366
3.1.2 Categories of Disputes Concerning Sovereign Rights or Jurisdiction
of the Coastal State Which Are Subject to Compulsory Procedures
Apart from the disputes falling within the ambit of the exclusion of Art. 297(2) and
(3), it would be interesting to examine the other categories of disputes which,
although involving sovereign rights,
72
are not excluded from the compulsory
procedures.
(i) disputes in the field of marine scientific research and fisheries
According to paragraph 2 of Art. 297, “disputes concerning the interpretation or application of the Convention with regard to marine scientific research
shall be settled in accordance with section 2, except that the coastal state shall
not be obliged to accept the submission to such settlement of any dispute arising out of the exercise by the coastal State of a right or discretion in accordance
with article 246” or Art. 253. It follows that this first type of disputes contains
those which, although pertaining to marine scientific research in the EEZ or on
the continental shelf,
73
are not among the situations envisaged in Arts. 246 and
253. Assuming that there can be discretionary rights, or competences involving
a margin of appreciation beyond these articles (e.g. a dispute concerning the
obligation of the requesting State to obtain the prior agreement of the coastal
State to disseminate the results of the research or the establishment of security
zones around the installations), the disputes deriving therefrom are submitted to
the compulsory procedures of section 2. However, such situations are limited
74
and, because of the interaction of the relevant provisions, it is often difficult to
distinguish the rights regulated in Arts. 246 and 253 from the other provisions
of Part XIII related to marine scientific research.
In the same vein, paragraph 3 of Art. 297 provides that the disputes concerning the interpretation or application of the Convention “with regard to fisheries
shall be settled in accordance with section 2, except that the coastal State shall
not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect the living resources in the EEZ or their
coastal State did not invoke it and, in fact, accepted the submission of the dispute to adjudication).
In the M/V “Virginia G” case the Tribunal proceeded to examining the enforcement measures on
bunkering that the coastal State had taken in exercising its sovereign rights after having founded its
jurisdiction on the special agreement of the parties, as well as on Arts. 286–288 of the UNCLOS
(Judgment, para. 92); thus, the application of Art. 297(3) did not arise.
72 Sovereign rights involve the discretion of the coastal State, supra Sect. 2.3.
73 The disputes envisaged in Art. 297(2) concern the EEZ and the continental shelf, since disputes
concerning marine scientific research in the other zones are subject to the compulsory procedures
on the basis of the general provisions of the UNCLOS (Art. 288). See South China Sea, Award on
Jurisdiction and Admissibility, paras. 407–408 (“articles 297 and 298 have no application in the
territorial sea”); also Philippines’ Supplemental written submissions, vol. I, para. 4.3. See Treves
(2001), p. 118.
74 Chagos Marine Protected Area, Award, para. 308: the arbitral tribunal envisaged the possibility
that the jurisdiction over marine scientific research recognized in Art. 297(2) “in some cases will
involve sovereign rights in the exclusive economic zone”.
E. Scalieri
3.1.2 Categories of Disputes Concerning Sovereign Rights or Jurisdiction
of the Coastal State Which Are Subject to Compulsory Procedures
Apart from the disputes falling within the ambit of the exclusion of Art. 297(2) and
(3), it would be interesting to examine the other categories of disputes which,
although involving sovereign rights,
72
are not excluded from the compulsory
procedures.
(i) disputes in the field of marine scientific research and fisheries
According to paragraph 2 of Art. 297, “disputes concerning the interpretation or application of the Convention with regard to marine scientific research
shall be settled in accordance with section 2, except that the coastal state shall
not be obliged to accept the submission to such settlement of any dispute arising out of the exercise by the coastal State of a right or discretion in accordance
with article 246” or Art. 253. It follows that this first type of disputes contains
those which, although pertaining to marine scientific research in the EEZ or on
the continental shelf,
73
are not among the situations envisaged in Arts. 246 and
253. Assuming that there can be discretionary rights, or competences involving
a margin of appreciation beyond these articles (e.g. a dispute concerning the
obligation of the requesting State to obtain the prior agreement of the coastal
State to disseminate the results of the research or the establishment of security
zones around the installations), the disputes deriving therefrom are submitted to
the compulsory procedures of section 2. However, such situations are limited
74
and, because of the interaction of the relevant provisions, it is often difficult to
distinguish the rights regulated in Arts. 246 and 253 from the other provisions
of Part XIII related to marine scientific research.
In the same vein, paragraph 3 of Art. 297 provides that the disputes concerning the interpretation or application of the Convention “with regard to fisheries
shall be settled in accordance with section 2, except that the coastal State shall
not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect the living resources in the EEZ or their
coastal State did not invoke it and, in fact, accepted the submission of the dispute to adjudication).
In the M/V “Virginia G” case the Tribunal proceeded to examining the enforcement measures on
bunkering that the coastal State had taken in exercising its sovereign rights after having founded its
jurisdiction on the special agreement of the parties, as well as on Arts. 286–288 of the UNCLOS
(Judgment, para. 92); thus, the application of Art. 297(3) did not arise.
72 Sovereign rights involve the discretion of the coastal State, supra Sect. 2.3.
73 The disputes envisaged in Art. 297(2) concern the EEZ and the continental shelf, since disputes
concerning marine scientific research in the other zones are subject to the compulsory procedures
on the basis of the general provisions of the UNCLOS (Art. 288). See South China Sea, Award on
Jurisdiction and Admissibility, paras. 407–408 (“articles 297 and 298 have no application in the
territorial sea”); also Philippines’ Supplemental written submissions, vol. I, para. 4.3. See Treves
(2001), p. 118.
74 Chagos Marine Protected Area, Award, para. 308: the arbitral tribunal envisaged the possibility
that the jurisdiction over marine scientific research recognized in Art. 297(2) “in some cases will
involve sovereign rights in the exclusive economic zone”.
E. Scalieri