The Rights and Obligations of States in Disputed Maritime Areas

2021 ◽  
Author(s):  
Youri van Logchem
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Legal Framework ◽  
Comprehensive Treatment ◽  
International Courts ◽  
Judicial Decisions ◽  
Commercial Activities ◽  
State Practice ◽  
The World

Disputed maritime areas exist around the world, and in many cases the affected States have not been able to reach agreement on cooperative arrangements or regulate commercial activities within the area. Where a claimant coastal State increases their level of unilateral activity, such as in the South China Sea, long-standing conflicts remain difficult to resolve. This book examines the rights and obligations States have under international law concerning disputed maritime areas in the first comprehensive treatment of this highly topical and pressing issue. It analyses conventional law, general international law, judicial decisions, State practice and academic opinions that shine light on the international legal framework applicable in disputed maritime areas. Proposing practical solutions for interpreting and applying the applicable international law, the book discusses the extent to which it currently provides clear guidance to States, and how international courts and tribunals have dealt with cases related to disputed maritime areas.

Is International Law International?

2017 ◽  
Author(s):  
Anthea Roberts ◽  
Martti Koskenniemi
Keyword(s):  
South China Sea ◽  
International Law ◽  
Case Studies ◽  
South China ◽  
Visual Representations ◽  
International Lawyer ◽  
Spheres Of Influence ◽  
Diverse Backgrounds ◽  
The World ◽  
Anglo American

Is International Law International? takes the reader on a sweeping tour of the international legal academy to reveal some of the patterns of difference, dominance, and disruption that belie international law’s claim to universality. Both revealing and challenging, confronting and engaging, this book is a must-read for any international lawyer, particularly in a world of shifting geopolitical power. Pulling back the curtain on the “divisible college of international lawyers,” the author shows how international lawyers in different states, regions, and geopolitical groupings are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law, including with respect to contemporary controversies like Crimea and the South China Sea. Using case studies and visual representations, the author demonstrates how actors and materials from some states and groups have come to dominate certain transnational flows and forums in ways that make them disproportionately influential in constructing the “international”—a point which holds true for Western actors, materials, and approaches in general, and Anglo-American ones in particular. But these patterns are set for disruption. As the world moves past an era of Western dominance and toward greater multipolarity, it is imperative for international lawyers to understand the perspectives of those coming from diverse backgrounds. By taking readers on a comparative tour of different international law academies and textbooks, the author encourages international lawyers to see the world through others’ eyes—an approach that is pressing in a world of rising nationalism.

Thoughts on Domestic Adjudication and the Identification and Formation of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 131-149
Author(s):  
Cameron Miles
Keyword(s):  
International Law ◽  
International Courts ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Model Based ◽  
Domestic Courts ◽  
State Practice ◽  
The Icj ◽  
International Adjudication

Article 38(1)(d) of the ICJ Statute provides that “judicial decisions” may serve as a subsidiary means for the determination of customary international law. The absence of a qualifying adjective to the term “judicial decisions” confirms that, at least ex facie, there is no priority to be given to international over domestic judgments in this respect. And yet – as the International Law Commission’s Draft Conclusions on Formation and Identification of Customary International Law confirms – the reality of international adjudication is one in which domestic judicial decisions are often side-lined. In this paper, I question the ILC’s assertion that this is due to the relative expertise of international versus domestic courts, and instead posit a model based on the shifting architectonics of international adjudication. Two related developments are key: (1) the florescence of international adjudicative bodies in the post-1945 era, and (2) the tendency for international courts and tribunals to see domestic judicial decisions as evidence of state practice and opinio juris under Article 38(1)(b), rather than as subsidiary means for the determination of custom – that is, as factual rather than legal precedents.

scholarly journals Remarks by David Freestone

2018 ◽  
Vol 112 ◽  
pp. 4-7
Author(s):  
David Freestone
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
The South China Sea ◽  
Law Of The Sea ◽  
The South ◽  
China Sea ◽  
State Practice ◽  
The Unclos ◽  
Arbitration Award

As a teacher of international law for more years than I care to admit, I have to declare at the start of my comments that I admire the South China Sea Arbitration Award greatly. It presents an interpretation of the provisions of the 1982 UN Convention on the Law of the Sea (UNCLOS) on islands and rocks in a comprehensive, carefully considered and intellectually satisfying way. As my colleagues will doubtless point out, it does present problems relating to current existing state practice, but it does to my mind capture what the UNCLOS III drafters had in mind when the 1982 Convention text was put together.

Islands Awash Amidst Rising Seas: Sea Level Rise and Insular Status under the Law of the Sea

2019 ◽  
Vol 34 (3) ◽  
pp. 391-414 ◽  
Author(s):  
Clive Schofield ◽  
David Freestone
Keyword(s):  
Climate Change ◽  
South China Sea ◽  
International Law ◽  
Sea Level Rise ◽  
Sea Level ◽  
Legal Framework ◽  
Law Of The Sea ◽  
Intergovernmental Panel ◽  
State Practice ◽  
The Face

Abstract This article considers the potential impacts of sea level rise on maritime zones with particular reference to impacts on islands. It considers the sea level rise predictions of the Intergovernmental Panel on Climate Change; it outlines the existing legal framework for coastal baselines and insular features established by the 1982 Law of the Sea Convention. It highlights the work of the International Law Association Committee on International Law and Sea Level Rise, which in its 2018 report had identified the development of a body of State practice among the States and Territories of the South Pacific regarding the maintenance of existing maritime zone claims in the face of sea level rise. That practice is considered, together with the implications of the 2016 Tribunal Award on the South China Sea case on maritime zone claims based on islands.

