Peter Tzeng
Yale University, Yale Law School, Alumnus
Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms... more
Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.
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One of the greatest challenges facing international courts and tribunals today is a State’s decision not to participate in a proceeding. Ever since China refused to take part in the South China Sea arbitration in 2013, there have been no... more
One of the greatest challenges facing international courts and tribunals today is a State’s decision not to participate in a proceeding. Ever since China refused to take part in the South China Sea arbitration in 2013, there have been no fewer than nine additional inter-State cases of non-participation. The existing literature views this growing phenomenon as a problem. This article, however, takes the perspective of the non-participating State, and thus views non-participation as a strategy. After examining the law and practice of non-participation, the article discusses a series of strategic considerations that States should take into account when deciding whether to participate in a proceeding. In doing so, the article hopes not only to advise States considering non-participation, but also to help others understand the reasons behind a State’s decision of non-participation.
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Commentators have long decried the accountability deficit of intergovernmental organizations with respect to individuals. Far less attention, however, has been paid to their accountability deficit with respect to their own Member States.... more
Commentators have long decried the accountability deficit of intergovernmental organizations with respect to individuals. Far less attention, however, has been paid to their accountability deficit with respect to their own Member States. The review panel mechanism in the South Pacific Regional Fisheries Management Organisation Convention works to minimize such a deficit, and it has enjoyed much success to date. In its first two cases, Russia v. Commission (2013) and Ecuador v. Commission (2018), the mechanism successfully settled the disputes, and moreover obtained compliance from all parties. This Article examines these two cases in depth, and draws lessons from these cases that may be applied towards establishing accountability mechanisms for other intergovernmental organizations.
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In February 2009, the International Court of Justice rendered a judgment delimiting a maritime area of the Black Sea between Romania and Ukraine. The very next month, Indonesia and Singapore concluded a treaty delimiting their maritime... more
In February 2009, the International Court of Justice rendered a judgment delimiting a maritime area of the Black Sea between Romania and Ukraine. The very next month, Indonesia and Singapore concluded a treaty delimiting their maritime boundary in the western part of the Strait of Singapore. Although these two delimitations occurred by different means (adjudication and negotiation), years later, they raise the same question: can a subsequent event move a maritime boundary? As a matter of lex lata, the answer is probably “no”. As a matter of lex ferenda, however, this Article questions whether the law governing land boundaries should also apply to maritime boundaries in light of key differences between land and maritime boundaries.
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The doctrine of indispensable parties ensures that international courts and tribunals do not exceed their jurisdiction ratione personae. Should there be a parallel "doctrine of indispensable issues" to ensure that they do not exceed their... more
The doctrine of indispensable parties ensures that international courts and tribunals do not exceed their jurisdiction ratione personae. Should there be a parallel "doctrine of indispensable issues" to ensure that they do not exceed their jurisdiction ratione materiae? This Article answers this question in the negative. In doing so, the Article makes a descriptive and a normative argument. On the descriptive level, the Article argues that courts and tribunals have developed a consistent approach to the implicated party problem (called the doctrine of indispensable parties) but have not developed a consistent approach to the implicated issue problem. On the normative level, the Article argues that the approach courts and tribunals take to the implicated party problem should not necessarily parallel the approach they take to the implicated issue problem because of key differences between jurisdiction ratione personae and jurisdiction ratione materiae.
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For centuries, non-state actors have acted as claimants before international judicial bodies. Only recently, however, have they begun acting as respondents. This Article considers how five areas of international law—international... more
For centuries, non-state actors have acted as claimants before international judicial bodies. Only recently, however, have they begun acting as respondents. This Article considers how five areas of international law—international investment law, international human rights law, international humanitarian law, international criminal law, and the law of the sea—deal with non-state actors in order to identify a lex generalis governing non-state actors as respondents. In particular, this Article examines two elements that must be established to make a successful claim against a non-state actor: (1) how non-state actors acquire obligations under international law; and (2) how international judicial bodies acquire jurisdiction ratione personae over non-state actors.
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Articles 2(3) and 33(1) of the Charter of the United Nations ('Charter') recognise the importance of the peaceful settlement of disputes. But what about the peaceful non-settlement of disputes? Arguably, in order to achieve the goals set... more
Articles 2(3) and 33(1) of the Charter of the United Nations ('Charter') recognise the importance of the peaceful settlement of disputes. But what about the peaceful non-settlement of disputes? Arguably, in order to achieve the goals set forth in the Charter such as international peace and prosperity, certain legal disputes are best left unsettled, at least for a certain period of time. This is particularly the case if two states expressly agree by treaty to peacefully not settle their dispute. Nevertheless, in its Decision on Competence of 19 September 2016, the Conciliation Commission in Timor-Leste v Australia failed to enforce an agreement to peacefully not settle a dispute. This article critiques the Commission's decision not only from a legal perspective, but also from a policy perspective.
