1 Introduction
This chapter clarifies the method for obtaining recognition of the existence of territorial sovereignty disputes (territorial disputes)1 in international courts and tribunals. For example, in the case of Takeshima (known as Dokdo in the Republic of Korea (rok)), there is a method for forcibly (i.e., even if the rok protests) obtaining objective recognition (i.e., by international courts and tribunals) of the existence of a territorial sovereignty dispute between Japan and the rok. Why is it necessary to obtain recognition even though (it appears that) a territorial sovereignty dispute regarding Takeshima exists? The answer is that the first and most significant hurdle to settle territorial sovereignty disputes is a conflict of views on whether a territorial sovereignty dispute exists. For Takeshima, the Japanese Government asserts that the existence of a territorial sovereignty dispute is an âobjective factâ2 (though this is Japanâs subjective opinion). The rok, meanwhile, asserts that âDokdo is not subject to territorial dispute, and there is no reason for the Republic of Korea to prove its sovereignty
2 Criteria for the Existence of Disputes under International Law
2.1 Definition of âDisputeâ
The rok asserts that âthere is no territorial sovereignty dispute over Takeshima,â but is such an assertion actually even accepted? Since the establishment of the Permanent Court of International Justice (pcij), there have been many international precedents regarding the concept of âdisputeâ in international law and today, âcase lawâ on the subject has been established.7 The foundation is the formula presented by the pcij in the Mavrommatis Palestine Concession case (1924): âa dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests.â8 This formula uses an extremely broad definition of the âdisputeâ concept and has been subjected to substantial criticism. Nevertheless, it continues to be applied in icj judgments today.9 The threshold
2.2 Standard for the Denial of a Dispute
On the other hand, when the broad definition of âdisputeâ cited above is used, it risks generating a âdisputeâ even in cases in which State A makes an assertion against State B without any basis and State B refutes that assertion. For example (as an imaginary case), if the Japanese Government claimed territorial sovereignty over all of the United States (US) and the US rejected this claim, a territorial sovereignty âdisputeâ would exist between the two countries. To eliminate this type of extreme assertion, it has been generally thought that âmere assertionsâ are not enough to give rise to a dispute.10 While details of the rok Governmentâs position on Takeshima are still unclear, it can be understood as taking a position that the Japanese Governmentâs opinion (assertion of territorial sovereignty over Takeshima) is just a âmere assertionâ and hence a âdisputeâ does not exist between the two countries. The following section considers the âmere assertionâ concept in international judicial precedents.
2.2.1 The South West Africa Cases (1962)
The icj offers the following explanation in the South West Africa cases (Preliminary Objections Judgment, 1962). â[For the existence of a dispute] it is not sufficient for one State to a contentious case to assert that a dispute exists with the other State. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existenceâ (emphasis added).11 In this way, for a âdisputeâ to exist, the claim by one State must, to some extent, be convincing and have an actual basis, and not be a âmere assertion.â The next question, hence, is the standard for deciding whether a certain assertion is a âmere assertionâ or not.
2.2.2
The Arbitral Tribunal does not consider that the Russian Federationâs claim of sovereignty is a mere assertion or one which was fabricated solely to defeat its jurisdiction. The Arbitral Tribunal notes that since March 2014, both States have held opposite views on the status of Crimea, and this situation persists today. The States have engaged in the controversy regarding sovereignty before and outside these proceedings, including in various international fora such as in debates at the unga. Even if the
Arbitral Tribunal applied an additional element of [the awareness of the respondent],16 the Arbitral Tribunalâs finding on the existence of a sovereignty dispute over Crimea would not change.17
Hence, regarding Crimeaâs territorial attribution, even though the United Nations General Assembly (unga) resolution confirmed Ukraineâs sovereignty over Crimea, the Tribunal recognized the existence of a âdisputeâ based on the opposite views between the two States on Crimeaâs territorial sovereignty.
2.2.3 The Indian Ocean Maritime Boundary Delimitation Case (2021)
In the Indian Ocean Maritime Boundary Delimitation case (itlos Special Chamber, 2021),18 in contrast to the Coastal State Rights case described above, the itlos Chamber denied the existence of a territorial sovereignty âdispute.â While the case involved the delimitation of the boundary between Mauritius and the Maldives, the hidden point of contention at the preliminary objections stage was the location of the base line used for the boundary delimitation (in other words, whether territorial sovereignty over the Chagos Archipelago should be attributed to Mauritius or the United Kingdom). The following two decisions are important in this case. First, the Annex vii Arbitral Tribunal had recognized the existence of a territorial sovereignty dispute between Mauritius and the United Kingdom in the Chagos Marine Protected Area (mpa) case (Annex vii Arbitration of unclos, 2015 Judgment)19 and concluded that it did not have jurisdiction to decide which State is the âcoastal Stateâ (explained
In this case (the Indian Ocean Maritime Boundary Delimitation case), the Maldives submitted preliminary objections to assert that the itlos Special Chamber lacked jurisdiction because of the existence of a territorial sovereignty dispute over the Chagos Archipelago between the United Kingdom and Mauritius (i.e., application of the Monetary Gold Principle). Meanwhile, Mauritius countered that the âdisputeâ between the United Kingdom and Mauritius no longer existed following the icjâs Advisory Opinion in 2019. Regarding this point, the Special Chamber confirmed that the icj Advisory Opinion was not legally binding but did have considerable implications for the sovereignty claim of Mauritius and âcould be interpreted as suggestingâ Mauritiusâ sovereignty over the Chagos Archipelago.21 Furthermore, the Chamber referred to the âdisputeâ between the United Kingdom and Mauritius in the following manner. âIf, indeed, the icj has determined that the Chagos Archipelago is a part of the territory of Mauritius, as Mauritius asserts, the continued claim of the United Kingdom to sovereignty over the Chagos Archipelago cannot be considered anything more than âa mere assertionâ. However, such assertion does not prove the existence of a disputeâ (emphasis added).22 As explained above, because the icj rendered an opinion (Advisory Opinion) suggesting the attribution of the Chagos Archipelagoâs sovereignty, the United Kingdomâs claim of territorial sovereignty over the Chagos Archipelago became a âmere assertion.â Since this means that there is not a territorial sovereignty âdisputeâ between the two countries, the Special Chamber concluded that âMauritius can be regarded as the coastal State in respect of the Chagos Archipelago.â23
