373
Having in mind that the limitations to the compulsory dispute settlement procedures
of Art. 297(2) and (3) have been established in favour of the coastal State as a procedural ‘safeguard’ for the exercise of its sovereign rights, it lies with this State to
invoke the objection to jurisdiction.
100
Its failure to invoke the exception may be
even considered as one of the elements leading to the conclusion that the coastal
State possibly renounces to the exercise of this procedural right, depending on the
circumstances and taking into account the attitude of the State in the judicial or
arbitral proceedings.
101
In any case, even where the coastal State does not raise the objection, the judicial
or arbitral body can consider it proprio motu in order to satisfy itself that it has
jurisdiction over the dispute. For this reason, in the Saiga (no. 2) (merits), the
Tribunal proceeded to examine its jurisdiction, although “[t]here [was] “no disagreement between the parties regarding the jurisdiction of the Tribunal in the present case”.
102
The Tribunal judged that its jurisdiction was founded on an agreement
of the parties “which transferred the dispute to the Tribunal, together with articles
286, 287 and 288 of the Convention”. Although the agreement contained a reference
to the objection based on Art. 297(3) which was raised in the proceedings for provisional measures, this, according to the Tribunal, “does not affect its jurisdiction to
deal with the dispute”, especially taking into consideration that the respondent
(Guinea) did not reiterate the objection in the merits phase of the proceedings.
103
Recently in the South China Sea arbitration and given China’s non-participation, the
tribunal considered it “imperative to examine, proprio motu and in light of China’s
general remarks on Article 297, whether a limitation to its jurisdiction follows from
Article 297, in order to satisfy itself that it has jurisdiction of the dispute required by
Article 9 of Annex VII”.
104
Consideration of the Objection in the Preliminary or in the Merits Phase of the
Proceedings This consideration can take place at the preliminary stage of the proceedings, in which the court or tribunal determines its jurisdiction and admissibility
of the application, or in the phase on the merits, when the judicial or arbitral body
decides either to examine the dispute in a single procedural phase
105
or to defer the
consideration of the preliminary objection to the merits. In the South China Sea
arbitration the tribunal considered that the question whether it had jurisdiction and
whether the limitations to its jurisdiction provided in Arts. 297 and 298 were applicable with respect to certain submissions—involving the violation by China of the
100 This can be deduced from the wording of Art. 297(2) and (3) “except that the coastal State shall
not be obliged to accept the submission to such settlement of any dispute”. The view that no invocation is required has been also expressed in light of Art. 299.
101 The question arises also whether tacit consent is sufficient, see Oude Elferink (1999), p. 24.
102 M/V “Saiga” (No. 2), Judgment, para. 40.
103 Ibidem, para. 44.
104 South China Sea, Award on Jurisdiction and Admissibility, paras 358 and 392.
105 On agreement of the parties, see ITLOS, M/V “Saiga” (No. 2) (St. Vincent and the Grenadines
v. Guinea), Provisional Measures, Order, 11 March 1998, para. 28.
Discretionary Power of Coastal States and the Control of Its Compliance…
Having in mind that the limitations to the compulsory dispute settlement procedures
of Art. 297(2) and (3) have been established in favour of the coastal State as a procedural ‘safeguard’ for the exercise of its sovereign rights, it lies with this State to
invoke the objection to jurisdiction.
100
Its failure to invoke the exception may be
even considered as one of the elements leading to the conclusion that the coastal
State possibly renounces to the exercise of this procedural right, depending on the
circumstances and taking into account the attitude of the State in the judicial or
arbitral proceedings.
101
In any case, even where the coastal State does not raise the objection, the judicial
or arbitral body can consider it proprio motu in order to satisfy itself that it has
jurisdiction over the dispute. For this reason, in the Saiga (no. 2) (merits), the
Tribunal proceeded to examine its jurisdiction, although “[t]here [was] “no disagreement between the parties regarding the jurisdiction of the Tribunal in the present case”.
102
The Tribunal judged that its jurisdiction was founded on an agreement
of the parties “which transferred the dispute to the Tribunal, together with articles
286, 287 and 288 of the Convention”. Although the agreement contained a reference
to the objection based on Art. 297(3) which was raised in the proceedings for provisional measures, this, according to the Tribunal, “does not affect its jurisdiction to
deal with the dispute”, especially taking into consideration that the respondent
(Guinea) did not reiterate the objection in the merits phase of the proceedings.
103
Recently in the South China Sea arbitration and given China’s non-participation, the
tribunal considered it “imperative to examine, proprio motu and in light of China’s
general remarks on Article 297, whether a limitation to its jurisdiction follows from
Article 297, in order to satisfy itself that it has jurisdiction of the dispute required by
Article 9 of Annex VII”.
104
Consideration of the Objection in the Preliminary or in the Merits Phase of the
Proceedings This consideration can take place at the preliminary stage of the proceedings, in which the court or tribunal determines its jurisdiction and admissibility
of the application, or in the phase on the merits, when the judicial or arbitral body
decides either to examine the dispute in a single procedural phase
105
or to defer the
consideration of the preliminary objection to the merits. In the South China Sea
arbitration the tribunal considered that the question whether it had jurisdiction and
whether the limitations to its jurisdiction provided in Arts. 297 and 298 were applicable with respect to certain submissions—involving the violation by China of the
100 This can be deduced from the wording of Art. 297(2) and (3) “except that the coastal State shall
not be obliged to accept the submission to such settlement of any dispute”. The view that no invocation is required has been also expressed in light of Art. 299.
101 The question arises also whether tacit consent is sufficient, see Oude Elferink (1999), p. 24.
102 M/V “Saiga” (No. 2), Judgment, para. 40.
103 Ibidem, para. 44.
104 South China Sea, Award on Jurisdiction and Admissibility, paras 358 and 392.
105 On agreement of the parties, see ITLOS, M/V “Saiga” (No. 2) (St. Vincent and the Grenadines
v. Guinea), Provisional Measures, Order, 11 March 1998, para. 28.
Discretionary Power of Coastal States and the Control of Its Compliance…