349
© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_18
Discretionary Power of Coastal States
and the Control of Its Compliance
with International Law by International
Tribunals
Erietta Scalieri
Abstract This paper deals with the control by international courts and tribunals of
the exercise of the coastal State’s discretionary power. The notion of discretionary
power which was initially developed in administrative law is also used in international law and refers primarily to the manner in which the competences of the
State—in particular certain powers and competences of the coastal State—are exercised. Limitations to such control derive from the nature of the discretionary power
of the coastal State. This article examines, in the light of recent jurisprudence, the
extent of the judicial control with respect to disputes involving the discretion of the
coastal State, the exercise of judicial restraint, as well as the standards applied by
the judge. The analysis further focuses on the procedural limitations to judicial control provided in the UNCLOS, particularly in article 297. This provision excludes
from the compulsory procedures of Part XV of UNCLOS certain disputes involving
the exercise of sovereign rights of the coastal States. It is through judicial and arbitral practice that some important aspects have been and can be further clarified,
especially regarding the scope of the limitation and its procedural aspects.
1 Introduction
The notion of discretionary power which was initially developed in administrative
law is also used in international law and refers primarily to the manner in which the
competences of the State are exercised. An essential component of the discretionary
power is the freedom or wide margin of appreciation that the State enjoys in evaluating the factual and legal reasons of its act and deciding the course of action in view
of the specific circumstances. In the law of the sea the discretionary power or
The views expressed are strictly personal and do not reflect those of the Ministry of Foreign Affairs
of Greece.
E. Scalieri (*)
Ministry of Foreign Affairs of Greece, Legal Department, Athens, Greece
© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_18
Discretionary Power of Coastal States
and the Control of Its Compliance
with International Law by International
Tribunals
Erietta Scalieri
Abstract This paper deals with the control by international courts and tribunals of
the exercise of the coastal State’s discretionary power. The notion of discretionary
power which was initially developed in administrative law is also used in international law and refers primarily to the manner in which the competences of the
State—in particular certain powers and competences of the coastal State—are exercised. Limitations to such control derive from the nature of the discretionary power
of the coastal State. This article examines, in the light of recent jurisprudence, the
extent of the judicial control with respect to disputes involving the discretion of the
coastal State, the exercise of judicial restraint, as well as the standards applied by
the judge. The analysis further focuses on the procedural limitations to judicial control provided in the UNCLOS, particularly in article 297. This provision excludes
from the compulsory procedures of Part XV of UNCLOS certain disputes involving
the exercise of sovereign rights of the coastal States. It is through judicial and arbitral practice that some important aspects have been and can be further clarified,
especially regarding the scope of the limitation and its procedural aspects.
1 Introduction
The notion of discretionary power which was initially developed in administrative
law is also used in international law and refers primarily to the manner in which the
competences of the State are exercised. An essential component of the discretionary
power is the freedom or wide margin of appreciation that the State enjoys in evaluating the factual and legal reasons of its act and deciding the course of action in view
of the specific circumstances. In the law of the sea the discretionary power or
The views expressed are strictly personal and do not reflect those of the Ministry of Foreign Affairs
of Greece.
E. Scalieri (*)
Ministry of Foreign Affairs of Greece, Legal Department, Athens, Greece