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This article explores the dispute settlement provisions of the New Agreement for the Conservation and Sustainable Use of Marine Biodiversity beyond National Jurisdiction (the bbnj Agreement). The history of the discussions behind many of the key features of article 60, are explained. These included whether to allow compulsory dispute settlement, exclusions from jurisdiction and how non-Parties to the United Nations Convention on the Law of the Sea (unclos) would be covered. The article concludes with some possible issues that may arise when the articles are put into practice.
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Legal scholars who have researched delimitation of maritime boundaries have generally restricted their inquiry to the stage leading to the drawing of the line and its incorporation into a treaty or judicial decision. This approach, however, cannot account for the fact that, sometimes, treaties and decisions will not be applied and may be contested by one or both parties to the boundary dispute. This article starts an inquiry into maritime boundaries after delimitation, examining the rules that may apply and drawing conclusions not only on the need to develop further rules addressing consequent stages, but also to probably think again the existing rules concerning the previous stages.
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The doctrinal production of the ils in Portugal took place only from the eighties of the nineteenth century. During the 19th century and in the 20th century until the 1980s, ils matters were not subject to specialist teaching in the Faculties of Law in Portugal. Professor Barbosa de Magalhães, of the Faculty of Law of the University of Lisbon, particularly during the 1920s, is the only jurist with recognized merits who studied the ils until the 1980s. Professor Marques Guedes must be considered the “founding father” of academic studies of the ils taking into account his teaching on the subject from 1980s in the Faculty of Law of the University of Lisbon. The contribution of authors from the Navy, with an emphasis on Eduardo Serra Brandão, constitutes a very significant part of the ils writings published in Portugal in the second half of the twentieth century.
Abstract
On 2 February 2017, the International Court of Justice (icj) handed down its judgment on preliminary objections in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) holding that it may proceed to the merits phase. Kenya had raised an objection rooted in Part xv (“Settlement of disputes”) of the 1982 United Nations Convention on the Law of the Sea (unclos). It contended that the Convention’s dispute settlement system is an agreement on the method of settlement for its maritime boundary dispute with Somalia and therefore falls within the scope of Kenya’s reservation to its optional clause declaration recognizing the Court’s jurisdiction as compulsory. The reservation excludes “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”. This article provides an analysis of the icj’s interpretation of Part xv of unclos and assesses its potential implications for the Convention’s dispute settlement mechanism.
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This article examines Portugal’s role in the development of the law of the sea in Western Europe between the fifteenth and seventeenth centuries. It argues that the Portuguese voyages of discovery in the fifteenth century, which led to a near century-long Portuguese monopoly of the lucrative spice trade between the East Indies and Europe, were the catalyst for that development. When the Dutch East India Company challenged Portugal’s monopoly at the beginning of the seventeenth century, it commissioned Grotius to justify its position, which he did in his most famous work, Mare Liberum. From the ensuing ‘battle of the books’ between Grotius and his critics, including the Portuguese scholar, Seraphim de Freitas, the regimes of the territorial sea and high seas were eventually forged and later codified in the 1958 Geneva Conventions on the law of the sea.
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unclos Part xi, relating to “enclosed or semi-enclosed” seas, is composed of only two provisions. Art. 122 provides for a definition that lends itself to some perplexities from the logical and terminological point of view. Art. 123 invites the States bordering such seas to coordinate their activities in certain subject matters, namely fisheries, protection of the marine environment and scientific research. In fact, Art. 123 invites bordering States to do something that, in most cases, is already mandatory under other unclos provisions. The poor substantive content of Part ix may be explained considering that it is a compromise result between the position of those States that proposed a special regime for enclosed or semi-enclosed seas and those that preferred to avoid the creation of a new category of seas. While the purpose of Art. 123 is only “promotional”, States bordering some enclosed or semi-enclosed seas have already put in place various forms of regional co-operation. This is the case of cooperation established in the Mediterranean Sea in the fields of protection of the environment (so-called Barcelona Convention system and accobams) and fisheries (General Fisheries Commission for the Mediterranean). Gaps remain in other fields, such as the protection of underwater cultural heritage, and some questions relating to navigation in certain environmentally sensitive areas still need to be addressed at the world level.
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More than 40 years have passed since the adoption of the un Convention on the Law of the Sea (unclos) in 1982. There are many issues that the drafters of unclos may not have been able to foresee in 1982. The question that arises here is whether and how it is possible to address the new issues unknown under unclos. Here, resilience of unclos is at issue. In this regard, one can identify three basic approaches to ensuring resilience of unclos: (1) resilience through the interpretation, (2) resilience through the law-making, and (3) resilience through the jurisprudence. The first approach seeks to adapt unclos to new circumstances through the interpretation of the Convention and the second approach aims to amplify the rules of unclos through the law-making to address new issues. The third approach seeks to develop or elaborate the rules set out in unclos through the jurisprudence. By examining the three approaches, this article considers resilience of unclos in ever changing international relations.
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From the start of the discussion about the implications of sea level rise for the entitlements of coastal States to maritime jurisdictional zones, the question of the interpretation of Art. 5 unclos (and the corresponding rule of customary international law) on the ‘normal’ baseline of the territorial sea became an essential element of the debate. The then generally accepted interpretation of Art. 5 assumed that this normal baseline, viz., the low-water line along the coast, when physically moving as a result of sea level rise, would have the effect of also moving the outer limits of the maritime zones. This interpretation became known as the ‘ambulatory’ baseline, and was inter alia adopted by the ila Committee on Baselines in the Law of the Sea and the ila Committee on Sea Level Rise and International law.
However, this interpretation has recently been challenged by a few authors, as well as, more importantly, by some States. This contribution briefly examines State practice, and concludes that the normal baseline of the territorial sea is indeed ‘ambulatory’ under the current law as reflected in Art. 5 unclos. However, a significant change in the interpretation (and application) of this provision is developing in State practice, to the effect that coastal States affected by sea level rise should be allowed to maintain their current normal baselines, as determined in accordance with the provisions of unclos, notwithstanding future changes to the low-water line.
If this changed interpretation is not also reflected in a change of the text of Art. 5 (which would involve an amendment of unclos under its articles 312 or 313), we may be witnessing an example of tacit amendment (modification) of a treaty provision by subsequent practice. At the same time the relevant rule of customary international law would then be changed as well.
Second Revised Edition
This collection of chapters tracks and explains the impact of the nine core United Nations human rights treaties in 20 selected countries, four from each of the five UN regions. Researchers based in each of these countries were responsible for the chapters, in which they assess the influence of the treaties and treaty body recommendations on legislation, policies, court decisions and practices. By covering the 20 years between July 1999 and June 2019, this book updates a study done 20 years ago.
Second Revised Edition
This collection of chapters tracks and explains the impact of the nine core United Nations human rights treaties in 20 selected countries, four from each of the five UN regions. Researchers based in each of these countries were responsible for the chapters, in which they assess the influence of the treaties and treaty body recommendations on legislation, policies, court decisions and practices. By covering the 20 years between July 1999 and June 2019, this book updates a study done 20 years ago.