The judicial and arbitral precedents mentioned above clarify the following points. First, according to the definition of âdisputeâ in precedents, a conflict
3 The Coastal State Litigation under unclos
3.1 Characteristics of the Annex vii Arbitration
The method of obtaining recognition of the existence of a territorial sovereignty dispute in international courts and tribunals is to use the coastal State
Firstly, the jurisdiction of the Annex vii Arbitration can be compulsorily established (in cases between unclos States Parties). According to unclos, a State Party shall be free to choose the means for the settlement of disputes (Article 287), and if the disputing Parties have accepted the same procedure, the dispute may be submitted only to that procedure (Article 287, Paragraph 4). However, if the disputing States have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex vii (Article 287, Paragraph 5). This means that Annex vii Arbitration has de facto compulsory jurisdiction. For example, since neither Japan nor the rok have selected a procedure (Article 287),26 jurisdiction is automatically assigned to Annex vii Arbitration. Secondly, similar to icj judgements, awards by Annex vii Arbitration are also legally binding.27 While there have been some cases of non-compliance with arbitral awards in recent years (for example, Russia in the Arctic Sunrise case and China in the South China Sea case), such non-compliance is not legally permissible.28
3.2 Structure of the Coastal State Litigation
The jurisdiction ratione materiae of Annex vii Arbitration is limited to âany dispute concerning the interpretation or application of this Convention [unclos]â (Article 288, Paragraph 1). Regarding territorial sovereignty itself, unclos does not provide any specific provisions29 or define any
unclos uses the term âcoastal Stateâ as a concept similar to territorial sovereignty and defines sea areas that occur from coastal baselines (territorial sea,
3.3 Examples of the Coastal State Litigation
3.3.1 The Chagos Archipelago Marine Protected Area (mpa) Case (2015)
Mauritius and the United Kingdom were in opposition over many years regarding the territorial sovereignty of the Chagos Archipelago in the Indian Ocean. Mauritius brought litigation before the Annex vii Arbitration of unclos with the assertion that the Maritime Protected Area (mpa) established by the United Kingdom around the Chagos Archipelago violated its obligations under unclos. Mauritius contended that the United Kingdom was not entitled to declare an mpa because it was not the âcoastal Stateâ of the Chagos Archipelago.34 Meanwhile, the United Kingdom treated the Mauritius assertion as a âsovereignty claimâ and argued that sovereignty was âthe real issue in the caseâ and that this type of dispute fell outside the dispute settlement provisions of unclos.35 In the United Kingdomâs view, âMauritius is requesting the Tribunal to permit âan artificial re-characterization of the long-standing sovereignty dispute as a âwho is the coastal Stateâ disputeâ.â36 The Annex vii Arbitral Tribunal confirmed the existence of a sovereignty dispute between the two countries and then rejected its jurisdiction related to the First and Second Submissions by Mauritius. The following describes the reason for this conclusion.
The jurisdiction of [the Tribunal] pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it. ⦠The Tribunal does not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention. That, however, is not this case.46
Hence, in cases in which a minor issue of territorial sovereignty (non-unclos dispute) is ancillary to an unclos dispute, it might sometimes be possible to exercise jurisdiction (hereinafter, called the âChagos Formula Bâ).
Because the Tribunal did not cite any precedent, it is difficult to envision a scenario to which the Chagos Formula B applies.47 However, looking at the United Kingdomâs assertion in this case,48 it seems that the Tribunal was considering the icjâs decision regarding South Ledge in the Pedra Branca case.49 In that case, Malaysia and Singapore had a territorial dispute regarding South Ledge. The icj deemed South Ledge to be a low-tide elevation,50 but since international law is silent on the question of whether low-tide elevations can be considered to be âterritory,â51 it was difficult to make an independent assessment of territorial sovereignty. (If it were located in the territorial sea, attribution would be to the coastal State of the territorial sea.) In sea areas
3.3.2 The Coastal State Rights Case (2020)
After Russia annexed the Ukrainian territory of Crimea in 2014, Ukraine brought a case to the Annex vii Arbitration of unclos (2016) and asserted that Russia violated unclos. A key point is that Ukraine did not assert that âUkraine is Crimeaâs coastal Stateâ but stated that there is no dispute regarding sovereignty between the two States. It asserted that Ukraineâs sovereignty over Crimea was simply âa matter of background and context.â55 The respondent, Russia, submitted preliminary objections against Ukraineâs submission and asserted that âthis Arbitral Tribunal lacks jurisdictionâ due to the existence of a territorial sovereignty dispute over Crimea.56 In other words, a territorial sovereignty dispute exists between the two countries (rather than an unclos dispute)57 and the territorial sovereignty issue was âthe front and centreâ of the matter before the Tribunal.58 A point-by-point analysis of the Tribunalâs decision is set out below.
First is the matter of whether there is a territorial sovereignty dispute regarding Crimea. On this point, the Tribunal recognized the existence of the dispute in the following way, (1) â[T]he Parties therefore hold clearly opposite views[.] ⦠[I]t is clear that the Parties are in disagreement on various points of law and
In the view of the Arbitral Tribunal, the key question it should address, therefore, is whether a sovereignty dispute over Crimea in the present case is an issue ancillary to a dispute concerning the interpretation or application of the Convention. The [former dispute] is not a minor issue ancillary to the [latter dispute]. On the contrary, the question of sovereignty is a prerequisite to the Arbitral Tribunalâs decision on a number of claims submitted by Ukraine under the Convention [unclos]. Those claims simply cannot be addressed without deciding which State is sovereign over Crimea and thus the âcoastal Stateâ within the meaning of provisions of the Convention invoked by Ukraine. (emphasis added)63
3.4 Types of Formulas
The above explanation identifies three types of formulas to address the relation between unclos and non-unclos disputes in a mixed dispute â the Chagos Formula A (i.e., âpredominantâ), the Chagos Formula B (i.e., âancillaryâ), and the Crimea Formula (i.e., âprerequisiteâ). This section will review the content of each formula and then clarify their relationships.
