377
higher threshold is required.
119
Due to the limited case law regarding the application
of this provision, it is difficult to define in which situations the application referred
to in Art. 294 would be considered an abuse of legal process or prima facie unfounded.
120
In the South China Sea arbitration, the tribunal, while admitting that it is
entitled to determine proprio motu the character of the Philippine’s claim on the
basis of Art. 294, declines to do so, taking also into account that China has not made
such a request; it decides that “the procedure is appropriate in only the most blatant
cases of abuse or harassment”,
121
because of the serious consequences that can flow
from a finding of abuse of legal process or prima facie unfoundedness. Thus, the
award has set a higher threshold for the application of the procedure.
In the same case the arbitral tribunal underlined that “China’s concerns (…) are
more appropriately dealt with as preliminary objections in accordance with the
applicable rules of procedure which, as Article 294(3) provides, remain unaffected
by Articles 294(1) and (2)”.
122
In the M/V “Norstar” case the written preliminary
objections were made by Italy expressly under Art. 294(3).
123
Thus, in connection
with Art. 97 of the Rules of the Tribunal, Art. 294(3) is considered to govern preliminary objections.
124
In the Enrica Lexie proceedings the Tribunal noted that India
both invoked the abuse of legal process and reserved “its right in due course to draw
[it] to the attention of the future Annex VII tribunal in accordance with article 294
of the Convention”.
125
Finally, Spain as the respondent in the M/V Louisa case,
while observing that the application submitted by Saint Vincent and the Grenadines
constituted “manifestly unfounded requests”, as well as an “abuse of legal process”
according to Art. 294(1), “decided not to use that procedural right”, but to appear
before the Tribunal, to clarify its legal position and to reaffirm its “commitment to
the peaceful settlement of disputes instituted in this Tribunal”.
126
119 The procedure of Art. 294 pertains in general to cases falling within Art. 297, e.g. a dispute
regarding the laying of a cable. Although the safeguard was conceived in favour of the coastal
State, one could wonder whether another State can also invoke the abuse of legal process in case
the coastal State institutes proceedings for violation of its rights in its EEZ.
120 On questions which may arise, such as the indirect impact of the procedure, see Scalieris (2011),
pp. 461–462.
121 South China Sea, Award on Jurisdiction and Admissibility, para. 128. The tribunal refers to the
Records of the Conference where it can be observed that the terms “frivolous or vexatious” were
used initially (1977 draft) instead of the term “prima facie unfounded” (A/CONF.62/WP.10, 1977).
122 Ibidem.
123 M/V “Norstar”, Preliminary Objections, Judgment, 4 November 2016 paras 15 and 40.
124 Ibidem, Joint Separate Opinion of Judges Wolfrum and Attard, para. 3.
125 Enrica Lexie, Provisional Measures, Order, 24 August 2015, paras 68–69. However, the invocation of Art. 294 by India is not substantiated on Art. 297, but refers to the initiation of international
arbitral proceedings by Italy (ITLOS/PV.15/C24/2/Rev.1, p. 16). On this case, Cannone (2015) and
Virzo (2017).
126 ITLOS, M/V Louisa (St. Vincent and the Grenadines v. Spain), Judgment, 28 May 2013, para.
133; Counter-Memorial of Spain, paras 187, and 189. When “abuse of legal process” is invoked in
state practice, it is not necessarily based on Art. 294 (Southern Bluefin Tuna, Award on Jurisdiction
and Admissibility, para. 65).
Discretionary Power of Coastal States and the Control of Its Compliance…
higher threshold is required.
119
Due to the limited case law regarding the application
of this provision, it is difficult to define in which situations the application referred
to in Art. 294 would be considered an abuse of legal process or prima facie unfounded.
120
In the South China Sea arbitration, the tribunal, while admitting that it is
entitled to determine proprio motu the character of the Philippine’s claim on the
basis of Art. 294, declines to do so, taking also into account that China has not made
such a request; it decides that “the procedure is appropriate in only the most blatant
cases of abuse or harassment”,
121
because of the serious consequences that can flow
from a finding of abuse of legal process or prima facie unfoundedness. Thus, the
award has set a higher threshold for the application of the procedure.
In the same case the arbitral tribunal underlined that “China’s concerns (…) are
more appropriately dealt with as preliminary objections in accordance with the
applicable rules of procedure which, as Article 294(3) provides, remain unaffected
by Articles 294(1) and (2)”.
122
In the M/V “Norstar” case the written preliminary
objections were made by Italy expressly under Art. 294(3).
123
Thus, in connection
with Art. 97 of the Rules of the Tribunal, Art. 294(3) is considered to govern preliminary objections.
124
In the Enrica Lexie proceedings the Tribunal noted that India
both invoked the abuse of legal process and reserved “its right in due course to draw
[it] to the attention of the future Annex VII tribunal in accordance with article 294
of the Convention”.
125
Finally, Spain as the respondent in the M/V Louisa case,
while observing that the application submitted by Saint Vincent and the Grenadines
constituted “manifestly unfounded requests”, as well as an “abuse of legal process”
according to Art. 294(1), “decided not to use that procedural right”, but to appear
before the Tribunal, to clarify its legal position and to reaffirm its “commitment to
the peaceful settlement of disputes instituted in this Tribunal”.
126
119 The procedure of Art. 294 pertains in general to cases falling within Art. 297, e.g. a dispute
regarding the laying of a cable. Although the safeguard was conceived in favour of the coastal
State, one could wonder whether another State can also invoke the abuse of legal process in case
the coastal State institutes proceedings for violation of its rights in its EEZ.
120 On questions which may arise, such as the indirect impact of the procedure, see Scalieris (2011),
pp. 461–462.
121 South China Sea, Award on Jurisdiction and Admissibility, para. 128. The tribunal refers to the
Records of the Conference where it can be observed that the terms “frivolous or vexatious” were
used initially (1977 draft) instead of the term “prima facie unfounded” (A/CONF.62/WP.10, 1977).
122 Ibidem.
123 M/V “Norstar”, Preliminary Objections, Judgment, 4 November 2016 paras 15 and 40.
124 Ibidem, Joint Separate Opinion of Judges Wolfrum and Attard, para. 3.
125 Enrica Lexie, Provisional Measures, Order, 24 August 2015, paras 68–69. However, the invocation of Art. 294 by India is not substantiated on Art. 297, but refers to the initiation of international
arbitral proceedings by Italy (ITLOS/PV.15/C24/2/Rev.1, p. 16). On this case, Cannone (2015) and
Virzo (2017).
126 ITLOS, M/V Louisa (St. Vincent and the Grenadines v. Spain), Judgment, 28 May 2013, para.
133; Counter-Memorial of Spain, paras 187, and 189. When “abuse of legal process” is invoked in
state practice, it is not necessarily based on Art. 294 (Southern Bluefin Tuna, Award on Jurisdiction
and Admissibility, para. 65).
Discretionary Power of Coastal States and the Control of Its Compliance…