This essay first, surveys the data showing the many ways COVID generates starkly skewed adverse outcomes for vulnerable communities of color in the US, Brazil, and India. These discriminatory outcomes reflect long-standing socio-economic vulnerabilities and are in all likelihood replicated globally. Second, it argues that current plans to reform the global health regime in response to COVID do not as yet embrace changes to address the outcomes documented in the first part, namely, the ‘color of COVID,’ and explains why such reforms remain colorblind. Third, the essay connects the dots between arguments for and against reparations for African-Americans within the US, for the victims of slavery, colonialism and its legacies, and for generally for COVID’s victims. It concludes that the arguments for reparations on behalf of the victims of the color of COVID made by persons against their own governments are on the most solid ground politically and under international law.
{"title":"The Case for Reparations for the Color of COVID","authors":"J. Álvarez","doi":"10.2139/ssrn.3942085","DOIUrl":"https://doi.org/10.2139/ssrn.3942085","url":null,"abstract":"This essay first, surveys the data showing the many ways COVID generates starkly skewed adverse outcomes for vulnerable communities of color in the US, Brazil, and India. These discriminatory outcomes reflect long-standing socio-economic vulnerabilities and are in all likelihood replicated globally. Second, it argues that current plans to reform the global health regime in response to COVID do not as yet embrace changes to address the outcomes documented in the first part, namely, the ‘color of COVID,’ and explains why such reforms remain colorblind. Third, the essay connects the dots between arguments for and against reparations for African-Americans within the US, for the victims of slavery, colonialism and its legacies, and for generally for COVID’s victims. It concludes that the arguments for reparations on behalf of the victims of the color of COVID made by persons against their own governments are on the most solid ground politically and under international law.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116973017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Our submission is focussed on how Australia’s BITs can be modernised to ensure that the promotion and protection of investments is balanced against the need to safeguard policy space for legitimate public-welfare measures or ‘regulatory autonomy’. This discussion responds primarily to Question 4 of the questions for consideration outlined in the DFAT Discussion Paper, by providing our views on clauses that should be included in any renegotiated BITs or other investment agreements negotiated by Australia in the future.
{"title":"Submission to the Review of Australia’s Bilateral Investment Treaties","authors":"Elizabeth Sheargold, Markus Wagner","doi":"10.2139/ssrn.3725879","DOIUrl":"https://doi.org/10.2139/ssrn.3725879","url":null,"abstract":"Our submission is focussed on how Australia’s BITs can be modernised to ensure that the promotion and protection of investments is balanced against the need to safeguard policy space for legitimate public-welfare measures or ‘regulatory autonomy’. This discussion responds primarily to Question 4 of the questions for consideration outlined in the DFAT Discussion Paper, by providing our views on clauses that should be included in any renegotiated BITs or other investment agreements negotiated by Australia in the future.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120898680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While international lawmaking has long been a top down approach when seen from the perspective of states and the core narrative of “public international law”; that core, has for some time now been challenged by different branches in lawmaking on the international plane. Thus, for instance, in recent years, the expansion of and increase role of sub branches of international economic law have created a number of epistemic projects in international lawmaking that promotes and advances the narratives, interpretations and construction of international law based on the closed nature of the narrow self-interests of these epistemic projects. A good example of these epistemic projects is PRIME Finance – the Panel of Recognised International Market Experts in Finance. PRIME Finance emerged from an initiative of the London School of Economics (LSE) academic community in response to the global financial crisis and morphed into a global arbitral tribunal under the auspices of the Permanent Court of Arbitration (PCA) to render Advisory Opinions for disputes pertaining to complex financial transactions. PRIME Finance has now joined the long list of epistemic projects that shapes the process and development of international law from a bottoms-up approach. This article asks whether PRIME Finance is the last link in the global governance of financial institutions on international lawmaking or just part of a social circle.