First, the Chagos Formula B is an approach that envisions an exceptional situation, and it is doubtful that it can be generally applied. The Tribunal initially considered the Chagos Formula B in the Coastal State Rights case, but this was only done because the assertions of both States were in agreement on this point. Second, whereas the Chagos Formula A involves a quantitative comparison of the territorial sovereignty dispute and unclos dispute (âpredominantâ or an âaspectâ), the Crimea Formula seems to address the qualitative relationship (âprerequisiteâ). In the latter case, even if the sovereignty dispute is relatively modest and the unclos dispute is relatively large, the Tribunal does not have jurisdiction when the former is a âprerequisiteâ of the latter. As a result, reliance on the Crimea Formula makes it difficult to establish jurisdiction in many coastal State disputes (unclos disputes). Third, the scope of the dispute (fixed by the submission), which is subject to review, differs between the Chagos Formula A and the Crimea Formula. In the Chagos Formula A, the scope of the dispute is extremely narrow, and in fact, regarding a limited submission such as âwhether the United Kingdom is the coastal Sate or not.â In such a circumstance, since the âterritorial sovereignty dispute is predominant,â the submission is characterized as a territorial sovereignty dispute. In contrast, under the Crimea Formula, it was difficult for the Tribunal to uniformly characterize the multiple unclos submissions by Ukraine as âeither a sovereignty dispute or an unclos dispute,â and it therefore positioned the territorial sovereignty dispute as a âprerequisiteâ of the unclos disputes.
Based on the above analysis, the formulas follow two patterns. (1) If the claimant State independently makes a submission requesting the Tribunal to confirm that it is the âcoastal Stateâ under unclos, the jurisdiction of the
3.5 Logical Structure of the Recognition of a Territorial Sovereignty Dispute
As explained above, despite the difference in formulas for determining jurisdiction depending on the case, the Tribunals recognized the existence of a sovereignty dispute in all cases. In terms of the logical structure by which this recognition is reached, the following points can be made. First, the threshold for the occurrence of a âdispute,â including a territorial sovereignty dispute, is extremely low. As indicated earlier (Section 2 of this chapter), other than in exceptional cases in which one Stateâs claim is a âmere assertion,â if there is a conflict of views between two States, the Tribunal readily recognizes the existence of a territorial sovereignty dispute. Second, in the Chagos Archipelago mpa case, there was no difficulty to find a difference of views between the two States regarding the existence of a territorial sovereignty dispute. The situation in the Coastal State Rights case, however, was different. That is because there was a difference of views between Ukraine (that no territorial sovereignty dispute exists) and Russia (that a territorial sovereignty dispute exists). In this case, Russiaâs submission of preliminary objections can be said to be the reason for the Tribunalâs recognition of the existence of a territorial sovereignty dispute. The respondent, Russia, submitted preliminary objections against Ukraineâs submission and asserted that âthis Arbitral Tribunal lacks jurisdictionâ due to the existence of a territorial sovereignty dispute over Crimea.65 Since the relative weight of the territorial sovereignty dispute and unclos dispute is subject to review as part of the hearing of the preliminary objections as explained above, recognition of the existence of a territorial sovereignty dispute was inevitably required.66 Third, in both cases, the respondents (the
Considering the points covered above, recognition of the existence of a territorial sovereignty dispute relating to Takeshima requires the following special considerations. Since the claimant (Japan) asserts the existence of a territorial sovereignty dispute while the respondent (rok) denies the existence of a territorial sovereignty dispute, there is unlikely to be an objection to jurisdiction along the lines that âthe Annex vii Tribunal does not have jurisdiction due to the existence of a territorial sovereignty dispute.â Nevertheless, even in a case such as this in which the respondent State does not submit any preliminary objection, as the Tribunal cannot ignore the existence of a territorial sovereignty dispute, the Tribunal will be required to exercise its own power (competence-competence) in assessing whether a territorial sovereignty dispute exists.67
4 Recognition of the Existence of a Territorial Sovereignty Dispute over Takeshima
4.1 Potential unclos Dispute
When initiating the coastal State litigation before the Annex vii Arbitration, it is firstly premised on the existence of an unclos dispute. The various sea areas in the waters around Takeshima will be considered below.
Second, regarding the continental shelf, the Agreement between Japan and the Republic of Korea concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries (1974), the northernmost point of the boundary line is the part that touches the abovementioned provisional waters and the Agreement therefore does not establish a continental shelf boundary around Takeshima. Prior to unclos taking effect, the Japanese Government determined that there is no continental shelf in the area around Takeshima.69 After it entered into force, however, Japan changed its position and recognized the existence of a continental shelf.70 Therefore, Japan can claim the existence of an unclos dispute by arguing, for example, that âthe actions by the rok infringed the sovereign rights of its continental shelf around Takeshima.â
Third, Japan can claim infringement of its sovereignty and sovereign rights in its territorial sea and the contiguous zone around Takeshima. For example, (1) the rok is infringing Japanâs territorial sea by implementing military exercises in Takeshimaâs territorial sea. (2) Interference with or prevention
4.2 Prospective Submissions and Ruling
If Japan brings the coastal State litigation against the rok, the following submissions and ruling by the Arbitral Tribunal are conceivable.
Submission A: âJapan is the coastal State of Takeshima, and the sea areas referred to in the following submissions BâW are all attributed to Japan.â In response to the submission, the Annex vii Tribunal is likely to recognize the existence of a territorial sovereignty dispute over Takeshima, deem that the dispute is a non-unclos dispute because the territorial sovereignty dispute is âpredominantâ relative to the unclos dispute in accordance with the Chagos Formula A, and reject jurisdiction on submission A.
