Gracious Avayiwoe on Evidence and the “Gravity of the Alleged Offences” for Prompt Release of Vessels and Crews under the UNCLOS Regime (Chinese JIL)

"Evidence and the “Gravity of the Alleged Offences” for Prompt Release of Vessels and Crews under the UNCLOS Regime"
Gracious Avayiwoe (PhD Candidate)
Chinese Journal of International Law, Volume 24, Issue 2
Published online: June 2025

Abstract: Amid recent developments signaling the revival of the Prompt Release procedure under Article 292 of the UN Convention on the Law of the Sea (the Convention or UNCLOS) and to help guide the procedure’s future usage, this article confronts one of its topical but neglected controversy: the prejudgment concerns arising from the need to evaluate evidence to ascertain guilt or illegality under the “gravity of the alleged offences” factor (the gravity factor). The author employs the rules of interpretation outlined under Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT) to examine the relationship between Article 292 of the UNCLOS and the gravity factor. The author concludes that the gravity factor calls for using presumptions rather than standards of proof when evaluating evidence. This perspective flows from the interpretative outcome, suggesting that Article 292 of the UNCLOS is towards securing future court attendance to determine the illegality occasioning the arrest and, as such, making irrelevant a definitive finding on guilt for the Prompt Release procedure. Consequently, presumption overcomes prejudgment implications as it would allow inferences from facts at the time of arrest to preliminarily conclude guilt to promptly release detained vessels and crews. Once the vessels or crews are released, the conclusion of guilt can be rebutted in the main proceedings meant to determine the alleged illegality. While the findings and the ensuing disregard for standards of proof dispel illegal, unregulated, and unreported fishing (IUU-fishing) analyses often incorporated within the gravity factor, the author is of the view that a presumption-based regime will go a long way to address such concerns.

Massimo Lando on Baseline Preservation as a Response to Sea-Level Rise (Ocean Development & International Law)

"Baseline Preservation as a Response to Sea-Level Rise"
Massimo Lando
Ocean Development & International Law
Published online: January 2025

Abstract: To combat the adverse effects of climate-change-driven sea-level rise, an increasing number of states have started preserving baselines. In this context, preservation means making baselines permanent despite changes to the coastline resulting from sea-level rise. In 2023, the International Law Commission’s Study Group on Sea-level rise in relation to international law released its Additional Paper on the impact of sea-level rise on the law of the sea. The Additional Paper focused on the states’ views concerning the possibility of preserving baselines irrespective of coastal changes caused by sea-level rise. However, the Additional Paper did not include a convincing methodological framing of the question of baseline preservation. This article frames this question as one of custom formation or treaty interpretation, arguing that neither framing would allow one to conclude that positive international law sanctions the preservation of baselines, but that there are viable solutions de lege ferenda to achieve it.

Massimo Lando on Binding Advisory Opinions (CUP book chapter)

"Binding Advisory Opinions"
Massimo Lando
in Russell Buchan (ed),Daniel Franchini (ed),Nicholas Tsagourias (ed), The Changing Character of International Dispute Settlement: Challenges and Prospects, (Cambridge University Press, December 2023),pp. 106 - 134
Published online: December 2023

Summary: In this chapter, Massimo Lando focuses on the advisory jurisdiction of international courts and tribunals. This chapter explains that, traditionally, advisory opinions are not seen as a means of inter-State dispute settlement. However, it argues that recent developments justify re-assessing this traditional view. This chapter claims that the most significant development in this context is the judgment on preliminary objections delivered by the Special Chamber of the International Tribunal for the Law of the Sea in the maritime dispute between Mauritius and Maldives, which gave binding effect to the determinations made by the International Court of Justice in its 2019 advisory opinion concerning the decolonisation of Chagos. This chapter evaluates the Special Chamber’s decision by considering its impact on the Eastern Carelia doctrine and the Monetary Gold principle, as well as its implications for the legal effects of advisory opinions and for the legitimacy of exercising the advisory function.