Scrutinising the Maritime Zones Around Australia’s Sub-Antarctic Islands

2021 ◽  
Vol 6 (1) ◽  
pp. 40-65
Author(s):  
Karina Galliford
Keyword(s):  
South China Sea ◽  
Continental Shelf ◽  
International Law ◽  
South China ◽  
Law Of The Sea ◽  
China Sea ◽  
Exclusive Economic Zones ◽  
State Practice ◽  
United Nations Convention ◽  
Economic Zones

Abstract In 2016, the South China Sea Arbitral Tribunal was the first tribunal or court to interpret Article 121(3) of the United Nations Convention on the Law of the Sea. The Tribunal’s interpretation raises international law questions regarding the validity of claimed exclusive economic zones (eezs) and continental shelf maritime areas around many islands including Australia’s sub-Antarctic Islands. Owing to their geographical remoteness, harsh climates, lack of resources, as well as never been ‘home’ to any group of people in a settled way, questions have been raised as to the validity of Australia’s claimed maritime zones with respect to Article 121(3) in both pre- and post-South China Sea Arbitral Award commentary. The article assesses the validity of Australia’s claim by applying the Tribunal’s interpretation of Article 121(3) to the physical and historical facts of the Islands while raising alternate interpretations offered by prior and subsequent commentary. Three examples of possible State practice are reviewed for evidence of other interpretations that may have been agreed to by parties to the Convention. The findings are that Heard and Macquarie Islands are likely classified as islands entitled to an eez and continental shelf whereas McDonald Island is more likely to be an Article 121 ‘rock’.

scholarly journals SENGKETA LAUT CINA SELATAN DALAM PERSPEKTIF HUKUM INTERNASIONAL

2020 ◽  
Vol 1 (2) ◽  
pp. 88-98
Author(s):  
Edmondus Sadesto Tandungan
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
The South China Sea ◽  
The South ◽  
Potential Conflict ◽  
China Sea ◽  
International Dispute ◽  
The World ◽  
Strategic Role

The South China Sea Region is one of the largest waters in the world and has a strategic role both in terms of economy, politics and security so as to make this region have great potential that can be utilized by countries around the region. The consequences of many interests in this region is potential conflict form many state. This article analyzes several disputes that occur in the South China Sea based on international law. The purpose of this article is to find out the steps taken by states to resolving these international legal disputes. Through the analysis in this article it was found that in the perspective of international law, the dispute over the South China Sea was sourced from differences of principles in determining maritime boundaries. The analysis of this article also found several steps and efforts that can be taken by the disputing countries to resolve the South China Sea dispute.Keywords : South China Sea; International Dispute; International Law

scholarly journals Treaty of Tordesillas Syndrome: Sovereignty ad Absurdum and the South China Sea Arbitration

2018 ◽  
Author(s):  
Christopher R Rossi
Keyword(s):  
United States ◽  
South China Sea ◽  
International Law ◽  
South China ◽  
The South China Sea ◽  
Law Of The Sea ◽  
The South ◽  
Global Commons ◽  
China Sea ◽  
The World

Cornell International Law Journal: Vol. 50 : No. 2 , Article 3. The South China Sea is the fifth largest body of water in the world. It accounts for five trillion dollars in annual commercial activity involving a third of maritime traffic worldwide. China claims wide-ranging sovereign rights over upwards of ninety percent of this Sea via a controversial U-shaped line. Its claim upsets regional stability and portends a coming conflict with the United States, the world's supreme maritime power, over the application of the United Nations Convention on the Law of the Sea (UNCLOS). China claims its sovereign authority predates UNCLOS by millennia; critics date China's claim to 1947. Already described as the most important ruling in the modem history of the international law of the sea, a Tribunal of the Permanent Court of Arbitration handed down a sweeping rebuke of China's contentions in the July 2016 Award in the South China Sea Arbitration (Philippines v. China), setting up a confrontation between emergent China and established United States. This Article discusses that Award in light of the fundamental tension within the liberal model of freedom of the seas-the unreconciled tension involving ownership interests over resources of the sea (dominium) and the decision-making power to rule over the seas (imperium). While scholarly attention dissects the Tribunal's discussion of historical and factual circumstances (effectivites) that aggregate against China's sovereignty claims, this Article notes deeper problems, too: Ambiguities in UNCLOS have allowed powerful states to historically territorialize wide swaths of the dwindling global commons, all within the compliant liberal framework. Such claims are reminiscent of the Treaty of Tordesillas (1494), where Spain and Portugal divided up ownership of the world. The territorializing instinct of the Treaty of Tordesillas serves as a syndromic indicator of a recurring problem involving the sea and its increasingly scarce resources. It sets up a major challenge for international law as between superpower interests in the South China Sea, and, more generally, over disputes involving the global commons and spatial regimes on the emerging frontier of technological capability.

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

Conclusions

2018 ◽  
Author(s):  
Amy Strecker
Keyword(s):  
International Law ◽  
Eu Law ◽  
World Heritage Convention ◽  
State Practice ◽  
The World ◽  
State Obligations ◽  
Made In ◽  
Landscape Protection

The final chapter of this book advances four main conclusions on the role of international law in landscape protection. These relate to state obligations regarding landscape protection, the influence of the World Heritage Convention and the European Landscape Convention, the substantive and procedural nature of landscape rights, and the role of EU law. It is argued that, although state practice is lagging behind the normative developments made in the field of international landscape protection, landscape has contributed positively to the corpus of international cultural heritage law and indeed has emerged as a nascent field of international law in its own right.

Sign in / Sign up

Export Citation Format

Share Document