, maritime boundaries are a ‘politically sensitive subject, because it affects the coastal State's jurisdiction’ and are the ‘fruit of the will of States or the decision of the international judge, and neither governments nor judges limit themselves simply to scientific fact’.⁵³ The challenging of boundaries could lead to hostility, as it threatens the prevalence of the culture and powers of states in dispute. It would appear that there is an element of fighting for cultural dominance, which could be why some disputes last longer than others. This tension, presumably, would prolong maritime boundary disputes to reach a resolution.

RESEARCH DESIGN

This research was conducted with a mixed-method approach, in which the case study method, which is paramount to this work’s research, is complemented by an expert interview. The interview was conducted with Dr Elizabeth Mendenhall, an Assistant Professor of Marine Affairs with a Limited Jointed Appointment in Political Science at the University of Rhode Island. Mendenhall’s research specializes in, but not limited to, UNCLOS, global ocean governance, and sea level rise. Through a ‘focused interview’,⁵⁴ Mendenhall gave insight on the role of culture in maritime boundary disputes, as she had seen within her research.

In order to examine how culture affects the success rate of different ADR techniques in maritime disputes, I will analyse three case studies. I chose this method, rather than a quantitative approach, because qualitative analysis lends itself better to identifying the impact of cultural nuances within reconciliation processes. Performing a comparative case study analysis allows researchers to ‘compare and contrast cases with respect to the presence or absence of causes and outcomes’,⁵⁵ leading to a proper assessment of the research question raised. The following research utilizes ‘process tracing’⁵⁶ with ‘hypothesis-testing case studies’⁵⁷ that were selected based on their cultural backgrounds, the disputed countries diplomatic history, and means to settle the maritime dispute.

The three cases were evaluated using expert assessments and legal documents on the cases. The first case is the Australia-New Zealand Maritime Treaty. This is an example of a successful case in negotiation, as through bilateral collaboration the countries were able to create a mutual agreement. The second case is the Yemen-Eritrea Maritime Treaty, which on the contrary to the previous case, was made between the countries who had a history of poor relations. Arbitration stepped in to help fairly solve the dispute in compliance with the LOS and without hostility. The third and final case is based in the South China Sea, between China and the Philippines. This case has a long history of tension centred specifically around maritime boundary disputes, as years of attempted negotiations had failed to produce a just result. It is seen as a landmark case within environmental law, as it invokes a responsibility for taking care of the seas within a nation’s jurisdiction. Every case study observes the role of culture and ADR within each chosen dispute through a six-paragraph arrangement. The evaluation of each case was conducted in the following format: (i) a background between the two countries, (ii) the power indexes of the parties as it relates to culture, (iii) why the particular method of ADR was chosen to mitigate the dispute, (iv) the ADR process in creating solvency, (v) the overall outcome of the solution, and (vi) a concluding reflection of the result.

Due to the wide range of maritime boundary issues, there will be many cases that will not be delved into within this research, limiting the scope of the analysis. Synthesizing the impact of culture on all historical maritime boundary disputes would require extensive, lengthy research that is outside the capability of this study. It is important to acknowledge the cases that will be overlooked. Consequently, the aforementioned cases have been intentionally selected to shed light on a larger pattern of how culture interplays with the means to resolve a dispute and the outcome, focusing on two disputes that were successful in using common forms of ADR and observing a case that was not successful in using ADR, examining how culture could have affected these model cases. In addition, avoided selecting cases within one particular region to ensure a wide range of cultures were analysed in the study. The analysis was conducted with public information available, noting that many conversations and negotiations behind the decisions in each case are not publicly available. The assessments are based on available information in conjunction with research on the cultures of the parties in the dispute. Therefore, the case study method is the prime way to evaluate this topic despite its inevitable shortcomings.

ANALYSIS

Australia–New Zealand maritime treaty: a case study in negotiation as dispute resolution

Australia and New Zealand have maintained a close bilateral relationship throughout their existences. With a shared British colonial heritage, they are known to have been ‘natural allies with a strong trans-Tasman sense of family’.⁵⁸ When asked to join the Australian federation in 1901, New Zealand declined while still maintaining close political contact. Due to their friendly history, citizens from the respected countries often travel between the two lands, strengthening political, economic, and social ties. The countries ‘learned from each other’s experiences and shared initiatives’, creating a communicative relationship based on collaboration.⁵⁹ In addition, mundane cultural norms unite the countries informally, from foods to sports. Their physical proximity led to the countries forming the Australia-New Zealand Closer Economic Relations Trade Agreement in 1983 to further strengthen their economic and trade relationship.⁶⁰ This initiative inspired a proper assessment of oceanic boundaries.

