101
disputes concerning the interpretation or application of the Convention, on the other
is not completely clear.
43
In the M/V “Saiga” No. 2 case, the ITLOS alluded to the
rules on the use of force in the arrest of ships, although the Convention does not
contain express provisions on this matter. The Tribunal held that “[…] international
law, which is applicable by virtue of article 293 of the Convention, requires that the
use of force must be avoided as far as possible and, where force is unavoidable, it
must not go beyond what is reasonable and necessary in the circumstances”.
44
While
prima facie, this statement only seems to refer to the application of the rules concerning the use of force, the Tribunal ultimately exercised its jurisdiction on the
matter
45
by deciding that “while stopping and arresting the Saiga Guinea used
excessive force contrary to international law […]”.
46
In 2007, the Arbitral Tribunal
established under Annex VII UNCLOS in the Guyana v. Suriname case took a similar approach by holding that:
The International Tribunal for the Law of the Sea (“ITLOS”) has interpreted Article 293 as
giving it competence to apply not only the Convention, but also the norms of customary
international law (including, of course, those relating to the use of force).
47
Thus, by relying on Art. 293 UNCLOS the Tribunals in the two aforementioned
cases expanded their jurisdiction under Art. 288(1) UNCLOS to other rules of international law. It should be noted, however, that the wording of Art. 293(1) UNCLOS
(“A court or tribunal having jurisdiction under this section […]”) clearly presupposes that the jurisdiction of the court or tribunal has already been established.
48
Indeed, as stated by the Annex VII Tribunal in the MOX Plant case, “there is a cardinal distinction between the scope of its jurisdiction under article 288, paragraph 1,
of the Convention […] and the law to be applied by the Tribunal under article 293
of the Convention […]”.
49
In the Chagos case, the Tribunal consequently refused to
exercise its jurisdiction over Mauritius’ submission to interpret and apply the term
“coastal State” as used in the Convention, which, as far as the nature of the dispute
was concerned, it considered to be relating to the question of land sovereignty over
the Chagos Archipelago—a matter that does not concern the interpretation or application of the UNCLOS.
50
In the Arctic Sunrise case, the Annex VII Tribunal shed
further light on the difference between applicable law on the one hand and jurisdiction on the other. It stated:
43 For an analysis see Tzeng (2016).
44 ITLOS, M/V “Saiga” (St. Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, para.
155, italics added; see also ITLOS, M/V “Virginia G” (Panama v. Guinea-Bissau), Judgment, 14
April 2014, paras 359–362.
45 Tzeng (2016), p. 249.
46 M/V “Saiga”, Judgment, para. 183(9), original italics.
47 PCA, Guyana v. Suriname, Award, 17 September 2007, para. 405, italics added.
48 Tzeng (2016), p. 247.
49 PCA, The MOX Plant Case (Ireland v. United Kingdom), Order No. 3, 24 June 2003, para. 19.
50 Chagos Marine Protected Area, Award, para. 221. But see ibidem, Dissenting and Concurring
Opinion of Judges Kateka and Wolfrum, paras 29–45, 73.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…
disputes concerning the interpretation or application of the Convention, on the other
is not completely clear.
43
In the M/V “Saiga” No. 2 case, the ITLOS alluded to the
rules on the use of force in the arrest of ships, although the Convention does not
contain express provisions on this matter. The Tribunal held that “[…] international
law, which is applicable by virtue of article 293 of the Convention, requires that the
use of force must be avoided as far as possible and, where force is unavoidable, it
must not go beyond what is reasonable and necessary in the circumstances”.
44
While
prima facie, this statement only seems to refer to the application of the rules concerning the use of force, the Tribunal ultimately exercised its jurisdiction on the
matter
45
by deciding that “while stopping and arresting the Saiga Guinea used
excessive force contrary to international law […]”.
46
In 2007, the Arbitral Tribunal
established under Annex VII UNCLOS in the Guyana v. Suriname case took a similar approach by holding that:
The International Tribunal for the Law of the Sea (“ITLOS”) has interpreted Article 293 as
giving it competence to apply not only the Convention, but also the norms of customary
international law (including, of course, those relating to the use of force).
47
Thus, by relying on Art. 293 UNCLOS the Tribunals in the two aforementioned
cases expanded their jurisdiction under Art. 288(1) UNCLOS to other rules of international law. It should be noted, however, that the wording of Art. 293(1) UNCLOS
(“A court or tribunal having jurisdiction under this section […]”) clearly presupposes that the jurisdiction of the court or tribunal has already been established.
48
Indeed, as stated by the Annex VII Tribunal in the MOX Plant case, “there is a cardinal distinction between the scope of its jurisdiction under article 288, paragraph 1,
of the Convention […] and the law to be applied by the Tribunal under article 293
of the Convention […]”.
49
In the Chagos case, the Tribunal consequently refused to
exercise its jurisdiction over Mauritius’ submission to interpret and apply the term
“coastal State” as used in the Convention, which, as far as the nature of the dispute
was concerned, it considered to be relating to the question of land sovereignty over
the Chagos Archipelago—a matter that does not concern the interpretation or application of the UNCLOS.
50
In the Arctic Sunrise case, the Annex VII Tribunal shed
further light on the difference between applicable law on the one hand and jurisdiction on the other. It stated:
43 For an analysis see Tzeng (2016).
44 ITLOS, M/V “Saiga” (St. Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, para.
155, italics added; see also ITLOS, M/V “Virginia G” (Panama v. Guinea-Bissau), Judgment, 14
April 2014, paras 359–362.
45 Tzeng (2016), p. 249.
46 M/V “Saiga”, Judgment, para. 183(9), original italics.
47 PCA, Guyana v. Suriname, Award, 17 September 2007, para. 405, italics added.
48 Tzeng (2016), p. 247.
49 PCA, The MOX Plant Case (Ireland v. United Kingdom), Order No. 3, 24 June 2003, para. 19.
50 Chagos Marine Protected Area, Award, para. 221. But see ibidem, Dissenting and Concurring
Opinion of Judges Kateka and Wolfrum, paras 29–45, 73.
The Contribution of the ITLOS to Strengthening the Regime for the Protection…