Permanent Court Research Articles

The politics of grand strategy in an emerging state: a case study on Philippine diplomacy toward China

ABSTRACT Some observers expected a drastic change in the Philippines’ diplomacy toward China when Rodrigo Duterte said goodbye to the United States in 2016. However, after six years, the Philippines has remained an allied partner of the United States. The Philippines’ defense establishment bolstered its maritime domain awareness capacity thanks to financial and technical support from the United States. Department of Foreign Affairs (DFA) maintained the award from the Permanent Court of Arbitration (PCA) favoring the Philippines over China. This paper sheds light on the Philippines’ policymaking process by framing the politics of grand strategy in an emerging state. The grand strategy is an intellectual architecture to clarify the general direction of foreign policy shaped by multiple state actors who are not limited by the foreign affairs office. Neither asymmetrical power relations nor presidential power can dominate the direction of the Philippines’ diplomacy. The president, the DFA, and the defense establishment have developed institutional foundations to craft particular policies. Once they designed the grand strategy in the 1990s, successive policymakers did not remove it but rather incrementally changed it, especially in the 2010s, when they faced a series of assertive actions from China. In an emerging state with limited state capacity, Filipino policymakers do not always coordinate well with each other but still maintain a certain level of autonomy to create particular policies. Against the dominant framework of the weak state, this paper argues that Filipino policymakers demonstrate the state’s capacity to achieve their policy goals, even with limitations.

Dispute Resolution between the Philippines and China: Fishing Activities in the South China Sea

Chinese fishing vessels and maritime militias were found in Philippine waters on April 12, 2021. Diplomatic protests raised by the Philippines have been ignored by China, which still claims most of the South China Sea, although in 2016 The Permanent Court of Arbitration at The Hague under Annex VII of the United Nations (UN) Convention on the Law of the Sea (UNCLOS), ruled that such a claim is inconsistent with international law. In the article, the authors use a normative research method and a comprehensive literature review in which sources are obtained from secondary data. The results show that China violates the tribunal ruling by infringing the sovereign rights of the Philippines’ Exclusive Economic Zone (EEZ). For the avoidance and prevention of further issues between the two states, the establishment of a Provisional Measures Zone (PMZ) may be used as a settlement.

PENYELESAIAN SENGKETA PERBATASAN DARAT DI SEGMEN BIDJAEL SUNAN OBEN ANTARA INDONESIA DAN TIMOR LESTE

This study aims to look into how land border disputes between Indonesia and Timor Leste along the Sunan-Oben Bidjael Segment have been settled using international law. An official editor is employed in this normative study. The study’s findings demonstrate that a Joint Border Committee between Timor Leste and Indonesia has been established to serve as a forum for settling land border disputes. Later, This team then changed its name to The Treaty of 1904 and the Permanent Court of Arbitration of 1914 (PCA 1914) have been chosen by the Technical Sub-Committee on Boundary Demarcation and Regulation (TSC-BDR) as the border demarcation legal framework. Article 8 of the 2005 Provisional Agreement states that local communities, in this case indigenous peoples and traditional leaders at the borders, are given the opportunity to participate in the dispute resolution procedure that takes place on the border between the two countries by promoting nonviolent and peaceful means. (b). It is evident that the systems of customary law that apply to the residents of East Timor (Timor Leste) and West Timor (Indonesia) are the same given that these two communities share a shared sociocultural background. Land conflicts, the boundaries of a community’s territory, and the ability of community leaders to engage in direct discussions to resolve these issues can all be governed by the basic principles of customary law.

Introducing twin corpora of decisions for the International Court of Justice (ICJ) and the Permanent Court of International Justice (PCIJ)

AbstractIn this article I present the first two of a new series of open and high‐quality international legal data sets: comprehensive, fully reproducible, human‐ and machine‐readable open access collections covering one hundred years of case law of the primary judicial organs of the United Nations and the League of Nations: the Corpus of Decisions: International Court of Justice (CD‐ICJ) and the Corpus of Decisions: Permanent Court of International Justice (CD‐PCIJ). Each corpus is designed to capture in its entirety the published case law of its eponymous Court, including majority opinions (judgments, advisory opinions and orders), but also the minority opinions annexed to each decision (declarations, separate opinions and dissenting opinions). The corpora are enriched with useful metadata to enhance text‐as‐data research and enable stand‐alone metadata analyses. While each corpus can stand on its own, the twin corpora are designed to be perfectly interoperable for the purposes of analyses that wish to treat the ICJ and PCIJ as a continuous entity. The most recent versions of the corpora will always be available open access at https://doi.org/10.5281/zenodo.3826444 (CD‐ICJ) and https://doi.org/10.5281/zenodo.3840479 (CD‐PCIJ).