Submission X is a submission that requires recognition of the facts. Submission Y: âRegardless of whether this is Japanâs maritime zone or the rokâs maritime zone, the rok is violating the duty to protect and preserve the marine environment under unclos.â Submission Z: âThe rok has an obligation to provide reparation and remedy for the abovementioned unclos violation.â If Japan only submits submissions A and BâW as described above, it is certain to lose the litigation without any progress towards a decision on the merits, due to all the submissions being rejected based on the Tribunalâs lack of jurisdiction. To avoid this outcome, Japan needs to include several unclos disputes in the submission as well as submissions that are highly likely to make it to a review of the merits (submissions X, Y, and Z).
As explained above, if Japan submits the coastal State litigation regarding Takeshima, the Tribunal is likely to reject jurisdiction for the core portion of the lawsuit (submission A and submissions BâW). No past cases of the coastal State litigation have made it to the stage of identification as the âcoastal State,â and the possibility of this happening in the future is almost non-existent.75
Nevertheless, the most important point is that when jurisdiction is rejected by the Tribunal, recognition of the existence of a territorial sovereignty dispute will inevitably take place. In other words, the Annex vii Tribunal (1) recognizes the existence of a territorial sovereignty dispute, (2) evaluates the relative weight of the territorial sovereignty dispute and the unclos dispute, and (3) rejects its jurisdiction over the submitted dispute as the outcome of its evaluation. The Tribunal will hereby inevitably make a decision regarding (1) as the underlying assumption for decisions regarding (2) and (3).
As shown above, the benefit of the coastal State litigation is that Japan potentially can be recognized as the coastal State (having territorial sovereignty) if the litigation makes it to a decision on the merits, and even if this fails
Japanâs coastal State litigation
creator: dai tamada
4.3 Other Matters for Consideration
Attention should also be given to the following points related to the coastal State litigation. First, recognition of the existence of a territorial sovereignty dispute does not immediately enable referral of a case to the icj for a judicial decision on the territorial sovereignty of Takeshima. Even though recognition would mean that the rok could not deny the existence of a territorial sovereignty dispute itself, it would not create any obligation to proceed with a joint referral to the icj. The rok could present a different reason for rejecting a joint referral to the icj. Additionally, as seen in the negotiations regarding the Northern Territories with Russia, even if two States agree on the existence of a territorial sovereignty dispute, this alone does not ensure smooth progress in negotiations on the territorial dispute. Recognition of the existence of a territorial sovereignty dispute is simply a prerequisite and first step for starting negotiations between two States. A separate detailed analysis and strategy of the subsequent path towards the settlement of the dispute (including negotiations and referral to the icj) is needed.
Second, all unclos States Parties can utilize the unclos coastal State litigation. This means that China, if it is so willing, could utilize it to obtain recognition of the existence of a territorial sovereignty dispute over the Senkaku
Third, there is leeway to consider the possibility of the coastal State litigation against Russia regarding the Northern Territories. Although Japan and Russia had differed in their stances on whether a territorial sovereignty dispute existed during the Cold War,76 Russia has recognized the existence, itself, of a territorial sovereignty dispute after the Cold War.77 The Japanese-Soviet Union Joint Communiqué (1991) used the phrase âtaking into consideration the positions of both sides on the attributionâ78 and the Tokyo Declaration (1993) referred, in Paragraph 2, to agreement âon the issue of where [the islands belong]â to work towards a âsolution ⦠based on ⦠the principles of law and justice.â79 In other words, since Japan and Russia are not in disagreement over the existence
Fourth, as precedents of the unclos coastal State litigation have been rapidly established in recent years, some observers have criticized the abusive use of the arbitration procedure under unclos Annex vii.81 If such criticism spreads in response to the expanded use of the coastal State litigation, it is not impossible that precedents may change going forward. If Japan is considering the use of the coastal State litigation, it would be better to initiate it prior to any major changes to precedents.
5 Conclusion
As explained in this chapter, it is possible to obtain recognition of the existence of a territorial sovereignty dispute (for example, related to Takeshima) using the coastal State litigation before the Annex vii Tribunal of unclos. An important point is the possibility for Japan to forcibly obtain (i.e., despite opposition by the respondent State) objective recognition of the existence of a territorial sovereignty dispute in an international tribunal (i.e., Annex vii Tribunal of unclos). Here, it is not necessary to reemphasize the significance and importance of obtaining recognition of the existence of a territorial sovereignty âdisputeâ (refer to the âIntroductionâ of this chapter). Thus far, the Japanese Government has always envisioned litigation before the icj and actually proposed such a joint referral to the icj. However, in the case of icj litigation (whether it is joint referral or unilateral referral), the rok can reject it outright by replying that âthere is no reason to respond because no dispute exists.â No matter how much Japan strategizes about a referral to the icj, there are no hopes of it making any progress towards settling the dispute. Understanding the situation to be thus, the Japanese Government should
This chapter refers to disputes regarding the existence of territorial sovereignty as âterritorial sovereignty disputesâ or âsovereignty disputes.â
In response to a question by Diet Member Asano Takahiro about whether there is agreement between the Japanese and rok Governments that there exists a territorial issue regarding Takeshima, the Japanese Government explained that âThe Government thinks the existence of a territorial issue regarding Takeshima that needs to be settled with the rok is an objective factâ (emphasis added). This can be found in the written answer to a resubmitted question by Diet Member Asano Takahiro requesting the Ministry of Foreign Affairsâ opinion on Japanese citizens visiting Takeshima while adhering to rok legal procedures. (August 23, 2011: Prime Minister Kan Naoto) at
âPosition of the Government of Korea on Dokdoâ at
Ministry of Foreign Affairs âProposal of Referral to the International Court of Justiceâ at
When Japan proposed referral to the icj in a note verbale dated September 12, 1954, the rok rejected the proposal and provided the following explanation in a memorandum on October 28, 1954. âThe proposal of the Japanese Government to have the matter be taken to the International Court of Justice is nothing but another attempt at the false claim in judicial disguise. The rok has the territorial rights ab initio over Dokdo and sees no reason why she should seek the verification of her rights before the International Court of Justice. It is Japan who conjures up a quasi territorial dispute where none should existâ (emphasis added). Serita Kentaro
Sakamoto Shigeki offers the following explanation. âIt has to be said that there is almost no possibility of the rok, which has taken the position that there is no dispute regarding Takeshima, concluding a special agreement to entrust the dispute to the icj.â Sakamoto Shigeki
The icj used the expression âthe established case law of the Courtâ in the case on obligations in nuclear disarmament negotiations (2016). Obligations concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgement of 5 October 2016, i.c.j. Reports 2016, 849, para. 37.
