Interpretation and Application of Article 298 of the Law of the Sea Convention in Recent Annex VII Arbitrations: An Appraisal

Article 298 of the UN Convention on the Law of the Sea allows state parties to exclude certain categories of disputes from the compulsory procedures entailing binding decisions. This provision serves as a “safety valve” by excluding sensitive issues mainly related to sovereignty. This article examines the three recent Annex VII Arbitral Awards (the South China Sea Arbitration; the Arctic Sunrise Arbitration; and the Chagos Marine Protected Area Arbitration) that assessed the interpretation and application of Article 298.     

Defining Disputes and Characterizing Claims: Subject-Matter Jurisdiction in Law of the Sea Convention Litigation

The Law of the Sea Convention (LOSC) is well-known for containing a compulsory dispute settlement system in Part XV, which allows most disputes to be submitted to binding adjudication or arbitration. Yet, the ability to bring a claim under the LOSC is premised upon meeting certain conditions contained in the Convention's compromissory clause. This article examines those requirements relating to jurisdiction ratione materiae or subject-matter jurisdiction under LOSC and how they have been interpreted in the recent jurisprudence of courts and tribunals.     

Delimitation of the maritime boundary in the gulf of Maine area

The compulsory dispute settlement regime included in the 1982 Law of the Sea Convention is recognized as one of the most comprehensive in a modern international convention. Yet, in the recent application of this regime, the question has arisen as to whether the procedural prerequisites associated with the LOS Convention's compulsory dispute settlement mechanism are so arduous as to avoid binding and compulsory jurisdiction in most instances. This article addresses that question by examining, in particular, the reasoning of the Southern Bluefin Tuna arbitration tribunal, which found Article 281 of Section 1 of the LOS Convention to bar jurisdiction to the compulsory dispute settlement mechanism prescribed by the Convention, and offers suggestions as to how states might distinguish or overcome the barriers imposed by the Southern Bluefin Tuna tribunal in future cases.     

Beyond the Four Corners of the Convention: Expanding the Scope of Jurisdiction of Law of the Sea Tribunals

In several recent Awards, Part XV tribunals constituted under the UN Convention on the Law of the Sea have been called upon to decide claims based on rights and obligations that find their source in a treaty, agreement, or otherwise binding instrument other than the Convention itself, or on customary international law. This article considers the extent to which such claims fall properly within the jurisdiction of a Part XV tribunal, either on the basis of the applicable law provision in Article 293(1) of the Convention, or on the basis of provisions of the Convention that make reference to other relevant rights and obligations.     

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

This article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.     

The Curious Case of Article 281: A “Super” Provision within UNCLOS?

This article discusses the issue of treaty regimes in parallel to the United Nations Convention on the Law of the Sea in respect of peaceful settlement of disputes concerning the interpretation or application of the Convention. The duality in relevancy of such disputes to two treaties at the same time would have begged the question about which treaty should be applied to settle them, but UNCLOS has a clear, conflict-of-law style rules in place to address the question. Article 281(1) is one such rule, and, with its exclusionary effect, stands out as a super provision of the Convention.     

Conciliation and the 1982 UN Convention on the Law of the Sea

Conciliation is an age-old peaceful means of dispute settlement. The UN Convention on the Law of the Sea provides for both voluntary and compulsory conciliation. The importance of conciliation under UNCLOS is obvious, yet it has received little focused attention.     

Third Party Intervention in the Commission on the Limits of the Continental Shelf Regarding a Submission Involving a Dispute

The Commission on the Limits of the Continental Shelf (CLCS) was established in accordance with Article 76 of the Law of the Sea Convention. CLCS has the mandate to consider data submitted by coastal states concerning the outer limits of their continental shelf in areas where those limits extend beyond 200 nautical miles and to make recommendations to the submitting state on matters related to the establishment of the limits. For third parties that have actual or potential disputes, unresolved borders, or unresolved land or maritime disputes with the submitting state, the recommendations of the CLCS can be very sensitive. The focus of this article is on the practice of third parties in responding to submissions and how third parties have constructed their Notifications.     

International Courts and State Compliance: An Investigation of the Law of the Sea Cases

This article investigates the effect of dispute settlement decisions under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and whether and how states, particularly great powers, comply with these decisions. State practice suggests that an overwhelming majority of the decisions by UNCLOS dispute settlement bodies have been implemented. Significantly, not only small states but also the permanent members of the United Nations Security Council have complied with UNCLOS dispute settlement decisions even when they “lost” in the proceedings that were unilaterally initiated against them.     

