I. Origin and Purpose of Research
One of the main issues dealt with by the Permanent Court of Arbitration (PCA) in the 2015 South China Sea Arbitration,1 as well as the 2015 Chagos Archipelago Arbitration,2 was jurisdiction. The South China Sea arbitral award marks the latest rendered judicial decision sparking discussions about the scope of jurisdiction ratione materiae (or subject-matter jurisdiction) under the “Dispute Settlement” regime in Part XV, specifically, the compulsory dispute settlement, of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).3
The jurisdiction clauses of dispute settlement under Part XV of UNCLOS acknowledges voluntary and compulsory dispute settlement mechanisms.
Compulsory dispute settlement under Section 2 of Part XV is of particular importance for it is a mandatory procedure applicable notwithstanding an agreement between the concerned parties to initiate judicial proceedings. Section 2 of Part XV is a not only compulsory but binding framework. By reason of its compulsory and binding nature, certain limitations and exceptions to its jurisdiction ratione materiae are enshrined in UNCLOS provisions. As explicit in Articles 286 and 288, only disputes concerning the “interpretation or application”
of UNCLOS or other related agreements may be subject to the compulsory jurisdiction of UNCLOS.
1 The South China Sea (Phil. v. China), Award on Jurisdiction and Admissibility, PCA Case No.
2013–19 (UNCLOS Annex VII Arb. Trib. Oct. 29, 2015 ), http://www.pca-cpa.org (last visited Aug.
7, 2019) [hereinafter South China Sea Arbitration].
2 Chagos Marine Protected Area (Mauritius v. U.K.), Award, PCA Case No. 2011–3 (UNCLOS Annex VII Arb. Trib. Mar. 18, 2015), http://www.pca-cpa.org (last visited Aug. 7, 2019) [hereinafter Chagos Arbitration].
3 U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 396 [hereinafter UNCLOS].
It is said that States generally agree disputes of “territorial sovereignty” are not considered as concerning the “interpretation or application” of UNCLOS, and hence, are not subject to the compulsory dispute settlement regime under UNCLOS. However, not all proponents of this view have offered explanation other than the mere absence of relevant provision governing land sovereignty disputes under UNCLOS. Recent scholarship suggests discrepancies in the
“widely accepted” notion. Not much academic literature provides a reference to the rule of treaty interpretation. Given the main issue to this thesis lies in the interpretation of provisions under UNCLOS Part XV, it is only reasonable that methods of treaty interpretation are reviewed in pursuit of an interpretation of the scope of its compulsory jurisdiction. In practice, the Permanent Court of Arbitration has on few occasions been faced with disputes of territorial sovereignty, but seem to have responded differently on each account. Most notably, the South China Sea Tribunal found their jurisdiction over disputes seemingly relating to territorial sovereignty, whereas the Chagos Tribunal found otherwise. Academic scholarship and judicial decisions have apparently demonstrated various understanding of the limits of the scope of subject-matter jurisdiction in relation to territorial sovereignty disputes.
The purpose of this thesis is to ascertain whether and if so, to what extent are territorial sovereignty disputes subject to UNCLOS compulsory jurisdiction, and the underlying legal rationale in light of contemporary academic literature and judicial decisions.
II. Research Question
The research question of this thesis is whether territorial sovereignty disputes are subject to UNCLOS compulsory dispute settlement. In answering this problem, the following issues will be addressed in turn.
First, the basis of the exercise of jurisdiction by international adjudicating bodies, and the method to be taken in order to elucidate the precise content of jurisdiction conferred to adjudicating bodies.
Second, the scope of jurisdiction ratione materiae of UNCLOS compulsory dispute settlement.
Third, whether UNCLOS provisions on the subject-matter jurisdiction of compulsory dispute settlement allow the exercise of jurisdiction over disputes concerning territorial sovereignty (i.e. whether territorial sovereignty disputes are disputes concerning the interpretation or application of UNCLOS). This is answered by recourse to the rule of treaty interpretation under general international law.
