Investment Protection in Disputed Maritime Areas

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

Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) on the protection and preservation of the marine environment contains provisions that are worded in a general manner. As “the problems of ocean space are closely interrelated and need to be considered as a whole”, these provisions need to be interpreted in harmony with the wider corpus of international law. However, when marine environmental disputes are brought before the UNCLOS dispute settlement bodies, their jurisdiction is limited to disputes arising under UNCLOS. The tribunals, therefore, have to navigate between deciding disputes in a hollistic manner and remaining within their jurisdictional limits. This article discusses the techniques used by UNCLOS tribunals to resort to other sources of international law when settling marine environmental disputes. It will then assess whether, in doing so, the tribunals have remained within their jurisdictional parameters and the wider implications of this practice.

The introductory chapter to Judging the Law of the Sea first provides an overview of the UN Convention on the Law of the Sea (UNCLOS), indicating the diverse ocean matters addressed in UNCLOS as well as its general importance in the international legal system. Secondly, the chapter focuses on the existing process to settle international disputes under Part XV of UNCLOS. It explains why compulsory jurisdiction was included in UNCLOS and what choice exists between different courts and tribunals to settle law of the sea disputes. Thirdly, the chapter reflects on the role of dispute settlement under UNCLOS and the key goals for UNCLOS dispute settlement, taking into account the broader debate about the role of international courts in international law. The chapter concludes with an outline of Judging the Law of the Sea.

Chapter 2 examines the way in which marine environmental protection is addressed in the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS sets out the jurisdictional framework for the law of the sea and prescribes general principles and rules relating to pollution of the marine environment and the sustainable use of marine living resources. The chapter considers the drafting history of UNCLOS. It explores the range of substantive and procedural rules on the protection of the marine environment, as well as how those provisions have been interpreted in recent judicial or arbitral proceedings. The chapter argues that UNCLOS provides a basic layer of protection for the marine environment but it also foresees the subsequent development of environmental rules and standards that are more detailed. Thus, UNCLOS should be understood as an umbrella convention that must read in light of other treaties and related instruments.

Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS) sets out the legal regime governing the novel ‘continental shelf beyond 200 nautical miles’ or ‘the outer continental shelf’. As Article 76 contains a complex interface between law and science, its interpretation and application raises intricate issues, with which no international court or tribunal had dealt with substantively before 2012. The UNCLOS dispute settlement bodies were the first international tribunals to provide answers to long-standing questions surrounding the meaning and application of several important, but ambiguous or controversial, legal terms employed under Article 76. As such, the decisions rendered by the UNCLOS tribunals have been seen as playing an important role in elucidating the legal regime of the outer continental shelf. This article queries this assessment by critically examining whether and to what extent the relevant pronouncements made by UNCLOS tribunals have contributed to clarifying and developing the law governing the outer continental shelf regime under UNCLOS.

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a system for compulsory and binding dispute resolution. Article 288(2) of UNCLOS allows the dispute resolution system of Part XV to be used by the parties to another international agreement in accordance with the terms of that other agreement, as long as that agreement is related to the purposes of UNCLOS. This article examines the treaty practice under Article 288(2) to assess how those other agreements (which are mostly regional fisheries management organization agreements) provide for access to Part XV. The article examines these agreements within the following analytical framework: (1) Are these agreements related to the purposes of UNCLOS? (2) What jurisdiction, ratione materiae, do the agreements confer on the court or tribunal? (3) How do the agreements provide for submission? (4) How do the agreements deal with applicable law issues? (5) How do the agreements deal with the availability of provisional measures?

