magnify
Home International Tribunals Archive for category "Inter-State Arbitration" (Page 3)

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…

Print Friendly, PDF & Email
 
Comments Off on Mauritius v. UK: Chagos Marine Protected Area Unlawful

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…

Print Friendly, PDF & Email
 

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

Published on January 29, 2015        Author: 

On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Read the rest of this entry…

Print Friendly, PDF & Email
 

China, the Philippines and Oil Rig HD-981: A New Flashpoint in the South China Sea Dispute

Published on May 23, 2014        Author: 

South_China_Sea_vector.svgTensions between China and Vietnam over the disputed Paracel islands erupted into anti-Chinese riots this week in Vietnam. The immediate cause is the positioning of a deep sea exploratory oil rig, the HD-9H1, 17 nautical miles from Triton Island, the south-western most feature of the Paracel group. It is also within 200 nautical miles of the Vietnamese coastline and therefore potentially within the EEZ of Vietnam. (The map at left shows China’s claims in the South China sea as well as each country’s 200-mile exclusive economic zone. Click to enlarge. Credit.)

The underlying dispute is of course whether Vietnam or China has sovereignty over these maritime features. If they do belong to China, any maritime zone they generate would be opposable to Vietnam and a maritime delimitation would be needed to sort out the respective boundaries. Is recourse to international dispute resolution – if not by consent, then initiated by Vietnam – likely in such a case?

The situation obviously has some parallels with the Philippines v China arbitration initiated under the UN Convention on the Law of the Sea (UNCLOS). Indeed, such Annexe VII arbitrations under Part 15 of UNCLOS are undergoing something of a renaissance at present. Other than the Philippines v China case, there is also obviously the pending arbitration in the case of the MV Arctic Sunrise (Netherlands v Russia) – both cases in which a major power has threatened nonappearance. More positively, hearings under the auspices of the Permanent Court of Arbitration recently concluded between Mauritius and United Kingdom concerning the dispute which followed the UK’s pronouncement of a marine protected area around the Chagos archipelago. The attraction of UNCLOS arbitration is that dispute resolution under the Convention is, in principle, compulsory; the downside is that it is riddled with complex exceptions. (As I have noted in a previous post.)

Could this be the next case to go to an Annexe VII Tribunal? The problems with relying on this mechanism to resolve maritime boundary disputes, or disputes concerning the underlying title to an island, are well known. Read the rest of this entry…

Print Friendly, PDF & Email
 

A Follow-Up on International Arbitration under Pressure

Published on March 17, 2014        Author: 

Given the dramatic events in Ukraine, investment law was unlikely to be high up on the international legal agenda these past few days. However, during the weekend, the debate about investor-State dispute settlement (ISDS) I described in my last post may have taken a new turn. On 14 March, the Financial Times reported that Germany – long the most ardent supporter of ISDS and the country with the largest number of Bilateral Investment Treaties – now pushes for the exclusion of dispute settlement provisions from the EU-US Trade and Investment Partnership. This is the relevant bit:

Germany has introduced a stumbling block to landmark EU-US trade negotiations by insisting that any pact must exclude a contentious dispute settlement provision. …. [I]n the biggest blow yet to those seeking its inclusion in the deal, Berlin has decided that it will push for the exclusion of the ISDS provisions …. A spokesman for the economy ministry in Berlin said on Friday that the government had relayed its position to officials in Brussels, where negotiators have ended a week of talks over the proposed Transatlantic Trade and Investment Partnership (TTIP). Earlier in the week, Brigitte Zypries, a junior economy minister, told the German parliament that Berlin was determined to exclude arbitration rights from the TTIP deal. “From the perspective of the [German] federal government, US investors in the EU have sufficient legal protection in the national courts,” she told parliament. The German position pits Berlin against the commission, the US and business groups. All of them argue that the transatlantic deal is an opportunity to update arbitration rights that already feature in existing bilateral investment treaties and are often open to abuse.

 And, as the FT went on, the German position is really something quite new:

Nicole Bricq, France’s trade minister, has raised concerns before over the ISDS provision. Germany has until now backed its inclusion in the new pact. But Berlin has also been confronted with growing public scepticism in recent months over the transatlantic deal as a whole, and the ISDS provision in particular. At a press conference to mark the close of the fourth round of negotiations on Friday, Dan Mullaney, the leading US negotiator, declined to comment on the German decision. Ignacio Garcia Bercero, the EU’s chief negotiator, also refused to comment on it. But he pointed out that the EU’s original mandate to negotiate specifically included an ISDS provision and had been approved by member states, including Germany. “We are working on the basis of the mandate that has been given to us,” said Mr Garcia Bercero.

So, Alessandra Asteriti may be right (in the comments to my previous post) in saying the ‘ground is shifting’.

