Because maritime questions are often admixed with territorial sovereignty questions, parties sometimes seek to settle them together. Jurisdiction under the United Nations Convention on the Law of the Sea-UNCLOS-according to the received view does not encompass disputes concerning territorial sovereignty. In this book, international law scholar and practitioner Thomas D. Grant argues that the received view overstates the exclusion of sovereignty disputes. In Coastal State Rights, UNCLOS Annex VII arbitrators overstated the scope of the term 'sovereignty dispute' as well, an error of definition compounded when they ignored evidence probative as to whether a sovereignty dispute exists. Examining UNCLOS, its drafting history, and decades of decided cases, Sovereignty Disputes and the United Nations Convention on the Law of the Sea relates an important problem of international dispute settlement to the public order of which UNCLOS forms part. -- .
Rezensionen / Stimmen
'This book is a masterful argument on the current state of the law of the sea in its geopolitical context from a deeply and widely experienced practitioner and scholar. It goes to the heart of the continuing significance of the law of the sea in maintaining global order, addressing what is at stake for global order in current law of the sea jurisprudence.'
Professor Cameron Moore, University of New England in Armidale, NSW
'This book presents a crucial study that confronts the contemporary crisis in international public order. Dr. Grant's thorough analysis of jurisprudence offers valuable insights into the role of the dispute settlement system of UNCLOS in a time of public order crisis.' Professor Yoshifumi Tanaka,
University of Copenhagen -- .
Reihe
Sprache
Verlagsort
Zielgruppe
Für höhere Schule und Studium
Für Beruf und Forschung
Maße
Höhe: 234 mm
Breite: 156 mm
ISBN-13
978-1-5261-9060-4 (9781526190604)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Klassifikation
Thomas D. Grant is a Fellow of the Lauterpacht Centre for International Law at the University of Cambridge -- .
Preface
Acknowledgements
List of abbreviations
List of judgments and awards
List of treaties & other international instruments (selected)
Introduction
A. UNCLOS jurisdiction in a time of public order challenge
B. Interpreting and applying the limits of jurisdiction
C. Chapter outline and cross-cutting themes
D. Use of terms
Chapter 1. Use of force and settled boundaries
A. The teleological ground: states, spatial authority, and stability
B. The principle of non-acquisition by force, its scope, and consequences: the 2024 Israel advisory opinion
C. Stability of boundaries at sea
D. Stability redux
Chapter 2. Jurisdiction under UNCLOS Part XV, section 2: the framework
A. Article 288(1) and the scope of merits jurisdiction
B. Article 288(4) and competence de la competence
C. Article 293(1) and the use of force cases
1. The M/V 'Saiga' (No. 2) line of cases
2. Human rights and immunity of a warship
3. The Tzeng critique and a tentative reply
4. Use of force in other settings: some observations by analogy
5. Undefined terms and incidental rules
D. Land territory in UNCLOS: 'the land dominates the sea' (or UNCLOS comes ashore)
1. The land-sea link
2. The inherency of sovereignty questions and the problem with the Article 288(1) argument
Chapter 3. Jurisdiction under UNCLOS Part XV, section 2: limitations and optional exceptions
A. Limitations and optional exceptions distinguished
1. Article 297: the specified limits on jurisdiction
2. Article 298: the optional exceptions to jurisdiction
B. Article 298(1)(a)(i) and its sovereignty disputes clause
1. The plain text of Article 298(1)(a)(i)
2. Drafting history of Article 298(1)(a)(i)
a. The deliberate placement of the land territory exclusion
b. The exponents of the territorial exclusion and their strained readings of the drafting history
