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In: The Law & Practice of International Courts and Tribunals

Abstract

This article considers the approach for determining whether a dispute concerns the “interpretation or application” of a particular treaty, such that it is within the subject-matter jurisdiction of an international court or tribunal. Specifically, the article considers what approach should be taken when claims are presented as concerning the “interpretation or application” of a particular treaty, but involve central issues under rules of international law found outside the treaty in question. The specific argument made in this article is that the approach used in some recent decisions, involving characterising where the “relative weight” of a dispute lies and the “true object” of claims, should not be followed.

In: The Law & Practice of International Courts and Tribunals

Abstract

The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as “dispute settlement à la carte”, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.

In: The Law & Practice of International Courts and Tribunals
Access, Uses, and Protection of Seabed Resources
Editor: Catherine Banet
The Law of the Seabed reviews the most pressing legal questions raised by the use and protection of natural resources on and underneath the world’s seabeds.
While barely accessible, the seabed plays a major role in the Earth’s ecological balance. It is both a medium and a resource, and is central to the blue economy. New uses and new knowledge about seabed ecosystems, and the risks of disputes due to competing interests, urge reflection on which regulatory approaches to pursue.
The regulation of ocean activities is essentially sector-based, and the book puts in parallel the international and national regimes for seabed mining, oil and gas, energy generation, bottom fisheries, marine genetic resources, carbon sequestration and maritime security operations, both within and beyond the national jurisdiction.
The book contains seven parts respectively addressing the definition of the seabed from a multidisciplinary perspective, the principles of jurisdiction delimitation under the United Nations Convention on the Law of the Sea (UNCLOS), the regimes for use of non-living, living and marine biodiversity resources, the role of state and non-state actors, the laying and removal of installations, the principles for sustainable and equitable use (common heritage of mankind, precaution, benefit sharing), and management tools to ensure coexistence between activities as well as the protection of the marine environment.

Abstract

Using the Nord Stream gas pipelines in the Baltic Sea as a case study, this chapter investigates how competing interests relating to submarine pipelines are handled by the law of the sea. Particular attention is given to the role of transit states – ie States over whose continental shelf (CS) a pipeline is laid without it entering their territorial waters – and the limits to their right to regulate the laying of pipelines and thus act as arbiters of potentially competing interests such as the right of transport, the effective protection of the marine environment, and national security considerations. Only some such interests are recognized by UNCLOS as legitimate bases for coastal State measure potentially making it tempting to use such reasons as a pretext for pursuing other objectives. It is, however, concluded that although the pertinent rules in UNCLOS are complex and partly vague, the States concerned have in most cases diligently avoided pushing the limits of coastal State jurisdiction as set out in the convention.

In: The Law of the Seabed
In: The Law of the Seabed

Abstract

This chapter gives an introduction to the fundamental aspects of the seabed from a geoscience perspective. This fundamental knowledge includes the characteristics and definitions of the seabed, the natural processes impacting the seabed and the impact of human activity on the physical seabed. The authors of this chapter also carry out a message towards decision makers and the law community in general, making some recommendations as to the regulation of activities on the seabed.

In: The Law of the Seabed

Abstract

The Law of the People's Republic of China on Exploration for and Exploitation of Resources in the Deep Seabed Area (the Deep Seabed Law) was adopted on 26 February 2016 and became effective as of 1 May 2016. Three implementing regulations have also been rolled out in 2017. The enactment of the law and its implementing regulations represents China’s national implementation of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This chapter starts by introducing the historical background (Section 1) and favorable national circumstances leading towards its enactment (Section 2). It then proceeds to answer two central questions: why does China need this law and why in 2016 (Section 3). The main part of this chapter compares China’s Deep Seabed Law with laws of other countries with respect to six aspects (Section 4). Section 5 comments on the three core legislative intents of the law, namely controlling, securing and preparing. Section 6 examines the significance of the Law, while Section 7 concludes by evaluating its limitations and impact on China’s other areas of law. This chapter provides a window for the world to understand China’s strategy of building a “deep sea maritime power” by 2020. Legal innovation of the Deep Seabed Law could also serve as a reference for other countries that intend to incorporate UNCLOS obligations into their domestic legal system.

In: The Law of the Seabed

Abstract

This chapter deals with agreements between owner/operators of crossing pipelines, power cables and telecom cables (termed connectors) on the seabed. It reviews the legal basis for such agreements as well as their main provisions. The manner in which liability and indemnity clauses are designed is given attention throughout the entire implementation of the project (pre-completion, construction and post-completion). Finally, it illustrates the need to complete the provisions of UNCLOS in specific crossing agreements as a way by which the owners of subsea transportation assets can organise themselves in the most balanced and predictable manner.

In: The Law of the Seabed

Abstract

The deep seabed beyond national jurisdiction covers half of the earth’s surface. It is home to a wealth of mineral resources, including a variety of valuable metals and rare earth elements. This Chapter considers the international legal framework applicable to deep seabed mining beyond national jurisdiction. This framework was created by the United Nations Convention on the Law of the Sea, which established an autonomous international organisation, the International Seabed Authority to govern deep seabed mining activities on behalf of humanity. The Authority is responsible for regulating the deep seabed beyond national jurisdiction and granting mining contracts to allow States and other entities to explore for and exploit deep seabed minerals. This Chapter provides an introduction to the deep seabed mining regime and the extent of commercial activities currently occurring within it.

In: The Law of the Seabed