A reply to: Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

The case involving the nitrate factory at Chorzów, Upper Silesia has been the subject of much academic commentary. Last year the intellectual property aspects of the case were explored in this journal. In this reply, I express doubts about whether the case involved the expropriation of intellectual property rights (IPRs) for two reasons. First, there are grounds to question the existence of IPRs. Second, even if there were IPRs, the Permanent Court of International Justice does not appear to have found that IPRs were taken. Instead, the case serves as a reminder of the importance of identifying the legal status of an IPR in the relevant territory when seeking to protect it under international law. * My thanks to Martyna Mielniczuk-Skibicka and Kacper Górniak. All errors are my own.

Classification of Maritime Disputes and Modern Legal Means of their Resolution

A review of scientific articles published over the past 15 years in leading foreign scientific journals on international law demonstrates the gradual improvement of legal means for the settlement of maritime disputes between the states.Aim. Identification of the features for application of the law of the sea norms targeted on the resolution of maritime disputes that develop in the modern international system.Tasks. Development of the classification of maritime disputes, analysis of the jurisdiction of the judicial authorities competent to resolve maritime disputes, characterization of the provisions of international agreements and customs of the law of the sea in the resolution of maritime disputes by the International Court of Justice of the United Nations (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration in The Hague (PCA).Methods. Discourse analysis of the most authoritative publications on the issue of resolving maritime disputes, a formal legal analysis of the norms and customs of maritime law, as well as a comparative legal study of judicial and arbitration practice in resolving interstate maritime disputes. Law enforcement practice on maritime disputes allows to characterize the subject of modern interstate maritime disputes; critically assess the fairness of decisions of international courts; to analyze the problems of enforceability of judicial and arbitral awards in the framework of the procedures for the settlement of maritime disputes provided for in the 1982 UN Convention on the Law of the Sea.Results. Reasonable decisions of the International Court of Justice, the International Tribunal for the Law of the Sea and the Permanent Court of Arbitration in The Hague are usually implemented by the states parties to the 1982 UN Convention on the Law of the Sea. Protection of the marine environment as well as prompt release of ships and crews from arrest have become a modern legal reality due to the effectiveness of the legal mechanism for resolving interstate maritime disputes. Territorial maritime disputes cause significant difficulties at all stages of their resolution, which is due to their political nature and the efforts of states to protect their national interests.Conclusion. The resolution of maritime territorial disputes requires more flexibility from the parties, an international agreement between the parties to the dispute on the procedure for its consideration, as well as the use of conciliation procedures to work out a compromise solution to the dispute.

Legal analysis of the permanent international investment court and its role in establishing consistency under international investment law

Legal analysis of the permanent international investment court and its role in establishing consistency under international investment law

Jurisdiction Beyond Territorial Sovereignty: Defining the Scope of Exclusive Flag-State Jurisdiction Under Art. 92 UNCLOS

Under Art. 92 of the United Nations Convention on the Law of the Sea (UNCLOS), ships sailing the high seas are subject to the exclusive jurisdiction of their flag State. Despite being considered a pivotal rule in the international law of the sea, the scope of this provision is nonetheless still unclear: indeed, as Art. 92 does not characterise the term ‘jurisdiction’, it leaves open the question of whether it only encompasses enforcement jurisdiction or also prescriptive and adjudicative one. In the well-known ‘Lotus’ case, the Permanent Court of International Justice (PCIJ) ruled that exclusive flag-State jurisdiction only refers to enforcement jurisdiction. This understanding prevailed until two recent cases (M/V ‘Norstar’ and ‘Enrica Lexie’ Incident) ruled that States are prohibited from attaching legal consequences to the conduct of foreign ships and of the people on board altogether. Against this backdrop, the work discusses the extent of the exclusivity of flag-State jurisdiction over ships sailing the high seas. It contends that jurisdiction under Art. 92 UNCLOS only encompasses the faculty to impede or otherwise interfere with the actual movement of ships, hence the jurisdiction to enforce.

