Law
There are various ways in which disputes concerning the law of the sea may be settled peacefully. This chapter begins by providing an overview of how disputes are settled under general international law, considering first the role of municipal courts and diplomatic protection before then summarising the various ways in which inter-state disputes may be settled peacefully. It then sets out the mechanisms for the settlement of disputes under the UN Convention on the Law of the Sea, analysing the provisions of Part XV in detail, including its elaborate compulsory dispute settlement provisions (with reference to the relevant case law). It concludes by considering two general issues concerning dispute settlement, namely locus standi and the rules for treaty interpretation.
‘Strait’ is not a term of art, and it is not defined in any of the conventions produced by the United Nations Conferences on the Law of the Sea. It bears its ordinary meaning, being ‘geographically, a narrow passage between two land masses or islands or groups of islands connecting two sea areas.’ It is the legal status of the waters constituting the strait and the fact of their use by international shipping, rather than any definition of ‘strait’ as such, that determines the rights of coastal and flag States in the waters of the strait. This chapter first considers the rules governing straits prior to the UN Convention on the Law of the Sea (UNCLOS), before turning to a detailed analysis of the UNCLOS regime, notably the transit passage through straits used for international navigation, established by Part III of the Convention. It addresses a coastal State’s legislative jurisdiction and the (less clear) scope of a coastal State’s enforcement jurisdiction. It considers the issue of whether there is a right similar to transit passage through international straits as a matter of customary international law. The chapter concludes by noting special regimes which regulate passage through particular straits.
The territorial sea is the first coastal State maritime zone seawards of the baseline and internal waters. This chapter traces its development as a concept, and then addresses the current legal status of the bed, subsoil and superjacent air space of the territorial sea. The breadth of the territorial sea is explained, with reference to relevant State practice. The chapter provides a detailed analysis of the right of innocent passage, including of warships and ships carrying hazardous cargoes, and of the right to deny and suspend passage. Other rights, as well as the duties, of the coastal State are discussed, including the scope of its legislative and enforcement jurisdiction over foreign vessels.
Developing States have long argued that the lack of appropriate technology is an obstacle to their development. During the 1970s the UN General Assembly adopted a number of resolutions calling for the mandatory transfer of technology. While never accepted by developed States, those calls left their mark on the UN Convention on the Law of the Sea. As originally drafted, Part XI required those engaged in mining in the Area to transfer relevant technology to developing States. However, the Implementation Agreement (1994) removed that obligation, as explained in chapter twelve. This chapter examines other provisions in the Convention on the transfer of technology, notably those in Part XIV, which is exclusively concerned with the topic. It is argued that the provisions of Part XIV are purely hortatory, not least because they do not adequately address the intellectual property issues involved in the transfer of technology. The chapter goes on to discuss the ‘Criteria and Guidelines on the Transfer of Marine Technology’ adopted by the UN Educational, Scientific and Cultural Organization’s Intergovernmental Oceanographic Commission and action taken thereunder. The last part of the chapter suggests that over the years the emphasis in international fora has shifted from the transfer of technology to capacity-building, as the latter is a less politically loaded term and broader in concept. Examples are given of capacity-building in relation to ocean affairs undertaken by international organisations.
Representing the first book-length treatment of the application of feminist theories of international law, The boundaries of international law argues that the absence of women in the development of international law has produced a narrow and inadequate jurisprudence that has legitimated the unequal position of women worldwide rather than confronted it.
With a new introduction that reflects on the profound changes in international law since the book’s first publication in 2000, this volume is essential reading for scholars, practitioners and students alike.
This chapter introduces a range of feminist theories and considers their value in understanding the field of international law. It starts by outlining the theoretical underpinnings of traditional international legal thinking, starting with the Treaty of Westphalia in 1648. It surveys natural law, positivist and liberal theories of international law. It then describes more recent theories such as those of the ‘New Haven’ school, the critical ‘Newstream’ in international law and the ‘Third World Approaches to International Law’. The chapter sketches a variety of feminist theories including liberal feminism, cultural feminism, radical feminism, postmodern feminism and Third World feminisms. It concludes that all can be useful in investigating the foundations of international law, endorsing the concept of ‘world travelling’ as a feminist methodology. The chapter sets out the theoretical and pragmatic goals of the book, acknowledging the tension between them.
The chapter investigates the ways in which international human rights law recognises and promotes women’s concerns and critically examines its potential for the advancement of women’s interests. It outlines the evolution of human rights law and the inclusion of women within it and feminist critiques of rights. It looks in detail at women-specific human rights instruments and discusses why these have failed to guarantee women protection against the abuses they experience in their lives. It concludes by looking at developments that suggest the potential of human rights law to protect the ‘rock-bottom’ of women’s lives.
Statehood is fundamental to traditional international legal doctrine. This chapter investigates the international legal notion of statehood, the doctrine of recognition, aspects of statehood, such as jurisdiction and state responsibility, as well as the concept of self-determination as a way to acquire statehood. It points to the invisibility of women in the formation and application of these legal principles and studies their impact on women’s lives. The chapter examines self-determination and Palestinian women. The chapter challenges the standard idea that the state is a neuter, without a sexed identity and argues that the paradigm state is constructed in a gendered way, as male, with female features only in specific contexts. It considers ways in which the state could be reconceived using feminist ideas.
The chapter examines how international institutions reinforce the gendered character of international law. It documents the invisibility of women at senior levels in international intergovernmental institutions and discusses critically measures taken over the years to ameliorate the situation. It asks whether the gender imbalance in international institutions is significant and argues that women’s absence from such bodies affects how ‘women’s issues’ are treated and more generally all matters of international concern.
This new introduction reflects on developments in the two decades since the publication of the book in 2000. It describes the profound changes in the international legal sphere, notably the terrorist attacks of 11 September 2001, intractable conflicts that have weakened the authority of multilateral institutions and the growth of right-wing populism. The chapter questions the overall optimism about the power of international law to improve the lives of women manifest in the book and emphasises the ambivalence of the international legal order for women. The chapter starts by considering the meaning of the term ‘feminist analysis’ and then moves on to review some of the history of feminist engagements with international law, observing that the international sphere has long provided a beacon of hope for women. Its focus is an area that had barely emerged when Boundaries was published: the UN Security Council’s ‘women, peace and security’ (WPS) agenda, which commenced with resolution 1325 adopted in October 2000. This field illustrates a pattern of apparent normative progress, which is undermined by gendered institutional cultures. The most acceptable feminist ideas internationally have been increasing the participation of women and combating violence against women, although these have faced many hurdles. It has been even more difficult to achieve normative and cultural change to support transformative equality for women, or an international legal order where issues of sex and gender and other structural inequalities are given sustained attention and adequate resources for achievement.