Massimo Lando on Three Goals of States as They Seek Advisory Opinions from ITLOS (AJIL Unbound)

"Three Goals of States as They Seek Advisory Opinions from ITLOS"
Massimo Lando
AJIL Unbound (Volume 117 , 2023 , pp. 282 - 286)
Published online: December 2023

Extract: In most international tribunals, states alone can submit requests for advisory opinions.1 This is also true of requests to the International Tribunal for the Law of the Sea (ITLOS) sitting in plenary composition. The United Convention on the Law of the Sea (UNCLOS)2 does not expressly confer advisory jurisdiction on ITLOS. In practice, the Tribunal's advisory jurisdiction is governed by Article 138 of its Rules of Procedure, under which international agreements can empower entities to request advisory opinions of the Tribunal. The process leading to the making of advisory requests to ITLOS includes the drafting of legal questions and is largely political.3 In this process, sponsoring states have three goals: first, get requests before ITLOS; second, ensure that requests are not thrown out on grounds of jurisdiction or discretion; third, mobilize the constituency having stakes in the requests. This essay explores each of these goals.

HKU Law Welcomes Dr Massimo Lando, Assistant Professor

Welcome to Dr Massimo Lando, who joins the Faculty of Law as an Assistant Professor. Dr Lando is a general international lawyer. Before joining HKU, he was Assistant Professor at the School of Law of City University of Hong Kong (2020-2023). Previously, he was an Associate Legal Officer at the International Court of Justice, working with Judge Dalveer Bhandari and Judge ad hoc Charles N. Brower (2017-2020). Dr Lando completed his PhD at the University of Cambridge. He obtained an LLM also from the University of Cambridge and an LLB from the University of Milan. He is a member the Bar of England and Wales (Gray’s Inn). Dr Lando is a Global Fellow at the Centre for International Law of the National University of Singapore. He will be Director of Studies at the 2027 Winter Session of The Hague Academy of International Law.

     His Research areas include:

• Sources of International Law
• Law of the Sea
• International Dispute Settlement
• International Law & National Law
• Immunity
• International Economic Law
  

     Dr Lando's Editorial Positions and Professional Affiliations include:

• Member of the Bar of England and Wales (Gray’s Inn)
• Global Fellow, Centre for International Law, National University of Singapore
• Editorial Board, Ocean Development & International Law
• Academic Review Board, Cambridge International Law Journal
• Co-chair, International Courts and Tribunals Interest Group, American Society of International Law
• Member, American Society of International Law
• Member, Italian Society of International Law

Canada's Air Defence Identification Zone and the Battle for the Arctic (Herbert Aclan Loja)

Canada's Air Defence Identification Zone and the Battle for the Arctic

By Herbert Aclan Loja

When I mentioned to Professor Brian F. Havel that the Canadian Defence Department is expanding the Canada air defence identification zone (ADIZ) boundaries westward, northward, and eastward, he quipped that the battle for the Arctic has begun. The northeastward expansion in particular is critical to Canada’s long-term strategic position. The expanse of the expanded ADIZ covers a continuum of both territorial and extraterritorial airspaces. It blankets the airspaces superjacent Canada’s land territories, internal as well as interconnecting waters and territorial seas of the Arctic archipelago of Nunavut and Northwest Territories as well as the contested or disputed territorial and non-territorial domains.[1] 

     Canada defines ADIZ as the ‘airspace that extends upward from the surface in those areas of Canada and off the coasts of Canada, the boundaries of which are specified in the Designated Airspace Handbook.’[2] This innocuous phraseology, when associated with the pertinent circulars, regulations, and other issuances, really means that Canada, using ADIZ as a device, can control all aircraft flying through the defined airspace area by means of identification procedures. 

     The Canada ADIZ boundary expansion has at least four crucial implications. It envelops the airspaces above the Northwest Passage, the exclusive economic zone (EEZ) off the northern coast of Yukon and Canada’s Arctic archipelago, and portion of the Hans Island. The ADIZ’s northern breadth also somewhat generally follows the outlines of the sector of the Arctic which Canada has pushed rather ambivalently to be considered as Canadian territory. 

