Adjudicators have struggled, not all successfully, with one of the persistent puzzles that the UN Convention on the Law of the Sea presents — the limits to dispute settlement jurisdiction in respect of sovereignty disputes. This book argues for an approach that better accords than decided cases so far with the text, judicial method, and public order.
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.
Arvustused
'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. Grants 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
'The determination of jurisdiction in inter-State disputes that involve multifaceted legal and factual disagreements but where the jurisdiction is subject to ratione materiae limitations represent some of the most intriguing and complex dispute settlement questions. The book of Thomas Grant addresses these difficult questions in an analytical but lucid manner, which greatly facilitates the understanding of these various judicial challenges. Further, this work conducted by Thomas Grant is all the more important given the extensive and empirical background that underlies its conclusions. I welcome this book to post-graduate students, researchers and practitioners.' Prof. Dr. Bjørn Kunoy, University of the Faroe Islands -- .
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 compétence de la compétence
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. Oxmans 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 Kingdoms 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 tribunals 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 majoritys mischaracterization of the dispute
2. The majoritys 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. Ukraines case on jurisdiction
2. Russias objection to jurisdiction
3. The tribunal affirms Russias objection
B. The tribunals 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 Russias developments: preliminary
observations
b. The tribunals 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 tribunals 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 Russias assertions
b. The danger of passivity in the face of evidence
c. Observing the adjudicators ordinary method
3. How the tribunal should have tested the evidence: burden of proof and
standard of proof
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. Ukraines 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 adjudicators 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 -- .
Thomas D. Grant is a Fellow of the Lauterpacht Centre for International Law at the University of Cambridge -- .
