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The Scope of Compulsory Jurisdiction and Exceptions Thereto under the United Nations Convention on the Law of the Sea

Published online by Cambridge University Press:  06 May 2021

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Abstract

The establishment of a compulsory dispute settlement mechanism in the United Nations Convention on the Law of the Sea (UNCLOS) is intended to be the guarantor of the proper application of the convention. Yet the decisions of courts and tribunals seized pursuant to the procedures under Section 2 of Part XV of UNCLOS are in many regards difficult to reconcile and in some regards unable to form the basis for a jurisprudence constante. This article examines on an empirical basis the scope and limits of the compulsory dispute settlement mechanism under UNCLOS, as applied by international courts and tribunals during a period of twenty years since the first decision in the Southern Bluefin Tuna case until the recent decision on preliminary objections in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean.

Résumé

Résumé

La mise en place d’un mécanisme obligatoire de règlement des différends dans la Convention des Nations Unies sur le droit de la mer se veut le garant de la bonne application de la convention. Pourtant, les décisions des cours et tribunaux saisis conformément aux procédures prévues à la section 2 de la partie XV de la convention sont à bien des égards difficiles à concilier et, à certains égards, ne peuvent pas constituer la base d’une jurisprudence constante. Cet article examine sur une base empirique la portée et les limites du mécanisme obligatoire de règlement des différends en vertu de la convention, tel qu’appliqué par les cours et tribunaux internationaux pendant une période de vingt ans depuis la première décision dans l’affaire du Thon à nageoire bleue jusqu’à la récente sentence sur les exceptions préliminaires dans le Différend relatif à la délimitation de la frontière maritime entre Maurice et les Maldives dans l’océan Indien.

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Articles
Copyright
© The Canadian Yearbook of International Law/Annuaire canadien de droit international 2021

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References

1 Commentators observe that “a State is not subject to any external authority unless it has voluntarily consented to such authority.” Louis Henkin, “International Law: Politics, Values, and Functions” (1989) 216:4 Rec des Cours 9 at 27. The Permanent Court of International Justice (PCIJ) observed in Lotus that “[t]he rules of law binding upon States … emanate from their own free will.” Case of the S.S. “Lotus” (France v Turkey) (1926), PCIJ (Ser A) No 10 at 18 [Lotus]. In Barcelona Traction, the International Court of Justice (ICJ) observed that “[h]ere as elsewhere, a body of rules could only have developed with the consent of those concerned.” Case Concerning the Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v Spain), [1970] ICJ Rep 3 at 47. Finally, in Military and Paramilitary Activities, the ICJ observed that “in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise.” Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, [1986] ICJ Rep 14 at 135, para 269.

2 The Lotus case, supra note 1, is considered to be “one of the landmarks of twentieth-century jurisprudence.” Henkin, supra note 1 at 278. The so-called Lotus principle has also been subject to firm criticism. Ian Brownlie observed in this regard that “[i]n most respects the Judgment of the Court is unhelpful in its approach to the principles of jurisdiction, and its pronouncements are characterized by vagueness and generality.” Ian Brownlie, Principles of Public International Law, 6th ed (Oxford: Oxford University Press, 2003) at 301.

note 1
note 1

3 Lotus, supra note 1 at 18.

note 1

4 Immediately after holding that restrictions upon the independence of states cannot be presumed, the PCIJ presumed one such restriction: “Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State.” Lotus, supra note 1 at 18–19. Henkin observes that “instead of the presumption of State independence and autonomy, the [PCIJ] seemed to begin with a presumption that a State was not fully autonomous.” Henkin, supra note 1 at 278–79.

note 1
note 1

5 Alain Pellet noted nearly twenty years ago that according “to the voluntarist analysis of international law … our natural reflex is to say that where there is State will, there is international law: no will, no law.” Alain Pellet, “The Normative Dilemma: Will and Consent in International Law-Making” (2002) 12 Australian YB Intl L 22.

6 The International Law Commission’s (ILC) Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, UN Doc A/56/83 (10 August 2001) [ILC Articles on State Responsibility], are symptomatic. Alain Pellet notes that “[i]t is a fact that the influence of ILC texts is not dependent on the conclusion of a convention [although] the majority of the ILC members … mistakenly believed that the success of an ILC draft could only be measured by a treaty law yardstick and that there could be no salvation without a treaty.” Alain Pellet, “The ILC’s Articles on State Responsibility for Internationally Wrongful Acts and Related Texts” in James Crawford, Alain Pellet & Simon Ollesen, eds, The Law of International Responsibility (Oxford: Oxford University Press, 2011) 75 at 86–87 [emphasis added]. See also David D Caron, “The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and Authority” (2002) 96:4 Am J Intl L 857.

7 Hugh Handeyside, “The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat?” (2007) 29 Mich J Intl L 87.

8 Philip Allott, “The Concept of International Law” (1999) 10:1 Eur J Intl L 37 at 43.

9 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) [UNCLOS].

10 Ibid, art 288(1) [emphasis added].

11 Ibid, art 309: “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.”

12 Tullio Treves, “Le tribunal international du droit de la mer et la multiplication des juridictions internationales” (2000) 83 Rivista di Diritto 731 [Treves, “Le tribunal international”].

13 Phosphates in Morocco (Italy v France) (1938), PCIJ (Ser A/B) No 74 at 23.

14 26 June 1945, Can TS 1945 No 7 (entered into force 24 October 1945) [ICJ Statute]. In Land and Maritime Boundary between Cameroon and Nigeria, the Court explicitly acknowledged the possibility that there may be circumstances where it will not rely on its precedents: “There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusion of earlier cases.” Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Preliminary Objections, [1998] ICJ Rep 275 at 292, para 28 [Land and Maritime Boundary between Cameroon and Nigeria].

15 Expression used by the Annex VII arbitral tribunal in the South China Sea Arbitration (Philippines v China), PCA Case no 2013-18, Award on Jurisdiction and Admissibility (29 October 2015) at 86, para 223 [South China Sea Arbitration].

16 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) [VCLT].

17 Alan Boyle, “Some Problems of Compulsory Jurisdiction before Specialised Tribunals: The Law of the Sea” in P Capps, M Evans & S Konstadinidis, eds, Asserting Jurisdiction: International and European Legal Perspectives (Oxford: Hart Publishing, 2003) 246 [Boyle, “Some Problems”].

18 Case of the Monetary Gold Removed from Rome in 1943 (Italy v United Kingdom of Great Britain and Northern Ireland and United States of America), [1954] ICJ Rep 19 at 32. See also Rights of Minorities in Upper Silesia (Minority Schools) (Germany v Poland) (1928), PCIJ (Ser A) No 15 at 22; Certain Phosphate Lands in Nauru (Nauru v Australia), [1992] ICJ Rep 260; East Timor (Portugal v Australia), [1995] ICJ Rep 101. In Eastern Carelia, the PCIJ noted that “[i]t is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement.” Eastern Carelia (1923), Advisory Opinion, PCIJ (Ser A) No 5 at 27.