Climate litigation has reached the international level with several requests for advisory opinions from international courts and tribunals, and human rights treaty bodies addressing climate change‐related human rights violations. The Paris Agreement will likely be relevant in many of these and other cases to come, whether directly in disputes about its application or interpretation, or indirectly in informing the interpretation of other international agreements, such as the European Convention on Human Rights (ECHR) or the United Nations Convention on the Law of the Sea (UNCLOS). It could also inform the due diligence standard contained in customary international environmental law. This article first examines normative elements of the Paris Agreement that may become relevant in the interpretation of other international norms. It then identifies some potential entry points of legal influence of these elements in the interpretation and application of other international law, especially the ECHR and UNCLOS. The article argues that the legal influence of the Agreement goes above and beyond the ‘legal fold’ in which it was adopted and can inform the interpretation of other international treaties and norms. ‘Paris‐aligned’ interpretation, taking into account the diligence standards contained in the Agreement, could impact on the contemporary understanding of international law more generally. Such interpretation might be necessary to avoid undermining the relevance of the Agreement. Importantly, it suggests that Paris‐aligned interpretation of other international treaties can provide a positive feedback loop towards effective implementation of, and compliance with, the Paris Agreement. Eventually, such Paris alignment may enhance legal consistency between diverse parts of international law and break down fragmented silos.

International investment agreements contain a number of different investorstate dispute settlement clauses ranging from offering a very limited jurisdiction over specific compensation issues to broad options to arbitrate any (contractual or treaty based) investment dispute. Investment arbitration practice has demonstrated that uncertainty about the precise scope of dispute settlement clauses often leads to protracted jurisdictional battles. Reducing this uncertainty by drafting clearer dispute settlement clauses is likely to deter investors from bringing hopeless claims, and states fom raising indefensible jurisdictional objections. A limited set of jurisdictional and procedural obstacles should allow tribunals to deal with the real (substantive) issues of investment law, ie whether and to what extent the standards of investment protection enshrined in bilateral investment treaties (BITs) and investment chapters of international investment agreements (HAs) have been complied with or not. This would also serve the primary purpose of investment arbitration as protection of foreign investments.

Korea International Law Review has published a number of influential articles regarding the law of the sea from 1993 (when the 1st volume was published) to 2018 (when the 49th was published). The United Nations Convention on the Law of the Sea (UNCLOS) entered into force in 1994 and since then many articles dealing with the law of the sea have been contributed to Korea International Law Review. Specially, one article of the late Professor Choon-ho PARK (a former judge of the ITLOS) and several timely articles written by Professor Charn-kyu KIM have sought a better understanding of the law of the sea. For example, Professor KIM rejects comparing the 1998 Fisheries Agreement between Korea and Japan with the 1965 Agreement. He interprets the 1998 Agreement in the context of the UNCLOS. For him, the UNCLOS is a comprehensive tool for understanding the law of the sea better. Moreover, Korea International Law Review provides a good opportunity for publications for young international law scholars. They have carefully analysed new cases of international courts and tribunals dealing with controversial issues about the law of the sea. Their researches have demonstrated the development and operation of the UNCLOS regime. For instance, they had dealt with the matter of the continental shelf beyond 200 NM with a study on the Bay of Bengal case of the ITLOS and had addressed some problems arising out of the nine-dash line before an Arbitral Tribunal under Annex VII to the UNCLOS made its final decision concerning the South China Sea dispute on 12 July 2016. It means that, since the publication of its first volume, Korea International Law Review has successfully encouraged young scholars to research on the key issues of international law.

The United Nations Convention on the Law of the Sea (UNCLOS) was adopted on 10th December 1982, 40 years ago. It has opened a new world for most coastal states, and small island states most of all. With an exclusive economic zone reaching out up to 200 nautical miles (370.4 km) from shore, small island states (SIS) have been coming to terms with now being ‘large ocean states’ (LOS). A foray into carving out marine protected areas has been gathering pace. While referencing the concept of ‘positive sovereignty’ (Jackson, 1993), this article suggests that UNCLOS may have an additional role to play in advising and supporting the governance of EEZs ... and particularly where SIDS are concerned.