     The Northwest Passage, the meandering sea route connecting the Atlantic and Pacific Oceans via the Canadian Arctic, was until recently non-navigable.[3] That changed when the warming sea temperatures began melting the ice sheets which once blocked the passage.[4] Canada, a state party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), considers the waters of the Northwest Passage as internal waters.[5] The United States (US), a state not party to the UNCLOS, treats the passage as international waters.[6] Other states, even those parties to the UNCLOS may follow or have even followed the US position and regard the passage as international strait.[7] If treated as international strait, ships can navigate through the passage and aircraft can fly through its superjacent airspace practically unhampered with at best minimal (or even non-existent) Canadian control over security and environmental matters.[8]

     While the EEZ off the northern coast of Canada’s Arctic archipelago does not seem to be very problematic, Canada’s maritime delimitation issues with neighboring states over the continental shelf and the extended continental shelf are far more challenging. In particular, the Russian Federation has continued the mapping, sampling, and marking of the sea floor to strengthen its claim to the continental shelf and the extended continental shelf.[9] 

     Canada and Denmark delimited their continental shelf between Ellesmere Island and Greenland in the 1970s by employing an adjusted median line.[10] However, territorial sovereignty over the Hans Island, which lies between points 122 and 123 of the continental shelf delimitation line along the Nares Strait, remains unresolved with both states taking turns performing flag raising ceremonies on the island.[11]

     Senator Poiriers first articulated the Arctic sector theory in 1907.[12] The theory posits that all ‘land, water, or ice’ within the longitudes which correspond to the projection of Canada’s landmass all the way to the common point at the North Pole shall be considered as Canadian territory.[13] The same rationale should likewise apply to the claims of all states contiguous to the Arctic.[14] Canada has not clearly indicated its avowal or disavowal of the theory in relation to the territorial status of the lands and waters in the Arctic.[15]

     Canada has gradually addressed these strategic concerns and objectives without unnecessarily unnerving its neighbors through an asymmetric way of extending its influence over the contested land, maritime, and aerial domains. The broadening of its ADIZ shores up its position in these areas as Canada can now exert control over the air volume of even the domains outside its territory. All aircraft, whether civil or state, irrespective of the intention to enter Canadian airspace have to comply with Canadian ADIZ regulations on the submission of flight plan, radio communications identification protocols, periodic altitude and position reporting and other requirements when flying through the Canada ADIZ area. [16] In addition, the enlarged ADIZ gives Canada the flexibility to use the coordinates as limits for sea defence applications. These ADIZ characteristics are not uniquely Canadian and can be found in other ADIZs as well especially in Northeast Asia.

     With the broadened ADIZ, Canada is now able to control not just the entry of foreign ships in the waters of the Northwest Passage but also the flight of foreign aircraft over the superjacent airspace, protect its EEZ in the north pending delimitations of the continental shelf and extended continental shelf, maintain its position in the territorial tussle over the Hans Island, and send a subdued message that it is not abandoning the sector theory and its future expressions or mutations.

    The revised Canadian ADIZ appears as a measured response to protect Canada’s territorial sovereignty and consolidate Canada’s claims on both aerial and maritime domains. The Russian Federation is not expected to overly react as the northward extension essentially embraces only the Canadian EEZ. Neither would Denmark as the geographic coordinates of the Canadian ADIZ northeast expansion pass roughly midway above the airspace of the Hans Island. But the US response in the form of freedom of navigation missions will present Canada with the usual neighbourly discomfort.

     Canada’s expanded ADIZ will take effect on 24 May 2018 at 9:01 UTC, just in time for the coming of the summer when the sea temperature heats up in earnest and the Northwest Passage becomes more navigable. With the world attention focused somewhere else on Syria, the battle for control of the Arctic has quietly begun.

About the author:

The author is a PhD Candidate under the supervision of Professor Simon N.M. Young at the University of Hong Kong, Faculty of Law. He is currently a graduate research trainee under the supervision of Professor Brian F. Havel at the Institute of Air & Space Law, McGill University, Faculty of Law.