Mavrommatis Palestine Concessions (Greece v. the United Kingdom), Judgment of 30 August 1924, p.c.i.j., Series A, no. 2, 11.
Refer to the following sources on the definition of âdisputeâ in case law. Tamada Dai
Kotera Akira
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, i.c.j. Reports 1962, 319, 328.
Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. The Russian Federation), pca Case no. 2017â06, 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, Award concerning the Preliminary Objections of the Russian Federation, 21 February 2020, at
In this case, Ukraine asserted that Russiaâs sovereignty argument was implausible. Ibid., para. 183.
Ibid., para. 187.
Ibid., para. 188.
In the Nuclear Arms and Disarmament case, the icj required the respondent to be âawareâ of the conflict of views as a requirement for the existence of a dispute. icj Precedent Study Group
Award of 21 February 2020, para. 189.
Delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Preliminary Objections, Judgment of 28 January 2021, at
In the Matter of the Chagos Marine Protected Area Arbitration before an Arbitral Tribunal Constituted under Annex vii of the United Nations Convention on the Law of the Sea between the Republic of Mauritius and the United Kingdom of Great Britain and Northern Ireland, pca Case no. 2011â03, Award of 18 March 2015, at
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, i.c.j. Reports 2019, 140, para. 183.
Judgment of 28 January 2021, supra note 18, para. 174.
Ibid., para. 243.
Ibid., para. 249.
The itlos Special Chamber gave the following explanation for why a claim that has been rejected by unga would still not be treated as a âmere assertion.â âThe Annex vii Arbitral Tribunal did not have the benefit of prior authoritative determination of the main issues relating to sovereignty claims to Crimea by any judicial body.â Ibid., para. 244. In other words, since an unga resolution is not an âauthoritative determinationâ by a âjudicial body,â a claim rejected by such a resolution is not treated as a âmere assertion.â
Tamada Dai
Refer to the itlos website regarding individual States Partiesâ choices of procedure (Article 287);
unclos Article 296 Paragraph 1 stipulates, âAny decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute,â and Paragraph 2 stipulates, âAny such decision shall have no binding force except between the parties and in respect of that particular dispute.â While there is a procedure for enforcement in the case of non-compliance with an icj judgment (United Nations Charter, Article 94, Paragraph 2), there is no such procedure under unclos.
Regarding Chinaâs refusal to comply with the arbitral award in the South China Sea case, see Tamada Dai, supra note 25, 163â164.
Robert W. Smith and Bradford L. Thomas, âIsland Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes,â Maritime Briefing, vol. 2, no. 4 (1998), 16; Géraldine Giraudeau, âA Slight Revenge and a Growing Hope for Mauritius and the Chagossians: The unclos Arbitral Tribunalâs Award of 18 March 2015 on Chagos Marine Protected Area (Mauritius v. United Kingdom),â Brazilian Journal of International Law, vol. 12, no. 2 (2015), 717. While unclos applies to the sovereignty of a coastal State over its land territory, internal waters, and territorial sea (Article 2), it does not provide definitions for any of them.
unclos Article 298, Paragraph 1(a)(i) excludes unsettled disputes concerning âsovereignty or other rights over continental or insular land territoryâ from compulsory conciliation under Annex v, indirectly mentioning territorial sovereignty. However, unclos does not offer any definitions or decision-making methods regarding territorial sovereignty.
Irina Buga, âTerritorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunal,â The International Journal of Marine and Coastal Law, vol. 27 (2012), 77â79. Refer to the following for a broad discussion of supplemental jurisdiction towards non-unclos disputes, including other reasons. Peter Tzeng, âSupplemental Jurisdiction under unclos,â Houston Journal of International Law, vol. 38, no. 2 (2016), 499â576.
âMixed disputeâ refers to disputes that simultaneously have elements of both territorial sovereignty disputes (non-unclos disputes) and unclos disputes. In particular, it envisions the former as ancillary to the latter. For a view that criticizes the structuring of points of dispute that deviate from the actual substance of the dispute in mixed disputes, refer to Kanehara Atsuko
President Wolfrum offered the following comments. âIssues of sovereignty or other rights over continental or insular land territory, which are closely linked or ancillary to maritime delimitation, concern the interpretation or application of the Convention and therefore fall within its scopeâ (emphasis added). itlos, Statement by H. E. Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea, to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, New York, 23 October 2006, 6, at
According to Mauritiusâ argument, âThe United Kingdom is not entitled to declare an âmpaâ or other maritime zones because it is not the âcoastal Stateâ within the meaning of, inter alia, Articles 2, 55, 56 and 76 of the Conventionâ (First Submission) and âhaving regard to the commitments that it has made to Mauritius in relation to the Chagos Archipelago, the United Kingdom is not entitled unilaterally to declare an âmpaâ or other maritime zones because Mauritius has rights as a coastal Stateâ within the meaning of inter alia Articles 56(1)(b)(iii) and 76(8) of the Conventionâ (Second Submission). Award of 18 March 2015, supra note 19, para. 158.
Ibid., paras. 164 and 170.
Ibid., para. 172.
Ibid., para. 203.
The record cited by the Tribunal (paras. 101â107) summarizes the differences of opinion of the Parties regarding sovereignty over the Chagos Archipelago and past objections.
Award of 18 March 2015, supra note 19, para. 209.
Ibid., para. 210.
Ibid., para. 211.
Ibid., para. 212.
Ibid., para. 229.
Ibid., para. 229.
Ibid., para. 213.
Ibid., paras. 220â221.