Both Australia’s and New Zealand’s power distance score reflects their ‘strong people-to-people links’ and value for ‘co-operative’ relationships.⁶¹ With New Zealand having a score of 22 and Australia having a 38, they are deemed to be low power distance countries.⁶² This means that those in leadership are seen as accessible and team collaborations are highly valued, which is reflective in their friendly historic relationship. It is expected that through direct communication, citizens are consistently interacting with each other for the greater good. This is key in negotiation, as open communication is the means to achieve a just result for both parties. The communicative culture within New Zealand and Australia allowed it to be easier to negotiate, particularly concerning maritime delimitation.

Despite having a strong bond, it was necessary that Australia and New Zealand established their maritime jurisdictions and ownership legitimacy to limit future conflict. Legally, it is a conventional principle that countries that ‘possess an extended continental shelf (that is, continental shelf beyond 200 nautical miles) must submit information within a particular timeframe to the Commission on the Limits of the Continental Shelf’, which is a branch of UNCLOS.⁶³ Due to overlapping boundary lines, Australia and New Zealand had difficulty distinguishing who was responsible for what in the ‘Tasman Sea and adjacent areas of the south-western South Pacific and Southern Oceans’.⁶⁴ Nevertheless, the treaty was successfully established due to the parties’ ‘conscious[ness]’ of the other states’ ‘geographic proximity, long-standing friendship, and close historic, political and economic relationship’.⁶⁵ By careful bilateral negotiations outside of a court of law, it was ensured that the nations would jointly support and enhance sustainable development.⁶⁶

In April 2004, the Government of Australia and the Government of New Zealand establishing a treaty over particular Exclusive Economic Zones and Continental Shelf Boundaries. However, this treaty was 5 years in the making, having launched in 1999 with the agreement that it would be resolved by ‘no later than 2003’⁶⁷ The delegations of Australia and New Zealand were comprised of Department of Foreign Affairs and Trade officials, as well as representatives from surrounding areas of the Tasman Sea and natural resource advisors. Due to their rich history, negotiation was a proper way to resolve this dispute, as negotiation serves to ‘define the nature of a continuous and dynamic relationship’.⁶⁸ After all, ‘relationships based on diplomacy ensure greater buy-in and confidentiality within agreements’.⁶⁹ Their low power distance and amicable history supports their ease in negotiating, as they collaborated on a decision rather than involved a third party due to mutual respect. After eight meetings, the delegations finally concluded negotiations ‘ad referendum’.⁷⁰ The negotiation’s extensiveness was due to the ‘relative length of coastlines, the effect of islands, and the distances from relevant coastlines, as well as geomorphological factors’, as they jointly wanted to ensure that each country received appropriate ownership to continue their friendly relationship.⁷¹ Although the result was delivered later than desired, a thorough analysis of boundary lines and nautical laws was required to ensure an equitable solution in accordance with UNCLOS.

As this negotiation was founded on diplomatic relations, the outcome was favourable to both states for two reasons. First, it was established that within 200 miles off the coast, unless negotiated for more, the countries had dominion in abidance with UNCLOS.⁷² This provided the clarity needed to expand trade relations and strengthen a great diplomatic relationship. Secondly, this range of jurisdiction allowed the countries to have ‘sovereign rights for the purpose of exploring’ their continental shelf and ‘[exploiting] its natural resources’.⁷³ The certitude of ownership concerning ‘offshore resources’ furthered exploration and helped companies conduct business (such as fisheries or mineral and biological mining) without legal confusion, a sign of respect for the commerce of each country.⁷⁴ Throughout the negotiation, the countries looked to use this case as an opportunity to strengthen their existing relationship and utilize their low power distance to easily communicate with each other, respecting the power of those in negotiations. The negotiation allowed for ‘increasing utility and maximizing joint outcomes for both parties’,⁷⁵ and as a result, the countries can use these new boundaries to further business relations and expand upon their strong relationship.

