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Home International Tribunals Archive for category "Inter-State Arbitration"

The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

Published on February 8, 2017        Author: 

The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate before the French National Assembly).

Tromelin is a flat and small feature, about 1,700 metres long and 700 metres wide, with an area of about 80 hectares (200 acres). Its flora is limited, while the site is known to host significant numbers of seabirds. There is no harbour nor anchorages on the island, but a 1,200-metre airstrip, and there appears to be no continuous human presence.

Tromelin was discovered by a French navigator in 1722, and France today claims sovereignty over it by virtue of historical title (discovery of terra nullius) dating back to that date. The islet was the scene of a sad – and little known – episode of history as the place where approximately 60 Malagasy men and women were abandoned for 15 years in the 18th century after a French ship transporting slaves eschewed on the island. Most of the slaves died within a few months. The survivors were finally rescued in 1776, when Bernard Boudin de Tromelin, captain of the French warship La Dauphine, visited the island and discovered seven women and an eight-month-old child. Captain Tromelin also raised a French flag on the island – and his name was given to it.

French possession of Tromelin was interrupted by Britain which took control of the island in 1810. Then in 1954, the British gave their consent to France’s effective control over Tromelin. But sovereignty over Tromelin is still disputed, and the island has been claimed by the newly independent Mauritius since 1976, and reportedly also by Madagascar and the Seychelles (see V. Prescott, ‘Indian Ocean Boundaries’ at 3462-63). The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (cogestion) of the island and of surrounding maritime areas. Read the rest of this entry…

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After Trump: China and Russia move from norm-takers to shapers of the international legal order

Published on November 10, 2016        Author: 

The Western media hardly reported that on Tuesday 8th November 2016, the Chinese Premier, LI Keqiang, visited Russia. Maybe the date of the visit (the day of the de facto election of the US President) was chosen to convey a message. The deepening Chinese-Russian partnership seeks to work towards an alternative to what is perceived by the leaders of those two powers to be a US-dominated world order. It is plausible that an unpredictable, inexperienced, and undiplomatic US President will contribute to a weakening of that order. It is also likely that all recent moves will entail some changes in international law.

Let us recapitulate the latest official statements. On the official English-language website of the Chinese government, the Chinese Premier commented yesterday’s meeting as follows: “China−Russia cooperation is not only beneficial to the two sides, but also to regional and world peace, stability, development, and prosperity.”

A more detailed exposition of this view was offered by Ms FU Ying, the co-chairperson of the Foreign Affairs Committee of the National People’s Congress of the People’s Republic of China, and the current vice minister of the Foreign Ministry of the People’s Republic of China. She gave a speech at a meeting of a Russian intellectual elite-discussion circle (the “Valdai Club”) which was quickly published in China Daily − European Weekly of October 28 – November 3, 2016, entitled “Major Countries Need to Build Trust”.

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The Doctrine of Indispensable Issues: Mauritius v. United Kingdom, Philippines v. China, Ukraine v. Russia, and Beyond

Published on October 14, 2016        Author: 

On 14 September 2016, Ukraine instituted proceedings against Russia under the United Nations Convention on the Law of the Sea (UNCLOS). Ukraine is requesting that an UNCLOS tribunal declare, inter alia, that Russia has violated the Convention by interfering with Ukraine’s rights in maritime zones adjacent to Crimea.

At first, there appears to be no jurisdictional problem. Aside from the exceptions laid out in Part XV of UNCLOS, the tribunal has jurisdiction over “any dispute concerning the interpretation or application of [the] Convention” (Art. 288(1) UNCLOS), which would permit a declaration that Russia has violated the Convention. Nevertheless, such a declaration would necessarily require a preliminary determination that Ukraine still has sovereignty over Crimea (under the “land dominates the sea” principle), and the tribunal does not have jurisdiction over territorial sovereignty disputes. Therefore, the tribunal must decide whether it may still exercise jurisdiction over the dispute concerning Russia’s violation of the Convention.

