scholarly journals No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes

2021 ◽  
Vol 20 (3) ◽  
pp. 519-547
Author(s):  
Eirini-Erasmia Fasia
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Community ◽  
Law Of The Sea ◽  
Settlement System ◽  
Left Behind ◽  
Community Interest ◽  
The Law ◽  
Dispute Settlement System

Abstract The article argues that the Law of the Sea Convention’s (LOSC) dispute settlement system (DSS) is attuned only to certain types of disputes (bilateral) and does not allow for the effective enforcement of obligations erga omnes reflected in the Convention. Mechanisms established to address enforcement of communitarian norms specifically are scarce in international law and the traditional bilateral structure of adjudicatory dispute settlement circumscribes the ability of states to act as advocates of the international community to which obligations erga omnes are owed. The article identifies the obligations erga omnes reflected in the LOSC and assesses the extent to which its dispute settlement framework is suited to address their breach. It is submitted that some of the community interest obligations of the LOSC are “left behind” by the function of the system itself.

1 ITLOS and the Dispute Settlement System under UNCLOS

2021 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
Dispute Settlement ◽  
Law Of The Sea ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
National Jurisdiction ◽  
Pros And Cons ◽  
The Law ◽  
International Seabed Authority ◽  
Dispute Settlement System ◽  
And Control

This chapter discusses the dispute settlement system under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The dispute settlement system under UNCLOS was drafted with the main purpose of achieving the uniform and effective interpretation and application of UNCLOS, as the compromises it embodied would otherwise be vulnerable to unilateral interpretation. UNCLOS sets up two international organizations: the International Seabed Authority (Authority) and the International Tribunal for the Law of the Sea (ITLOS). The Authority is the organization through which States Parties to UNCLOS organize and control activities in the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (the Area), particularly with a view to administering the resources of the Area. ITLOS, the dispute settlement mechanism specifically created by UNCLOS, allows urgent issues to be tackled swiftly through seeking provisional measures of protection from a court or tribunal as well as a functional approach. The chapter then considers ITLOS's place within the dispute settlement regime under UNCLOS; entities with access to ITLOS; other international agreements besides UNCLOS that confer jurisdiction on ITLOS; ITLOS's relationship and interaction with the other principal choices of dispute settlement mechanisms; and the pros and cons of using ITLOS instead of other forums.

Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case

2021 ◽  
Vol 20 (2) ◽  
pp. 367-393
Author(s):  
Yoshifumi Tanaka
Keyword(s):  
Dispute Settlement ◽  
Careful Consideration ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
Settlement System ◽  
Sovereign Immunity ◽  
International Court ◽  
The Law ◽  
International Adjudication ◽  
Dispute Settlement System

Abstract The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.

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.

TheSouth China Sea Award: How Should We Read the UN Convention on the Law of the Sea?

2018 ◽  
Vol 8 (1) ◽  
pp. 51-63 ◽  
Author(s):  
Douglas GUILFOYLE
Keyword(s):  
South China Sea ◽  
United Nations ◽  
South China ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
Settlement System ◽  
China Sea ◽  
United Nations Convention ◽  
The Law ◽  
Dispute Settlement System

AbstractThe conventional wisdom has been that the United Nations Convention on the Law of the Sea [UNCLOS] Part XV dispute settlement system is narrowly restricted and this reflects the drafters’ intent. Thus, tribunals should cautiously interpret Part XV, giving broad effect to its jurisdictional limitations. The unanimous award inSouth China Seadeals this approach a blow. Indeed, it assumes a fundamentally different orientation to interpreting UNCLOS: one which implicitly takes the foremost principle of Part XV as being its compulsory and comprehensive character. This approach is rooted in a very different understanding of UNCLOS as a “package deal” and the consensus it reflects. Indeed, I argue that any interpretation of ambiguous provisions of UNLCOS is necessarily coloured by one’s view of the struggles involved in its negotiation. Further evidence of this difference of approach inSouth China Seais found, in particular, in its treatment of the regime of islands.

scholarly journals Tarptautinio jūrų teisės tribunolo privalomosios jurisdikcijos taikymo problemos

Teisė ◽  
2011 ◽  
Vol 80 ◽  
pp. 95-106
Author(s):  
Justinas Linkevičius
Keyword(s):  
Dispute Settlement ◽  
Law Of The Sea ◽  
Settlement System ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention ◽  
The Law ◽  
Dispute Settlement System ◽  
Settlement Of Disputes

Straipsnyje analizuojamos pagrindinės Tarptautinio jūrų teisės tribunolo privalomosios jurisdikcijos taikymo problemos, daugiausiai dėmesio skiriant 1982 m. Jungtinių Tautų jūrų teisės konvencijos privalomo ginčų sprendimo mechanizmo nuostatoms bei valstybių praktikai pasirenkant tribunolo jurisdikciją, taip pat vertinamas Tribunolo jurisdikcijos dėl šios konvencijos aiškinimo ar taikymo ir Tarptautinio Teisingumo Teismo jurisdikcijos pagal jo statuto 36 straipsnio 2 dalį santykis.This article analyses general problems of compulsory jurisdiction of the International Tribunal for the Law of the Sea putting the main focus on compulsory dispute settlement system provisions of the 1982 United Nations Convention on the Law of the Sea and discussing states’ practice of choosing the tribunal as the compulsory means for the settlement of disputes. It also approaches the question of relation between jurisdiction of the Tribunal and compulsory jurisdiction of the International Court of Justice based on article 36, paragraph 2, of its Statute.

The Cross-Fertilization of UNCLOS, Custom and Principles Relating to Procedure in the Jurisprudence of UNCLOS Courts and Tribunals

2019 ◽  
Vol 22 (1) ◽  
pp. 142-170
Author(s):  
Elena Ivanova
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Vienna Convention ◽  
Settlement System ◽  
International Courts ◽  
The Law ◽  
The Cross ◽  
Dispute Settlement System ◽  
Different Sources ◽  
Cross Fertilization

Cross-fertilization of international law entails interaction of norms in international law and can occur in the context of interaction between different sources of law; different branches of international law or different subject-matter areas; and interaction between a treaty norm belonging to a one area of international law and a customary norm arising from another area of international law. There are different avenues for cross-fertilization of international law: it can result from the application of Art. 31 (3) (c) of the Vienna Convention on the Law of Treaties (VCLT)1 in the process of interpreting a particular treaty, from the application of other rules of international law together with a particular treaty or from reference to the jurisprudence of other international courts or tribunals by adhering to the approach adopted in this jurisprudence. This article examines the question of cross-fertilization of international law in the context of the jurisprudence of the courts and tribunals operating within the dispute settlement system established under the UN Convention on the Law of the Sea (hereinafter ‘UNCLOS’ or ‘Convention’).2 It will demonstrate how these adjudicatory bodies have employed Art. 31 (3) (c) VCLT, Art. 293 UNCLOS which explicitly enables them to apply other rules of international law not incompatible with the Convention, and the international jurisprudence in order to interpret and apply the UNCLOS while situating it the broader context of international law. Note will be taken of UNCLOS provisions incorporating or referring to other rules of international law which also contribute to the cross-fertilization of international law.

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