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. …
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
1International Court of Justice — International maritime boundary delimitation between Nicaragua and Honduras — Dispute regarding boundary line dividing territorial sea, exclusive economic zone and continental shelf in the Caribbean Sea — Effect of islands — Sovereignty over islands International Court of Justice — Admissibility — New claim introduced during proceedings — Whether new claim inherent in original claim Treaties — Interpretation — Multilateral treaty — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — UNCLOS Articles 15, 74 and 83 Sea — Delimitation of maritime boundaries — Geographical context — Semi-enclosed sea — Territorial sea — Exclusive economic zone — Continental shelf — Governing law — UNCLOS — UNCLOS Articles 15, 74 and 83 — Establishment of single maritime boundary delimiting several coincident zones — Methods of delimitation — Whether equidistance/relevant circumstances approach suitable in light of circumstances — Relevant coasts — Identification of baselines — Bisector method of delimitation — Relevant geographical circumstances — Principle of uti possidetis juris — Whether applicable to delimitation of maritime space Territory — Islands — Sovereignty over minor maritime features — Whether sovereignty established by post-colonial effectivités — Application of criteria formulated by Permanent Court of International Justice in Legal Status of Eastern Greenland case — Whether activities relied upon established overall pattern of conduct sufficient to demonstrate intention to act as sovereign
The colonial ethnological line: Timor and the racial geography of the Malay Archipelago
This article examines the connected histories of racial science and colonial geography in Island Southeast Asia. By focusing on the island of Timor, it explores colonial boundaries as modes of arranging racial classifications, and racial typologies as forms of articulating political geography. Portuguese physical anthropologist António Mendes Correia's work on the ethnology of East Timor is examined as expressive of these productive connections. Correia's classificatory work ingeniously blended political geography and racial taxonomy. Between 1916 and 1945, mainly based on data from the Portuguese enclave of Oecussi and Ambeno, he claimed a distinct Malayan racial type for the whole colony of ‘Portuguese Timor’. Over the years he developed an anthropogeographical theory that simultaneously aimed to reclassify East Timor and to revise the racial cartography of the Malay Archipelago, including Wallace's famous ethnological line.