Introduction
State consent is generally considered a quintessential factor in the formation of international law,Footnote 1 from which premise the Permanent Court of International Justice (PCIJ) in a landmark caseFootnote 2 pronounced that “[r]estrictions on the independence of States cannot … be presumed.”Footnote 3 While the exact contours of this obiter dictum remain forever vague,Footnote 4 it is indisputable that consent remains, if not an essential, then at least a critical component in the formation of international law.Footnote 5 Consent is also the guarantor of sovereign equality among sovereign states. Yet international law is not only composed of hard law texts. Soft law instruments, which do not necessarily require state consent, play a prominent role in international law.Footnote 6 The sparse case law of the International Court of Justice (ICJ) that relies on the above-mentioned principle in the Lotus case supports an understanding that neither a strict interpretation of the Lotus principle nor a “general presumption of legality in the absence of a prohibition accords with the court’s view of international law today.”Footnote 7 Yet, due to the genome of international law — that is, a legal order that is primarily, although not exclusively, composed of sovereign subjects — the general lack of coercive enforcement mechanisms in international law, at least in so far as concerns sovereign states, is the necessary corollary of a legal regime that is based on state consent. As a result, multilateral conventions framed and adopted according to a consensus rule will often include ambiguous provisions regarding subject matters that, for various reasons, may be seen as delicate. In the now famous observation of Philip Allot, this phenomenon lends support to characterizing a treaty as “a disagreement reduced to writing.”Footnote 8 The relevant parts of the United Nations Convention on the Law of the Sea (UNCLOS) that deal with compulsory jurisdiction are no exceptions in this regard.Footnote 9
According to Section 2 of Part XV of UNCLOS, “any dispute concerning the interpretation or application of this Convention” can be submitted by any party to the dispute to the court or tribunal having jurisdiction under this section.Footnote 10 UNCLOS does not allow any reservations,Footnote 11 but the compulsory dispute settlement mechanisms in the convention “n’aient qu’une fonction supplétive vis-à-vis de n’importe quel mécanisme obligatoire de règlement en vigueur entre les parties.”Footnote 12 Section 3 of Part XV of UNCLOS provides for general exceptions and also an exhaustive list of facultative exceptions to compulsory jurisdiction under Section 2. The relevant provisions of Section 3 of Part XV are not deprived of ambiguity, requiring the meticulous attention of courts and tribunals seized under Section 2 of Part XV, given that “jurisdiction only exists within the limits within which it has been accepted.”Footnote 13 This point of fact is certainly a reason for which international courts and tribunals have taken different views on critical provisions regarding the compulsory dispute settlement mechanism, including the general and facultative exceptions thereto.
There is no exception as such to the fundamental principle enshrined in Article 59 of the Statute of the International Court of Justice (ICJ Statute).Footnote 14 International law is not based on stare decisis, notwithstanding that ensuring consistency with previous interpretations of treaty provisions is deemed critical for ensuring the legitimacy of international law — particularly in so far as concerns clauses in regard to jurisdiction since the exercise of jurisdiction necessarily presumes the existence of jurisdiction. Yet critical provisions in regard to the limits of compulsory jurisdiction under UNCLOS have been subject to diametrically opposite constructions, some of which have been justified on the basis of a “better view,”Footnote 15 although interpretation in the relevant cases is governed by customary treaty interpretation rules, as reflected in the Vienna Convention on the Law of Treaties (VCLT).Footnote 16 Elsewhere it has been observed that “Part XV is excessively complicated.”Footnote 17 Be that as it may, such differences are susceptible to raise concerns as they are, per se, capable of “run[ning] counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent,” notwithstanding the complexity of the provisions in question.Footnote 18 Further, where international courts and tribunals take conflicting views on critical jurisdictional provisions in multilateral treaties, it will indubitably encourage disobedience to the judgments and awards of international courts and tribunals as it may contravene “the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.”Footnote 19 It should not be forgotten that, in the international legal order, where sovereign states are the primary actors, the final and binding nature of judgments and awards of international courts and tribunals is premised on the fundamental presumption that these courts and tribunals are “deemed to know what the law is.”Footnote 20
Article 297 of UNCLOS provides an exhaustive list of matters that are not subject to the compulsory dispute settlement mechanism. In addition, Article 298 allows states to make use of optional exceptions to the compulsory dispute settlement mechanism in regard to some sensitive matters that are also exhaustively enumerated. The elaboration of optional exceptions to the compulsory system under Section 2 was the only means of reaching consensus on the extension of compulsory dispute settlement to disputes relating to the material scope of those exceptions. Recently, a number of cases have been referred to international courts and tribunals that have addressed questions that hitherto have not been subject to any dispute settlement under Part XV of UNCLOS, including matters falling within Article 298 of the convention.Footnote 21 In this light, this article addresses the scope of the limits to the compulsory dispute settlement mechanism under UNCLOS, which, by necessary implication, also calls for determining the scope of the compulsory jurisdiction mechanism itself. The purpose is to determine on an objective basis the lateral scope of matters that are beyond the compulsory dispute settlement mechanism in the convention.
First, the renvoi mechanisms in Articles 281 and 282 of UNCLOS, respectively, will be examined. It will be concluded that the contours of these provisions are difficult to carve out, especially in light of the relevant findings of courts and tribunals competent to resolve disputes that involve the interpretation and application of these provisions. The decisions are not consistent in a number of important respects. This is particularly the case regarding Article 281, which has been characterized as a “super provision,”Footnote 22 whereas the interaction of Article 282 of UNCLOS with Article 36(2) of the ICJ Statute remains not fully clear. Second, the general limitations under Article 297 will be examined, an analysis that will focus in particular on Articles 297(1) and 297(3)(a). It will be concluded that the recent findings of courts and tribunals, while not entirely consistent, are contributing to a clearer understanding of these complex provisions. Third, the scope of the optional exceptions under Article 298(1) will be examined in light of the recent rulings of international courts and tribunals competent to rule on these critical provisions for the purposes of Part XV of UNCLOS. It will be concluded that a coherent understanding of the scope of the exceptions under Article 298(1)(a)(i) appeared to have emerged but that this must now be questioned in light of the recent findings of the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean. Footnote 23 Likewise, interpretations of the exceptions in regard to military activities under Article 298(1)(b) do not appear to be fully coherent.
Renvois to Other Procedures
The establishment of a compulsory and “comprehensive”Footnote 24 dispute settlement mechanism was considered a major achievement in the adoption of the final text during the third United Nations Conference on the Law of the Sea (Third Conference).Footnote 25 It was by all means part and parcel of the so-called package deal to which no reservations were available except if explicitly authorized by UNCLOS. Footnote 26 This stands in stark contrast to the 1958 Geneva Conventions,Footnote 27 which have no compulsory dispute settlement mechanisms but only an optional protocol,Footnote 28 allowing states parties to voluntarily accept compulsory jurisdiction in regard to the interpretation or application of those conventions.Footnote 29 While Part XV of UNCLOS establishes a comprehensive regime of compulsory dispute settlement, this does not mean that states parties to the convention are not able to have recourse to dispute settlement mechanisms other than the procedures under Part XV of UNCLOS. However, the renvoi provisions in Part XV appear difficult to construe and have given rise to varying understandings. As we shall see, international courts and tribunals share different views regarding whether the triggering of Article 281 may be achieved by a mere implicit recognition to this effect or whether an explicit statement is required. More importantly, it will be shown that the interpretation that courts and tribunals appear to give Article 281 results in a meaning that “was never intended.”Footnote 30 Finally, the scope of Article 282 of UNCLOS will be examined, including its interactions with declarations made under Article 36(2) of the ICJ Statute.
a formalistic requirement
According to Article 281(1) of UNCLOS, states parties may “agree[] to seek settlement of the dispute by a peaceful means of their own choice.”Footnote 31 Accordingly, states parties apparently by entering into an agreement or understanding may decide to waive procedures under Part XV of UNCLOS. In these situations, the procedures provided for in Part XV “apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.”Footnote 32
It is well known that in the Southern Bluefin Tuna case, the arbitral tribunal constituted under UNCLOS Annex VII considered an implicit exclusion sufficient for the purposes of setting aside Part XV of UNCLOS. Footnote 33 It observed that:
The effect of this express obligation to continue to seek resolution of the dispute by the listed means of Article 16(1) [of the Convention for the Conservation of Southern Bluefin Tuna] is not only to stress the consensual nature of any reference of a dispute to either judicial settlement or arbitration. That express obligation equally imports, in the Tribunal’s view, that the intent of Article 16 is to remove proceedings under that Article from the reach of the compulsory procedures of Section 2 of Part XV of UNCLOS.Footnote 34
The award was diametrically opposed to the provisional measures ruling of ITLOS, which held that “the fact that the Convention of 1993 applies between the parties does not preclude recourse to the procedures in Part XV, Section 2 of [UNCLOS].”Footnote 35 Yet, in the view of arbitral tribunal, “the absence of an express exclusion of any procedure is not decisive.”Footnote 36
The construction of the Annex VII arbitral tribunal has been much criticized,Footnote 37 including by Judge Sir Kenneth Keith who observed that the term “exclude” in Article 281 must require an “opting out” from Part XV rather than a positive act of “opting in.”Footnote 38 Yet, interestingly, as this observation appears to be overlooked by commentators, courts, and tribunals, the Virginia Commentary provides in this regard that “[t]he last phrase of article 281, paragraph 1, envisages the possibility that the parties, in their agreement to resort to a particular procedure, may also specify that this procedure shall be an exclusive one.”Footnote 39 The use of the facultative expression “may” would appear to support the understanding that exclusivity need not be explicit but may be implicit in line with the conclusions of the arbitral tribunal in Southern Bluefin Tuna. Footnote 40 Yet subsequent decisions appear non-equivocal as to the requirement of explicit exclusion.Footnote 41
Article 281 of UNCLOS was given ample consideration in the South China Sea Arbitration. Footnote 42 In so far as concerns the implications, if any, of the absence of an express exclusion of other procedures, the arbitral tribunal noted that the agreementFootnote 43 on which China based its position in regard to the application of Article 281 of UNCLOS “states that the Parties undertake to resolve their disputes ‘without resorting to the threat or use of force’, [but] it does not say that the Parties undertake to resolve their disputes ‘without resorting to third-party settlement’. It could have, but it does not.”Footnote 44 It therefore failed to constitute an agreement under Article 281. The implication of this reasoning is that any agreement that does not explicitly exclude the application of Part XV could not constitute an agreement within the meaning of Article 281(1) of UNCLOS. This arises since, in the view of the arbitral tribunal, “Article 281 requires some clear statement of exclusion of further procedures”Footnote 45 in order for “Article 281 to present an obstacle for the Tribunal’s jurisdiction.”Footnote 46 The arbitral tribunal observed further that an agreement under Article 281 can constitute a waiver of Part XV of UNCLOS — that is, making inoperative the procedures under Part XV — provided that three cumulative criteria are fulfilled. According to the arbitral tribunal, Part XV will only be “available if (i) no settlement has been reached by recourse to the agreed means, (ii) the Parties’ agreement does not exclude any further procedure, and (iii) any agreed time limits have expired.”Footnote 47 These criteria are listed as exhaustive and cumulative. They are cumulative since, prior to listing the third criterion, the conjunction “and” appears.Footnote 48 The third criterion relates to Article 281(2), which does not call for further attention, whereas the first and second criteria relate to Article 281(1). Of these, the first criterion is somewhat axiomatic as Section 2 will obviously only be available to address outstanding disputes. Thus, the second criterion is critical and, in fact, provides the bulk of different interpretations and understandings.
In the South China Sea Arbitration, having concluded that the instrument on which China sought to rely was not a binding agreement and therefore per se could not constitute an agreement within the perimeters of Article 281, the arbitral tribunal had nevertheless continued with the exercise of determining whether an explicit exclusion is required, for the sake of “completeness.”Footnote 49 In the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait,Footnote 50 in contrast, the Annex VII arbitral tribunal concluded that the alleged Article 281 agreement did not contain “dispute resolution clauses” and, therefore, that “it is not necessary for the Arbitral Tribunal [to determine] whether its jurisdiction is excluded pursuant to Article 281 of the Convention.”Footnote 51 Based on principles of judicial economy, it could not be expected that the arbitral tribunal would undertake further analysis of the issue of express exclusivity. Yet, in light of the contradictory findings of courts and tribunals on this question, it nevertheless could have been expected that the arbitral tribunal might undertake this supplementary analysis for the sake of “completeness,” to use the expression of the arbitral tribunal in the South China Sea Arbitration,Footnote 52 particularly since the latter held this to be a “better view” in comparison to that expressed in previous decisions.Footnote 53 The omission to do so could be seen to support an understanding that this question is not finally settled. Further, in its conclusions, the arbitral tribunal in the Dispute Concerning Coastal State Rights did not rely explicitly or implicitly on the three criteria articulated in the South China Sea Arbitration. Footnote 54 Accordingly, it remains unknown whether there was agreement on this test among the arbitrators in the Dispute Concerning Coastal State Rights.