19 Western Sahara, Advisory Opinion, [1975] ICJ Rep 12 at 24.

20 Case Concerning the Payment in Gold of Brazilian Federal Loans Contracted in France (France v Brazil) (1929), PCIJ (Ser A) No 21 at 124.

21 In an article published in 2015, Bernard Oxman noted that “[n]o State has thus far invoked the military activities exception.” Bernard Oxman, “Courts and Tribunals: The ICJ, ITLOS and Arbitral Tribunals” in Donald R Rothwell et al, eds, The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press, 2015) 394 at 407 [Oxman, “Courts and Tribunals”]. Yet this exception has been raised in a number of cases in recent years.

22 Bing Bing Jia, “The Curious Case of Article 281: A ‘Super’ Provision within UNCLOS” (2015) 46:4 Ocean Dev & Intl L 268.

23 Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius v Maldives), Judgment, Preliminary Objections (28 January 2021) [Mauritius v Maldives].

24 Expression used in the Virginia Commentary: “One of the significant achievements of the Third United Nations Law of the Sea Conference was the development of a comprehensive system for the settlement of the disputes that may arise with respect to the interpretation or application of [UNCLOS].” Myron H Nordquist et al, eds, United Nations Convention on the Law of the Sea 1982: A Commentary (Leiden: Brill, 1993), vol 5, para XV.1 [Virginia Commentary].

25 It is observed that Part XV of UNCLOS is an “integral part and an essential element of the Convention.” Memorandum by the President of the Third Conference on Document A/CONF.62/WP.9, UN Doc A/CONF.62/WP.9/ADD.1 (1982) at 122, para 6 [Memorandum by the President].

26 On this issue, see Grégoire Lehoux, “La Troisième Conférence sur le droit de la mer et le règlement obligatoire des différends” (1980) 18 ACDI 31.

27 On 29 April 1958, the United Nations Conference on the Law of the Sea opened for signature four conventions: (1) the Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); (2) the Convention on the High Seas, 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); (3) the Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966); and (4) the Convention on the Continental Shelf, 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964) [collectively, Geneva Conventions].

28 The Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes, 29 April 1958, 450 UNTS 169 (entered into force 30 September 1962). Only thirty-eight states ratified the Optional Protocol, which provides for compulsory jurisdiction of the ICJ for all disputes concerning the interpretation or application of the Geneva Conventions. It has never been applied in practice. See Tullio Treves, “1958 Geneva Conventions on the Law of the Sea” (2008), online: UN Audiovisual Library of International Law <https://legal.un.org/avl/pdf/ha/gclos/gclos_e.pdf>.

29 It was observed at the beginning of the Third Conference that an “optional protocol would be a totally inadequate way of dealing with” disputes and “to relegate dispute settlement to an optional protocol might jeopardize the ratification and even the signing of” UNCLOS. Louis B Sohn, “Settlement of Disputes Arising Out of the Law of the Sea Convention” (1975) 12 San Diego L Rev 516.

30 Boyle, “Some Problems,” supra note 17 at 249.

note 17

31 UNCLOS, supra note 9, art 281(1) [emphasis added].

note 9

32 Ibid.

33 Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Award on Jurisdiction and Admissibility (2000), 23 UNRIAA 1 (UNCLOS Annex VII) [Southern Bluefin Tuna (Arbitral Tribunal)].

34 Ibid at para 57; Convention for the Conservation of Southern Bluefin Tuna, 10 May 1993, 1819 UNTS 359 (entered into force 20 May 1994) [CCSBT].

35 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, [1999] ITLOS Rep 280 at para 55 [Southern Bluefin Tuna (ITLOS)]. Bernard Oxman observes in this regard that “the arbitral tribunal [in Southern Bluefin Tuna] was presided over by a judge who, among other things, had devoted considerable attention to arbitration as both a scholar and an arbitrator and who had addressed numerous jurisdictional questions in that context and during a long and distinguished tenure on the ICJ culminating in his service as its president. Moreover, while many of the judges of the ITLOS had been active and prominent participants in the negotiation of [UNCLOS] over many years, of the arbitrators only Per Tresselt had played such a role. Whether judges are at their best when dealing with issues to which they have devoted great attention in the past is a question not easily resolved.” Bernard Oxman, “Complementary Agreements and Compulsory Jurisdiction” (2001) 95 Am J Intl L 283 at 284, n 32 [Oxman, “Complementary Agreements”].

36 Southern Bluefin Tuna (Arbitral Tribunal), supra note 33 at para 57.

note 33

37 Alan Boyle opined that the approach of the arbitral tribunal “is likely to remain controversial,” “[w]ith all due respect to the learned arbitrators, … simply lacks conviction,” and results in giving Article 281 a meaning that “was never intended.” Boyle, “Some Problems,” supra note 17 at 248–49.

note 17

38 Southern Bluefin Tuna (Arbitral Tribunal), supra note 33, Separate Opinion of Sir Kenneth Keith at para 17.

note 33

39 Virginia Commentary, supra note 24 at para 281.5 [emphasis added].

note 24

40 Commentators have different views on whether the exclusive nature of the alternative procedures must be explicit or implicit. See David Colson & Peggy Hoyle, “Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?” (2003) 34:1 Ocean Dev & Intl L 59; Barbara Kwiatkowska, “The Southern Bluefin Tuna Arbitral Tribunal Did Get It Right: A Commentary and Reply to the Article by David A Colson and Dr. Peggy Hoyle” (2003) 34:3–4 Ocean Dev & Intl L 369; Jon M Van Dyke, “Louis B Sohn and the Settlement of Ocean Disputes” (2000) 33 George Washington Intl L Rev 31.

41 The International Tribunal for the Law of the Sea (ITLOS) was also given an opportunity to comment upon the application of Article 281 in the Mox Plant case. While the agreement in question concerned the application of UNCLOS, supra note 9, art 282, several judges made use of the opportunity to touch upon Article 281 in their separate opinions, in which the requirement of an express statement of exclusion from Part XV was embraced. See e.g. Mox Plant Case (Ireland v United Kingdom), PCA Case no 2002-01, Order on Provisional Measures (3 December 2001), Separate Opinion of Judge Wolfrum at 5.

note 9

42 South China Sea Arbitration, supra note 15.

note 15

43 China-ASEAN Declaration on the Conduct of the Parties in the South China Sea, 4 November 2002, online: ASEAN <https://asean.org/?static_post=declaration-on-the-conduct-of-parties-in-the-south-china-sea-2>.

44 South China Sea Arbitration, supra note 15 at 86, para 222.

note 15

45 Ibid at 86–87, para 223.

46 Ibid at 121, para 286.

47 Ibid at 76, para 195.

48 UNCLOS, supra note 9, art 281(1) also contains a conjunction to this effect.

note 9

49 South China Sea Arbitration, supra note 15 at 85, para 219.

note 15

50 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v Russian Federation), PCA Case 2017-06, Award Concerning the Preliminary Objections of the Russian Federation (21 February 2020) [Dispute Concerning Coastal State Rights].