3. Agreement on Marine Biodiversity of Areas Beyond National Jurisdiction (2023) and its non-effect
C. Other territorial exclusion arguments
1. Draft article on territorial disputes and self-determination
2. Oxman's resolution III argument
3. Absence of substantive provisions as grounds for jurisdictional abstention?
Chapter 4. A question of coasts: Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom)
A. The United Kingdom's objection to jurisdiction over the territorial issue
B. The majority opinion: shifting the issue to 'relative weight' and Article 288(1)
C. From Article 298(1)(a)(i) and back again: the majority opinion in disarray
1. Misreading the a contrario argument
2. The contradiction between the tribunal's conclusion and Article 288(1)
3. The residuum of UNCLOS disputes, connected territorial disputes, and a procedural incentive not to aggravate disputes: an answer to the anti-a contrario argument
D. The 'minor issue'
E. Judges Kateka and Wolfrum dissent
1. The majority's mischaracterization of the dispute
2. The majority's unsupportable territorial exclusion
F. Concluding points on territory in Chagos arbitration
Chapter 5. Separating the land from the sea: South China Sea Arbitration (Philippines v. China)
A. Disputed existence: is there land at all?
1. Status of features as above or below water at high tide (Article 13)
2. Artificial islands and attempted sovereign appropriation
B. Disputed status: what maritime entitlement does the land generate? (Article 121(3))
C. Disputed nature and validity of claim: does the 'historic title' exception apply?
D. Disputed use: does the 'military activities' exception apply?
E. South China Sea: assessment
Chapter 6. A 'sovereignty dispute' by force: Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russia)
A. Crimea in dispute?
1. Ukraine's case on jurisdiction
2. Russia's objection to jurisdiction
3. The tribunal affirms Russia's objection
B. The tribunal's interpretation of the sovereignty dispute exclusion
C. The salience of claims in international law
D. How the tribunal found a 'dispute'
1. The 'developments' leading to a 'dispute'
a. Reasons to scrutinize Russia's 'developments': preliminary observations
b. The tribunal's default to 'objective dispute'
2. The 'objective dispute' and its limits
a. Legal and extra-legal assertions distinguished
b. Acts on different legal planes
c. Defining the particular dispute concerned
3. Fact-finding and dispute-finding
a. Insufficiency of the formal approach
b. Disentangling the legal from the extra-legal in a situation involving both
c. Identifying legal disputes: the evidence-based approach
4. 'Developments' by force and the absence of law
E. The tribunal's denial of plausibility
1. From North Borneo to south Ukraine: plausibility and alleged disputes
2. Why the tribunal should have tested the evidence
a. The credibility of Russia's assertions
b. The danger of passivity in the face of evidence
c. Observing the adjudicator's ordinary method
3. How the tribunal should have tested the evidence: burden of proof and standard of proof 306
F. Article 288(4) and the missing facts
G. Managing public order effects in the law of the sea: some lessons from hydrocarbon practice
Chapter 7. The institutional setting and a tribunal in isolation
A. Recognition and non-recognition in international law
1. Recognition as decentralized response
2. Recognition and customary international law identification distinguished
3. Erga omnes character of territorial title and claims
4. International responsibility, non-recognition, and UNCLOS Article 304
5. Courts and tribunals as addressees of the obligation not to recognize
B. Institutional decisions relevant to Coastal State Rights
1. General Assembly practice and the lessons of East Timor
2. Security Council practice and Charter Article 27(3)
3. ICJ Advisory Opinion on the Chagos
4. Ukraine's ICJ proceedings
5. Practice of other intergovernmental organizations
6. Charter Chapter XI, decolonization, and the existence of a dispute
7. Other decisions under international dispute settlement procedures
C. 'Without prejudice' clauses in UNCLOS and other rules and institutions
D. A concluding word on systemic consistency
Chapter 8. After Coastal State Rights: repairing the damage
A. Exorbitant claims on land and at sea
B. A consensus takes shape?
C. Mauritius/Maldives
D. MH17 and Crimea cases at the European Court of Human Rights
E. Investment claims under the Russia-Ukraine BIT
F. Draftsmen and undue deference
G. The subtle effects of a 'double hat'
H. Using the adjudicator's method to address the contested 'dispute'
1. Distinguishing what is decided from what is not
2. Exercising restraint regarding legal relations not placed in question in the dispute
3. Keeping the audience in mind
I. A postscript to Coastal State Rights?
Conclusion
A. The unhappy award
B. Recognising the ungainly foot when you see it
C. Hazards real and imagined
D. For a return to method
References -- .