It is noteworthy that express exclusion appears to have the upper hand in the interpretation of Article 281 — at least in so far as concerns making inoperative the procedures under Section 2 of Part XV of UNCLOS. Elsewhere it has been observed on this particular issue that “seemingly any treaty relating to ocean matters … must have an explicit exclusion of UNCLOS dispute settlement. … If it does not, the parties’ preferred choice of dispute settlement under that treaty may not be upheld under Article 281.”Footnote 55 This formalist condition appears to disregard the object and purpose of establishing a comprehensive dispute settlement mechanism, which rather emphasizes the intentions of the partiesFootnote 56 and therefore appears to stand at odds with the above requirement of explicit or implicit exclusiveness. It is fair to suggest that such formalism is alien to international law, which largely relies on normativity as a development tool and is epitomized by the general lack of any formalistic requirements for an agreement to constitute a treaty under international law.Footnote 57 Whatever the appellation of a document, its classification as an agreement that is governed by the VCLT takes into account its various provisions, as well as the “particular circumstances in which it was drawn up,” with a view to determining whether it “merely give[s] an account of discussions and summarise[s] points of agreement and disagreement” or whether the document “enumerate[s] commitments to which the parties have consented” and therefore “create[s] rights and obligations for parties under international law.”Footnote 58 By the same token, the fact that a treaty is not made public pursuant to the relevant procedures under Article 102 of the Charter of the United Nations “does not actually have any consequence for the actual validity of the agreement.”Footnote 59 Finally, to attribute such importance to explicit exclusiveness of an alternative procedure is simplistic and appears to disregard matters of substance in regard to the interpretation and application of Article 281. It is noteworthy that in a paper published subsequent to the award on jurisdiction and admissibility in the South China Sea Arbitration, Judge Rüdiger Wolfrum, one of the arbitrators participating in the award, observed that Article 281 of UNCLOS “raises several interpretative questions which still require a solution by the international courts and tribunals concerned.”Footnote 60 In point of fact, whether there are particular requirements to fulfill in regard to the alternative dispute settlement procedure under the first criterion in the South China Sea Arbitration appears to be one such question, which will be addressed below.
nature of procedures
In Barbados v Trinidad and Tobago, the arbitral tribunal observed that where the parties to a dispute have chosen a particular procedure under Article 281, “their obligation to follow the procedures provided in Part XV will arise where no settlement has been reached through recourse to the agreed means and where their agreement does not exclude any further procedures.”Footnote 61 Since the agreement in question “did not exclude any further procedures, and since their chosen peaceful settlement procedure — negotiations — failed to result in a settlement of their dispute,” the relevant provisions under Part XV allowed the commencement of arbitral proceedings thereunder.Footnote 62 The conditions in question appear cumulative. The question arises whether the presence of an exclusive provision, but the absence of settlement, would nonetheless result in making Part XV inoperative. In its observations on the scope and nature of Article 281 of UNCLOS, including its structure, the arbitral tribunal in the South China Sea Arbitration essentially observed that Article 281 “requires an ‘opting out’ of Part XV procedures.”Footnote 63 Making Part XV of UNCLOS inoperative is not contingent upon the nature of the procedures established by the agreement but, rather, upon the fulfilment of essentially one formal criterion of exclusion. Following this logic of the arbitral tribunal implies recognizing that two or more parties can make the entire functioning of Part XV of UNCLOS redundant if only they intend — explicitly —the procedure to which reference is made in the last phrase of Article 281 to be exclusive, notwithstanding the substantive undertaking of any such exclusive procedure.Footnote 64
This understanding also appears to permeate the reasoning of the ICJ in its decision in Somalia v Kenya (Maritime Delimitation). Footnote 65 According to the ICJ, states parties to UNCLOS are free to agree between themselves “to a means of settlement that does not lead to a binding decision of a third party (e.g., conciliation). However, if no settlement has been reached by recourse to such means, either of those states parties may submit the dispute to the court or tribunal having jurisdiction under Section 2 of Part XV, unless their agreement to such means of settlement excludes the procedures entailing a binding decision in Section 2 (Art. 281, para. 1).”Footnote 66 Consequently, where the exclusiveness of such a procedure appears explicitly, it is not relevant whether the procedures in question are not vested with powers to settle the dispute. This understanding, which appears to contrast with the observations of Bernard Oxman on this particular question,Footnote 67 calls for two observations.
First, given the particular formulation of the first of the three criteria established by the arbitral tribunal in the South China Sea Arbitration,Footnote 68 it may be inferred that the settlement procedure in question is not of the adjudicative kind. The reasons for this are twofold: on the one hand, the provision makes use of the expression “seek to settle,” while, on the other hand, adjudicative procedures per se are meant to resolve a dispute.Footnote 69 In point of fact, an international court or tribunal exercising its competence is obligated to “exercise that jurisdiction to its full extent.”Footnote 70 The forum is compelled to “decide the whole of the petitum entrusted to it.”Footnote 71 For a court or tribunal to “discharge itself from carrying out that primary obligation must be considered as highly exceptional and a step to be taken only when the most cogent considerations of judicial propriety so require,”Footnote 72 in which case, the court or tribunal has to “refuse” to exercise its jurisdiction.Footnote 73 From this background, it would appear unlikely that courts and tribunals under Part XV would be able to settle a dispute to the extent that adjudicative fora to which reference is allegedly made in an agreement under Article 281 of UNCLOS are not vested with these powers. The proposition follows accordingly that the expression “procedure” under Article 281 of UNCLOS does not relate to an adjudicative procedure where fora are vested with the power to make binding decisions, from which it may further be inferred that the material scope of this provision does not purport to cover dispute settlement procedures. This consideration cannot be ignored when construing Article 281(1) of UNCLOS with a view to determining whether conciliatory procedures may set aside otherwise binding dispute settlement provisions.
Second, to the extent that the procedure in Article 281 nevertheless relates to adjudicative proceedings, there can be no expectation of any further procedures since, it must be assumed unless otherwise agreed, the decisions in question are binding and final. This raises challenges for the construction of the expression “exclude any further procedure.”Footnote 74 It is clear that “further” is not used as an adverb but, rather, as an adjective. Also, “procedure” is not plural but, rather, singular. These details appear to be important as the expression “further procedure”Footnote 75 cannot be construed to be identical to the expression “the procedures provided for in this Part,”Footnote 76 which is plural and refers unquestionably to Section 2. The adjective “further” appears to indicate that the procedure in question entails means other than those referred to under Article 281(1). Yet, while the English version of Article 281(1) makes use of the pronoun “any,” the French, Spanish, and Russian versions use expressions that vary in a non-negligible manner, referring to the equivalent of exclusion of the possibility of initiating another procedure rather than of “any other procedure”Footnote 77 tout court. Footnote 78
As mentioned earlier, interestingly, in Barbados v Trinidad and Tobago the arbitral tribunal noted that Article 281 “is intended primarily to cover the situation where the Parties have come to an ad hoc agreement as to the means to be adopted to settle the particular dispute which has arisen.”Footnote 79 Yet, under this interpretation, the procedure is considered susceptible to settle the dispute. The question arises indubitably whether an agreement that excludes procedures under Section 2 may constitute an Article 281 agreement if the procedures do not share characteristics belonging to dispute settlement mechanisms — that is, that entail binding decisions and thus the settlement of disputes. It should be noted that in the Dispute Concerning Coastal State Rights, the arbitral tribunal explicitly appeared to embrace the view that to constitute a procedure within the meaning of Article 281 of UNCLOS, the mechanism in question must be a dispute settlement procedure. The arbitral tribunal observed in this regard that no provisions in the putative Article 281 agreements could be classified as “a means of dispute settlement.”Footnote 80 On this basis alone, according to the arbitral tribunal, the agreements in question “do not constitute dispute settlement clauses.”Footnote 81 This fact made any consideration of whether the proceedings were of an exclusive nature redundant.Footnote 82 Consequently, in the view of the arbitral tribunal, the means to which reference is made in Article 281 are dispute settlement procedures — that is, mechanisms that are susceptible to settle the dispute independently of the considerations of the disputing parties. Yet, as noted earlier, this statement stands in contradiction to the observations of the ICJ in the Somalia v Kenya decision in which the ICJ indicated that Article 281 agreements may be limited “to a means of settlement that does not lead to a binding decision of a third party.”Footnote 83
To accept that Article 281 may set aside Section 2 provided only that the exclusiveness of the procedure is confirmed notwithstanding the nature of the procedure in question appears difficult to reconcile with the fact that Part XV of UNCLOS was considered the “pivot upon which the delicate equilibrium of the compromise must be balanced.”Footnote 84 By the same token, the question arises whether a conciliation procedure enshrined in a putative Article 281 agreement could make the entire dispute settlement mechanism in Section 2 inoperative, notwithstanding that its conclusions per se are not binding. The Virginia Commentary provides in this regard that the parties, in their agreement to resort to a particular procedure, may also specify that this procedure shall be an exclusive one “even if the chosen procedure should not lead to a settlement.”Footnote 85 Characterizing Article 281 as “a super provision” under such circumstances would certainly not be too far-fetched.Footnote 86 However, it is difficult to reach any dispositive conclusions based on the foregoing statement taking into account that the same commentary provides that “[i]f, however, such a settlement is not reached through the procedure chosen by the parties, article 281 makes it clear that in such a case Part XV will become applicable, and any party will be entitled to resort then to the procedures specified in this Part.”Footnote 87
It appears unambiguous that the arbitral tribunal in the Dispute Concerning Coastal State Rights followed the rationale that underlies the latter rather than the former quotation from the Virginia Commentary. The question that arises is: what importance to attribute to the Virginia Commentary in the interpretation of provisions under the convention, in particular when these a priori are not consistent? It should not be ignored that the Virginia Commentary is only meant as a substitute, although an important one, “in the absence of an official legislative history for the Convention, for an objective and comprehensive analysis of the articles in the Convention.”Footnote 88 A treaty interpreter need not always limit interpretation of the provisions of UNCLOS by circumscribing the exercise to align with the observations in the Virginia Commentary, at least where there are objective reasons for questioning the conclusions therein. The above commentary regarding Article 281 would appear constitutive of such a circumstance.
The provisions of Part XV of UNCLOS are of such a type that “derogation from [them] is incompatible with the effective execution of the object and purposes of the Convention”Footnote 89 and, consequently, impermissible given that “[u]niformity in the interpretation of the Convention should be sought [and] a few carefully defined exceptions should be allowed.”Footnote 90 Such waivers could become a subterfuge for a number of states, acting in concert, to make de facto reservations to Part XV of UNCLOS (even though the convention does not allow any reservations or exceptions unless expressly permitted by the convention)Footnote 91 if the alternative procedures in Article 281 “are not required to contain a compulsory dispute settlement system.”Footnote 92 To exemplify this point, applying the criterion of exclusiveness under the standard established by the arbitral tribunal in the South China Sea Arbitration would allow Article 16 of the Convention on the Conservation of Southern Bluefin Tuna to set aside Part XV procedures, so long as there is a fundamental inability of the alternative procedure in question to result in a binding decision on the parties.Footnote 93 This would follow since either party would remain entitled to block referral of the dispute to an adjudicative forum.Footnote 94 Yet, “[e]ven if Article 281 were intended also to cover dispute settlement clauses in agreements such as the 1993 CCSBT [Convention for the Conservation of Southern Bluefin Tuna], one comes back to the question: how is it possible to read into one agreement (the 1993 CCSBT) an intention to preclude resort to compulsory procedures in the event of disputes arising under another agreement (the 1982 UNCLOS)?”Footnote 95 After all, the fact that the compulsory procedures in Section 2 of Part XV “n’aient qu’une fonction supplétive” is only true in so far as concerns a “mécanisme obligatoire de règlement.”Footnote 96 Where the alternative procedure is not constitutive of a règlement, it is devoid of status as a mécanisme.
On the one hand, it could be argued that Article 281 cannot be considered a provision allowing such de facto exceptions to Part XV of UNCLOS. On the other hand, as has been observed elsewhere, it could also be argued that
even if one continues to apply the broadest view of Lotus that restrictions on the freedom of action of States are not to be presumed, this freedom includes the freedom to contract. … Is the rule of consent itself merely a manifestation of a broader principle, rooted in Lotus perhaps, not only that acceptance of compulsory jurisdiction is not to be presumed but that retention of the right to agree to jurisdiction in each case is to be presumed?Footnote 97
The response to the above question must be in the negative. The contrary response would imply that the model of an optional protocol on dispute settlement mechanisms, applicable under the 1958 Geneva Conventions but intentionally excluded during the Third Conference, would be reintroduced in the era of UNCLOS. In this regard, it was observed at the beginning of the Third Conference that an “optional protocol would be a totally inadequate way of dealing with” disputes.Footnote 98 In point of fact, this observation was considered of such importance during the Third Conference that to relegate dispute settlement “to an optional protocol” was considered liable to “jeopardize the ratification and even the signing of” UNCLOS. Footnote 99 However, whether Article 281 of UNCLOS would allow opting out from Section 2 regardless of whether the alternative procedure is vested with the required characteristics allowing for resolution of the dispute, or whether those characteristics are indeed compulsory in order to opt out, raises the question of what role to attribute to Article 282 of UNCLOS. The latter interpretation might appear to be disqualified on the basis that it would make Article 282 redundant. However, the better view appears to be that Article 281 is not meant to allow for a complete opt-out from Section 2 in the absence of a provision requiring settlement of the dispute.
parallelism of treaties
Article 282 is not an exception to Section 2 of Part XV but allows autonomous choices of forum notwithstanding the binding nature of section 2 of Part XV. Under Article 282, where parties to a dispute regarding the interpretation or application of UNCLOS “have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”Footnote 100 Surprisingly, this provision has been given relatively modest attention in scholarly writings,Footnote 101 although some adjudicative fora have addressed its scope and meaning.