The Economics of International Cooperation in the Apprehension and Prosecution of Maritime Pirates

Article 100 of the UN Convention on the Law of the Sea requires parties to “cooperate” against maritime piracy, but how this cooperation is to be achieved is undefined. Enforcement is a public good—creating uncompensated benefits for others, thus suffering from free rider problems. The analysis in this article explains why more pirates captured are released than prosecuted, why the United Nations and the International Maritime Organization are seeking to reduce enforcement costs, why some in the shipping industry want to apply the 1988 Convention Against Terrorism at Sea, and why still others want to move prosecution of pirates from national courts to an international court.     

PSSAs and Transit Passage—Australia's Pilotage System in the Torres Strait Challenges the IMO and UNCLOS

On 22 July 2005, the International Maritime Organization (IMO) approved the extension of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA) to the Torres Strait in Resolution MEPC.133(53). Australia amended its regulations and issued marine orders imposing a compulsory pilotage system in the Torres Strait. Australia's actions triggered protests from maritime states at the IMO and in bilateral diplomatic exchanges. This article examines the legal issues raised by Australia's establishment of a compulsory pilotage system in a strait used for international navigation, including the prospects for Australia being challenged under the compulsory dispute settlement provisions of the UN Convention on the Law of the Sea. It is recommended that the PSSA Guidelines of the IMO be amended to ensure that such legal issues do not arise in the future.     

Disputed Areas and the 10-Year Time Frame: A Legal Lacuna?

Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.     

Mutational analysis of duck delta 2 crystallin and the structure of an inactive mutant with bound substrate provide insight into the enzymatic mechanism of argininosuccinate lyase.

The major soluble avian eye lens protein, delta crystallin, is highly homologous to the housekeeping enzyme argininosuccinate lyase (ASL). ASL is part of the urea and arginine-citrulline cycles and catalyzes the reversible breakdown of argininosuccinate to arginine and fumarate. In duck lenses, there are two delta crystallin isoforms that are 94% identical in amino acid sequence. Only the delta2 isoform has maintained ASL activity and has been used to investigate the enzymatic mechanism of ASL. The role of the active site residues Ser-29, Asp-33, Asp-89, Asn-116, Thr-161, His-162, Arg-238, Thr-281, Ser-283, Asn-291, Asp-293, Glu-296, Lys-325, Asp-330, and Lys-331 have been investigated by site-directed mutagenesis, and the structure of the inactive duck delta2 crystallin (ddeltac2) mutant S283A with bound argininosuccinate was determined at 1.96 A resolution. The S283A mutation does not interfere with substrate binding, because the 280's loop (residues 270-290) is in the open conformation and Ala-283 is more than 7 A from the substrate. The substrate is bound in a different conformation to that observed previously indicating a large degree of conformational flexibility in the fumarate moiety when the 280's loop is in the open conformation. The structure of the S283A ddeltac2 mutant and mutagenesis results reveal that a complex network of interactions of both protein residues and water molecules are involved in substrate binding and specificity. Small changes even to residues not involved directly in anchoring the argininosuccinate have a significant effect on catalysis. The results suggest that either His-162 or Thr-161 are responsible for proton abstraction and reinforce the putative role of Ser-283 as the catalytic acid, although we cannot eliminate the possibility that arginine is released in an uncharged form, with the solvent providing the required proton. A detailed enzymatic mechanism of ASL/ddeltac2 is presented.     

A review of the enforcement regime for vessel‐source oil pollution control

Abstract

The purpose of this article is to identify the currently applicable international law intended to regulate vessel‐source pollution. Part I delineates the elements relevant for this study. Part II discusses the development of a sequence of incremental conventions. Part III examines the significance and weaknesses of the 1973 MARPOL Convention with its 1978 Protocol and of the 1982 UN. Convention on the Law of the Sea. Part IV explores alternative and/or supplementary legal approaches for handling the vessel‐source oil pollution threat.     

The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China Sea Arbitration: A Critique

The interpretation of Article 121(3) of the 1982?U.N. Convention on the Law of the Sea (UNCLOS) was a key part of the Sino-Philippine Arbitration on the South China Sea Award issued in July 2016. This article uses the principles of treaty interpretation codified in Article 31 of the 1969 Vienna Convention on the Law of Treaties to evaluate the interpretation process. The Tribunal paid little attention to the text such as “rocks” in the plural form and overlooked the context of Article 121(3). The travaux préparatoires identified by the Tribunal was based on materials of doubtful weight.     