51 According to the arbitral tribunal, “it is not necessary for the Arbitral Tribunal, in assessing whether its jurisdiction is excluded pursuant to Article 281 of the Convention, to examine the further questions of whether [the relevant provisions in the agreement] exclude recourse to dispute settlement under Part XV of the Convention.” Ibid at 141, para 489.

52 South China Sea Arbitration, supra note 15 at 85, para 219.

note 15

53 Ibid at 86, para 223.

54 Ibid at 76, para 195.

55 Natalie Klein, “Expansions and Restrictions in the UNCLOS Dispute Settlement Regime: Lessons from Recent Decisions” (2016) 15:2 Chinese J Intl L 403 at 406.

56 The case law is rich on this aspect. See Aegean Sea Continental Shelf (Greece v Turkey), [1978] ICJ Rep 3 at 39, para 96 [Aegan Sea]; Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Jurisdiction and Admissibility, [1994] ICJ Rep 112 at 120, paras 23–29 [Case Concerning Qatar and Bahrain].

57 See VCLT, supra note 16, art 2(1)(a).

note 16

58 Case Concerning Qatar and Bahrain, supra note 56 at 121, para 25.

note 56

59 Ibid at 122, para 29. Charter of the United Nations, 26 June 1945, 1 UNTS 15 (entered into force 24 October 1945).

60 Wolfrum, Rüdiger, “Conciliation under the UN Convention on the Law of the Sea” in Tomuschat, C, Mazzeschi, RP & Thürer, D, eds, Conciliation in International Law (Leiden: Brill Nijhoff, 2016) 171 at 177.Google Scholar

61 Barbados v Republic of Trinidad and Tobago, PCA Case no 2004-02, Award (11 April 2006) at 62, para 200(ii) [Barbados v Trinidad and Tobago] [emphasis added].

62 Ibid [emphasis added].

63 South China Sea Arbitration, supra note 15 at 87, para 224.

note 15

64 The conciliation commission established under UNCLOS, supra note 9, art 298 and Annex V, when referring to the decisions on jurisdiction and admissibility of the arbitral tribunals in Southern Bluefin Tuna and the South China Sea Arbitration, observed that “Article 281 has been considered as a potential bar to the jurisdiction of courts and tribunals acting under Part XV of the Convention.” Timor Sea Conciliation (Timor-Leste v Australia), PCA Case no 2016-10, Decision on Australia’s Objections to Competence (9 May 2018) at 11, para 50.

note 9

65 Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, [2017] ICJ Rep 3 [Maritime Delimitation in the Indian Ocean].

66 Ibid at 48, para 122 [emphasis added].

67 Oxman notes that “[t]he requirement that no settlement has been reached by recourse to such means may entail delay, but does not preclude ultimate resort to binding arbitration or adjudication by the aggrieved party under Section 2 of Part XV.” Oxman, “Courts and Tribunals,” supra note 21 at 402 [emphasis added]. Yet Oxman also notes that Article 281 “does derogate from the principle of compulsory jurisdiction reflected in Section 2 of Part XV.” Ibid.

note 21

68 South China Sea Arbitration, supra note 15 at 76, para 195.

note 15

69 See also the difference of language in UNCLOS, supra note 9, art 282.

note 9

70 Continental Shelf (Libya v Malta), [1985] ICJ Rep 13 at 23, para 19.

71 Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali), [1986] ICJ Rep 554 at 579, para 50.

72 Nuclear Tests (Australia v France), [1974] ICJ Rep 253, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga, and Sir Humphrey Waldock at para 22.

73 Land and Maritime Boundary between Cameroon and Nigeria, supra note 14 at 37.

note 14

74 UNCLOS, supra note 9, art 281(1).

note 9

75 Ibid.

76 Ibid.

77 Ibid [emphasis added].

78 The French version provides: “[E]t si l’accord entre les parties n’exclut pas la possibilité d’engager une autre procédure” [emphasis added]. The Spanish version provides: “[Y] el acuerdo entre las partes noexcluya la posibilidad de aplicar otro procedimiento” [emphasis added]. The Russian version provides: “исоглашение между сторонами не исключает применения любой другой процедуры” [emphasis added].

79 Barbados v Trinidad and Tobago, supra note 61 at para 200(ii). Natalie Klein observes that this finding “goes against the explicit wording of that provision.” Klein, supra note 55 at 406.

note 61
note 55

80 Dispute Concerning Coastal State Rights, supra note 50 at 138, para 483.

note 50

81 Ibid.

82 Ibid at 141, para 489.

83 Maritime Delimitation in the Indian Ocean, supra note 65 at 48, para 122.

note 65

84 Memorandum by the President, supra note 25 at 122, para 6.

note 25

85 Virginia Commentary, supra note 24 at para 281.5 [emphasis added].

note 24

86 Bing Jia, supra note 22 at 268.

note 22

87 Virginia Commentary, supra note 24 at para 281.1.

note 24

88 Ibid at 12.

89 UNCLOS, supra note 9, art 311(3).

note 9

90 Virginia Commentary, supra note 24, vol 5 at para XV.4.

note 24

91 UNCLOS, supra note 9, art 309.

note 9

92 Wolfrum, supra note 60 at 178.

note 60

93 On this case, see Alan Boyle, “The Southern Bluefin Tuna Arbitration” (2001) 50 ICLQ 447.

94 According to art 16(2) of the CCSBT, supra note 34, “[a]ny dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the [ICJ] or to arbitration” [emphasis added].

note 34

95 Boyle, “Some Problems,” supra note 17 at 249.

note 17

96 Treves, “Le tribunal international,” supra note 12 at 731.

note 12

97 Oxman, “Complementary Agreements,” supra note 35 at 284.

note 35

98 Sohn, supra note 29 at 516. Elsewhere it was also observed, shortly after the fourth session of the Third Conference, that creating an effective dispute settlement mechanism “should be regarded as one of the pillars of the new world order in the ocean space.” AO Adede, “Settlement of Disputes Arising under the Law of the Sea Convention” (1975) 69 Am J Intl L 798.

note 29

99 Sohn, supra note 29 at 516.

note 29

100 UNCLOS, supra note 9, art 282.

note 9

101 See e.g. James Harrison, “Defining Disputes and Characterizing Claims: Subject-Matter Jurisdiction in Law of the Sea Convention Litigation” (2017) 48:3–4 Ocean Development & Intl L 269.

102 As to the difference between interpretation and application, see Anastasios Gourgourinis, “The Distinction between Interpretation and Application of Norms in International Adjudication” (2011) 2:1 J Intl Dispute Settlement 31.

