scholarly journals International Courts’ Shadow Effects and the Aims of Judicialized International Cooperation

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 394-398
Author(s):  
Nicole De Silva
Keyword(s):  
International Law ◽  
International Cooperation ◽  
Dispute Settlement ◽  
Cost Benefit ◽  
Law Of The Sea ◽  
International Courts ◽  
International Court ◽  
International Dispute ◽  
Theoretical Mechanism ◽  
The Law

In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak make a valuable contribution to an expanding body of scholarship that considers whether and how international courts have out-of-court “shadow effects.” The authors argue that, in the UN Convention on the Law of the Sea (UNCLOS) regime, the threat of binding international dispute settlement (IDS)—which entails high costs for states—encourages rational potential litigants to settle out of court through other peaceful and less costly IDS mechanisms. In this essay, I challenge the narrow focus of Mitchell and Owsiak's analysis, considering the diverse aims and processes of judicialized international cooperation in two key ways. First, the authors’ focus on peaceful IDS as the sole outcome of interest overlooks other important cooperation goals driving judicialization and delegation to international courts. An emphasis on out-of-court IDS, even when achieved peacefully, can actually undermine other objectives for judicialized international cooperation, including the development of international law and greater compliance with international law. Second, Mitchell and Oswiak's theoretical mechanism assumes that an international court contributes to its out-of-court influence through its case law, but this discounts how international courts can engage in a range of out-of-court, non-adjudicative activities that can affect potential litigants’ cost-benefit analyses regarding judicialized versus non-judicialized IDS. Indicating its preference for increasing its “direct effects” through adjudicating disputes, the International Tribunal for the Law of the Sea (ITLOS) has developed capacity-building and training programs to encourage judicialized IDS under UNCLOS and states’ litigation at the ITLOS. Overall, I highlight how there is a broad range of actors and processes underpinning international courts’ out-of-court effects, and how these actors and processes can work towards multiple, at times conflicting, aims for judicialized international cooperation.

scholarly journals Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction

1997 ◽  
Vol 46 (1) ◽  
pp. 37-54 ◽  
Author(s):  
Alan E. Boyle
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Law Of The Sea ◽  
International Court Of Justice ◽  
International Court ◽  
The Law ◽  
International Seabed Authority ◽  
Substantive Law ◽  
Seabed Mining

The entry into force of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), on 16 November 1994, is probably the most important development in the settlement of international disputes since the adoption of the UN Charter and the Statute of the International Court of Justice. Not only does the Convention create a new international court, the International Tribunal for the Law of the Sea (“ITLOS”), it also makes extensive provision for compulsory dispute-settlement procedures involving States, the International Seabed Authority (“ISBA”), seabed mining contractors and, potentially, a range of other entities. Implementation of the Convention has spawned a number of inter-State disputes to add to the cases already before the International Court. The initiation of the ITLOS not only opens up new possibilities for settling these disputes but it also has implications for the future role of the International Court and ad hoc arbitration in the law of the sea and more generally. It contributes to the proliferation of international tribunals and adds to the potential for fragmentation both of the substantive law and of the procedures available for settling disputes. Judges Oda and Guillaume have argued that the ITLOS is a futile institution, that the UNCLOS negotiators were misguided in depriving the International Court of its central role in ocean disputes and that creation of a specialised tribunal may destroy the unity of international law. The law of the sea, both judges argue, is an essential part of international law and any dispute concerning the application and interpretation of that law should be seen as subject to settlement by the International Court.

The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems

2007 ◽  
Vol 22 (3) ◽  
pp. 451-462 ◽  
Author(s):  
Francisco Orrego Vicuña
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Due Process ◽  
Law Of The Sea ◽  
International Tribunal ◽  
International Court Of Justice ◽  
Fish Stocks ◽  
International Court ◽  
The Law ◽  
Dispute Settlement System

AbstractThis presentation describes the system of provisional measures by the International Tribunal for the Law of the Sea under Article 290 of the 1982 Convention on the Law of the Sea. By pointing towards the binding legal nature of provisional measures and the introduction of a duty to report on compliance efforts, he begins his article stressing the system's efficiency. The author then comments on the various prerequisites while drawing comparisons with the prescription of provisional measures by the International Court of Justice. He finally turns towards the problems of the application of Article 290 by focusing on the requirement of a specific demand by a State party for a provisional measure. While admitting the Tribunal's authorization to issue provisional measures with a view to the marine environment and the increasing influence of the precautionary principle in public international law, he also advises against the temptations to exceed the limits of provisional measures in international law. The interplay with other treaties which refer to the Convention's dispute settlement system (especially the Agreement on Straddling and Highly Migratory Fish Stocks) even adds to this danger in the author's eyes. He closes with an appeal for due process, prudence and impartiality.