“Capacity”, “best interests”, “will and preferences” and the UN Convention on the Rights of Persons with Disabilities

The United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) is the most up‐to‐date international legal instrument concerning the rights of persons with disabilities. Such persons are taken to include those with serious mental disorders. According to an authoritative interpretation of a crucial Article (Article 12 ‐ Equal recognition before the law) by the UN CRPD Committee, involuntary detention and treatment of people with mental health disabilities are prohibited under the Convention. Both conventional mental health law and “capacity‐based” law are deemed to violate the Convention. However, some other UN bodies are not in full agreement (for example, the UN Human Rights Committee and the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), while others are less explicitly absolutist (for example, the Human Rights Council). Furthermore, strong criticisms of the position of the CRPD Committee have been mounted from a number of academic quarters. These criticisms center on whether the role of a person's ability to make a decision can be ignored, no matter the circumstances. Much of the above debate turns on the concept of “legal capacity” and the now often‐repeated precept that one must always respect the “will and preferences” of the person with a disability. However, “will and preferences” remains undefined. In this paper, I offer an analysis of “will and preferences” that can clarify interventions that may be acceptable or non‐acceptable under the terms of the UN Convention.     

A Note on the Application of Article 234 of the Law of the Sea Convention in Light of Climate Change: Views from Russia

This note explores the nature of Article 234 of the 1982 UN Convention on the Law of the Sea in light of decreasing Arctic ice cover. Despite various readings and possible interpretations of Article 234, the principal source of the rules of treaty interpretation is the 1969 Vienna Convention on the Law of Treaties. The note concludes, based on treaty interpretation, that there are no legal grounds for changing the Arctic regime based on Article 234 in light of the decreasing ice cover in the Arctic.     

The Legal Status of the Russian Baselines in the Arctic

The validity under international law of the straight baselines the Soviet Union established in the Arctic and that Russia maintains are examined. For the purpose of comparison with the Russian regime, the issues surrounding the international regimes of baselines are analyzed. The results are then compared, as well as the practice of the main opponent with navigational interests in the area, the United States. It is found that while many of the enclosures fail the traditional criteria for establishing straight baselines and basepoints as well as the traditional criteria for enclosing bays, due to the moderate degree of deviation, largely unopposed by other states, the Russian practice cannot be said to be inconsistent with international law. At the same time, although the waters enclosed can be claimed as internal waters under the Anglo-Norwegian Fisheries Case , Article 5(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone (TSC), and Article 8(1) of the 1982 United Nations Convention on the Law of the Sea (1982 Convention), they are still subject to TSC Article 5(2) and 1982 Convention Article 8(2). If the waters enclosed thus could not previously have been considered as internal waters, the right of innocent passage exists.     

Probing of Various Physiologically Relevant Metals: Amyloid-β Peptide Interactions with a Lipid Membrane-Immobilized Protein Nanopore

One of the prevailing paradigms regarding the onset of Alzheimer’s disease endows metal ions with key roles in certain steps of the amyloid-β (Aβ) peptide aggregation cascade, through peptide conformational changes induced by metal binding. Herein, we focused on the truncated, more soluble Aβ_1–16 peptide fragment from the human Aβ_1–40, and demonstrated the utility of a sensing element based on the α-hemolysin (α-HL) protein to examine and compare at single-molecule level the interactions between such peptides and various metals. By using the same approach, we quantified Cu²⁺ and Zn²⁺ binding affinities to the Aβ_1–16 fragment, whereas the statistical analysis of blockages induced by a single Aβ_1–16 peptide on the current flow through an open α-HL pore show that the metal propensity to interacting with the peptide and entailing conformational changes obey the following order: Cu²⁺ > Zn²⁺ > Fe³⁺ > Al³⁺.     

Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention

This contribution examines and points out the inadequacy of the provisions of Part III of the 1982 Law of the Sea (LOS) Convention to combat marine pollution in straits used for international navigation without infringing the right to transit passage of all user states. It stresses that it is the environmental obligation of all user and strait states to protect the marine environment of straits used for international navigation. To this end, this paper proposes that Part III of the 1982 LOS Convention be reconsidered and a "Guarantee of Freedom of Navigation--Environmental Impact Statement" be adopted by user and strait states.