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

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.

scholarly journals [BOOK REVIEW] The Peaceful Settlement of International Disputes

2019 ◽  
Vol 06 (01) ◽  
pp. 211-215
Author(s):  
Davina Oktivana
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Law Students ◽  
Law Of The Sea ◽  
International Environmental Law ◽  
Extensive Analysis ◽  
Peaceful Settlement ◽  
International Dispute

Yoshifumi Tanaka is a Professor of International Law at the Faculty of Law, University of Copenhagen. He has published widely in the fields of the law of the sea and international environmental law. I had a profound admiration for Tanaka’s writings, particularly in law of the sea subjects. He has a compelling method in deliberating issues comprehensively but still convenient to digest, especially for academicians, practitioners, and law students (postgraduate). Settlement of International Dispute is considered as a foundation of the establishment and the development of International Law. Accordingly, there are plenty of books and writings had published addressing similar topic, however, Tanaka’s book is distinctive. Tanaka successfully gives the reader an exhaustive and extensive analysis of the procedures for dispute settlement both in traditional means and newly development. In addition, He complemented figures and tables to give the reader a comprehensive understanding.

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.

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.

scholarly journals Dissenting Opinions of Judges of the unclos Tribunal in the Chagos Case

Afrika Focus ◽  
2021 ◽  
Vol 34 (1) ◽  
pp. 28-49
Author(s):  
Roopanand Mahadew ◽  
Arzeena Bhowarkan
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Protected Area ◽  
Marine Protected Area ◽  
Law Of The Sea ◽  
Moral Value ◽  
The United Kingdom ◽  
United Nations Convention ◽  
The Republic ◽  
The Unclos

Abstract Mauritius won its first victory when the “tribunal constituted under Annex vii of the United Nations Convention on the Law of the Sea” delivered its award “in the matter of the Chagos Marine Protected Area (mpa) Arbitration, between the Republic of Mauritius and the United Kingdom”. The award declared that the mpa established around Chagos by the United Kingdom was against international law. However, the decision desired by both Mauritius and the Chagossians is found in the dissenting opinion, which is, as a matter of law, non-binding. The dissenting opinion is to the effect that the tribunal had jurisdiction to consider the issue of sovereignty over Chagos and that if such issue was considered, Mauritius had a strong case for winning back sovereignty over Chagos. This article aims to make the dissenting opinions more widely known and reflect on the legal value of such opinions, alongside their high political and moral value and relevance to Mauritius and the Chagossians.

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.

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.

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