scholarly journals Theoretical and Practical Significance of the Issue of Maritime Delimitation in the Law of the Sea

2017 ◽  
Vol 6 (2) ◽  
pp. 125-129 ◽  
Author(s):  
Bojana Lakićević-Đuranović
Keyword(s):  
International Law ◽  
Practical Significance ◽  
Law Of The Sea ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Creation ◽  
The Law

This paper aims to show the significance of maritime delimitation in the Law of the Sea, as well as the contribution of international jurisprudence to the creation of the rules of maritime delimitation. The decisions of the International Court of Justice (ICJ) and the awards of arbitration tribunals are especially significant in the part of the Law of the Sea dealing with maritime delimitation. Based on the analysis of the principle of equity and the method of equidistance, the jurisprudence of the courts is shown to have established precedents and to have an irreplaceable role in the development of the international Law of the Sea, particularly in the segment of maritime delimitations.

scholarly journals The Timor Sea Conciliation: The Unique Mechanism of Dispute Settlement

2020 ◽  
Vol 31 (1) ◽  
pp. 321-344
Author(s):  
Dai Tamada
Keyword(s):  
Dispute Settlement ◽  
Economic Factor ◽  
Law Of The Sea ◽  
Dispute Settlement Mechanism ◽  
International Court ◽  
Maritime Boundary ◽  
Timor Sea ◽  
The Law ◽  
Gas Fields ◽  
Unique Mechanism

Abstract The maritime boundary dispute between Timor-Leste and Australia was submitted to the compulsory conciliation procedure under the United Nations Convention on the Law of the Sea (UNCLOS). This is the first instance of conciliation, whether voluntary or compulsory, under UNCLOS. The Timor Sea conciliation led to the successful settlement of the long-standing deadlock between the parties that had hitherto not been settled by negotiation and had no possibility of being settled by litigation (within, for example, International Tribunal for the Law of the Sea or International Court of Justice proceedings) or arbitration (within the context of an UNCLOS Annex VII tribunal). This article aims to elucidate the unique mechanism of conciliation and, to this end, analyses both the procedural particularities of conciliation under UNCLOS and the substantive considerations in conciliation proceedings. The author places emphasis, in particular, on the fundamental importance of the economic factor in the Timor Sea maritime delimitation – namely, the sharing ratio of the natural resources in the Greater Sunrise gas fields. Being a definitive factor for the success of this conciliation, it was the economics of this dispute that incentivized the parties to compromise and settle. Furthermore, given that conciliation is a most elucidating piece in the rather complicated puzzle that is the UNCLOS dispute settlement mechanism, the Timor Sea conciliation offers valuable insights into this mechanism.

Dispute Settlement in the Law of the Sea: Survey for 2018

2019 ◽  
Vol 34 (4) ◽  
pp. 539-570 ◽  
Author(s):  
Robin Churchill
Keyword(s):  
Dispute Settlement ◽  
Law Of The Sea ◽  
International Court Of Justice ◽  
International Court ◽  
Maritime Boundary ◽  
The Pacific ◽  
Timor Leste ◽  
The Pacific Ocean ◽  
The Caribbean ◽  
The Law

AbstractThis 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 2018. The most significant developments during the year were the judgment of the International Court of Justice in Costa Rica v. Nicaragua, delimiting the maritime boundaries between the two States’ overlapping maritime zones in both the Caribbean Sea and the Pacific Ocean; the report of the Conciliation Commission concerning maritime boundary arrangements between Timor-Leste and Australia; and the findings of a dispute settlement body of the South Pacific Regional Fisheries Management Organization.

The Scarborough Shoal Dispute: An Analysis of the Dispute Resolution Mechanisms under International Law

2013 ◽  
Vol 6 (1) ◽  
Author(s):  
RODEL A. TATON
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
The Philippines ◽  
Law Of The Sea ◽  
Choice Of Procedure ◽  
International Dispute ◽  
The Status ◽  
Rules And Principles ◽  
The Republic ◽  
The Unclos

