102
Article 293(1) does not extend the jurisdiction of a tribunal. Rather, it ensures that, in exercising its jurisdiction under the Convention, a tribunal can give full effect to the provisions
of the Convention. For this purpose, some provisions of the Convention directly incorporate
other rules of international law. […] Article 293 is not, however, a means to obtain a determination that some treaty other than the Convention has been violated, unless that treaty is
otherwise a source of jurisdiction, or unless the treaty otherwise directly applies pursuant to
the Convention.
51
The object and purpose of the rules on jurisdiction is to define, or limit respectively, the competences of the adjudicating bodies mentioned in Art. 287 UNCLOS
in relation to the primary subjects of international law, namely States. Taking into
account that accession to the UNCLOS implies, inter alia, a positive decision on the
compulsory nature of the system of peaceful settlement of disputes codified in Part
XV of the Convention, acceptability of this system within the community of States
would be called into question, would the decision on accession potentially result in
disputes that have arisen with regard to the application and interpretation of international treaties other than the UNCLOS, or of general international law, being subjected to the UNCLOS dispute settlement regime. It should be recalled in this
respect that the competence of an international court or tribunal to settle disputes
concerning questions of general international law or international agreements
depends on whether the parties to these disputes have taken the sovereign decision
to accept the jurisdiction of the court and/or tribunal, be it by way of special agreement, by way of general declaration of submission to adjudication, or by way of an
international agreement itself with regard to which a dispute between two States
parties has evolved.
Furthermore, reference to rules and principles of general international law, or
provisions of other international agreements respectively, by a dispute settlement
body may ultimately result in situations where the terms of the original treaty, i.e.
the treaty that establishes the jurisdiction of the court or tribunal concerned, are
superseded by the application of the other sources of international law. In this
respect, it should be taken into account that Art. 293(1) UNCLOS, which establishes a legal obligation on behalf of the court or tribunal concerned, is arguably not
based on the same limitations as to the applicable law than those that are codified in
Art. 31(3) VCLT in relation to dynamic interpretation. The Arbitral Tribunal in the
Indus Waters Kishenganga Arbitration convincingly held that:
[T]he Court does not consider it appropriate, and certainly not “necessary,” for it to adopt a
precautionary approach and assume the role of policymaker in determining the balance
between acceptable environmental change and other priorities, or to permit environmental
considerations to override the balance of other rights and obligations expressly identified in
the Treaty – in particular the entitlement of India to divert the waters of a tributary of the
Jhelum. The Court’s authority is more limited and extends only to mitigating significant
harm. Beyond that point, prescription by the Court is not only unnecessary, it is prohibited
by the Treaty. If customary international law were applied not to circumscribe, but to negate
51 PCA, Arctic Sunrise (Netherlands v. Russia), Award on the Merits, 14 August 2015, paras 188
and 192. Tzeng (2016), pp. 251–258.
A. Proelss
Article 293(1) does not extend the jurisdiction of a tribunal. Rather, it ensures that, in exercising its jurisdiction under the Convention, a tribunal can give full effect to the provisions
of the Convention. For this purpose, some provisions of the Convention directly incorporate
other rules of international law. […] Article 293 is not, however, a means to obtain a determination that some treaty other than the Convention has been violated, unless that treaty is
otherwise a source of jurisdiction, or unless the treaty otherwise directly applies pursuant to
the Convention.
51
The object and purpose of the rules on jurisdiction is to define, or limit respectively, the competences of the adjudicating bodies mentioned in Art. 287 UNCLOS
in relation to the primary subjects of international law, namely States. Taking into
account that accession to the UNCLOS implies, inter alia, a positive decision on the
compulsory nature of the system of peaceful settlement of disputes codified in Part
XV of the Convention, acceptability of this system within the community of States
would be called into question, would the decision on accession potentially result in
disputes that have arisen with regard to the application and interpretation of international treaties other than the UNCLOS, or of general international law, being subjected to the UNCLOS dispute settlement regime. It should be recalled in this
respect that the competence of an international court or tribunal to settle disputes
concerning questions of general international law or international agreements
depends on whether the parties to these disputes have taken the sovereign decision
to accept the jurisdiction of the court and/or tribunal, be it by way of special agreement, by way of general declaration of submission to adjudication, or by way of an
international agreement itself with regard to which a dispute between two States
parties has evolved.
Furthermore, reference to rules and principles of general international law, or
provisions of other international agreements respectively, by a dispute settlement
body may ultimately result in situations where the terms of the original treaty, i.e.
the treaty that establishes the jurisdiction of the court or tribunal concerned, are
superseded by the application of the other sources of international law. In this
respect, it should be taken into account that Art. 293(1) UNCLOS, which establishes a legal obligation on behalf of the court or tribunal concerned, is arguably not
based on the same limitations as to the applicable law than those that are codified in
Art. 31(3) VCLT in relation to dynamic interpretation. The Arbitral Tribunal in the
Indus Waters Kishenganga Arbitration convincingly held that:
[T]he Court does not consider it appropriate, and certainly not “necessary,” for it to adopt a
precautionary approach and assume the role of policymaker in determining the balance
between acceptable environmental change and other priorities, or to permit environmental
considerations to override the balance of other rights and obligations expressly identified in
the Treaty – in particular the entitlement of India to divert the waters of a tributary of the
Jhelum. The Court’s authority is more limited and extends only to mitigating significant
harm. Beyond that point, prescription by the Court is not only unnecessary, it is prohibited
by the Treaty. If customary international law were applied not to circumscribe, but to negate
51 PCA, Arctic Sunrise (Netherlands v. Russia), Award on the Merits, 14 August 2015, paras 188
and 192. Tzeng (2016), pp. 251–258.
A. Proelss