Ms Melissa Loja
Melissa Loja earned her PhD from the Faculty of Law, University of Hong Kong, where she also earned her LLM (with distinction). Her doctoral thesis is ‘International Agreements between Non-state Actors as a Source of Internaitonal Law’. Her external examiner was Prof. Jean d’Aspremont. She is the recipient of the 2017-2018 Li Ka Shing Prize of the University of Hong Kong.
She has published in American Society of International Law Proceedings, European Journal of International Law, Leiden Journal of International Law and Ocean Development and International Law. She won the Willoughby Prize (2014) for her article in Journal of Energy and Natural Resources Law.
- Melissa Loja, ‘International Agreements between Non-state Actors as a Source of Internaitonal Law‘, (2018) 112 American Society of International Law Proceedings, 151
- Melissa Loja, ‘A Critical Legal Approach to the South China Sea Territorial Dispute’, 20 Journal of the History of International Law‘, (2018) 2o Journal of the History of International Law 2, 198-216
- Melissa. Loja, ‘Status Quo Post Bellum and the Legal Resolution of the Territorial Dispute Between China and Japan over the Senkaku/Diaoyu Islands‘, (2016) 27 European Journal of International Law 4, 979–1004
- Melissa Loja, ‘Spratly Islands as a Single Unit under International Law: A Commentary on the Award on Jurisdiction and Admissibility in Philippines/China Arbitration‘, (2016) 47 Ocean Development and International Law 4, 309-326
- James Fry and Melissa Loja, ‘The Roots of Historic Title: Non-Western Pre-Colonial Normative Systems and Legal Resolution of Territorial Disputes‘, (2014) 27 Leiden Journal of International Law 3, 727-754
- Melissa Loja, ‘Is the Rule of Capture Countenanced in the South China Sea? The Policy and Practice of China, the Philippines and Vietnam‘, (2014) 32 Journal of Energy & Natural Resources Law 4, 483-508
- Melissa Loja, ‘Who Owns the Oil that Traverses a Boundary on the Continental Shelf in an Enclosed Sea? Seeking Answers in Natural Law through Grotius and Selden‘, (2014) 27 Leiden Journal of International Law 4, 893-911
Recent Engagement with International Human Rights Norms by Courts in Southeast Asia: New challenges to human rights theories, American Society of International Law Research Forum, 9-11 November 2018, University of California, Los Angeles
International Agreements between Non-State Actors as a Source of International Law, American Society of International Law Annual Meeting, 4-7 April 2018, Hyatt Regency Hotel, Washington D.C.
Spratly Islands as a Single Unit under International Law, American Society of International Law Research Forum, 11-12 November 2015, University of Washington, Seattle
Thesis title: International Agreements between Non-state Actors as a Source of International Law
The participation of non-state actors in global governance networks is the subject of numerous studies. The focus is on whether the norms they generate can be identified as international law according to the doctrine of sources under art. 38 of the ICJ statute or to processes that establish the legitimacy of non-state actors and the substantive validity and effectivity of their norms.
This study is about a different form of participation by non-state actors: their negotiation and conclusion of agreements to manage disputes that traditionally are resolved through agreements between states. The main question it addresses is: how can one tell whether these agreements are a source of international law?
The main thesis of this study is that one can tell that international agreements between non-state actors is a source of international law where the authority of the non-state parties is conferred or confirmed by the state through a treaty, law, official statement or ceremonial act, and the legality of the agreements is established by linguistic or procedural criteria.
The findings on which the thesis is based are from a case-study about international law governing disputes over petroleum resources that are exploitable by two or more states across maritime zones or boundaries (shared resources). Previously these disputes were addressed by states through war or through maritime boundary and joint development agreements. Presently the disputes are managed by petroleum agencies and corporations through international agreements on the unitization of the resources. International unitization treats shared resources as a single unit subject to the coexisting rights and interests of the littoral states. The case-study ascertained from petroleum instruments issued from 1937 through 2018 in 98 countries how these international agreements between petroleum agencies and corporations can be identified as a source of international law.
The case-study applied the postmodern legal positivist approach rather than the traditional statist and pluralist approaches to international law. The statist approach is unable to address the research question for it relies on the stringent rules of art. 38, according to which only states have the inherent authority to give consent to the creation of international conventions and customs. The pluralist approaches are unreliable for they equate the substantive validity, legitimacy and effectivity of the social practices of non-state actors to legality of norms.
In contrast, postmodern legal positivism situates international law-making, as well as its phenomenology, within subjective social processes in which states and non-state actors are involved. At the same time, it identifies international law vis-à-vis other social norms according to objective rules. While the prevailing rules are found in art. 38, new rules can develop from the social conventions of law-applying authorities. Law-applying authorities are social actors that engage in the argumentative practice of adopting and applying criteria to identify international law.
For some scholars, the emergence of new rules entails a Big Bang moment — a revolution in philosophy about international law or a convergence of the communitarian semantics of a critical mass of law-applying authorities. In contrast, the case-study shows a less dramatic process. It details the following emergence of a new rule for the identification of international agreements between petroleum agencies and corporations as a source of international law on shared resources:
First, out of 98 countries in the case-study, 87 have petroleum instruments which provide that shared resources shall be governed by international law, and adopt two rules to identify international agreements as the source thereof.
Second, the traditional rule identifies international agreements between states, while a new rule recognizes international agreements between petroleum agencies and corporations.
Third, the new rule identifies the agreements based on authority that has been conferred on petroleum agencies and corporations by the state through treaty, law, official statement or ceremonial act. Moreover, it identifies the agreements based on legality as established by 1) linguistic criteria, consisting of concrete verbal and non-verbal acts of special, general or ceremonial approval by the government or an identified agency thereof; or 2) procedural criteria, consisting of the positive acts of prior consultation and concurrence or continuing monitoring by the government or an identified agency thereof.
Fourth, the new rule initially was adopted by the states themselves in their treaties and laws. Eventually, in a number of cases where the states did not adopt the rule in their treaties and laws, petroleum agencies and corporations unilaterally incorporated it into their petroleum contracts and regulations — that is, they inserted provisions whereby they athorized themselves to participate in the agreements. Others unilaterally carried it out by entering into such agreements. The states acquiesced to and ratified this unilateral assertation of the rule through a subsequent treaty, law, official statement or ceremonial act.
The findings and conclusions of this study signify that international agreements between non-state actors are part of social reality. Nonetheless, these agreements can be demarcated from the mass of social norms and identified as a source of international law by the use of rules that apply concrete critetria based on authority and legality. These rules are dynamic for they arise from the social practices of states as well as non-state actors as law-applying authorities.
The emergence of a new way of identifying international law is nowhere more evident than in the petroleum industry where governance is shifting from the discourse of zero-sum territorial sovereignty to the discourse of co-existing interests. Future research into other areas of globalization might benefit from the chapters that follow.