{"title":"Functionalism, the Panel of Recognised International Market Experts in Finance (PRIME) and Epistemic Projects in International Adjudication","authors":"P. Morris","doi":"10.2139/ssrn.3545136","DOIUrl":"https://doi.org/10.2139/ssrn.3545136","url":null,"abstract":"While international lawmaking has long been a top down approach when seen from the perspective of states and the core narrative of “public international law”; that core, has for some time now been challenged by different branches in lawmaking on the international plane. Thus, for instance, in recent years, the expansion of and increase role of sub branches of international economic law have created a number of epistemic projects in international lawmaking that promotes and advances the narratives, interpretations and construction of international law based on the closed nature of the narrow self-interests of these epistemic projects. A good example of these epistemic projects is PRIME Finance – the Panel of Recognised International Market Experts in Finance. PRIME Finance emerged from an initiative of the London School of Economics (LSE) academic community in response to the global financial crisis and morphed into a global arbitral tribunal under the auspices of the Permanent Court of Arbitration (PCA) to render Advisory Opinions for disputes pertaining to complex financial transactions. PRIME Finance has now joined the long list of epistemic projects that shapes the process and development of international law from a bottoms-up approach. This article asks whether PRIME Finance is the last link in the global governance of financial institutions on international lawmaking or just part of a social circle.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128288869","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper points out an intrinsic inefficiency in contemporary courts: courts adjudicate publicly, leading to deadweight loss in the form of reputational damages. I build a model to show that arbitration can circumvent this inefficiency by affording disputants a renegotiation opportunity following private adjudication. I then apply this model to account for the historical evolution of arbitral institutions in the 20th century under the leadership of the International Chamber of Commerce, and underscore critical elements in the building of strong arbitral institutions.
{"title":"From Courts to Arbitration: Arbitration's Confidentiality Advantage","authors":"Yijia Lu","doi":"10.2139/ssrn.3442171","DOIUrl":"https://doi.org/10.2139/ssrn.3442171","url":null,"abstract":"This paper points out an intrinsic inefficiency in contemporary courts: courts adjudicate publicly, leading to deadweight loss in the form of reputational damages. I build a model to show that arbitration can circumvent this inefficiency by affording disputants a renegotiation opportunity following private adjudication. I then apply this model to account for the historical evolution of arbitral institutions in the 20th century under the leadership of the International Chamber of Commerce, and underscore critical elements in the building of strong arbitral institutions.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115466754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The question of adjudication in international financial law has rarely been analysed comprehensively in the legal literature. This can probably be explained with the fact that, unlike in other areas of international economic law, there is no international financial court specifically designed to adjudicate international disputes between financial regulators, or between governments and financial institutions or investors. Moreover, the informality of regulatory cooperation through Transnational Regulatory Networks (TRNs), the use of soft laws to regulate international financial relations, and the presence of prudential carve-outs in international treaties was supposed to keep financial supervisory and regulatory authorities free from international scrutiny and to limit the judicial review of regulatory measures to a purely domestic exercise. Yet, financial measures are increasingly challenged in international investment tribunals, human rights courts, and regional courts. From 1995 to 2016, there have been more than 100 known international disputes on financial services, of which roughly two-thirds involved a supervisory measure such as the resolution or bankruptcy of an insolvent bank or the imposition of supervisory fines. The remaining claims mostly included violation of sovereign debt contracts, or emergency legislation affecting financial services. Investment arbitrations, in particular, are considerably on the rise. The increased number of regulatory disputes represents fundamental implications for the financial regulatory community in terms of domestic governance, regulatory cooperation, and global financial stability. This essay empirically investigates and maps for the first time the patterns of international adjudication in financial law, and comments on what the rise of international litigation means for the global financial architecture.
