367
exercise (…)”. Hence, not every dispute regarding fisheries is excluded from
the compulsory procedures
75
; nevertheless, in practice, it would be difficult to
identify disputes relating to fisheries
76
that do not concern the exploitation and
conservation of living resources in the EEZ. Sedentary species is a case which
does not fall within the exception of paragraph 3, because these species do not
belong to the living resources of the EEZ, as was confirmed by the arbitral tribunal in the Chagos case.
77
Thus, these disputes are submitted to the compulsory procedures either by virtue of the first part of Art. 297(3)(a) or on the basis
of Art. 288 which affords a clear basis.
(ii) disputes involving the exercise of sovereign rights which fall within the ambit
of Art. 297(1)
The first two cases of disputes in Art. 297(1) are related to the freedoms and
rights of navigation, overflight or the laying of submarine cables and pipelines, or
“other internationally lawful uses of the sea specified in article 58”: these are, on the
one hand, disputes arising from the exercise by the coastal State of its sovereign
rights or jurisdiction which allegedly violates the above freedoms and rights and, on
the other hand, disputes arising from the exercise of these freedoms and rights
which allegedly violates the rights of the coastal State provided by the Convention.
The third class of disputes provided in paragraph 1 of Art. 297 which is also subject
to the compulsory procedures of section 2 pertains to the exercise by the coastal
State of its sovereign rights or jurisdiction which allegedly contravenes the international rules and standards established in conformity with the Convention for the
protection and preservation of the marine environment. It has been clarified in
recent case law that this last category of disputes is related to the protection and
preservation of the environment as such, and has not been established for the purpose of protecting navigational rights, overflight, laying of cables and pipelines.
78
Finally, this article has been invoked on several occasions by applicant States as a
principal or subsidiary basis for the jurisdiction of the judicial or arbitral body.
79
75 See Chagos Marine Protected Area, Dissenting and Concurring opinion of Judges Kateka and
Wolfrum, para. 58.
76 This is considered taking into account that the fisheries disputes referred to are those with respect
to the EEZ (supra, note 73). According to another opinion, the reference to “fisheries” can include
the relevant disputes in the territorial sea. See Garcia-Revillo (2015), p. 142; South China Sea,
Hearing, Day 2, pp. 79 and 108. In either case the result is that the relevant disputes in other zones
are submitted to compulsory jurisdiction, be it on the basis of the introduction of Art. 297(3) or of
Art. 288; the exclusions of Art. 297 are limited to disputes relating to sovereign rights.
77 Art. 68 of the UNCLOS. Chagos Marine Protected Area, Award, para. 304.
78 Chagos Marine Protected Area, Award, paras 234–243. See Oxman (2015), p. 404.
79 Indicatively, this article has been invoked by St. Vincent and the Grenadines in the M/V “Saiga”
case, by Mauritius in the Chagos case, by the Philippines in the South China Sea arbitration, in the
sense that Art. 297(1) supports its case on jurisdiction over environmental disputes on the continental shelf, even if China were the relevant coastal State, see Award on Jurisdiction and
Admissibility, para. 362. In the Norstar case Panama asserted that Italy acted “in contravention of
the rights and the provisions of the Convention concerning the freedom and rights of navigation
granted by Article 297”, ITLOS, M/V “Norstar” (Panama v. Italy), Preliminary Objections,
Discretionary Power of Coastal States and the Control of Its Compliance…
exercise (…)”. Hence, not every dispute regarding fisheries is excluded from
the compulsory procedures
75
; nevertheless, in practice, it would be difficult to
identify disputes relating to fisheries
76
that do not concern the exploitation and
conservation of living resources in the EEZ. Sedentary species is a case which
does not fall within the exception of paragraph 3, because these species do not
belong to the living resources of the EEZ, as was confirmed by the arbitral tribunal in the Chagos case.
77
Thus, these disputes are submitted to the compulsory procedures either by virtue of the first part of Art. 297(3)(a) or on the basis
of Art. 288 which affords a clear basis.
(ii) disputes involving the exercise of sovereign rights which fall within the ambit
of Art. 297(1)
The first two cases of disputes in Art. 297(1) are related to the freedoms and
rights of navigation, overflight or the laying of submarine cables and pipelines, or
“other internationally lawful uses of the sea specified in article 58”: these are, on the
one hand, disputes arising from the exercise by the coastal State of its sovereign
rights or jurisdiction which allegedly violates the above freedoms and rights and, on
the other hand, disputes arising from the exercise of these freedoms and rights
which allegedly violates the rights of the coastal State provided by the Convention.
The third class of disputes provided in paragraph 1 of Art. 297 which is also subject
to the compulsory procedures of section 2 pertains to the exercise by the coastal
State of its sovereign rights or jurisdiction which allegedly contravenes the international rules and standards established in conformity with the Convention for the
protection and preservation of the marine environment. It has been clarified in
recent case law that this last category of disputes is related to the protection and
preservation of the environment as such, and has not been established for the purpose of protecting navigational rights, overflight, laying of cables and pipelines.
78
Finally, this article has been invoked on several occasions by applicant States as a
principal or subsidiary basis for the jurisdiction of the judicial or arbitral body.
79
75 See Chagos Marine Protected Area, Dissenting and Concurring opinion of Judges Kateka and
Wolfrum, para. 58.
76 This is considered taking into account that the fisheries disputes referred to are those with respect
to the EEZ (supra, note 73). According to another opinion, the reference to “fisheries” can include
the relevant disputes in the territorial sea. See Garcia-Revillo (2015), p. 142; South China Sea,
Hearing, Day 2, pp. 79 and 108. In either case the result is that the relevant disputes in other zones
are submitted to compulsory jurisdiction, be it on the basis of the introduction of Art. 297(3) or of
Art. 288; the exclusions of Art. 297 are limited to disputes relating to sovereign rights.
77 Art. 68 of the UNCLOS. Chagos Marine Protected Area, Award, para. 304.
78 Chagos Marine Protected Area, Award, paras 234–243. See Oxman (2015), p. 404.
79 Indicatively, this article has been invoked by St. Vincent and the Grenadines in the M/V “Saiga”
case, by Mauritius in the Chagos case, by the Philippines in the South China Sea arbitration, in the
sense that Art. 297(1) supports its case on jurisdiction over environmental disputes on the continental shelf, even if China were the relevant coastal State, see Award on Jurisdiction and
Admissibility, para. 362. In the Norstar case Panama asserted that Italy acted “in contravention of
the rights and the provisions of the Convention concerning the freedom and rights of navigation
granted by Article 297”, ITLOS, M/V “Norstar” (Panama v. Italy), Preliminary Objections,
Discretionary Power of Coastal States and the Control of Its Compliance…