Given the general nature of a broad range of provisions of UNCLOS, it will be no surprise that disputes relating to the interpretation or application of UNCLOS Footnote 102 will often also extend to disagreements over the interpretation or application of other treaties. UNCLOS in fact foresees that the law to be applied by courts and tribunals established under Section 2 of Part XV is not limited to the law of the sea governed by UNCLOS. Footnote 103 In the MOX Plant case, the respondent advanced the argument that the real dispute between the parties was governed by equivalent compulsory dispute settlement procedures provided for in other applicable treaties. According to ITLOS, notwithstanding that rights or obligations in other treaties are “similar to or identical with the rights or obligations set out in [UNCLOS], the rights and obligations under those agreements have a separate existence from those under” UNCLOS. Footnote 104 Further, according to ITLOS, as “the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of [UNCLOS] and no other agreement, only the dispute settlement procedures under [UNCLOS] are relevant to that dispute.”Footnote 105 Consequently, courts and tribunals competent under alternative treaties do not have jurisdiction over disputes concerning the interpretation or application of UNCLOS. This is because, according to ITLOS, “the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires.”Footnote 106 Parts of this statement appear to be penetrated in the separate observations of Judge Treves, who argued that when a dispute, which may involve substantive matters under UNCLOS, in fact relates to a different agreement — “even [one that] set[s] out obligations overlapping with those set out in” UNCLOS — that agreement is not an agreement that falls within Article 282 of UNCLOS. Footnote 107 Agreements that fall within Article 282, according to Judge Treves, are those
defined as encompassing disputes concerning the interpretation or application of [UNCLOS], be they agreements for the settlement of disputes specifically mentioned as relating to the interpretation or application of [UNCLOS], agreements for the settlement of disputes in general (including the acceptance, by both parties, without relevant reservations, of the optional clause of Article 36, paragraph 2, of the [ICJ Statute]), and agreements for the settlement of categories of disputes defined so that they may include those concerning the interpretation or application of [UNCLOS] (such as, for instance, disputes concerning maritime navigation).Footnote 108
Judge Treves’ interpretation clearly favours the jurisdiction of fora under Section 2 of Part XV of UNCLOS. Yet, the conclusions of the arbitral tribunal in the South China Sea Arbitration did not go along with this construction of Article 282. According to that arbitral tribunal, four conditions need to be present in order to activate Article 282 of UNCLOS: “(a) that the parties must have agreed through a ‘general, regional or bilateral agreement or otherwise’ that, (b) at the request of any party to the dispute, (c) the dispute shall be submitted to a procedure ‘that entails a binding decision,’ and (d) that the parties have not otherwise agreed to retain access (i.e., to opt back in) to the Part XV, Section 2 procedures.”Footnote 109 These criteria are not similar to those listed in the separate opinion of Judge Treves in Mox Plant. In particular, the arbitral tribunal in the South China Sea Arbitration stated the second and third criteria to require that, “(b) at the request of any party to the dispute, (c) the dispute shall be submitted to a procedure ‘that entails a binding decision.’”Footnote 110 Yet, according to Article 282, “such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision.”Footnote 111 The embedded clause in Article 282 appears subsequent to “shall” and prior to “be.” It therefore appears that, where a party in accordance with any of the agreements enumerated in Article 282 refers the dispute to an agreed alternative adjudicative forum, the latter has exclusive jurisdiction not only over matters under that agreement but also those parts of UNCLOS that are disputed, provided that the decision leads to a binding decision. This is not the same as concluding that the party in question is obliged to submit the dispute to the relevant alternative forum, which appears to be the meaning that results from the construction of the arbitral tribunal in the South China Sea Arbitration. It would indubitably follow from the construction of the arbitral tribunal that, were a forum under Section 2 of Part XV seized under those conditions, it would have to defer jurisdiction.Footnote 112
Interestingly, while the arbitral tribunal in the South China Sea Arbitration enumerated four required conditions in order to activate Article 282 of UNCLOS, the proposition that five criteria need to be fulfilled would be no exaggeration. This is because the arbitral tribunal held that a reason for which one of the agreements in question could under no circumstances fall within the scope of Article 282 was that it “does not provide expressly for a compulsory binding procedure ‘in lieu of’ the Part XV procedures.”Footnote 113 It is reasonable to infer from the above that, in the mindset of the arbitral tribunal, the dispute settlement mechanism in Part XV of UNCLOS is not superseded by an alternative dispute settlement mechanism in the absence of an “express” exclusionary provision under another agreement.
Article 282 of UNCLOS may still be open to constructions that will carve out a consolidated understanding, which in the current state of affairs cannot be seen to be the case. The opinions expressed by courts and tribunals to date, while in no sense abundant, are not sufficiently crystallized to constitute a case law upon which disputing parties may rely with certainty.
article 282 agreements and article 36(2) declarations
In 2015, Bernard Oxman observed that Article 282 “does not derogate from the principle of compulsory jurisdiction reflected in Section 2, Part XV; it merely defers to other agreements” that allow an applicant to submit a dispute to binding arbitration or adjudication under those agreements.Footnote 114 Yet the exact contours of Article 282 were held to be unclear. In particular,
does Article 282 apply where both parties have not made declarations accepting the jurisdiction of the ICJ under Article 287 of [UNCLOS] but have made general declarations under Article 36(2) of the ICJ Statute that would cover the dispute regarding the interpretation or application of [UNCLOS] but that do not refer specifically to such disputes or to [UNCLOS]? … [T]he question is not whether a party to the dispute may submit the dispute to the ICJ but, rather, whether that party is precluded by Article 282 from submitting the dispute to the other applicable procedure under Section 2 of Part XV of [UNCLOS].Footnote 115
In Somalia v Kenya, these particular issues were disputed, which called into question the ordinary meaning of the expression “or otherwise” in Article 282 of UNCLOS. The optional declaration of Kenya accepting compulsory jurisdiction under Article 36(2) of the ICJ Statute accepted jurisdiction over all disputes other than “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement,” one of which, according to Kenya, was Section 2, Part XV of UNCLOS. Due to the fact that neither Somalia nor Kenya had identified the ICJ as the preferred forum under Article 287(1)Footnote 116 of UNCLOS, but had instead abstained from making any such choice, both parties were, it was alleged by the respondent, deemed to have accepted the competence of an arbitral tribunal to be established under Annex VII to the convention, in accordance with Article 287(3)Footnote 117 of UNCLOS. Somalia rejected these arguments, asserting that an optional declaration made under Article 36(2) of the ICJ Statute “takes priority over the dispute resolution procedures contained in Article 287 of UNCLOS.”Footnote 118 The ICJ based its interpretation of “or otherwise” in Article 282 on a circularity argument presented by Somalia, together with an apparently extralegal, quantitative assessment of reservations similar to that of Kenya in effect at the time of the Third Conference, as well as the preparatory work.Footnote 119
That the expression “or otherwise” in Article 282 is considered a renvoi to declarations made pursuant to Article 36(2) of the ICJ Statute is non-controversial and overwhelmingly shared by scholars.Footnote 120 Yet this is not the same as saying that reservations included in such optional declarations are to be disregarded due to an alleged overarching hierarchy between optional declarations and procedures under Section 2 of Part XV. Such an approach could be seen to override the intentions of the state in question, which, it is recalled, has a quintessential function in the interpretation of unilateral acts accepting compulsory jurisdiction such as declarations under Article 36(2) of the ICJ Statute. Footnote 121 The main argument that appears in the judgment is an acceptance of the Catch-22 argument proposed by Somalia — that is, if the reservation in the optional declaration of Kenya were to be construed to refer to Article 282, the latter would bounce it back to the optional declaration, resulting in an irresolvable conflict. Yet this particular reasoning appears to ignore the importance of reservations and qualifications in declarations under Article 36(2) of the ICJ Statute. One member of the bench in Somalia v Kenya characterized such reasoning as “unmeritorious.”Footnote 122 Yet, according to the ICJ, a contrary conclusion “would mean that, by ratifying a treaty which gives priority to agreed procedures resulting from optional clause declarations (pursuant to Article 282 of UNCLOS), states would have achieved precisely the opposite outcome, giving priority instead to the procedures contained in Section 2 of Part XV.”Footnote 123
It may be questioned whether this conclusion of the ICJ pays true recognition to the intention of the reservation of Kenya in its optional declaration. This question arises since it is undisputed that the “consensual bond”Footnote 124 that arises from optional declarations under Article 36(2) of the ICJ Statute exists “only to the extent to which the Declarations coincide in conferring it.”Footnote 125 In his powerful dissenting opinion, Judge Patrick Robinson asserted that, due to the “lucid and unambiguous text [in the Article 36(2) optional declaration of Kenya,] it would be wholly unreasonable to conclude that the optional clause declarations between Kenya and Somalia constitute an agreement that falls within the scope of Article 282 when Part XV of [UNCLOS] sets out in Article 287 other methods of settlement.”Footnote 126 The argument of Judge Robinson can be further substantiated in the following manner. Following the analysis of the ICJ, it would be immaterial whether Kenya had actively made use of the options under Article 287(1) of UNCLOS and had chosen either ITLOS or arbitration under Annex VII or, for example, whether it had made a declaration pursuant to Article 298(1)(a)(i) of the convention according to which only ITLOS or Annex VII tribunals would be the competent fora in regard to disputes relating to delimitation of maritime and continental shelf areas.Footnote 127 It would appear difficult to accept the proposition that such a choice made under Article 287(1) should not be the context for the purposes of determining the intention of the optional declaration of Kenya under Article 36(2) of the ICJ Statute — and, in particular, the reservations therein. However, it would likewise appear difficult to sustain the above argument in a manner that would be consistent with the analysis of the ICJ. This is so because, regardless of its merits, the reasoning embedded in the ICJ’s conclusions would simply not allow such interpretations.
Judge Robinson also expressed virulent criticism of the quantitative argument of the ICJ, according to which, at the commencement of the Third Conference, more than half of the optional declarations under Article 36(2) of the ICJ Statute contained reservations similar to that of Kenya. According to the ICJ, this number of similar or identical reservations allegedly supported the conclusion that such declarations are part and parcel of what is captured by the expression “or otherwise” in Article 282.Footnote 128 According to the ICJ, “Article 282 should therefore be interpreted so that an agreement to the Court’s jurisdiction through optional clause declarations falls within the scope of that Article and applies ‘in lieu’ of procedures provided for in Section 2 of Part XV, even when such declarations contain a reservation to the same effect as that of Kenya.”Footnote 129 On this issue, Judge Robinson observed that “[a]lthough the majority’s numerical focus is deeply flawed, one cannot help but engage with that approach if only to observe that the majority to which it clings is not a significant one.”Footnote 130 Judge Robinson further asserted that “[t]he approach of the majority is untenable. … What is called for is not a quantitative assessment but a qualitative evaluation of the impact of the reservation on the optional clause declarations and thus, on whether there is an agreement that falls within the scope of Article 282.”Footnote 131 In a convincing manner, Judge Robinson made the following a contrario argument: “Since the majority has a majoritarian fixation it would seem that the reasoning in paragraph 129 would also lead to the conclusion that the travaux préparatoires should be construed as evidencing an intention to exclude from the scope of Article 282 optional clause declarations with reservations different from that of Kenya, but which, unlike Kenya’s, do not constitute the majority of the universe of declarations in the relevant period.”Footnote 132 Yet, according to the ICJ, the procedures in Section 2 “are residual to the provisions of Section 1,”Footnote 133 from which it reached the conclusion that Article 282 should “be interpreted so that an agreement to the Court’s jurisdiction through optional clause declarations falls within the scope of that Article and applies ‘in lieu’ of procedures provided for in Section 2 of Part XV, even when such declarations contain a reservation to the same effect as that of Kenya.”Footnote 134
It appears from these observations that, while the decision of the ICJ on jurisdiction and admissibility in Somalia v Kenya garnered general approval among the judges on the bench, there remain questions surrounding Article 282 that surely will be addressed in future disputes before the ICJ, ITLOS, and Annex VII arbitral tribunals. Such questions will arise since it may not be the case that ITLOS or an Annex VII arbitral tribunal will decline jurisdiction as these fora may not necessarily agree that a state in a situation similar to that of Kenya, or one that has made a deliberate choice under Article 287(1) similar to those mentioned above should be, to use Oxman’s expression, “precluded by Article 282 from submitting the dispute to the other applicable procedure under Section 2 of Part XV of [UNCLOS].”Footnote 135
Limitations to Jurisdiction under Section 2
Article 297 is intended to provide certain limitations to the compulsory dispute settlement procedures in Section 2 of Part XV. The drafting technique employed during the Third Conference has resulted in what could be seen as unfortunate language given the challenges it has caused for the interpretation and application of some of its provisions. This arises in particular regarding Article 297(1) which apparently employs reaffirmative language in regard to jurisdiction under Article 288(1). This appears problematic since it is contained in a provision covering general exceptions to compulsory jurisdiction, raising the question whether the enumerated list is exhaustive or merely reaffirmative. Article 297(3) of UNCLOS relates to fisheries. It also employs similarly convoluted drafting techniques as Article 297(1). It is noteworthy that the apparent developments in the case law seem to suggest that all measures related to fisheries within the exclusive economic zone (EEZ) are beyond the scope of Section 2 of Part XV of UNCLOS. Yet it will be established that, consistent with customary treaty interpretative rules, Article 297(3) does not allow this interpretation.