Notes:

[1] See Aeronautical Information Circular (AIC) 2/18, 1 February 2018 (NAV CANADA) <www.navcanada.ca/EN/products-and-services/Service%20Project%20Announcements/SPA-2018-ADIZ-EN.pdf> accessed 10 April 2018.

[2] Canadian Aviation Regulations SOR-96-433 (current to 26 March 2018) Part VI – General Operating and Flight Rules, para 600.01.

[3] J. Lewis Robinson, ‘Northwest Passage’ The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/northwest-passage/#h3_jump_3> accessed 16 April 2018.

[4] ibid.

[5] ibid.

[6] Carolyn Beeler, ‘Who controls the Northwest Passage? It’s up for debate’, quoting Michael Byers, PRI’s The World (4 September 2017) <www.pri.org/stories/2017-09-04/who-controls-northwest-passage-its-debate> accessed 14 April 2018.

[7] ibid.

[8] See United Nations Convention on the Law of the Sea (concluded at Montego Bay 10 December 1982, came into force 16 November 1994) 1833 UNTS 397, Part III – Straits Used for International Navigation; See also, François Côté and Robert Dufresne, ‘The Arctic: Canada’s Legal Claims’, Parliamentary Information and Research Service, Library of Parliament, Canada, Publication PRB 08-05E (24 October 2008) 3.

[9] See for instance, Côté and Dufresne (n 8) 5.

[10] Agreement relating to the delimitation of the continental shelf between Greenland and Canada (with annexes) (signed at Ottawa 17 December 1973, came into force 13 March 1974) 950 UNTS 147, Art I. 

[11] David H. Gray, ‘Canada’s Unresolved Maritime Boundaries’ (Autumn 1997) IBRU Boundary and Security Bulletin 61, 68-69; See also Ryan Kristiansen, ‘Desolate Dispute: A Study of a Hypothetical International Court of Justice (ICJ) Decision’ (Summer 2013) 13(3) Canadian Military Journal 34, 39-38.

[12] Cf: Donat Pharand, The Law of the Sea of the Arctic: with Special Reference to Canada (University of Ottawa Press 1973) 134 fn 116.

[13] Ivan L. Head, ‘Canadian Claims to Territorial Sovereignty in the Arctic Regions’ (1963) 9(3) McGill Law Journal 200, 202-203.

[14] ibid.

[15] Donald M. McRae, ‘Arctic Sovereignty: Loss by Derelection? in William C. Wonders (ed), Canada’s Changing North (Revised edn, McGill-Queen’s University Press 2003) 427, 430; See also Gray (n11) 65. 

[16] See Canadian Aviation Regulations SOR-96-433 (n 2) paras 602.145 – 602.46 and in relation see Designated Airspace Handbook 195 (M6) <www.navcanada.ca/EN/products-and-services/Documents/DAH_Current_EN.pdf> accessed on 10 April 2018 and AIC 2/18 (n 1).

Melissa Loja on the China-Japan Dispute over the Senkaku/Diaoyu Islands (EJIL)

"Status Quo Post Bellum and the Legal Resolution of the Territorial Dispute between China and Japan over the Senkaku/Diaoyu Islands"

Melissa H Loja (PhD Candidate)
The European Journal of International Law
2017, Vol. 27, No. 4, pp. 979-1004

Abstract: This article ascertains whether Japan’s possession of the Senkaku/Diaoyu Islands has a legal basis that is opposable to China. It departs from the traditional approach that focuses on historic titles and ancient maps. It applies an alternative approach that is based on the status quo post bellum or the relative legal position of the parties at the end of armed hostilities. This approach is warranted by the practice of China, Japan and the Allied powers of defining the status quo in the East China Sea as a frame of reference for the future disposition of the islands. Primary records of their conduct in the period 1945–1952 reveal consensus that: (i) the islands are part of Nansei Shoto rather than of Formosa; (ii) they remained under the residual sovereignty of Japan and (iii) they were being claimed by Japan but not China. The conduct of the parties proximate to 1945–1956 indicate that there was no prior existing title to the islands that would contradict the status quo. Rather, during the period 1952 up to the critical date of 1970, the positive acts of the Republic of China and the acquiescence of the People’s Republic of China confirmed the status quo.  Click here to read the entire article.

