359
2.3 The Degree (or Intensity) of Judicial Review: Restricted
Judicial Review
Indeed, in exercising their judicial review over the measures taken by a coastal
State, international courts or tribunals are restrained by the margin of appreciation
or discretionary powers that State enjoys on the basis of the Convention. This does
not mean that these powers are exempt from any judicial review. As established in
public (administrative) law, when controlling the exercise of the discretionary
power, the judge does not exercise a “full or normal control” within the meaning of
reviewing the substance of the decision and the reasons for the act, but a restricted
control—qualified sometimes as minimum control—which consists of considering
whether the limits of the discretion are respected and whether the act or decision at
issue is manifestly arbitrary. The course of action that the decision-making body
takes within the limits of its discretion by choosing between different alternatives in
view of the specific factual reasons is not subject to judicial control, unless the
action is based on a manifest error of appreciation or is manifestly inadequate to
pursue the defined purpose. A basic premise of this judicial control is that it constitutes a control of legality, which is opposed to reviewing the merit of decisions or
their advisability (opportunité). The techniques of control resorted to in public law
are mainly the manifest error of appreciation scrutiny and the proportionality test
between the facts and the administrative measure,
42
which, depending on the circumstances, may vary in intensity, thus widening, in some instances, the scope of
the control of legality.
The restricted judicial review of the exercise by States of their discretionary powers or margin of appreciation is, in certain cases, applied by international courts, in
particular the European Court of Human Rights.
43
Thus, in the context also of the
law of the sea the challenge for the international tribunals, while controlling the
coastal State’s acts and decisions, is not to interfere with the latter’s margin of
appreciation deriving from the exercise of its sovereignty, sovereign rights or competences and not to substitute their judgment for that of the State. As it has been
observed, “[t]he term ‘sovereign rights’ ought to carry with it a degree of deference
to the coastal State in its exercise of those rights, unless such deference is denied by
the Convention itself”.
44
In this regard, the application of Art. 73 has raised the issue of the degree of
judicial review on several occasions, since its paragraph 1 provides for the coastal
State’s discretionary power to adopt the necessary enforcement measures in order to
ensure compliance with its sovereign rights relating to the conservation and management of living resources in its EEZ. The first point at issue concerns the judicial
42 Chapus (1999), p. 1021.
43 “Camouco”, Dissenting opinion of Judge Wolfrum, para. 14.
44 M/V “Virginia G”, Joint dissenting opinion of Vice-President Hoffmann and Judges Marotta
Rangel, Chandrasekhara Rao, Kateka, Gao and Bouguetaia, paras 49 and 52 (quoting Judge Cot’s
relevant expression).
Discretionary Power of Coastal States and the Control of Its Compliance…
2.3 The Degree (or Intensity) of Judicial Review: Restricted
Judicial Review
Indeed, in exercising their judicial review over the measures taken by a coastal
State, international courts or tribunals are restrained by the margin of appreciation
or discretionary powers that State enjoys on the basis of the Convention. This does
not mean that these powers are exempt from any judicial review. As established in
public (administrative) law, when controlling the exercise of the discretionary
power, the judge does not exercise a “full or normal control” within the meaning of
reviewing the substance of the decision and the reasons for the act, but a restricted
control—qualified sometimes as minimum control—which consists of considering
whether the limits of the discretion are respected and whether the act or decision at
issue is manifestly arbitrary. The course of action that the decision-making body
takes within the limits of its discretion by choosing between different alternatives in
view of the specific factual reasons is not subject to judicial control, unless the
action is based on a manifest error of appreciation or is manifestly inadequate to
pursue the defined purpose. A basic premise of this judicial control is that it constitutes a control of legality, which is opposed to reviewing the merit of decisions or
their advisability (opportunité). The techniques of control resorted to in public law
are mainly the manifest error of appreciation scrutiny and the proportionality test
between the facts and the administrative measure,
42
which, depending on the circumstances, may vary in intensity, thus widening, in some instances, the scope of
the control of legality.
The restricted judicial review of the exercise by States of their discretionary powers or margin of appreciation is, in certain cases, applied by international courts, in
particular the European Court of Human Rights.
43
Thus, in the context also of the
law of the sea the challenge for the international tribunals, while controlling the
coastal State’s acts and decisions, is not to interfere with the latter’s margin of
appreciation deriving from the exercise of its sovereignty, sovereign rights or competences and not to substitute their judgment for that of the State. As it has been
observed, “[t]he term ‘sovereign rights’ ought to carry with it a degree of deference
to the coastal State in its exercise of those rights, unless such deference is denied by
the Convention itself”.
44
In this regard, the application of Art. 73 has raised the issue of the degree of
judicial review on several occasions, since its paragraph 1 provides for the coastal
State’s discretionary power to adopt the necessary enforcement measures in order to
ensure compliance with its sovereign rights relating to the conservation and management of living resources in its EEZ. The first point at issue concerns the judicial
42 Chapus (1999), p. 1021.
43 “Camouco”, Dissenting opinion of Judge Wolfrum, para. 14.
44 M/V “Virginia G”, Joint dissenting opinion of Vice-President Hoffmann and Judges Marotta
Rangel, Chandrasekhara Rao, Kateka, Gao and Bouguetaia, paras 49 and 52 (quoting Judge Cot’s
relevant expression).
Discretionary Power of Coastal States and the Control of Its Compliance…