Typically, since coastal State rights follow the confirmation of the sovereignty of maritime features (âthe land dominates the seaâ), there can be considered to be no rule that prescribes sovereignty on the basis of making a maritime claim (âthe sea dominates the landâ). Robert W. Smith and Bradford L. Thomas, supra note 29, 16.
Award of 18 March 2015, paras. 194â196.
Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008, i.c.j. Reports 2008, 2.
Ibid., para. 291.
Ibid., para. 296.
Ibid., para. 297.
Ibid., para. 298.
Ibid., para. 299.
Award of 21 February 2020, supra note 12, paras. 85 and 161.
Ibid., paras. 78â79.
Ibid., paras. 132 and 161.
Ibid., para. 192.
Ibid., para. 165.
Key points of the Tribunalâs award are presented below. (1) Regarding the admissibility of Russiaâs claims, the Tribunal was unable to accept Ukraineâs argument because the unga resolutions were framed in hortatory language (Award, para. 175) and estoppel did not operate in the case (Award, para. 181). (2) Regarding the plausibility of Russiaâs claim, while a unilateral assertion would be insufficient in proving the existence of a dispute, âit does not follow that the validity or strength of the assertion should be put to a plausibility or other testâ (Award, para. 188).
Ibid., para. 189.
Ibid., para. 193.
Ibid., paras. 194â195.
Ibid., paras. 197â198.
Ibid., paras. 78â79.
It is of course possible that, when rejecting jurisdiction, the Tribunal under unclos might have a different basis than the existence of a territorial sovereignty dispute (for example, the obligation to exchange views (unclos Article 283), etc.). It must be noted that the review in this chapter assumes that these other jurisdictional requirements have been met.
Assessment of relative weight in mixed disputes takes place in the context of the characterization of dispute by the Tribunal. Through its exercise of dispute characterization power, the Tribunal decides an important factor in mixed disputes. The right to determine jurisdiction serves as the basis for dispute characterization power. Irina Buga, supra note 31, 89â90. The Tribunal in the Coastal State Rights case presented âNature or Characterisation of the Disputeâ as an item and cites the icjâs Nuclear Tests case (Nuclear Tests (Australia v. France), Judgment, i.c.j. Reports 1974, 253, 262, para. 29) in explaining that âit is ultimately for the Arbitral Tribunal itself to determine ⦠the nature of the dispute[.]â Award of 21 February 2020, para. 151.
Regarding the provisional waters, the Agreement stipulates, âThe Parties shall continue negotiations in good faith aimed at the early delimitation of the provisional watersâ (Annex i, Article 1).
Minister of Foreign Affairs Hatoyama Ichiro responded to a question at the Diet (80th National Diet, House of Representatives Foreign Affairs Committee no. 18 on May 18, 1977) as follows. âMinister Hatoyama: Regarding Takeshima, the seafloor in the surrounding area becomes deeper at a steep incline and our view is that this is not a continental shelf as defined by current international lawâ at
In response to the question âIs Takeshima an island or a rock under unclos?â at the National Diet, Yachi Shotaro replied, âWe think it is an island with a continental shelf and an economic zoneâ (136th National Diet, House of Councilorsâ Special Committee on unclos no. 3 on June 4, 1996) at
190th National Diet, House of Representativesâ Budget Committee Third Sub-Committee no. 1 on February 25, 2016 (Yamada Kenji), ârok authorities are currently sending warnings to fishing vessels when they get close to 12 nautical miles out from Takeshimaâ at
193rd National Diet, House of Representatives Foreign Affairs Committee no. 16 on May 31, 2017 (ShindÅ Yoshitaka) âThis is an example from the rok. A rok marine survey vessel, without prior consent from Japan, inserted a wire into waters within the eez around Takeshima on May 17, 2017. It entered Japanâs territorial sea and navigated around within them. This has happened four times in the past two yearsâ (emphasis added) at
198th National Diet, House of Representatives Environment Committee no. 4 on April 2, 2019 (Nagao Hideki), âIn February this year [2019], there was an incident in which the rok conducted seafloor survey activities, such as sediment collection, without Japanâs consent, in Takeshimaâs territorial sea and contiguous zoneâ (emphasis added) at
193rd National Diet, House of Representatives Foreign Affairs Committee no. 16 on May 31, 2017 (ShindÅ Yoshitaka) at
If there is a possibility of the Annex vii Tribunal deciding Takeshimaâs âcoastal State,â it would be in response to a coastal State litigation brought by Japan whereby the Tribunal decides that âbecause the rokâs claim of territorial sovereignty over Takeshima is a âmere assertionâ, no territorial sovereignty âdisputeâ exists between Japan and the rok and the maritime feature is no doubt attributed to Japanâs territorial sovereignty.â
âIn 1960, in connection with the conclusion of the new Japanese-US Security Treaty, the Soviet Union stated that the return of the islands of Habomai and Shikotan to Japan would be conditional upon the withdrawal of all foreign troops from Japanese territory. In response, the Government of Japan raised the objection that the terms of the Joint Declaration between Japan and the ussr could not be changed unilaterally, because it was an international agreement that had been ratified by the Parliaments of both countries. The Soviet side later asserted that the territorial issue in Japanese-Soviet relations had been resolved as a result of World War ii and such an issue did not exist.â Ministry of Foreign Affairs of Japan and Ministry of Foreign Affairs of the Russian Federation, âJoint Compendium of Documents on the History of Territorial Issue between Japan and Russiaâ (1992 version) at
â[A]s the Cold War drew to a close, Russia acknowledged the existence of the territorial issue and again confirmed that the Japan-Soviet Joint Declaration remained valid between Japan and Russiaâ (emphasis added). Ministry of Foreign Affairs âNorthern Territories Issue Q&Aâ at
â⦠held an in-depth and thorough negotiations on a whole range of issues relating to the preparation and conclusion of a peace treaty between Japan and the Union of Soviet Socialist Republics, including the issue of territorial demarcation, taking into consideration the positions of both sides on the attribution of the islands of Habomai, Shikotan, Kunashiri, and Etorofu. The joint work done previously â particularly the negotiations at the highest level â has made it possible to confirm a series of conceptual understandings: that the peace treaty should be the document marking the final resolution of war-related issues, including the territorial issueâ (emphasis added). Japanese-Soviet Joint Communiqué at
â[Japan and Russia] have undertaken serious negotiations on the issue of where Etorofu, Kunashiri, Shikotan and the Habomai Islands belong. They agree that negotiations towards an early conclusion of a peace treaty through the solution of this issue on the basis of historical and legal facts and based on the documents produced with the two countriesâ agreement as well as on the principles of law and justice should continue, and that the relations between the two countries should thus be fully normalized.â Tokyo Declaration on Japan-Russia Relations at
For example, Russian Foreign Minister Lavrov called on the Japanese side âto recognize all of the results of the Second World Warâ (January 14, 2019 press conference) at
Award of 18 March 2015, supra note 19, para. 198.