Negotiation is the ideal process for states to resolve a conflict, particularly in the case for Australia and New Zealand, as it entails a mutual resolution to a disagreement that respects each party’s input, produced on the negotiating parties’ own accords. Negotiations often build a level of rapport with the parties involved as they communicate their needs respectfully. Trust between the parties is needed, which is an aspect one can look towards history to determine if the countries have a relationship built on deference or cynicism. In addition, the low power distance of each country ensured egalitarian conversations, where the parties could communicate freely to reach a solution. This relationship could be hindered if a third party intervened, as it could show lack of willingness of the parties to further their relationship by bilateral cooperating to reach a solution. The negotiation worked smoothly here, as solvency between parties with ‘familiar cultural norms enhance voluntary compliance by parties’.⁷⁶ Since Australia and New Zealand have maintained a tight relationship, negotiation allowed them to jointly work together, helping them further respect each other’s delegations and maintain their steady relationship.

Eritrea–Yemen maritime treaty: a case study in arbitration as dispute resolution

Not all boundary disputes have a groundwork of good diplomatic relations. Unlike the foundational camaraderie between Australia and New Zealand, Yemen and Eritrea are plagued by long histories of internal turmoil. Both countries’ governments are known to be unstable. As civil unrest commonly disrupts the flow of economic and social systems, often spilling over into neighbouring countries and leading to brutality over disputed resources, so it was in this scenario.⁷⁷ This was further demonstrated when Yemen and Eritrea both laid claim to nautical frontiers due to ancient ownership that they each believed they were entitled to.⁷⁸ The conflict between Yemen and Eritrea over territory became a ‘possible threat to international navigation’ when antagonisms grew in December 1995, 3 years before the Eritrea–Yemen conflict was declared in May 1998.⁷⁹

Neither Yemen nor Eritrea have power index scores, yet by seeking to understand their different cultures, it may be seen how prominent hierarchies are within their societies, displaying high power distance behaviour. While both nations seem to benefit from collectivism, civil unrest and poor working conditions contributed to established socio-economic hierarchies.⁸⁰ In Eritrea, religion played a key role in trade and politics, as prejudices were held against those who had different faith than the country’s predominant religion. As the Eritreans continued to cultivate their economy amidst decades of political unrest, international humanitarian watches have been observing the working conditions of certain industries, especially mining, believing that there are a poor and belittling working situations for Eritreans performing physical labour. During the Isaias administration, which has been around since 1991, the UN Human Rights Council accused the Eritrean president of many human rights violations occurring under his leadership, such as murder, rape, and slavery. Yemen has a comparable dynamic, as years of civil war led to human rights concerns and the country being split into numerous tribes.⁸¹ Similar to Eritrea, religious identity forms the basis of social affiliations in Yemen, providing opportunity for prejudice. Moreover, since their establishment, their unstable economy has led to further wealth gaps amongst locals. Due to both countries’ long history of turmoil and human rights violations, societal hierarchies have developed, insinuating higher power distances. This means, despite rebellions and revolutions, nationals often turn to their own leadership to make change, viewing their nation’s authority above others’. Other than a history of conflict between Yemen and Eritrea that limited the effectiveness of negotiation, the need for leaders to make change contributed to the need for arbitration.

Yemen’s and Eritrea’s attempt at negotiation ultimately failed due to their intense conflict, which was still heated in their transition to arbitration. After all, in a negotiation, parties much ‘concede certain points to appease their negotiating partner’,⁸² a course parties with a history of conflict may not want to take in order to preserve territories they have already bled over. Additionally, high power distance countries revere their own leadership as a greater source of power next to nations they are in conflict with, as they have difficulty respecting the authority of the opposing nation. Based on this, tensions were still high between Eritrea and Yemen when the arbitration began in 1999.⁸³ The governments of the two nations knew there was a need to settle their territorial dispute and recognized that due to their own biases stemming from the conflict, their case ought to be brought to an arbitrational tribunal, as arbitration ‘offers more space for cultural accommodation’.⁸⁴ This is particularly helpful when trying to understand the root causes behind disagreements between states in frequent conflict. In this scenario, culture is used in relation to the history behind these nations. Each country believed that the oceanic property they are fighting is part of their heritage.⁸⁵ Understanding the ‘cultural psychology’ of the nations represented, the arbitrators would work to evaluate Yemen’s and Eritrea’s ‘cultural inclinations’⁸⁶ to help reach a solution that would minimize further conflict.

