368
Relationship Between Paragraphs 1 and 3 of Art. 297 It may be that the coastal
State, while exercising its sovereign rights over the living resources in the EEZ,
infringes upon the rights of other States or contravenes the rules on the protection of
the environment. The question is which of the two provisions applies, that is paragraph 3 which precludes compulsory jurisdiction for the management of living
resources in the EEZ or paragraph 1 which brings the disputes enumerated therein
into the ambit of the compulsory procedures. It can be deduced from jurisprudence
that it is essentially an issue of characterisation of the dispute which arises.
In particular, in the Chagos arbitration the tribunal considered that neither the
Marine Protected Area (MPA) adopted by the UK, nor the rights of Mauritius
affected by the measure are limited to the living resources in the EEZ. Consequently,
the dispute on the compatibility of the MPA with the UNCLOS cannot be entirely
excluded from the jurisdiction of the tribunal; it is excluded only to the extent that
the rights of fishing held by Mauritius on the basis of the UK’s understandings are
affected by the proclamation of the MPA.
80
But the major part of the issue of compatibility falls within its jurisdiction, as it concerns “the preservation of the marine
environment and the legal regime applicable to the Archipelago and its surrounding
waters when it is eventually returned to Mauritius”. Having observed the relevance
of Arts. 2(3), 56(2), and 194 of the UNCLOS, the tribunal finds that its jurisdiction
derives from Art. 288(1) which refers to the jurisdiction of the court or tribunal
established under Part XV over disputes concerning the interpretation or application
of the Convention. It is on a secondary basis that the tribunal confirms the application of Art. 297(1)(c) related to the violation of environmental rules.
81
Therefore, in determining whether a dispute falls within Art. 297(1)(a)-(c) or
297(3), the judicial or arbitral body proceeds to its qualification by considering
some questions: whether and to what extent it is a dispute that principally relates to
the conservation and management of living resources in the EEZ, what is the nature
of the affected rights of other States, to what extent the alleged violation of navigational and other rights of other States (including rights deriving from undertakings)
is, in fact, the substance of the dispute or merely constitutes an incidental aspect
thereof, whether the dispute comprises dimensions falling under different jurisdictional regimes.
Observations and Submissions of the Republic of Panama to the Preliminary Objections of the
Italian Republic, para. 51. The applicant founded its claim on the breach of Art. 297, thus, attributing to this article a substantive character not compatible with the procedural nature of Art. 297(1).
Besides, the observation of Panama contained in its letter of 2001 that “the arrest is proposed”
according to Art. 297 of the Convention is confusing (Preliminary Exceptions of Italy, annexe F).
Italy did not invoke Art. 297 as an exception to jurisdiction and the Tribunal did not examine the
issue.
80 Insofar as the undertaking relating to fishing rights applies to the EEZ, it is excluded from jurisdiction on the basis of Art. 297(3)(a), Chagos Marine Protected Area, Award, paras 297, 304, and
319. Responding to an argument of Mauritius the tribunal affirmed that “a dispute regarding
Mauritius’ claimed fishing rights in the exclusive economic zone cannot be separated from the
United Kingdom’s sovereign rights with respect to living resources”.
81 Ibidem, paras 319 and 323.
E. Scalieri
Relationship Between Paragraphs 1 and 3 of Art. 297 It may be that the coastal
State, while exercising its sovereign rights over the living resources in the EEZ,
infringes upon the rights of other States or contravenes the rules on the protection of
the environment. The question is which of the two provisions applies, that is paragraph 3 which precludes compulsory jurisdiction for the management of living
resources in the EEZ or paragraph 1 which brings the disputes enumerated therein
into the ambit of the compulsory procedures. It can be deduced from jurisprudence
that it is essentially an issue of characterisation of the dispute which arises.
In particular, in the Chagos arbitration the tribunal considered that neither the
Marine Protected Area (MPA) adopted by the UK, nor the rights of Mauritius
affected by the measure are limited to the living resources in the EEZ. Consequently,
the dispute on the compatibility of the MPA with the UNCLOS cannot be entirely
excluded from the jurisdiction of the tribunal; it is excluded only to the extent that
the rights of fishing held by Mauritius on the basis of the UK’s understandings are
affected by the proclamation of the MPA.
80
But the major part of the issue of compatibility falls within its jurisdiction, as it concerns “the preservation of the marine
environment and the legal regime applicable to the Archipelago and its surrounding
waters when it is eventually returned to Mauritius”. Having observed the relevance
of Arts. 2(3), 56(2), and 194 of the UNCLOS, the tribunal finds that its jurisdiction
derives from Art. 288(1) which refers to the jurisdiction of the court or tribunal
established under Part XV over disputes concerning the interpretation or application
of the Convention. It is on a secondary basis that the tribunal confirms the application of Art. 297(1)(c) related to the violation of environmental rules.
81
Therefore, in determining whether a dispute falls within Art. 297(1)(a)-(c) or
297(3), the judicial or arbitral body proceeds to its qualification by considering
some questions: whether and to what extent it is a dispute that principally relates to
the conservation and management of living resources in the EEZ, what is the nature
of the affected rights of other States, to what extent the alleged violation of navigational and other rights of other States (including rights deriving from undertakings)
is, in fact, the substance of the dispute or merely constitutes an incidental aspect
thereof, whether the dispute comprises dimensions falling under different jurisdictional regimes.
Observations and Submissions of the Republic of Panama to the Preliminary Objections of the
Italian Republic, para. 51. The applicant founded its claim on the breach of Art. 297, thus, attributing to this article a substantive character not compatible with the procedural nature of Art. 297(1).
Besides, the observation of Panama contained in its letter of 2001 that “the arrest is proposed”
according to Art. 297 of the Convention is confusing (Preliminary Exceptions of Italy, annexe F).
Italy did not invoke Art. 297 as an exception to jurisdiction and the Tribunal did not examine the
issue.
80 Insofar as the undertaking relating to fishing rights applies to the EEZ, it is excluded from jurisdiction on the basis of Art. 297(3)(a), Chagos Marine Protected Area, Award, paras 297, 304, and
319. Responding to an argument of Mauritius the tribunal affirmed that “a dispute regarding
Mauritius’ claimed fishing rights in the exclusive economic zone cannot be separated from the
United Kingdom’s sovereign rights with respect to living resources”.
81 Ibidem, paras 319 and 323.
E. Scalieri