Identifying “Exclusionary Agreements”: Agreement Type as a Procedural Limitation in UNCLOS Dispute Settlement

IF 1.3 3区社会学 Q2 INTERNATIONAL RELATIONS

Ocean Development and International Law Pub Date : 2021-03-05 DOI:10.1080/00908320.2021.1886448

Hayley Roberts

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引用次数: 1

Abstract

Abstract The United Nations Convention on the Law of the Sea (UNCLOS) is heralded as a constitution for the oceans and, as part of this, provides for a compulsory dispute settlement procedure entailing binding decisions. However, case law and academic commentary have highlighted significant issues in definitively identifying other agreements that could preclude these compulsory procedures—a concept permitted by the Convention in certain circumstances. This article begins to explore this challenge by contending that the type of agreement plays a significant role in whether or not it could be determined to be an “exclusionary agreement.” In doing so, the article conducts a systematic interpretation of Articles 281 and 282 UNCLOS, underpinned by the application of relevant provisions in the Vienna Convention on the Law of Treaties. This provides a conclusive basis as to whether the status of an agreement as an “ad hoc agreement” (specific; adopted for the dispute) or an “existing agreement” (general; adopted prior to the dispute) holds any significance in the context of these articles.

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识别“排他性协议”:作为《联合国海洋法公约》争端解决程序限制的协议类型

《联合国海洋法公约》(UNCLOS)被誉为海洋宪法，作为该宪法的一部分，它规定了强制性争端解决程序，包括具有约束力的裁决。然而，判例法和学术评论强调了在明确确定可能排除这些强制程序的其他协议方面的重大问题- -《公约》在某些情况下允许的概念。本文首先探讨这一挑战，认为协议的类型在是否可以确定为“排他性协议”方面起着重要作用。在此过程中，本文以《维也纳条约法公约》的相关规定为基础，对《公约》第281条和282条进行了系统解释。这为一项协定作为“特设协定”的地位(具体;为解决争端而通过的)或“现有协议”(一般;(在争端之前通过的)在这些条款的背景下具有任何意义。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Ocean Development and International Law Multiple-

CiteScore

2.00

自引率

8.30%

发文量

期刊介绍： Ocean Development and International Law is devoted to all aspects of international and comparative law and policy concerning the management of ocean use and activities. It focuses on the international aspects of ocean regulation, ocean affairs, and all forms of ocean utilization. The journal publishes high quality works of scholarship in such related disciplines as international law of the sea, comparative domestic ocean law, political science, marine economics, geography, shipping, the marine sciences, and ocean engineering and other sea-oriented technologies. Discussions of policy alternatives and factors relevant to policy are emphasized, as are contributions of a theoretical and methodological nature.