Ukraine v. Russia presents what one may call the “implicated issue problem.” Generally speaking, the implicated issue problem arises when an international court or tribunal has jurisdiction over a dispute, but the exercise of such jurisdiction would implicate an issue over which the court or tribunal does not have jurisdiction ratione materiae. The court or tribunal must therefore determine whether it may still exercise jurisdiction over the dispute. Read the rest of this entry…

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Philippines v China: first thoughts on the Award in the South China Seas Case

Published on July 12, 2016        Author: 

Any international lawyer looking at a news site in the last few hours will have seen that the final award has been handed down at the Permanent Court of Arbitration in the Philippines v China dispute brought under the UN Convention on the Law Sea Annex VII procedure. The arbitral tribunal’s decision is simply historic. While Philippines has lost on a number of smaller points, the scale of its win overall is much greater than most commentators were expecting.

What follows is a very preliminary comment – and I stress that faced with a 500 page decision I may well revise my views later. It is also more in the nature of an explainer than a deep dive on any of the many legal questions already highlighted below. (This is also an excessively long post, for which I apologise.) However, on a first, quite brief, examination the tribunal has attempted to be meticulously fair to China and has applied the UN Convention on the Law of the Sea strictly and thoroughly. It has delivered a result which was, by and large, predictable.

James Kraska of the US Naval College has summarised the key holdings as:

  • the nine dash line has no basis in law,
  • there are no islands in the disputed area within the meaning of Article 123, UNCLOS,
  • China has interfered in the Philippines’ EEZ; and
  • China’s actions have aggravated the dispute.

I would add to this list three matters. First, the Tribunal has concluded that Mischief Reef is a low tide elevation over which no State can claim sovereignty or possession. This means it is simply a maritime feature within the Philippines exclusive economic zone (EEZ). Chinese island-building activities there are thus not merely without legal effect but are in violation of the sovereign rights of the Philippines.

Second, it has found that China has breached various obligations under UNCLOS regarding the protection and preservation of the marine environment by having caused severe and irreparable harm to coral reef ecosystems in its construction of artificial islands in the South China Seas.

Third, international tribunals normally bend over backwards to avoid findings of bad faith against a state. That is, one cannot act in bad faith without violating some other substantive right. So most tribunals consider it sufficient to stop at determining that a right or duty has been violated. This tribunal has found China violated Article 300 of UNCLOS: the duty to act in good faith. This is an extraordinary rebuke and a clear indication that the law of the sea dispute resolution system will not be cowed by the posturing of the superpower. As a matter of principle, it takes a principled stand on the supremacy of the rule of law. As a matter of pragmatism, it flies in the face of the conventional wisdom that angering China over this dispute could jeopardise the stability of the law of the sea system.
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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 4)

Published on May 3, 2016        Author: 

Some six months since the publication of the third post on the Croatia v. Slovenia arbitration, as Bernard Woolley might say, ‘there has been movement’. To recapitulate, following Croatia’s note verbale of 24 July 2015 informing Slovenia and the Tribunal of its intention to terminate the Arbitration Agreement, Slovenia tendered its objection dated 13 August. In the aftermath of the successive resignations of the arbitrator of Slovenian nationality (Dr Jernej Sekolec) on 23 July, the arbitrator of Croatian nationality (Professor Budislav Vukas) on 30 July, and the replacement arbitrator for Sekolec (President Ronny Abraham of the ICJ) on 3 August, the Tribunal invited the parties to appoint replacements for Vukas and Abraham. Croatia declined to name a replacement, whereas Slovenia wrote to the Tribunal that, ‘in order to preserve the integrity, independence and impartiality of the Arbitral Tribunal and the ongoing proceedings, it will refrain from appointing a member of the Tribunal to replace Judge Abraham’. Instead, Slovenia requested ‘the President of the Arbitration Tribunal, Judge Gilbert Guillaume, in exercise of his powers under Article 2, paragraph 2, of the Arbitration Agreement, to appoint a member of the Tribunal’. In a press release dated 25 September, the Tribunal announced:

