Mixed Disputes Research Articles

Mixed Disputes

Abstract It is now clear that a dispute concerning sovereignty over land territory does not fall within the scope of a dispute concerning the interpretation or application of the United Nations Convention on the Law of the Sea (LOSC), unless the external issue arose as an incidental question in the application of the Convention. Less clear, however, is under what circumstances the competence of LOSC tribunals extend to the determinations of law that are ancillary/incidental to the main issue regarding a dispute concerning the interpretation or application of the Convention. This article brings together recent developments in LOSC jurisprudence regarding the issue of mixed disputes and points to some of the current uncertainties.

Patrimonijalni crkveni sud u Dušanovom zakoniku

In medieval Serbia, in addition to administrative and economic immunity, the Church also enjoyed judicial immunity. It had the right to judge the clergy (class court), all Orthodox believers in certain civil and criminal matters, but like any feudal lord, it also had jurisdiction over the inhabitants of church and monastery estates (church people), judging them as a patrimonial court. The subject of the research is the ecclesiastical patrimonial court in Serbian medieval law. First, a legal-historical analysis of this institute from monastery charters will be performed and then from the most valuable Serbian medieval legal monument, Dušan's Code. The basic question is whether the Code only confirmed the existing jurisdiction of the ecclesiastical patrimonial court or whether it introduced certain changes in this area. If there were any changes, it is important to recognize what they were, what they consist of and what the basic motive of the legislator for prescribing them was. The ecclesiastical patrimonial court was without a doubt competent for internal disputes between people of the same monastery, but it should be determined how the jurisdiction in the, so-called, mixed disputes was determined. Further, did Dušan's Code give over jurisdiction to the Church regarding disputes that were otherwise the domain of the ruler's court? Finally, the role and importance of the procedural institutions of appeal, transference and supplication in Serbian medieval law are emphasized.

Case Study on the Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objection, 28 January 2021

On 28 January 2021, the ITLOS Special Chamber delivered the judgment of preliminary objection in the case of the dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean. The Special Chamber overruled five objections on the jurisdiction and admissibility raised by Maldives. This case is a kind of the dispute case related with the sovereignty of the Chagos archipelago, so-called mixed dispute. The Special Chamber took the same approach with previous precedents of the same kinds. Actually it did not focused on the how far the submission of the maritime delimitation is related with the sovereignty dispute, but on the nature of the dispute, whether it is the sovereignty dispute or not. Different from a doctrinal approach, taken by the judical academics who decided the case following the standard how much the submission is mixed with the sovereignty dispute, the jurisprudence including the judgement of the Special Chamber targeted the nature, a sovereignty dispute or not. The Special Chamber suggested the concrete and detailed meaning of the legal authority, not a legal binding force, of the ICJ advisory opinion. It is shown that the adjacent or opponent states of maritime delimitation of this case is Mauritius under the special circumstances of unfinished and continuing decolonization process. Afterwards the final judgment of the maritime delimitation will indicates the coastal State is Mauritius who can exercise the right over fishery and natural resources in the delimited maritime area. Plus the role of international judicial body has been being strengthened in the decolonization process. For the work of the CLCS, it would be Mauritius which submit the document over the continental shelf over 200 nm from the base points of the Chagos archipelago.

LEGAL POSITION OF LOS TRIBUNAL REGARDING MIXED DISPUTES

The article contains an analysis of the jurisdiction of the maritime tribunals over the three mixed disputes, related to issues of sovereignty over land. State sovereignty is a very delicate issue, related to territorial sovereignty; therefore, it is inappropriate to consider the state’s statement on the abolition of certain dispute settlement procedures in accordance with article 298 as more significant issues of territorial sovereignty. The awards on an Arbitration before an arbitral tribunal, constituted under Annex VII of the United Nations Convention on Law of the Sea between the Republic of Mauritius and the United Kingdom of Great Britain and Northern Ireland, and An Arbitration before an arbitral tribunal, constituted under Annex VII to the 1982 United Nations Convention on Law of the Sea between the Republic of the Philippines and the People's Republic of China, illustrate the position of LOS tribunals regarding mixed disputes, which connected to terrestrial sovereignty issue. According to a decision analysis, concerning the jurisdiction of mixed disputes, related to sovereignty over land, the LOS tribunal considers the need for a preliminary decision on sovereignty over land, the intention of the plaintiff and the consequences of resolving the claim for a sovereignty dispute are taken into account. However, the tradition is not stable so the modification of criteria in future decisions is possible. Therefore, LOS tribunals have developed an approach to determining jurisdiction over mixed disputes that relate to land, but this will be further developed and detailed in the future.