Fourth, in light of recent practices, whether courts and tribunals consider territorial sovereignty disputes within the scope of compulsory jurisdiction, and if so, what the extent or limitations to jurisdiction over territorial sovereignty are.
Fifth, whether the practices of the UNCLOS Tribunals in understanding the jurisdictional provisions deviate from, modify, or affirm the interpretation in accordance with the 1969 Vienna Convention on the Law of Treaties.
Sixth, the conclusion to be drawn from existing academic literature and cases.
III. Scope and Method of the Research
A. Scope of the Research
As identified in Part I and II of Chapter I, the subject-matter jurisdiction of UNCLOS compulsory dispute settlement lies at the core of this thesis and is subject to treaty interpretation. The purview of this thesis is thus, international treaties, judicial decisions and academic scholarship on the issues specifically related to the compulsory dispute settlement of UNCLOS, the rule of treaty interpretation, and territorial sovereignty disputes that are subject to compulsory jurisdiction under UNCLOS dispute settlement regime.
The overview of the 1982 UNCLOS includes important official records of negotiating history and supplemented by legal scholarship.
The discussion and application of the 1969 Vienna Convention on the Law of Treaties and rules of customary international law are limited to those applied in
interpreting UNCLOS jurisdictional provisions. Not all elements of treaty interpretation are explored in this thesis.
In terms of UNCLOS provisions, the scope of research is confined to the subject-matter jurisdiction of the compulsory dispute settlement. Provisions of other treaties and jurisdictional provision beyond those involving the scope of subject-matter jurisdiction are not addressed.
Cases are limited to ones that involve the relevant issues discussed in this thesis and those that explicitly address the issue of jurisdiction over territorial sovereignty disputes.
B. Method of the Research
The research method applied in this thesis is the inductive method, which consists of the following.
First, a survey of legal scholarship on the canons of treaty interpretation under international law and the scope of UNCLOS compulsory jurisdiction. It covers existing academic literature, including, inter alia, books, journal articles and commentaries.
Second, a review and analysis on case studies, in which the scope of compulsory jurisdiction and territorial sovereignty disputes are considered.
Third, this thesis induces from the result of the first and second steps to conduct analyses and conclude its research findings on the question.
IV. Structure of the Research
This thesis is organized as follows. Chapter II provides an introduction of the fundamental basis of dispute settlement. The reason why judicial bodies possess the power to adjudicate over disputes, especially given the fact that disputes are referred by States for a binding resolution by third parties, serves as a gateway to further discussion.
Chapter III is composed of two main Parts. In Part 1, this thesis begins with an overview of the 1982 UNCLOS dispute settlement framework, i.e. Part XV. This thesis will illustrate the background to the negotiation and drafting history of the 1982 UNCLOS. In Part 2, this thesis focuses on provisions concerning the subject-matter jurisdiction of the “compulsory dispute settlement” and the limits thereof.
Chapter IV consists of an in-depth analysis of Article 288(1), the main provision of jurisdiction ratione materiae, through the rule of treaty interpretation. In Part I and II, canons of treaty interpretation applicable in interpreting Article 288(1) are introduced. Part III reviews the various theories identified through legal scholarship. In Part IV, this thesis concludes by applying the rule of treaty interpretation to Article 288(1).
In Chapter V, judicial decisions that dealt with territorial sovereignty disputes under UNCLOS compulsory jurisdiction are discussed in length and analyzed.
Lastly, in Chapter VI, this thesis concludes with some key observations.
V. Terms Used
A. Mixed Disputes-
This thesis refers to the general definition of mixed disputes to indicate disputes involving UNCLOS issues and non-UNCLOS issues, unless otherwise specified.
