Search: UNCLOS
21 Jun UNCLOS and Dispute Settlement: A Response to Professor Rabkin
[John E. Noyes is the Roger J. Traynor Professor of Law at California Western School of Law.] I do not share Professor Rabkin’s pessimistic view of the prospect of international arbitration of law of the sea disputes under the Law of the Sea Convention. LOS Convention tribunals and the law of the sea experts who serve as judges and arbitrators have helped to resolve disputes peacefully and to reinforce Convention rules. For example, in the merits stage of the M/V “Saiga” (No. 2) case, the International Tribunal...
22 Jul The Enrica Lexie Award – Some Thoughts on “Incidental” Jurisdiction (Part II)
not caused by the movement or manoeuvring of either ship”, meaning that the event was not an “incident of navigation” (Award, para. 652). The tribunal further rejected Italy’s claim under Article 100 of the UNCLOS concerning the obligation to cooperate in matters of piracy, and the derivative claim under Article 300 of the UNCLOS concerning the obligation to exercise rights in good faith (Award, paras. 728, 730). At this point, all of Italy’s arguments against India’s exercise of jurisdiction, based on provisions of the UNCLOS, had been examined and rejected. ...01 Sep Case of the Month: Sarei v. Rio Tinto (by John Knox)
...vote, the UNCLOS claim along with the plaintiffs’ war, humanity, and discrimination claims. How significant a decision is this for international environmental law in U.S. courts? Has the Ninth Circuit found a way to squeeze environmental claims through the door Sosa left ajar? Well, if so, it kept its reasoning to itself. Its analysis, for want of a better word, of whether the UNCLOS meets the Sosa standard is, in its entirety: “As for the UNCLOS claim, the treaty has been ratified by at least 149 nations, which is sufficient...
23 Jun Revisiting International Cooperation on Illicit Trafficking by Sea: Indonesia and the Final Voyage of the M/V Wise Honest (Part I)
...and DPRK (para. 34). This results in the loss of the flag state’s protection (UNCLOS, Article 92(2)) and a right of visit (UNCLOS, Article 110(1)(d)), exercisable by all states in waters beyond the territorial sea (UNCLOS, Article 58(2)). Further enforcement measures would depend on if the boarding state has any applicable laws in place, as well as the currently unresolved extent of extraterritorial enforcement jurisdiction available when an objecting flag state is absent (e.g. Murdoch 2020 for a recent expansive approach). Once within Indonesia’s territorial sea, Indonesia had the right...14 Jun Should the U.S. Ratify the UN Convention on the Law of the Sea? A Debate and Discussion
The current US debate over UNCLOS, which takes place in competing op-eds, is far from satisfactory. Proponents are derided as one-worlders seeking to destroy American sovereignty. Critics are derided as right-wing nutcases. In my view, UNCLOS is a tough call. Like many treaties, there are good parts and bad parts (from the point of view of the United States). But whether the good outweighs the bad is something I am not really sure of. I am far from an UNCLOS expert, however, so I have asked several experts on UNCLOS...
11 May Another Perspective on Search & Rescue in the Mediterranean Sea
...sea is consistent with UNCLOS, as long as the order is not accompanied by an exercise of enforcement jurisdiction (i.e. interception) beyond the territorial sea against the ship to prevent entry. Exceptions A foreign flagged vessel may always enter the territorial sea of another State to carry out a rescue operation there. This right of entry would not be pursuant to Article 18 UNCLOS though; rather, to the customary right-duty to render assistance to any ship in distress, wherever that is. Similarly, a ship that is herself in distress must...19 Jul The Battle in the U.S. Over the Law of the Sea Treaty
...this post from last year for further explanation of this point). On the other hand, UNCLOS creates an unwieldy governing authority and structure that will, over time, become unaccountable and no doubt inimical to key U.S. interests (see here for the Goldsmith/Rabkin critique of the treaty’s effect on U.S. counterterrorism policy). Effectively paying a “tax” to the UNCLOS authority for certain drilling is of questionable value. And at least one part of UNCLOS is, in my humble opinion, unconstitutional because it essentially gives supreme and self-executing effect to judgments of...14 Jul The Lawfare over South China Sea: Exceptional Rules vs. General Rules
...law. The only exceptional case lies with the International Court of Justice (ICJ). Under article 94 of the UN Charter, one party may have recourse to the Security Council, which may enforce the decisions. However, the present case was decided by a 1982 UNCLOS Annex VII arbitral tribunal and the decision could in no way be enforced by third parties. Under article 12 of the UNCLOS Annex VII, “Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award...09 May Passing Gas through Passamaquoddy Bay
...well). In March 2007, the United States rejected Canada’s decision as inconsistent with Canada’s obligation to guarantee “innocent passage” under the law of the sea (see arts. 17-25 and 45 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS)). The United States is not a party to UNCLOS, so presumably it is relying on UNCLOS rules as customary international law (unlike the customary international humanitarian law context, however, we’ve no evidence of how the United States determined the exact contours of the innocent passage customary rule)....