18
require the States concerned to consult with one another in good faith, pursuant to article
300 of the Convention. The consultations should be meaningful in the sense that substantial
effort should be made by all States concerned, with a view to adopting effective measures
necessary to coordinate and ensure the conservation and development of shared stocks.
15
On the other hand, the same Tribunal has ruled that the obligation to implement
the Convention in good faith cannot be invoked on its own and that, on the contrary,
an applicant, when invoking Article 300 UNCLOS, has the duty to “specify the
concrete obligations and rights under the Convention, with reference to a particular
article, that may not have been fulfilled by a respondent in good faith”.
16
The same
view was expressed by the Arbitral Tribunal constituted under Annex VII UNCLOS
in the Duzgity Integrity case:
Article 300 is an overarching provision which applies to all provisions of the Convention.
It is not a stand-alone provision.
17
In the second place, where an international court or tribunal decides to rule on
Article 300 UNCLOS, a further issue arises as to whether the contracting parties
have actually interpreted or applied a specific UNCLOS provision in good faith.
Since proving good faith is not easy,
18
there is a tendency in international jurisprudence to apply a positive presumption.
19
In the Enrica Lexie case, for instance, the
Arbitral Tribunal, quoting from an order previously issued by the ICJ,
20
stated that
“once a State has made an undertaking as to its conduct, ‘its good faith in complying’ with such an undertaking ‘is to be presumed’”.
21
Moreover, rather than having a predetermined, objective meaning in the context
of treaty interpretation, the principle of good faith “appears to be a fundamental
requirement of reasonableness”
22
(because the aim in applying it is to avoid manifestly absurd or unreasonable results), which makes it especially relevant to the
choice of the interpretative criteria that may be used on the basis of general international law as reflected in Article 31(1) VCLT. There is thus no hierarchy between the
15 ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission
(SRFC) (Request for Advisory Opinion Submitted to the Tribunal), Advisory Opinion, 2 April
2015, para. 210.
16 ITLOS, The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, 14 April 2014, para.
399.
17 PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Principe), Award, 5 September
2016, para. 216.
18 Sorel (2006), p. 1309.
19 See PCA, The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom),
Award, 18 March 2015, para. 447 (quoting Affaire du lac Lanoux (Espagne/France), Award, 16
November 1957, para. 8: “il est un principe général de droit bien établi selon lequel la mauvaise foi
ne se présume pas”); and PCA, South China Sea Arbitration (Philippines v. China), Award, 12 July
2016, para. 1200.
20 ICJ, Questions Relating to the Seizure and Detention of Certain Documents and Data (TimorLeste v. Australia), Provisional Measures, Order, 3 March 2014, para. 44.
21 PCA, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 29 April 2016,
para. 130.
22 Dörr (2018), p. 587.
R. Virzo
require the States concerned to consult with one another in good faith, pursuant to article
300 of the Convention. The consultations should be meaningful in the sense that substantial
effort should be made by all States concerned, with a view to adopting effective measures
necessary to coordinate and ensure the conservation and development of shared stocks.
15
On the other hand, the same Tribunal has ruled that the obligation to implement
the Convention in good faith cannot be invoked on its own and that, on the contrary,
an applicant, when invoking Article 300 UNCLOS, has the duty to “specify the
concrete obligations and rights under the Convention, with reference to a particular
article, that may not have been fulfilled by a respondent in good faith”.
16
The same
view was expressed by the Arbitral Tribunal constituted under Annex VII UNCLOS
in the Duzgity Integrity case:
Article 300 is an overarching provision which applies to all provisions of the Convention.
It is not a stand-alone provision.
17
In the second place, where an international court or tribunal decides to rule on
Article 300 UNCLOS, a further issue arises as to whether the contracting parties
have actually interpreted or applied a specific UNCLOS provision in good faith.
Since proving good faith is not easy,
18
there is a tendency in international jurisprudence to apply a positive presumption.
19
In the Enrica Lexie case, for instance, the
Arbitral Tribunal, quoting from an order previously issued by the ICJ,
20
stated that
“once a State has made an undertaking as to its conduct, ‘its good faith in complying’ with such an undertaking ‘is to be presumed’”.
21
Moreover, rather than having a predetermined, objective meaning in the context
of treaty interpretation, the principle of good faith “appears to be a fundamental
requirement of reasonableness”
22
(because the aim in applying it is to avoid manifestly absurd or unreasonable results), which makes it especially relevant to the
choice of the interpretative criteria that may be used on the basis of general international law as reflected in Article 31(1) VCLT. There is thus no hierarchy between the
15 ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission
(SRFC) (Request for Advisory Opinion Submitted to the Tribunal), Advisory Opinion, 2 April
2015, para. 210.
16 ITLOS, The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, 14 April 2014, para.
399.
17 PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Principe), Award, 5 September
2016, para. 216.
18 Sorel (2006), p. 1309.
19 See PCA, The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom),
Award, 18 March 2015, para. 447 (quoting Affaire du lac Lanoux (Espagne/France), Award, 16
November 1957, para. 8: “il est un principe général de droit bien établi selon lequel la mauvaise foi
ne se présume pas”); and PCA, South China Sea Arbitration (Philippines v. China), Award, 12 July
2016, para. 1200.
20 ICJ, Questions Relating to the Seizure and Detention of Certain Documents and Data (TimorLeste v. Australia), Provisional Measures, Order, 3 March 2014, para. 44.
21 PCA, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 29 April 2016,
para. 130.
22 Dörr (2018), p. 587.
R. Virzo