374
sovereign rights of the Philippines with respect to the living and non-living resources
of its EEZ and continental shelf—depended upon the merits determination of issues,
such as the existence of an entitlement by China to an EEZ, the status of maritime
features in the South China Sea, the existence of possible overlapping entitlements.
To this extent, “the possible jurisdictional objections (…) [did] not possess an
exclusively preliminary character” and were deferred for consideration in conjunction with the merits.
106
Having determined that the areas of the South China Sea at
issue belong to the EEZ of the Philippines, the tribunal concluded that Art. 297(3)
poses no obstacle to its jurisdiction, since, as mentioned above, it was not raised by
the coastal State. On the contrary, it was found that the tribunal’s jurisdiction to
consider the submission concerning the violation by China of its obligations to protect and preserve the marine environment was not dependent on any prior determination, since Art. 297(1)(c) affirms the jurisdiction of the tribunal over such disputes
in the EEZ, irrespective of whether the EEZ belongs to China or the Philippines or
is an area of overlapping entitlements.
107
Finally, in most cases where the objection of Art. 297 (mainly paragraph 3) was
invoked by the coastal State, the judicial or arbitral body rejected it for reasons
either of procedural order or concerning the qualification of the dispute and the
interpretation of the scope of the exclusion.
108
Positive responses were contained in
the case concerning the delimitation of maritime boundaries between Barbados and
Trinidad and Tobago, where, as already mentioned, the tribunal upheld the objection raised by Trinidad and Tobago, and in the Chagos arbitration, where the objection was partially accepted. Finally, in some cases the procedural reasons pertain to
the applicability of Art. 297(2) and (3) in the incidental and special proceedings in
which it is raised.
3.2.2 The Exception to Jurisdiction in Certain Incidental and Special
Proceedings
Proceedings for Provisional Measures In the Saiga (no. 2) (provisional measures)
the respondent challenged the jurisdiction of the Tribunal to prescribe provisional
measures on the grounds that the conditions of Art. 290 of the UNCLOS regarding
the prescription of provisional measures were not met. In particular, Guinea held
that neither the Tribunal nor an arbitral tribunal would have jurisdiction to decide
the dispute, because “the request concerns a dispute which is regulated in Article
297 para. 3 lit. a) of the Convention concerning the interpretation or application of
106 South China Sea, Award on Jurisdiction and Admissibility, paras 392–396, and 405–406; Award,
paras 161–164, and 695.
107 South China Sea, Award on Jurisdiction and Admissibility, para. 408; Award, para. 927. The
stage of preliminary objections, although constituting incidental proceedings, is dealt with in this
context and not below (infra Sect. 3.2.2.).
108 E.g. M/V “Saiga” case, South China Sea (see above), Maritime boundary delimitation (Guyana
v. Suriname), supra Sect. 3.1.3.
E. Scalieri
sovereign rights of the Philippines with respect to the living and non-living resources
of its EEZ and continental shelf—depended upon the merits determination of issues,
such as the existence of an entitlement by China to an EEZ, the status of maritime
features in the South China Sea, the existence of possible overlapping entitlements.
To this extent, “the possible jurisdictional objections (…) [did] not possess an
exclusively preliminary character” and were deferred for consideration in conjunction with the merits.
106
Having determined that the areas of the South China Sea at
issue belong to the EEZ of the Philippines, the tribunal concluded that Art. 297(3)
poses no obstacle to its jurisdiction, since, as mentioned above, it was not raised by
the coastal State. On the contrary, it was found that the tribunal’s jurisdiction to
consider the submission concerning the violation by China of its obligations to protect and preserve the marine environment was not dependent on any prior determination, since Art. 297(1)(c) affirms the jurisdiction of the tribunal over such disputes
in the EEZ, irrespective of whether the EEZ belongs to China or the Philippines or
is an area of overlapping entitlements.
107
Finally, in most cases where the objection of Art. 297 (mainly paragraph 3) was
invoked by the coastal State, the judicial or arbitral body rejected it for reasons
either of procedural order or concerning the qualification of the dispute and the
interpretation of the scope of the exclusion.
108
Positive responses were contained in
the case concerning the delimitation of maritime boundaries between Barbados and
Trinidad and Tobago, where, as already mentioned, the tribunal upheld the objection raised by Trinidad and Tobago, and in the Chagos arbitration, where the objection was partially accepted. Finally, in some cases the procedural reasons pertain to
the applicability of Art. 297(2) and (3) in the incidental and special proceedings in
which it is raised.
3.2.2 The Exception to Jurisdiction in Certain Incidental and Special
Proceedings
Proceedings for Provisional Measures In the Saiga (no. 2) (provisional measures)
the respondent challenged the jurisdiction of the Tribunal to prescribe provisional
measures on the grounds that the conditions of Art. 290 of the UNCLOS regarding
the prescription of provisional measures were not met. In particular, Guinea held
that neither the Tribunal nor an arbitral tribunal would have jurisdiction to decide
the dispute, because “the request concerns a dispute which is regulated in Article
297 para. 3 lit. a) of the Convention concerning the interpretation or application of
106 South China Sea, Award on Jurisdiction and Admissibility, paras 392–396, and 405–406; Award,
paras 161–164, and 695.
107 South China Sea, Award on Jurisdiction and Admissibility, para. 408; Award, para. 927. The
stage of preliminary objections, although constituting incidental proceedings, is dealt with in this
context and not below (infra Sect. 3.2.2.).
108 E.g. M/V “Saiga” case, South China Sea (see above), Maritime boundary delimitation (Guyana
v. Suriname), supra Sect. 3.1.3.
E. Scalieri