378
3.2.3 Relationship Between Arts. 297 and 298
The different nature of the exceptions is highlighted in case law, as Art. 297 refers
to “automatic limitations”,
127
whereas Art. 298 contains “optional exceptions”
128
in
the sense that the disputes enumerated therein are not automatically excluded, but
States can activate by declaration the “exemption” from compulsory settlement procedures. Furthermore, Art. 298 is linked to Art. 297 as regards disputes relating to
certain types of law enforcement activities: a State can declare in accordance with
Art. 298(1)(b) that it does not accept any compulsory procedure provided for in section 2 of Part XV with respect to “disputes concerning law enforcement activities in
regard to the exercise of sovereign rights or jurisdiction under article 297(2) or (3)”.
In the Arctic Sunrise the arbitral tribunal affirmed that the above declaration does
not exclude from compulsory settlement any dispute concerning law enforcement
measures taken by the coastal State in the exercise of its sovereign rights or jurisdiction in its EEZ,
129
but only disputes relating to marine scientific research and living
resources that are excluded by virtue of Art. 297(2) and (3).
130
3.2.4 The Application of Jurisdictional Exceptions Pertaining
to Discretionary Power Beyond the UNCLOS
The question arises whether the exception contained in Art. 297(3) is applicable
beyond the system of settlement of disputes of the UNCLOS and the 1995 Agreement
on the conservation and management of straddling stocks and highly migratory
127 According to the Dissenting and Concurring Opinion of Judges Kateka and Wolfrum (para. 37)
in the Chagos Marine Protected Area arbitration, additional automatic exceptions (such as the one
regarding territorial disputes) should not be read in Art. 297, as deduced from the history of the
negotiations.
128 South China Sea, Award on Jurisdiction and Admissibility, paras 354, 356, and 364; Maritime
boundary delimitation (Guyana v. Suriname), para. 413.
129 If such a declaration regarding the specific law enforcement activities has not been made, the
question arises whether the relevant disputes, including those with respect to Art. 73(1), are submitted to compulsory settlement procedures (possibly by virtue of an a contrario reading of Art.
298(1)(b)) or whether these disputes are excluded as covered by Art. 297(2) or (3), although not
expressly mentioned. International jurisprudence is not directly relevant to this issue depending on
the specific elements of each case. In the M/V “Virginia G” case the ITLOS affirmed that the term
‘sovereign rights’ encompasses “all rights necessary for and connected with the exploration,
exploitation, conservation and management of the natural resources, including the right to take the
necessary enforcement measures” (Judgment, para. 211). As the Tribunal found that it had jurisdiction on the basis of the agreement of the parties (ibidem, para. 92), the question of its jurisdiction
regarding law enforcement measures for fisheries did not specifically arise (supra, note 71). In any
case, as law enforcement measures belong to the discretionary power of the coastal State in accordance with Art. 73(1), the international tribunals exercise restricted judicial review. On this question, see Gautier (2014), p. 549.
130 PCA, Arctic Sunrise (Netherlands v. Russia), Award on Jurisdiction, 26 November 2014, paras
56, 66–78. South China Sea, Award on Jurisdiction and Admissibility, para. 378, and Award, paras
928–930. Grand Prince, Observations of the French Government, 28 March 2001.
E. Scalieri
3.2.3 Relationship Between Arts. 297 and 298
The different nature of the exceptions is highlighted in case law, as Art. 297 refers
to “automatic limitations”,
127
whereas Art. 298 contains “optional exceptions”
128
in
the sense that the disputes enumerated therein are not automatically excluded, but
States can activate by declaration the “exemption” from compulsory settlement procedures. Furthermore, Art. 298 is linked to Art. 297 as regards disputes relating to
certain types of law enforcement activities: a State can declare in accordance with
Art. 298(1)(b) that it does not accept any compulsory procedure provided for in section 2 of Part XV with respect to “disputes concerning law enforcement activities in
regard to the exercise of sovereign rights or jurisdiction under article 297(2) or (3)”.
In the Arctic Sunrise the arbitral tribunal affirmed that the above declaration does
not exclude from compulsory settlement any dispute concerning law enforcement
measures taken by the coastal State in the exercise of its sovereign rights or jurisdiction in its EEZ,
129
but only disputes relating to marine scientific research and living
resources that are excluded by virtue of Art. 297(2) and (3).
130
3.2.4 The Application of Jurisdictional Exceptions Pertaining
to Discretionary Power Beyond the UNCLOS
The question arises whether the exception contained in Art. 297(3) is applicable
beyond the system of settlement of disputes of the UNCLOS and the 1995 Agreement
on the conservation and management of straddling stocks and highly migratory
127 According to the Dissenting and Concurring Opinion of Judges Kateka and Wolfrum (para. 37)
in the Chagos Marine Protected Area arbitration, additional automatic exceptions (such as the one
regarding territorial disputes) should not be read in Art. 297, as deduced from the history of the
negotiations.
128 South China Sea, Award on Jurisdiction and Admissibility, paras 354, 356, and 364; Maritime
boundary delimitation (Guyana v. Suriname), para. 413.
129 If such a declaration regarding the specific law enforcement activities has not been made, the
question arises whether the relevant disputes, including those with respect to Art. 73(1), are submitted to compulsory settlement procedures (possibly by virtue of an a contrario reading of Art.
298(1)(b)) or whether these disputes are excluded as covered by Art. 297(2) or (3), although not
expressly mentioned. International jurisprudence is not directly relevant to this issue depending on
the specific elements of each case. In the M/V “Virginia G” case the ITLOS affirmed that the term
‘sovereign rights’ encompasses “all rights necessary for and connected with the exploration,
exploitation, conservation and management of the natural resources, including the right to take the
necessary enforcement measures” (Judgment, para. 211). As the Tribunal found that it had jurisdiction on the basis of the agreement of the parties (ibidem, para. 92), the question of its jurisdiction
regarding law enforcement measures for fisheries did not specifically arise (supra, note 71). In any
case, as law enforcement measures belong to the discretionary power of the coastal State in accordance with Art. 73(1), the international tribunals exercise restricted judicial review. On this question, see Gautier (2014), p. 549.
130 PCA, Arctic Sunrise (Netherlands v. Russia), Award on Jurisdiction, 26 November 2014, paras
56, 66–78. South China Sea, Award on Jurisdiction and Admissibility, para. 378, and Award, paras
928–930. Grand Prince, Observations of the French Government, 28 March 2001.
E. Scalieri