Law Without Enforcement: Why Arbitral Awards Fail at Sea, from the South China Sea to Sir Creek

## Compliance Failure under Part XV of UNCLOS and What It Means for Pakistan’s Undelimited Boundary **By Muslim Bin Aqeel** *LLM, International and Maritime Laws* *Alumnus, NESA Center, National Defense University, Washington, DC* *Submitted to: Research Center for International Maritime Law and Practice (RCIMLP) — October 2026* --- A judgment is only as good as the means of enforcing it. The law of the sea has no bailiff. A state may refuse to obey a decision under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The winning party then holds great legal authority but little practical force. This gap matters to Pakistan. Our maritime boundary with India in Sir Creek is still undelimited. If a tribunal ruled tomorrow, would India obey? Part XV makes binding settlement compulsory when talks fail. A state may choose ITLOS, the ICJ or arbitration. If the parties have not chosen the same forum, Annex VII arbitration applies by default (United Nations Convention on the Law of the Sea [UNCLOS], 1982, art. 287). A case may proceed even if one party stays away. Every decision is final and binding (UNCLOS, 1982, art. 296). Yet Part XV contains no means of execution. Article 298 also lets states opt out of compulsory procedures for boundary disputes. ### Precedent: Why Most Decisions Succeeded We should not draw the wrong lesson from the South China Sea. Most maritime boundary decisions have been obeyed: - In the *Bay of Bengal Maritime Boundary Arbitration* (2014), Bangladesh received about four-fifths of the disputed area. India's foreign ministry welcomed the award as bringing a long-pending issue to closure (Bateman, 2014). - Timor-Leste and Australia signed a boundary treaty after compulsory conciliation (*Timor Sea Conciliation*, 2018). - South Asia has its own precedent: India and Pakistan implemented the 1968 Rann of Kutch award (*Indo-Pakistan Western Boundary (Rann of Kutch)*, 1968). That tribunal, however, left Sir Creek out of its decision (Shah, 2009). ### The Pattern of Non-Compliance The failures follow a pattern. In the *South China Sea Arbitration* (2016), the tribunal rejected China's historic rights claim within the nine-dash line. China did not take part and rejected the award. Still, the award shapes state practice. Several states invoked it in notes on Malaysia's 2019 continental shelf submission (United Nations Division for Ocean Affairs and the Law of the Sea [DOALOS], n.d.-b). Colombia withdrew from the Pact of Bogotá eight days after losing *Nicaragua v. Colombia* in 2012 (Organization of American States [OAS], 2012). Kenya refused to recognise the ICJ's 2021 judgment in *Somalia v. Kenya* (*ICJ Decision Zero-Sum*, 2021). Pakistan's own experience is the most telling. India boycotted the Indus Waters arbitration and held the Treaty "in abeyance" in April 2025. The Court of Arbitration held that this did not remove its competence (*Indus Waters Western Rivers Arbitration*, 2025). India called the Court's decisions "illegal and per se void" (Almarradweh, 2025). --- ### The Four Conditions When Awards Fail These cases show when awards fail. Four conditions meet: 1. **The dispute touches sovereignty.** 2. **The losing state is powerful.** 3. **It did not take part in proceedings.** 4. **Domestic politics reward defiance.** Where these are absent, states usually comply. The successful cases teach the same lesson in reverse. States that take part are more likely to accept the result. Modern delimitation rarely produces total victory, and a partial win is easier to accept. A settled boundary also unlocks offshore investment. Governments that present an award as a shared success protect it from domestic attack. India did exactly this in 2014. --- ### The Sir Creek Impasse: Geography, Precedent & Human Cost Sir Creek is a tidal estuary about 60 miles long between Sindh and Gujarat (Shah, 2009). The dispute concerns the land boundary along the creek. That boundary fixes where the land border meets the sea. Both states rely on the Bombay Government resolution of 24 February 1914 and its map (Map B-44). Pakistan says the boundary runs along the eastern bank. India says it follows the mid-channel (Shah, 2009). A small shift on land moves the maritime boundary across a wide area of sea and seabed. Fishermen on both sides pay the human cost (Ali, 2017). The 2008 Agreement on Consular Access requires the two governments to exchange prisoner lists every 1 January and 1 July (Ministry of Foreign Affairs, Pakistan, 2011). It eases the problem but does not solve it. Diplomacy has made progress before. Between 2005 and 2007, joint surveys mapped the creek and fixed reference points. Talks then stalled (Barthwal, 2025). In October 2025, India's Defence Minister warned Pakistan against any "adventure" in the area (Barthwal, 2025). --- ### Can Part XV of UNCLOS Help Pakistan? On ratification, India and Pakistan each reserved the right to make declarations under Articles 287 and 298 (DOALOS, n.d.-a). The UN record does not show that either has made them since. If so, boundary disputes are not excluded, and Annex VII arbitration would apply by default. This must be checked before any step is taken. Three major obstacles remain: 1. **Sir Creek is at its core a land dispute.** Tribunals have refused to decide land sovereignty (American Society of International Law, 2015). Pakistan can reply that only the terminus is at issue. In the *Bay of Bengal* case, the tribunal fixed the India–Bangladesh land terminus by reading the 1947 Radcliffe Award and its maps (Burke, 2014). But both parties there consented. India is unlikely to do so here. 2. **The Simla Agreement Defense.