scholarly journals Sir Creek and its Legal and Political Significance and Resolution

2019 ◽  
Vol 1 (1) ◽  
pp. 1-14
Author(s):  
Sikander Ahmed Shah
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Legal Proceedings ◽  
Choice Of Procedure ◽  
Boundary Disputes ◽  
International Dispute ◽  
The Status ◽  
Bilateral Negotiations ◽  
Special Circumstances ◽  
The Way

The Sir Creek dispute remains a serious hurdle in the way of any meaningful progress on ties between Pakistan and India, but it also has huge potential to be resolved by recourse to international law and bilateral negotiations. In this respect, I will explore certain important historical, legal and political aspects of the Sir Creek dispute in order to betterinform future dialogue between the two states. Among otherthings, I will discuss the status of the law and its application to the dispute. With regards to Sir Creek, other considerations that will be examined include: the impetus for bothstates to adhereto the lawof the sea, the potential of international dispute resolution and the appropriate choice of procedure for settlement, the relevant weightageto be givento historical and special circumstances as well as the significance to relevant international legal proceedings on the dispute. The various factors relevant to the amicable settlement of such river boundary disputes will also be holistically examined.

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

International Mass Claims Processes

2007 ◽  
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Large Scale ◽  
Steering Committee ◽  
Legal Issues ◽  
Comprehensive Information ◽  
International Dispute ◽  
The Holocaust ◽  
Comparison And Analysis ◽  
Modern Mass

This book analyzes a significant procedural innovation in international law — the development of mass claims processes. Mass claims processes have become increasingly important phenomena in international dispute resolution. This is the first book to provide comprehensive information for a systematic comparison and analysis of the legal issues and practical matters involved in their establishment and operation. This book considers eleven of the highest profile modern mass claims tribunals and commissions created to redress large-scale losses. These include processes resolving claims arising from the Iranian Revolution, Iraq’s invasion of Kuwait, the Holocaust, and conflicts in the Former Yugoslavia and between Eritrea and Ethiopia. The book identifies and focuses on forty-seven basic issues that experience shows typically arise with respect to international mass claims processes, offering descriptions and commentary on the ways in which the various processes have approached each issue. Much of the information gathered in this book is not publicly available elsewhere and is based on the knowledge and experience of the 25 members of the Permanent Court of Arbitration’s Steering Committee on mass claims processes, experts who have either served on the processes or otherwise been directly engaged in their activities.

Politicising law or legalising politics? Justiciability and the “political question” on the examples from international justice

2020 ◽  
Vol 10 (4) ◽  
pp. 45-58
Author(s):  
Mikhail Gal'perin
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Separation Of Powers ◽  
The Other ◽  
The Political ◽  
Resolution System ◽  
International Dispute ◽  
International Tribunals ◽  
Political Question ◽  
Dispute Resolution System

Author is pointing out the problem of interaction between the political nature of the dispute concerned and the competence of international tribunals. To assess such legal interaction the “justiciability” concept is used. This concept, well known from the US and the UK jurisprudence, allow national courts, for the purpose of stable state administration, to exercise “prudency” in invalidating executive acts, guarantee the operation of the principle of separation of powers, preserve the legitimacy of an unelected judicial branch allowing it, at the same time, to participate in a dialogue with the other branches and the public. Despite the fact that the concept initially appeared in the national law, it became equally important for the international dispute resolution system. Using some remarkable recent cases from the supreme national and international tribunals’ practice author concludes that international tribunals are increasingly expanding their own competence to cover issues traditionally reserved for national authorities and/or lying exclusively in the diplomatic realm. The “evolutive” interpretation of provisions of international law adapted by some international tribunals (and other international organs) contradicts their literal meaning as originally intended by the states, is becoming a persistent trend. This entails a natural reaction of national legal systems represented by higher courts: on the one hand, they avoid direct confrontation through maintaining the classical paradigm of respect to international law, and, on the other hand, draw “border lines” designed to limit the jurisdiction of international courts and arbitration tribunals. The politicization of international arbitration is a question that should not be embarrassingly swept under the carpet or considered marginal. Otherwise, there is a risk that it would destroy the international dispute resolution system and, as a consequence, undermine the mechanisms of international law. At the same time, no peaceful resolution of the conflict of jurisdictions is possible without understanding the problem in the legal plane, without joint determination of which cases are justiciable in the international process, and which questions should be considered “political”. Author made the attempt to give a legal definition of the “political question” in the international procedure and formulate legal tests which could help international judges and arbitrators to define, whether they are ready to and whether they should consider the particular case, related to the “political question”, on the merits (and not to recognise it inadmissible on procedural grounds).