Order of Provisional Measures in Ukraine versus Russia and Mixed Disputes concerning Military Activities

Abstract This article discusses mixed disputes concerning military activities in light of the Order of Provisional Measures in Ukraine v Russia. It is argued that the International Tribunal for the Law of the Sea (ITLOS) decision that Russia’s use of force against the Ukrainian warships was not military in nature would diminish the military activities exception under Article 298(1)(b) of the United Nations Convention on the Law of the Sea (UNCLOS). The distinct status of warships means that use of force against them can hardly be taken as merely pertaining to law enforcement activities. Thus, the dispute should be more properly characterized as a mixed dispute, containing both a military element and a law enforcement element. In light of the jurisprudence of UNCLOS tribunals concerning mixed disputes, if the Annex VII Tribunal to be constituted intends to assume jurisdiction over the dispute, it would need to either isolate the law enforcement element from the military element, or define and apply the preponderance test applicable to mixed disputes concerning military activities.

Maritime Boundary Disputes and Article 298 of UNCLOS

Maritime boundary disputes pose the most dangerous potential for conflict between States. Article 298 of UNCLOS was designed as a safety valve to allow exclusion of sensitive disputes arising out of contested maritime boundaries—but also to provide a safety net for peaceful resolution of all UNCLOS disputes. This paper offers views on four questions which remain unresolved. First, may States exclude obligations of restraint and cooperation under Articles 74(3) and 83(3) of UNCLOS from compulsory dispute settlement by an Article 298 declaration? Second, for submission to compulsory conciliation, what criteria should be used to decide if the dispute arose subsequent to the entry into force of UNCLOS? Third, does a court, arbitral tribunal or conciliation commission have jurisdiction to consider ‘mixed disputes’ involving land sovereignty or other rights? Fourth, what is the meaning of “shall, by mutual consent”—when conciliation fails to reach an agreement, are the parties bound to refer their dispute back to compulsory third party dispute settlement under section 2 of Part XV of UNCLOS?

SURGICAL TREATMENT OF PATIENTS WITH CANCER OF THE VULVA

The article presents historical aspect of radical surgical treatment of patients with cancer of the vulva from the beginning of the XX century to nowadays. Article presents positive and negative aspects of different surgical techniques in reconstructive plastic component and lymph circulation paths. Question about conducting the inguinal-femoral lymphadenec-tomy always evoked mixed controversial disputes various authors, which leads to index decline or rejection of this type of operation.

Reflections on the Philippines/China Arbitration

The South China Sea dispute between the Philippines and China can be viewed as a mixed dispute that involves both territorial and maritime issues. In this regard, an issue arises concerning whether an Annex vii Arbitral Tribunal under the un Convention on the Law of the Sea can adjudicate a mixed dispute. The Philippines/China arbitral award of 29 October 2015, along with the 2015 Mauritius/United Kingdom arbitration, sheds some light on this issue. Furthermore, with regard to Article 281 of the Convention, the Tribunal in the Philippines/China arbitration adopted an interpretation that is different from the interpretation adopted by the Annex vii Arbitral Tribunal in the 2000 Southern Bluefin Tuna arbitration. The Philippines/China arbitral award provides important insight into the interpretation of Article 281. In addition, the Tribunal’s treatment of China’s informal communications merits particular attention.

The Issue of Jurisdiction Over Mixed Disputes in the Chagos Marine Protection Area Arbitration and Beyond

The real issue in the Chagos Marine Protection Area Arbitration should have been the dispute concerning the Lancaster House Undertakings, over which the Arbitral Tribunal had no jurisdiction. The UNCLOS has no express provision respecting the jurisdiction over mixed disputes—disputes involving territorial sovereignty and maritime boundary delimitation. Thus, a court or tribunal facing a mixed dispute should refrain from exercising its jurisdiction over the maritime issue if its resolution is premised on the resolution of the sovereignty issue involved.

