The Dispute Settlement System of the United Nations Convention on the Law of the Sea: An Assessment after 20 Years
This panel was convened at 2:30 pm, Friday, April 11, by its moderator, Cesare Romano of Loyola Law School Los Angeles, who introduced the panelists: Natalie Klein of Macquarie University; Coalter Lathrop of Sovereign Geographic; Joanna Mossop of Victoria University at Wellington; and Yoshifumi Tanaka of the University of Copenhagen. * THE EFFECTIVENESS OF THE UNCLOS DISPUTE SETTLEMENT REGIME: REACHING FOR THE STARS? By Natalie Klein ([dagger]) A good friend of mine told me the best thing she ever learned from a high school teacher was that they should always reach for the stars. That way, if they only reached the rooftops, at least they got off the ground. The dispute settlement regime in Part XV of the UN Convention on the Law of the Sea (UNCLOS) undoubtedly reached for the stars. It was to be "the pivot upon which the delicate equilibrium of the compromise must be balanced," (1) "the cement which should hold the whole structure together and guarantee its continued acceptability and endurance for all parties." (2) I was among the skeptics as to the promise that the UNCLOS dispute settlement regime held for all disputes arising from varied maritime activities. (3) In my earlier work, (4) I set out to consider whether the dispute settlement regime in UNCLOS was indeed indispensable to the overall operation of the many facets of the Convention. I concluded that compulsory procedures entailing binding decisions were indispensable in some (although not all) instances, but that the dispute settlement regime with its many limitations and exceptions was politically realistic. As we make an assessment of the effectiveness of the UNCLOS dispute settlement regime 20 years on, my purpose is twofold. First, I want to consider for what reasons the dispute settlement regime was needed and used. Second, I want to ask: What have been the unexpected uses of the UNCLOS dispute settlement regime, and how do those reflect on the effectiveness of Part XV to the law of the sea? Ultimately, to return to my earlier analogy, it is not possible to conclude that UNCLOS dispute settlement has reached the stars, but we can have a healthy debate as to what level rooftop has been reached. In assessing Part XV in the overall regime of UNCLOS, I had earlier taken the view that the dispute settlement regime was requisite for those parts of the Convention where a particularly delicate balance of interests had been achieved in the text and third-party adjudication or arbitration could be used to safeguard that balance. The most common balance of interests in this regard is between the exclusive interests of coastal states and the inclusive interests of all other states, often flag states, in seeking to protect their respective rights. This sort of balance is manifest in the transit passage regime, for example, as well as in Articles 56 and 58 pertaining to different interests within the exclusive economic zone. Another reason that the UNCLOS dispute settlement regime was needed was to flesh out some of the very broad or general obligations included in the Convention. Judicial decisionmaking would not, of course, be the only avenue available for this purpose, as UNCLOS anticipated further developments in organizations like the IMO, (5) or among concerned states under separate agreements, such as with regional fisheries management organizations or arrangements. (6) Yet if a dispute arose between states concerning the interpretation and application of provisions setting out general standards of conduct, it would inevitably fall to a court or tribunal to determine what would fall within those particular standards in the circumstances of the case. Part XV of UNCLOS has indeed been used, to greater and lesser extents, for these two reasons. In relation to safeguarding the balance of interests in the text, there are clear examples in the case law produced under UNCLOS. …
The International Convention for the Regulation of Whaling
Since the moratorium on commercial whaling decided by the International Whaling Commission (IWC) in 1982, its activity has been characterised by measures which aim at protecting whales instead of encouraging their exploitation. After recalling some of the features of the 1946 International Convention on the Regulation of Whaling (ICRW) and the problems concerning its implementation, the article deals with some recent developments in the framework of the IWC's practice. It illustrates the different positions of the IWC's members who want to whale the abundant species and of those who want to ban whaling for good. Finally, the article contains some tentative comments about this difference of opinion and its consequences.
Reid on Hypotheses and the Ether; A Reassessment
In recent years historians of science have come to see that Thomas Reid’s Essays on the Intellectual Powers of Man had a profound impact on the development of British methodological thought in the late-eighteenth and early-nineteenth centuries. Larry Laudan has argued that Reid was “the first major British philosopher to take Newton’s opinions on induction, causality, and hypotheses seriously”; and that Reid was thereby instrumental in changing the character of British methodological discourse in the Enlightenment.(1) Geoffrey Cantor has examined in detail the influence of Reid’s critique of ether theories and hypotheses in the Essays on leading protagonists in the nineteenth-century debates surrounding the wave theory of light,(2) and Richard Olson has traced the origins of the scientific style of British physics in the Victorian period to the writings of Reid and other Common Sense philosophers. (3) As well as delineating Reid’s influence, Laudan, Cantor, and Olson have attempted to identify the problems to which he addressed himself in articulating his methodology, and they have analysed with some care the internal structure of his methodological views. Thanks to the work of these historians, therefore, we have a fairly comprehensive picture of Reid’s methodology and its fortunes in the nineteenth century.