The Competing Jurisdictions of the WTO and the UNCLOS Dispute Settlement Fora in the Context of Multifaceted Disputes

2021 ◽  
Author(s):  
Elena Ivanova
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
International Courts ◽  
Procedural Law ◽  
Res Judicata ◽  
The Status ◽  
The Unclos ◽  
Dispute Settlement Mechanisms

The work examines the interaction between the dispute settlement mechanisms established under the UNCLOS and the WTO Agreement, while exploring the challenges that multifaceted disputes straddling different treaty regimes pose to international courts and tribunals of limited jurisdiction such as the WTO DSB and UNCLOS courts and tribunals. It addresses these challenges through the lens of the WTO treaty and the UNCLOS, while providing answers to the following questions: to what extent the mentioned specialized adjudicatory bodies can refer to other rules of international law, especially treaty rules, given their limited jurisdiction; what the implications of the pronouncements of the UNCLOS courts and tribunals are with respect to the WTO DSB and vice versa; how should they approach multifaceted disputes involving both WTO law and law of the sea issues; what rules govern their interaction. The work examines and systematizes the latter rules, while particularly focusing on res judicata. Concerning res judicata, it tackles the questions what the status and meaning of res judicata is and to what types of preclusive pleas it can give rise in international law; whether it can operate as an inter-systemic rule. The work proposes solutions in case a multifaceted dispute allegedly involving different treaties and different branches of international law is submitted for resolution before different dispute settlement fora of limited jurisdiction and in doing so it contributes to the discussion on international procedural law and interaction of treaties and dispute settlement mechanisms.

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

scholarly journals Modern International Law of the Sea: Role, Challenges and Proposals

2021 ◽  
Vol 37 (1) ◽  
Author(s):  
Nguyen Ba Dien
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
Dispute Settlement Mechanism ◽  
Legal Principles ◽  
History Of Development ◽  
History Of ◽  
Legal Document ◽  
Settlement Mechanism ◽  
The Unclos

Following the tendency of “moving forward to the sea, controlling the sea”, together with the development of science, technology, the birth of the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982) marked an important turning point in the history of development of the Modern International Law of the Sea. As a textual, multilateral legal document, consisting of 320 articles and 09 Appendices, with more than 1000 legal principles, the UNCLOS 1982 is considered as a “constitution on the sea and ocean for mankind”. This paper clearly focuses on the basic problems of the UNCLOS 1982, reviews the major contribution of this convention to the development process of International Law as well as the process of being an useful tool for sea and ocean governance in peace, creating an effective dispute settlement mechanism. In addition, the paper also states challenges from the climate change, environmental security, and sovereign claims of countries to the UNCLOS 1982 and the modern International Law of the Sea, on that basis, points out issues that need to be considered, amended and supplemented in order to complement the UNCLOS 1982.

Singapore

2018 ◽  
Vol 33 (4) ◽  
pp. 836-846
Author(s):  
Millicent McCreath
Keyword(s):  
Climate Change ◽  
International Law ◽  
Sea Level Rise ◽  
Sea Level ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
National University ◽  
The Status ◽  
The Law

Abstract This article summarises and discusses the main issues addressed at the conference hosted by the Centre for International Law at the National University of Singapore in March 2018 on Climate Change and the Law of the Sea: Adapting the Law of the Sea to Address the Challenges of Climate Change. The conference covered topics including the status and entitlement of offshore features, impacts of sea-level rise on baselines, the content of the LOSC climate change obligations, climate change dispute settlement under the LOSC, and possible ways to develop or adapt the LOSC to address the challenges of climate change.

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.

General Principles of Procedural Law in the Practice of the WTO Appellate Body

2021 ◽  
pp. 1-32
Author(s):  
Mariana Clara de Andrade
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Case Law ◽  
International Courts ◽  
Procedural Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
International Law Commission ◽  
Domestic Law

Abstract The method of identification of general principles and their function as a source of law have long been object of doctrinal debate. This topic is now under the programme of work of the International Law Commission. Relatedly, international courts and tribunals have relied on general principles of procedural law derived from national legal systems in their practice and reasoning, but the methodology employed by adjudicators in importing these sources from domestic law remains obscure. This research examines the use of general principles of procedural law in WTO dispute settlement, in particular by its Appellate Body. The aim is two-fold: first, to study the methodology employed in the identification of general principles of procedural law in the case law of the WTO Appellate Body; second, to examine the functions performed by general principles in the practice of this international jurisdiction.