{"title":"Financial Disputes in International Courts","authors":"Federico Lupo-Pasini","doi":"10.1093/JIEL/JGY007","DOIUrl":"https://doi.org/10.1093/JIEL/JGY007","url":null,"abstract":"The question of adjudication in international financial law has rarely been analysed comprehensively in the legal literature. This can probably be explained with the fact that, unlike in other areas of international economic law, there is no international financial court specifically designed to adjudicate international disputes between financial regulators, or between governments and financial institutions or investors. Moreover, the informality of regulatory cooperation through Transnational Regulatory Networks (TRNs), the use of soft laws to regulate international financial relations, and the presence of prudential carve-outs in international treaties was supposed to keep financial supervisory and regulatory authorities free from international scrutiny and to limit the judicial review of regulatory measures to a purely domestic exercise. Yet, financial measures are increasingly challenged in international investment tribunals, human rights courts, and regional courts. From 1995 to 2016, there have been more than 100 known international disputes on financial services, of which roughly two-thirds involved a supervisory measure such as the resolution or bankruptcy of an insolvent bank or the imposition of supervisory fines. The remaining claims mostly included violation of sovereign debt contracts, or emergency legislation affecting financial services. Investment arbitrations, in particular, are considerably on the rise. The increased number of regulatory disputes represents fundamental implications for the financial regulatory community in terms of domestic governance, regulatory cooperation, and global financial stability. This essay empirically investigates and maps for the first time the patterns of international adjudication in financial law, and comments on what the rise of international litigation means for the global financial architecture.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127550719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A judgment will be enforced or recognised in other nations or states only if the court that issued the judgment had “jurisdiction in the international sense”. For recognition or enforcement of a judgment in personam, the foreign court must have had jurisdiction over the party against whom the judgment is to be enforced or otherwise applied. This is governed by the conflict of laws doctrine of the court where recognition or enforcement is sought. The law on what is a basis for jurisdictional “competence” is one of the most important elements of conflict of laws. The rules set forth in successive editions of Dicey’s Conflict of Laws treatise have long guided courts in England and most other countries in which common law doctrines govern recognition of foreign judgments. However, the rules in the Dicey treatise are intended to state contemporary English law, as altered by judicial decisions and legislation. They do not necessarily state the common law as interpreted in other countries, from which many of the relevant judicial decisions originate, and they omit bases of jurisdiction that have been accepted in some cases. Drawing on case law and authoritative writing from across the common law world, this article provides a comprehensive examination of the law of jurisdiction in the recognition and enforcement of in personam foreign judgments, with specific identification of both established and debatable grounds for jurisdiction and how they have been applied.
{"title":"Recognition and Enforcement of Foreign Judgments - The Common Law's Jurisdiction Requirement","authors":"Peter B. Kutner","doi":"10.2139/SSRN.3065296","DOIUrl":"https://doi.org/10.2139/SSRN.3065296","url":null,"abstract":"A judgment will be enforced or recognised in other nations or states only if the court that issued the judgment had “jurisdiction in the international sense”. For recognition or enforcement of a judgment in personam, the foreign court must have had jurisdiction over the party against whom the judgment is to be enforced or otherwise applied. This is governed by the conflict of laws doctrine of the court where recognition or enforcement is sought. The law on what is a basis for jurisdictional “competence” is one of the most important elements of conflict of laws. The rules set forth in successive editions of Dicey’s Conflict of Laws treatise have long guided courts in England and most other countries in which common law doctrines govern recognition of foreign judgments. However, the rules in the Dicey treatise are intended to state contemporary English law, as altered by judicial decisions and legislation. They do not necessarily state the common law as interpreted in other countries, from which many of the relevant judicial decisions originate, and they omit bases of jurisdiction that have been accepted in some cases. Drawing on case law and authoritative writing from across the common law world, this article provides a comprehensive examination of the law of jurisdiction in the recognition and enforcement of in personam foreign judgments, with specific identification of both established and debatable grounds for jurisdiction and how they have been applied.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114731179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-07-01DOI: 10.1093/ICSIDREVIEW/SIX015
N. Calamita
In its recent treaties with Canada and Vietnam, the European Union has established a new model of investor-state dispute settlement (ISDS). It entails a reworking of existing structures of investor-state arbitration through, inter alia, the replacement of ad hoc arbitral tribunals with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. It further provides for the establishment of a two-tiered system of tribunals, comprising first-instance and appellate bodies, and allows for appellate review as of right on issues of law and fact. The new EU model of ISDS does not appear to be compatible with the ICSID Convention. The changes made by the EU and its counterparties are simply too fundamental and too many for the awards produced by this new process of ISDS to be classified properly as ICSID Convention arbitral awards. Moreover, it is not within the power of groups of states or disputing parties to modify among themselves fundamental proscriptions of the ICSID Convention, such as the Convention’s express prohibition on the appellate review of ICSID Convention arbitral awards. This paper proceeds from the premise that a system of ISDS like the EU model is not compatible or compliant with the ICSID Convention and asks whether, nevertheless, a new multilateral system based broadly on that model can be designed to work at ICSID without amending the Convention. Is it possible, in other words, for ICSID to serve as a forum for the negotiation of an instrument that would create a new multilateral ISDS mechanism outside of the ICSID Convention? Or, considered differently, in the event that negotiations for a new mechanism occur in some other forum or in an ad hoc way, can ICSID and its secretariat nevertheless serve as the international organisation onto which the new mechanism might be docked? If so, what limits might there be on the role the Centre could properly play? These questions are of existential importance to ICSID as an institution. For if states agree to establish a multilateral investment tribunal to replace ICSID Convention arbitration (and all other forms of ad hoc investor-state arbitration for that matter), the question must be asked as to what will be left for ICSID as an institution to do, at least with respect to disputes arising under investment treaties.
