Suchergebnisse

In this comparative study of shipping interdiction, Douglas Guilfoyle considers the State action of stopping, searching and arresting foreign flag vessels and crew on the high seas in cases such as piracy, slavery, drug smuggling, fisheries management, migrant smuggling, the proliferation of weapons of mass destruction and maritime terrorism. Interdiction raises important questions of jurisdiction, including: how permission to board a foreign vessel is obtained; whether boarding State or flag State law applies during the interdiction (or whether both apply); and which State has jurisdiction to prosecute any crimes discovered. Rules on the use of force and protection of human rights, compensation for wrongful interdiction and the status of boarding State officers under flag State law are also examined. A unified and practical view is taken of the law applicable across existing interdiction regimes based on an extensive survey of state practice

Why do small states invoke dispute resolution mechanisms against great powers when compliance seems unlikely? This article explores how and why litigation may be useful to small states even in cases where there is no prospect of immediate compliance. It suggests that small states use litigation as a tool of legal statecraft to achieve strategic outcomes. The author argues that litigation provides political leverage to small states by inflicting a 'legitimacy penalty' on a respondent state. Litigation allows a small state to frame its grievance as an attack on the community values enshrined in international law, mobilizing support to its cause while challenging both the legitimacy of the impugned act and potentially the respondent state. Using the dispute between Mauritius and the United Kingdom over the 'detachment' of the Chagos Archipelago from Mauritian territory as a case study, this article argues that legitimacy concerns can be turned against a great or greater power by a smaller state to impose a cost and concludes that legally-framed arguments which also invoke community interests are most effective for applicants.

Does the rule of law matter to maritime security? One way into the question is to examine whether states show a discursive commitment that maritime security practices must comply with international law. International law thus provides tools for argument for or against the validity of certain practices. The proposition is thus not only that international law matters to maritime security, but legal argument does too. In this article, these claims will be explored in relation to the South China Sea dispute. The dispute involves Chinese claims to enjoy special rights within the 'nine-dash line' on official maps which appears to lay claim to much of the South China Sea. Within this area sovereignty remains disputed over numerous islands and other maritime features. Many of the claimant states have engaged in island-building activities, although none on the scale of China. Ideas matter in such contests, affecting perceptions of reality and of what is possible. International law provides one such set of ideas. Law may be a useful tool in consolidating gains or defeating a rival's claims. For China, law is a key domain in which it is seeking to consolidate control over the South China Sea. The article places the relevant Chinese legal arguments in the context of China's historic engagement with the law of the sea. It argues that the flaw in China's approach has been to underestimate the extent to which it impinges on other states' national interests in the maritime domain, interests they conceptualize in legal terms.

In my remarks I would like to draw attention to the role of history in
the Tribunal's reasoning concerning the regime of islands, both as regards
its approach to historical uses of maritime features and in particular its
approach to determining what it was the drafters of the UN Convention on the
Law of the Sea (UNCLOS) intended. My contention in these remarks is that the
Tribunal took an unashamedly developing-state oriented view in its
conception of the object and purpose of the regime of islands, thus
foregrounding perspectives that were present at the time of the negotiation
of UNCLOS but which are not necessarily given much attention in the
contemporary English-language literature. Before turning to this
perspective, one must closely scrutinize the Tribunal's reading of UNCLOS
Article 121.