HKU Class of 2016 Graduates (Law PhD and SJD)

Congratulations to our 14 PhD and 1 SJD graduates who had their degrees conferred upon them at the 196th Congregation on 1 December 2016 at the University of Hong Kong.  The Congregation also saw the graduation of 461 other Faculty of Law students: 24 LLM, 21 LLM in Human Rights, 83 LLM in Corporate & Financial Law, 38 Master of Common Law, 4 LLM in Chinese Law, 27 LLM in Information Technology and Intellectual Property Law, 37 LLM in Arbitration and Dispute Resolution, 38 JD and 189 LLB. The newest members of our RPg alumnae family include the following:

1. Dr Yue LUO, The Myth of Chinese Well-Known Marks: Formation, Debunking and Judicial Practice.  Supervisors: Alice Lee and Po Jen Yap

2. Dr Che Singh KOCHAR-GEORGE, A Disciplinary Model of the Asylum Process: Case Studies from the United Kingdom and Hong Kong.  Supervisors: Simon Young and Kelley Loper

3. Dr Henan HU, Re-examining Territorial Sovereignty in International Law: A New Perspective of the Settlement of the China Sea Disputes.  Supervisors: Hualing Fu and Tony Carty

4. Dr A-Jull LIM, Professional Failure and the Degradation of International Humanitarian Law: Narcissist Responses to the Post 9/11 So-called War on Terrorism.  Supervisor: Hualing Fu

5.  Dr Erick Onyango KOMOLO, Regime Fragmentation and Interaction: A Case Study of Kenya's Marine Fisheries Regulation.  Supervisor: Shahla Ali

6. Dr Huimiao ZHAO, Government Intervention in the Reorganization of Listed Companies in the context of Socialist Market Economy of China.  Supervisors: Xianchu Zhang and Emily Lee

7.  Dr Guy Samuel Charles LIPERT, Consumers and Banks in Dispute - From Litigation to Mediation: How Outlier Consumers and Banks in Hong Kong Engaged in Dispute Resolution in the Wake of GFC.  Supervisors: Shahla Ali and Katherine Lynch

8. Dr Uzma ASHRAF, The Need and Prospects for an Enforcement Mechanism in the Post-crisis Reconstruction of International Financial Regulatory Architecture.  Supervisor: Douglas Arner

9.  Dr Maria Adele CARRAI, A Genealogy of Sovereignty in Modern China, 1840-Today.  Supervisor: Albert Chen

10.  Dr Annelotte Jorien WALSH, A Children's Right Audit of the International Criminal Court.  Supervisor: Scott Veitch

11.  Dr Han ZHU, Social Movements and the Law in Contemporary China: A Comparative Approach.  Supervisor: Albert Chen

12.  Dr Man Lung CHENG, Emergency Powers and the Constitution: A Case Study of the Republic of China (1912-1991).  Supervisor: Albert Chen

13. Dr Anna Eirini BAKA, The Dialectic of the Cave: Self-determination, Constitution and the Phenomenology of Deprivation.  Supervisor: Tony Carty

14.  Dr Wenwen LU, Emergency Powers and Law in China.  Supervisors: Hualing Fu and Tony Carty

15.  Dr Sha LI, Fiction and Human Rights Discourse in China 1897-1927.  Supervisor: Marco Wan.

Melissa Loja Comments on the Final Award in the Philippines/China Spratly Islands Arbitration (ODIL)

"The Spratly Islands as a Single Unit Under International Law: A Commentary on the Final Award in Philippines/China Arbitration"

Melissa Loja (PhD Candidate)

Ocean Development & International Law

2016, Vol. 47, Issue 4, pp 309-326

Abstract: This article addresses the question whether Spratly Islands is “in law a unit … [such] that the fate of the principal part may involve the rest” (Max Huber). The question was pivotal in the Philippines/China Arbitration. The Tribunal addressed it from the perspective of the archipelago provision in the Law of the Sea Convention. This article approaches the question from the perspective of the Japanese Peace Treaty.