{"title":"The Challenge of Establishing a Multilateral Investment Tribunal at ICSID","authors":"N. Calamita","doi":"10.1093/ICSIDREVIEW/SIX015","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIX015","url":null,"abstract":"In its recent treaties with Canada and Vietnam, the European Union has established a new model of investor-state dispute settlement (ISDS). It entails a reworking of existing structures of investor-state arbitration through, inter alia, the replacement of ad hoc arbitral tribunals with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. It further provides for the establishment of a two-tiered system of tribunals, comprising first-instance and appellate bodies, and allows for appellate review as of right on issues of law and fact. \u0000The new EU model of ISDS does not appear to be compatible with the ICSID Convention. The changes made by the EU and its counterparties are simply too fundamental and too many for the awards produced by this new process of ISDS to be classified properly as ICSID Convention arbitral awards. Moreover, it is not within the power of groups of states or disputing parties to modify among themselves fundamental proscriptions of the ICSID Convention, such as the Convention’s express prohibition on the appellate review of ICSID Convention arbitral awards. \u0000This paper proceeds from the premise that a system of ISDS like the EU model is not compatible or compliant with the ICSID Convention and asks whether, nevertheless, a new multilateral system based broadly on that model can be designed to work at ICSID without amending the Convention. Is it possible, in other words, for ICSID to serve as a forum for the negotiation of an instrument that would create a new multilateral ISDS mechanism outside of the ICSID Convention? Or, considered differently, in the event that negotiations for a new mechanism occur in some other forum or in an ad hoc way, can ICSID and its secretariat nevertheless serve as the international organisation onto which the new mechanism might be docked? If so, what limits might there be on the role the Centre could properly play? These questions are of existential importance to ICSID as an institution. For if states agree to establish a multilateral investment tribunal to replace ICSID Convention arbitration (and all other forms of ad hoc investor-state arbitration for that matter), the question must be asked as to what will be left for ICSID as an institution to do, at least with respect to disputes arising under investment treaties.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126714777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This brief review devotes attention to the important contemporary question underlying Dr. Henckels' book of whether investment treaty arbitration ought to be characterised as review.
这篇简短的评论关注了汉克尔斯博士的书中关于投资条约仲裁是否应该被定性为审查的重要当代问题。
{"title":"Is Investment Treaty Arbitration 'Review'? Reviewing Caroline Henckels’ Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (Cambridge University Press, 2015)","authors":"C. Foster","doi":"10.2139/SSRN.2814893","DOIUrl":"https://doi.org/10.2139/SSRN.2814893","url":null,"abstract":"This brief review devotes attention to the important contemporary question underlying Dr. Henckels' book of whether investment treaty arbitration ought to be characterised as review.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127431171","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Caribbean States organised in CARICOM recently brought forward reparation claims against several European States to compensate slavery and (native) genocides in the Caribbean and even threatened to approach the International Court of Justice. The paper provides for an analysis of the facts behind the CARICOM claim and asks whether the law of state responsibility is able to provide for the demanded compensation. As the intertemporal principle generally prohibits retroactive application of today’s international rules, the paper argues that the complete claim must be based on the law of state responsibility governing in the time of the respective conduct. An inquiry into the history of primary (prohibition of slavery and genocide) as well as secondary rules of State responsibility reveals that both sets of rules were underdeveloped or non-existent at the times of slavery and alleged (native) genocides. Therefore, the author concludes that the CARICOM claim is legally flawed but nevertheless worth the attention as it once again exposes imperial and colonial injustices of the past and their legitimization by historical international law and international/natural lawyers.
