370
section 2” could allow an a contrario interpretation according to which any other
disputes involving the exercise of sovereign rights that are not among the enumerated cases of paragraph 1 are excluded from the compulsory settlement of disputes.
On the basis of this approach, in addition to this implied exclusion, it was deemed
necessary to explicitly exclude specific disputes in Art. 297(2) and (3) relating to
maritime scientific research and management of living resources which both involve
a high degree of discretion of the coastal State in its EEZ, in order to comprehensively regulate these disputes with respect to their dispute settlement regime.
According to the opposite approach, Art. 297(1) simply reaffirms the application of
compulsory jurisdiction established in Art. 288 of the UNCLOS especially for disputes concerning the exercise of sovereign rights and jurisdiction of the coastal
State in its EEZ and does not bar tribunals from considering such disputes in cases
other than those enumerated in Art. 297(1).
These two approaches are highlighted in recent case law. In the Chagos arbitration the tribunal asserted that a dispute pertaining to the application or interpretation
of the Convention which does not fall within the exclusions from jurisdiction provided for in Art. 297(2) or (3), is submitted to the compulsory procedures of section
2 by virtue of Art. 288(1), without it being necessary to examine the applicability of
Art. 297(1).
86
As to the effect of Art. 297(1), the tribunal finds that it is not limited
to reaffirming the application of compulsory jurisdiction over the three sets of disputes enumerated therein: it subjects these disputes to the procedural safeguards
contained in Art. 294, as evidenced by the wording of the latter provision and the
negotiating history of Art. 297.
87
In the South China Sea arbitration the tribunal distances itself from this approach:
it affirms that “Αrticle 297 could be understood as implicitly limiting the jurisdiction of courts and tribunals over disputes concerning sovereign rights and jurisdiction in the exclusive economic zone only to the cases specifically identified in that
Article”.
88
As the tribunal observes, this reading has been followed on certain occasions, “although the tribunal in the Chagos Marine Protected Area recently declined
86 It is important that in characterising the dispute the tribunal begins by considering the applicability of Art. 297(3)(a). Thus, it does not follow the reasoning contained in Mauritius’ argumentation
according to which the two provisions, 297(1) (c) and 297(3) (a), are independent grants of jurisdiction, meaning that if Art. 297(1) is found applicable, jurisdiction is established and “the exception contained in 297(3) is irrelevant”.
87 Chagos Marine Protected Area, Award, para. 315. According to the tribunal the need for a
restrictive enumeration of disputes in the initial projects of Art. 297(1) no more arose when procedural safeguards and express limitations were introduced. See Allen (2017), p. 313ff., Serdy
(2017), pp. 1913–1914 and Talmon (2016), p. 943.
88 South China Sea, Award on Jurisdiction and Admissibility, para. 359. The tribunal referred to this
dimension, but did not pursue its reasoning nor did it draw the consequences therefrom, as it
focused on specific issues. Although the Philippines initially invoked the exhaustive enumeration
of disputes in Art. 297(1), they subsequently adopted the approach applied by the arbitral tribunal
in the Chagos arbitration (ibidem, para. 361); also the Philippines’ Memorial, paras 7.96, and
7.105.
E. Scalieri
section 2” could allow an a contrario interpretation according to which any other
disputes involving the exercise of sovereign rights that are not among the enumerated cases of paragraph 1 are excluded from the compulsory settlement of disputes.
On the basis of this approach, in addition to this implied exclusion, it was deemed
necessary to explicitly exclude specific disputes in Art. 297(2) and (3) relating to
maritime scientific research and management of living resources which both involve
a high degree of discretion of the coastal State in its EEZ, in order to comprehensively regulate these disputes with respect to their dispute settlement regime.
According to the opposite approach, Art. 297(1) simply reaffirms the application of
compulsory jurisdiction established in Art. 288 of the UNCLOS especially for disputes concerning the exercise of sovereign rights and jurisdiction of the coastal
State in its EEZ and does not bar tribunals from considering such disputes in cases
other than those enumerated in Art. 297(1).
These two approaches are highlighted in recent case law. In the Chagos arbitration the tribunal asserted that a dispute pertaining to the application or interpretation
of the Convention which does not fall within the exclusions from jurisdiction provided for in Art. 297(2) or (3), is submitted to the compulsory procedures of section
2 by virtue of Art. 288(1), without it being necessary to examine the applicability of
Art. 297(1).
86
As to the effect of Art. 297(1), the tribunal finds that it is not limited
to reaffirming the application of compulsory jurisdiction over the three sets of disputes enumerated therein: it subjects these disputes to the procedural safeguards
contained in Art. 294, as evidenced by the wording of the latter provision and the
negotiating history of Art. 297.
87
In the South China Sea arbitration the tribunal distances itself from this approach:
it affirms that “Αrticle 297 could be understood as implicitly limiting the jurisdiction of courts and tribunals over disputes concerning sovereign rights and jurisdiction in the exclusive economic zone only to the cases specifically identified in that
Article”.
88
As the tribunal observes, this reading has been followed on certain occasions, “although the tribunal in the Chagos Marine Protected Area recently declined
86 It is important that in characterising the dispute the tribunal begins by considering the applicability of Art. 297(3)(a). Thus, it does not follow the reasoning contained in Mauritius’ argumentation
according to which the two provisions, 297(1) (c) and 297(3) (a), are independent grants of jurisdiction, meaning that if Art. 297(1) is found applicable, jurisdiction is established and “the exception contained in 297(3) is irrelevant”.
87 Chagos Marine Protected Area, Award, para. 315. According to the tribunal the need for a
restrictive enumeration of disputes in the initial projects of Art. 297(1) no more arose when procedural safeguards and express limitations were introduced. See Allen (2017), p. 313ff., Serdy
(2017), pp. 1913–1914 and Talmon (2016), p. 943.
88 South China Sea, Award on Jurisdiction and Admissibility, para. 359. The tribunal referred to this
dimension, but did not pursue its reasoning nor did it draw the consequences therefrom, as it
focused on specific issues. Although the Philippines initially invoked the exhaustive enumeration
of disputes in Art. 297(1), they subsequently adopted the approach applied by the arbitral tribunal
in the Chagos arbitration (ibidem, para. 361); also the Philippines’ Memorial, paras 7.96, and
7.105.
E. Scalieri