The Exclusive Economic Zone (EEZ) was created for the purpose of giving coastal States greater control over the resources adjacent to their coasts out to 200 nautical miles (nm). Unfortunately, over the years, some coastal States have sought to expand their jurisdiction in the EEZ by attempting to exercise control over non-resource-related activities, including many military activities. These excessive coastal State claims in the EEZ have no basis in customary international law or the United Nations Convention on the Law of the Sea (UNCLOS). State practice, prior to and subsequent to the adoption of UNCLOS, confirms that military forces routinely conduct military activities seaward of the 12-nm territorial sea without coastal State notice or consent. This chapter addresses the views expressed by some that the international community should develop guidelines to regulate military activities in the EEZ. It illustrates the Nippon Foundation Guidelines as an example. Keywords: coastal states; customary international law; exclusive economic zone (EEZ); international community; military activities; Nippon Foundation Guidelines; UNCLOS

The world’s oceans are facing a multitude of security challenges across various domains that require dynamic and varied responses, specific to the threat. The United Nations Convention on the Law of the Sea (UNCLOS) provides a comprehensive regulatory framework to for ocean governance, facilitating a cooperative approach to addressing regional bilateral and multilateral divergences affecting the maritime security dynamic in various parts of the globe. This is also supported by various other conventions aimed at protecting the oceans and ensuring their sustainability for the future. However, the effective implementation of these depends on the will and the inclination to do so. This article highlights some specific areas of concern and offers a perspective on how UNCLOS can be used effectively to address the wide spectrum of kinetic and non-kinetic challenges in the maritime domain through efficient and effective regional multilateral governance architectures.

Facing various challenges associated with climate change, a question arises as to how one can address these newly emerging issues under the United Nations Convention on the Law of the Sea (UNCLOS). There, the resilience of UNCLOS is at issue. An obligation of due diligence articulated by the International Tribunal for the Law of the Sea (ITLOS) in its advisory opinion on climate change provides an insight into this issue. Thus this article examines the resilience of UNCLOS in the particular context of ocean-climate nexus focusing on an obligation of due diligence. It will argue, inter alia that an obligation of due diligence can perform a dual function to enhance the resilience of UNCLOS: an interstitial function to incorporate new environmental norms into UNCLOS and a systemic function that connects the Paris Agreement to UNCLOS.

Sinking Islands form part of the dystopian reality faced by a world increasingly affected by climate breakdown today. As reported, around the world, ‘many islands are slowly but surely being submerged’. This article enquires into the potential role that the International Tribunal for the Law of the Sea (ITLOS) may have, in its advisory capacity, in tackling the effects of climate change. In particular, this article deals with two broad issues: (i) it identifies the potential benefits and risks of an ITLOS Advisory Opinion on the issue of climate change under the United Nations Convention on the Law of the Sea (UNCLOS) and (ii) it examines the questions that COSIS recently posed to the tribunal, a number of sub-questions and relevant provisions under UNCLOS are further identified, and whether the Commission on Small Island States on Climate Change and International Law has complied with the procedural rules of ITLOS to trigger its advisory functions.

With the signing of the recent agreement with Russia concerning the maritime boundary in the Barents Sea, it can finally be said that all the maritime delimitation lines with which Norway is concerned have been equitably resolved in accordance with the UN Convention on the Law of the Sea (UNCLOS). This paper reviews the events, difficulties, survey procedures and solutions that have led to the completion of the Norwegian maritime boundary definitions. The various UNCLOS concepts of baselines and maritime domains (Territorial Waters, the Contiguous Zone, and the Exclusive Economic Zone) are explained, and reference is made to important national and international decrees and judgments that have been made over the years. Particular attention is drawn to the impact and importance of geodetic considerations on maritime boundary definitions. Practical consequences have arisen through not taking these geodetic impacts into account, especially since the advent of satellite navigation systems has enabled much improved positioning accuracy out of sight of land, while enormous natural resources have been identified and are being extracted from national maritime domains. The article gives an account of the solutions to these geodetic difficulties that have been negotiated with neighbouring nations. Keywords: United Nations Convention on the Law of the Sea, UNCLOS, base- line, territorial sea, contiguous zone, Exclusive Economic Zone = EEZ, maritime boundaries, geodetic datum, Norway, Jan Mayen, Svalbard, Bouvet Island. Citation: Arctic Review on Law and Politics, vol. 3, 1/2012 p. 108–129. ISSN 1891-6252