375
the provisions of the convention with regard to fisheries (…)”.
109
On the other hand,
the applicant (St. Vincent and the Grenadines) invoked Art. 297(1)(a) as a basis for
the jurisdiction of the Tribunal, taking into account that it is a dispute concerning,
inter alia, the contravention by Guinea of the rights and freedoms of navigation and
of other internationally lawful uses of the sea defined in Art. 58. Since, in the proceedings for provisional measures, the Tribunal does not have to finally satisfy itself
that it has jurisdiction on the merits, it reached the conclusion that Art. 297(1)
“appears prima facie to afford a basis for the jurisdiction of the Tribunal”.
110
Thus,
Art. 297(1) was found to be relevant for establishing prima facie the jurisdiction of
the Tribunal which, at this stage, did not deem it necessary to examine the applicability of Art. 297(3). Besides, as it was observed by Judge Laing in his separate
opinion with respect to the Order of the Tribunal, “[c]learly, article 297, paragraph
3(a), although it must be generally dealt with ad limine during the merits phase, is
of a substantive character not suitable for disposition in this type of incidental
proceeding”.
111
Hence, it may be possible that provisional measures could be prescribed even regarding disputes falling within the ambit of Art. 297(2)
112
and (3).
Special Proceedings (Prompt Release Pursuant to Art. 292) The question arises
whether Art. 297(3) is applicable in the framework of prompt release proceedings
and especially of Art. 292 of the UNCLOS. Given that the detention is imposed by
the coastal State in the exercise of its sovereign rights in the EEZ, this independent
procedure has been specifically introduced to balance the rights and interests of the
coastal State and the flag State so as to protect the latter against situations where the
detention is prolonged despite the posting of a bond or where the bond determined
for the release is unreasonable.
113
In this context, it would have no sense to invoke
the exercise of sovereign rights and Art. 297(3) in order to challenge the jurisdiction
of the tribunal with respect to the prompt release of the vessel.
109 M/V “Saiga” (No. 2), Provisional Measures, Order, paras 22, and 27. Guinea held that the
nature of the dispute pertaining to fisheries was confirmed in the Tribunal’s judgment on prompt
release which highlighted the relevance of Art. 73 of the UNCLOS.
110 Ibidem, paras 29–30.
111 Ibidem, Separate opinion of Judge Laing, para 22.
112 Such a situation could occur, if provisional measures have been requested by the flag State of the
research vessel before an international tribunal, including ordering the release of the vessel
detained by the coastal State in the exercise of its sovereign rights in the EEZ. The issue depends
on which grounds the tribunal will found its prima facie jurisdiction on and how it will delimit it.
See ITLOS, M/V Louisa (St. Vincent and the Grenadines v. Spain), Provisional Measures, Order,
23 December 2010, Separate opinion of Judge Wolfrum, para. 24 (although Art. 297(2) concerns
disputes in the EEZ and not the territorial sea as was the case of the M/V Louisa). This case does
not clarify the above issue, since the reason for the detention was the violation of the archeological
legislation of Spain.
113 See supra Sect. 2.2.2.
Discretionary Power of Coastal States and the Control of Its Compliance…
the provisions of the convention with regard to fisheries (…)”.
109
On the other hand,
the applicant (St. Vincent and the Grenadines) invoked Art. 297(1)(a) as a basis for
the jurisdiction of the Tribunal, taking into account that it is a dispute concerning,
inter alia, the contravention by Guinea of the rights and freedoms of navigation and
of other internationally lawful uses of the sea defined in Art. 58. Since, in the proceedings for provisional measures, the Tribunal does not have to finally satisfy itself
that it has jurisdiction on the merits, it reached the conclusion that Art. 297(1)
“appears prima facie to afford a basis for the jurisdiction of the Tribunal”.
110
Thus,
Art. 297(1) was found to be relevant for establishing prima facie the jurisdiction of
the Tribunal which, at this stage, did not deem it necessary to examine the applicability of Art. 297(3). Besides, as it was observed by Judge Laing in his separate
opinion with respect to the Order of the Tribunal, “[c]learly, article 297, paragraph
3(a), although it must be generally dealt with ad limine during the merits phase, is
of a substantive character not suitable for disposition in this type of incidental
proceeding”.
111
Hence, it may be possible that provisional measures could be prescribed even regarding disputes falling within the ambit of Art. 297(2)
112
and (3).
Special Proceedings (Prompt Release Pursuant to Art. 292) The question arises
whether Art. 297(3) is applicable in the framework of prompt release proceedings
and especially of Art. 292 of the UNCLOS. Given that the detention is imposed by
the coastal State in the exercise of its sovereign rights in the EEZ, this independent
procedure has been specifically introduced to balance the rights and interests of the
coastal State and the flag State so as to protect the latter against situations where the
detention is prolonged despite the posting of a bond or where the bond determined
for the release is unreasonable.
113
In this context, it would have no sense to invoke
the exercise of sovereign rights and Art. 297(3) in order to challenge the jurisdiction
of the tribunal with respect to the prompt release of the vessel.
109 M/V “Saiga” (No. 2), Provisional Measures, Order, paras 22, and 27. Guinea held that the
nature of the dispute pertaining to fisheries was confirmed in the Tribunal’s judgment on prompt
release which highlighted the relevance of Art. 73 of the UNCLOS.
110 Ibidem, paras 29–30.
111 Ibidem, Separate opinion of Judge Laing, para 22.
112 Such a situation could occur, if provisional measures have been requested by the flag State of the
research vessel before an international tribunal, including ordering the release of the vessel
detained by the coastal State in the exercise of its sovereign rights in the EEZ. The issue depends
on which grounds the tribunal will found its prima facie jurisdiction on and how it will delimit it.
See ITLOS, M/V Louisa (St. Vincent and the Grenadines v. Spain), Provisional Measures, Order,
23 December 2010, Separate opinion of Judge Wolfrum, para. 24 (although Art. 297(2) concerns
disputes in the EEZ and not the territorial sea as was the case of the M/V Louisa). This case does
not clarify the above issue, since the reason for the detention was the violation of the archeological
legislation of Spain.
113 See supra Sect. 2.2.2.
Discretionary Power of Coastal States and the Control of Its Compliance…