103 UNCLOS, supra note 9, art 293(1) provides: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”

note 9

104 MOX Plant (Ireland v United Kingdom), Provisional Measures, [2001] ITLOS Rep 95 at para 50.

105 Ibid at para 52 [emphasis added].

106 Ibid at para 51.

107 Ibid, Separate Opinion of Judge Treves at para 3.

108 Ibid.

109 South China Sea Arbitration, supra note 15 at 106, para 291.

note 15

110 Ibid [emphasis added].

111 UNCLOS, supra note 9, art 282.

note 9

112 Yet, Churchill observes that if an applicant state can make out a “plausible case that a dispute involves the interpretation and application of the Convention, the court or tribunal concerned will have jurisdiction, notwithstanding the fact that the dispute may also relate to the interpretation and application of another treaty.” Robin Churchill, “Some Reflections on the Operation of the Dispute Settlement System of the UN Convention on the Law of the Sea During Its First Decade” in David Freestone, Richard Barnes & David M Ong, eds, The Law of the Sea: Progress and Prospects (Oxford: Oxford University Press, 2006) 388 at 401.

113 South China Sea Arbitration, supra note 15 at 108, para 302 [emphasis added].

note 15

114 Oxman, “Courts and Tribunals,” supra note 21 at 401.

note 21

115 Ibid.

116 According to UNCLOS, supra note 9, art 287(1), “[w]hen signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) [ITLOS]; (b) the [ICJ]; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.”

note 9

117 According to UNCLOS, ibid, art 287(3), “[a] State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.”

118 Maritime Delimitation in the Indian Ocean, supra note 65 at 44, para 111.

note 65

119 Virginia Commentary, supra note 24 at 26–27, para 282.3.

note 24

120 Yoshifumi Tanaka observes that “[t]here appears to be little doubt that the optional clause under art 36(2) is ‘a procedure that entails a binding decision’ set out in Article 282. It would seem to follow that between two States which have accepted the optional clause, the jurisdiction of the ICJ prevails over procedures under Part XV of [UNCLOS] by virtue of Article 282.” Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University Press, 2015) at 423–24. Commenting on Article 282, Treves notes that “the consensual aspect — which seems to be the fundamental requirement of Article 36, paragraph 2 — undoubtedly exists, so that it is reasonable to conclude that the parties have agreed ‘otherwise.’” Tullio Treves, “Conflicts Between the International Tribunal for the Law of the Sea and the International Court of Justice” (1999) 31:4 NYUJ Intl L & Pol 809 at 812. Boyle observes also to this effect that “two States which have made declarations in similar terms under art 36(2) will remain subject to the compulsory jurisdiction of the ICJ even in the LOS Convention cases.” Alan E Boyle, “Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks” (1999) 14:1 Intl J Marine & Coastal L 1 at 7.

121 Maritime Delimitation in the Indian Ocean, supra note 65 at 45, para 116. See also Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, [1988] ICJ Rep 69 at 76, para 16, quoting Factory at Chorzów (Germany v Poland) (1927), PCIJ (Ser A) No 9 at 32; Fisheries Jurisdiction (Spain v Canada), Jurisdiction, [1998] ICJ Rep 432 at 450, para 38 [Fisheries Jurisdiction].

note 65

122 Maritime Delimitation in the Indian Ocean, supra note 65, Dissenting Opinion of Judge Patrick Robinson at 71, para 19.

note 65

123 Ibid.

124 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Jurisdiction and Admissibility, [1984] ICJ Rep 392 at 418, para 60.

125 Certain Norwegian Loans (France v Norway), [1957] ICJ Rep 9 at 23.

126 Maritime Delimitation in the Indian Ocean, supra note 65, Dissenting Opinion of Judge Patrick Robinson at 72, para 17.

note 65

127 To this effect, see the declarations pursuant to Article 298(1)(a)(i) of UNCLOS of Cuba and Guinea-Bissau, declaring that they reject the jurisdiction of the ICJ for any types of disputes that are covered by Section 2 of Part XV, online: <www.un.org/Depts/los/settlement_of_disputes/choice_procedure.htm>.

128 Maritime Delimitation in the Indian Ocean, supra note 65 at 50, para 129.

note 65

129 Ibid at 51, para 130 [emphasis added].

130 Ibid, Dissenting Opinion of Judge Patrick Robinson at 73, para 22.

131 Ibid at 74, para 24.

132 Ibid at 74, para 25.

133 Maritime Delimitation in the Indian Ocean, supra note 65 at 49, para 125.

note 65

134 Ibid at 51, para 130.

135 Oxman, “Courts and Tribunals,” supra note 21 at 401.

note 21

136 Article 297(2)(a) deals with areas that are exempted from jurisdiction while Article 297(2)(b) relates to applicable compulsory conciliation procedures in regard to disputes under sub-paragraph (a). Article 297(2)(a) provides: “Disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled in accordance with Section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute arising out of: (i) the exercise by the coastal State of a right or discretion in accordance with article 246; or (ii) a decision by the coastal State to order suspension or cessation of a research project in accordance with article 253.”

137 UNCLOS, supra note 9, art 297(1).

note 9

138 Chagos Marine Protected Area (Republic of Mauritius v United Kingdom of Great Britain and Northern Ireland), PCA Case no 2011-03 (18 March 2015) at 119, para 307 [Chagos Marine Protected Area].

139 Southern Bluefin Tuna (Arbitral Tribunal), supra note 33 at para 61.

note 33

140 Stephen Allen, “Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction” (2017) 48:3–4 Ocean Development & Intl L 313 at 316.

141 Article 32 of the VCLT provides supplementary means of interpretation, recourse to which is optional. However, it is settled practice that courts and tribunals refer to the travaux préparatoires to confirm interpretations under the VCLT, supra note 16, art 31, regardless of whether the conclusion thereunder is sufficiently clear.

note 16

142 Ibid, art 31(1).

143 Gudmundur Eiriksson has observed that “[t]he Convention is unique among the major law-making treaties in establishing, as an integral part of its provisions, a comprehensive system for the settlement of disputes. … That such a result was attained represented a reversal of the trend then prevailing in international negotiations.” Gudmundur Eiriksson, The International Tribunal for the Law of the Sea (Leiden: Brill, 2000) at 12. To this effect, the representative of the United States observed on 6 April 1976: “The developing factual (as distinguished from legal) situation in the oceans is one in which every country increasingly believes that it has, in effect, the option of pronouncing and attempting to achieve relevant acquiescence in its interpretation of the law. … Given the current trends in the law of the sea, there is reason to believe the process might continue even if a treaty were widely ratified. In the broadest sense, the purpose of the law of the sea negotiations is to put an end to the direct relationship that such a system entails between the enjoyment of a right and the application of power. A system of compulsory, impartial, third-party adjudication is thus an essential element of the overall structure.Third United Nations Conference on the Law of the Sea, Official Records, vol 5, UN Doc A/CONF.62/SR.61 (1976) at 31, paras 17–18. The representative of Australia stated on 5 April 1976, “many provisions of the convention would be acceptable only if their interpretation and application were subject to expeditious, impartial and binding decisions.” Third United Nations Conference on the Law of the Sea, Official Records, vol 5, UN Doc A/CONF.62/SR.58 (1976) at 9, para 12 [emphasis added].