Judicial privilgies of Saxons in mixed disputes in Medieval Serbia

Based on the contemporary testimonies, wealth of the Serbian medieval kings was significantly increased by exploitation of number of precious metal mines that existed in their realm. Beginnings of the mine exploitation in medieval Serbia are related to the settlements of Saxon miners. Saxons were mining experts in medieval Europe who worked in distant mines far away from their homeland Saxony. They worked in this profitable mining business not only in Serbia, but also in Bohemia, Hungary (Transylvania and modern Slovakia) and Bosnia. The settlement of Saxons in Serbia occurred in time of the reign of King Stefan Uros I (1234-1276). Although without preserved sources which could directly support this thesis, Serbian historiography advocates that certain privileges were granted to the Roman Catholic Saxons at the time of their migration in orthodox Serbia. It appears that these privileges included self-government, freedom of religion, and mining concessions. Also judicial privileges are often mentioned in historiography especially the right of Saxons to one half of the members of their ethnicity in judicial collegium and jury in the case of a dispute with member of another ethic group. This paper attempts to test the thesis related to composition of mixed courts and juries by applying historical method, and linguistic, systemic and historical interpretation of the sources such as King's Charters issued to Dubrovnik, Dusan's Code and Despot Stefan's Mining Code.

The Religious Upbringing of Children in “Mixed Marriages”: The Evolution of Irish Law

Mixed marriages have long been a vexed issue in Ireland. Although they have been frowned upon by both Christian traditions, in Ireland, church condemnation of them is coupled with a troubled historical backdrop. Conquest and colonization and the English Reformation established religion as a political identity whereby Protestantism became associated with a colonizing alien force, and Catholicism became a symbol of dispossession. The problems surrounding mixed marriages in Ireland, therefore, stem not only from theological objections, but also from perceived political affiliations. Indeed, because religion and politics in Ireland have been inextricably bound up together, such relationships often concurrently transgress social and political lines. In Ireland, most mixed marriage disputes have centered on the religious upbringing of the children of the union where the Catholic church and the state held potentially conflicting positions. Civil law long dictated that the father had an absolute right to decide on the religious upbringing and education of his children, a principle known as “paternal supremacy” and a relic of old English civil law. In contrast, the Catholic church insisted that children of mixed marriages should be brought up as Catholics, irrespective of the faith to which either parent belonged. The disputes examined in this article, all of which came before the Irish courts, shed light not only on the fraught relationship between the Catholic church and state in terms of mixed marriages, but also establish how the outcome of one such dispute, the Tilson case in 1950, irrevocably changed the civil law position on the religious upbringing of children. This judgment, by relying on the relevant articles of the 1937 Constitution, ended the centuries-old tradition of paternal supremacy. From the Catholic church’s perspective, however, the ruling was irrelevant; that denomination steadfastly maintained its position regarding the religious upbringing of children of mixed marriages.

Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals

Abstract It is unclear whether Law of the Sea tribunals under the Law of the Sea Convention (LOSC, or the Convention) have jurisdiction to determine maritime boundary disputes involving concurrent land sovereignty issues. The text of the Convention and case law are silent in this respect. The only reference is in LOSC Article 298(1)(a)(i), which allows States to make declarations exempting maritime delimitations from compulsory dispute settlement, excluding concurrent territorial questions even from conciliation. However, it leaves unclear whether concurrent land sovereignty issues are also excluded in the absence of such declarations. There are indications that LOS tribunals may be able to decide ancillary land issues so long as these do not constitute the ‘very subject-matter’ of the dispute, or rely on an alternative jurisdictional basis. The question of competence over mixed disputes may be less extensive in effect than is often believed. States should not avoid initiating proceedings based on the view that LOS tribunals might not ultimately exercise jurisdiction.

