364
of the UK that Art. 297(3) covers the protection of biodiversity, Judges Kateka and
Wolfrum noted in their dissenting and concurring opinion in the Chagos arbitration
that this issue “does not come under the sovereign rights concerning the protection
and management of living resources” and that including it in the scope of the exception is not sustained by Arts. 61 and 62.
62
Concerning the spatial scope of Art.
297(3), the award in the South China Sea arbitration stated that this provision “could
potentially bar the Tribunal’s jurisdiction over the Philippines claims in relation to
fisheries, to the extent that the events in question took place in China’s exclusive
economic zone or in an area of overlapping entitlements”.
63
Straddling Stocks and Highly Migratory Species In the case concerning the delimitation of maritime boundaries between Barbados and Trinidad and Tobago, the
arbitral tribunal upheld the objection to jurisdiction, because, on the basis of Art.
297(3), it did not have jurisdiction to make an award establishing a right of access
of the Barbados in the EEZ of Trinidad and Tobago; besides, “viewed in the context
of the dispute” over which the tribunal has jurisdiction, such an award would be
ultra petita, lacking the relevant consent of Trinidad and Tobago on this issue.
64
The
tribunal refers to the access by Barbadian fishermen to the flyingfish stocks within
the EEZ of Trinidad and Tobago, only to point out certain matters that are necessarily entailed by the boundary line that it has drawn and to highlight the commitment
of the latter to negotiate an access agreement with Barbados. In an earlier case
concerning the Southern Bluefin Tuna the arbitral tribunal did not deal with the issue
of the applicability of the exception,
65
as, on the one hand, the object of the dispute
related to the fishing of tuna by Japan on the high seas and, on the other hand, the
applicants’ position was that Art. 297(3) was of no relevance. Apart from these
arbitrations, the case concerning the Chagos archipelago is also relevant to the
applicability of Art. 297(3) with respect to disputes concerning the fishing and management of straddling stocks and highly migratory species. In particular, the tribunal ascertained that disputes relating to the application of Arts. 63 and 64 of the
UNCLOS (and of the 1995 Fish Stocks Agreement) in the EEZ of the coastal State,
as well as to the procedural obligations deriving from these provisions, fall within
the exclusion of paragraph 3 of Art. 297.
66
Although the tribunal considers that dealing with the management of these fish
stocks as a whole under the same dispute settlement regime would be “desirable
62 Chagos Marine Protected Area, Dissenting and Concurring opinion of Judges Kateka and
Wolfrum, paras 56 and 58. For the total ban on fishing possibly not covered by the exclusion, ibidem, para. 60.
63 PCA, South China Sea arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 359. Italics added.
64 PCA, Maritime boundary delimitation (Barbados v. Trinidad and Tobago), Award, 11 April
2006, paras 276 and 292.
65 Moreover, Japan did not invoke it. Arbitral Tribunal, Southern Bluefin Tuna (New Zealand v.
Japan, Australia v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, para. 41.
66 Chagos Marine Protected Area, Award, para. 300 (referring to the previous cases).
E. Scalieri
of the UK that Art. 297(3) covers the protection of biodiversity, Judges Kateka and
Wolfrum noted in their dissenting and concurring opinion in the Chagos arbitration
that this issue “does not come under the sovereign rights concerning the protection
and management of living resources” and that including it in the scope of the exception is not sustained by Arts. 61 and 62.
62
Concerning the spatial scope of Art.
297(3), the award in the South China Sea arbitration stated that this provision “could
potentially bar the Tribunal’s jurisdiction over the Philippines claims in relation to
fisheries, to the extent that the events in question took place in China’s exclusive
economic zone or in an area of overlapping entitlements”.
63
Straddling Stocks and Highly Migratory Species In the case concerning the delimitation of maritime boundaries between Barbados and Trinidad and Tobago, the
arbitral tribunal upheld the objection to jurisdiction, because, on the basis of Art.
297(3), it did not have jurisdiction to make an award establishing a right of access
of the Barbados in the EEZ of Trinidad and Tobago; besides, “viewed in the context
of the dispute” over which the tribunal has jurisdiction, such an award would be
ultra petita, lacking the relevant consent of Trinidad and Tobago on this issue.
64
The
tribunal refers to the access by Barbadian fishermen to the flyingfish stocks within
the EEZ of Trinidad and Tobago, only to point out certain matters that are necessarily entailed by the boundary line that it has drawn and to highlight the commitment
of the latter to negotiate an access agreement with Barbados. In an earlier case
concerning the Southern Bluefin Tuna the arbitral tribunal did not deal with the issue
of the applicability of the exception,
65
as, on the one hand, the object of the dispute
related to the fishing of tuna by Japan on the high seas and, on the other hand, the
applicants’ position was that Art. 297(3) was of no relevance. Apart from these
arbitrations, the case concerning the Chagos archipelago is also relevant to the
applicability of Art. 297(3) with respect to disputes concerning the fishing and management of straddling stocks and highly migratory species. In particular, the tribunal ascertained that disputes relating to the application of Arts. 63 and 64 of the
UNCLOS (and of the 1995 Fish Stocks Agreement) in the EEZ of the coastal State,
as well as to the procedural obligations deriving from these provisions, fall within
the exclusion of paragraph 3 of Art. 297.
66
Although the tribunal considers that dealing with the management of these fish
stocks as a whole under the same dispute settlement regime would be “desirable
62 Chagos Marine Protected Area, Dissenting and Concurring opinion of Judges Kateka and
Wolfrum, paras 56 and 58. For the total ban on fishing possibly not covered by the exclusion, ibidem, para. 60.
63 PCA, South China Sea arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 359. Italics added.
64 PCA, Maritime boundary delimitation (Barbados v. Trinidad and Tobago), Award, 11 April
2006, paras 276 and 292.
65 Moreover, Japan did not invoke it. Arbitral Tribunal, Southern Bluefin Tuna (New Zealand v.
Japan, Australia v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, para. 41.
66 Chagos Marine Protected Area, Award, para. 300 (referring to the previous cases).
E. Scalieri