АМЕРИКАНО-КИТАЙСКИЕ ПРОТИВОРЕЧИЯ ВОКРУГ ТАЙВАНЬСКОГО ПРОЛИВА (Часть 1. Суть терминологического спора)

For decades, the Taiwan Strait has been one of the main "hot spots" in the Asia-Pacific region. As an object of confrontation between China and Taiwan, the U.S. and China, the area is strategically important to the entire global economy and international shipping. The strait connects the South China Sea with the East China Sea, through which up to 80% of world trade passes, and it is also a crucial link in the global supply chain. Even a short-term blockade of the Taiwan Strait could have serious consequences for the global economy. A new aggravation in the region occurred on July 13, 2022, when Wang Wenbin, spokesman for China's Foreign Ministry, declared that the Taiwan Strait is not "international waters." This article examines in detail the political and legal aspects of China's and the United States' perception of the legal status of the Taiwan Strait, revealing the understanding of "international waters" under international maritime law. It substantiates the main reasons for Beijing's actions regarding the Taiwan Strait, and also forecasts the possible resolution of this legal dispute in light of the fundamental change in China's policy regarding the islands and waters of the South China Sea, which followed the verdict of the Permanent Court of Arbitration in The Hague in 2016.

The Chagos Archipelago Case and the Limits of International Law (English) L’Affaire de l’Archipel des Chagos et Les Limites du Droit International

The legal status of the Chagos archipelago is complex because it is of a hybrid nature: it is under the sovereignty of the United Kingdom which grants rights at sea to Mauritius, and on land to the United States (Diego Garcia). This case is also important because it is not easy to have two divergent preoccupations: the protection of the environment in the face of the rights of Chagossians and environmental sustainability in the face of equity and human rights. This case was first submitted to the Permanent Court of Arbitration (PCA), before the UN General Assembly had asked the International Court of Justice (ICJ) about the claims that the PCA declared it lacked jurisdiction to answer.

Cutting-Edge Issues in International Dispute Resolution

Esmé Shirlow presented the findings of a policy paper developed in collaboration with the International Institute for Sustainable Development (IISD), titled Approaches of International Courts and Tribunals to the Award of Compensation in International Private Property Cases and Implications for the Reform of Investor-State Arbitration. The policy paper follows previous IISD work on compensation in investor-state arbitration, which left open the question of whether approaches to issues of compensation in investor-state arbitration differ from the approaches of other international courts and tribunals (hereinafter, courts), and the extent to which this comparative practice might offer inspiration or ideas for ongoing investor-state dispute settlement reform. The research presented by Dr. Shirlow seeks to answer this question by analyzing how issues of compensation have been analyzed in cases concerning alleged state interferences with private property filed before the Permanent Court of International Justice (PCIJ), International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS), United Nations Convention of the Law of the Sea Annex VII Tribunals, European Court of Human Rights (ECtHR), African Court on Human and Peoples’ Rights (ACtHPR), and the Inter-American Court of Human Rights (IACtHR).

Sytuacje ciągłe jako źródło odpowiedzialności państwa w prawie międzynarodowym - aktualne tendencje

The article presents an analysis of continuing situations stricto sensu, with the main focus on the domain of human rights. The concept finds its application in circumstances where there is a continuum between the past and presence. Despite the fact that it traces back to the 19th century, the exact scope of its application as well as the legal consequences are disputable. The purpose of this analysis is to indicate the legal aspects that have to be taken into account while assessing this continuity. The author provides an overview of the relevant case-law of international courts: the Permanent Court of International Justice, European Court of Human Rights and International Court of Justice. Due to the fact that the possibility of continuing situations was foreseen by the International Law Commission, the paper refers to Article 14 of its Draft Articles on State Responsibility. The author argues that the case-law developed by international judicial organs on the basis/or in reference to international human rights treaties reflects the understanding of continuing situations in general international law. However, the key factor allowing to classify a situation as a continuing one refers to identifying the legal aspects of the continuity. Consequently, the following elements are of crucial importance in the discussion: the scope of the international obligation, the acts/or facts constituting the alleged interference in the right, date of commission of the interference, as well as the special circumstances of the case. Taking into account the evolving character of obligations incumbent upon states in the field of human rights, the concept of continuing situations may have significant effect on the accountability of certain acts for states and, as a result, increase the protection of potential victims.