Print Friendly, PDF & Email
 

International Arbitration: Heating Up or Under Pressure?

Published on March 11, 2014        Author: 

Dapo recently posted on this blog about the rise of inter-State cases before the PCA and predicted that “the current rise of inter-state arbitration will endure for some time“. Many readers will presumably be quite happy about the trend described: binding dispute resolution, if it happens, tends to make us international lawyers happy after all – so the more (cases) the merrier?

Interestingly, there is one branch of international law in which the debate currently seems take a different turn; in which the belief in binding dispute resolution is under attack – and in which many commentators, incl. many with an internationalist mindset and a keen desire for a rights-based global order, strongly feel that we have too much international arbitration. This is the field of investment law, in which the concept of investment arbitration has come under fire. Of course, this is an important debate for those interested in investment arbitration — academics, practitioners, companies, civil society, etc.  But, as importantly (if not more), it is also a debate that general international lawyers interested in dispute settlement should follow, and which I feel would benefit considerably if they did not leave it to the (pro- and anti-) investment communities. So this post is an attempt to introduce it to a wider audience and to encourage a wider debate. Within investment law, the debate has been going on for a while. However, over the past few months, it has suddenly heated up – and it has heated up in Europe, where the EU is formulating its investment policy. And this fresh start has opened up interesting spaces for debate. So what is it all about? Read the rest of this entry…

Print Friendly, PDF & Email
 

Timor Leste’s request for provisional measures: ICJ orders materials seized by Australia sealed until further notice

Published on March 4, 2014        Author: 

On 3 March 2014, the International Court of Justice handed down its order on the request by Timor Leste for the indication of provisional measures in its claim against Australia relating to the seizure and detention of certain documents and data (for earlier reporting of the proceedings: see here). As predicted, Timor Leste didn’t get the seized material back, but the decision of the Court did give it most of what it wanted.

The Court considered that Timor Leste had established jurisdiction prima facie on the basis of the declarations it and Australia had made under Article 36(2) of the Court’s Statute accepting the Court’s compulsory jurisdiction, and that at least some of the rights claimed by Timor Leste were plausible. A concomitant of the principle of the sovereign equality of States was equality between States when in the process of seeking peacefully to settle their disputes, which meant that States have a right of confidentiality and of non-interference in their communications with their legal advisers when engaging in arbitration proceedings or negotiations. The Court also considered that there was a link between the rights claimed and the measures sought by Timor Leste insofar as they sought to prevent interference by Australia with Timor Leste’s communications with its legal advisers.

The major issue before the Court was, however, whether there was a risk of irreparable prejudice to Timor Leste’s rights, and whether such a threat was urgent. Australia’s argument was that there was no such risk. At the commencement of proceedings the Australian Attorney-General had stated that there had been no inspection of the documents and data seized and that they would be held under seal until the beginning of the oral hearings on Timor Leste’s request for the indication of provisional measures. At the oral hearings themselves, the Australian Solicitor-General had assured the Court that the materials would remain under seal until it rendered its decision on the request. Further, a written undertaking of the Attorney-General was presented to the Court stating that until the close of the Court’s proceedings the materials would only be inspected for purposes of national security, and that there would be no communication of them or their contents for any purpose in connection with the exploitation of resources in the Timor Sea or related negotiations, or in connection with the case before the Court or the Timor Sea Treaty Arbitration. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Peace Palace Heats Up Again: But Is Inter-State Arbitration Overtaking the ICJ?

Published on February 17, 2014        Author: 

Since the establishment, after World War I, of the Permanent Court of International Justice (PCIJ), judicial settlement by standing international courts has been more popular than inter-State arbitration as a means of settling inter-state disputes (except perhaps in the trade context where the GATT/WTO panels can be characterised as a form of arbitration). However, it may be that inter-state arbitration, is now eclipsing, or, is perhaps now as popular as, judicial settlement, even by the International Court of Justice.  A look at the docket of the ICJ as it currently stands, and at the list of inter-state arbitrations currently being administered by the Permanent Court of Arbitration is very revealing. The PCA now has about as many active inter-state disputes as the ICJ. As far as I can tell, this is the first time that this has happened in the almost century long history of the World Court (the PCIJ and the ICJ).