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International investment agreements generally only protect investments in the 'territory' of the respondent State. As a result, an investment tribunal seized of a dispute concerning an investment on disputed territory may have to... more
International investment agreements generally only protect investments in the 'territory' of the respondent State. As a result, an investment tribunal seized of a dispute concerning an investment on disputed territory may have to determine whether the respondent State has sovereignty over the territory in question. This should create some discomfort for two reasons. First, the tribunal may be exceeding its jurisdiction ratione personae, as it would be ruling on the sovereignty dispute with only one of the disputing States at the table. Second, the tribunal may be exceeding its jurisdiction ratione materiae, as it generally only has the power to rule on investment disputes, not sovereignty disputes. This Article explores the merits of two preliminary objections—corresponding to these two jurisdictional problems—to claims concerning investments on disputed territory: the doctrine of indispensable parties and the doctrine of indispensable issues.
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Scholarship on humanitarian intervention is plentiful. But actual examples of state practice and opinio juris are sparse. Thus, critics conclude, the doctrine of humanitarian intervention has no legal basis in international law. This... more
Scholarship on humanitarian intervention is plentiful. But actual examples of state practice and opinio juris are sparse. Thus, critics conclude, the doctrine of humanitarian intervention has no legal basis in international law. This Article challenges this viewpoint. It does so by departing from the traditional framework of international law and by adopting an alternative framework of analysis: the study of incidents. Through an examination of seven recent incidents over the past decade, this Article reveals that the doctrine of humanitarian intervention, though not yet an established norm of international law, functions to widen traditional exceptions to the prohibition on the use of force.
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In Syria, the United States is “training and equipping” non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training and support to separatists. In China, “private” computer hackers create codes designed to... more
In Syria, the United States is “training and equipping” non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training and support to separatists. In China, “private” computer hackers create codes designed to infiltrate sensitive computer systems. These are just a few examples of the many ways in which states to work with non-state actors to accomplish their military and political objectives. While state/non-state collaboration can be benign, it can be malignant where a state uses a non-state actor as a proxy to violate international law with impunity. In extreme cases, a state could go as far as to fund, train, and instruct a non-state actor to commit war crimes and escape without international legal responsibility. This is no mere academic hypothetical: consider the Former Republic of Yugoslavia’s support of the Free Serbian Army, which committed the genocide at Srebrenica.
Recognizing this problem, international courts have developed a doctrine of state responsibility designed to hold states accountable for internationally wrongful acts of their non-state actor partners. Unfortunately, existing doctrine leaves an accountability gap and fails to correct the perverse incentive to use non-state actors as proxies for illegal acts. Moreover, it creates a second perverse incentive: states with good intentions might avoid training non-state actors in international law compliance to avoid crossing the “bright line” for attribution.
This Article proposes a fix to these problems, drawing on a novel interpretation of the Geneva Conventions released by the ICRC in March 2016. It argues that the duty “to ensure respect” in Common Article 1 can fill the gap. In addition, it argues that Common Article 1 will be more widely embraced and therefore more effective if states that have exercised due diligence to prevent violations are allowed an affirmative defense against liability for any ultra vires violations. The Article concludes with recommendations for states that wish to fulfill their Common Article 1 obligations in good faith while working with non-state actors.
Recognizing this problem, international courts have developed a doctrine of state responsibility designed to hold states accountable for internationally wrongful acts of their non-state actor partners. Unfortunately, existing doctrine leaves an accountability gap and fails to correct the perverse incentive to use non-state actors as proxies for illegal acts. Moreover, it creates a second perverse incentive: states with good intentions might avoid training non-state actors in international law compliance to avoid crossing the “bright line” for attribution.
This Article proposes a fix to these problems, drawing on a novel interpretation of the Geneva Conventions released by the ICRC in March 2016. It argues that the duty “to ensure respect” in Common Article 1 can fill the gap. In addition, it argues that Common Article 1 will be more widely embraced and therefore more effective if states that have exercised due diligence to prevent violations are allowed an affirmative defense against liability for any ultra vires violations. The Article concludes with recommendations for states that wish to fulfill their Common Article 1 obligations in good faith while working with non-state actors.