Conducted under the forum of arbitration, Eritrea and Yemen each selected two arbitrators and those four appointed a fifth.⁸⁷ One of the benefits of arbitration, after all, is the ability to pick an arbitrator the client deems appropriate to vouch for them.⁸⁸ Collectively, the five arbitrators worked on behalf of the government of the State of Eritrea and the government of the Republic of Yemen to reach an agreement, understanding the cultural background of the nations. Upon meeting in London, a neutral location, to negotiate, the countries asked for the arbitration to determine territorial sovereignty and maritime delimitation in accordance with international and Islamic law, while in consideration of the history and respective scope of their disagreement.⁸⁹ Given that this research is focused on maritime boundary disputes, this case study focuses on the oceanic content of the arbitration, also known as the second stage of the Eritrea and Yemen arbitration.⁹⁰

The arbitration concluded with several country-specific territorial resolutions, in addition to the delimitation of the Red Sea boundary.⁹¹ An all-encompassing boundary between their own seas, continental shelves, and Exclusive Economic Zone was created.⁹² This agreement satisfied both governments; it catered to Yemen’s request for a lone all-purpose boundary and Eritrea’s request for a coastal intermediate line.⁹³ By understanding the cultural history of each nation, a mutual decision was made by an authority both Yemen and Eritrea found reliable, satisfying the high power distance desire to defer to trusted authority for decision-making. As a subtle way to decrease hostility, the treaty also concluded that each country’s citizens are allowed to sell at ports or markets equally and without discrimination between the two countries.⁹⁴ This was intended to ease relations between the two nations, a subtle way to build friendliness between hostile countries. The ‘free access and enjoyment’ of the countries’ markets benefit the livelihoods of the peoples of both nations by supporting ‘commercial and investment relationship’.⁹⁵ The parties acknowledged their harsh history and saw this as an opportunity to show respect to each other and strengthen relations.

Arbitration proved vital in forming friendly relations between Yemen and Eritrea. It ‘paved a way for the harmonious relationship’ between the nations, also opening the ‘opportunity for consolidation of peace and stability in the region’.⁹⁶ It is clear from this case why arbitration has been a growing means to resolve maritime boundary disputes. The ‘mutual benefit’ of a deal for one of the ‘strategically most sensitive regions of the world’⁹⁷ was a landmark decision. The arbitrators had ‘discretion’ to draw an appropriate agreement for the parties, knowing their need for harmony by creating a resolution that would not only help build governmental relations, but also strengthen ties between citizens.⁹⁸ The arbitration succeeded, after all, due to both Yemen and Eritrea willingness to concede to the decision of the arbitrator, a trusted authority that catered to the country’s deference to authority. When working with two high power distance countries that value their own sovereign authority, it was key that the countries turned to mutually respected decision-makers. Overall, this case is recognized worldwide as an example of a successful arbitration, where both parties achieved a sense of peace and security despite cultural differences.⁹⁹

China–the Philippines dispute in the south china sea: a case study in a failed arbitration

The final case study is based in the South China Sea, and while this area has an extensive history of maritime boundary disputes, one of the most notable ones occurred between China and the Philippines. While China and the Philippines continue to be economic partners, boosting bilateral engagements, such as trade and tourism, differentiating views on maritime boundaries prevent them from reaching reconciliation on their shared waters.¹⁰⁰ For centuries, China has dealt with ocean-related disputes.¹⁰¹ This was primarily due to the nation’s dramatic economic growth, which led the Chinese to increasingly take to the seas for trade, resource harnessing, and military basing.¹⁰² The Philippines, who has a rich history of ancient oceanic practices such as fishing and ancient nautical practices and are a great pride to Filipinos, was caught in the crossfire of China’s maritime economic development.¹⁰³ These traditions were being threatened by China’s growing dominance over the region, resulting in the Philippines’ need to take action.