scope and nature of article 297(1) of unclos
Section 3 of Part XV of UNCLOS contains three articles. The first bears the title “Limitations on Applicability of Section 2” and contains three paragraphs. The second paragraph of Article 297Footnote 136 does not cause any challenges of extraordinary amplitude in so far as concerns its interpretation, while the first paragraph is curiously crafted and calls for further scrutiny. This arises as it provides a list of areas over which jurisdiction is confirmed, even though the provision is a limitative clause in regard to compulsory jurisdiction. According to Article 297(1), “[d]isputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention shall be subject to the procedures provided for in Section 2 in the following cases.”Footnote 137 Thus, while the apparent purpose of Article 297 of UNCLOS is to limit jurisdiction regarding the application of Section 2, Article 297(1) is susceptible to create uncertainty on the ambit of those limitations. This arises since, subsequent to the expression “the following cases,” Article 297(1) enumerates three categories of disputes in which courts and tribunals under Section 2 of Part XV are vested with jurisdiction, notwithstanding the fact that the provision in question is designated as an exception. In point of fact, “Article 297 does not provide any exception to Article 288(1) of UNCLOS. It is phrased entirely in affirmative terms.”Footnote 138
Two interrelated questions arise in this regard. First, why would the drafters limit jurisdiction in confirmative language? Second, given the confirmative language in a provision that deals with limitations to compulsory jurisdiction, is the listed enumeration of categories exhaustive? In this regard, the arbitral tribunal in the Southern Bluefin Tuna case observed that “[p]aragraph 1 of Article 297 limits the application of such procedures to disputes concerning the exercise by a coastal State of its sovereign rights or jurisdiction in certain identified cases only.”Footnote 139 It has been noted that this construction of Article 297(1) “had the effect of implying an ‘only’ into the paragraph.”Footnote 140 Accordingly, the enumeration in Article 297(1) appears exhaustive. While there is no obligation to do so,Footnote 141 it is noteworthy that the arbitral tribunal in Southern Bluefin Tuna had no recourse to the travaux préparatoires with a view to confirming its construction according to the general rules of interpretation under Article 31 of the VCLT, pursuant to which the provisions in paragraph 1 of Article 297 shall be given their “ordinary meaning … in their context and in light of [UNCLOS’s] object and purpose.”Footnote 142 In point of fact, in an apparently bold statement,Footnote 143 the arbitral tribunal claimed that UNCLOS “falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions.”Footnote 144 The arbitral tribunal accordingly declined jurisdiction, while none of the twenty-two ITLOS judges sitting on the benchFootnote 145 , it should be recalled, dissented to the establishment of prima facie jurisdictionFootnote 146 in the provisional measures case under Article 290(5) of UNCLOS. Footnote 147 However, this construction of the arbitral tribunal was shared not only in early writingsFootnote 148 but also more recently.Footnote 149
The confusion that arose from the above finding of the arbitral tribunal in the Southern Bluefin Tuna case should be seen in the curious context of the remaining paragraphs of Article 297. While paragraph 2 and, albeit to a lesser degree, paragraph 3 exclude in an unequivocal manner enumerated categories of cases from the application of the procedures under Section 2 of Part XV, the same does not apply to paragraph 1. Textual construction of a treaty provision is a prominent step in the interpretation process as the “[i]nterpretation must be based above all upon the text of the treaty.”Footnote 150 In fact, textual construction reflects the intention of the contracting parties to a treaty.Footnote 151 Against this background, it has been concluded that “the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur.”Footnote 152 Given the wording of Article 297(1), it could be argued that the approach of the arbitral tribunal in the Southern Bluefin Tuna case attributes an ordinary meaning to the terms of that provision. It has been observed elsewhere that “Article 297 UNCLOS is not very clearly drafted; it first affirms the obligation to have recourse to compulsory dispute settlement and then establishes limits which, if interpreted broadly, may deprive the dispute settlement mechanism of all of its meaning concerning the exercise of the coastal State’s rights in respect of the [EEZ].”Footnote 153
In fact, the conclusion of the arbitral tribunal in the Southern Bluefin Tuna case can be seen to concord with the canon expressio unius est exclusio alterius. Footnote 154 This canon, famously illustrated in Petroleum Development v Sheikh of Abu Dhabi,Footnote 155 sets a “well established presumption”Footnote 156 in treaty interpretation that cannot be completely ignored, provided it assists in establishing the ordinary meaning, context, and object and purpose of the relevant terms in Article 297(1) of UNCLOS. Footnote 157 It would certainly appear that the reasoning of the arbitral tribunal in the Southern Bluefin Tuna case was influenced by the above-mentioned canon. However, that analysis paid no attention to the preparatory works, which may be seen to support an opposite conclusion. Consistent with Article 288(1) of UNCLOS, “[a] court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention.”Footnote 158 While Article 297 obviously limits the extent of jurisdiction established by Article 288(1) of UNCLOS, Article 288(1) does appear to establish a general presumption of compulsory jurisdiction, both of which are context for the purposes of fulfilling the requirements of Article 31(1) of the VCLT.
The issue of the material scope and meaning of Article 297(1) also arose in the Chagos Marine Protected Area arbitration. There the arbitral tribunal took not only a different approach from that of the arbitral tribunal in Southern Bluefin Tuna but also one that could be perceived as a genuine “interpretative volte face.”Footnote 159 According to the arbitral tribunal in Chagos Marine Protected Area, Article 297(1) “reaffirms, but does not limit, the Tribunal’s jurisdiction pursuant to Article 288(1) of the Convention.”Footnote 160 Further, according to the arbitral tribunal, “[i]f Article 297(1) were understood to mean that a Tribunal would have jurisdiction over the exercise of sovereign rights and jurisdiction only in the specified cases, there would have been no need for Article 297(3) to expressly exclude disputes over the living resources of the [EEZ]: such disputes would be excluded already, by virtue of their non-inclusion in the list of cases set out in Article 297(1).”Footnote 161
Notwithstanding the arbitral tribunal’s apparently unequivocal view on this point, it decided also to examine the history in regard to Article 297 with a view to confirming the construction it had reached pursuant to the general rule of interpretation reflected in Article 31(1) of the VCLT. According to the arbitral tribunal, Article 297(1) “underwent a series of substantial revisions that dramatically changed its structure and content.”Footnote 162 The arbitral tribunal noted that, in early drafts of what became Article 297, the draft provision “did provide that compulsory dispute resolution would only apply to the three cases.”Footnote 163 The arbitral tribunal noted among other changes the omission of “only” in the final text of what became Article 297(3)(a). This omission could not be seen other than as having a significant bearing.Footnote 164 According to the arbitral tribunal, “the drafting history confirms the conclusion it reached from the textual construction of Article 297. Article 297(1) reaffirms a tribunal’s jurisdiction over the enumerated cases.”Footnote 165 However, the arbitral tribunal added some apparently unnecessary ambiguity when observing that “Article 297(1) thus expressly expands the Tribunal’s jurisdiction to certain disputes involving the contravention of legal instruments beyond the four corners of the Convention itself.”Footnote 166 Whereas Article 297(1) reaffirms jurisdiction, it clearly cannot be seen to expand jurisdiction in comparison to Article 288(1) since the basis for reaffirmation is Article 288(1) itself.
Leaving aside the latter caveat, it is clear that two radically opposed interpretations have been put forward by arbitral tribunals established under the same provisions of UNCLOS Footnote 167 and, it must be assumed, that follow the same customary treaty interpretative rules. There can be no doubt that these jurisdictional developments will affect how states are inclined to interpret UNCLOS and raise ancillary questions of significant importance for the extent to which courts and tribunals will be committed, if not obliged,Footnote 168 to follow the findings of courts and tribunals that have rendered decisions in previous cases. Yet, insofar as concerns whether interpretation of Article 297(1) is now to be considered finally settled, it should be noted that the applicant in the South China Sea Arbitration revised its interpretation of Article 297(1), as expressed in its memorial, to be in line with the conclusion of the arbitral tribunal in Chagos Marine Protected Area. Footnote 169
scope and nature of article 297(3)(a) of unclos
Article 297(3) is a complex provision. A reason for this complexity is the object of this particular provision. It deals with the question of jurisdiction under Part XV regarding fisheries in waters under national jurisdiction. This matter was sensitive during the Third Conference given opposing positions of states on the legal nature of the water column superjacent to the continental shelf. Ambiguity on sensitive issues is certainly a common phenomenon in multilateral treaty drafting exercises. As observed by Christine Gray, “[t]ypically the price of consensus has been ambiguity on the crucial issues that divide states.”Footnote 170 This is true of the compromise crystallized in Article 297(3).
It would appear that fisheries-related measures are subject to Section 2, except those that are enumerated in Article 297(3)(a). Yet, consistent with Article 297(3)(b), any party to a dispute under the exceptions in Article 297(3)(a) can nevertheless refer such disputes to compulsory conciliation procedures if no agreement is reached pursuant to procedures under Section 1 of Part XV.Footnote 171 This structure makes it even more important to determine the exact scope of the exceptions to compulsory jurisdiction under Article 297(3)(a):
Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries 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 relating to its sovereign rights with respect to the living resources in the [EEZ] or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.Footnote 172
This provision’s first reference to fisheries is not preceded with a reference to maritime areas under national jurisdiction, while the second reference does include such explicit qualification. Two propositions could be made. First, high seas fisheries are generally subject to procedures under Section 2 of Part XV. Second, disputes regarding coastal states’ sovereign rights with respect to the living resources in the EEZ or their exercise, including their discretionary powers for determining the total allowable catch, harvest capacity, and the terms and conditions established in their conservation and management laws and regulations, are not subject to the procedures in Section 2. Yet it is difficult to accept that general rules of interpretation allow the conclusion that all EEZ fisheries-related matters are excluded from Section 2 of Part XV.Footnote 173 The absence of a reference to the EEZ prior to the mention of “fisheries” in the first part of Article 297(3)(a) merely supports the understanding that the reaffirmation of jurisdiction therein relates to all fisheries, including EEZ fisheries. The travaux préparatoires appear to confirm such an understanding:
Disputes relating to fisheries were divided into three categories: those that would remain subject to adjudication (namely all those that do not fall into the other two categories), those that would be completely excluded from adjudication (and, like all other disputes, would remain only subject to Section 1 of Part XV), and those that would be subject to compulsory resort to conciliation.Footnote 174
It follows from the above that, if it fails to be excluded, a fisheries-related matter is part of the category “that would remain subject to adjudication.”Footnote 175 Thus, if a category is not (1) subject to compulsory resort to conciliation or (2) completely excluded from Section 2, it is subject to procedures under Section 2. It therefore needs to be determined whether there are EEZ fisheries-related matters that do not fall within the coastal state’s “sovereign rights with respect to the living resources in the [EEZ] or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations,”Footnote 176 all of which are completely excluded from Section 2.
In the Dispute Concerning Coastal State Rights, the respondent advanced an obiter dictum of the arbitral tribunal in the Southern Bluefin Tuna case in its submission that “[d]isputes concerning living resources within 200 nautical miles are specifically and automatically excluded from binding compulsory dispute settlement by Article 297(3)(a).”Footnote 177 Yet the arbitral tribunal in the Southern Bluefin Tuna case merely observed that “[u]nder paragraph 3 of Article 297, Section 2 procedures are applicable to disputes concerning fisheries but, and this is an important ‘but,’ the coastal State is not obliged to submit to such procedures where the dispute relates to its sovereign rights or their exercise with respect to living resources in its EEZ.”Footnote 178 The proposition that this statement supports the idea that all EEZ fisheries-related matters are excluded from the procedures under Section 2 of Part XV appears inapposite. It merely duplicates the relevant terms of Article 297(3)(a) without further qualification. For reasons extraneous to Article 297(3)(a), the arbitral tribunal in the Dispute Concerning Coastal State Rights noted that the “interference by the Russian Federation with fisheries activities alleged by Ukraine occurred within an area that cannot be determined to constitute the [EEZ] of the Russian Federation or Ukraine,”Footnote 179 and, therefore, the conditions for the application of Article 297(3)(a) were not considered to be met. Thus, due to the particular setting that governs this dispute, as it follows from the decision on preliminary objections, the final award on the merits will very likely not touch upon the above-mentioned questions.
