Sovereignty disputes and the United Nations Convention on the Law of the Sea

Thomas D. Grant is a Fellow of the Lauterpacht Centre for International Law at the University of Cambridge

• PrefaceAcknowledgementsList of abbreviationsList of judgments and awardsList of treaties & other international instruments (selected)IntroductionA. UNCLOS jurisdiction in a time of public order challengeB. Interpreting and applying the limits of jurisdictionC. Chapter outline and cross-cutting themesD. Use of termsChapter 1. Use of force and settled boundariesA. The teleological ground: states, spatial authority, and stabilityB. The principle of non-acquisition by force, its scope, and consequences: the 2024 Israel advisory opinionC. Stability of boundaries at seaD. Stability reduxChapter 2. Jurisdiction under UNCLOS Part XV, section 2: the frameworkA. Article 288(1) and the scope of merits jurisdictionB. Article 288(4) and compétence de la compétenceC. Article 293(1) and the use of force cases1. The M/V ‘Saiga’ (No. 2) line of cases2. Human rights and immunity of a warship3. The Tzeng critique and a tentative reply4. Use of force in other settings: some observations by analogy5. Undefined terms and incidental rulesD. Land territory in UNCLOS: ‘the land dominates the sea’ (or UNCLOS comes ashore)1. The land-sea link2. The inherency of sovereignty questions and the problem with the Article 288(1) argumentChapter 3. Jurisdiction under UNCLOS Part XV, section 2: limitations and optional exceptionsA. Limitations and optional exceptions distinguished1. Article 297: the specified limits on jurisdiction2. Article 298: the optional exceptions to jurisdictionB. Article 298(1)(a)(i) and its sovereignty disputes clause1. The plain text of Article 298(1)(a)(i)2. Drafting history of Article 298(1)(a)(i)a. The deliberate placement of the land territory exclusionb. The exponents of the territorial exclusion and their strained readings of the drafting history3. Agreement on Marine Biodiversity of Areas Beyond National Jurisdiction (2023) and its non-effectC. Other territorial exclusion arguments1. Draft article on territorial disputes and self-determination2. Oxman’s resolution III argument3. Absence of substantive provisions as grounds for jurisdictional abstention?Chapter 4. A question of coasts: Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom)A. The United Kingdom’s objection to jurisdiction over the territorial issueB. The majority opinion: shifting the issue to ‘relative weight’ and Article 288(1)C. From Article 298(1)(a)(i) and back again: the majority opinion in disarray1. Misreading the a contrario argument2. The contradiction between the tribunal’s conclusion and Article 288(1)3. The residuum of UNCLOS disputes, connected territorial disputes, and a procedural incentive not to aggravate disputes: an answer to the anti-a contrario argumentD. The ‘minor issue’E. Judges Kateka and Wolfrum dissent1. The majority’s mischaracterization of the dispute2. The majority’s unsupportable territorial exclusionF. Concluding points on territory in Chagos arbitrationChapter 5. Separating the land from the sea: South China Sea Arbitration (Philippines v. China) A. Disputed existence: is there land at all?1. Status of features as above or below water at high tide (Article 13)2. Artificial islands and attempted sovereign appropriationB. Disputed status: what maritime entitlement does the land generate? (Article 121(3))C. Disputed nature and validity of claim: does the ‘historic title’ exception apply?D. Disputed use: does the ‘military activities’ exception apply?E. South China Sea: assessmentChapter 6. A ‘sovereignty dispute’ by force: Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russia)A. Crimea in dispute? 1. Ukraine’s case on jurisdiction 2. Russia’s objection to jurisdiction 3. The tribunal affirms Russia’s objection B. The tribunal’s interpretation of the sovereignty dispute exclusion C. The salience of claims in international law D. How the tribunal found a ‘dispute’ 1. The ‘developments’ leading to a ‘dispute’ a. Reasons to scrutinize Russia’s ‘developments’: preliminary observationsb. The tribunal’s default to ‘objective dispute’ 2. The ‘objective dispute’ and its limitsa. Legal and extra-legal assertions distinguished b. Acts on different legal planes c. Defining the particular dispute concerned3. Fact-finding and dispute-finding a. Insufficiency of the formal approach b. Disentangling the legal from the extra-legal in a situation involving bothc. Identifying legal disputes: the evidence-based approach4. ‘Developments’ by force and the absence of lawE. The tribunal’s denial of plausibility1. From North Borneo to south Ukraine: plausibility and alleged disputes2. Why the tribunal should have tested the evidencea. The credibility of Russia’s assertionsb. The danger of passivity in the face of evidencec. Observing the adjudicator’s ordinary method3. How the tribunal should have tested the evidence: burden of proof and standard of proofF. Article 288(4) and the missing factsG. Managing public order effects in the law of the sea: some lessons from hydrocarbon practiceChapter 7. The institutional setting and a tribunal in isolationA. Recognition and non-recognition in international law 1. Recognition as decentralized response2. Recognition and customary international law identification distinguished3. Erga omnes character of territorial title and claims4. International responsibility, non-recognition, and UNCLOS Article 3045. Courts and tribunals as addressees of the obligation not to recognizeB. Institutional decisions relevant to Coastal State Rights 1. General Assembly practice and the lessons of East Timor2. Security Council practice and Charter Article 27(3)3. ICJ Advisory Opinion on the Chagos4. Ukraine’s ICJ proceedings5. Practice of other intergovernmental organizations6. Charter Chapter XI, decolonization, and the existence of a dispute7. Other decisions under international dispute settlement proceduresC. ‘Without prejudice’ clauses in UNCLOS and other rules and institutions D. A concluding word on systemic consistencyChapter 8. After Coastal State Rights: repairing the damageA. Exorbitant claims on land and at seaB. A consensus takes shape?C. Mauritius/MaldivesD. MH17 and Crimea cases at the European Court of Human RightsE. Investment claims under the Russia-Ukraine BITF. Draftsmen and undue deferenceG. The subtle effects of a ‘double hat’H. Using the adjudicator’s method to address the contested ‘dispute’1. Distinguishing what is decided from what is not2. Exercising restraint regarding legal relations not placed in question in the dispute3. Keeping the audience in mindI. A postscript to Coastal State Rights?ConclusionA. The unhappy awardB. Recognising the ungainly foot when you see itC. Hazards real and imaginedD. For a return to methodReferences

'This book is a masterful argument on the current state of the law of the sea in its geopolitical context from a deeply and widely experienced practitioner and scholar. It goes to the heart of the continuing significance of the law of the sea in maintaining global order, addressing what is at stake for global order in current law of the sea jurisprudence.'Professor Cameron Moore, University of New England in Armidale, NSW ‘This book presents a crucial study that confronts the contemporary crisis in international public order. Dr. Grant’s thorough analysis of jurisprudence offers valuable insights into the role of the dispute settlement system of UNCLOS in a time of public order crisis.' Professor Yoshifumi Tanaka, University of Copenhagen'The determination of jurisdiction in inter-State disputes that involve multifaceted legal and factual disagreements but where the jurisdiction is subject to ratione materiae limitations represent some of the most intriguing and complex dispute settlement questions. The book of Thomas Grant addresses these difficult questions in an analytical but lucid manner, which greatly facilitates the understanding of these various judicial challenges. Further, this work conducted by Thomas Grant is all the more important given the extensive and empirical background that underlies its conclusions. I welcome this book to post-graduate students, researchers and practitioners.'Prof. Dr. Bjørn Kunoy, University of the Faroe Islands