Michael Davis on Damage Control After the South China Sea Arbitration Award

"Why Beijing should seek damage control following the South China Sea decision"
Michael Davis
South China Morning Post
19 July 2016

It is time to get realistic over the South China Sea arbitral decision. Chinese officials and their supporters have made this case out to be some gross overreaching by the arbitral tribunal constituted under the United Nations Convention on the Law of the Sea.

     A better view is that the tribunal properly exposed some serious violations that China ought to correct both for its own reputation and for the sake of the natural environment. At the same time, it offered a platform for negotiating a reasonable settlement. The following 10 points are worth considering.

      First, we should appreciate that China signed on to the UN convention for good reason. Not traditionally a maritime power, the treaty offered China expanded rights in adjoining territorial seas, exclusive economic zones and the continental shelf, which would be rich in fisheries and minerals. Substantially hemmed in by its neighbours, China surely saw great advantage in embracing such treaty.

     Second, by agreeing to the treaty, China agreed to the associated arbitration that has just taken place. If China refused to appear, the tribunal was required to proceed without it and was bound to consider as best it could what it judged to be China’s arguments.

      Third, by refusing to appear, China waived its right to participate in selecting the five judges for the arbitration... Click here to read the full article.

Melissa Loja on the Full Significance of the South China Sea Arbitration Award

It is important to bear in mind the underlying theory of the Philippines' submissions in order to appreciate the full significance of the conclusions of the Tribunal in the Final Award of In The Matter of an Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Final Award, 12 July 2016. According to the Philippines the legal basis of its claims to certain features and waters in the South China Sea is the United Nations Convention on the Law of the Sea (UNCLOS, Articles 76 and 77), not territorial title. For this legal basis to exist the following conditions must obtain:

1. The features being claimed are found within the Exclusive Economic Zone (EEZ) of the Philippines. 
2. These features are not encompassed by the maritime zones of any other feature in the Spratly Islands.
3. These claimed features are low tide elevations.

The Philippines asked the Tribunal to declare that all three conditions obtain and that legal basis exists for its claim to Mischief Reef, Second Thomas Shoal, McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South).

     The Tribunal declared that all the claimed features are found within the Philippine EEZ, although Gaven Reef falls outside by a few metres. It found no feature in the Spratly Islands able to generate an EEZ which would encompass the claimed features. Mischief Reef and Second Thomas Shoal are low tide elevations but McKennan Reef is a high tide elevation; Hughes Reef is a low tide elevation but it forms a single unit with McKennan Reef; Gaven Reef (North) is a high tide elevations; and Gaven Reef (South) is a low tide elevation but it forms a single unit with Gaven Reef (North). 

     The significance of the foregoing findings is that the first condition obtains for all the claimed features, but the second condition obtains for Mischief Reef and Second Thomas Shoal only and not with respect to McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). The third condition obtains for Mischief Reef and Second Thomas Shoal but not for McKennan Reef in relation to Hughes Reef and Gaven Reef (North) in relation to Gaven Reef (South), which are high tide elevations with 12 nautical mile territorial sea. Moreover their territorial sea overlaps with the Philippine EEZ. 

     In effect, the Tribunal found that the Philippines has legal basis to claim Mischief Reef and Second Thomas Shoal but it has no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). Having no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South), the Philippines is out of contention for these features and only China and Vietnam are the remaining claimants. However, in order for China and Vietnam to avail of the foregoing claims they have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award. 

