362
of this State’s decision, as well as upon its evaluation of the adequacy and effectiveness of the measures in the specific case. According to the dissenting opinions, the
Tribunal “appears to have functioned as an appellate authority substituting its judgement to that of the local authority”,
56
because it did not exercise a restricted judicial
review which would focus on whether the coastal State’s decision regarding confiscation as a ‘necessary’ enforcement measure contained a manifest error of appreciation or whether it was manifestly arbitrary.
Apart from the manifest error of appreciation, reasonableness and proportionality are applied as criteria of legality; by their very nature these criteria can touch
upon the substance of the decision, as they refer to the relationship between acts and
facts.
57
For this reason, when the judicial control pertains to the exercise by the
coastal State of its discretion, the application of the criteria by the international tribunal should take into account the margin of appreciation and leave room for the
State’s evaluation of the appropriateness and effectiveness of the measures in relation to the elements of the case.
58
Thus, under the restricted judicial review, the
‘unreasonable’ character of the measure refers to situations where it is manifest or
absolutely clear that the measure is disproportionate and could not possibly be justified by the circumstances, a judgment which cannot be defined in advance, but
depends on the specific context.
59
In general, it is difficult to anticipate with a fair degree of certainty how the
courts will review discretion. Moreover, the delimitation of the control of legality is
often not obvious, since the boundaries between the spaces of discretion where in
principle courts should not enter and spaces of judicial review may be blurred and
shifting. It is through the development of the practice of the international adjudicating bodies that the scope and standards of judicial control will be more precisely
determined.
56 M/V “Virginia G”, Joint dissenting opinion of Vice-President Hoffmann and Judges Marotta
Rangel, Chandrasekhara Rao, Kateka, Gao and Bouguetaia, para. 55.
57 The application of the abuse of right entails the risk of restricting the margin of appreciation of
the coastal State, since its imprecise character is prone to be broadly interpreted; a restrictive
approach should preside when identifying the elements of the abuse of rights. On this notion and
the misuse of authority, Kolb (2017), pp. 142–143 and 148.
58 M/V “Virginia G”, Joint dissenting opinion of Vice-President Hoffmann and Judges Marotta
Rangel, Chandrasekhara Rao, Kateka, Gao and Bouguetaia, paras 56–60.
59 Important factors are relevant state practice regarding the measure of the coastal State, the legislation of the coastal State in relation to the Convention, the seriousness of the breach and the effects
of the measure, the adequacy between means and aim (e.g. deterrence) with regard to the enforcement context. In applying the standard of reasonableness and proportionality, without taking into
account the discretionary choices, furthers the control beyond the limits of a restricted review and
constitutes a normal control. In addition, while not all indeterminacy may give rise to discretion,
the use of certain vague terms entails a considerable margin of appreciation of the coastal State.
This does not mean that all unilateral national qualifications are necessarily accepted; the control
focuses on the State’s act which is manifestly inconsistent with the facts of the case and not on the
question whether the reasons of the act were pertinent or sufficient. On indeterminate notions,
Stribis (2009), p. 41.
E. Scalieri
of this State’s decision, as well as upon its evaluation of the adequacy and effectiveness of the measures in the specific case. According to the dissenting opinions, the
Tribunal “appears to have functioned as an appellate authority substituting its judgement to that of the local authority”,
56
because it did not exercise a restricted judicial
review which would focus on whether the coastal State’s decision regarding confiscation as a ‘necessary’ enforcement measure contained a manifest error of appreciation or whether it was manifestly arbitrary.
Apart from the manifest error of appreciation, reasonableness and proportionality are applied as criteria of legality; by their very nature these criteria can touch
upon the substance of the decision, as they refer to the relationship between acts and
facts.
57
For this reason, when the judicial control pertains to the exercise by the
coastal State of its discretion, the application of the criteria by the international tribunal should take into account the margin of appreciation and leave room for the
State’s evaluation of the appropriateness and effectiveness of the measures in relation to the elements of the case.
58
Thus, under the restricted judicial review, the
‘unreasonable’ character of the measure refers to situations where it is manifest or
absolutely clear that the measure is disproportionate and could not possibly be justified by the circumstances, a judgment which cannot be defined in advance, but
depends on the specific context.
59
In general, it is difficult to anticipate with a fair degree of certainty how the
courts will review discretion. Moreover, the delimitation of the control of legality is
often not obvious, since the boundaries between the spaces of discretion where in
principle courts should not enter and spaces of judicial review may be blurred and
shifting. It is through the development of the practice of the international adjudicating bodies that the scope and standards of judicial control will be more precisely
determined.
56 M/V “Virginia G”, Joint dissenting opinion of Vice-President Hoffmann and Judges Marotta
Rangel, Chandrasekhara Rao, Kateka, Gao and Bouguetaia, para. 55.
57 The application of the abuse of right entails the risk of restricting the margin of appreciation of
the coastal State, since its imprecise character is prone to be broadly interpreted; a restrictive
approach should preside when identifying the elements of the abuse of rights. On this notion and
the misuse of authority, Kolb (2017), pp. 142–143 and 148.
58 M/V “Virginia G”, Joint dissenting opinion of Vice-President Hoffmann and Judges Marotta
Rangel, Chandrasekhara Rao, Kateka, Gao and Bouguetaia, paras 56–60.
59 Important factors are relevant state practice regarding the measure of the coastal State, the legislation of the coastal State in relation to the Convention, the seriousness of the breach and the effects
of the measure, the adequacy between means and aim (e.g. deterrence) with regard to the enforcement context. In applying the standard of reasonableness and proportionality, without taking into
account the discretionary choices, furthers the control beyond the limits of a restricted review and
constitutes a normal control. In addition, while not all indeterminacy may give rise to discretion,
the use of certain vague terms entails a considerable margin of appreciation of the coastal State.
This does not mean that all unilateral national qualifications are necessarily accepted; the control
focuses on the State’s act which is manifestly inconsistent with the facts of the case and not on the
question whether the reasons of the act were pertinent or sufficient. On indeterminate notions,
Stribis (2009), p. 41.
E. Scalieri