369
Broad Scope of Art. 297(1)(c) It has been pointed out by the relevant case law that
this provision encompasses disputes concerning the protection of ecosystems which
is an aspect of the preservation of the marine environment (Art. 194(5)) and, thus, is
not confined to measures directed at controlling marine pollution. In the Chagos
case, the tribunal concluded that the provision refers to the “rules and standards”
concerning the preservation of the marine environment which are either established
in the Convention itself
82
or elaborated by international organizations in accordance
with the Convention. Furthermore, both substantive and procedural rules on the
preservation of the marine environment are encompassed in Art. 297(1)(c).
83
In the
South China Sea arbitration the tribunal refers to this article as the basis for its jurisdiction to consider the submission of the Philippines concerning the protection and
the preservation of the environment at Scarborough Shoal and at Second Thomas
Shoal and the application of Arts. 192 and 194 of the UNCLOS.
84
It is clarified that
this article provides such a basis “to the extent the alleged harmful activities took
place in the exclusive economic zone of the Philippines, of China or in an area of
overlapping entitlement”, because, with respect to activities that took place in the
territorial sea, Arts. 297 and 298 have no application. Furthermore, the tribunal
proceeded to examine the application of the provisions of Part XII with respect to
the harvesting of vulnerable and endangered species, including sedentary species,
since disputes regarding the application of the provisions of UNCLOS are subject
to its jurisdiction which is affirmed by virtue of Art. 297(1)(c).
85
3.1.3 Exhaustive Enumeration of Cases Subject to Compulsory
Settlement of Disputes?
The question arises whether any other dispute concerning the exercise of sovereign
rights which does not fall within either the exceptions to jurisdiction (under Art.
297(2) and (3)) or the provision of Art. 297(1) is excluded from the compulsory
procedures of section 2 (Part XV). In this context, the interpretation of the introductory sentence of paragraph 1 in Art. 297 is critical (“Disputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal
State of its sovereign rights or jurisdiction provided for in this Convention shall be
subject to the procedures provided for in section 2 in the following cases:…”); both
the wording and its placement in Art. 297 entitled “limitations on applicability of
82 Ibidem, paras 320–321. Such as measures allegedly violating Arts. 194(4) or 211(5). See ibidem,
Dissenting and Concurring Opinion of Judges Kateka and Wolfrum, paras 53–54.
83 Ibidem, Award, para. 322. On the expansion of the scope of disputes by the renvoi to other rules,
para. 316.
84 South China Sea, Award on Jurisdiction and Admissibility, para. 408. It could be observed that,
although not expressly stated, this basis is referred to in addition to the general one of Art. 288 of
the UNCLOS: being satisfied that the submissions of the Philippines, including submission 11,
concern the interpretation and application of the UNCLOS (ibidem, para. 178), the tribunal proceeds to examine the application of Arts. 297 and 298 and their impact to its jurisdiction.
85 South China Sea, Award, paras 949, 960, and 992.
Discretionary Power of Coastal States and the Control of Its Compliance…
Broad Scope of Art. 297(1)(c) It has been pointed out by the relevant case law that
this provision encompasses disputes concerning the protection of ecosystems which
is an aspect of the preservation of the marine environment (Art. 194(5)) and, thus, is
not confined to measures directed at controlling marine pollution. In the Chagos
case, the tribunal concluded that the provision refers to the “rules and standards”
concerning the preservation of the marine environment which are either established
in the Convention itself
82
or elaborated by international organizations in accordance
with the Convention. Furthermore, both substantive and procedural rules on the
preservation of the marine environment are encompassed in Art. 297(1)(c).
83
In the
South China Sea arbitration the tribunal refers to this article as the basis for its jurisdiction to consider the submission of the Philippines concerning the protection and
the preservation of the environment at Scarborough Shoal and at Second Thomas
Shoal and the application of Arts. 192 and 194 of the UNCLOS.
84
It is clarified that
this article provides such a basis “to the extent the alleged harmful activities took
place in the exclusive economic zone of the Philippines, of China or in an area of
overlapping entitlement”, because, with respect to activities that took place in the
territorial sea, Arts. 297 and 298 have no application. Furthermore, the tribunal
proceeded to examine the application of the provisions of Part XII with respect to
the harvesting of vulnerable and endangered species, including sedentary species,
since disputes regarding the application of the provisions of UNCLOS are subject
to its jurisdiction which is affirmed by virtue of Art. 297(1)(c).
85
3.1.3 Exhaustive Enumeration of Cases Subject to Compulsory
Settlement of Disputes?
The question arises whether any other dispute concerning the exercise of sovereign
rights which does not fall within either the exceptions to jurisdiction (under Art.
297(2) and (3)) or the provision of Art. 297(1) is excluded from the compulsory
procedures of section 2 (Part XV). In this context, the interpretation of the introductory sentence of paragraph 1 in Art. 297 is critical (“Disputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal
State of its sovereign rights or jurisdiction provided for in this Convention shall be
subject to the procedures provided for in section 2 in the following cases:…”); both
the wording and its placement in Art. 297 entitled “limitations on applicability of
82 Ibidem, paras 320–321. Such as measures allegedly violating Arts. 194(4) or 211(5). See ibidem,
Dissenting and Concurring Opinion of Judges Kateka and Wolfrum, paras 53–54.
83 Ibidem, Award, para. 322. On the expansion of the scope of disputes by the renvoi to other rules,
para. 316.
84 South China Sea, Award on Jurisdiction and Admissibility, para. 408. It could be observed that,
although not expressly stated, this basis is referred to in addition to the general one of Art. 288 of
the UNCLOS: being satisfied that the submissions of the Philippines, including submission 11,
concern the interpretation and application of the UNCLOS (ibidem, para. 178), the tribunal proceeds to examine the application of Arts. 297 and 298 and their impact to its jurisdiction.
85 South China Sea, Award, paras 949, 960, and 992.
Discretionary Power of Coastal States and the Control of Its Compliance…