Part XV Research Articles

Dispute Settlement in the Law of the Sea: Survey for 2023

Abstract This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the UN Convention on the Law of the Sea and outside the framework of the Convention. The most significant developments during 2023 were the judgments on the merits of a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in the Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) case and of the International Court of Justice (ICJ) in the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) case; the commencement of two new cases before the ITLOS and the ICJ concerning the seizure and detention of vessels and climate change obligations, respectively; and the findings and recommendations of a panel established by the South Pacific Regional Fisheries Management Organisation to consider the validity of one of its fisheries conservation and management measures.

Maritime dispute resolution: understanding adequacy of UNCLOS: a systematic review

ABSTRACT The United Nations Convention on the Law of the Sea (UNCLOS) plays a pivotal role in international maritime law, providing a comprehensive framework for the settlement of disputes related to sea and ocean spaces. This systematic review explores Part XV of UNCLOS, dedicated to the ‘Settlement of Disputes,' and delves into the mechanisms outlined in Articles 279 to 299 for resolving maritime conflicts. The study relies on a thorough review of published materials from 1994 to 2023, encompassing monographs, reviews, research papers, case studies, and conference papers available in the Scopus database. The review scrutinises the dispute resolution mechanisms available in UNCLOS. It explores the perspectives of the international legal community, especially in the Indo-Pacific region, highlighting how major powers leverage UNCLOS to critique maritime claims. Practical challenges faced by states litigating against major powers and the need for cautious interpretation are discussed. The study underscores the ongoing discourse about UNCLOS’ role in navigating ocean governance complexities and highlights the importance of continuous exploration and refinement of dispute resolution mechanisms, call for supplementary legal mechanisms, particularly the role of Global Power countries and regional context of maritime regions pose demand for further initiatives for achieving sustainable ocean governance.

Opting Out of unclos Tribunals: The Impact of Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

Abstract On 2 February 2017, the International Court of Justice (icj) handed down its judgment on preliminary objections in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) holding that it may proceed to the merits phase. Kenya had raised an objection rooted in Part xv (“Settlement of disputes”) of the 1982 United Nations Convention on the Law of the Sea (unclos). It contended that the Convention’s dispute settlement system is an agreement on the method of settlement for its maritime boundary dispute with Somalia and therefore falls within the scope of Kenya’s reservation to its optional clause declaration recognizing the Court’s jurisdiction as compulsory. The reservation excludes “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”. This article provides an analysis of the icj’s interpretation of Part xv of unclos and assesses its potential implications for the Convention’s dispute settlement mechanism.

THE EXTENT AND LEGITIMACY OF THE JUDICIAL FUNCTION IN UNCLOS DISPUTE SETTLEMENT

AbstractThis article examines reactions to the South China Sea and Chagos Marine Protection Area arbitrations under the United Nations Convention on the Law of the Sea (UNCLOS), in particular concerns about the potential widening of Part XV jurisdiction and its impact on the dispute resolution system's consent basis. It argues that assessing the impact of such cases involves a characterization of both the function of Part XV and of international judges. Ultimately, it suggests that the best test of whether UNCLOS case law has gone too far is the reaction of States in designing dispute settlement under the new Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction.

Is Compulsory Jurisdiction Under UNCLOS Part XV Expanding? A Critical Review of the Claims

A recent criticism of international courts and tribunals that have seized jurisdiction under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS or the Convention), is that they have attempted to expand their jurisdiction beyond the limits conferred by the Convention. This article calls such criticisms into question. Most of all, this article raises doubts over what exactly “expansion” of jurisdiction means. Although many scholars claim that Part XV tribunals “expand” their jurisdiction, none of them clearly defines the meaning of such “expansion.” In addition, their arguments focus solely on a few widely known and controversial cases. Lastly, in focusing on and arguing solely about the expansion of jurisdiction, they run the risk of oversimplifying the overall contributions of Part XV tribunals to Part XV rules on dispute settlement procedures, meaning that other points that merit further study remain less noticed. The aim of this article is to reassess the recent criticisms of the expansion of compulsory jurisdiction under UNCLOS Part XV. This will complement existing scholarly works and provide the opportunity to investigate a different perspective when appraising judicial practice concerning the exercise of compulsory jurisdiction under UNCLOS Part XV.

