23
directly chosen by the parties—, but also by taking into account the effect
48
that a
different interpretation of the provision may have had
49
:
Article 282 should therefore be interpreted so that an agreement to the Court’s jurisdiction
through optional clause declarations falls within the scope of that Article and applies ‘in
lieu’ of procedures provided for in Section 2 of Part XV, even when such declaration contain a reservation to the same effect as that of Kenya. The contrary interpretation would
mean that, by ratifying a treaty which gives priority to agreed procedures resulting from
optional clause declarations (pursuant to Article 282 of UNCLOS), States would have
achieved precisely the opposite outcome, giving priority instead to the procedures contained in Section 2 of Part XV.
50
A significant example of the simultaneous application of the different elements
of the general rule set out in Article 31 VCLT is the interpretation of Article 121(3)
UNCLOS by the Annex VII arbitral tribunal in the South China Sea Arbitration.
First, the Tribunal examined each of the terms contained in the text of Article 121(3);
then, it took into account both the context and the object and purpose of the provision and, despite its conclusion that there was no evidence of an agreement between
the parties regarding the interpretation of the provision,
51
considered the possible
impact of subsequent State practice.
52
Thanks to this correct interpretative process,
the Tribunal was able to reach interesting conclusions on the scope of application of
Article 121(3).
53
Some of these conclusions
54
concern the qualitative requirements of Article
Article 121(3). With regard to the notion of “rock”, for instance, which is not specifically defined in UNCLOS, the Tribunal—quoting a passage from the ICJ’s
Judgment of 19 November 2012 in Territorial and Maritime Dispute concerning the
48 The Court seems to have applied the principle of effet utile, which, as is well known, is not
expressly envisaged by the VCLT rules on treaty interpretation.
49 But, contra, see Maritime Delimitation in the Indian-Ocean (Somalia v. Kenya), Preliminary
Objections, Judgment, Dissenting Opinion of Judge Robinson, para. 35. After pointing out that,
pursuant to Article 287 UNCLOS, in this case it was possible to submit the dispute to an Annex VII
arbitral tribunal, Judge Robinson argued that “it is most probable that, by reason of the unambiguous wording of Kenya’s reservation and the existence of an alternative fora in Article 287 of
UNCLOS, an Annex VII Tribunal would find it has jurisdiction. In any event, the Court should not
indulge in speculation. The Court’s function is to determine whether on the basis of the law and
facts the Annex VII Tribunal or the Court itself has jurisdiction. Speculation that the Tribunal will
not accept jurisdiction is not a sufficient reason for the Court to conclude that it has jurisdiction;
neither is it a sufficient reason for the Court to determine that the Annex VII Tribunal does not have
jurisdiction. It is simply not a proper consideration”.
50 Maritime Delimitation in the Indian-Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, para. 130.
51 South China Sea Arbitration (Philippines v. China), Award, para. 553.
52 In addition, the arbitral tribunal resorted to supplementary means of interpretation, examining
the travaux préparatoires of Art. 121(3). See South China Sea Arbitration (Philippines v. China),
Award, paras 476–477 and 521–538.
53 Said conclusions, however, have attracted criticism from China—which, besides not participating in the arbitration (on this point see the chapter by Spijkers in this volume), rejected the award—
as well as from some commentators, such as Talmon (2017), p. 871.
54 For a comprehensive discussion, see Tanaka (2017).
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…
directly chosen by the parties—, but also by taking into account the effect
48
that a
different interpretation of the provision may have had
49
:
Article 282 should therefore be interpreted so that an agreement to the Court’s jurisdiction
through optional clause declarations falls within the scope of that Article and applies ‘in
lieu’ of procedures provided for in Section 2 of Part XV, even when such declaration contain a reservation to the same effect as that of Kenya. The contrary interpretation would
mean that, by ratifying a treaty which gives priority to agreed procedures resulting from
optional clause declarations (pursuant to Article 282 of UNCLOS), States would have
achieved precisely the opposite outcome, giving priority instead to the procedures contained in Section 2 of Part XV.
50
A significant example of the simultaneous application of the different elements
of the general rule set out in Article 31 VCLT is the interpretation of Article 121(3)
UNCLOS by the Annex VII arbitral tribunal in the South China Sea Arbitration.
First, the Tribunal examined each of the terms contained in the text of Article 121(3);
then, it took into account both the context and the object and purpose of the provision and, despite its conclusion that there was no evidence of an agreement between
the parties regarding the interpretation of the provision,
51
considered the possible
impact of subsequent State practice.
52
Thanks to this correct interpretative process,
the Tribunal was able to reach interesting conclusions on the scope of application of
Article 121(3).
53
Some of these conclusions
54
concern the qualitative requirements of Article
Article 121(3). With regard to the notion of “rock”, for instance, which is not specifically defined in UNCLOS, the Tribunal—quoting a passage from the ICJ’s
Judgment of 19 November 2012 in Territorial and Maritime Dispute concerning the
48 The Court seems to have applied the principle of effet utile, which, as is well known, is not
expressly envisaged by the VCLT rules on treaty interpretation.
49 But, contra, see Maritime Delimitation in the Indian-Ocean (Somalia v. Kenya), Preliminary
Objections, Judgment, Dissenting Opinion of Judge Robinson, para. 35. After pointing out that,
pursuant to Article 287 UNCLOS, in this case it was possible to submit the dispute to an Annex VII
arbitral tribunal, Judge Robinson argued that “it is most probable that, by reason of the unambiguous wording of Kenya’s reservation and the existence of an alternative fora in Article 287 of
UNCLOS, an Annex VII Tribunal would find it has jurisdiction. In any event, the Court should not
indulge in speculation. The Court’s function is to determine whether on the basis of the law and
facts the Annex VII Tribunal or the Court itself has jurisdiction. Speculation that the Tribunal will
not accept jurisdiction is not a sufficient reason for the Court to conclude that it has jurisdiction;
neither is it a sufficient reason for the Court to determine that the Annex VII Tribunal does not have
jurisdiction. It is simply not a proper consideration”.
50 Maritime Delimitation in the Indian-Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, para. 130.
51 South China Sea Arbitration (Philippines v. China), Award, para. 553.
52 In addition, the arbitral tribunal resorted to supplementary means of interpretation, examining
the travaux préparatoires of Art. 121(3). See South China Sea Arbitration (Philippines v. China),
Award, paras 476–477 and 521–538.
53 Said conclusions, however, have attracted criticism from China—which, besides not participating in the arbitration (on this point see the chapter by Spijkers in this volume), rejected the award—
as well as from some commentators, such as Talmon (2017), p. 871.
54 For a comprehensive discussion, see Tanaka (2017).
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…