International, Mixed, and Private Disputes Arising Under the Kyoto Protocol

In the relatively short time since the Kyoto Protocol’s entry into force, many types of disputes have arisen which have resulted in the commencement of a variety of dispute settlement proceedings. In addition to the international adjudicatory bodies charged with deciding disputes arising under the Kyoto regime, domestic courts and tribunals have also found themselves seized of such litigation. The purpose of this article is to survey the complex terrain of climate change litigation, and review the experience that States and non-State entities have had to date with the settlement of disputes arising under, and out of, the Kyoto Protocol. These include inter-State disputes, mixed disputes and private disputes. We have reasonably good knowledge of the international and mixed disputes that have arisen, but in contrast, comparatively little is known about the number of private disputes that have occurred, although the complexity and novelty of transactions under the Kyoto Protocol’s flexibility mechanisms, combined with fact that such transactions are subject to national regulation and international oversight, means that such disputes are likely to arise. In sum, experience to date indicates that the many methods of settling the range of disputes are being used effectively, and it is important for the future of the climate change regime that this multi-layered approach to dispute settlement is maintained.

The Outcomes of Military Buildups: Minor States vs. Major Powers

Virtually all of the empirical work concerning the general impact of mutual military buildups on the escalation of militarized disputes to war addresses the impact of these buildups on major states. Given the fact that better data are available now than when many of the first studies were conducted, the empirical question of whether the escalation of disputes between major and minor states follows similar patterns is addressed here. This also avoids the problem of our assuming that major states reflect the whole system, without systematic evidence that indicates that such an assumption is valid. The study builds upon earlier work by looking at the consequences of military buildups for all Militarized Interstate Disputes, and examines the effects for different classes of disputes (those between major states, those between minor states, and mixed disputes). The findings indicate that we cannot simply generalize from major state experiences to minor state relations: there are clear patterns of escalation, and there are definite commonalities and distinct differences in these patterns. Mutual military buildups increase the chance of escalation for both major and minor state disputes, but not for mixed disputes. Territorial disputes are much more likely to escalate than other types of disputes under virtually all circumstances. And it appears that the period after World War II is truly different from previous eras. There is no pattern of escalation among major states, and the patterns of escalation in the two other classes of disputes are substantially altered after the war. The author argues that in order to explain both similarities and differences, it is necessary to refrain from placing theoretical approaches in direct opposition to each other. Rather, we must look at the interplay between objective threat, cognitive psychology, and the impact of constructivism on both our theory and practice in politics.

NFLUENCING MEDIATOR BEHAVIOR THROUGH BARGAINER FRAMING

Research adopting prospect theory to examine negotiator performance was extended to mediation. We examined whether framing negotiator payoffs in terms of gains or losses affects a mediator's behavior towards negotiators when the mediator has no personal frame. The use of a mediator presents a critical test between an explanation of framing effects based on bargainers' underlying preferences for risk and a simpler explanation based on the psychophysical properties of perceived gains and losses. A computer‐based experiment was conducted in which subjects acted as mediators between two disputants (computer programs) in an integrative bargaining task. As predicted, subjects proposed settlements of higher joint value when both disputants had loss frames than when both had gain frames, supporting the psychophysical explanation. Moreover, within mixed framed disputes, subjects' proposals favored the loss‐framed bargainer over the gain‐framed bargainer. However, predicted interactions between bargainer frame and concession‐making activity were not supported Implications of the results for real bargainers and mediators are discussed.

A Theory of Procedure

The search for the most effective conflict resolution procedure requires identfication of the primary objective in resolving different kinds of disputes. This Article focuses on the kind of disputes considered in the legal system and draws on the results of the authors' empirical studies to develop a general theory ofprocedure for attaining the objectives of truth and ustice in situations of cognitive conflict, conjlict of interest, and in mixed disputes. In this Article, we propose a general theory of procedure for resolving conflicts, with special attention to disputes dealt with in the legal process. For a number of years we have applied the theories and methods of social psychology in our research to examine and compare the characteristics of various procedural systems incorporated in the legal process.' Until now we have published only the reports of particular projects, with occasional speculation about more general issues. But now we have developed the body of our research sufficiently to make a more comprehensive statement. In this Article we propose a general framework for analyzing and classifying all conflict resolution procedures, including, of course, all procedures employed in the legal proc-