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Search: UNCLOS

04 Nov

China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either....
04.11.15 | |

21 May

of China’s nine-dash line is very murky anyway. It is not an historic bay. I suppose it could be an “historic title” within the meaning of Article 298, but that is hardly obvious. Under Prof. Talmon’s reading, any claim of historic title, even if it undermines all of the other principles of UNCLOS, are outside the jurisdiction of the UNCLOS tribunal. Similarly, when the Philippines argues that something is a “rock” and not an “island” under the definition of UNCLOS, I don’t see how that requires a sea boundary determination?...
21.05.13 | |

30 Nov

jurisdiction must be based on an UNCLOS dispute and not on other rules of international law surely? I was surprised by the "internal waters" angle in Ghana's argument, i.e. that it isn't an UNCLOS dispute because UNCLOS doesn't cover immunity in internal waters. I think a reasonable argument can be made that even if the ship is in territorial waters, Article 32 is not a source of sovereign immunity, and such immunity is not an UNCLOS issue. http://www.cjicl.org.uk/index.php/cjicl-blog/public-hearings-in-argentina-v-ghana-an-unclos-dispute Looking forward to hearing what ITLOS has to say on December 15th....
30.11.12 | |

21 Jul

U.S. opponents of UNCLOS, whom I think have a number of quite sensible points, do need to explain how the U.S. is going to operate effectively in a world where all other major seafaring nations belong to the UNCLOS system. And they have offered decent arguments. Customary international law already guarantees navigational rights. Bilateral treaties, or even unilateral declarations, can establish U.S. sovereignty over its extended continental shelf. But what about deep seabed mining that occurs outside the sovereignty of any nation? Under UNCLOS, a nation must make an application...
21.07.11 | |

23 Jan

...Spratly Islands,” he said. He said China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability”. Some observers, quoted here by the VOA, have suggested that China will simply not participate in the UNCLOS arbitration. I think this makes sense from a strategic perspective, but it is hard to understand how that would work from a legal perspective. As a legal matter, China has an obligation to participate in the UNCLOS arbitration by selecting an arbitrator, and then...
23.01.13 | |

20 Jul

Steven Groves of the Heritage Foundation passes along this useful review of the effect of UNCLOS ratification on U.S. development of its extended continental shelf. It argues that if the U.S. joins UNCLOS, it could be obligated to turn over as much as 7 percent of royalty revenue derived from development of its extended continental shelf to the International Seabed Authority created by UNCLOS. I think this is a good point and offers a real and practical critique of the consequences of joining UNCLOS. On the other hand, I think...
20.07.11 | |

20 Nov

...position on the dispute. She would endeavor to do so. She noted that (as Prof. Roque had explained), the UNCLOS arbitral tribunal had no jurisdiction over territorial disputes. She then pointed out that all of the evidence presented by the Philippines in their notice of arbitration was about territorial boundaries. China was not the only country to limit the jurisdiction of the UNCLOS tribunal, indeed, 40 countries have made similar declarations to China’s, including India. As to the “Nine Dash” line, she offered two questions to defend its claims. First,...
20.11.13 | |

23 Oct

Eugene Kontorovich Can we file this away for next time people talk about how great it will be for the US to join UNCLOS? Thomas Welch Agreed. And also how NGO overreach can set international dispute resolution back. Kenneth @Eugene, can you elaborate a little bit on that, or provide some references for the US position. How does this incident illustrate why the US should not join UNCLOS? Eugene Kontorovich Presumably, if US were in UNCLOS, it would be bound for the worse (ie Russia could litigate claims when it...
23.10.13 | |

17 Apr

...The case presented a number of issues, including whether the 1982 UN Convention on the Law of the Sea (UNCLOS), to which both states are party, grants a coastal state competency to control bunkering activities by foreign vessels in its EEZ. After disposing of objections raised over jurisdiction and admissibility (notwithstanding the parties’ special agreement transferring the case to ITLOS), the decision adds a substantial gloss to several articles of the UNCLOS, particularly with respect to Article 73 on enforcement of coastal state laws regarding the conservation and management of...
17.04.14 | |

01 Feb

...VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures). Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim. First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal. Second, and like China...
01.02.16 | |

29 Sep

...would become subject to its dispute-resolution mechanisms and ambiguities. Right now, since we are the world’s major naval power, our conduct dominates state practice and hence customary international law—to our decided advantage. As I’ve made clear before in other posts, I think joining UNCLOS is clearly a mixed bag for the U.S. I am not sure the China threat to the U.S. Navy (a threat I do think is very real), is going to be affected by the U.S. joining the treaty. No matter whether the U.S. joins UNCLOS, China...
29.09.11 | |

20 Aug

is Denmark, and not the Faroe Islands, that is a signatory to UNCLOS. Similarly, the EU (or the European Communities) is not a state but it is a signatory to UNCLOS for certain competences that EU members have transferred to it. Oddly enough, Denmark has transferred its competence for these matters to the EU, but not for the Faroes. Confused? I certainly am. In any event, the result is that a non-state subnational entity is seeking arbitration against a non-state supranational entity before an international arbitral tribunal created under the...
20.08.13 | |