350
margin of appreciation of the coastal State derives from its sovereignty or sovereign
rights (depending on the zone), or is contained in specific competences or rights
conferred to it by the United Nations Convention on the Law of the Sea (UNCLOS
or the Convention). Moreover, the Convention itself in Art. 297 refers to the “discretion” and “discretionary powers” of the coastal State. This power is not unlimited
1
nor is it immune from judicial review, but the question is the extent of the judicial
control exercised by international courts and tribunals. This will be approached
firstly from the substantive point of view of the limitations to such control deriving
from the nature of the discretionary power of the coastal State (Sect. 2); the procedural limitations to the judicial control provided in the UNCLOS will be examined
at a second stage (Sect. 3).
2 Limitations to the Judicial Control Deriving
from the Nature of the Discretionary Power of the Coastal
State
Judicial control concerning the exercise by States of their discretionary power
implies a restricted degree of judicial review (Sect. 2.3). In this context the international adjudicating bodies review whether and to what extent the coastal State has
respected the limits of its discretionary power or of its margin of appreciation provided for in the UNCLOS (Sect. 2.1). These issues, as well as the standards applied
by the judge in considering the acts of the coastal State (Sect. 2.2) will be examined
in the light of recent jurisprudence.
2.1 Controlling the Respect by the Coastal State of the Limits
of Its Discretion
In most cases where the judge examines the exercise by the coastal State of its discretionary power and competences, the review mainly focuses, on the one hand, on
the legal basis of this State’s act and, on the other hand, on whether the act falls
within the scope of its power and sovereign rights or whether the State has respected
the obligations limiting their exercise.
Ports In recent jurisprudence
2
the case of the frigate Ara Libertad deals with the
immunity enjoyed by warships in foreign ports, which constitutes a limit to the
powers of a State in its ports. Concerning the circumstances of the case, the
1 Jovanovic (1988), p. 93. On discretionary power, see Shany (2005), p. 910.
2 In early case law, Poggioli, Mixed Claims Commission Italy-Venezuela (1903), RIAA, vol. X,
p. 691; Lalanne and Ledour case, Mixed Claims Commission France-Venezuela (1902), RIAA,
vol. X, p. 18.
E. Scalieri
margin of appreciation of the coastal State derives from its sovereignty or sovereign
rights (depending on the zone), or is contained in specific competences or rights
conferred to it by the United Nations Convention on the Law of the Sea (UNCLOS
or the Convention). Moreover, the Convention itself in Art. 297 refers to the “discretion” and “discretionary powers” of the coastal State. This power is not unlimited
1
nor is it immune from judicial review, but the question is the extent of the judicial
control exercised by international courts and tribunals. This will be approached
firstly from the substantive point of view of the limitations to such control deriving
from the nature of the discretionary power of the coastal State (Sect. 2); the procedural limitations to the judicial control provided in the UNCLOS will be examined
at a second stage (Sect. 3).
2 Limitations to the Judicial Control Deriving
from the Nature of the Discretionary Power of the Coastal
State
Judicial control concerning the exercise by States of their discretionary power
implies a restricted degree of judicial review (Sect. 2.3). In this context the international adjudicating bodies review whether and to what extent the coastal State has
respected the limits of its discretionary power or of its margin of appreciation provided for in the UNCLOS (Sect. 2.1). These issues, as well as the standards applied
by the judge in considering the acts of the coastal State (Sect. 2.2) will be examined
in the light of recent jurisprudence.
2.1 Controlling the Respect by the Coastal State of the Limits
of Its Discretion
In most cases where the judge examines the exercise by the coastal State of its discretionary power and competences, the review mainly focuses, on the one hand, on
the legal basis of this State’s act and, on the other hand, on whether the act falls
within the scope of its power and sovereign rights or whether the State has respected
the obligations limiting their exercise.
Ports In recent jurisprudence
2
the case of the frigate Ara Libertad deals with the
immunity enjoyed by warships in foreign ports, which constitutes a limit to the
powers of a State in its ports. Concerning the circumstances of the case, the
1 Jovanovic (1988), p. 93. On discretionary power, see Shany (2005), p. 910.
2 In early case law, Poggioli, Mixed Claims Commission Italy-Venezuela (1903), RIAA, vol. X,
p. 691; Lalanne and Ledour case, Mixed Claims Commission France-Venezuela (1902), RIAA,
vol. X, p. 18.
E. Scalieri