Global Regulatory Standards in Environmental and Health Disputes

2021 ◽  
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Court Of Justice ◽  
Regulatory Standards ◽  
International Court ◽  
Challenges And Opportunities ◽  
The Status ◽  
Private Actors ◽  
Fragmentation Of International Law ◽  
The Relationship

Potentially global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and inferring a revised conception of sovereignty in an increasingly pluralistic global legal era. However, considered with regard to jurisprudential theory on relative authority, the legitimacy of the resulting ‘standards-enriched’ international law remains open to question. Procedurally, although they are well-placed to provide valuable input, international courts and tribunals should not be the only fora in which these standards are elaborated. Substantively, challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law’s legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.

scholarly journals Causal Inference, International Law, And Maritime Disputes

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 389-393
Author(s):  
Benjamin J. Appel
Keyword(s):  
Causal Inference ◽  
International Law ◽  
Law Of The Sea ◽  
International Courts ◽  
Legal Scholarship ◽  
Wide Range ◽  
Maritime Disputes ◽  
Empirical Tests ◽  
The Impact ◽  
The Relationship

Sara Mitchell and Andrew Owsiak's examination of the impact of UN Convention on the Law of the Sea (UNCLOS) and Article 287 declarations on the peaceful resolution of maritime disputes significantly advances the literature on the relationship between international law/international courts and maritime issues. To their credit, the authors employ a wide range of empirical tests in the article to provide readers with confidence in the empirical results. Nonetheless, there are some important limitations in their approach. Drawing on insights from the causal inference literature, I argue that Mitchell and Owsiak's empirical analyses suffer from two biases that both (1) raise concerns about the causal relationships identified in the article, and (2) suggest some important scope conditions in its empirical findings. I investigate the biases and propose suggestions for legal scholarship to produce more credible results.

scholarly journals The UNCLOS Dispute Settlement System: What Role Can It Play in Resolving Maritime Disputes in Asia?

2017 ◽  
Vol 8 (1) ◽  
pp. 91-115 ◽  
Author(s):  
Lan Ngoc NGUYEN
Keyword(s):  
Dispute Settlement ◽  
Legal Framework ◽  
Law Of The Sea ◽  
Settlement System ◽  
High Profile ◽  
The World ◽  
Maritime Disputes ◽  
United Nations Convention ◽  
Dispute Settlement System ◽  
The Unclos

AbstractAsia is currently the scene of some of the most high-profile maritime disputes in the world. Even though the majority of states in Asia are parties to the United Nations Convention on the Law of the Sea [UNCLOS], its dispute settlement system has only been utilized in a handful of cases. Given that negotiations have brought about limited results in easing many of the tensions, it is worth asking whether the UNCLOS dispute settlement system can play a role in the resolution of maritime disputes in Asia. This paper, based on a review of the disputes before UNCLOS Tribunals, as well the advantages and limitations of the system, argues that the UNCLOS dispute settlement system can make meaningful contributions to resolving thorny disputes between Asian states. It does so by providing a solution to the disputes brought before them, clarifying the legal framework for the conduct of the parties and facilitating co-operation amongst countries in the region.

scholarly journals International Courts and Tribunals – the New Environmental Sentinels in International Law

2020 ◽  
Vol 50 (1-2) ◽  
pp. 17-33
Author(s):  
Bharat H. Desai ◽  
Balraj K. Sidhu
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Law Of The Sea ◽  
Human Rights Law ◽  
International Courts ◽  
Peaceful Settlement ◽  
The Common ◽  
Common Future

This study examines the role of international courts and tribunals (ICTs) as important agents for the peaceful settlement of international disputes through the instrumentality of law. The rapid upswing in the number of specialised international courts and tribunals (in areas such as trade, human rights, law of the sea, criminal justice and environment) can be perceived as an attempt by sovereign States to maintain the viability of ICTs in light of perplexity in international relations, growing recognition of peaceful co-existence, quest for institutionalised cooperation and emergence of some of the “common concerns of humankind”, as well as the “duty to cooperate”. The article has sought to make sense of the emergence of ICTs as the “New Environmental Sentinels” and what it portends for our common future. Do we need a specialised international environmental court?

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.

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