      The Final Award declared that Scarborough is a rock and that fishing on Scarborough is a traditional right of both Filipinos and Chinese fishermen. The Final Award  did not declare that the Philippines owns Scarborough or that its fishermen alone can fish there.  These traditional fishing rights will be preserved no matter the outcome to the future settlement of the territorial dispute over Scarborough. The Final Award did not touch upon any other feature in the Spratly Islands, except to declare them rocks with 12 nautical mile territorial sea. It did not award any major feature to the Philippines.  It is possible that, in relation to Thitu, etc., in the future China and Vietnam will hold the Philippines to the conditions underlying its claim to features in the South China Sea. China and Vietnam might argue that the Philippines is estopped from changing its legal position (and its underlying conditions), especially as the Philippines' claims to all the features arose  from the same act - Presidential Decree 1596 - and invoked the same basis - contiguity or EEZ. However, before they could effect an estoppel against the Philippines in this way, China and Vietnam would have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award.  Written by Ms Melissa Loja, PhD candidate in the Faculty of Law, The University of Hong Kong.

New Article on Oil Pollution, International Environmental Law and the Law of the Sea (Georgetown J Int'l L)

"Oil Pollution, and the Dynamic Relationship between International Environmental Law and the Law of the Sea"

James D Fry and Inna Amesheva (PhD candidate)
Georgetown Journal of International Law
Spring 2016, Vol 47, Issue 3, p. 1001

Abstract: This Article examines the relationship between international environmental law and the law of the sea in the context of trying to address the problem of oil pollution in a coherent manner. Both of these branches of international law share a common goal, yet their relationship is inherently complex. Starting with a brief synopsis of international environmental law and the law of the sea, this Article then explores the ways these two branches interact in a dynamic manner. The Article demonstrates that they do not operate in isolation, but rather help shape one another. The authors then identify the situations where international environmental law and the law of the sea conflict, primarily in the provisions contained in international and regional conventions, which leads to a multifaceted legal framework that is difficult to follow in a coherent manner. In these cases, pursuing the rules of one regime could mean breaching provisions and goals of the other. The Article concludes with a case study on oil-spill pollution, which demonstrates how the two branches of international environmental law and the law of the sea simultaneously conflict and complement each other. The main take-away point of this Article is the fact that the unity-versus-fragmentation debate regarding the law of the sea and international environmental law should serve as a reminder that coordination of these two legal regimes is needed in order to effectively adopt measures that protect the global commons.  Accessible on LexisNexis.

Melissa Loja (PhD Candidate) Wins 2014 Willoughby Prize for South China Sea Article

Congratulations to Melissa Loja (PhD candidate) on winning the 2014 Willoughby Prize for the best article published in the Journal of Energy & Natural Resources Law.  The winning publication was titled "Is the Rule of Capture Countenanced in the South China Sea? The Policy and Practice of China, the Philippines and Vietnam" and was reported on in this blog in December 2014.  About the Willoughby Prize: In memory of Geoffrey Willoughby (1936-1989), one of the leading contributors to the development of United Kingdom oil and gas law both as practitioner and scholar, his partners in Herbert Smith, and the Trustees of the Energy, Petroleum, Mineral and Natural Resources Law and Policy Education Trust, in 1991 created a fund for the award of a Willoughby Prize. The Prize is awarded each year to the author or authors of an article of outstanding merit published during the year in the Journal of Energy & Natural Resources Law. 

      Every article submitted for publication in the Journal will be taken into consideration unless the author explicitly requests otherwise. In making his recommendation the Editor will have particular regard to the desirability of encouraging younger legal scholars, whether engaged in academic life or in legal practice, to undertake research on legal issues relating to energy, petroleum, minerals and natural resources law and policy. 

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 5, No. 3, 24 April 2015

1. Attribution and the Fraud Exception

Ernest Lim, University of Hong Kong - Faculty of Law

2. Independence Referendum, State Sovereignty and International Law: International Legal Review of Independence Referendum from the Perspective of Theoretical Foundation and Global Practice

Anlei Zuo, The University of Hong Kong, Faculty of Law, Students

3. Can International Law Help Resolve the Conflicts Over Uninhabited Islands in the East China Sea?

Michael C. Davis, The University of Hong Kong - Faculty of Law

4. The Shadow Banking System — Why It Will Hamper the Effectiveness of Basel III

Emily Lee, The University of Hong Kong - Faculty of Law

5. Comparing Hong Kong and Chinese Insolvency Laws and Their Cross-Border Complexities

Emily Lee, The University of Hong Kong - Faculty of Law

Michael Davis on the East China Sea Conflicts

"Can International Law Help Resolve the Conflicts Over Uninhabited Islands in the East China Sea?"

