376
Thus, Art. 297(3) is, in principle, not applicable to these proceedings
114
; nevertheless, it could possibly be invoked in order to distinguish the matters which pertain
to the prompt release question from those which extend to the coastal State’s discretion. Furthermore, from a substantive point of view, it is possible that the exercise of
its sovereign rights renders the procedure without object; however, the reason for
this lies in the interpretation of Art. 292 itself rather than in the nature of the dispute.
In Grand Prince the respondent State (France) challenged the applicability of Art.
292 with respect to a dispute arising from an act of confiscation ordered by the
national tribunal which, in fact, rendered the application ‘moot’.
115
France also contended that the application did not deal with prompt release, but had to do with the
exercise of its sovereign rights and the alleged non-conformity of its law regarding
confiscation with the Convention, and especially Art. 73: such a dispute was
excluded from the jurisdiction of the tribunal by virtue, firstly, of Art. 297(3) and,
secondly, on the basis of its declaration formulated to that effect in accordance with
Art. 298(1)(b) of the UNCLOS.
116
The Tribunal did not examine this argument, as it
found the claim of Belize inadmissible for reasons concerning the nationality of the
seized vessel.
The Incidental and Preliminary Proceedings of Art. 294: Relationship with Art. 297
of the UNCLOS Αrt. 294 is a special procedure aiming at providing procedural
safeguards which address the concern of the coastal States that the exercise of their
sovereign rights could be affected through the abusive exercise of legal procedures—especially in cases of disputes relating to sovereign rights that are submitted
to compulsory settlement procedures in accordance with Art. 297(1).
117
In particular, this procedure concerns applications made in respect of a dispute referred to in
Art. 297 and grants the right to the respondent to seek a preliminary determination,
in advance of other procedures, that the application constitutes an abuse of legal
process or is prima facie unfounded.
118
This determination implies that the court or
tribunal proceeds, in the first place, to an initial characterisation of the dispute by
examining whether it is a dispute falling within Art. 297. An application against the
coastal State which is determined to be prima facie unfounded may concern a dispute falling within Art. 297(2) or (3), but it is not clear whether such a classification
of the dispute—obvious as it may be in a specific case—would suffice or whether a
114 M/V “Saiga”, Prompt Release, Dissenting opinion of Vice-President Wolfrum and Judge
Yamamoto, para. 18: “the prompt release procedure may be seen as an exception to the limitations
on applicability as contained in article 297”. See Karaman (2012), p. 52.
115 This position was later confirmed, under the condition of due process, in the “Tomimaru” case,
paras 78–80.
116 ITLOS, Grand Prince (Belize v. France), Prompt Release, Judgment, 20 April 2001, paras
59–60; Observations of the French Government, 28th March 2001.
117 Chagos Marine Protected Area, Award, para. 311.
118 In the Camouco case, France stated that, while not unaware that the proceedings of Art. 294 are
not applicable and, in any case, difficult to apply in practice, in the context of Art. 292, it is entitled
to regard the application of Panama as an abuse of process, especially since Panama appeared to be
submitting an application in respect of a dispute under Art. 297, Camouco, Statement in response
of the French Government, para. 8. ITLOS did not address this issue.
E. Scalieri
Thus, Art. 297(3) is, in principle, not applicable to these proceedings
114
; nevertheless, it could possibly be invoked in order to distinguish the matters which pertain
to the prompt release question from those which extend to the coastal State’s discretion. Furthermore, from a substantive point of view, it is possible that the exercise of
its sovereign rights renders the procedure without object; however, the reason for
this lies in the interpretation of Art. 292 itself rather than in the nature of the dispute.
In Grand Prince the respondent State (France) challenged the applicability of Art.
292 with respect to a dispute arising from an act of confiscation ordered by the
national tribunal which, in fact, rendered the application ‘moot’.
115
France also contended that the application did not deal with prompt release, but had to do with the
exercise of its sovereign rights and the alleged non-conformity of its law regarding
confiscation with the Convention, and especially Art. 73: such a dispute was
excluded from the jurisdiction of the tribunal by virtue, firstly, of Art. 297(3) and,
secondly, on the basis of its declaration formulated to that effect in accordance with
Art. 298(1)(b) of the UNCLOS.
116
The Tribunal did not examine this argument, as it
found the claim of Belize inadmissible for reasons concerning the nationality of the
seized vessel.
The Incidental and Preliminary Proceedings of Art. 294: Relationship with Art. 297
of the UNCLOS Αrt. 294 is a special procedure aiming at providing procedural
safeguards which address the concern of the coastal States that the exercise of their
sovereign rights could be affected through the abusive exercise of legal procedures—especially in cases of disputes relating to sovereign rights that are submitted
to compulsory settlement procedures in accordance with Art. 297(1).
117
In particular, this procedure concerns applications made in respect of a dispute referred to in
Art. 297 and grants the right to the respondent to seek a preliminary determination,
in advance of other procedures, that the application constitutes an abuse of legal
process or is prima facie unfounded.
118
This determination implies that the court or
tribunal proceeds, in the first place, to an initial characterisation of the dispute by
examining whether it is a dispute falling within Art. 297. An application against the
coastal State which is determined to be prima facie unfounded may concern a dispute falling within Art. 297(2) or (3), but it is not clear whether such a classification
of the dispute—obvious as it may be in a specific case—would suffice or whether a
114 M/V “Saiga”, Prompt Release, Dissenting opinion of Vice-President Wolfrum and Judge
Yamamoto, para. 18: “the prompt release procedure may be seen as an exception to the limitations
on applicability as contained in article 297”. See Karaman (2012), p. 52.
115 This position was later confirmed, under the condition of due process, in the “Tomimaru” case,
paras 78–80.
116 ITLOS, Grand Prince (Belize v. France), Prompt Release, Judgment, 20 April 2001, paras
59–60; Observations of the French Government, 28th March 2001.
117 Chagos Marine Protected Area, Award, para. 311.
118 In the Camouco case, France stated that, while not unaware that the proceedings of Art. 294 are
not applicable and, in any case, difficult to apply in practice, in the context of Art. 292, it is entitled
to regard the application of Panama as an abuse of process, especially since Panama appeared to be
submitting an application in respect of a dispute under Art. 297, Camouco, Statement in response
of the French Government, para. 8. ITLOS did not address this issue.
E. Scalieri