Conclusion

2019 ◽  
pp. 272-292
Author(s):  
Emilia Justyna Powell
Keyword(s):  
Conflict Management ◽  
International Law ◽  
Political Science ◽  
Dispute Resolution ◽  
International Conflict ◽  
Islamic Education ◽  
Science Literature ◽  
Legal Systems ◽  
Legal Tradition ◽  
International Dispute

This chapter summarizes the main arguments and the main empirical findings, stressing the timeliness of insights gained through this inquiry. It situates this research in the broader international law and political science literature, discussing the implications for policymakers. However disconcerting the dissonance between the Islamic legal tradition and international law may appear, there are more similarities between these two legal systems than the policy world and the scholarship take into account. The chapter discusses the importance of Islamic education in shaping states’ preferences vis-à-vis international conflict management. The inherent diversity of the Islamic milieu cannot be overlooked. International dispute resolution is what states make of it and it is up to them to define these mechanisms. In an important way, international law constitutes a broad enough framework to grant ILS space to tailor conflict management venues to their own needs and preferences, as dictated by their domestic legal systems.

Past, Present and Future of the International Law of Transboundary Aquifers

2011 ◽  
Vol 13 (3) ◽  
pp. 209-222 ◽  
Author(s):  
Kerstin Mechlem
Keyword(s):  
International Law ◽  
Status Quo ◽  
Water Law ◽  
The Status ◽  
The Law ◽  
The 1960S ◽  
International Law Commission ◽  
Transboundary Aquifers ◽  
Law Commission ◽  
The Way

AbstractThe article discusses the development of international groundwater law from the first codification efforts of modern water law until present and raises relevant issues for the way forward. It first traces international groundwater law from the 1960s until the end of the last century. It then reviews the growing attention groundwater has received during the last decade and third discusses the status quo. It places particular emphasis on the 2008 Draft Articles on the Law of Transboundary Aquifers adopted by the International Law Commission and the legal arrangements made for five of the 273 transboundary aquifers. It concludes with thoughts on the way forward in this important and understudied area of international law.

scholarly journals International Law Scholars as Amici Curiae: An Emerging Dialogue (of the Deaf)?

2016 ◽  
Vol 29 (4) ◽  
pp. 1081-1101
Author(s):  
AVIDAN KENT ◽  
JAMIE TRINIDAD
Keyword(s):  
International Law ◽  
Traditional Approach ◽  
Advocacy Groups ◽  
International Courts ◽  
Legal Proceedings ◽  
Do So ◽  
The Way ◽  
Productive Engagement

AbstractInternational law scholars frequently seek to participate in international legal proceedings as amici curiae. Often they do so by ‘piggy-backing’ onto the submissions of NGOs and other advocacy groups. Occasionally – but increasingly in recent years – they do so in their own names, purporting to offer ‘pure’ academic expertise, and generating certain expectations of scholarly neutrality. This article focuses on the latter trend, which the authors argue has the potential to re-shape the scholar-adjudicator dialogue in interesting ways. Under the traditional approach towards ‘teachings’, the decision of whether, how and with whom to engage is firmly in the hands of the adjudicators. The proliferation of academic amicus briefs threatens to disrupt this arrangement. It also brings certain benefits: the briefs are often more ‘on point’ than doctrinal writings, while openness to unsolicited academic submissions encourages plurality and reduces reliance on reputation as a measure of scholarly quality. Our survey of the emerging practice across various international courts and tribunals indicates that adjudicators tend to be reticent when it comes to the reception of unsolicited academic amicus briefs, however, we identify several instances of productive engagement. This leads us to conclude that it would be unduly gloomy to characterize the emerging practice as a ‘dialogue of the deaf’. A fairer assessment would be that the academic amicus trend is bringing about a modest adjustment in the way that international law scholars and adjudicators engage with each other.

scholarly journals Demographic Changes in Kashmir: A Perspective of International Law

2019 ◽  
Vol IV (I) ◽  
pp. 7-16
Author(s):  
Muhammad Khan ◽  
Sidra Khan
Keyword(s):  
International Law ◽  
Geneva Convention ◽  
The State ◽  
Legal Basis ◽  
Jammu And Kashmir ◽  
Strong Basis ◽  
State Laws ◽  
International Dispute ◽  
The Status ◽  
Legal Position

International disputes are always dealt with under the provisions of international law. Kashmir is an international issue, which needs to be resolved under the ambit of international law. The Fourth Geneva Convention-1949 provides a strong basis for addressing the legal basis of the Jammu and Kashmir dispute. As an international dispute, Kashmiri warrants the application of international law for its logical resolution. Unfortunately, notwithstanding UNSC resolutions, India unilaterally and illegally changed the status of occupied Jammu and Kashmir from a state to the union territories through Jammu and Kashmir Reorganization Act-2019. Later through a number of amendments, Adaptation of State Laws in April 2020, India brought changes in dozens of local state laws, meant to bring changes in the existing demography of the state. This research focuses on the changes India has engineered in the new domicile laws of Indian Illegally Occupied Jammu and Kashmir (IIOJK) to change the demography of the state. The paper also focuses on the legal position of these changes in IIOJK from the perspective of International Law and the Fourth Geneva Convention.

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