Sovereignty Disputes and the United Nations Convention on the Law of the Sea
A Public Order Perspective
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Critically examining the intersection of territorial sovereignty and maritime disputes under the United Nations Convention on the Law of the Sea, this book questions the prevailing view that adjudicators applying UNCLOS must refuse to exercise jurisdiction over issues of sovereignty. The law of the sea embraces the principle that a state does not change its boundaries with another state by force. This principle is indispensable to modern public order, and it limits the meaning of the term 'sovereignty dispute' for purposes of the law of the sea. This book argues that when parties assert that a...
Critically examining the intersection of territorial sovereignty and maritime disputes under the United Nations Convention on the Law of the Sea, this book questions the prevailing view that adjudicators applying UNCLOS must refuse to exercise jurisdiction over issues of sovereignty. The law of the sea embraces the principle that a state does not change its boundaries with another state by force. This principle is indispensable to modern public order, and it limits the meaning of the term 'sovereignty dispute' for purposes of the law of the sea. This book argues that when parties assert that a sovereignty dispute prevents adjudication of a maritime dispute, adjudicators are competent to determine whether a sovereignty dispute - in fact and in law-- exists. Through a detailed analysis of key cases, including those concerning the Chagos Archipelago, the South China Sea, and Russia's annexation of Crimea, the book argues that adjudicators should apply ordinary scrutiny to evidence concerning territorial claims rooted in the use of force but that an exaggerated caution about the supposed limits of their authority has led them in key cases to fail in that basic part of the adjudicator's function. Examining and critiquing the February 2020 Annex VII award in Coastal State Rights, the book suggests that adjudicators would better implement the terms of UNCLOS and serve the legal system at large if they considered decisions of other international organs when these reflect consensus as to findings of fact and that they also should adhere to the standard methods of fact-finding familiar to parties and adjudicators in most legal systems. Timely and thought-provoking, this book invites a fresh look at an enduring problem made all the more urgent by the many uncertainties in present-day geopolitics.
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