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Many commentators have noted how the courts of leading international arbitration centers — namely England, Singapore, and Hong Kong — apply divergent choice of law rules to determine the law governing the arbitration agreement. Although... more
Many commentators have noted how the courts of leading international arbitration centers — namely England, Singapore, and Hong Kong — apply divergent choice of law rules to determine the law governing the arbitration agreement. Although this may be true on the surface, this Note demonstrates that these courts have actually been applying the same choice of law rule: an in favorem validitatis rule. In light of this fact, this Note argues that the courts of England, Singapore, and Hong Kong should begin expressly adopting the in favorem validitatis rule rather than hiding it. The reason is that aspiring arbitration jurisdictions — such as India, China, and Malaysia — look to leading arbitration centers to design their own arbitration laws and rules, and consequently may be misled into invalidating arbitration agreements that courts in the leading arbitration centers would probably find to be valid.
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It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals. Nevertheless, UNCLOS tribunals have not uniformly conformed to this principle. In... more
It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals. Nevertheless, UNCLOS tribunals have not uniformly conformed to this principle. In particular, the tribunals in M/V Saiga (No. 2), Guyana v. Suriname, and M/V Virginia G effectively invoked Article 293(1) to expand their jurisdiction. And although the tribunals in MOX Plant, Chagos, Arctic Sunrise, and Duzgit Integrity have stood by the principle, they all failed to recognize the legal error committed by the other three tribunals. This Comment argues that an express refutation of the erroneous jurisprudence is necessary to preserve the legitimacy of UNCLOS proceedings.
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Does Crimea now constitute a part of Russia or Ukraine? Although most states and commentators have sided with Ukraine, no international court or tribunal has yet to declare whether Crimea today constitutes Russian or Ukrainian territory... more
Does Crimea now constitute a part of Russia or Ukraine? Although most states and commentators have sided with Ukraine, no international court or tribunal has yet to declare whether Crimea today constitutes Russian or Ukrainian territory under international law. This may be about to change. Ukrainian investors have instituted at least seven investor-state arbitrations against Russia, potentially allowing the tribunals to determine who has sovereignty over Crimea. The problem, however, is that Ukraine does not have a seat at the table. After examining Ukraine's current and prospective claims before the ECtHR, the ICJ, and an UNCLOS tribunal, this Comment proposes that Ukraine institute state-to-state investment arbitration proceedings against Russia.
Research Interests: International Law, Law of the Sea, International Court of Justice, International Investment Law, Territorial Sovereignty, and 7 moreRussia, International Investment Arbitration, Ukraine, European Court of Human Rights, Crimea, International Investment Law and Investment Treaty Arbitration, and UNCLOS
Supplemental jurisdiction is the jurisdiction of an UNCLOS tribunal over a non-UNCLOS dispute. Its significance must not be underestimated. Almost every recent contentious dispute under UNCLOS has raised questions of supplemental... more
Supplemental jurisdiction is the jurisdiction of an UNCLOS tribunal over a non-UNCLOS dispute. Its significance must not be underestimated. Almost every recent contentious dispute under UNCLOS has raised questions of supplemental jurisdiction. Nevertheless, to this day, no court, tribunal, or commentator has pieced together or even tried to piece together a comprehensive theory of supplemental jurisdiction. This Article aims to do just that.
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As absurd as it may sound, States do not have a general right to property under international law. Conventional and customary international law protect certain types of State property (e.g., diplomatic property, extraterritorial... more
As absurd as it may sound, States do not have a general right to property under international law. Conventional and customary international law protect certain types of State property (e.g., diplomatic property, extraterritorial vehicles), but not all types of State property. Every year, however, more and more types of State property find themselves in need of protection, such as computer networks, communication systems, and privileged documents. International courts, political leaders, and commentators have proposed treaties to protect these specific types of State property. But what is ultimately lacking is the State's general right to property under international law.
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Awarding compensation for future damages arising from continuing breaches has long vexed investment tribunals. This article examines the newest solution to the problem: deferring an award on future damages to a future tribunal. In 2015,... more
Awarding compensation for future damages arising from continuing breaches has long vexed investment tribunals. This article examines the newest solution to the problem: deferring an award on future damages to a future tribunal. In 2015, for the very first time, an investment tribunal was constituted for the sole purpose of awarding compensation for deferred damages. Yet even if everything proceeds according to plan in that specific case, this article argues that the practice of deferring an award on future damages to a future tribunal raises significant jurisdictional obstacles that undermine its universal applicability.