Bibliography
Primary Sources
Japanese
âHoppÅ RyÅdo Mondai ni Kansuru Q ando Aâ åæ¹é ååé¡ã«é¢ããQ&A [Northern Territories Issue Q&A]. Ministry of Foreign Affairs of Japan. https://www.mofa.go.jp/mofaj/area/hoppo/mondai_qa.html.
Kan, Naoto è ç´äºº. âTÅben Dai 395 GÅâ çå¼ç¬¬ä¸ä¹äºå· [Written Answer no.395]. House of Representatives of Japan. August 23, 2011. http://www.shugiin.go.jp/internet/itdb_shitsumon_pdf_t.nsf/html/shitsumon/pdfT/b177395.pdf/$File/b177395.pdf.
âKokusai ShihÅ Saibansho eno Teiso no Teianâ å½éå¸æ³è£å¤æã¸ã®æ訴ã®ææ¡ [Proposal of Referral to the International Court of Justice]. Ministry of Foreign Affairs of Japan. https://www.mofa.go.jp/mofaj/area/takeshima/g_teiso.html.
National Diet Library. â80th National Diet, House of Representatives Foreign Affairs Committee no. 18 on May 18, 1977 (102 Minister of Foreign Affairs Hatoyama Iichiro).â Full-text Database System for the Minutes of the Diets. https://kokkai.ndl.go.jp/#/detail?minId=108003968X01819770518&spkNum=102&single.
National Diet Library. â136th National Diet, House of Councillorsâ Special Committee on unclos no. 3 on June 4, 1996 (232 Yachi ShÅtaro).â Full-text Database System for the Minutes of the Diets. https://kokkai.ndl.go.jp/#/detail?minId=113613938X00319960604&spkNum=232&single.
National Diet Library. â190th National Diet, House of Representativesâ Budget Committee Third Sub-Committee no. 1 on February 25, 2016 (313 Yamada Kenji).â Full-text Database System for the Minutes of the Diets. https://kokkai.ndl.go.jp/#/detail?minId=119005268X00120160225&spkNum=313&single.
National Diet Library. â193rd National Diet, House of Representatives Foreign Affairs Committee no. 16 on May 31, 2017 (010, 014 ShindÅ Yoshitaka).â Full-text Database System for the Minutes of the Diets. https://kokkai.ndl.go.jp/#/detail?minId=119303968X01620170531&spkNum=10&single, and https://kokkai.ndl.go.jp/#/detail?minId=119303968X01620170531&spkNum=14&single.
National Diet Library. â198th National Diet, House of Representatives Environment Committee no. 4 on April 2, 2019 (056 Nagao Hideki).â Full-text Database System for the Minutes of the Diets. https://kokkai.ndl.go.jp/#/detail?minId=119804006X00420190402&spkNum=56&single.
âNichiro Kan RyÅdo Mondai no Rekishi ni Kansuru KyÅdÅ Sakusei ShiryÅshÅ«â æ¥é²éé ååé¡ã®æ´å²ã«é¢ããå ±åä½æè³æé [Joint Compendium of Documents on the History of Territorial Issue between Japan and Russia]. Ministry of Foreign Affairs of Japan. September 1992. https://www.mofa.go.jp/mofaj/area/hoppo/1992.pdf.
âNichiro Kankei ni Kansuru Tokyo Sengenâ æ¥é²é¢ä¿ã«é¢ããæ±äº¬å®£è¨ [Tokyo Declaration on Japan-Russia Relations]. Cabinet Office of Japan. October 13, 1993. https://www8.cao.go.jp/hoppo/shiryou/pdf/gaikou46.pdf.
âNisso KyÅdÅ Seimeiâ æ¥ã½å ±å声æ [Japanese-Soviet Joint Communiqué]. Cabinet Office of Japan. April 18, 1991. https://www8.cao.go.jp/hoppo/shiryou/pdf/gaikou35.pdf.
Western Language
âDeclarations made by States Parties under article 287.â itlos. https://www.itlos.org/en/main/jurisdiction/declarations-of-states-parties/declarations-made-by-states-parties-under-article-287/.
âPosition of the Government of Korea on Dokdo.â Ministry of Foreign Affairs of Republic of Korea. http://overseas.mofa.go.kr/jp-sendai-ja/brd/m_623/view.do?seq=683039&srchFr=&srchTo=&srchWord=&srchTp=&multi_itm_seq=0&itm_seq_1=0&itm_seq_2=0&company_cd=&company_nm=&page=24.
âThe Korean Governmentâs Basic Position on Dokdo.â Ministry of Foreign Affairs of Republic of Korea. http://dokdo.mofa.go.kr/jp/dokdo/government_position.jsp.
Wolfrum, Rüdiger. âStatement given to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs.â itlos. October 23, 2006. https://www.itlos.org/en/main/press-media/statements-of-the-president/statements-of-president-wolfrum/.