In the Chagos Marine Protected Area arbitration, Judges James Kateka and Rüdiger Wolfrum observed in their joint dissenting opinion
that Article 297(3)(a) of the Convention contains two parts. The first part says that disputes concerning fisheries shall be settled in accordance with Section 2 of Part XV. That is a confirmation of jurisdiction and not a limitation. The limitation starts with the word “except”. If the first part of this clause — the confirmation of jurisdiction — is to retain some meaning, not all disputes on fisheries can be interpreted as “… any dispute relating to its sovereign rights with respect to living resources.” The second part of the clause must be narrower in scope than the scope of the first part.Footnote 180
The above observation appears clearly supported in the preparatory works,Footnote 181 which reinforce the understanding that the absence of a reference to the EEZ prior to the mention of fisheries in the first part of Article 297(3)(a) should not be construed to mean a reaffirmation of jurisdiction in regard to high seas fisheries only. In the same line of reasoning, Judges Kateka and Wolfrum persuasively concluded that, contrary to the view expressed by the respondent, “[t]he protection of the biodiversity does not come under the sovereign rights concerning the protection and management of living resources. It is a matter of the protection of the environment…. Considering that this is a decision on an MPA [marine protected area], rather than a decision on fishing, Article 297(3)(a) of the Convention does not apply.”Footnote 182
The scope of Article 297(3)(a) in regard to straddling and highly migratory species was addressed in the Chagos Marine Protected Area arbitration. According to the applicant, the marine protected area enforced by the respondent was inconsistent with Articles 63 and 64 of UNCLOS. The applicant argued that “[t]he dispute is not based on the purported sovereign rights of the UK [United Kingdom] as a coastal State in relation to living resources in the EEZ[; rather] the dispute concerns the rights of Mauritius.”Footnote 183 According to the respondent, “Article 297(3)(a) bars jurisdiction over measures relating to straddling and highly migratory fish stocks in the [EEZ],”Footnote 184 an argument that penetrated the reasoning of the arbitral tribunal, which — symptomatically — appears in paragraph 297 of the award of the arbitral tribunal:
The United Kingdom’s undertaking with respect to fishing rights is clearly related to living resources and — insofar as it applies to the [EEZ] — falls under the exclusion from jurisdiction set out in Article 297(3)(a). In this respect, the Tribunal does not accept Mauritius’ argument that a distinction can be made between disputes regarding the sovereign rights of the coastal State with respect to living resources, and disputes regarding the rights of other States in the exclusive economic zone (with only the former excluded from compulsory settlement).Footnote 185
Consequently, according to the arbitral tribunal, “Articles 63 and 64 (as well as the 1995 Fish Stocks Agreement) are, on their face, measures in respect of fisheries and in their application in the [EEZ] are subject to the exclusion in Article 297(3)(a).… The Tribunal also finds no basis … for the proposition that the exclusion in Article 297(3) does not apply to procedural obligations.”Footnote 186 Consequently, the exclusion from compulsory jurisdiction that follows from Article 297(3)(a) relates to substantive as well as procedural undertakings in regard to EEZ prerogatives, including the material scope of Article 63(1)–(2) of UNCLOS. Concluding accordingly, the arbitral tribunal appeared to substantiate its position by referring to the conclusions of the arbitral tribunal in the Barbados v Trinidad and Tobago case in so far as concerns flying fish. Upon referring to the latter decision, the arbitral tribunal in the Chagos Marine Protected Area arbitration held that any EEZ “undertaking with respect to fishing rights is clearly related to living resources and … falls under the exclusion from jurisdiction set out in Article 297(3)(a).”Footnote 187 Yet it appears that the reference to Barbados v Trinidad and Tobago, due to the particular prevailing circumstances in that case, was inapposite for the purpose of substantiating the conclusion of the arbitral tribunal in Chagos Marine Protected Area in so far as concerns its understanding of the proper meaning of the terms of Article 297(3)(a) of UNCLOS. This is because the material object under scrutiny in Barbados v Trinidad and Tobago was not substantiated under Article 62(2) of UNCLOS in regard to any right of access.Footnote 188 In fact, the claim of Barbados to a right of access to fish in the EEZ of Trinidad and Tobago was “made on the basis that such a right could be awarded by the Tribunal as a remedy infra petita in the dispute concerning the course of the maritime boundary.”Footnote 189 Thus, the arbitral tribunal assessed the claim of Barbados only because Trinidad and Tobago had accepted that the arbitral tribunal undertake this exercise.Footnote 190 According to the arbitral tribunal, “it does not have jurisdiction to make an award establishing a right of access for Barbadian fishermen to flying fish within the EEZ of Trinidad and Tobago, because that award is outside its jurisdiction by virtue of the limitation set out in UNCLOS Article 297(3)(a) and because, viewed in the context of the dispute over which the Tribunal does have jurisdiction, such an award would be ultra petita.”Footnote 191 Yet, while flying fish for present purposes is a shared stock under Article 63(1) of UNCLOS, ensuring access to the EEZ certainly is not part and parcel of the procedural obligations underlying Article 63(1). Quite the contrary, its effective application, contrary to Article 63(2), presumes and is contingent upon the presence of the relevant fish stocks in the maritime areas under national jurisdiction of the relevant coastal state, which, in principle, does not make the exercise of sovereign rights contingent upon access to the EEZ of a third state. Access arrangements may be part of a matrix arrangement on allocation in a comprehensive management and conservation scheme in regard to shared fish stocks, but certainly fall outside the obligations under Article 63(1) of UNCLOS. Further, under any imaginative standard, the accommodation of a claim of a right of access would necessarily be a substantive, rather than a procedural, obligation.
Consequently, it can be concluded that the reference on which the arbitral tribunal in Chagos Marine Protected Area relied to substantiate its understanding that procedural undertakings under Article 63 are not subject to Section 2 of Part XV appears largely inapposite. Rather, in line with the observations of Judges Kateka and Wolfrum,Footnote 192 the question is whether there are procedural obligations that do not relate to the enumerated list of EEZ fisheries-related matters in Article 297(3) and that thus fall within the reaffirmative jurisdictional clause in the first part of Article 297(3)(a) of UNCLOS. The arbitral tribunal in Chagos Marine Protected Area failed to make this distinction. This being said, it is undisputed since the arbitral tribunal’s findings in the South China Sea Arbitration that Article 297(3)(a) relates to situations “where a claim is brought against a State’s exercise of its sovereign rights in respect of living resources in its own [EEZ]. These provisions do not apply where a State is alleged to have violated the Convention in respect of the [EEZ] of another State.”Footnote 193 Yet breaches of Article 63(1) of UNCLOS, for obvious reasons, cannot relate to alleged breaches of State A in so far as concerns the exercise of sovereign rights of State B in its EEZ. It is a stand-alone obligation, but obviously connected to Article 56(2) of UNCLOS.
To the extent that courts and tribunals intend to follow the approach of the arbitral tribunal in Chagos Marine Protected Area, it should be expected that the ratio decidendi will be assessed in light of the above-mentioned observations. It should be borne in mind that Article 56(1)(a) of UNCLOS should also be construed in juxtaposition to Article 56(2), according to which “the coastal State shall have due regard to the rights and duties of other States.”Footnote 194 Thus, while the obligation of due regard is related to the principle of coastal states’ sovereign rights, it is an independent obligation. The principle of due regard has a long-standing history in international law. It was characterized by Lassa Oppenheim in 1912 in the following terms: “A State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State.”Footnote 195 The procedural obligation enshrined in Article 63 of UNCLOS is inextricably connected with Article 56(2) of the convention, albeit not in any manner that is susceptible to transform the pactum de contrahendo obligation of states to seek to agree on joint management and conservation measures in regard to shared and, as appropriate, straddling fish stocks.Footnote 196
Given its omission from the list of areas excepted from Section 2 of Part XV, it would certainly appear that procedural obligations under Article 63 of UNCLOS may be scrutinized by a forum established under Section 2 of Part XV. While the ruling of the arbitral tribunal in Chagos Marine Protected Area is not, to use an expression of Gilbert Guillaume, a “jugement isolé,” it need not, with due respect to the learned arbitrators in question, necessarily be considered an authoritative precedent for the reasons expressed above.Footnote 197 The separate opinion of Judge Jin-Hyun Paik in ITLOS’s Sub-Regional Fisheries Commission advisory opinion, subsequent to the decision in the Chagos Marine Protected Area arbitration, is particularly lucid in this regard. Judge Paik stressed that obligations vis-à-vis third states with respect to the application of Article 63(1) go hand in hand with the immutable principle that coastal states have sovereign rights to living resources within their EEZ. Yet, according to Judge Paik, not being enumerated in the list of limitations in Article 297(3)(a) implies that “any dispute arising from the alleged failure to comply with the obligation under article 63, paragraph 1, of UNCLOS, unlike those disputes arising from the exercise of sovereign rights of the coastal State with respect to the living resources in its EEZ, can be submitted to the compulsory procedure under Part XV, Section 2, of the Convention.”Footnote 198 Accordingly, in the view of Judge Paik, the list of exceptions enumerated in Article 297(3)(a) of UNCLOS is exhaustive and consequently does not entail that all EEZ fisheries-related measures are beyond the application of Section 2 of Part XV.
It remains to be seen how courts and tribunals in future cases will construe Article 297(3)(a). However, it has been established beyond any doubt that the reliance of the arbitral tribunal in the Chagos Marine Protected Area arbitration on the ruling in Bardados v Trinidad and Tobago, in so far as concerns its finding that all EEZ fisheries-related measures are beyond the scope of Section 2 of Part XV, must be assessed de novo. It also remains to be seen whether the observations of Judge Paik in the above-mentioned separate opinion and the conclusions of Judges Kateka and Wolfrum in their above-mentioned joint dissenting opinion will have a bearing on future deliberations on this important question regarding the application of Section 2 to EEZ fisheries-related measures.
Optional Exceptions
Article 298(1) of UNCLOS allows states optionally to except disputes regarding three different areas from the compulsory procedures under Section 2 of Part XV. First, Article 298(1)(a)(i) allows states to except disputes concerning the interpretation or application of Articles 15, 74, and 83 relating to sea boundary delimitations or those involving historic bays or titles. Recent decisions of international courts and tribunals have contributed to the genesis of a consolidated meaning of some of these components, including matters that were addressed by the arbitral tribunal in the South China Sea Arbitration (even if vehemently contested by the respondent in those proceedings). Second, Article 298(1)(b) allows states to except disputes concerning military activities from compulsory jurisdiction. The notion of “military activities” has not “been dwelled upon by international courts and tribunals in case law since the entry into force of the Convention,”Footnote 199 but recent decisions of international courts and tribunals have established, albeit not consistently, an apparent bar on which states may rely to trigger the exception under this provision. Third, Article 298(1)(b) also allows states to except from Section 2 of Part XV disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297(2)–(3).
delimitation and historic bays or titles exceptions
The application of the procedures under Section 2 of Part XV in regard to any of the subjects identified in Article 298(1)(a)(i) raises significant challenges where the title to terra firma, generating the respective maritime entitlements, is disputed. The challenges are structural and confined to consideration of whether a dispute over title to such territory is a “dispute concerning the interpretation or application of th[e] Convention.”Footnote 200 It is well established that courts and tribunals, notwithstanding the particular provisions of governing compromissory clauses, are vested with jurisdiction to make such findings of fact or ancillary determinations of law as are necessary to resolve the dispute.Footnote 201 Yet an incidental connection between the dispute and UNCLOS has been considered “insufficient to bring the dispute, as a whole, within the ambit of Article 288(1).”Footnote 202 Accordingly, only in disputes where the “real issue in the case” and the “object of the claim” relate to interpretation of UNCLOS will Part XV become applicable.Footnote 203 Whether courts and tribunals competent under Part XV of UNCLOS can assume their jurisdiction to extend to disputes over territory has been given some attention in recent decisions.
In the Chagos Marine Protected Area arbitration, the arbitral tribunal upheld the argument of the respondent according to which accepting jurisdiction over territorial disputes is impermissible under UNCLOS. If a dispute over title to terra firma were to be understood as a dispute concerning the interpretation or application of UNCLOS, there would obviously have been opt-out exceptions “for States not wishing their sovereignty claims to be adjudicated.”Footnote 204 Further, the arbitral tribunal ruled that to conclude to the contrary “would do violence to the intent of the drafters of the Convention.”Footnote 205 For this reason, the arbitral tribunal concluded that the parties’ dispute regarding sovereignty over the Chagos Archipelago did not fall within its jurisdiction. While two of the arbitrators dissented on this issue,Footnote 206 the decision of the arbitral tribunal must be seen as authoritative for the purposes of applying Article 288(1) of UNCLOS in so far as concerns disputed titles to terra firma.
However, it should also be borne in mind that the arbitral tribunal expressly observed that it “does not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention.”Footnote 207 It would be necessary to determine “where the relative weight of the dispute lies,” implying that the arbitral tribunal would be precluded from exercising jurisdiction in regard to a dispute that “primarily concern[ed] [land] sovereignty.”Footnote 208 It would have been permissible for the arbitral tribunal to rule on a dispute “primarily [concerning] a matter of the interpretation and application of the term ‘coastal State,’ with the issue of [land] sovereignty forming one aspect of a larger question.”Footnote 209 The arbitral tribunal, in assessing the different arguments, ruled that the preponderant weight of the dispute related to title to the Chagos Archipelago, and, therefore, an exercise of jursidiction would be unjustified.Footnote 210
In the South China Sea Arbitration, the applicant was obviously of the view that its claims regarding Chinese activities and certain maritime features in the South China Sea that were occupied by China were disputes regarding UNCLOS. China expressed two overarching objections to the putative classification of the dispute by the Philippines. According to China, the dispute concerned (1) territorial sovereignty over several maritime features in the South China Sea and (2) matters that appertained to maritime delimitation and that were, therefore, excluded in any event from compulsory jurisdiction given its declarations to this effect in accordance with Article 298(1)(a)(i).