** Under the Simla Agreement, the two states agreed to settle differences through bilateral negotiations or other mutually agreed peaceful means (Simla Agreement, 1972). India would argue that this excludes Part XV under Article 281. Pakistan would rely on the *South China Sea* jurisdiction award, which required a clear exclusion (*South China Sea Arbitration*, 2015). The *Southern Bluefin Tuna* award points the other way (*Southern Bluefin Tuna*, 2000). The question is open. 3. **Compliance Risk.** All four risk factors are present. India might reject even a sound award. Pakistan would then hold a moral victory and a harder dispute. --- ### Strategic Recommendations for Pakistan Law still matters, but it must be used with strategy: - **Audit Legal Preparedness**: Pakistan should audit its legal case and commission expert reports now. It should keep offering talks under Article 283. A record of good faith shapes how other states see the dispute. - **Propose Provisional Arrangements**: Pakistan should propose provisional arrangements under Articles 74(3) and 83(3). A joint fisheries zone or a protocol against arresting fishermen would not prejudice either claim. *Guyana v. Suriname* (2007) shows that one-sided action in disputed waters carries legal risk for both sides. - **Separate Land from Sea**: The two states could also separate land from sea. They could first fix a point at the creek's mouth, using the joint survey data. The maritime boundary could then follow by the standard method. - **Consensual Referral**: The best route is consensual referral to a court or tribunal. If both states take part, the compliance problem largely disappears. Consensual referral produced the 1968 award, and both states obeyed it. --- ### Sovereign Alignment and Concluding Perspectives At home, Pakistan should align its maritime laws fully with UNCLOS. Abroad, it should support compliance with awards, even where it is not a party. A middle power cannot expect others to obey awards in its favour if it stays silent when others ignore them. The South China Sea award did not fail because the law was wrong. It failed because the losing state was powerful, absent and determined to reject it. The Bay of Bengal and Rann of Kutch awards succeeded because the parties took part and chose to own the result. After twenty-five years of practice, I have learned that the best award is one the losing party can live with. A law without enforcement is weak. A law that the parties choose to enforce themselves is the strongest law of all. --- ### References & Legal Authorities - **Ali, S. H. (2017, December 18).** *Use environmental diplomacy to resolve the Sir Creek dispute*. Stimson Center. - **Almarradweh, S. (2025, August 14).** *India rejects arbitration court authority over water disputes with Pakistan*. JURIST. - **American Society of International Law. (2015, March 27).** *Permanent Court of Arbitration finds U.K. in violation of Convention on the Law of the Sea in Chagos Archipelago case (March 18, 2015)*. - **Barthwal, N. (2025, November 17).** *Sir Creek in the crosshairs: An analysis*. Manohar Parrikar Institute for Defence Studies and Analyses. - **Bateman, S. (2014, August 7).** *Resolution of Bangladesh-India maritime boundary: Model for South China Sea disputes?* (RSIS Commentary No. 158). S. Rajaratnam School of International Studies. - **Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India)**, PCA Case No. 2010-16, Award (Perm. Ct. Arb. July 7, 2014). - **Burke, N. (2014, September 22).** *Annex VII arbitral tribunal delimits maritime boundary between Bangladesh and India in the Bay of Bengal*. ASIL Insights, 18(20). - **Guyana v. Suriname**, PCA Case No. 2004-04, Award (Perm. Ct. Arb. Sept. 17, 2007). - **ICJ decision zero-sum, solution must be negotiated, says Uhuru Kenyatta. (2021).** Nation. - **Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan**, 17 R.I.A.A. 1 (Indo-Pak. W. Boundary Case Trib. 1968). - **Indus Waters Western Rivers Arbitration (Pakistan v. India)**, PCA Case No. 2023-01, Supplemental Award on Competence (Ct. Arb. June 27, 2025). - **Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)**, Judgment (Int'l Ct. Justice Oct. 12, 2021). - **Ministry of Foreign Affairs, Pakistan. (2011, January 1).** *Exchange of lists of prisoners by Pakistan and India* [Press release]. - **Organization of American States. (2012).** *Recent actions regarding multilateral treaties: 2012*. - **Shah, S. A. (2009).** River boundary delimitation and the resolution of the Sir Creek dispute between Pakistan and India. *Vermont Law Review*, 34, 357. - **Simla Agreement**, India–Pakistan, July 2, 1972. - **South China Sea Arbitration (Philippines v. China)**, PCA Case No. 2013-19, Award (Perm. Ct. Arb. July 12, 2016). - **South China Sea Arbitration (Philippines v. China)**, PCA Case No. 2013-19, Award on Jurisdiction and Admissibility (Perm. Ct. Arb. Oct. 29, 2015). - **Southern Bluefin Tuna (Australia and New Zealand v. Japan)**, Award on Jurisdiction and Admissibility, 23 R.I.A.A. 1 (2000). - **Territorial and Maritime Dispute (Nicaragua v. Colombia)**, Judgment (Int'l Ct. Justice Nov. 19, 2012). - **Timor Sea Conciliation (Timor-Leste v. Australia)**, PCA Case No. 2016-10, Report and Recommendations of the Compulsory Conciliation Commission (Perm. Ct. Arb. May 9, 2018). - **United Nations Convention on the Law of the Sea**, Dec. 10, 1982, 1833 U.N.T.S. 3. - **United Nations Division for Ocean Affairs and the Law of the Sea. (n.d.-a).** *Declarations and statements*. United Nations. - **United Nations Division for Ocean Affairs and the Law of the Sea. (n.d.-b).** *Submission to the Commission: Partial submission by Malaysia in the South China Sea*. United Nations.