355
examining the measures of the coastal State on the basis of the standard of reasonableness would make it possible to consider the question as a whole, since both the
specific circumstances of the case are taken into account, among which is the impact
caused by the activities of other States on the exercise of the coastal State’s rights,
and the appropriateness of the actions taken by the latter is evaluated in relation to
these circumstances.
20
The balancing exercise of rights and interests, implied by the abovementioned
obligations to have due regard and not to interfere with the rights of other States, is
based on the standard of reasonableness, even when not expressly mentioned.
21
2.2 Standards Applied by the Judge
In reviewing the exercise by the coastal State of its discretionary power and margin
of appreciation the judicial and arbitral bodies apply standards for considering the
legality of coastal State’s acts. Among these standards, as observed in recent case
law, reasonableness is often used by the judge (Sect. 2.2.1). Regarding its content,
this standard refers to the adequacy of the act to the factual and legal reasons or to
the objective pursued and comprises proportionality as an inherent element.
22
International courts and tribunals have also proceeded to its interpretation (Sect.
2.2.2) in certain cases where the standard of reasonableness is expressly provided
for in the provisions of the UNCLOS to qualify actions or measures that the coastal
State is entitled to take.
2.2.1 Reasonableness as a Standard of Judicial Review
Case law highlights this standard, on the one hand, as a limitation to the coastal
State’s discretionary power
23
and, on the other hand, as a standard to measure the
legality of its exercise.
24
This standard had been used in the Fisheries case (1951) in
which the ICJ accepted the system of straight baselines applied by Norway, to the
20 The conclusion on the reasonableness of the measures drawn from this balancing exercise determines also the ‘justifiable’ or ‘unjustifiable’ character of the interference with the rights of other
States.
21 The Geneva Convention on the high seas of 1958 provided that the freedoms “shall be exercised
by States with reasonable regard to the interests of other States…” (Art. 2). In the relevant provision of the UNCLOS (Art. 87) this is replaced by the term “due regard”.
22 On these notions, Cot (2007), Cannizzaro (2002), p. 257; Scalieris (2011), pp. 266–301.
23 Salmon (1981), p. 459.
24 On the two functions of reasonableness, ITLOS, “Volga” (Russian Federation v. Australia),
Judgment, 23 December 2002, Separate opinion of Judge Cot, para. 18.
Discretionary Power of Coastal States and the Control of Its Compliance…
examining the measures of the coastal State on the basis of the standard of reasonableness would make it possible to consider the question as a whole, since both the
specific circumstances of the case are taken into account, among which is the impact
caused by the activities of other States on the exercise of the coastal State’s rights,
and the appropriateness of the actions taken by the latter is evaluated in relation to
these circumstances.
20
The balancing exercise of rights and interests, implied by the abovementioned
obligations to have due regard and not to interfere with the rights of other States, is
based on the standard of reasonableness, even when not expressly mentioned.
21
2.2 Standards Applied by the Judge
In reviewing the exercise by the coastal State of its discretionary power and margin
of appreciation the judicial and arbitral bodies apply standards for considering the
legality of coastal State’s acts. Among these standards, as observed in recent case
law, reasonableness is often used by the judge (Sect. 2.2.1). Regarding its content,
this standard refers to the adequacy of the act to the factual and legal reasons or to
the objective pursued and comprises proportionality as an inherent element.
22
International courts and tribunals have also proceeded to its interpretation (Sect.
2.2.2) in certain cases where the standard of reasonableness is expressly provided
for in the provisions of the UNCLOS to qualify actions or measures that the coastal
State is entitled to take.
2.2.1 Reasonableness as a Standard of Judicial Review
Case law highlights this standard, on the one hand, as a limitation to the coastal
State’s discretionary power
23
and, on the other hand, as a standard to measure the
legality of its exercise.
24
This standard had been used in the Fisheries case (1951) in
which the ICJ accepted the system of straight baselines applied by Norway, to the
20 The conclusion on the reasonableness of the measures drawn from this balancing exercise determines also the ‘justifiable’ or ‘unjustifiable’ character of the interference with the rights of other
States.
21 The Geneva Convention on the high seas of 1958 provided that the freedoms “shall be exercised
by States with reasonable regard to the interests of other States…” (Art. 2). In the relevant provision of the UNCLOS (Art. 87) this is replaced by the term “due regard”.
22 On these notions, Cot (2007), Cannizzaro (2002), p. 257; Scalieris (2011), pp. 266–301.
23 Salmon (1981), p. 459.
24 On the two functions of reasonableness, ITLOS, “Volga” (Russian Federation v. Australia),
Judgment, 23 December 2002, Separate opinion of Judge Cot, para. 18.
Discretionary Power of Coastal States and the Control of Its Compliance…