The Politics of South China Sea Warfare: The Multilateral Democratic Diplomacy Recourse of Mini-ASEAN Youth for Regional Security

The 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982) adheres that a rule-based maritime order is a rudimentary concept of international law. The 2016 award by the Permanent Court of Arbitration (PCA) on the South China Sea (SCS) has led to the continuous Chinese psychological maritime warfare in the Philippine Exclusive Economic Zone (EEZ). The foreign policy of the President of the Republic of the Philippines (RP) has led to contradicting statements of Philippine government officials in protecting the West Philippine Sea (WPS) from the People’s Republic of China (PRC). With the 1992 ASEAN Declaration, the regional bloc may have its jurisdiction over the case; however, their principle of non-interference prevents any mechanism to settle the maritime dispute. While both juridical and political aspects were considered in resolving the Timor Sea case through conciliation, Article 298 of UNCLOS 1982 becomes the core legal collision in the SCS. Despite experts, organisations, and institutions proposing democratic initiatives through digital activism, securing and defending the WPS, however, the broader Indo-Pacific requires the democratic diplomacy recourse of a mini-ASEAN youth to coordinate with the youth from the Quad and the G7 countries to multilaterally raise the concern at the United Nations.

Extraterritorial Implications of Turkish Legislation

Prescriptive jurisdiction of states is based on principles such as territoriality, nationality, passive nationality, universality, and protection. Although jurisdiction to prescribe is limited to the territory of the relevant State, geographic scope of application of any legislation can be determined in an extraterritorial manner. Regardless of the intense discussions on this issue, extraterritorial prescriptive jurisdiction is not considered a violation of international law. Decision of the Permanent Court of International Justice which was rendered in the SS Lotus case was accepted as the basis for objective territoriality principle and effect doctrine. In other words, States can exercise prescriptive jurisdiction for acts and conducts committed abroad that have an impact on their countries. Principle of objective nationality and effect doctrine are not the only basis for the application of legislation of a state to the conducts taking place abroad or persons living in another country. A state can also exercise extraterritorial prescriptive jurisdiction relying on the principle of passive nationality, protection principle or another basis. In Turkish law, geographic scope of application of an act and other legislation are rarely determined expressly on an extraterritorial basis. The extraterritoriality of any rule is defined by interpretation taking into account the purpose of the relevant rule. Extraterritorial application or implication of Turkish law can be seen in various areas such as legislation on anti-trust, personal data protection, anti-corruption, and securities. In addition to legislations regarding these issues, other legislations that have extraterritorial scope of application in Turkish law are discussed in this study.

Ordering Institutions: The Judicial Function of the Permanent Court of International Justice in Relation to Interwar Organizations

Abstract The Permanent Court played a vital role in the emergence of the law of international organizations. Existing accounts of this development focus on the Court’s conception of organizations. This paper argues that this interpretation underappreciates the controversy regarding the performance of the Permanent Court’s judicial function and its place within the inter-war institutional order. Crucially, it is claimed that initially the Permanent Court adopted the perspective of an authoritative interpreter, limiting the scope for recognising the autonomy of organizations. However, the Court began to adopt a more restrained conception of its judicial function and recognised that international organizations possessed a form of compétence de la compétence. This recognition paved the way for a ‘law of international organizations’ to emerge, but, crucially, was not based on any revised understanding of what it meant to ‘be’ an international organization, but rather, on what it meant to ‘be’ an international court.

The role of international courts’ decisions in the system of sources of international financial law

The paper deals with the analysis of the legal nature of international courts’ decisions and their impact on the international financial legal order. The author claims that decisions of international courts, creating no new international legal financial norms, act as an additional source of international financial law, having no autonomy, and in combination with other sources of international law, performs the following functions: 1) regulatory-prescriptive (via opinio juris of existing traditions in interstate practice in the financial sphere transforming them into international customary law); 2) regulatory-affirming (confirming the legal nature of the international agreement between the subjects of international financial legal relations which caused a disputable situation). The judicial practice on financial issues and specificity of functioning of such judicial institutions as the Permanent Court of International Justice, the International Court of Justice, the CIS Economic Court, the Court of Justice of the European Union, the Court of Justice of the Central African Economic and Monetary Community, etc. are examined. The features of the provisions of international agreements on financial issues regarding the procedure for resolving disputes between the parties of the agreement about its implementation are analyzed. The paper explores particularities of the origin and development of the idea of the creation of an international financial court. Amid modern processes of the rapid growth of the amount of cross-border financial flows in the context of globalization, which is the consequence of the implementation of numerous international financial agreements, the idea of creation of an international financial court, which was first suggested in 1935, due to the complexity of legal nature of interstate financial disputes, is an objective necessity. The following features intrinsic to decisions of international courts (including decisions on financial issues) have been identified: 1) locality (binding only on the parties involved in the case, and only in the current case); 2) situatedness and unprompted appearance; 3) impartiality (due to the judges’ lack of political interest); 4) authority (international courts include generally recognized experts in international law).