Since neither Party made an appointment within 15 days after the resignation of Professor Vukas and Judge Abraham, it fell to the President to appoint the remaining two members of the Tribunal. [Professor Nicolas Michel, of Swiss nationality] was appointed to succeed Professor Vukas on the Tribunal, and [H.E. Ambassador Rolf Fife, of Norwegian nationality] was appointed to succeed Judge Abraham. The Tribunal now intends to consider the Parties’ positions carefully, including in respect of the effect of Croatia’s stated intention to terminate the Arbitration Agreement and in respect of the possible implications for the present proceedings of the events reportedly underlying Croatia’s decision. In this regard, the Tribunal may invite further submissions from the Parties on questions of fact and law as may be necessary.

It is noteworthy that, for the first time in the history of the arbitration, the panel is now ‘wholly neutral’ in that all of the arbitrators are nationals of neither party. Although this appears to have eventuated faute de mieux, it is attractive on a systemic level, as covered in our last post.  

On 2 December, the Tribunal fixed deadlines for further submissions on the aforementioned issues. On 14 March, the Tribunal announced that it had fixed 17 March as the date for hearings on the matter, to be held (understandably) in camera pursuant to Article 6(5) of the Arbitration Agreement with a summary of the Parties’ positions to be published via press release. On the ground, tensions have been escalated by the decision of Slovenia to run a barbed wire fence along part of the disputed territory (see here). Reactions in Croatia, likening these actions to the Nazi occupation of the area during the Second World War, have not helped to ease tensions Read the rest of this entry…

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 3)

Published on August 25, 2015        Author: 

In our last post, we analysed Croatia’s denunciation of its arbitration with Slovenia emerging from the scandal of secret communications between the arbitrator of Slovenian nationality and the Slovenian agent. In this final post, we examine the ramifications of the scandal for the international judicial system: that is, the informal set of international courts and tribunals in which at least one of the parties is a State. We suggest that the scandal is not an isolated case but rather symptomatic of systemic problems. This, we argue, supports the case for the investment of energy by the college of international lawyers to investigate the case for procedural reform in international courts and tribunals.

If we may be permitted to indulge in a spot of shameless advertisement, we are co-editors (along with Dr Filippo Fontanelli (University of Edinburgh), and Dr Vassilis Tzevelekos (University of Hull)) of an edited volume entitled Procedural Fairness in International Courts and Tribunals due to be published in September by the British Institute of International and Comparative Law. As this story broke – just as we were putting the finishing touches to the concluding chapter to the volume (thus seeking to justify, if only to ourselves, the effort) – it occurred to us that we could not have concocted a more apt scenario encapsulating the subject if we had tried.

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 2)

Published on August 7, 2015        Author: 

As we described in our first post of last week, the completion of the arbitration between Croatia and Slovenia has been thrown into doubt by the revelation of illicit contacts between the Slovenian arbitrator (‘Slovenia’s arbitrator’? Or ‘the arbitrator of Slovenian nationality’? More on this in our next post) and the Slovenian agent. On 24 July, Croatia applied to the Tribunal to ‘suspend the proceedings with immediate effect’ and invited ‘the remaining members of the Tribunal to review the totality of the materials presented, and reflect on the grave damage that has been done to the integrity of the entire proceedings’. On 28 July, the Tribunal published a press release in which it announced that a hearing on the Croatian application would be arranged ‘in the coming days’. On 30 July, the arbitrator of Croatian nationality, Professor Budislav Vukas (formerly Vice-President of the International Tribunal for the Law of the Sea), resigned from the arbitration, and on July 31 Croatia itself formally informed the Tribunal that it ‘cannot continue the process in good faith’ and that ‘in accordance with the relevant provisions of the Vienna Convention on the Law of Treaties’ it ‘informed the other Signatory to the Agreement of its intention to terminate’ the Arbitration. On 3 August, ICJ President Abraham resigned from the Tribunal, informing it that he had agreed to his appointment to ‘help restore confidence between the Parties and the Arbitral Tribunal and to allow the process to continue normally, with the consent of both Parties’ but that ‘the current situation cannot meet that expectation’ so that ‘it was no longer appropriate’ for him to serve as arbitrator.