In 1991, the American international lawyer,  Keith Highet,  who was counsel in many cases before the International Court of Justice, wrote a piece in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) entitled “The Peace Palace Heats Up: The World Court in Business Again?”. Highet was reporting the dramatic rise in the number of cases submitted to the ICJ in the two years preceding his piece. He began by noting the gloomy forecasts of commentators about the ICJ, in the 1980s, particularly after the Nicaragua case, when it appeared that the Court had lost the confidence of some states. Predicitions about the Court’s demise turned out, happily, to be way of the mark. In just a few years after Nicaragua, Highet was able to write: “the Court in the Hague is busier than it has ever been in its entire history.” (p. 646). He concluded by noting that the Court “has become a ‘hot court’   . . . It is positioned, for the first time in its collective seventy-year history, to become the great international judicial institution that its friends and supporters always knew it could be.”(p. 654)

Today, those same words can be repeated. The Peace Palace again houses a “hot court”. However, this time it is the ICJ’s “relative” and “house-mate”, the Permanent Court of Arbitration (the original inhabitant of the Peace Palace), that is busier than ever and at its peak in terms of the number of cases it is handling. Read the rest of this entry…

Print Friendly, PDF & Email
 

Espionage & Good Faith in Treaty Negotiations: East Timor v Australia

Published on January 20, 2014        Author: 

In April last year, East Timor instituted arbitral proceedings against Australia at the Permanent Court of Arbitration (‘PCA’) in relation to a dispute arising under the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS Treaty’). Timor Leste (as East Timor is formally known) alleges that the CMATS Treaty is invalid because Australia engaged in espionage in the course of negotiating the Treaty. As noted by Matthew Happold in an earlier EJIL:talk! post, Timor Leste has also initiated proceedings against Australia the International Court of Justice in respect of the seizure of documents by Australian authorities from the offices of the Australian lawyer who is acting for Timor Leste in the PCA arbitration. Indeed, the ICJ is holding hearings, this week, on Timor Leste’s request for provisional measures that will require Australia to give up to the custody of the Court all documents and data seized by Australia pending disposal of the ICJ case and to give assurances that ‘it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers’.

The details of the arbitration before the PCA have not been made public, so it is difficult to form any clear assessment of the precise international law issues that arise.  However, from public statements and media reports, it seems that Timor Leste is alleging that the CMATS is invalid because “Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage”.  According to the lawyer for Timor Leste, during the negotiations for the CMATS Treaty, Australian intelligence services inserted listening devices into the wall of Timor-Leste’s negotiating room under the guise of an Australian aid program concerning renovation and construction of cabinet offices. The lawyer for Timor-Leste has likened the behaviour of the Australian intelligence services to insider trading. The PCA case is particularly interesting as it might be the first case in which a state seeks invalidity of a treaty on the ground that the other treaty party acted fraudulently in the negotiation of the treaty. The case raises the question whether states not only have an obligation to negotiate treaties in good faith but whether breach of the obligation to negotiate in good faith amounts to a ground for invalidity of a treaty.

Before turning to the grounds for invalidity, it is first worth noting that one of the interesting aspects of these proceedings is that they were even commenced at all. Read the rest of this entry…

Print Friendly, PDF & Email
 

East Timor Takes Australia to ICJ over Documents Seized by Australian Intelligence

Published on December 19, 2013        Author: 

By an application deposited with the International Court of Justice on 17 December 2013 (not yet on the Court’s website), East Timor has instituted proceedings against Australia over the seizure and detention by ‘agents of Australia of documents, data and other property’ belonging to East Timor or which it ‘has the right to protect under international law’.  Simultaneously, East Timor also requested the Court to indicate provisional measures in the case.

The case concerns a search of the Canberra law offices of Mr Bernard Collaery on 5 December by agents of the ASIO (Australian Security Intelligence Organisation) and the removal by them of various documents and electronic devices.  It also appears that at the same time a retired ASIS (Australian Secret Intelligence Agency) officer was also arrested, had his passport confiscated and his premises searched, with documents there also being seized. It was later confirmed by the Australian Attorney General George Brandis that he had approved the warrants under which the searches had been conducted, and that the raids had been carried out ‘to protect national security’.

East Timor and Australia are currently parties to an arbitration administered by the Permanent Court of Arbitration.  On 23 April 2013 East Timor initiated arbitration proceedings under the 2002 Timor Sea Treaty in respect of a dispute related to the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).  The dispute concerns the validity of the CMATS Treaty, with East Timor alleging that ‘Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage.’ [Few details of the arbitration have been made public (there is no specific mention of it on the PCA’s website) but Mr Collaery is one of East Timor’s lawyers and the retired ASIS officer one of East Timor’s witnesses in the arbitration.  It appears that he was to speak of the bugging of the East Timorese cabinet office during the CMATS Treaty negotiations (see here).

The claim before the ICJ concerns only the search of Mr Collaery’s office.  According to the Court’s press release,  East Timor alleges that during the search ‘documents and data containing correspondence between the Government of Timor-Leste and its legal advisers, notably documents relating to a pending arbitration under the 2002 Timor Sea Treaty between Timor-Leste and Australia’ were seized, in breach of East Timor’s sovereignty and its property and other rights under international law.  It claims the return of the documents and destruction of any copies made of them, as well as just satisfaction in the form of an apology from Australia and the payment of East Timor’s legal costs. Read the rest of this entry…

Print Friendly, PDF & Email