PERTANGGUNGJAWABAN PIDANA NOTARIS TERHADAP AKTA OTENTIK YANG DIBUAT TERINDIKASI PEMALSUAN

A notary is an authorized public official whose main obligation is to make authentic deeds based on a professional code of ethics, related to the widespread indications of forgery of the authentic deeds, of course this needs to be accounted for by the notary himself. This study aims to identify and explain the criminal liability of a Notary against an authentic deed made and indicated forgery and to find out the legal status of a deed made by a Notary that caused a dispute. The data collection carried out in this research is by interview and literature study as well as the applicable legislation. Data were analyzed descriptively qualitatively. The results of the study indicate that if the notary is proven to have falsified or falsified the authentic deed he made and caused harm to interested parties, the notary can be sentenced to criminal, civil, and administrative sanctions. The legal status of the deed that is proven to be falsified by the Notary who made it, which can be canceled, null and void, has the power of proof as an underhand deed, canceled by the parties themselves and canceled by a court decision that has permanent legal force. However, the status or position of the Notary deed can’t be carried out jointly, but only applies to one, in accordance with a permanent court decision.

Prima Facie Decisions on Jurisdiction under the UNCITRAL Arbitration Rules:The Experience of the Permanent Court of Arbitration

Prima Facie Decisions on Jurisdiction under the UNCITRAL Arbitration Rules:The Experience of the Permanent Court of Arbitration

INSIGHTS FOR CENTRAL ASIA FROM THE PRINCIPLES AND DISPUTES OF INTERNATIONAL WATER LAW

This article analyzes legal aspects of the Central Asian water dispute with reference to international water law principles. In other words, it examines the existing principles of international water law, and identifies those which dominate in setting international discourses. Moreover, this study provides examples of water disputes around the world, such as the Nile River, the Mekong River, the Indus River cases, in which several non-Central Asian states, facing similar conflicts, such as India and Pakistan, Egypt and Sudan, South-East Asian nations are involved. In particular, it is emphasizes that even countries, which has more problematic relations rather than Central Asian republics, could eventually achieve a mutual legal settlement of water-related tensions. Finally, it offers solutions to the water disputes for Central Asian countries in the light of the principles of international water law laid down by the Permanent Court of Arbitration in the 2012 Kishenganga Case.

6. Permanent Court of Arbitration (PCA)

The PCA is presently acting as registry in seven inter-state proceedings, 101 investor–state arbitrations, and fifty-two cases under contracts or other agreements involving a state or other public entity (<https://pca-cpa.org/en/cases/>). During the past year, some important environmental and natural resources issues were raised in several cases before PCA-facilitated arbitration panels. On 26 September 2019, Nord Stream 2 AG commenced arbitration proceedings against the European Union (EU) pursuant to Article 3 of the United Nations Commission on International Trade Law (UNCITRAL) Rules and Article 26(4)(b) of the Energy Charter Treaty in relation to an investment in the oil and gas sector (<https://www.pca-cpa.org/en/cases/239/>). This pending case comprises issues concerning oil and gas. Ricardo Ramírez Hernández (Presiding Arbitrator), Philippe Sands QC, and Justice David Unterhalter SC were appointed as arbitrators (<https://www.pca-cpa.org/en/cases/239/>). Nord Stream 2 AG is a company incorporated in Zug, Switzerland, that was engaged in planning and construction of a pipeline in order to transport natural gas from Russia to Germany via the Baltic Sea. Nord Stream 2 was both the operator and owner of the pipeline. The positive impact of the pipeline on the market and economy of the EU was recognized.