To address such matters, the “applicant’s notification and statement of claim instituting the proceedings ha[d] particular significance.”Footnote 211 It is well established that the “nature of the dispute may have significant jurisdictional implications, including whether the dispute can fairly be said to concern the interpretation or application of the Convention or whether subject-matter based exclusions from jurisdiction are applicable.”Footnote 212 In order to conform to jurisdictional requirements, courts and tribunals are required, “on an objective basis,”Footnote 213 to “isolate the real issue in the case and to identify the object of the claim,”Footnote 214 a process not limited to interpreting the submissions of the parties but also “diplomatic exchanges, public statements and other pertinent evidence.”Footnote 215
In its objective assessment of the dispute before it, the arbitral tribunal in the South China Sea Arbitration observed at the outset that there was clearly a sovereignty dispute between the parties but that this dispute could not prejudice the classification of the claims of the applicant.Footnote 216 The arbitral tribunal observed that its jurisdiction did not extend to claims the resolution of which would “expressly or implicitly” require the settlement of a territorial dispute.Footnote 217 According to the arbitral tribunal, however, none of the submissions of the applicant “require[d] an implicit determination of sovereignty.”Footnote 218 In a very important statement, the arbitral tribunal also observed that a dispute concerning the “existence of an entitlement to maritime zones is distinct from a dispute concerning the delimitation of those zones in an area where the entitlements of parties overlap.”Footnote 219 In the decision on the merits, the arbitral tribunal further developed this observation to mean that, “[w]hile all sea boundary delimitations will concern entitlements, the converse is not the case: all disputes over entitlements do not concern delimitation.”Footnote 220 This statement implied, accordingly, that the arbitral tribunal was vested with competence to determine whether the features in question were islands that fall under Article 121(2) or rocks within the meaning of Article 121(3) of UNCLOS. This ruling must be considered significant since the determination of entitlements is indeed a prerequisite for delimitation.Footnote 221 Yet, according to the arbitral tribunal, this “is a distinct issue.”Footnote 222 In fact, had the arbitral tribunal concluded to the contrary, its jurisdiction would have been precluded in relation to submissions 3, 4, 5, 6, and 7 of the applicant.Footnote 223
Prior to proceeding accordingly, the arbitral tribunal first sought to determine whether the second set of optional exceptions in Article 298(1)(a)(i) — that is, those involving historic bays or titles — could be considered activated in this particular case. China had unequivocally claimed that its rights to the maritime area landward of the nine-dash line was “formed in the long historical course,”Footnote 224 implying that the arbitral tribunal was obligated to assess the applicability of the second alternative under Article 298(1)(a)(i).Footnote 225 In order to address submissions 1 and 2 of the applicant, it was thus required that the arbitral tribunal undertake an interpretation of the notion of “historic title,” an enumerated exception in Article 298(1)(a)(i). Historic title “refer[s] to historic sovereignty to land or maritime areas,” while “[h]istoric rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of sovereignty.”Footnote 226 Historic title is understood as sovereignty over maritime areas that derives from historic circumstances, while “historic rights are nowhere mentioned in the Convention, and the Tribunal sees nothing to suggest that Article 298(1)(a)(i) was intended to also exclude jurisdiction over a broad and unspecified category of possible claims to historic rights falling short of sovereignty.”Footnote 227 Finally, in a persuasive manner, the arbitral tribunal also referred to dispositive evidenceFootnote 228 in support of its ruling that the Chinese claims of “historic rights” were under no circumstances, notwithstanding their nomenclature, claims “to historical title.”Footnote 229 Accordingly, claims of a historic nature cannot as such be considered to fall within one of the optional exceptions to compulsory jurisdiction.
The Philippines requested that the arbitral tribunal declare that certain maritime features “are part of the [EEZ] and continental shelf of the Philippines”Footnote 230 or, alternatively, that certain Chinese undertakings had interfered with the generic rights of the applicant in its EEZ. According to the arbitral tribunal, it would only consider this submission if it could be determined that “China could not possess any potentially overlapping entitlement in that area.”Footnote 231 To the extent that the arbitral tribunal found the features in question to constitute rocks within the meaning of Article 121(3) of UNCLOS, this would necessarily imply that seaward of the outer limit of the territorial sea would be the EEZ of the Philippines.Footnote 232 Likewise, if the maritime features were considered to be low tide elevations within the meaning of Article 13(2) of UNCLOS, they were per se unable to generate any maritime entitlements whatsoever that could interfere with the EEZ of the Philippines.Footnote 233 The arbitral tribunal concluded that none of the high-tide features in the Spratly Islands were islands under Article 121(3) of UNCLOS and therefore did not generate any entitlement beyond the maximum twelve nautical mile breadth of the territorial sea. Consequently, there was “no possible entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal and no jurisdictional obstacle to the Tribunal’s consideration of the Philippines’ Submission No. 5.”Footnote 234
Having concluded accordingly, the arbitral tribunal was able to proceed with “consideration of the Philippines’ Submissions No. 8 through 13, concerning Chinese activities in the South China Sea.”Footnote 235 It is apparent that the arbitral tribunal, rather than determining whether the preponderant weight of the dispute depended on a disagreement over sovereign title to terra firma,Footnote 236 approached the question by deciding that resolution of the dispute did not call for an express or implicit settlement of a territorial dispute.Footnote 237 Yet, it can be seen that, while the Chinese assertion of being a coastal state is not a sovereignty claim as such, it does to some extent signal a disagreement over sovereignty — that is, a disagreement about whether China has a vested sovereign title to terra firma in the form of an island within the scope of Article 121(2) of UNCLOS. On the one hand, the inclusion of such a disagreement within Article 288(1) of UNCLOS appears slightly bold since the conclusion of the arbitral tribunal obviously would have been different if the Philippines had also asserted an Article 121(2) entitlement to the features in question. Thus, it follows that, where the entitlement is challenged but not sovereignty, Article 298(1)(a)(i) is not triggered. On the other hand, Article 121 of UNCLOS clearly includes substantive criteria for features to generate territorial sea entitlements and for features to also generate EEZ and continental shelf entitlements. To dismiss the submissions of the Philippines under these circumstances could have been seen as reading exceptions into Article 298(1)(a)(i) that do not follow from the letter of the law.
The decision of the arbitral tribunal in the Dispute Concerning Coastal State Rights is also instrumental in furthering our understanding of the extent to which disputed title to territory can be included in disputes that are sought to be resolved pursuant to compulsory procedures under Section 2 of Part XV. The respondent argued that Ukraine’s claim “turns on, and is rooted in, a pre-supposition of unlawful conduct by Russia in Crimea in 2014.”Footnote 238 The arbitral tribunal noted that “while Ukraine formulates its dispute with the Russian Federation in terms of the alleged violation of its rights under the Convention … many of its claims in the Notification and Statement of Claim are based on the premise that Ukraine is sovereign over Crimea.”Footnote 239 Further, the applicant “submits that this premise must be accepted … because the Russian Federation’s claim of sovereignty over Crimea is inadmissible and implausible.”Footnote 240 Thus, the arbitral tribunal concluded that “the claims submitted by Ukraine in its Notification and Statement of Claim rest on the premise that the territorial status of Crimea is settled.”Footnote 241 The applicant argued further that it would nullify or make nugatory the application of Part XV were the arbitral tribunal to uphold the objection of the respondent. And, according to the applicant, this would imply that in “any future case concerning violations of a coastal State’s rights, the respondent State accused of breaching UNCLOS could easily nullify its consent to compulsory dispute resolution by asserting a baseless territorial claim, and thereby manufacturing a territorial dispute.”Footnote 242
The applicant also sought to distinguish the situation in Crimea in support of its argument that the findings of the arbitral tribunals in the Chagos Marine Protected Area arbitration and the South China Sea Arbitration, respectively, did not constitute authoritative precedents in so far as concerned determining the scope of the tribunal’s jurisdiction in its dispute with Russia. Those cases “involved longstanding and acknowledged sovereignty disputes, with no question as to the plausibility of the sovereignty claims on each side, and no resolution of the General Assembly [of the United Nations] addressing the inadmissibility of one set of claims.”Footnote 243 According to the applicant, “[t]he objective reality is that there has been no change in the status of Crimea as an unquestioned part of Ukraine. … Even an express ruling of the Tribunal re-affirming that Crimea is part of Ukraine — something Ukraine expressly does not seek — would not materially improve Ukraine’s legal position on that settled matter.”Footnote 244 Against this background, according to the applicant, the sovereignty claim of the respondent “cannot be the basis for a declination of jurisdiction that would permit Russia to violate [UNCLOS] while escaping its consent to arbitrate, while also grievously weakening the framework for dispute resolution established under the Convention.”Footnote 245
Not surprisingly, the respondent vehemently disputed the merits of the claim of the applicant.Footnote 246 Whether Crimea is Ukrainian or Russian territory has been discussed at length elsewhere and will not be further examined in this article.Footnote 247 The arbitral tribunal observed that the claims of the applicant in so far as concerns its rights as a coastal state are based on the “premise that Ukraine is sovereign over Crimea, and thus the ‘coastal State’ within the meaning of various provisions of the Convention it invokes.”Footnote 248 The arbitral tribunal noted unequivocally that to entertain the claims of Ukraine would go beyond the scope of its jurisdiction under Article 288(1) and violate the intention of the drafters of UNCLOS. This is evidenced by the mere fact that “a sovereignty dispute is not included either in the limitations on, or in the optional exceptions to, the applicability of compulsory dispute settlement procedures”Footnote 249 which, according to the arbitral tribunal, “supports the view that the drafters of the Convention did not consider such a dispute to be ‘a dispute concerning the interpretation or application of the Convention.’”Footnote 250
While the applicant submitted that the obligation of non-recognition under Article 41 of the International Law Commission’s Articles on State Responsibility, Footnote 251 in regard to serious breaches of obligations under a peremptory norm of general international law, obliged the arbitral tribunal to declare the sovereignty claim of Russia to Crimea to be inadmissible, the arbitral tribunal was unable to entertain that submission. The applicant bolstered its claim by referring to numerous resolutions of the United Nations General Assembly (UNGA) calling on all states not to recognize an alteration to the territorial status of Crimea.Footnote 252 The arbitral tribunal recognized that its jurisdiction extends to interpreting documents of international organizations, including UNGA resolutions. Yet to interpret the UNGA resolutions pursuant to the position argued by Ukraine would amount to entertaining jurisdiction to resolve disputed title to terra firma, which the arbitral tribunal held “it has no jurisdiction to do.”Footnote 253 Interestingly the arbitral tribunal observed nevertheless that “the UNGA resolutions in question are framed in exhortatory language [and] were not adopted unanimously or by consensus but with many States abstaining or voting against them.”Footnote 254 There would appear to have been no need to make these statements given the lack of jurisdiction to entertain the submission. This raises the question whether the arbitral tribunal may have reasoned otherwise had the UNGA resolutions in question been adopted on a quasi unanimous basis and in less exhortatory language. Nevertheless, “without engaging in any analysis of whether the Russian Federation’s claim of sovereignty is right or wrong,”Footnote 255 the arbitral tribunal dismissed the inadmissibility submission of Ukraine on the grounds that it went beyond the scope of its jurisdiction under Article 288(1) of UNCLOS. According to the arbitral tribunal, the pivotal element in determining whether it had jurisdiction to entertain the relevant submission was “whether a dispute as to which State has sovereignty over Crimea exists.”Footnote 256 In the affirmative, it would have to decline jurisdiction, unless the territorial dispute was only remote in comparison to the principal points of contention. In the negative, jurisdiction would exist. Thus, there was a requirement to determine whether a dispute, in the jurisdictional meaning of the term, existed.
The criteria determining the existence vel non of a dispute are well established by decisions of international courts and tribunals.Footnote 257 The claim of one of the disputing parties must be “positively opposed by the other and … the two sides must ‘hold clearly opposite views’ concerning the question of the performance or non-performance of certain international obligations.”Footnote 258 The determination of the existence of a dispute is a matter for “objective determination”Footnote 259 from which it follows that a “mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its inexistence.”Footnote 260 The arbitral tribunal in the Dispute Concerning Coastal State Rights observed on this note that the threshold for establishing the existence of a dispute “is rather low [but] a mere assertion would be insufficient in proving the existence of a dispute.”Footnote 261 Yet, the arbitral tribunal noted that this does not mean that the “validity or strength of the assertion should be put to a plausibility test or other test in order to verify the existence of a dispute.”Footnote 262 It observed that since 2014 there exists a dispute of which neither party could be unaware, and, for this reason, it was not possible to “accept Ukraine’s argument that the Russian Federation’s claim of sovereignty is implausible.”Footnote 263 It follows accordingly that the determination of whether there exists a dispute vel non related to terra firma was conducted on an objective basis. Taking into account Article 288(1) of UNCLOS, the arbitral tribunal was unable to entertain jurisdiction on this submission of the applicant.
It would appear from the findings of the arbitral tribunals in Chagos Marine Protected Area, the South China Sea Arbitration, and the Dispute Concerning Coastal State Rights that a uniform approach has crystallized in so far as concerns whether the fora under Section 2 of Part XV may exercise jurisdiction where the real object of a dispute relates to title to terra firma. Yet the conclusions of the ITLOS Special Chamber in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean introduces complexity to the question.Footnote 264 This dispute is of a particular kind, given the track record of previous arbitral proceedings between Mauritius and the United Kingdom and the subsequent rendering of an advisory opinion by the ICJ.Footnote 265 The ICJ was “of the opinion that, having regard to international law, the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968, following the separation of the Chagos Archipelago.”Footnote 266 The ICJ was also “of the opinion that the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible.”Footnote 267
One cannot truly describe these observations of the ICJ as operative paragraphs as an “advisory opinion as such has no binding force”Footnote 268 and consequently is unable to constitute res judicata. It is for these very reasons that the consent of states that are not in agreement on the relevant pending legal questions is not needed, contrary to contentious cases where the consent of the disputing parties is a necessary requisite for jurisdiction. In point of fact, “[t]he situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States.”Footnote 269 Yet, according to the ITLOS Special Chamber, the principle of consent “does not mean that the advisory opinion could not entail implications for the disputed issue of sovereignty.”Footnote 270 According to the Special Chamber, the rendering of the advisory opinion resulted in “determinations”Footnote 271 that the United Kingdom’s continued administration of the Chagos Archipelago “is an unlawful act of a continuing character, entailing its international responsibility.”Footnote 272 Further, while it is “generally recognized that advisory opinions of the ICJ cannot be considered legally binding,” it is, according to the Special Chamber, equally recognized that an advisory opinion “entails an authoritative statement of international law.”Footnote 273 Consequently, “judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the ‘principal judicial organ’ of the [UN] with competence in international law.”Footnote 274
This conclusion of the Special Chamber raises questions that touch on the very foundation of international law, including how to construe the so-called ‘weight and authority’ of advisory opinions in as much as they are judicial decisions. There can be no doubt that international law is not based on precedent and that res judicata Footnote 275 is only applicable as between the disputing parties. In point of fact, the inclusion of Article 59 in the ICJ Statute was intended to exclude any role for the doctrine of stare decisis in international law.Footnote 276 However, it is undisputed that precedents nevertheless have a potent role in international law.Footnote 277 Thus, it is noteworthy, given the above-mentioned premise, how the “weight and authority” (to use an expression of the Special Chamber) of an ICJ advisory opinion can result in depriving the differences that exist between Mauritius and the United Kingdom of the status of a dispute on sovereignty over the Chagos Archipelago. This is material as it is not possible to construe the Special Chamber’s decision to entertain jurisdiction other than as a finding that the territorial dispute is settled.Footnote 278 Yet the United Kingdom strongly rejects any understanding pursuant to which it is not sovereign over the Chagos Archipelago and persistently holds to its position that the issue in question “remains at heart a bilateral sovereignty dispute between Mauritius and the United Kingdom.”Footnote 279 Nevertheless, given the Special Chamber’s ruling, the position of the United Kingdom cannot be conceived other than as a “mere assertion [of] the existence of a dispute.”Footnote 280 Consequently, it can be concluded that the standard established in the Dispute Concerning Coastal State Rights, according to which the threshold for establishing the existence of a dispute “is rather low,”Footnote 281 was not followed by the arbitral tribunal in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean.
