21
controversies which, in case, can be chosen if both parties to a dispute concerning
the Convention have agreed to submit it to such a procedure. The parties’ consent
may be expressly stated, or implied from the instrument that provides for recourse
to the dispute settlement procedure. In other words, as observed by the Arbitral
Tribunal constituted under Annex VII in Barbados v. Trinidad and Tobago, it must
be a procedure “which could cover the UNCLOS dispute”.
36
Failing that, we are left
with the hypothesis envisaged by ITLOS in its order on Ireland’s request for provisional measures in the MOX Plant case, according to which where a dispute “concerns the interpretation or application of the Convention [UNCLOS] and no other
agreement, only the dispute settlement procedures under the Convention are relevant to that dispute”.
37
It was precisely in the course of the complex procedural history of the MOX
Plant dispute
38
that the Court of Justice of the European Communities (CJEC, now
Court of Justice of the European Union, CJEU), having noted that some UNCLOS
provisions—in this case, the provisions concerning the protection of the marine
environment—“come within the scope of Community competence which the
Community has elected to exercise by becoming a party to the Convention
[UNCLOS]”,
39
found that:
the provisions of the Convention relied on by Ireland in the dispute relating to the MOX
Plant and submitted to the Arbitral Tribunal are rules which form part of the Community
legal order. The Court therefore has jurisdiction to deal with disputes relating to the interpretation and application of those provisions and to assess a Member State’s compliance
with them.
40
More specifically, the CJEC’s exclusive jurisdiction was based on what was then
Article 292 ECT (now Article 344 TFEU), which stipulated that the Member States
“undertake not to submit a dispute concerning the interpretation or application of
the [ECT] to any method of settlement other than those provided for therein”. The
Luxembourg Court considered that UNCLOS “makes it possible to avoid such a
breach of the Court’s exclusive jurisdiction in such a way as to preserve the autonomy of the Community legal system”. And it added:
It follows from Article 282 of the Convention that, as it provides for procedures resulting in
binding decisions in respect of the resolution of disputes between Member States, the system for the resolution of disputes set out in the EC Treaty must in principle take precedence
over that contained in Part XV of the Convention.
41
Put differently, the reasoning of the CJEC does not contradict the interpretation
that Article 282 applies only to procedures to which the parties have agreed or are
bound to submit their UNCLOS dispute. Indeed, in the MOX Plant case, the dispute
36 PCA, Barbados v. Trinitad and Tobago Arbitration, Award, 11 April 2006, para. 200.
37 ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, para.
52.
38 For a discussion of the dispute, and for further references, see Lavranos (2006).
39 CJEC, case C-459/03, Commission v. Ireland, Judgment, 30 May 2006, para. 120.
40 Ibidem, para. 121.
41 Ibidem, paras 124–125.
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…
controversies which, in case, can be chosen if both parties to a dispute concerning
the Convention have agreed to submit it to such a procedure. The parties’ consent
may be expressly stated, or implied from the instrument that provides for recourse
to the dispute settlement procedure. In other words, as observed by the Arbitral
Tribunal constituted under Annex VII in Barbados v. Trinidad and Tobago, it must
be a procedure “which could cover the UNCLOS dispute”.
36
Failing that, we are left
with the hypothesis envisaged by ITLOS in its order on Ireland’s request for provisional measures in the MOX Plant case, according to which where a dispute “concerns the interpretation or application of the Convention [UNCLOS] and no other
agreement, only the dispute settlement procedures under the Convention are relevant to that dispute”.
37
It was precisely in the course of the complex procedural history of the MOX
Plant dispute
38
that the Court of Justice of the European Communities (CJEC, now
Court of Justice of the European Union, CJEU), having noted that some UNCLOS
provisions—in this case, the provisions concerning the protection of the marine
environment—“come within the scope of Community competence which the
Community has elected to exercise by becoming a party to the Convention
[UNCLOS]”,
39
found that:
the provisions of the Convention relied on by Ireland in the dispute relating to the MOX
Plant and submitted to the Arbitral Tribunal are rules which form part of the Community
legal order. The Court therefore has jurisdiction to deal with disputes relating to the interpretation and application of those provisions and to assess a Member State’s compliance
with them.
40
More specifically, the CJEC’s exclusive jurisdiction was based on what was then
Article 292 ECT (now Article 344 TFEU), which stipulated that the Member States
“undertake not to submit a dispute concerning the interpretation or application of
the [ECT] to any method of settlement other than those provided for therein”. The
Luxembourg Court considered that UNCLOS “makes it possible to avoid such a
breach of the Court’s exclusive jurisdiction in such a way as to preserve the autonomy of the Community legal system”. And it added:
It follows from Article 282 of the Convention that, as it provides for procedures resulting in
binding decisions in respect of the resolution of disputes between Member States, the system for the resolution of disputes set out in the EC Treaty must in principle take precedence
over that contained in Part XV of the Convention.
41
Put differently, the reasoning of the CJEC does not contradict the interpretation
that Article 282 applies only to procedures to which the parties have agreed or are
bound to submit their UNCLOS dispute. Indeed, in the MOX Plant case, the dispute
36 PCA, Barbados v. Trinitad and Tobago Arbitration, Award, 11 April 2006, para. 200.
37 ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, para.
52.
38 For a discussion of the dispute, and for further references, see Lavranos (2006).
39 CJEC, case C-459/03, Commission v. Ireland, Judgment, 30 May 2006, para. 120.
40 Ibidem, para. 121.
41 Ibidem, paras 124–125.
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…