144 Southern Bluefin Tuna (Arbitral Tribunal), supra note 33 at para 62.

note 33

145 Yet, as Judge Paik has observed, “[t]he methodology and the standard of appreciation to be applied for a definitive finding of jurisdiction cannot be identical with those for a prima facie finding. While ‘plausible connection’ may be enough for prima facie jurisdiction, it falls short for the present case, in which a definitive finding on the Tribunal’s jurisdiction must be made. It should surprise no one that different standards for a jurisdictional link can lead to different conclusions.” M/V “Louisa” (Saint Vincent and the Grenadines v Spain), Judgment, [2013] ITLOS Rep 4 at para 18, Declaration of Judge Paik.

146 ITLOS applied a standard for prima facie jurisdiction first articulated by the ICJ in the Fisheries Jurisdiction cases, which requires a finding that there is a basis upon which jurisdiction on the merits might be founded. Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland; Federal Republic of Germany v Iceland), Interim Measures, [1972] ICJ Rep 15.

147 The relevant part of Article 290(5) reads: “Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, [ITLOS] or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.”

148 Churchill and Lowe have observed that “Article 297(1) provides that no dispute concerning the exercise by a coastal State of its sovereign rights or jurisdiction within its EEZ is subject to ‘the compulsory procedures entailing binding decision’ set out in section 2 of Part XV of LOSC unless it is alleged” that one of the conditions enumerated in paragraph 1 is present. Robin Churchill & Vaughan Lowe, The Law of the Sea, 3rd ed (Manchester: Manchester University Press, 1999) at 455.

149 Oxman has expressed the view that Article 297(1) “establishes the basic rule generally limiting … challenges to the three situations enumerated in that paragraph.” Oxman, “Courts and Tribunals,” supra note 21 at 404.

note 21

150 Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v Chad), [1994] ICJ Rep 6 at 21, para 41.

151 For the “intention test,” see e.g. Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, [1961] ICJ Rep 17 at 31; Aegean Sea, supra note 56 at 39, para 96; Case Concerning Qatar and Bahrain, supra note 56 at 120, para 23; Chagos Marine Protected Area, supra note 138 at 168, para 426.

note 56
note 56
note 138

152 Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, [1950] ICJ Rep 4 at 8.

153 Wolfrum, supra note 60 at 174.

note 60

154 The canon is described as meaning “express mention excludes other items.” Brownlie, supra note 2 at 604. Its relevance for treaty interpretation will, however, depend on the context.

note 2

155 The umpire in the Abu Dhabi Arbitration characterized the canon in the following terms: “If I have a house and a garden and two hundred acres of agricultural land and if I recite this and let to X ‘my house and garden’, it seems obvious that the two hundred acres are excluded from the lease.” Petroleum Development Ltd v Sheikh of Abu Dhabi (1951), 18 ILR 144 at 150.

156 Tokios Tokelés v Ukraine, ICSID Case no ARB/02/18, Decision on Jurisdiction (29 April 2004).

157 However, it is well known that the so-called canons of treaty interpretation are not part of Article 31 of the VCLT. On this issue, see Alain Pellet, “Canons of Interpretation under the Vienna Convention” in Joseph Klingler, Yuri Parkhomenko & Constantinos Salonidis, eds, Between the Lines of the Vienna Convention? Canons and Other Principles of Interpretation in Public International Law (Alphen aan den Rijn: Kluwer, 2019) 1.

158 UNCLOS, supra note 9, art 288(1) [emphasis added].

note 9

159 Allen, supra note 140 at 321.

note 140

160 Chagos Marine Protected Area, supra note 138 at 120, para 308.

note 138

161 Ibid.

162 Ibid at 120, para 309.

163 Ibid at 120, para 310 [emphasis in original].

164 However, some reservations have been expressed in regard to the methodology of the arbitral tribunal in the Chagos Marine Protected Area arbitration. Stephen Allen contends that the arbitral tribunal’s reading of the Virginia Commentary was not comprehensive, as it “glossed over the deep divisions that persisted between the negotiating parties as to the precise terms of Article 297 during the last stage of the Convention’s finalization.” Allen, supra note 140 at 323.

note 140

165 Chagos Marine Protected Area, supra note 138 at 128, para 317.

note 138

166 Ibid at 127–28, para 316 [emphasis added].

167 In the South China Sea Arbitration, the arbitral tribunal recognized that UNCLOS, supra note 9, art 297(1) has been interpreted in two different fashions. South China Sea Arbitration, supra note 15 at 127, para 359.

note 9
note 15

168 UNCLOS, supra note 9, art 296(1)–(2) provides: “1. Any 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. 2. Any such decision shall have no binding force except between the parties and in respect of that particular dispute.” The rule derives from the ICJ Statute, supra note 14, art 59.

note 9
note 14

169 In the South China Sea Arbitration, the applicant expressed in its memorial, which was submitted prior to the Chagos Marine Protected Area award, that “[p]aragraph 1 [of Article 297] excludes from jurisdiction disputes concerning a coastal State’s ‘exercise’ of its sovereign rights and jurisdiction, except those listed in subparagraphs (a)-(c).” South China Sea Arbitration, supra note 15, Memorial of the Philippines, vol 1 (30 March 2014) at para 7.96. Subsequently, in the jurisdictional hearing, the applicant endorsed the view expressed in the Chagos Marine Protected Area award, asserting that “Article 297(1) confirms and expands jurisdiction over environmental disputes, but does not limit it.” South China Sea Arbitration, supra note 15, Transcript of Hearing on Jurisdiction and Admissibility, Day 2 (8 July 2015) at 104.

note 15
note 15

170 Gray, Christine, International Law and the Use of Force, 3rd ed (Oxford: Oxford University Press, 2008) at 9Google Scholar.

171 UNCLOS, supra note 9, art 297(3)(b) provides: “(b) Where no settlement has been reached by recourse to section 1 of this Part, a dispute shall be submitted to conciliation under Annex V, section 2, at the request of any party to the dispute, when it is alleged that: (i) a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered; (ii) a coastal State has arbitrarily refused to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in fishing; or (iii) a coastal State has arbitrarily refused to allocate to any State, under articles 62, 69 and 70 and under the terms and conditions established by the coastal State consistent with this Convention, the whole or part of the surplus it has declared to exist.”

note 9

172 UNCLOS, supra note 9, art 297(3)(a).

note 9

173 Yet, Natalie Klein observes that “Article 297 largely insulates the coastal State from review when it comes to fisheries.” Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005) at 175–76.

