363
3 Procedural Limitations to Judicial Control Provided
in the UNCLOS, Particularly in Art. 297
Art. 297 plays a fundamental role in the judicial control of the exercise of sovereign
rights, to the extent that the judge cannot rule on certain disputes concerning such
rights. In particular, in accordance with Art. 297(2) and (3), the coastal State shall
not be obliged to accept the submission to the compulsory dispute settlement procedures (UNCLOS, Part XV, section 2) of a) disputes regarding Arts. 246 et 253
related to the coastal State’s rights and discretion to grant its consent or cease marine
scientific research activities in its EEZ and on its continental shelf, and b) disputes
concerning the sovereign rights with respect to the living resources in the EEZ. In
certain cases where the exercise of these rights is not compatible with the Convention
or is arbitrary, it is only possible to submit the dispute to the conciliation commission which shall not call in question the exercise by the coastal State of its discretion.
60
The recent case law of the international tribunals provides clarifications
regarding the scope of the limitation from a substantive point of view (Sect. 3.1) and
its procedural aspects (Sect. 3.2).
3.1 The Scope of the Limitation in the Light of Recent Case
Law
In order to define the scope of the limitation, it is necessary to identify, on the one
hand, the disputes falling under Art. 297(2) and (3) and, on the other hand, those that
are beyond its scope and are, therefore, subject to the binding settlement of
disputes.
3.1.1 Scope of Disputes Under Art. 297(2) and (3)
The disputes falling under Art. 297(3)
61
pertain to the conservation, management,
exploration and exploitation by the coastal State of the living resources in its EEZ
in accordance with Arts. 61 and 62 of the UNCLOS. Commenting on the argument
60 A commission can be seized after a court or tribunal may have characterised the dispute as one
falling within the scope of the sovereign rights covered by the exceptions of Art. 297(2) or (3). If,
after the commission has rendered its decision, a tribunal is seized to rule e.g. on a compensation
claim, certain questions may arise regarding its jurisdiction and the scope of the judicial review
(e.g. whether the tribunal will be precluded from such a review, whether it is limited or ‘bound’ by
the report of the commission, what is the situation if the commission fails to reach a decision). But,
the answer to these questions depends on the specific circumstances of the case as well as on the
scope of the dispute which may be considered to contain aspects not falling within the decision of
the commission.
61 This part of the analysis concerns mainly Art. 297(3), as the case law pertains to this article.
Discretionary Power of Coastal States and the Control of Its Compliance…
3 Procedural Limitations to Judicial Control Provided
in the UNCLOS, Particularly in Art. 297
Art. 297 plays a fundamental role in the judicial control of the exercise of sovereign
rights, to the extent that the judge cannot rule on certain disputes concerning such
rights. In particular, in accordance with Art. 297(2) and (3), the coastal State shall
not be obliged to accept the submission to the compulsory dispute settlement procedures (UNCLOS, Part XV, section 2) of a) disputes regarding Arts. 246 et 253
related to the coastal State’s rights and discretion to grant its consent or cease marine
scientific research activities in its EEZ and on its continental shelf, and b) disputes
concerning the sovereign rights with respect to the living resources in the EEZ. In
certain cases where the exercise of these rights is not compatible with the Convention
or is arbitrary, it is only possible to submit the dispute to the conciliation commission which shall not call in question the exercise by the coastal State of its discretion.
60
The recent case law of the international tribunals provides clarifications
regarding the scope of the limitation from a substantive point of view (Sect. 3.1) and
its procedural aspects (Sect. 3.2).
3.1 The Scope of the Limitation in the Light of Recent Case
Law
In order to define the scope of the limitation, it is necessary to identify, on the one
hand, the disputes falling under Art. 297(2) and (3) and, on the other hand, those that
are beyond its scope and are, therefore, subject to the binding settlement of
disputes.
3.1.1 Scope of Disputes Under Art. 297(2) and (3)
The disputes falling under Art. 297(3)
61
pertain to the conservation, management,
exploration and exploitation by the coastal State of the living resources in its EEZ
in accordance with Arts. 61 and 62 of the UNCLOS. Commenting on the argument
60 A commission can be seized after a court or tribunal may have characterised the dispute as one
falling within the scope of the sovereign rights covered by the exceptions of Art. 297(2) or (3). If,
after the commission has rendered its decision, a tribunal is seized to rule e.g. on a compensation
claim, certain questions may arise regarding its jurisdiction and the scope of the judicial review
(e.g. whether the tribunal will be precluded from such a review, whether it is limited or ‘bound’ by
the report of the commission, what is the situation if the commission fails to reach a decision). But,
the answer to these questions depends on the specific circumstances of the case as well as on the
scope of the dispute which may be considered to contain aspects not falling within the decision of
the commission.
61 This part of the analysis concerns mainly Art. 297(3), as the case law pertains to this article.
Discretionary Power of Coastal States and the Control of Its Compliance…