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At the core of the nuclear non-proliferation regime lie international agreements, such as the Nuclear Non-proliferation Treaty, nuclear co-operation agreements and nuclear export control agreements. States, however, do not always comply... more
At the core of the nuclear non-proliferation regime lie international agreements, such as the Nuclear Non-proliferation Treaty, nuclear co-operation agreements and nuclear export control agreements. States, however, do not always comply with their obligations under these agreements. In response, this article proposes nuclear arbitration as an alternative solution to the non-compliance problem.
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On February 3, 2015, the International Court of Justice rendered a final judgment in Croatian Genocide. As in Bosnian Genocide, the Court failed to justify the high standards of proof it applied to proving the dolus specialis of genocide.
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Most observers would surmise that the United States applies significant pressure on certain states behind closed doors to deal with nuclear proliferation threats. While information about such pressures today remains classified,... more
Most observers would surmise that the United States applies significant pressure on certain states behind closed doors to deal with nuclear proliferation threats. While information about such pressures today remains classified, information about similar pressures in the 1970s has become available via the Freedom of Information Act. This article draws on hundreds of unpublished, declassified government documents from multiple archives to recount how the United States intervened in sensitive technology transfers to Brazil, South Korea, and Pakistan in the 1970s. In each case, U.S. officials employed concrete sources of leverage to pressure states to cancel their nuclear arrangements. Notably, however, the United States today no longer possesses the leverage it used in the 1970s to deliver pressure. In particular, U.S. nuclear leverage—nuclear technology, nuclear financing, and nuclear fuel—has diminished significantly over the past three decades. Policy makers in Washington therefore must ask themselves: to what extent has this loss of leverage weakened the ability of the United States to deal with nuclear proliferation threats today?
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Taiwan's small and medium enterprises (SMEs) have been credited with playing a crucial part in the island's economic development over the past half century. But do the government's SME policies complement the international environment as... more
Taiwan's small and medium enterprises (SMEs) have been credited with playing a crucial part in the island's economic development over the past half century. But do the government's SME policies complement the international environment as well as they did in the past?
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Appointing authorities wield tremendous power in international arbitration. This Chapter examines three phenomena concerning appointing authorities that have occurred in recent arbitrations: self-appointment (where the appointing... more
Appointing authorities wield tremendous power in international arbitration. This Chapter examines three phenomena concerning appointing authorities that have occurred in recent arbitrations: self-appointment (where the appointing authority appoints him or herself to the tribunal); party appointment (where one or both parties appoint the appointing authority to the tribunal); and non-appointment (where the appointing authority refuses to appoint an arbitrator). The Chapter concludes that, in light of the significant powers granted to appointing authorities, greater attention should be directed towards regulating their conduct.
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The principle of contemporaneous interpretation provides that the terms of a treaty shall be interpreted as they were understood at the time of the conclusion of the treaty. The principle of evolutionary interpretation, on the other hand,... more
The principle of contemporaneous interpretation provides that the terms of a treaty shall be interpreted as they were understood at the time of the conclusion of the treaty. The principle of evolutionary interpretation, on the other hand, provides that the terms of a treaty shall be interpreted as they are understood at the time of the interpretation of the treaty. In certain circumstances, the application of these two principles can lead to very different interpretations of the same term in a treaty. The primary question of this chapter is thus as follows: when should one apply the principle of contemporaneous interpretation, and when should one apply the principle of evolutionary interpretation?
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Appointing authorities are often called upon to appoint arbitrators to arbitral tribunals. Ordinarily, the appointing authority does not appoint him or herself to the tribunal. Nevertheless, arbitration rules generally do not prohibit... more
Appointing authorities are often called upon to appoint arbitrators to arbitral tribunals. Ordinarily, the appointing authority does not appoint him or herself to the tribunal. Nevertheless, arbitration rules generally do not prohibit self-appointment. In fact, in two arbitrations brought under Annex VII of the United Nations Convention on the Law of the Sea, the appointing authority appointed himself to the tribunal: Judge Vladimir Golitsyn in the Enrica Lexie case, and Judge Boualem Bouguetaia in the Coastal State Rights case. Despite the lack of express prohibitions on self-appointment, at least three concerns that may arise concerning its propriety: conflicts of interest, influence over co-arbitrators, and contravention of the parties' intentions. These concerns arise not only in cases of self-appointment, but also in cases where one or both parties appoint the appointing authority to the tribunal, which has occurred at least three times in inter-State arbitrations: Judge Stephen Schwebel in the Eritrea/Yemen case, Judge Dolliver Nelson in the Guyana v. Suriname case, and Judge Ronny Abraham in the Croatia/Slovenia case.