365
from a policy point of view”, it does not find a legal basis for such a “construction”
and, thus, accepts the possibility that a dispute is governed by “distinct dispute settlement regimes” depending on the location of the stocks within the EEZ or on the
high seas. Therefore, a dispute can be submitted to the compulsory procedures, to
the extent that it concerns the part of the stocks located on the high seas, and
excluded from the procedures for the part within the EEZ.
67
However, the principle of non submission of disputes pertaining to coastal State’s
discretion or margin of appreciation is not absolute. It is obvious that disputes
excluded from the compulsory procedures of section 2 by virtue of paragraphs 2 and
3 of Art. 297 can be submitted to judicial review when the parties to the dispute so
decide (Art. 299 of the UNCLOS). Furthermore, since the coastal State can exercise
its discretion to withhold its consent when the conditions of Art. 246(5) relating to
marine scientific research occur, it has been argued that the appreciation of whether
the conditions for the exercise of the coastal State’s discretion exist is subject to
judicial review.
68
Nevertheless, it is not always possible to distinguish between the
exercise as such of the discretion and the conditions that trigger it. Besides, the nonobservance of the conditions for the exercise of the discretion can amount to an
exercise of the rights and competences of Art. 246(5) in a manner that is not compatible with UNCLOS, which, according to Art. 297(2)(b), falls within the ambit of the
conciliation commission; the latter, in any event, should not call in question the
discretion of the coastal state.
69
Moreover, before determining whether the exercise of the discretion of the
coastal State is lawful, the tribunal considers whether such power exists, as well as
its scope.
70
In addition, when a State invokes its sovereign rights as an exception to
the jurisdiction of the tribunal on the basis of Art. 297(2) or (3), the judge considers,
as a preliminary issue, whether the dispute concerns sovereign rights and whether
an activity is within the discretionary power or the margin of appreciation of the
coastal State. Nonetheless, in case the dispute is not excluded from the compulsory
procedures,
71
the judge assesses the lawfulness of the action of the coastal State,
while exercising judicial restraint when it comes to the exercise of its discretion.
67 Ibidem, para. 301. See Casado Raigón (2000), pp. 353 and 359.
68 On the verification of the conditions, see Treves (1983), p. 282. However, since, instead of judiciary or arbitral means of settlement of disputes, a special procedure, i.e. compulsory conciliation,
is established, the challenges to the existence of the conditions for the exercise of the discretionary
power should be submitted to it. See Marine Scientific Research. A revised guide to the implementation of the relevant provisions of the United Nations Convention on the Law of the Sea, DOALOS,
2010, para. 47; Riphagen (1983), p. 290; Orrego Vicuña (1986), p. 99; Scalieris (2011),
pp. 422–426.
69 It is the discretion to withhold its consent or designate special zones, Art. 246(5) and (6).
70 South China Sea, The Philippines’ Memorial, vol. I, para. 7.98. According to it, Art. 297 deals
with disputes concerning the exercise of sovereign rights and jurisdiction, but not with disputes on
the very existence of such rights and on the spatial limits thereof. The tribunal did not address this
argument. See Treves (2001), p. 119.
71 Art. 297(2) or (3) may not be applied for various reasons: either the conditions for its application
are not met, or paragraph 1 is applicable, or the issue of its application did not even arise (e.g. the
Discretionary Power of Coastal States and the Control of Its Compliance…
from a policy point of view”, it does not find a legal basis for such a “construction”
and, thus, accepts the possibility that a dispute is governed by “distinct dispute settlement regimes” depending on the location of the stocks within the EEZ or on the
high seas. Therefore, a dispute can be submitted to the compulsory procedures, to
the extent that it concerns the part of the stocks located on the high seas, and
excluded from the procedures for the part within the EEZ.
67
However, the principle of non submission of disputes pertaining to coastal State’s
discretion or margin of appreciation is not absolute. It is obvious that disputes
excluded from the compulsory procedures of section 2 by virtue of paragraphs 2 and
3 of Art. 297 can be submitted to judicial review when the parties to the dispute so
decide (Art. 299 of the UNCLOS). Furthermore, since the coastal State can exercise
its discretion to withhold its consent when the conditions of Art. 246(5) relating to
marine scientific research occur, it has been argued that the appreciation of whether
the conditions for the exercise of the coastal State’s discretion exist is subject to
judicial review.
68
Nevertheless, it is not always possible to distinguish between the
exercise as such of the discretion and the conditions that trigger it. Besides, the nonobservance of the conditions for the exercise of the discretion can amount to an
exercise of the rights and competences of Art. 246(5) in a manner that is not compatible with UNCLOS, which, according to Art. 297(2)(b), falls within the ambit of the
conciliation commission; the latter, in any event, should not call in question the
discretion of the coastal state.
69
Moreover, before determining whether the exercise of the discretion of the
coastal State is lawful, the tribunal considers whether such power exists, as well as
its scope.
70
In addition, when a State invokes its sovereign rights as an exception to
the jurisdiction of the tribunal on the basis of Art. 297(2) or (3), the judge considers,
as a preliminary issue, whether the dispute concerns sovereign rights and whether
an activity is within the discretionary power or the margin of appreciation of the
coastal State. Nonetheless, in case the dispute is not excluded from the compulsory
procedures,
71
the judge assesses the lawfulness of the action of the coastal State,
while exercising judicial restraint when it comes to the exercise of its discretion.
67 Ibidem, para. 301. See Casado Raigón (2000), pp. 353 and 359.
68 On the verification of the conditions, see Treves (1983), p. 282. However, since, instead of judiciary or arbitral means of settlement of disputes, a special procedure, i.e. compulsory conciliation,
is established, the challenges to the existence of the conditions for the exercise of the discretionary
power should be submitted to it. See Marine Scientific Research. A revised guide to the implementation of the relevant provisions of the United Nations Convention on the Law of the Sea, DOALOS,
2010, para. 47; Riphagen (1983), p. 290; Orrego Vicuña (1986), p. 99; Scalieris (2011),
pp. 422–426.
69 It is the discretion to withhold its consent or designate special zones, Art. 246(5) and (6).
70 South China Sea, The Philippines’ Memorial, vol. I, para. 7.98. According to it, Art. 297 deals
with disputes concerning the exercise of sovereign rights and jurisdiction, but not with disputes on
the very existence of such rights and on the spatial limits thereof. The tribunal did not address this
argument. See Treves (2001), p. 119.
71 Art. 297(2) or (3) may not be applied for various reasons: either the conditions for its application
are not met, or paragraph 1 is applicable, or the issue of its application did not even arise (e.g. the
Discretionary Power of Coastal States and the Control of Its Compliance…