372
dispute. Finally, in the light of the above, disputes are not necessarily viewed in
terms of conflict between the sovereign rights and jurisdiction of the coastal State
and the rights of other States according to Art. 58,
95
but other situations may arise,
such as those falling within the scope of Art. 59 of the Convention.
96
3.2 Procedural Aspects in the Light of Recent Jurisprudence
The recent jurisprudence of international judicial and arbitral bodies sheds light on
some procedural aspects of the objection to jurisdiction that the coastal State can
invoke by virtue of Art. 297(2) and (3) aiming at excluding the dispute at issue from
the jurisdiction of the judicial or arbitrary body seized on the basis of the procedures
of section 2 of Part XV.
3.2.1 The Objection to Jurisdiction on the Basis of Art. 297(2) or (3)
Who Raises the Objection The objection can be raised by the coastal State as the
defendant; when the coastal State is the applicant, it would have no sense of invoking the article to the extent that, by deciding to seize the court or tribunal, this State
has accepted to submit the dispute to adjudication.
97
In the South China Sea arbitration, China stated generally in its “Position Paper” that the acceptance by virtue of
its membership to the UNCLOS of the compulsory procedures of section 2 does not
mean that these procedures apply to disputes excluded by Art. 297.
98
The tribunal
affirmed that this provision serves “to limit compulsory dispute settlement where a
claim is brought against a State’s exercise of its sovereign rights in respect of living
resources in its own exclusive economic zone”. It does “not apply where a State is
alleged to have violated the Convention in respect of the exclusive economic zone
of another State”
99
which in this case was found to be the EEZ of the Philippines.
Proprio motu Assessment by the Judge The question which arises is whether it is
necessary that the coastal State invokes the provision as a preliminary objection.
95 In this case the dispute would be subject to the compulsory jurisdiction of the tribunal by virtue
of either Art. 297(1)(a)-(c) or Art. 288. Reducing disputes to such terms, irrespective of their particular elements, entails the risk of narrowing the scope of the sovereign rights involved.
96 In this case, as the dispute concerns the application of the Convention, it falls within the scope of
Art. 288 on the basis of which the tribunal exercises its jurisdiction to qualify the dispute and the
activities involved. If it is found that it pertains to the sovereign rights of the coastal State, then the
applicability of an exclusion from jurisdiction may be at issue and, in any case, judicial restraint
should be exercised.
97 Unless its invocation serves the purpose of delimiting the scope of the dispute, so that this is not
extended to its sovereign rights in the EEZ covered by Art. 297(2) and (3).
98 South China Sea, Award on Jurisdiction and Admissibility, para. 357.
99 South China Sea, Award, para. 695.
E. Scalieri
dispute. Finally, in the light of the above, disputes are not necessarily viewed in
terms of conflict between the sovereign rights and jurisdiction of the coastal State
and the rights of other States according to Art. 58,
95
but other situations may arise,
such as those falling within the scope of Art. 59 of the Convention.
96
3.2 Procedural Aspects in the Light of Recent Jurisprudence
The recent jurisprudence of international judicial and arbitral bodies sheds light on
some procedural aspects of the objection to jurisdiction that the coastal State can
invoke by virtue of Art. 297(2) and (3) aiming at excluding the dispute at issue from
the jurisdiction of the judicial or arbitrary body seized on the basis of the procedures
of section 2 of Part XV.
3.2.1 The Objection to Jurisdiction on the Basis of Art. 297(2) or (3)
Who Raises the Objection The objection can be raised by the coastal State as the
defendant; when the coastal State is the applicant, it would have no sense of invoking the article to the extent that, by deciding to seize the court or tribunal, this State
has accepted to submit the dispute to adjudication.
97
In the South China Sea arbitration, China stated generally in its “Position Paper” that the acceptance by virtue of
its membership to the UNCLOS of the compulsory procedures of section 2 does not
mean that these procedures apply to disputes excluded by Art. 297.
98
The tribunal
affirmed that this provision serves “to limit compulsory dispute settlement where a
claim is brought against a State’s exercise of its sovereign rights in respect of living
resources in its own exclusive economic zone”. It does “not apply where a State is
alleged to have violated the Convention in respect of the exclusive economic zone
of another State”
99
which in this case was found to be the EEZ of the Philippines.
Proprio motu Assessment by the Judge The question which arises is whether it is
necessary that the coastal State invokes the provision as a preliminary objection.
95 In this case the dispute would be subject to the compulsory jurisdiction of the tribunal by virtue
of either Art. 297(1)(a)-(c) or Art. 288. Reducing disputes to such terms, irrespective of their particular elements, entails the risk of narrowing the scope of the sovereign rights involved.
96 In this case, as the dispute concerns the application of the Convention, it falls within the scope of
Art. 288 on the basis of which the tribunal exercises its jurisdiction to qualify the dispute and the
activities involved. If it is found that it pertains to the sovereign rights of the coastal State, then the
applicability of an exclusion from jurisdiction may be at issue and, in any case, judicial restraint
should be exercised.
97 Unless its invocation serves the purpose of delimiting the scope of the dispute, so that this is not
extended to its sovereign rights in the EEZ covered by Art. 297(2) and (3).
98 South China Sea, Award on Jurisdiction and Admissibility, para. 357.
99 South China Sea, Award, para. 695.
E. Scalieri