China and the Philippines both come from cultures with high power distance scores, with China assigned an 80 and the Philippines with a 94.¹⁰⁴ In their high power distance cultures, each society values rank, as people are actively influenced by authoritative figures. Citizens are limited to their status, living in a society with restricted social mobility. The hierarchical order in society is not questioned, thus leadership is thoroughly depended on to make decisions on behalf of the people. Due to the immense respect for authoritative figures, if another nation’s or third-party intermediary’s authority is not respected by both of the parties in the dispute, it is plausible that progress in reaching solvency is unlikely to occur.¹⁰⁵ Coupled with historic tensions of China threatening the Philippines’ cultural practices, the high power distance of China and the Philippines raises the issue on whether each nation would find each other’s power to be legitimate and respected.

The maritime boundary dispute case was initiated by the Philippines, who fought to protect their fisheries by stating that China interfered with their livelihoods and ‘traditional practices’.¹⁰⁶ After all, that at stake in maritime disputes can be ‘intangible’ with ‘symbolism and engaged domestic audiences’, as it could represent ‘national pride’.¹⁰⁷ For both the Philippines and China, the matter of protecting their reputations and practices took precedence over determining where a boundary ends and begins. Furthermore, in certain countries’ traditions, there is cautious care to avoid bringing cases to court. One of the well-known countries that abides by this principle is China, who has a ‘long-standing cultural emphasis on stability and harmony’ where ‘deference to authority have underpinned the practice of conciliation by arbitrators or judges’,¹⁰⁸ an expression of their high power distance behaviour. Also, it can be presumed that negotiation would not have worked in favour for the Philippines in this situation, as smaller states tend to become pressured by the nation with the greater power.¹⁰⁹ Most likely, China would have pressured the Philippines into conforming with their ideals if a negotiation took place. However, for the Philippines, negotiation could ‘appear self-defeating to submit to China’s demands for bilateralism’.¹¹⁰ On the other hand, arbitration allows ‘space for cultural accommodation’ by concentrating on the ‘resolution of the underlying problem’¹¹¹ that leads to the dispute’s resolution instead of a zero-sum game. Often seen as a ‘shift from the power-oriented system towards the law-oriented system’, arbitration was, in this case, an ‘attempt to bring the rule of law into international relations’.¹¹² For this collective reasoning, the Philippines deemed arbitration as the best means to resolve this dispute.

Accusations brought to the Arbitral Tribunal included the Philippines stating that China used harmful means of fishing that hurt the marine environment, such as using explosives, reaping rare species, and building a faux island.¹¹³ The arbitration was conducted by the Hague in 2013 but resolved in 2016 with the aim that small businesses, especially fisheries, would be given some acknowledgement within boundary disputes. This was not necessarily a quarrel to create boundaries, but rather to establish who has proper jurisdiction in relation to ‘entitlements to maritime zones and the lawfulness’.¹¹⁴ The tribunal favoured the Philippines, stating that China violated the Philippines’ oceanic boundaries and found that China was harming the marine environment despite their UNCLOS obligations.¹¹⁵ Yet, the Chinese foreign minister declared that the decree had ‘no binding force’.¹¹⁶ Assumingly, China knew that they were violating international oceanic treaties, and by resolving this dispute, they would be admitting to the breach.¹¹⁷ This resorted to China refusing to participate in the process and disregarding the result of the settlement, believing the tribunal had no jurisdiction over this conflict.¹¹⁸ Historically and in relation to the high power distance model, China is reluctant to abide by an authority outside of their own, as they believe it would jeopardize the legitimacy of their own power. Ultimately, this case is seen as a protracted maritime boundary dispute, meaning that it has been unresolved for a long duration.¹¹⁹

