22
concerned UNCLOS provisions on the protection of the marine environment over
which the European Community (now the EU) exercises its jurisdiction.
The ICJ has also ruled on the interpretation of Article 282. It has done so by taking into account the object and purpose of Part XV UNCLOS, as well as the possible effects of the provision.
In its Judgment on the preliminary objections raised by Kenia (the defendant
State) in the case concerning the Maritime Delimitation in the Indian Ocean, the
ICJ pointed out that UNCLOS State parties may agree to submit a dispute to binding settlement procedures other than those specified in Section II of Part XV of
UNCLOS not only through an agreement, but also through unilateral declarations of
acceptance of the Court’s compulsory jurisdiction made under the optional clause in
Article 36(2) of the Court’s Statute. Indeed, according to the Court (which, besides,
made reference to the travaux préparatoires of the Third United Nations Conference
on the Law of the Sea,
42
thus resorting to one of the supplementary means of interpretation mentioned in Article 32 VCLT).
Article 282 makes no express reference to an agreement to the Court’s jurisdiction resulting
from optional clause declarations. It provides, however, that an agreement to submit a dispute to a specified procedure that applies in lieu of the procedures provided for in Section 2
of Part CV may not only be contained in a ‘general, regional or bilateral agreement’ but
may also be reached ‘otherwise’. The ordinary meaning of Article 282 is broad enough to
encompass an agreement to the jurisdiction of this Court that is expressed in optional clause
declarations.
43
However, Kenya’s optional clause declaration contained a reservation to the
effect that the Court would not have jurisdiction over disputes in respect of which
the parties “have agreed or shall agree to have recourse to some other method or
methods of settlement”.
44
As a consequence, the ICJ was confronted with the possible interplay between
the subordination clause in Article 282 UNCLOS and the reservation contained in
Kenya’s optional clause declaration, which could also be regarded as a subordination clause. In addition to creating a kind of circular reference, such an interplay
may lead to “a negative conflict of jurisdiction involving the danger of a denial of
justice”, as noted by the ICJ
45
(which quoted from the Judgment of the Permanent
Court of International Justice in the Factory of Charzów case).
46
It was precisely to avoid that result
47
that the Court interpreted Article 282 not
only in a purposive manner—after all, the object and purpose of this Article is to
ensure that UNCLOS disputes are resolved through binding settlement procedures
42 Maritime Delimitation in the Indian-Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, para. 127.
43 Ibidem, para. 126.
44 Ibidem, para. 119.
45 Ibidem, para. 132.
46 PCIJ, Factory at Chorzów, Claims for Indemnity, Jurisdiction, Judgment, 26 July 1927, p. 30.
47 Bonafé (2017), p. 729, notes that “[t]he Court’s real concern was the certainty of dispute
settlement”.
R. Virzo
concerned UNCLOS provisions on the protection of the marine environment over
which the European Community (now the EU) exercises its jurisdiction.
The ICJ has also ruled on the interpretation of Article 282. It has done so by taking into account the object and purpose of Part XV UNCLOS, as well as the possible effects of the provision.
In its Judgment on the preliminary objections raised by Kenia (the defendant
State) in the case concerning the Maritime Delimitation in the Indian Ocean, the
ICJ pointed out that UNCLOS State parties may agree to submit a dispute to binding settlement procedures other than those specified in Section II of Part XV of
UNCLOS not only through an agreement, but also through unilateral declarations of
acceptance of the Court’s compulsory jurisdiction made under the optional clause in
Article 36(2) of the Court’s Statute. Indeed, according to the Court (which, besides,
made reference to the travaux préparatoires of the Third United Nations Conference
on the Law of the Sea,
42
thus resorting to one of the supplementary means of interpretation mentioned in Article 32 VCLT).
Article 282 makes no express reference to an agreement to the Court’s jurisdiction resulting
from optional clause declarations. It provides, however, that an agreement to submit a dispute to a specified procedure that applies in lieu of the procedures provided for in Section 2
of Part CV may not only be contained in a ‘general, regional or bilateral agreement’ but
may also be reached ‘otherwise’. The ordinary meaning of Article 282 is broad enough to
encompass an agreement to the jurisdiction of this Court that is expressed in optional clause
declarations.
43
However, Kenya’s optional clause declaration contained a reservation to the
effect that the Court would not have jurisdiction over disputes in respect of which
the parties “have agreed or shall agree to have recourse to some other method or
methods of settlement”.
44
As a consequence, the ICJ was confronted with the possible interplay between
the subordination clause in Article 282 UNCLOS and the reservation contained in
Kenya’s optional clause declaration, which could also be regarded as a subordination clause. In addition to creating a kind of circular reference, such an interplay
may lead to “a negative conflict of jurisdiction involving the danger of a denial of
justice”, as noted by the ICJ
45
(which quoted from the Judgment of the Permanent
Court of International Justice in the Factory of Charzów case).
46
It was precisely to avoid that result
47
that the Court interpreted Article 282 not
only in a purposive manner—after all, the object and purpose of this Article is to
ensure that UNCLOS disputes are resolved through binding settlement procedures
42 Maritime Delimitation in the Indian-Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, para. 127.
43 Ibidem, para. 126.
44 Ibidem, para. 119.
45 Ibidem, para. 132.
46 PCIJ, Factory at Chorzów, Claims for Indemnity, Jurisdiction, Judgment, 26 July 1927, p. 30.
47 Bonafé (2017), p. 729, notes that “[t]he Court’s real concern was the certainty of dispute
settlement”.
R. Virzo