{"title":"Colonial Injustices and the Law of State Responsibility: The CARICOM Claim for Reparations","authors":"A. Buser","doi":"10.2139/SSRN.3050647","DOIUrl":"https://doi.org/10.2139/SSRN.3050647","url":null,"abstract":"Caribbean States organised in CARICOM recently brought forward reparation claims against several European States to compensate slavery and (native) genocides in the Caribbean and even threatened to approach the International Court of Justice. The paper provides for an analysis of the facts behind the CARICOM claim and asks whether the law of state responsibility is able to provide for the demanded compensation. As the intertemporal principle generally prohibits retroactive application of today’s international rules, the paper argues that the complete claim must be based on the law of state responsibility governing in the time of the respective conduct. An inquiry into the history of primary (prohibition of slavery and genocide) as well as secondary rules of State responsibility reveals that both sets of rules were underdeveloped or non-existent at the times of slavery and alleged (native) genocides. Therefore, the author concludes that the CARICOM claim is legally flawed but nevertheless worth the attention as it once again exposes imperial and colonial injustices of the past and their legitimization by historical international law and international/natural lawyers.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117119126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The suspected presence of vast hydrocarbon deposits in the adjacent waters of the Senkaku/Diaoyu island group renders these features intrinsically valued for the maritime boundary to be drawn between Japan and China in the East China Sea. Given that offshore geographical features qualifying as islands in a legal sense may potentially generate extensive areas of seabed jurisdiction in the same manner as continents, the connection between the features’ maritime generating capacity and the associated sovereign rights over surrounding seabed energy resources becomes self-evident. This paper considers the legal status of the disputed Senkaku/Diaoyu islands in the East China Sea and the potential legal implications for the future maritime delimitation between China and Japan. In doing so, it reviews the relevant provisions of the UN Convention on the Law of the Sea (UNCLOS) on the regime of islands and applies this analysis to the case of the Senkaku/Diaoyu features in the East China Sea. It also considers the most recent South China Sea Arbitration Award on the interpretation and application of Article 121 of UNCLOS to the disputed South China Sea insular features. The paper concludes that whilst there has been no certain rule or consensus on how the said provisions of UNCLOS are to be interpreted and applied, it is highly doubtful that an international court or arbitral tribunal would find any of the Senkaku/Diaoyu islands being an island in a legal sense.
{"title":"Senkaku/Diaoyu: Are They Islands?","authors":"Constantinos Yiallourides","doi":"10.2139/ssrn.2806666","DOIUrl":"https://doi.org/10.2139/ssrn.2806666","url":null,"abstract":"The suspected presence of vast hydrocarbon deposits in the adjacent waters of the Senkaku/Diaoyu island group renders these features intrinsically valued for the maritime boundary to be drawn between Japan and China in the East China Sea. Given that offshore geographical features qualifying as islands in a legal sense may potentially generate extensive areas of seabed jurisdiction in the same manner as continents, the connection between the features’ maritime generating capacity and the associated sovereign rights over surrounding seabed energy resources becomes self-evident. This paper considers the legal status of the disputed Senkaku/Diaoyu islands in the East China Sea and the potential legal implications for the future maritime delimitation between China and Japan. In doing so, it reviews the relevant provisions of the UN Convention on the Law of the Sea (UNCLOS) on the regime of islands and applies this analysis to the case of the Senkaku/Diaoyu features in the East China Sea. It also considers the most recent South China Sea Arbitration Award on the interpretation and application of Article 121 of UNCLOS to the disputed South China Sea insular features. The paper concludes that whilst there has been no certain rule or consensus on how the said provisions of UNCLOS are to be interpreted and applied, it is highly doubtful that an international court or arbitral tribunal would find any of the Senkaku/Diaoyu islands being an island in a legal sense.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"923 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133985618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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