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 Permanent Court of Arbitration’s Exegesis of the Regime of Islands and China’s Nine-Dash-Line Claims in the South China Sea Arbitration
The big South China Sea is one of the most dangerous hotspot in the world. By words and actions, there are six claimants of the South China Sea. The People’s Republic of China and the Republic of the Philippines are some of them. Each want to control the numerous features and resources in boosting their economic interests. The United Nations was actively involved in the settlement of the disputes for their own security and economic interests. The great ownership question that comes about in this is the rightful owner of the South China Sea which involved the Nine-Dash Line claims by the government of the People’s Republic of China, which laid claims to the Paracel Islands, the Spratly Islands, the Pratas Islands, the Maccles field Bank and the Scarborough Shoal. In the Arbitration between the two parties: China and Philippines, Annex VII of the United Nations Convention on the Law of the Sea was relied upon by the tribunal which gave award on 29th October, 2015 on admissibility and jurisdiction. However the objection that was presented by China was rejected by the tribunal. This was because of the issue of the territorial sovereignty of China in the South China Sea which was not within the jurisdiction of the tribunal. The tribunal found interalia that the submission made by Philippines showed the dispute between the parties putting in mind the Convention interpretation and application. The requirements under article 283 of the Convention were met by the Philippines in regards to the settlement of the dispute. This paper examines the South China Sea arbitration award and the interpretation and the application of the regime of islands under article 121 of the United Nations Convention on the Law of the Sea.
PLEASURE, POWER, AND THE PURSUIT OF COMMUNISM: SOVIET YOUTH AND STATE-SPONSORED POPULAR CULTURE DURING THE EARLY COLD WAR, 1945-1968
art, with certain students accused of “showing political immaturity, failing to understand the Party’s positions on art.” This episode constituted part of a broader crackdown on abstract art by the Khrushchev administration from late 1962, precipitated the the Soviet leader’s derision of such art forms in December 1962 at the Manege exhibit. Such instances demonstrate the limitations of the top-level promotion of youth grassroots initiative, as the Khrushchev leadership reigned in youth autonomy when it threatened to go beyond the boundaries of the permissible. The dates cited above have particular resonance, since both 1957-58 and 1962-63 represent two periods when those at the top of the Party hierarchy moved away from pursuing a more pluralistic, tolerant policy course, due to anxiety inspired by both sharpening Cold War hostilities and domestic developments. In these periods, official rhetoric censured what it labeled as 639 TsAOPIM, f. 635, op. 13, d. 546, ll. 56-57. This is likely related to criticism of the Party associated with the fallout from the Secret Speech and the Hungary invasion. For more, see Polly Jones, “From the Secret Speech to the Burial of Stalin: Real and Ideal Responses to De-Stalinization,” in Jones ed., The Dilemmas, 41-63. 640 TsAOPIM, f. 6083, op. 1, d. 52, ll. 166-67. 641 Susan E. Reid, “In the Name of the People: The Manege Affair Revisited,” Kritika 6.4 (Fall 2005): 673716. 642 On these anxieties, see Dobson, Khrushchev’s Cold Summer, 156-88.