To summarize, it is concluded that the case law of courts and tribunals regarding the scope of the exceptions under Article 298(1)(a)(i) has appeared to crystallize around an understanding that the jurisdiction of courts and tribunals under Part XV of UNCLOS does not extend to territorial disputes, except where such disputed elements are only incidental. Further, the threshold for determining the existence of a territorial dispute has been set at a relatively low level. Yet this coherent approach has been challenged by the ruling of the Special Chamber in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean. The facts of that case are peculiar and are unlikely to be reproduced. Thus, it remains to be seen to what extent the reasoning in that decision will impact future disputes regarding the interpretation and application of UNCLOS that also relate to territorial disputes.
military activities
Accepting compulsory jurisdiction in regard to disputes involving military activities was a sensitive topic during the Third Conference.Footnote 282 A compromise was crystallized in Article 298(1)(b), under which states parties may declare in writing that they do not accept the procedures in Section 2 of Part XV in regard to two alternative areas relating to the use of force. The first relates to “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service.”Footnote 283 The expression “military activities” is not subject to any definition in UNCLOS Footnote 284 and, until recently, has been addressed only vaguely.Footnote 285 Some commentators have advocated a broad understanding of “military activities” as including but “not limited to actions by warships and military aircraft or government vessels and aircraft engaged in non-commercial service.”Footnote 286 It has also been observed that Article 298(1)(b) recognizes state preferences not to use “compulsory third-party procedures for resolving disputes about military activities,” the characterization of which can “be made in accordance with strategic policies [in order to] protect[] States from formal international review through legal processes of the elect.”Footnote 287 Yet placing too much focus on what constitutes a military activity stricto sensu is susceptible of blurring the understanding of Article 298(1)(b) of UNCLOS. In point of fact, recent decisions of courts and tribunals appear to establish, while not in an entirely consistent manner, a high bar for the application of the exception in Article 298(1)(b).
In the South China Sea Arbitration, the notion “military activities” was given extensive consideration. The arbitral tribunal stressed the importance of the fact that “Article 298(1)(b) applies to ‘disputes concerning military activities’ and not to ‘military activities’ as such.”Footnote 288 Consequently, what matters is whether the dispute as such concerns military activities rather than whether a State was involved in military activities “in some manner in relation to the dispute.”Footnote 289 Accordingly, not every military operation will be classified a military activity under Article 298(1)(b) as the determination of such a typology will in each and every case be qualified pursuant to a determination of whether the activity relates to a dispute regarding the interpretation or application of UNCLOS. Notwithstanding whether actions have been taken by military forces, the activities must be “objectively classified as military in nature” in order to trigger the military exception under Article 298(1)(b).Footnote 290
The use of the preposition “concerning”Footnote 291 military activities in Article 298(1)(b) was given particular attention in the Dispute Concerning Coastal State Rights. According to the applicant, the ordinary meaning of “concerning” was “about” or “in reference to.”Footnote 292 Accordingly, a mere causal link between a military activity and a dispute would not qualify for the military activity exception. This was supported by the argument that “[h]ad the States Parties intended to allow such a broad and sweeping application of Article 298(1)(b), they would have used different language, such as ‘arising out of,’ or ‘in connection with.’”Footnote 293 On this issue, the arbitral tribunal appeared to uphold the arguments of the applicant when ascertaining that the “Convention employs the term ‘concerning,’ in contrast to other terms, such as ‘arising out of,’ ‘arising from,’ or ‘involving,’ used [in Articles 151(8), 289, 297(1), 297(2(a), and 297(2)(b)] to characterise disputes.”Footnote 294 As such, the preposition “concerning,” according to the arbitral tribunal, “circumscribes the military activities exception by limiting it to those disputes whose subject matter is military activities.”Footnote 295 By the same token, “a mere ‘causal’ or historical link between certain alleged military activities and the activities in dispute cannot be sufficient to bar an arbitral tribunal’s jurisdiction under Article 298(1)(b).”Footnote 296
Whether or not a military vessel is employed in operations that can be considered military in nature does not prejudice the determination of whether these operations relate to military activities within the meaning of Article 298(1)(b). Accordingly, whether the vessel is military is not “conclusive” for determining whether the military exception is applicable.Footnote 297 It might seem uncontroversial to assert that, absent evidence to the contrary, it can ordinarily be assumed that interactions of military vessels constitute “military activities.” Yet, while this may be acceptable in light of the definition of military activities by the above-mentioned commentators, it appears from practice that this cannot be asserted with certainty. Whether or not the activities are pursued by law enforcement or naval vessels is not material for the purpose of Article 298(1)(b) of UNCLOS. The use of force by a military vessel may be classified as a law enforcement activity, while the use of force by a law enforcement vessel may be characterized as military activity. Accordingly, the nature of the vessels conducting the operations concerned should not be given preponderant weight as the “traditional distinction between naval vessels and law enforcement vessels in terms of their roles has become considerably blurred.”Footnote 298
In the South China Sea Arbitration, the arbitral tribunal appeared to establish a low standard for finding that military operations constitute “military activities” within the meaning of Article 298(1)(b). The involvement in that case of military and paramilitary vessels appears to have contributed to the establishment of this low standard, which does not appear to pay attention to whether the military operations themselves are at the core of the dispute. The arbitral tribunal noted the standoff over the Second Thomas Shoal during which Chinese governmental vessels sought to prevent the resupply and rotation of Philippine troops. While there were no Chinese military vessels involved in the standoff, these were “reported to have been in the vicinity.”Footnote 299 It remains unclear whether this pseudo-presence of military vessels was a conclusive factor for determining that such a situation “represents a quintessentially military situation,” particularly as the vessels in question were “arrayed in opposition to one another.”Footnote 300 In any event, it is apparent that the arbitral tribunal favoured the establishment of a standard according to which any use of force falls within the military activities exception.Footnote 301
Such a standard is significantly lower than the general criterion established in the Dispute Concerning Coastal State Rights. In the latter case, the arbitral tribunal expressed the view that the military activities exception in Article 298(1)(b) could only be triggered in regard to disputes whose subject matter relates to military activities.Footnote 302 This higher standard was also clearly enshrined in the provisional measures order of ITLOS in the Case Concerning the Detention of Three Ukrainian Naval Vessels. Footnote 303
In the Dispute Concerning Coastal State Rights, the arbitral tribunal was explicit as to the insufficiency of a use of force as such to bring a case within the ambit of Article 298(1)(b). According to the arbitral tribunal, it was not possible to classify the alleged use of physical force in order to exclude Ukraine from access to, and exploitation of, hydrocarbon fields and fisheries as military activities within the meaning of Article 298(1)(b) of UNCLOS. Footnote 304 In support of its conclusion, the arbitral tribunal noted that the use of force alleged by Ukraine “appears to have been directed towards maintaining civilian activities such as the exploitation of hydrocarbons and fisheries.”Footnote 305
In the Case Concerning Ukrainian Naval Vessels, ITLOS, in establishing prima facie jurisdiction, refused to accept that firing warning shots and then targeted shots against a naval vessel that resulted in damaging the vessel and injuring servicemen amounted to military activities within the meaning of Article 298(1)(b) of UNCLOS. It should be borne in mind that the statement of claim of Ukraine related to the immunity of three Ukrainian naval vessels and not to the use of force by Russia,Footnote 306 while the dispute between the parties was essentially limited to rights concerning transit of the Kerch Strait. In reaching its conclusion, ITLOS meticulously assessed the sequence of events in order to determine whether the use of force related to the alleged breaches of UNCLOS rather than determining whether the use of force was a breach of a convention concluded between the parties in 2003.Footnote 307 This distinction has substantial implications in so far as concerns the application of Article 298(1)(b), notwithstanding that ITLOS has previously concluded “that a warship is an expression of the sovereignty of the State whose flag it flies”Footnote 308 and that one could expect that firing shots at such a vessel would naturally constitute military activities. While there can be no doubt that coast guard vessels of the respondent fired at military vessels of the applicant, the actions in question failed to qualify as military activities under Article 298(1)(b), notwithstanding that the situation clearly fell within the parameters of a “quintessential military situation” as described by the arbitral tribunal in the South China Sea Arbitration. Footnote 309
ITLOS dissected the course of events in a timeline with three different incidents.Footnote 310 The three Ukrainian naval vessels sought to transit the Kerch Strait to the port of Berdyansk in the Sea of Azov but were blocked by Russian coast guard vessels. According to Russia, referring to numerous official statements of Ukraine supporting the classification of the use of force as military activities, “[w]hilst it is not in any way accepted that Russia engaged in an unlawful use of force, including any act of aggression, it is clear that it is common ground that the incident concerned military activities.”Footnote 311 Yet ITLOS took the view that, in order to determine “the nature of the activities in question,”Footnote 312 it was necessary to shed light on “whether the arrest and detention took place in the context of a military operation or a law enforcement operation.”Footnote 313
The cause of the incident was the Russian Federation’s denial of passage by the Ukrainian naval vessels through the Kerch Strait and the attempt by those vessels to proceed nonetheless, whereupon the vessels were ordered to wait in the vicinity of an anchorage where they were held for eight hours. From the above background, the ITLOS concluded that “at the core of the dispute was the Parties’ differing interpretation of the regime of passage through the Kerch Strait. In the view of the Tribunal, such a dispute is not military in nature.”Footnote 314 ITLOS stressed also that force was employed in the process of arrest and “the context in which such force was used is of particular relevance.”Footnote 315 After being held for eight hours, the Ukrainian naval vessels abandoned their mission to transit the Kerch Strait and sailed away. The Russian coast guard then resorted to force as the Ukrainian naval vessels ignored the order to stop. Accordingly, the use of force did not relate to the dispute, which, as mentioned earlier, was centred on transiting the Kerch Strait. ITLOS therefore concluded that the use of force in question concerned “a law enforcement operation rather than a military operation.”Footnote 316 Yet, in the event that force had been used during the tentative transit of the Kerch Strait, that conclusion, without doubt, would have been different in so far as concerns the refusal to classify the acts as military activities. In such a situation, there would not have been a mere causal link between the dispute and the use of force.
Interestingly, ITLOS did not consider whether the conduct of the Ukrainian vessels was itself constitutive of military activities, including whether “secret” operations, as alleged by Russia in its memorandum,Footnote 317 could be considered non-innocent and, therefore, in light of the circumstances of this particular case, military activities.Footnote 318 However, given that the order concerned a request for provisional measures, any such finding would indubitably have involved undertaking a review on the merits and, therefore, been beyond the scope of the proceedings.
The characterization by a state of its own conduct is, in principle, immaterial in so far as concerns the application of Article 298(1)(b) of UNCLOS. This principle applies in particular where a respondent state objects to the availability of the procedures in Section 2 of Part XV and therefore characterizes the acts in question as military activities. A fortiori, where a state, although not appearing in the proceedings, has repeatedly classified the activities in question as civilian prior to the proceedings, it is difficult not to attach preponderant weight to such classification proprio motu. In the South China Sea Arbitration, the applicant raised this argument in so far as concerns Submission no. 12. According to the applicant, the respondent had repeatedly stated that the facilities at Mischief Reef were being built for civilian use.Footnote 319 Accordingly, the involvement of the military in land reclamation activities could not automatically result in this activity becoming a military activity within the meaning of Article 298(1)(b).Footnote 320 Judging from meeting reports between the Philippines and China, it would appear that China had not, vis-à-vis the Philippines, claimed that the activities in question were military activities.Footnote 321 Quite the contrary; the arbitral tribunal therefore attributed weight to China’s repeated and unequivocal characterization of the construction and installations on Mischief Reef as not pursuing militarization. For these reasons, the arbitral tribunal concluded that it would “not deem activities to be military in nature when China itself has consistently resisted such classifications and affirmed the opposite at the highest level.”Footnote 322
Yet, as ITLOS observed in the Case Concerning Ukrainian Naval Vessels, the characterization of activities by a state “can be subjective and at variance with the actual conduct.”Footnote 323 Consequently, it is conceivable that statements that are in contradiction with previous unequivocal declarations can also be plainly disregarded, an illustration of which appears also in the Dispute Concerning Coastal State Rights. There the respondent relied on the importance that the arbitral tribunal in the South China Sea Arbitration attached to the repeated statements of China to the effect that its activities on Mischief Reef were civilian.Footnote 324 Given Ukraine’s alleged characterization in multiple fora of the activities of Russia as military, Russia argued that both parties were in fact in agreement that the dispute related to military activities,Footnote 325 which was said to be a straightforward recognition that there was no need to address this matter at the merits stage of the proceedings.Footnote 326 Further, while “categorically reject[ing] any allegation that it has engaged in unlawful military activities,”Footnote 327 the only reason for which the respondent objected to jurisdiction according to the first alternative in Article 298(1)(b) was due to express statements to this effect by the applicant.Footnote 328 The arbitral tribunal did not accept the submission of the applicant, emphasizing instead the requirement of an objective determination of the activities in question.