While this case remains heavily debated in terms of the successfulness of ADR in resolving maritime boundary disputes, it stands as a key study for the future of environmental law. It can be seen as a ‘big blow’ to the credibility of UNCLOS, as instead of challenging the tribunal’s verdict, China decided to outright discredit its authority.¹²⁰ As the Chinese ‘military, political and economic hard power would best be put to use in a bilateral setting’, signalling why negotiation would ultimately fair in reaching a just resolution, the same reasoning could apply to a result for arbitration, as it is ‘naïve’ for China to agree by an arbitral solution that does not cater to their demands ‘by principal’.¹²¹ For ADR, specifically arbitration, to work, it is key that both parties are consenting participants and willingly accept the ruling decision. In this instance, arbitration provided a just claim that adhered to the respective cultures of the Philippines and China, as it recognized their history by analysing both sides of the conflict.¹²² However, true to high power distance fashion, China appeared to not respect the Arbitral Tribunal enough to follow through with their order. The arbitration’s failure comes down to a lack of trust: the Philippines did not trust China in a negotiation so they turned to an arbitrator, and China did not trust that the arbitrator’s decision would not undermine their international authority. Culture, the shared history and high power distance, is the root of the distrust. It may seem like resolution is a lost cause, but scholars instead hope that the attention to this case encourages other countries in the South China Sea to pressure China into giving back due sovereignty to other nations.^123,124 For instance, while China did not abide to the resolution, the international community has provided steady pressures on them to comply with the decision reached by the arbitrators.¹²⁵ Through forums and strategically unifying, allied South China Sea countries could unify over the preservation of their maritime history, together working to reclaim their waters. By understanding the cultural background and China’s power distance score, it can be understood why ADR was not effective.

Proposed further areas of study

It should be noted that these three cases are a sample of the many scenarios of maritime boundary disputes. Furthermore, the cases selected were simplifications of complex disputes. While culture plays a part in every international disagreement, the extent of it and how it correlates to the dispute varies case by case. Due to the lens and scope of this research, it is essential to further study how culture plays within international conflicts, specifically with neighbouring countries, and how it affects the resolution of the dispute. A recommendation to continue this study is to further research the role of culture in other maritime boundary cases. Ideally, every maritime boundary case would be separated into the dispute mechanism used to solve the case and then evaluated to discern the role culture played in the resolution, utilizing Hofstede’s Cultural Dimensions. This would increase the scope of this research, giving scholars a better understanding on how to utilize culture to discern which dispute resolution mechanism to use, as well as how to achieve the quickest route for solvency, when faced with an international conflict. Through cultural competency, maritime boundary disputes could potentially be resolved more efficiently.

CONCLUSION

It is evident how culture affects the outcome and means of mitigating maritime boundary disputes. By using Hofstede’s Power Distance Index and the context of historical tensions between countries, one could perceive how culture is intertwined within dispute resolution. For instance, this research found that foundational diplomatic ties and lower power distance countries favour bilateral negotiations due to their interdependence and egalitarian nature, as seen with the Australia-New Zealand case. High power distanced countries, however, tend to defer to a mutually respected authority to facilitate the negotiation, especially when there is historic tension between the nations in conflict. This was seen in the Eritrea–Yemen case, in which an arbitrator was needed. Nonetheless, the case between China and the Philippines had shown that high power distance factors, coupled with diplomatic hostility, could lead to no mutually respected authority being represented in the dispute, leaving the conflict to be unresolved. After all, trust and respect of the disputed parties’ authority, which could be determined by accessing historical tensions and power distance, is key to the success of ADR. While the influence of culture was apparent in each of these cases, this correlation is not limited to these selected studies.

While maritime boundary disputes are a niche subject in the wide variety of international conflicts, the principles discovered here can be used for other legal studies. For instance, the basis of this research could be applied to international proprietary rights for artefacts that were stolen from countries during wars. Like maritime boundary disputes, this scenario would need to be handled with cultural sensitivity and a firm understanding of the historical ties behind the conflict. Legal practices, particularly those that work with international law, should consider how culture may affect the process of dispute resolution. It is important to be cognizant of the role of culture when resolving disputes, as it is an underlying factor in many decisions. Cultural competency is the gateway to understanding the why behind a conflict and how it could be resolved.

Sophia Casetta currently works at the United States Department of State in Washington, D.C. I thank my family, who continue to support my career and research through constant encouragement and wisdom. I also thank Dr Felicity Vabulas for inspiring and guiding me as I wrote and refined this article, as well as the Journal of International Dispute Settlement for the honour of publishing this work.

Footnotes

FUNDING

None to declare.

Disclaimer

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of any agency of the U.S. government. Assumptions made within the paper do not reflect the U.S. government's position on this subject, nor where the author is currently employed.