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Yoshifumi Tanaka

Air pollution in the Arctic is transboundary by nature and its causes may be attributed to more than one state. An issue thus arises with regard to shared responsibility of multiple states for transboundary air pollution in the Arctic. Transboundary air pollution caused by multiple states clearly differs from traditional bilateral atmospheric pollution as typically shown in the Trail Smelter arbitration. Shared responsibility which is distinct from traditional independent state responsibility is increasingly at issue in international law and the regulation of transboundary air pollution in the Arctic provides an interesting insight into this subject. Thus this article will seek to examine legal issues concerning shared state responsibility for transboundary air pollution in the Arctic.

Yoshifumi Tanaka

Abstract

The determination of spatial ambit of the coastal State jurisdiction is fundamental for ocean governance and the same applies to the Arctic Ocean. In this regard, a question arises how it is possible to delimit marine spaces where the jurisdiction of two or more coastal States overlaps. Without rules on maritime delimitation in marine spaces where the jurisdiction of coastal States overlaps, the legal uses of these spaces cannot be enjoyed effectively. In this sense, maritime delimitation is of paramount importance in the Arctic Ocean governance. Thus, this study will examine Arctic maritime delimitations by comparing them to the case law concerning maritime delimitation. In so doing, this study seeks to clarify features of Arctic maritime delimitations.

Yoshifumi Tanaka

In 2010, the Contracting-Parties to the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) created six marine protected areas (MPAs) on the high seas beyond 200 nautical miles with a view to protecting marine biological diversity. This is a significant step toward conservation of biological diversity on the high seas. The creation of high seas MPAs seems to provide a useful insight into the protection of community interests in marine spaces beyond the limits of national jurisdiction. At the same time, however, the creation of MPAs on the high seas raises some legal issues with regard to, inter alia, its legal ground, opposability to non-Contracting Parties, legitimacy, and practical implementation. Thus, this contribution seeks to examine legal issues regarding two types of MPAs on the high seas, namely: MPAs on the high seas which fall within potential exclusive economic zone of coastal States (the Mediterranean model) and MPAs on the high seas beyond 200 nautical miles (the North-East Atlantic model), respectively.

Yoshifumi Tanaka

Abstract

On 17 May 2010, Pakistan initiated arbitration proceedings against India before a Court of Arbitration with regard to a dispute arising from the use of the river Kishenganga. The dispute involves the legality of India’s Kishenganga Hydro-Electric Project (KHEP) on the river Kishenganga/Neelam under the 1960 Indus Waters Treaty. In the Indus Waters Kishenganga Arbitration, Pakistan requested that the Court issue an order for interim measures, and, on 23 September 2011, the Court laid down certain interim measures on the basis of Article IX and Paragraph 28 of Annexure G to the Indus Waters Treaty. The Order of the Court of Arbitration addresses certain issues that need further consideration with regard to conditions and functions of provisional measures in the settlement of international water disputes. Thus, this article will seek to examine the Order of 2011 as a case study of interim measures in the settlement of international water disputes.

Yoshifumi Tanaka

Reflections on the Philippines/China Arbitration

Award on Jurisdiction and Admissibility

Yoshifumi Tanaka

The South China Sea dispute between the Philippines and China can be viewed as a mixed dispute that involves both territorial and maritime issues. In this regard, an issue arises concerning whether an Annex vii Arbitral Tribunal under the un Convention on the Law of the Sea can adjudicate a mixed dispute. The Philippines/China arbitral award of 29 October 2015, along with the 2015 Mauritius/United Kingdom arbitration, sheds some light on this issue. Furthermore, with regard to Article 281 of the Convention, the Tribunal in the Philippines/China arbitration adopted an interpretation that is different from the interpretation adopted by the Annex vii Arbitral Tribunal in the 2000 Southern Bluefin Tuna arbitration. The Philippines/China arbitral award provides important insight into the interpretation of Article 281. In addition, the Tribunal’s treatment of China’s informal communications merits particular attention.

Yoshifumi Tanaka

In its advisory opinion of 2 April 2015, the International Tribunal for the Law of the Sea (itlos) broke new ground in the itlos jurisprudence, by stating that the full Tribunal has an advisory jurisdiction. However, the legal basis of the advisory jurisdiction of itlos as a full court is not free from controversy. An issue also arises with regard to the admissibility of the request for an advisory opinion. Given that the itlos jurisprudence concerning advisory proceedings is still in its early stages, the advisory jurisdiction of itlos as a full court deserves serious consideration. Thus, this contribution will seek to examine the legal basis of the advisory jurisdiction of itlos as a full court and the admissibility of the request for an advisory opinion by focusing on the 2015 itlos advisory opinion.