This comes at a time when the stand-off over the Scarborough Shoal has matured to the status of an international dispute. It involves rivaling claims on points of law or fact between the People’s Republic China (PRC) and the Republic of the Philippines (RP). PRC calls the shoal as Huangyan island while RP refers to it as Bajo de Masinloc or Panatag Shoal as advanced and published in their respective governmental positions, albeit their claims for de facto sovereignty and territory. Employing mainly descriptive, historical, documentary and content analyses techniques, this dwells on (a) the character of Scarborough Shoal in the perspective of international law, (b) the conflicting claims of the PRC and RP with their respective governmental positions, (c) the mechanisms for settlement of an international dispute as provided for by the United Nations Convention on the Law of the Sea (UNCLOS) and (d) whether or not the Philippines can avail of the said remedies and how can the Scarborough Shoal be settled employing international law, rules and principles. The UNCLOS provides for a mechanism in Part XV, for settlement of disputes, ranging from the pacific modes of dispute settlement to resort to compulsory mechanisms entailing binding decisions. It is also provided that sans a choice of procedure, only Arbitration under Annex VII, the Hamburg Tribunal, is available, and this, the Philippines followed when it submitted its notification and statement of claims. Based on the international jurisprudence on related issues, there are rarely a winner and a loser. However, having studied the current situation principally in the light of the UNCLOS III, which favors the position of the Philippines, one is forced to recognize that oceans and their basic rules - droit de la mer- existed before UNCLOS. Certainly, the final settlement of the issues hereinbefore presented will go beyond the confines of UNCLOS.Keywords: Social Sciences, International disputes, Law of the Sea, descriptive design,Philippine-China Relations, UNCLOS, Philippines, Southeast Asia

Dispute Settlement Under the UN Convention on the Law of the Sea: Survey for 2007

2008 ◽  
Vol 23 (4) ◽  
pp. 601-642 ◽  
Author(s):  
Robin Churchill
Keyword(s):  
Dispute Settlement ◽  
The Other ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
International Tribunal ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Maritime Boundary ◽  
The Law

AbstractThis is the fourth of a projected series of annual surveys reviewing dispute settlement under the UN Convention on the Law of the Sea. 2007 was the busiest year for dispute settlement in the law of the sea for some time. The main developments under Part XV of the UN Convention on the Law of the Sea were the award of the arbitral tribunal in the Guyana/Suriname Case and two prompt-release-of-vessel judgments by the International Tribunal for the Law of the Sea. Outside the framework of the Convention, the International Court of Justice gave judgments in two maritime boundary cases—one on the merits (Nicaragua v. Honduras) and the other on jurisdiction (Nicaragua v. Colombia).

The European Community, the European Court of Justice and the Law of the Sea

2008 ◽  
Vol 23 (4) ◽  
pp. 643-713 ◽  
Author(s):  
Sonja Boelaert-Suominen
Keyword(s):  
International Law ◽  
European Community ◽  
Dispute Settlement ◽  
European Court Of Justice ◽  
Law Of The Sea ◽  
Member States ◽  
Court Of Justice ◽  
Fishery Policy ◽  
European Court ◽  
The Law

AbstractThe European Community has gradually increased its focus on marine and maritime affairs, starting with the Community's Fishery Policy in the 1970s and culminating recently in the 2007 Blue Book on an Integrated Maritime Policy of the European Union. The Community's increased clout over marine and maritime matters has been reflected also in the case law of the European Court of Justice. From the outset the Court has given great impetus to the Community's efforts to assert its external competence in matters related to fisheries and conservation of biological resources of the sea. Even so, the Court has thus far only occasionally been confronted with public international law questions pertaining to the law of the sea. However, the few cases in which the Court has addressed such issues are worthy of note. For example, the Court has ruled on whether Member States should be allowed to rely on the international law of the sea in order to derogate from obligations under Community law; whether Member States should be allowed to prefer the dispute settlement provisions set out in the 1982 United Nations Convention on the Law of the Sea over the Community's own dispute settlement system; and on whether private parties may invoke arguments derived from the customary or conventional international law of the sea to challenge the validity of Community legislation pertaining to marine and maritime matters. The resulting judgments of the European Court of Justice have often turned out to be landmark cases, although some of them have tended to divide academic opinion.

Part VIII Compliance, Implementation, and Effectiveness, Ch.60 International Environmental Law Disputes Before International Courts and Tribunals

2021 ◽  
Author(s):  
Klein Natalie
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Considerable Progress ◽  
Environmental Damage ◽  
International Environmental Law ◽  
International Courts ◽  
Ex Post ◽  
International Court ◽  
Ex Post Facto

This chapter examines how international environmental law (IEL) disputes are resolved before international courts and tribunals, addressing when parties will decide to litigate an IEL dispute as opposed to utilizing another form of dispute settlement. Assuming there is reason to pursue adjudication or arbitration, it looks at questions of jurisdiction. The chapter also considers preliminary matters that emerge in these cases, notably questions of standing and whether provisional measures are needed and may be secured before an international court or tribunal. It then turns to substantive matters, but only in the context of presentation of the case in terms of evidence and use of experts. Finally, the chapter assesses the available reparations in the resolution of IEL disputes before international courts and tribunals. Ultimately, considerable progress may be noted in respect of the use of international courts and tribunals for IEL disputes, but it is prudent to observe that in this area of international law, preventing the emergence of IEL disputes is ultimately more important than ex post facto responses to environmental damage.

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