DISPUTE SETTLEMENT MECHANISMS UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: THE WAY FORWARD FOR MALDIVES

The maritime boundary delimitation judgment by the International Tribunal for the Law of the Sea between Mauritius and the Maldives was the first Maldivian dispute settled at an international court or tribunal. Regrettably, misinterpretation and misinformation regarding international laws and the Maldivian domestic laws related to the dispute became prevalent among the Maldivian community. One of the core concerns that need to be addressed is how Maldives got subjected to a legally binding dispute settlement mechanism concerning a dispute that was initially regarding the sovereignty over the Chagos Archipelago between two other States, namely: Mauritius and the United Kingdom. Additionally, it is important to determine whether Maldives has any other legal means to safeguard its maritime zones from future maritime disputes. The main objective of this paper is to explore the dispute settlement mechanisms under Part XV of the United Nations Convention on the Law of the Sea (LOSC) and determine how these provisions can be utilised to safeguard the Maldivian maritime zones. This research is primarily a doctrinal legal research. Firstly, the article outlines the provisions under Part XV of the LOSC whilst exploring its drafting history. Next, the article analyses the optional exception on maritime delimitation under LOSC Article 298(1)(a) and its significance to the Maldivian situation. It suggests that considering the undelimited outer continental shelves of Maldives, Maldives should consider declaring an optional exception under LOSC Article 298(1)(a). The article concludes that optional declarations serve as safeguards against premature and costly dispute resolution.

Dispute Settlement in the Law of the Sea: Survey for 2022

Abstract This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the UN Convention on the Law of the Sea and outside the framework of the Convention. The most significant developments during 2022 were the award of an Annex VII arbitral tribunal relating to the preliminary objections of Russia in the Dispute concerning the Detention of Ukrainian Naval Vessels and Servicemen case and the judgment of the International Court of Justice on the merits in the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea case.

국제재판소의 유엔해양법협약 제15부 법규범 형성에의 기여(원제목: ‘Judges Make UNCLOS Part XV’)

One of the greatest achievements of the Third UN Conference on the Law of the Sea was the introduction of the compulsory dispute settlement system into the United Nations Convention on the Law of the Sea (UNCLOS) as an integral part (Part XV). The introduction of the compulsory jurisdiction system was due to the shared need for comprehensive and effective dispute settlement mechanisms to prevent discretionary interpretation and application of the Convention. Thus, Part XV of UNCLOS maintains the overall balance and holds the whole structure of the Convention.
 Recently, the Part XV system of UNCLOS has been at the centre of controversies and debates among academics, which were mostly based on the views that tribunals have vigorously expanded the applicability of compulsory jurisdiction and that contradictions within the case-law have raised an inconsistency problem in interpreting and applying Part XV. However, the current thesis calls such criticisms into question. Instead, this research argues that the judicial findings concerning the compulsory dispute settlement system of UNCLOS can be analysed and assessed through the concept of judicial law-making.
 Among the different ways of understanding the concept of judicial law-making, this thesis considers that courts and tribunals may create and shift the normative expectations of other subjects of international law through the interpretation of a treaty. International judicial bodies’ interpretation of a norm in a treaty may inevitably affect all other states parties to the same treaty because their authority as judicial organs enables them to shape the meaning of the law and to make their decisions a reference point for other subjects of international law. In this regard, this thesis argues that judicial law-making may happen when international judicial bodies interpret the provisions of UNCLOS Part XV to find a way to apply the rules to actual cases.
 In brief, the present thesis will show what rules Part XV tribunals have created concerning the compulsory dispute settlement procedures of UNCLOS and how this system has developed through the clarification of norms by international adjudication. In this respect, this research will propose a different perspective on the study of the dispute settlement system under UNCLOS and the role of Part XV tribunals.

Military Activities or Law Enforcement Activities?: Reflections on the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen

Abstract The interpretation of “disputes concerning military activities” under Article 298(1)(b) of the United Nations Convention on the Law of the Sea (UNCLOS) rests on a sensitive balance between the protection of strategic interests of States and the need for peaceful settlement of international disputes. There, an essential issue arises how an adjudicative body acting under Part XV UNCLOS should assess the nature of conducts of State for the purposes of Article 298(1)(b). This issue was vividly raised in the dispute between Ukraine and the Russian Federation with regard to the detention of Ukrainian naval vessels and servicemen. In this regard, both the International Tribunal for the Law of the Sea (ITLOS) and the arbitral tribunal set out in accordance with Annex VII UNCLOS wrestled with this issue. This article examines the manner of the interpretation of the concept of the military activities for the purposes of Article 298(1)(b) by comparing the approaches taken by ITLOS and the Annex VII arbitral tribunal.

Maritime Dispute Settlement in Southeast Asia: Bargaining under the Shadow of the LOSC

Abstract The UN Convention on the Law of the Sea (LOSC) has influenced the thinking and negotiating practices of States in Southeast Asia, providing them more common ground and at times bones of contention. Overcoming their traditional reluctance, Southeast Asian countries have become more open to the dispute settlement provisions under Part XV of the LOSC. The rulings in the arbitral and judicial cases from the region and elsewhere have provided ample guidance to States in their dealings with and among each other. Nonetheless, the management and resolution of the long-standing competing maritime claims in the South China Sea have thus far eluded them. Negotiations on a proposed code of conduct have gone on for years and remain a work in progress.