At the end of our first post, we posed a number of preliminary questions that this scandal raises. In this post, we shall attempt, if not to provide definitive answers, at least to illustrate the context and consequences of these issues, with specific attention to the immediate repercussions for the arbitration. We shall follow this with a Part 3 post, on the wider implications for the international legal profession and the international judicial system.

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal

Published on July 28, 2015        Author: 

The Arbitration between Croatia and Slovenia, brokered by the European Commission, conducted under the auspices of the Permanent Court of Arbitration and concerning delimitation of the maritime and land boundary between the two States, has been ongoing over the past three years. By the Tribunal’s estimation, it has featured nearly 1,500 documentary exhibits and legal authorities and 250 figures and maps. Following the conclusion of the oral phase of proceedings in June 2014, the Tribunal issued a press release on 10 July of this year in which it announced that the award would be promulgated in mid-December.

All of this progress towards the peaceful settlement of the dispute was thrown into sudden doubt by the revelation that the arbitrator of Slovenian nationality, Dr Jernej Sekolec, was secretly in contact with the Slovenian agent, Simona Drenik. These contacts, which allegedly took place during two secret telephone conversations on 15 November 2014 and 11 January 2015, included discussions of how to best influence the other arbitrators to rule in Slovenia’s favour, the sharing of Slovenian submissions directly with Dr Sekolec (who stated that he would present them to the other arbitrators as his own ‘notes’ on the case), and the advance leaking of the deliberations of the Tribunal to Ms Drenik, including the tip that the Tribunal would award to Slovenia at least two thirds of the disputed waters it had claimed.

The story was broken on Wednesday 22 July by the Croatian daily newspaper Večernji list (acting on information first leaked in the Serbian tabloid Kurir), which published transcripts and audio recordings of the conversations between the two on its website. For a description in English, see this story by the reputable NGO Balkan Insight.

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Mauritius v. UK: Chagos Marine Protected Area Unlawful

Published on April 17, 2015        Author: 

On 1 April 2010, the UK declared the world’s largest Marine Protected Area (MPA) around the Chagos Archipelago. The Archipelago is one of 14 remaining British overseas territories, administered by the UK as the British Indian Ocean Territory (BIOT). In contrast to other British overseas territories such as the Falklands/Malvinas and Gibraltar, BIOT is not on the UN list of non-self-governing territories. There is currently no permanent local population because the UK cleared the archipelago of the Chagossians between 1968 and 1973.

Mauritius and the UK both claim sovereignty over the Chagos Archipelago. The largest island of the Chagos Archipelago – Diego Garcia – has since the late 1960s housed the most important US military base in the Indian Ocean. The UK leased the island for defense purposes to the US in 1966, prior to Mauritian independence in 1968. The 50-year lease of Diego Garcia is due to be renewed in 2016.

In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. UK), a tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) issued its award on 18 March 2015. The tribunal found that the UK’s declaration of the MPA disregarded Mauritius’ rights, rendering the MPA unlawful. The award raises the prospect that the renewal of the lease in 2016 will require the UK to meaningfully consult Mauritius.

Mauritius made four submissions to the tribunal:

First: The UK was not entitled to declare a MPA because it was not a coastal state under UNCLOS (the ‘sovereignty claim’, according to the UK)

Second: The UK was prevented from unilaterally declaring the MPA due to Mauritius’ rights as a coastal state under UNCLOS

Third: The UK may not take any steps to prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission to the Commission that Mauritius may make

Fourth: The UK’s declaration of the MPA was incompatible with substantive and procedural obligations under UNCLOS

The jurisdictional part of the award is centered on whether the four submissions concern the ‘interpretation or application of UNCLOS’ under Article 288 UNCLOS. This blog entry concentrates on the merits as regards the Fourth Submission. Read the rest of this entry…

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The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II

Published on January 30, 2015        Author: 

Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.

Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?

The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.

Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Read the rest of this entry…

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