174 Virginia Commentary, supra note 24, vol 2 at 105 [emphasis added].

note 24

175 Ibid.

176 UNCLOS, supra note 9, art 297(3)(a).

note 9

177 Dispute Concerning Coastal State Rights, supra note 50, Preliminary Objections of the Russian Federation, vol 1 (19 May 2018) at 61, para 182 [Dispute Concerning Coastal State Rights (Preliminary Objections of Russia)].

note 50

178 Southern Bluefin Tuna (Arbitral Tribunal), supra note 33 at para 61.

note 33

179 Dispute Concerning Coastal State Rights, supra note 50 at 116, para 402.

note 50

180 Chagos Marine Protected Area, supra note 138, Joint Dissenting Opinion of Judges James Kateka and Rüdiger Wolfrum at 15, para 58.

note 138

181 Ibid.

182 Ibid at 15, paras 56–57.

183 Chagos Marine Protected Area, supra note 138, Transcript of Hearing on Jurisdiction and Merits, Day 4 (25 April 2014) at 477, para 35 [emphasis in original].

note 138

184 Chagos Marine Protected Area, supra note 138 at 103, para 257.

note 138

185 Ibid at 116, para 297.

186 Ibid at 117, para 300. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 3 (entered into force 11 December 2001).

187 Chagos Marine Protected Area, supra note 138 at 116, para 297.

note 138

188 Article 62(2) of UNCLOS provides: “The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.”

189 Barbados v Trinidad and Tobago, supra note 61 at 85, para 277.

note 61

190 The arbitral tribunal observed that the matter was beyond the jurisdiction allowed under Article 297(3)(a) but “both Parties have requested that the Tribunal express a view on the question of Barbadian fishing within the EEZ of Trinidad and Tobago.” Barbados v Trinidad and Tobago, ibid at 87, para 283.

191 Ibid.

192 Chagos Marine Protected Area, supra note 138, Joint Dissenting Opinion of Judge James Kateka and Judge Rüdiger Wolfrum at 15, para 58.

note 138

193 South China Sea Arbitration (Philippines v China), PCA Case no 2013-18, Award on Merits (12 July 2016) at 279, para 695 [South China Sea Arbitration (Merits)].

194 UNCLOS, supra note 9, art 56(2).

note 9

195 Lassa Oppenheim, International Law: A Treatise, 2nd ed (London: Longmans, Green and Company, 1912) at 220.

196 In Railway Traffic Between Lithuania and Poland, the PCIJ observed in a now famous ruling that “an obligation to negotiate does not imply an obligation to reach an agreement.” Railway Traffic Between Lithuania and Poland (1931), Advisory Opinion, PCIJ (Ser A/B) No 42 at 16. Francisco Vicuna has characterized the obligation under UNCLOS, supra note 9, art 63(1) as follows: “There is no obligation to enter into such agreements as evidenced by the expression ‘shall seek.’” Francisco Orrego Vicuna, The Exclusive Economic Zone–Regime and Legal Nature under International Law (Cambridge: Cambridge University Press, 1989) at 61. In so far as concerns the precise scope of the obligation under Article 63(1)–(2) for the coastal State, see Bjørn Kunoy, “The Ambit of Pactum de Negotiatium in the Management of Shared Fish Stocks: A Rumble in the Jungle” (2012) 11 Chinese J Intl L 689.

note 9

197 Gilbert Guillaume, “Le précédent dans la justice et l’arbitrage international” (2010) 137:3 JDI 685 at 690.

198 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, 2 April 2015, [2015] ITLOS Rep 4, Separate Opinion of Judge Jin-Hyun Paik at 117, para 37 [Request for Advisory Opinion by SRFC].

199 Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation), Provisional Measures, Order of 25 May 2019, Separate Opinion of Judge Gao at 5, para 18 [Case Concerning Ukrainian Naval Vessels].

200 UNCLOS, supra note 9, art 288(1).

note 9

201 Certain German Interests in Polish Upper Silesia (Germany v Poland) (1925), PCIJ (Ser A) No 6 at 18. On incidental powers, see also Prosecutor v Dusko Tadic, ICTY Case no IT-94-I_AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) at paras 20–22.

202 Chagos Marine Protected Area, supra note 138 at 90, para 220.

note 138

203 Nuclear Tests (New Zealand v France), [1974] ICJ Rep 457 at 466, para 30 [Nuclear Tests].

204 Chagos Marine Protected Area, supra note 138 at 89, para 217.

note 138

205 Ibid at 90, para 219.

206 Ibid, Joint Dissenting Opinion of Judges James L Kateka and Rüdiger Wolfrum at 6–12.

207 Chagos Marine Protected Area, supra note 138 at 90, para 221.

note 138

208 Ibid at 87, para 211.

209 Ibid.

210 On this issue, see Whensheng Qu, “The Issue of Jurisdiction over Mixed Disputes in the Chagos Marine Protection Area Arbitration and Beyond” (2016) 47:1 Ocean Dev & Intl L 40.

211 “Enrica Lexie” Incident (Italy v India), PCA Case no 2015-28 (21 May 2020) at 62, para 233.

212 South China Sea Arbitration, supra note 15 at 58, para 150. See also Nuclear Tests, supra note 203 at 466, para 30; Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, [1995] ICJ Rep 288 at 304, para 55.

note 15
note 203

213 Fisheries Jurisdiction, supra note 121 at 448, para 30.

note 121

214 Nuclear Tests, supra note 203 at 466, para 30.

note 203

215 Fisheries Jurisdiction, supra note 121 at 448, para 31.

note 121

216 In Fisheries Jurisdiction, the ICJ observed that, in order to identify its task in any proceedings, “[i]t is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties.” Fisheries Jurisdiction, supra note 121 at 448, para 30.

note 121

217 South China Sea Arbitration, supra note 15 at 59, para 153.

note 15

218 Ibid at 60, para 153.

219 Ibid at 61, para 156.

220 South China Sea Arbitration (Merits), supra note 193 at 85, para 204.

note 193

221 Stefan Talmon notes in this regard that establishing entitlements to maritime features in areas of overlapping claims “necessarily entails delimitation.” Stefan Talmon, “The South China Sea Arbitration: Is There a Case to Answer?” in Stefan Talmon & Bing Bing Jia, eds, The South China Sea Arbitration: A Chinese Perspective (Oxford: Hart Publishing, 2014) 15 at 56.

222 South China Sea Arbitration, supra note 15 at 61, para 156.

note 15

223 Commentators have observed elsewhere that the claims of the applicant in the South China Sea Arbitration “constitute in essence one big dispute on the delimitation.” Sienhoo Yee, “The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections” (2014) 13 Chinese J Intl L 708.