To summarize, recent decisions of courts and tribunals have significantly contributed to an understanding of the military activities exception in Article 298(1)(b) of UNCLOS. The findings in the Dispute Concerning Coastal State Rights, on the one hand, and in the Case Concerning Ukrainian Naval Vessels, on the other, epitomize the jurisprudential acquis on this particular topic. These decisions have elucidated the interpretation and application of Article 298(1)(b). It is noteworthy that, among the five arbitrators that constituted the arbitral tribunal in the Dispute Concerning Coastal State Rights, three are incumbent ITLOS judges. The arbitral tribunal was also presided by Judge Paik who, during the proceedings and deliberation on the award concerning the preliminary objections of the Russian Federation, was also president of ITLOS. The interpretative approaches taken by ITLOS and the arbitral tribunal in regard to Article 298(1)(b) are similar. This is obviously no coincidence.
law enforcement activities
Other than allowing an optional exception to the application of procedures under Section 2 of Part XV in regard to disputes concerning military activities, Article 298(1)(b) also permits exceptions from compulsory jurisdiction regarding “disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.”Footnote 329 The distinction between “military activities” and “law enforcement activities” is an important element in regard to the application of Article 298(1)(b).Footnote 330 Law enforcement activities in regard to areas that are not covered by Article 297(2)–(3) of UNCLOS are subject to the procedures under Section 2 of Part XV. This arises since the exception in regard to law enforcement activities in Article 298(1)(b) only relates to disputes concerning the application of Article 297(2)–(3) — that is, only law enforcement activities in regard to the exercise of sovereign rights and jurisdiction excluded from compulsory jurisdiction pursuant to the provisions of Article 297(2)–(3). Consequently, a military operation or paramilitary operation that does not pass the bar for constituting military activities within the meaning of Article 298(1)(b) will only be excepted from Section 2 of Part XV if the operation in question relates to the exercise of the above-mentioned sovereign rights and jurisdiction. Consequently, it can be asserted that the law enforcement activities exception is more circumscribed than the military activities exception. Yet whether this is the case depends obviously on the standard to be met in order to constitute military activities within the meaning of Article 298(1)(b).
For these purposes, the applicant in the South China Sea Arbitration stressed that none of its claims related to Chinese violations of the subject matter of Article 297(2)–(3) of UNCLOS. Consequently, the law enforcement exception was said to be inapplicable.Footnote 331 In fact, this was emphatically stressed by the applicant in submitting that its “claims only concern areas where China has no entitlement to an EEZ or continental shelf.”Footnote 332 Where states make use of the optional law enforcement exception to compulsory jurisdiction under Article 298(1)(b) of UNCLOS, such a declaration “does not exclude from the jurisdiction of the procedures in Section 2 of Part XV of UNCLOS any dispute that concerns ‘law enforcement activities in regard to the exercise of sovereign rights or jurisdiction’ unless the dispute is also excluded from the jurisdiction of a court or tribunal under paragraph 2 or 3 of article 297.”Footnote 333
Russia’s declaration under Article 298(1)(b) of UNCLOS failed to limit itself to law enforcement activities in regard to the areas that fall within Article 297(2)–(3). To accept the plea that the optional exception to compulsory jurisdiction should accordingly be understood to cover other areas would be tantamount to making a reservation to UNCLOS. It was not a difficult undertaking for the arbitral tribunal confronted with this situation in the Arctic Sunrise arbitration to observe that, notwithstanding the wording of a declaration pursuant to Article 298(1)(b), a declaring state “cannot create an exclusion that is wider in scope than what is permitted by article 298(1)(b).”Footnote 334
The law enforcement activities exception makes a renvoi to sovereign rights and jurisdiction in the EEZ. Accordingly, addressing a claim of a party according to which a law enforcement measure of a third state is in violation of its rights under UNCLOS, whether or not the area is subject to final delimitation lines, may prejudice the final settlement of possible maritime boundary disputes. In the South China Sea Arbitration, the arbitral tribunal expressed the view that a claim relating to a breach of rights under UNCLOS by law enforcement activities of a third state can only be addressed, barring agreement to the contrary, if the incident occurred in a maritime area that is not under dispute according to objective criteria. According to the arbitral tribunal, “if any maritime feature claimed by China within 200 nautical miles of these areas were to be a fully entitled island for purposes of Article 121, the ‘resulting overlap and the exclusion of boundary delimitation from the Tribunal’s jurisdiction by Article 298, would prevent the Tribunal from addressing the submissions.’”Footnote 335 In the Dispute Concerning Coastal State Rights, the arbitral tribunal observed that “the sovereign character of the rights allegedly exercised by the declaring State and the entitlement of the declaring State to the area in question as that State’s [EEZ] must be objectively established for the optional exception to apply.”Footnote 336 The arbitral tribunal had already noted that a dispute existed objectively regarding which of the parties held title to Crimea. Yet, in the absence of jurisdiction to address this matter, it was not possible to determine “who is the coastal State with respect to the waters adjacent to Crimea. … Nor can any claims [be determined] which depend upon the premise that one or the other Party is sovereign over Crimea.”Footnote 337 Accordingly, the arbitral tribunal rejected the objection of the Russian Federation since the conditions for applying Article 298(1)(b) were not met.
There is still no case law that upholds the invocation of an exception to compulsory jurisdiction according to the law enforcement activities exception. Courts and tribunals have nevertheless been able to establish some guiding principles that will assist in states’ understanding of this particular exception. Further, the interpretation that courts and tribunals have attached to the preposition “concerning” in regard to the application of the military activities exception must also be seen to apply mutatis mutandis in regard to determining which enforcement measures fall within the second alternative of Article 298(1)(b). Consequently, it must be expected that a mere causal link between the measure in question and the claim of the applicant will not be sufficient to bring the latter within the scope of the law enforcement activities exception.
Conclusion
The importance of a compulsory dispute settlement mechanism as an integral part of UNCLOS cannot be overestimated. While early decisions observed that Part XV of UNCLOS falls short of establishing a truly comprehensive dispute settlement mechanism,Footnote 338 subsequent decisions have clearly rectified this incongruous observation. It is undisputed today that Section 2 of Part XV is an effective tool to ensure the implementation of the provisions of UNCLOS other than those that are explicitly excepted from such procedures. A general reason for which states advocated for a compulsory dispute settlement mechanism as an integral part of UNCLOS was to ensure uniform application of the convention.Footnote 339 It is exactly for this reason that it is noteworthy that courts and tribunals have taken different approaches regarding the construction and interpretation of a number of provisions of UNCLOS. The differences also encompass diametrically opposite views on critical jurisdictional clauses, which, notwithstanding the binding and final nature of judgments and awards rendered under Section 2 of Part XV, challenge the legitimacy of these decisions. This arises since the final and binding nature of judgments and awards of international courts and tribunals depends on the fundamental presumption that these courts and tribunals are “deemed to know what the law is,” which in turn necessarily requires uniform constructions, or at least interpretations that are not diametrically opposed.Footnote 340
Whether Article 281 of UNCLOS requires explicit exclusion from Section 2 or, alternatively, merely an implication to this effect for an agreement to fall within Article 281 is subject to two different schools of thought. The Southern Bluefin Tuna case supports the idea that an express statement of exclusiveness is an inherent requirement under Article 281. The arbitral tribunal in the South China Sea Arbitration challenged the correctness of this position when it embraced a completely different construction, which it characterized as a “better view.”Footnote 341 The arbitral tribunal in the Dispute Concerning Coastal State Rights did not completely follow the method of the arbitral tribunal in the South China Sea Arbitration for reasons that are alien to substantive interpretation of Article 281 of UNCLOS. However, its failure to address whether Article 281 embraces an express requirement, contrary to the approach of the arbitral tribunal in the South China Sea Arbitration, supports the view that this question is not yet entirely settled.
More importantly, it appears that the imposition of a formal and simplistic requirement of implicit or express exclusion pays little more than lip service to the role of Section 2 of Part XV. Following the approaches of courts and tribunals outlined herein, states are in a position to exclude the application of Section 2 of Part XV, in regard to matters that would otherwise be subject to Section 2 procedures, simply by making a statement to this effect, notwithstanding whether an alternative procedure is able to resolve the dispute in question. This shifts the purpose of Article 281 of UNCLOS, which, it can be stated, is not intended to relate to adjudicative procedures and therefore, ipso jure, cannot be seen to set aside procedures under Section 2 notwithstanding an express or implicit statement to this effect. Yet this argument appears redundant if the approach embraced by the arbitral tribunal in the Dispute Concerning Coastal State Rights is followed in future cases. In that case, the exclusivity vel non of other procedures would be contingent, at the outset, upon whether the procedures in question are capable of resulting in a binding decision.Footnote 342 This raises the question whether the real focus of Article 281 should be, consistent with the finding of the arbitral tribunal in Barbados v Trinidad and Tobago, ad hoc arrangements rather than conciliatory procedures in regional or multilateral agreements.Footnote 343
Article 282 of UNCLOS has also been subject to interpretative developments. Yet, given the embryonic understanding regarding the construction of this provision, it appears that a solid interpretation has still to crystallize. There is no common understanding of what agreements fall, and under what circumstances, under Article 282 of UNCLOS. Further, insofar as concerns the expression “or otherwise,” the views expressed by Judge Robinson in Somalia v Kenya appear persuasive to such an extent that it is far from certain that a forum other than the ICJ under Section 2 of Part XV, seized under similar circumstances in the future, would defer jurisdiction.
The interpretation that courts and tribunals under Section 2 of Part XV have attributed to the structure of Article 297(1) has also been subject to conflicting approaches. Yet the conclusions of the arbitral tribunal in the Chagos Marine Protected Area arbitration regarding the reaffirmative nature of Article 297(1) appears sound and has settled any uncertainties in regard to this question. Indeed, it is difficult to imagine that the arbitral tribunal in the Southern Bluefin Tuna case would have reached the conclusion it did had it followed the analysis of the arbitral tribunal in Chagos Marine Protected Area. However, the exceptions that follow from Article 297(3) of UNCLOS are still subject to some uncertainty. The reference by the arbitral tribunal in the Chagos Marine Protected Area arbitration to the conclusions of the arbitral tribunal in Barbados v Trinidad and Tobago in order to substantiate the proposition that all EEZ fisheries-related measures are categorically excepted from Article 297(3)(a) of UNCLOS is inapposite. To the contrary, there is ample support for the proposition that the exceptions under Article 297(3)(c) provide an exhaustive list of EEZ fisheries-related measures that are excepted from procedures under Section 2 of Part XV. Accordingly, it may be asserted that EEZ fisheries-related areas that do not fall within the enumerated list of categories in Article 297(3)(a) are subject to the procedures under Section 2 of Part XV of UNCLOS.
In recent decisions of courts and tribunals seized pursuant to the procedures under Section 2 of Part XV of UNCLOS, there appears to be a clear understanding that it is impermissible to construe Article 288(1) of the convention in such a fashion as to permit courts and tribunals to exercise jurisdiction regarding disputed title to terra firma. Yet it is not to be understood that Article 288(1) of UNCLOS prevents incidental jurisdiction over such disputed titles where the real issue of the dispute is within the perimeters of the convention.Footnote 344 This approach was to a large extent followed by the arbitral tribunal in the Dispute Concerning Coastal State Rights and would appear well settled. The latter tribunal has also in an elaborate manner clarified the meaning of disputed territory, rejecting an implausibility test for the purposes of characterizing whether the claimed title to terra firma is effective or merely inadmissible due to the events underlying the genesis of the dispute in question. Yet the recent decision of the ITLOS Special Chamber in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean introduces new elements to any such discussion, although the factual and legal matrices in that particular dispute are so unique that it remains to be determined what, if any, impact the conclusions of the Special Chamber may have on the previously well-established case law on this particular question.
A consistent line of reasoning also appears to have emerged to some extent with respect to interpretation of the exceptions under Article 298(1)(b) of UNCLOS. It is particularly the order on provisional measures of ITLOS in the Case Concerning Ukrainian Naval Vessels that epitomizes the establishment of a relatively high bar for accepting military activity exceptions. While the conclusions of ITLOS appear to some extent to depart from the threshold established in the South China Sea Arbitration, they appear largely reflected in the decision of the arbitral tribunal in the Dispute Concerning Coastal State Rights. Given the lack of a general definition of military activities in UNCLOS and in general international law, the construction that courts and tribunals attribute to this notion can be seen as being of significant importance for the future application of this exception under Article 298(1)(b) of the convention and in international law in general.