Reimagining the Procedural Aspects of Part XV of the United Nations Convention on the Law of the Sea

Abstract This article explores the question: ‘what would/should Part XV look like if it were to be negotiated today?’ Part XV, on dispute settlement, has played an important role in resolving issues including the interpretation of the United Nations Convention on the Law of the Sea (LOSC). Many procedural issues have arisen in these disputes, including those relating to jurisdiction and admissibility. In large part, the system has proven robust, although some tinkering with Part XV processes might be appropriate. Larger scale reforms might include clear instructions on the ability of International Tribunal for the Law of the Sea to consider requests for advisory opinions. Finally, the article considers whether dispute settlement processes in the World Trade Organization or human rights institutions may hold lessons for the LOSC.

Reflections on the Governance Function of Compulsory Dispute Settlement in the Legal Order for the Ocean

Abstract This article takes the fortieth anniversary of the United Nations Convention on the Law of the Sea as an opportunity to reflect on the role that the compulsory dispute settlement system under Part XV of the Convention plays in maintaining the legal order for the ocean. It posits that, in addition to the more traditional understandings of the dispute settlement function and law-ascertainment function of international adjudication, a clear governance function can be discerned. By developing a three-fold typology of ways in which this governance function manifests itself in the use and exercise of compulsory jurisdiction under Part XV, the aim is to shed light on the multifaceted role of compulsory dispute settlement in maintaining the legal order for the ocean in a way that accounts for the changing expectations of States Parties over time.

From the secrets of longevity... nutraceutics – part XV. The interdisciplinary team of palliative care

From the secrets of longevity... nutraceutics – part XV. The interdisciplinary team of palliative care

국제해양법재판소의 2019년 M/V “Norstar”호 사건 본안 판결에 대한 국제법적 분석

This article aims to review an important case brought before international courts and tribunals established under Part XV, Section 2 of the UN Convention on the Law of the Sea (UNCLOS) in commemoration of the 40th anniversary of the adoption of the Convention. This article focuses on the judgment on the merits of the M/V “Norstar” case (Panama v. Italy) rendered on April 10, 2019 by the International Tribunal for the Law of the Sea (Tribunal). This decision is of great significance because the Tribunal dealt with one of the most important principles of the law of the sea: the principle of the freedom of the high seas. Indeed, the M/V “Norstar” case is the first international decision in which international judges have substantially interpreted the freedom of the high seas under Article 87 of UNCLOS. Futhermore, this judgment also contributed to the development of the law of the sea by touching upon the alleged breach of Article 300 of UNCLOS (Good faith and abuse of rights). Discussion on this provision has been limited in both international decisions and academic writings. Therefore, bearing in mind significant implications of the M/V “Norstar” case, this article will first briefly summarize the facts of the case, the parties’ positions, and the main rulings of the Tribunal. Then, this article will review the judgment concerning claims on breach of Articles 87 and 300 of the Convention and reparation.

An Appraisal of Article 300 of the United Nations Convention on the Law of the Sea

The aim of this article is to clarify the meaning and scope of Article 300 (good faith and abuse of rights) of the United Nations Convention on the Law of the Sea (UNCLOS). Uncertainty about the meaning of Article 300 raises doubts about its raison d’être. It is insufficient to rely on the means of interpretation of treaties under Articles 31 and 32 of the Vienna Convention on the Law of Treaties and customary international law to understand Article 300 of UNCLOS. Therefore, this article analyzes relevant international cases brought before international courts and tribunals (ICTs) established under Part XV, Section 2 of UNCLOS to scrutinize the interpretation and application of Article 300. The first task of this article is to identify how ICTs have understood the structure of this provision and its character. After this general observation, this article answers the following questions: (1) Which state bears the burden of proof to invoke Article 300? (2) What conditions/steps fulfill Article 300’s invocation? (3) In which circumstances do courts uphold or reject allegations that Article 300 has been breached? This article’s findings allow for an appraisal of international judges’ interpretations of the meaning and purpose of Article 300.

Dispute Settlement in the Law of the Sea: Survey for 2021

Abstract This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the United Nations Convention on the Law of the Sea and outside the framework of the Convention. The most significant developments during 2021 were a judgment of a Special Chamber of the International Tribunal for the Law of the Sea finding that it had jurisdiction to delimit a maritime boundary between Mauritius and the Maldives and a judgment of the International Court of Justice delimiting the maritime boundary between Somalia and Kenya.