224 Ministry of Foreign Affairs, People’s Republic of China, Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines (30 October 2014), Annex 649 to South China Sea Arbitration (Merits), supra note 193.

note 193

225 The arbitral tribunal noted that the English text of Article 298(1)(a)(i) could be understood to mean that the exception only applies to delimitations involving historic bays or titles, whereas the remaining official texts do not provide such ambiguity. The arbitral tribunal favoured the broader understanding under the texts other than the English version, as this “best reconciles the different versions.” South China Sea Arbitration (Merits), supra note 193 at 92, para 216.

note 193

226 Ibid at 96, para 225.

227 Ibid at 96, para 226.

228 Ibid at 86–92, paras 207–14.

229 Ibid at 97, para 228.

230 Ibid at 61, para 157.

231 Ibid.

232 The arbitral tribunal observed that taking into account “China’s repeated invocation of ‘rights formed in the long historical course’ and its linkage of this concept with the ‘nine-dash line’ indicates that China understands its rights to extend, in some form, beyond the maritime zones expressly described in the Convention.” Ibid at 86, para 207.

233 The arbitral tribunal considered the following maritime features as low-tide elevations: (1) Hughes Reef, (2) Gaven Reef (South), (3) Subi Reef, (4) Mischief Reef, and (5) Second Thomas Shoal. Ibid at 174, para 383.

234 Ibid at 260, para 646.

235 Ibid at 260, para 648.

236 Chagos Marine Protected Area, supra note 138 at 90, para 221.

note 138

237 South China Sea Arbitration, supra note 15 at 59, para 153.

note 15

238 Dispute Concerning Coastal State Rights (Preliminary Objections of Russia), supra note 177 at 3, para 7.

note 177

239 Dispute Concerning Coastal State Rights, supra note 50 at 47, para 152.

note 50

240 Ibid.

241 Ibid at 56, para 185.

242 Dispute Concerning Coastal State Rights, supra note 50, Written Observations and Submissions of Ukraine on Jurisdiction (27 November 2018) at 19, para 41 [Dispute Concerning Coastal State Rights, Ukraine’s Written Observations].

note 50

243 Ibid at 23, para 51.

244 Ibid at 26, para 58.

245 Ibid at 27, para 60.

246 Dispute Concerning Coastal State Rights (Preliminary Objections of Russia), supra note 177 at 21, para 58.

note 177

247 For an illustrative list, see Robert Geib, “Russia’s Annexation of Crimea: The Mills of International Law Grind Slowly but They Do Grind” (2015) 91 Intl Leg Studies 425; Christian Maxsen, “The Crimea Crisis: An International Law Perspective” (2014) 74 Heidelberg J Intl L 367; Antonello Tancredi, “The Russian Annexation of the Crimea: Questions Relating to the Use of Force” (2014) 1 Questions Intl L 5.

248 Dispute Concerning Coastal State Rights, supra note 50 at 47, para 152.

note 50

249 Ibid at 48–49, para 156.

250 Ibid at 49, para 156.

251 The ILC Articles on State Responsibility, supra note 6, art 41 provide that “[n]o State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.”

note 6

252 UNGA Resolution 68/262 (27 March 2014) calls on “all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status.”

253 Dispute Concerning Coastal State Rights, supra note 50 at 54, para 176.

note 50

254 Ibid at 55, para 175.

255 Ibid at 55, para 178.

256 Ibid at 57, para 188.

257 In the now famous Mavrommatis decision, the PCIJ observed that a dispute “is a disagreement on a point of law or fact, a conflict of legal views or of interests” between the disputing parties. Mavrommatis Palestine Concessions (Greece v United Kingdom)(1924), PCIJ (Ser A) No 2, at 11.

258 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction and Admissibility, [2016] ICJ Rep 255 at 269, para 34.

259 Ibid at 270, para 36.

260 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, [1962] ICJ Rep 319 at 328 [South West Africa Cases].

261 Dispute Concerning Coastal State Rights, supra note 50 at 57, para 188 [emphasis added].

note 50

262 Ibid [emphasis added].

263 Ibid at 57, para 190.

264 Mauritius v Maldives, supra note 23.

note 23

265 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, [2019] ICJ Rep 95.

266 Ibid at 149, para 183(3) [emphasis added].

267 Ibid at 149, para 183(4) [emphasis added]

268 Request for Advisory Opinion by SRFC, supra note 198 at 26, para 76.

note 198

269 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, [1950] ICJ Rep 65 at 71.

270 Mauritius v Maldives, supra note 23 at 51, para 168.

note 23

271 Ibid at 53, para 173.

272 Ibid.

273 Ibid at 61, para 202.

274 Ibid at 62, para 203.

275 On res judicata, see Eliahu Harnon, “Res Judicata and Identity of Actions: Law and Rationale” (1966) 1 Israel LR 539. See also Hersch Lauterpacht, The Development of International Law by the International Court, 2nd ed (London: Stevens & Sons, 1958) at 325–26; Derek Bowett, “Res Judicata and the Limits of Rectification of Decisions by International Tribunals” (1996) 8 African J Intl & Comparative L 577 at 577–79.

276 Shahabuddeen, Mohamed, Precedent in the World Court: Hersch Lauterpacht Memorial Lectures (Cambridge: Cambridge University Press, 1996) at 97103CrossRefGoogle Scholar.

277 This understanding was epitomized in the Land and Maritime Boundary case, in which the ICJ observed that “[t]here can be no question of holding [a state] to decisions reached by the Court in previous cases” that do not have binding effect for that state: “The real question is whether, in [the current] case, there is cause not to follow the reasoning and conclusions of earlier cases.” Land and Maritime Boundary between Cameroon and Nigeria, supra note 14 at 292, para 28. Likewise in the Croatian Genocide case, the ICJ observed that “[w]hile some of the facts and the legal issues dealt with in those cases arise also in the present case, none of those decisions were given in proceedings between the two Parties to the present case (Croatia and Serbia), so that, as the Parties recognize, no question of res judicata arises (Article 59 of the [ICJ Statute]). To the extent that the decisions contain findings of law, the Court will treat them as it treats all previous decisions: that is to say that, while those decisions are in no way binding on the Court, it will not depart from its settled jurisprudence unless it finds very particular reasons to do so.” Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, [2008] ICJ Rep 412 at 428, para 53.

note 14

278 Consistent with the principle that the land dominates the sea, entitlement to maritime areas is a necessary corollary of sovereign title to terra firma. The ICJ has observed in this regard that “maritime rights derive from the coastal State’s sovereignty over the land, a principle which can be summarized as ‘the land dominates the sea’…. Following this approach, sovereignty over the islands needs to be determined prior to and independently from maritime delimitation.” Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), [2007] ICJ Rep 659 at 699, para 126.

279 Upon the adoption of UNGA Resolution 73/295, 22 May 2019, seeking an “advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965,” the United Kingdom representative declared that “[t]he United Kingdom has no doubt about our sovereignty over the British Indian Ocean Territory.” UNGA Resolution 73/295, UNGAOR, 73rd Sess, UN Doc A73/PV.83 (22 May 2019), UN Doc A73/PV.83 (22 May 2019) at 25.