Michael Davis

Denver Journal of International Law and Policy

Vol. 43, Winter 2015, p. 119-

Introduction: Former Chinese leader Deng Xiaoping once famously urged that resolution of disputes with China's neighbors over uninhabited islands be put off to a later generation, stating: "Our generation is not wise enough to find common language on this question. The next generation will certainly be wiser." 1 Such sage advice seemed practical at the time, freeing China and its neighbors to focus on more pressing trade and economic development efforts. The wisdom of continuing deferral of the disputes over uninhabited islands is now in doubt, at least when peaceful alternatives may be considered. Beyond the rapid economic development and the consequent explosion of resource demands that has occurred since Deng uttered these words, technological development has made these deep seabed resources more readily accessible. 2 Added to this has been China's rapid economic development and associated military rise, encouraging China's expanded attention to territorial sovereignty and resource claims in its periphery. 3 Increased military confrontations over disputed islands have added to the urgency of this matter, and an impasse has prevailed. 4 

     This article focuses on comparable disputes over two groups of uninhabited islands - the Dokdo (Takeshima in Japanese) Islands and the Diaoyu (Senkaku in Japanese) Islands - that may be pivotal to unraveling a series of volatile maritime disputes between Japan and South Korea, on the one hand, and Japan and China, on the other. The Dokdo/Takeshima and Senkaku/Diaoyu Islands are located respectively in the Sea of Japan (known as the East ...

New Publications by Melissa Loja (PhD candidate and Sohmen Scholar)

"Who Owns the Oil that Traverses a Boundary on the Continental Shelf in an Enclosed Sea? Seeking Answers in Natural Law through Grotius and Selden"
Leiden Journal of International Law

Vol. 27, Issue 4, December 2014, pp 893-911

Abstract: The principle of sovereign rights under UNCLOS countenances competition among littoral states for ownership of a common oil deposit through the unilateral exploitation of their continental shelf. This leads to conflict, wastage, and resource sterilization. However, rather than apply the principle of sovereign rights, states seem to turn to natural law principles as a more reasonable regulation of their activities on the continental shelf. Two sources of natural law principles are relevant. One source consists of a priori principles of sociableness and necessity which prescribe that, for their own preservation, states ought to act pursuant to the common good. These principles underlie energy security policies which espouse interdependence. Another source of natural law principles are international agreements and national laws in which states temper their sovereign rights and interests and recognize the co-existence of the rights and interests of other states in a common deposit. These practices constitute a posteriori intervenient or secondary law of nations, which appears similar to customary law. Adherence is not dictated by conviction that these principles are obligatory. Rather, adherence seems to be based on discernment that, while permissible under the principle of sovereign rights, unilateral appropriation is impermissible under natural law.  Click here to read the full article.

"Is the Rule of Capture Countenanced in the South China Sea? The Policy and Practice of China, the Philippines and Vietnam"

Journal of Energy & Natural Resources Law

Vol. 32, No. 4, November 2014, pp 483-508

Abstract: This article examines the petroleum regimes of China, the Philippines and Vietnam to ascertain whether they countenance the rule of capture in the South China Sea. It concludes that the policy and practice of Vietnam clearly and absolutely do not countenance the application of the rule of capture in regard to potential or actual transboundary petroleum deposits in the South China Sea. On the other hand, China has maintained a 1996 secrecy regulation, which authorises China National Offshore Oil Corporation (CNOOC) to undertake unilateral activities involving transboundary deposits in disputed areas of the South China Sea. At the same time, China has adopted bilateral declarations and agreements that preclude the application of the rule of capture in both delimited and undelimited areas of the South China Sea. As for Philippine policy and practice, there is ambivalence towards the potential or actual presence of transboundary deposits.  Melissa H Loja is a PhD candidate supervised by Dr. James Fry.