166
7 The Interpretation of Art. 293 UNCLOS
and the International Customary Rules
In the “Arctic Sunrise” Judgment (United Kingdom of Netherlands v. Russian
Federation) 14 August 2015 (Award on the merits) the Annex VII Arbitral Tribunal
evoked rules of customary international law: “The Tribunal considers that, if necessary, it may have regard to general international law in relation to human rights in
order to determine whether law enforcement action such as the boarding, seizure,
and detention of the Arctic Sunrise and the arrest and detention of those on board
was reasonable and proportionate. This would be to interpret the relevant Convention
provisions by reference to relevant context”, without the implication of the ascertaining of breaches of articles 9 and 12 (2) ICCPR as such given that “[t]hat treaty
has its own enforcement regime and it is not for this Tribunal to act as a substitute
for that regime” (para. 197) adding that “the Tribunal may, …, pursuant to Article
293, have regard to the necessary extent of rules of customary international law,
including international human rights standards, not incompatible with the
Convention, in order to assist in the interpretation and application of the Convention’s
provisions that authorise the arrest or detention of a vessel and persons. This
Tribunal does not consider that it has jurisdiction to apply directly provisions such
as Articles 9 and 12(2) of the ICCPR or to determine breaches of such provisions”
(para. 198).
29
The Annex VII Arbitral Tribunal in The South China Sea Arbitration case
Judgment 29 October 2015 (Award on Jurisdiction and Admissibility) stated that “A
dispute concerning the interaction of the Convention with another instrument or
body of law, including the question of whether rights arising under another body of
law were or were not preserved by the Convention, is unequivocally a dispute concerning the interpretation and application of the Convention” (para. 168).
30
29 See also the previous paragraphs where the judgment makes references, for a proper interpretation and application of the Convention, to a possible resort to “foundational o secondary rules of
general international law such as the law of treaties or the rules of State responsibility” (para. 190),
or “In the case of some broadly worded or general provisions, it may also be necessary to rely on
primary rules of international law other than the Convention in order to interpret and apply particular provisions of the Convention” (para. 191) adding that “[b]oth arbitral tribunals and ITLOS have
interpreted the Convention as allowing for the application of relevant rules of international law.
Article 293 of the Convention makes this possible. For instance, in M/V “Saiga” (2), ITLOS took
account of general international law rules on the use of force in considering the use of force for the
arrest of a vessel (para. 191) (italics added). Finally in para. 197 the Annex VII Arbitral Tribunal
evoked rules of customary international law: “The Tribunal considers that, if necessary, it may
have regard to general international law in relation to human rights in order to determine whether
law enforcement action such as the boarding, seizure, and detention of the Arctic Sunrise and the
arrest and detention of those on board was reasonable and proportionate. This would be to interpret
the relevant Convention provisions by reference to relevant context”, without the implication of the
ascertaining of breaches of Articles 9 and 12 (2) ICCPR as such given that “That treaty has its own
enforcement regime and it is not for this Tribunal to act as a substitute for that regime”.
30 PCA, South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015: this statement is given in front of the Philippines’ allegations that
A. Cannone
7 The Interpretation of Art. 293 UNCLOS
and the International Customary Rules
In the “Arctic Sunrise” Judgment (United Kingdom of Netherlands v. Russian
Federation) 14 August 2015 (Award on the merits) the Annex VII Arbitral Tribunal
evoked rules of customary international law: “The Tribunal considers that, if necessary, it may have regard to general international law in relation to human rights in
order to determine whether law enforcement action such as the boarding, seizure,
and detention of the Arctic Sunrise and the arrest and detention of those on board
was reasonable and proportionate. This would be to interpret the relevant Convention
provisions by reference to relevant context”, without the implication of the ascertaining of breaches of articles 9 and 12 (2) ICCPR as such given that “[t]hat treaty
has its own enforcement regime and it is not for this Tribunal to act as a substitute
for that regime” (para. 197) adding that “the Tribunal may, …, pursuant to Article
293, have regard to the necessary extent of rules of customary international law,
including international human rights standards, not incompatible with the
Convention, in order to assist in the interpretation and application of the Convention’s
provisions that authorise the arrest or detention of a vessel and persons. This
Tribunal does not consider that it has jurisdiction to apply directly provisions such
as Articles 9 and 12(2) of the ICCPR or to determine breaches of such provisions”
(para. 198).
29
The Annex VII Arbitral Tribunal in The South China Sea Arbitration case
Judgment 29 October 2015 (Award on Jurisdiction and Admissibility) stated that “A
dispute concerning the interaction of the Convention with another instrument or
body of law, including the question of whether rights arising under another body of
law were or were not preserved by the Convention, is unequivocally a dispute concerning the interpretation and application of the Convention” (para. 168).
30
29 See also the previous paragraphs where the judgment makes references, for a proper interpretation and application of the Convention, to a possible resort to “foundational o secondary rules of
general international law such as the law of treaties or the rules of State responsibility” (para. 190),
or “In the case of some broadly worded or general provisions, it may also be necessary to rely on
primary rules of international law other than the Convention in order to interpret and apply particular provisions of the Convention” (para. 191) adding that “[b]oth arbitral tribunals and ITLOS have
interpreted the Convention as allowing for the application of relevant rules of international law.
Article 293 of the Convention makes this possible. For instance, in M/V “Saiga” (2), ITLOS took
account of general international law rules on the use of force in considering the use of force for the
arrest of a vessel (para. 191) (italics added). Finally in para. 197 the Annex VII Arbitral Tribunal
evoked rules of customary international law: “The Tribunal considers that, if necessary, it may
have regard to general international law in relation to human rights in order to determine whether
law enforcement action such as the boarding, seizure, and detention of the Arctic Sunrise and the
arrest and detention of those on board was reasonable and proportionate. This would be to interpret
the relevant Convention provisions by reference to relevant context”, without the implication of the
ascertaining of breaches of Articles 9 and 12 (2) ICCPR as such given that “That treaty has its own
enforcement regime and it is not for this Tribunal to act as a substitute for that regime”.
30 PCA, South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015: this statement is given in front of the Philippines’ allegations that
A. Cannone