280 South West Africa Cases, supra note 260 at 328.

note 260

281 Dispute Concerning Coastal State Rights, supra note 50 at 57, para 188 [emphasis added].

note 50

282 It has been observed that twenty-seven states have made declarations pursuant to Article 298(1)(b) in regard to the military activities exception, which witnesses the sensitivity that this particular matter is susceptible to raise. Case Concerning Ukrainian Naval Vessels, supra note 199, Separate Opinion of Judge Gao at 3, para 11.

note 199

283 UNCLOS, supra note 9, art 298(1)(b).

note 9

284 However, Article 19(2) can, for purposes of determining the application of Article 298(1)(b), be considered relevant to the extent that a vessel purporting to pass through the territorial sea undertakes any of the activities listed in the former. See Case Concerning Ukrainian Naval Vessels, supra note 199, Separate Opinion of Judge Jesus at 3–5.

note 199

285 Case Concerning Ukrainian Naval Vessels, supra note 199, Separate Opinion of Judge Gao at 5, para 18.

note 199

286 Talmon, supra note 221 at 57–58.

note 221

287 Klein, supra note 173 at 291–92.

note 173

288 South China Sea Arbitration (Merits), supra note 193 at 455, para 1158 [emphasis in original].

note 193

289 Ibid.

290 Dispute Concerning Coastal State Rights, supra note 50 at 98, para 338.

note 50

291 UNCLOS, supra note 9, art 298(1)(b).

note 9

292 Dispute Concerning Coastal State Rights, Ukraine’s Written Observations, supra note 242 at 57, para 125.

note 242

293 Ibid.

294 Dispute Concerning Coastal State Rights, supra note 50 at 95, para 330.

note 50

295 Ibid.

296 Ibid.

297 Ibid at 96, para 334.

298 Case Concerning Ukrainian Naval Vessels, supra note 199 at 17, para 64.

note 199

299 South China Sea Arbitration (Merits), supra note 193 at 456, para 1161.

note 193

300 Ibid.

301 Ibid.

302 Dispute Concerning Coastal State Rights, supra note 50 at 95, para 330.

note 50

303 Case Concerning Ukrainian Naval Vessels, supra note 199.

note 199

304 Dispute Concerning Coastal State Rights, supra note 50 at 97, para 336.

note 50

305 Ibid.

306 The Ukrainian statement of claim claimed: “In seizing and detaining the Ukrainian naval vessels the ‘Berdyansk,’ the ‘Yani Kapu,’ and the ‘Nikopol,’ Russia breached its obligations to accord foreign naval vessels complete immunity under Articles 32, 58, 95 and 96 of the Convention; In detaining the 24 crewmen of ‘Berdyansk,’ the ‘Yani Kapu,’ and the ‘Nikopol,’ and initiating criminal charges against the crewmen, Russia further breached its obligations under Article 32, 58, 95 and 96 of the Convention.” Case Concerning Ukrainian Naval Vessels, supra note 199 at 6, para 22.

note 199

307 Ibid at 19–20, paras 71–76.

308 ARA Libertad (Argentina v Ghana), Provisional Measures, Order of 15 December 2012, [2012] ITLOS Rep 332 at 348, para 94. See also the observation of Kraska, according to whom “[w]arship immunity is based on the principle of State sovereignty and legal equality among States.” James Kraska, “Military Operations” in Rothwell et al, supra note 21, 866 at 872.

note 21

309 South China Sea Arbitration (Merits), supra note 193 at 456, para 1161.

note 193

310 Case Concerning Ukrainian Naval Vessels, supra note 199 at 18–20, paras 68–77.

note 199

311 Ibid at 12, para 32.

312 Ibid at 17–18, para 66.

313 Ibid at 18, para 67.

314 Ibid at 19, para 72.

315 Ibid at 19, para 73.

316 Ibid at 20, para 74.

317 Ibid, Memorandum of Russian Federation (7 May 2019) at 10, para 28.

318 Case Concerning Ukrainian Naval Vessels, supra note 199, Separate Opinion of Judge Jesus at 3–5.

note 199

319 South China Sea Arbitration, supra note 15, Transcript of Hearing on Jurisdiction and Admissibility, Day 2 (8 July 2015) at 75–76.

note 15

320 Ibid at 82–83.

321 South China Sea Arbitration (Merits), supra note 193 at 409–10, paras 1019–22.

note 193

322 Ibid at 413, para 1028.

323 Case Concerning Ukrainian Naval Vessels, supra note 199 at 17, para 65.

note 199

324 Dispute Concerning Coastal State Rights, supra note 50, Reply of the Russian Federation (28 January 2019) at 58, para 145.

note 50

325 See ibid at 59, para 147.

326 Ibid.

327 Ibid at 55, para 137.

328 See Dispute Concerning Coastal State Rights, Ukraine’s Written Observations, supra note 242 at para 130.

note 242

329 UNCLOS, supra note 9, art 298(1)(b).

note 9

330 Reliance on the second enumerated exception in Article 298(1)(b) is tantamount to a recognition that the dispute relates to interpretation or application of Article 297(2)–(3). In the award on jurisdiction in the Arctic Sunrise Arbitration, the arbitral tribunal observed that it followed from the respondent’s reliance on the law enforcement exception in Article 298(1)(b) that “Russia considers that the present dispute falls within that category of disputes and is, therefore, excluded from the jurisdiction of the Tribunal.” Arctic Sunrise Arbitration (Kingdom of Netherlands v Russian Federation), PCA Case no 2014-02, Award on Jurisdiction (26 November 2014) at 12–13, para 67 [Arctic Sunrise].

331 According to the applicant, it “makes no claims regarding China’s exercise of its rights … to regulate marine scientific research … or the exercise of sovereign rights with respect to living resources in China’s EEZ.” South China Sea Arbitration, supra note 15, Memorial of the Philippines, vol 1 (30 March 2014) at para 7.154.

note 15

332 Ibid.

333 Arctic Sunrise, supra note 330 at 13, para 69.

note 330

334 Ibid at 14, para 72.

335 South China Sea Arbitration (Merits), supra note 193 at 178, para 395.

note 193

336 Dispute Concerning Coastal State Rights, supra note 50 at 103, para 356.

note 50

337 Ibid.

338 Southern Bluefin Tuna (Arbitral Tribunal), supra note 33 at para 62.

note 33

339 Virginia Commentary, supra note 24, vol 5, para XV.4.

note 24

340 Case Concerning the Payment in Gold of Brazilian Federal Loans Contracted in France (France v Brazil) (1929), PCIJ (Ser A) No 21 at 124.

341 South China Sea Arbitration, supra note 15 at 86, para 223.

note 15

342 Dispute Concerning Coastal State Rights, supra note 50 at 138, para 483.

note 50

343 Barbados v Trinidad and Tobago, supra note 61 at para 200(ii).

note 61

344 Chagos Marine Protected Area, supra note 138 at 90, para 221.

note 138

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The Scope of Compulsory Jurisdiction and Exceptions Thereto under the United Nations Convention on the Law of the Sea
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