371
to endorse this interpretation”. The approach of the tribunal in the South China Sea
case is similar to the one previously reflected in the Southern Bluefin Tuna Award.
89
Nevertheless, the practical value of the distinction between the two approaches
could be questioned. Most disputes concerning the exercise of sovereign rights fall
either within the exception to jurisdiction under paragraphs 2 or 3 of Art. 297, or
within the sets of disputes which are subject to compulsory jurisdiction under paragraph 1.
90
Thus, disputes beyond these categories are not easily identified a priori,
depending on the concrete circumstances of each case, and would seem to be limited. With respect to such a dispute concerning the exercise by the coastal State of
its sovereign rights over non-living resources, it has been determined by recent
jurisprudence that it does not fall under the exception of Art. 297(3). In the case of
the Maritime delimitation between Guyana and Suriname, the arbitral tribunal concluded that any dispute “which is not excluded by the operation of Part XV, section
3 (articles 297 and 298), falls under the compulsory procedures in Section 2”; thus,
it did not proceed to any interpretation of Art. 297(1) based on the exhaustive enumeration of the cases therein.
91
Furthermore, the finding that sedentary species, as
already mentioned, do not fall within the scope of the exception of Art. 297(3)
brings the relevant disputes under the compulsory dispute settlement.
92
Consequently, apart from these latter cases regarding the exercise of sovereign
rights by the coastal State with respect to its continental shelf, it is difficult to deduce
from the jurisprudence a clear picture as to the disputes concerning the exercise of
sovereign rights and jurisdiction by the coastal State in its EEZ which do not fall
within the ambit of Art. 297. However, some observations could be made in this
regard.
93
Firstly, the scope of these disputes depends on the determination of the
scope of the disputes falling within Art. 297(2) and (3).
94
Secondly, disputes, not
falling therein, may contain both aspects that are related to the exercise of jurisdiction of the coastal State in its EEZ per se and aspects relating to other provisions of
the UNCLOS whose consideration is based on Art. 288. These elements being often
interconnected, it depends on how the judicial or arbitral body will identify the
89 “Paragraph 1 of article 297 limits the application of such procedures to disputes concerning the
exercise by a coastal State of its sovereign rights or jurisdiction in certain identified cases only,
(…)”, Southern Bluefin Tuna, Award on Jurisdiction and Admissibility, para. 61.
90 See also supra Sect. 3.1.2 (i) on the function of the introduction of Art. 297(2) and (3).
91 PCA, Maritime boundary delimitation (Guyana v. Suriname), Award, 17 September 2007, paras
414–415. The arbitral tribunal did not entertain Suriname’s argument that compulsory settlement
is only available for the three kinds of disputes listed in Art. 297 and that the dispute concerning
the coastal State’s enforcement of its sovereign rights with respect to non-living resources lies
outside its jurisdiction (ibidem, para. 412).
92 See supra Sect. 3.1.2. (i).
93 The ‘automatic’ submission to Art. 288 (viewed as applying residually) of disputes not falling
within Art. 297(2) or (3) should be qualified, as it raises the issues mentioned.
94 The latter entails qualifying the activity at issue and examining where the ‘weight’ of the dispute
lies, its substance, the rights involved, the context of the submission (supra Sect. 3.1.2.(ii)). The
structure of Art. 297 warrants neither a wide nor a restrictive approach or narrow reading of paras
2 and 3.
Discretionary Power of Coastal States and the Control of Its Compliance…
to endorse this interpretation”. The approach of the tribunal in the South China Sea
case is similar to the one previously reflected in the Southern Bluefin Tuna Award.
89
Nevertheless, the practical value of the distinction between the two approaches
could be questioned. Most disputes concerning the exercise of sovereign rights fall
either within the exception to jurisdiction under paragraphs 2 or 3 of Art. 297, or
within the sets of disputes which are subject to compulsory jurisdiction under paragraph 1.
90
Thus, disputes beyond these categories are not easily identified a priori,
depending on the concrete circumstances of each case, and would seem to be limited. With respect to such a dispute concerning the exercise by the coastal State of
its sovereign rights over non-living resources, it has been determined by recent
jurisprudence that it does not fall under the exception of Art. 297(3). In the case of
the Maritime delimitation between Guyana and Suriname, the arbitral tribunal concluded that any dispute “which is not excluded by the operation of Part XV, section
3 (articles 297 and 298), falls under the compulsory procedures in Section 2”; thus,
it did not proceed to any interpretation of Art. 297(1) based on the exhaustive enumeration of the cases therein.
91
Furthermore, the finding that sedentary species, as
already mentioned, do not fall within the scope of the exception of Art. 297(3)
brings the relevant disputes under the compulsory dispute settlement.
92
Consequently, apart from these latter cases regarding the exercise of sovereign
rights by the coastal State with respect to its continental shelf, it is difficult to deduce
from the jurisprudence a clear picture as to the disputes concerning the exercise of
sovereign rights and jurisdiction by the coastal State in its EEZ which do not fall
within the ambit of Art. 297. However, some observations could be made in this
regard.
93
Firstly, the scope of these disputes depends on the determination of the
scope of the disputes falling within Art. 297(2) and (3).
94
Secondly, disputes, not
falling therein, may contain both aspects that are related to the exercise of jurisdiction of the coastal State in its EEZ per se and aspects relating to other provisions of
the UNCLOS whose consideration is based on Art. 288. These elements being often
interconnected, it depends on how the judicial or arbitral body will identify the
89 “Paragraph 1 of article 297 limits the application of such procedures to disputes concerning the
exercise by a coastal State of its sovereign rights or jurisdiction in certain identified cases only,
(…)”, Southern Bluefin Tuna, Award on Jurisdiction and Admissibility, para. 61.
90 See also supra Sect. 3.1.2 (i) on the function of the introduction of Art. 297(2) and (3).
91 PCA, Maritime boundary delimitation (Guyana v. Suriname), Award, 17 September 2007, paras
414–415. The arbitral tribunal did not entertain Suriname’s argument that compulsory settlement
is only available for the three kinds of disputes listed in Art. 297 and that the dispute concerning
the coastal State’s enforcement of its sovereign rights with respect to non-living resources lies
outside its jurisdiction (ibidem, para. 412).
92 See supra Sect. 3.1.2. (i).
93 The ‘automatic’ submission to Art. 288 (viewed as applying residually) of disputes not falling
within Art. 297(2) or (3) should be qualified, as it raises the issues mentioned.
94 The latter entails qualifying the activity at issue and examining where the ‘weight’ of the dispute
lies, its substance, the rights involved, the context of the submission (supra Sect. 3.1.2.(ii)). The
structure of Art. 297 warrants neither a wide nor a restrictive approach or narrow reading of paras
2 and 3.
Discretionary Power of Coastal States and the Control of Its Compliance…