While some commentators refer to “mixed disputes” as disputes concerning maritime boundary delimitation and territorial sovereignty issues under UNCLOS Article 298(1)(a)(i);4 others generally categorize “mixed disputes”
4 Peter Tzeng, Supplemental Jurisdiction under UNCLOS, 38 HOUS.J.INT’L L.499, 501 (2016);
Irina Buga, Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals, 27INT’L J.MARINE &COASTAL L. 59, 60 (2012); Rüdiger Wolfrum, Statement to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, President of the International Tribunal for the Law of the Sea, Oct. 23, 2006, 2–6, https://www.itlos.org/press-media/statements-of-the-president/statements-of-president-wolfrum/ (last visited Aug. 7, 2019) [hereinafter Wolfrum Statement]; Chagos Marine Protected
disputes that involve UNCLOS disputes and non-UNCLOS disputes.5 It is commonly agreed that no UNCLOS provision addresses territorial sovereignty issues;6 hence, the former category is merely an example of the latter.7 The nomenclature adopted in academic writings may vary based on their respective views; however, neither classification affects the discussions of this thesis.
B. UNCLOS disputes/ Non-UNCLOS disputes-
UNCLOS disputes refer to disputes that are governed by provisions of UNCLOS.
Conversely, non-UNCLOS disputes are disputes that are not addressed by UNCLOS provisions.
Area (Mauritius v. U.K.), PCA Case No. 2011–3, ¶ 45 (UNCLOS Annex VII Arb. Trib. Mar. 18, 2015) (dissenting and concurring opinion by Judge James Kateka & Judge Rüdiger Wolfrum), http://www.pca-cpa.org (last visited Aug. 7, 2019) [hereinafter Chagos Dissenting Opinion];
Stefan Talmon, The Chagos Marine Protected Area Arbitration: Expansion of the Jurisdiction, 65 INT’L &COMP. L.Q. 927, 946 (2016); Loris Marotti, Between Consent and Effectiveness:
Incidental Determinations and the Expansion of the Jurisdiction of UNCLOS Tribunals, in INTERPRETATIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA BY INTERNATIONAL COURTS AND TRIBUNALS 383, 384 (Angela Del Vecchio & Robert Virzo eds., 2019).
5 Talmon, supra note 4, at 933; see also Benard Oxman, Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals, in THE OXFORD HANDBOOK OF THE LAW OF THE SEA 394, 400 (Donald R.
Rothwell et al. eds., 2014); Tullio Treves, Article 286:Application of procedures under this section, in UNITED NATIONS CONVENTION ON THE LAW OF THE SEA:ACOMMENTARY 1844, 1847, ¶ 11 (Alexander Proelss ed., 2017) [hereinafter Treves (2017)]; Patibandla Chandrasekhara Rao, Delimitation Disputes Under the United Nations Convention on the Law of the Sea: Settlement Procedures, in LAW OF THE SEA, ENVIRONMENTAL LAW AND SETTLEMENT OF DISPUTES: LIBER AMICORUM JUDGE THOMAS A.MENSAH 877, 887 (Tafsir Malick Ndiaye & Rüdiger Wolfrum eds., 2007).
6 Chagos Dissenting Opinion, supra note 4, ¶ 45; Talmon, supra note 4, at 933; see also Sienho Yee, The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections, 13 CHINESE J.INT’L L. 663, 689 (2014).
7 Marotti, supra note 4, at 394.
Throughout this thesis and as defined to by some commentators,8 an “UNCLOS dispute” is any dispute concerning the interpretation or application of UNCLOS (i.e. disputes governed by UNCLOS provisions); whereas, a “non-UNCLOS dispute” is any dispute concerning the interpretation or application of any rule of international law beyond UNCLOS (i.e. disputes not governed by UNCLOS provisions).
C. UNCLOS Tribunals-
UNCLOS Tribunals is used in this thesis to indicate the adjudicating bodies set out in Article 287 of UNCLOS.
8 Tzeng, supra note 4, at 501; see also M. Bruce Volbeda, The MOX Plant Case: The Question of
“Supplemental Jurisdiction” for International Environmental Claims Under UNCLOS, 42 TEX. INT’L L.J. 211, 220–1 (2006).