Secondary Sources
Japanese
icj Precedent Study Group å½éå¸æ³è£å¤æå¤ä¾ç 究ä¼. âKakugunbi KyÅsÅ no Teishi to Kakugunbi no ShukushÅ ni Kansuru KÅshÅgimu Jiken (MÄsharu ShotÅ Tai Eikoku) (Senketsuteki Koben Hanketsu 2016 Nen 10 Gatsu 5 Ka)â æ ¸è»å競äºã®åæ¢ã¨æ ¸è»åã®ç¸®å°ã«é¢ãã交æ¸ç¾©åäºä»¶(ãã¼ã·ã£ã«è«¸å³¶å¯¾è±å½)(å 決çæå¼å¤æ±ºã»2016å¹´ 10æ 5æ¥) [Obligations concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom) (Preliminary Objections Judgment, October 5, 2016)]. KokusaihÅ GaikÅ Zasshiå½éæ³å¤äº¤éèª 116, no. 2 (2017): 97â114.
Kanehara, Atsuko å ¼åæ¦å. âSaiban Kankatsuken to TekiyÅhÅ no Kankei: Kokuren KaiyÅhÅ Jyoyaku ni Okeru ShihÅ Saiban to ChÅ«sai Saibanâ è£å¤ç®¡è½æ¨©ã¨é©ç¨æ³ã®é¢ä¿: å½é£æµ·æ´æ³æ¡ç´ã«ãããå¸æ³è£å¤ã¨ä»²è£è£å¤ [Relation between Judicial Jurisdiction Rights and Applicable Laws: Judicial Decisions and Arbitral Decisions in unclos]. In JisshÅ no KokusaihÅ Gaku no KeishÅå®è¨¼ã®å½éæ³å¦ã®ç¶æ¿ [Succession of Positivism in International Law], edited by Serita Kentaro è¹ç°å¥å¤ªé, et al., 543â582. Tokyo: Shinzansha, 2019.
Kotera Akira å°å¯ºå½°. âRyÅdo Mondai no Shori Isogunaâ é ååé¡ã®å¦çæ¥ã㪠[Avoid Rushing Handling of Territorial Issues]. Nihon Keizai Shimbunæ¥æ¬çµæ¸æ°è, October 9, 2012.
Sakamoto, Shigeki åå è樹. KaiyÅ KyÅkai Kakutei to RyÅdo FunsÅ âTakeshima to SenkakushotÅ no Kageâ æµ·æ´å¢çç»å®ã¨é åç´äºâ竹島ã¨å°é£è«¸å³¶ã®å½±â [Maritime Boundary Delimitation and Territorial Disputes: Shadow of Takeshima and the Senkaku Islands]. Kokusai Mondaiå½éåé¡, no. 565 (2007): 15â29.
Sekine, Kazuhiro é¢æ ¹åå¼. ââHoppÅ RyÅdo wa Subete Rosia no Shuken dato Mitomeyoâ Rosia no Raburohu GaisÅ ga KÅno TarÅ GaisÅ ni Semaru (Kaiken Zenbun)â ãåæ¹é åã¯ãã¹ã¦ãã·ã¢ã®ä¸»æ¨©ã ã¨èªããããã·ã¢ã®ã©ãããå¤ç¸ãæ²³é太éå¤ç¸ã«è¿«ã(ä¼è¦å ¨æ) [Russian Foreign Minister Lavrov called on the Japanese side âto recognize all of the results of the Second World Warâ (Full Text of the Interview)]. Huffingtonpost, January 15, 2019. https://www.huffingtonpost.jp/2019/01/14/meeting-taro-kono-sergey-lavrov_a_23642564/.
Serita, Kentaro è¹ç°å¥å¤ªé. Shima no RyÅyÅ« to Keizai Suiiki no KyÅkai Kakutei島ã®é æã¨çµæ¸æ°´åã®å¢çç»å® [Island Possession and Economic Zone Delimitation]. Tokyo: YÅ«shindÅ KÅbunsha, 1999.
Tamada, Dai çç°å¤§. âTakeshima FunsÅ wa Kokusai ShihÅ Saibansho ni Mochikomenai?â 竹島ç´äºã¯å½éå¸æ³è£å¤æã«æã¡è¾¼ããªã? [Is It Possible to Bring the Takeshima Dispute to the International Court of Justice?]. In KokusaihÅ de Sekai ga Wakaru [Understand the World with International Law], edited by Morikawa Koichi 森å·å¹¸ä¸, et al., 245â253. Tokyo: Iwanami Publishing, 2016.
Tamada, Dai çç°å¤§. ââFunsÅâ no Sonzai â Kakugunshuku KÅshÅ Gimu Jiken (MÄsharu ShotÅ Tai Igirisu)â ãç´äºãã®åå¨ â æ ¸è»ç¸®äº¤æ¸ç¾©åäºä»¶(ãã¼ã·ã£ã«è«¸å³¶å¯¾ã¤ã®ãªã¹) [Existence of âDisputeâ: Case on Obligations concerning Nuclear Disarmament Negotiations (Marshall Islands vs. the United Kingdom)]. In KokusaihÅ Hanrei Hyakusen Dai 3 Banå½éæ³å¤ä¾ç¾é¸(第3ç) [100 Cases on International Law (3rd Edition)], edited by Morikawa Koichi 森å·å¹¸ä¸, et al., 188â189. Tokyo: YÅ«hikaku Publishing, 2021.
Western Language
Buga, Irina. âTerritorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunal.â The international Journal of Marine and Coastal Law 27, no. 1 (2012), 59â95.
Giraudeau, Géraldine. âA Slight Revenge and a Growing Hope for Mauritius and the Chagossians: The unclos Arbitral Tribunalâs Award of 18 March 2015 on Chagos Marine Protected Area (Mauritius v. United Kingdom).â Brazilian Journal of International Law 12, no. 2 (2015), 705â727.
Smith, Robert W., and Bradford L. Thomas. âIsland Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes.â Maritime Briefing 2, no. 4 (1998): 1â27.
Tamada Dai çç°å¤§. âunclos Dispute Settlement Mechanism: Contribution to the Integrity of unclos.â Japanese Yearbook of International Law 61 (2018) [March 2019]: 132â166.
Tzeng, Peter. âSupplemental Jurisdiction under unclos.â Houston Journal of International Law 38, no. 2 (2016): 499â576.