Counter-Arguments to the Claims over the Jurisdictional Expansion of UNCLOS Part XV

Recently, the compulsory dispute settlement system of UNCLOS has been at the centre of controversies and debates among academics. Many authors have criticised judicial decisions concerning the rules of Part XV of UNCLOS that the courts and tribunals seised of jurisdiction following the rules of Part XV have vigorously attempted to expand the purview of compulsory jurisdiction beyond those conferred by the Convention. Among many other grounds of the jurisdictional expansion claims, this paper mainly focuses on the arguments based on Part XV tribunals’ case-law of article 293 and the exercise of incidental jurisdiction. Within past proceedings under UNCLOS Part XV, tribunals have addressed the issues that are not directly regulated by the provisions of the Convention by virtue of either article 293 or their incidental jurisdction. As these cases showed the tribunals’ exercise of jurisdiction beyond the four-corners of UNCLOS, the claim of jurisdictional expansion appears to be a correct appraisal of judicial practice under Part XV. However, this paper calls such criticisms into question - What if the case-law of Part XV tribunals turns out that they are not actually ‘expanding’ the purview of their jurisdiction? On this basis, the purpose of this paper is to raise counter-claims to these so-called ‘jurisdictional expansion’ claims. Accordingly, against the recently raised jurisdictional expansion claims, three major counter-arguments will be made – 1) the ambiguity of the criteria for determining whether the jurisdiction has been expanded; 2) the necessity of broadening the viewpoint; and 3) the possibility of different interpretations concerning the role of Part XV tribunals. Hopefully, these counter-arguments may provide a new approach to the study on the role of Part XV tribunals and their contributions to the development of the dispute settlement system of UNCLOS.

Study on the ‘Legal Effect’ of the Advisory Opinion of the ICJ in Determining the Existence of Dispute

Determining the existence of dispute is a crucial matter for the progression of entire judicial proceedings in international law. In this regard, the judgment rendered by the Special Chamber of the International Tribunal for the Law of the Sea concerning Preliminary Objections raised in the recent Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean case was quite noticeable. In this case, the Special Chamber determined that the dispute concerning sovereignty over the Chagos Archipelago between Mauritius and the UK does not exist, based on the ICJ’s Advisory Opinion delivered in 2019. Although it has been widely acknowledged that the Advisory Opinion of the ICJ may have a certain ‘legal effect’ on the disputed matters between states, it was not clearly given exactly what that legal effect is. However, in Mauritius/Maldives case, the Advisory Opinion of the ICJ was confirmed as a new element which must be considered in determining the existence of a dispute. And accordingly, the Special Chamber found that due to the legal effect of the Advisory Opinion on the matter of the separation of the Chagos Archipelago, the sovereignty dispute over this region ceased to exist. This judgment implied the legal effect of the Advisory Opinion on the status of a certain on-going dispute and how it affects. The Special Chamber’s determination on the existence of the dispute may have a substantial impact on the future international adjudicative practice in general. First, considering the tendency of ‘cross-fertilization’ between international courts and tribunals, the Special Chamber’s decision would also become a new referencing point for other courts and tribunals in determining the existence of dispute in similar circumstances. Secondly, this case will also affect the practice of UNCLOS Part XV in so-called ‘mixed dispute’ cases in dealing with jurisdictional matters. Lastly, Advisory Opinions not only given by the ICJ but by other judicial bodies would also have an impact on the future judicial proceedings where the existence of a certain dispute is contested.

The Jurisdiction of the Dispute Settlement Bodies of the Law of the Sea Convention With Respect to Other Treaties

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a system for compulsory and binding dispute resolution. Article 288(2) of UNCLOS allows the dispute resolution system of Part XV to be used by the parties to another international agreement in accordance with the terms of that other agreement, as long as that agreement is related to the purposes of UNCLOS. This article examines the treaty practice under Article 288(2) to assess how those other agreements (which are mostly regional fisheries management organization agreements) provide for access to Part XV. The article examines these agreements within the following analytical framework: (1) Are these agreements related to the purposes of UNCLOS? (2) What jurisdiction, ratione materiae, do the agreements confer on the court or tribunal? (3) How do the agreements provide for submission? (4) How do the agreements deal with applicable law issues? (5) How do the agreements deal with the availability of provisional measures?

Dispute Settlement in the Law of the Sea: Survey for 2020

Abstract This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the UN Convention on the Law of the Sea and outside the framework of the Convention. It covers developments during 2020. The most significant developments were awards by the arbitral tribunals in the Enrica Lexie and Coastal State Rights cases.