379
species.
131
In the dispute settlement procedures beyond the UNCLOS, the application of such an exception to jurisdiction will depend on the applicable convention
and its specific clauses on the settlement of disputes or the special agreement at
issue, whenever such an agreement exists; certain conventions may refer to the settlement of disputes procedures of the UNCLOS, which also contain the automatic
limitations to its compulsory procedures.
132
Concerning the International Court of
Justice, the limitations of Art. 297(2) or (3) are applicable if the Court considers the
dispute in the framework of Part XV of the UNCLOS,
133
unless the parties declare
or agree otherwise. Beyond this framework, a special agreement by which the parties submit the dispute to the Court may provide for an exception to jurisdiction of
this nature with respect to aspects of the dispute touching sovereign rights. It is also
possible that the declaration made by a State under Art. 36(2) of the Statute concerning the compulsory jurisdiction of the Court either (a) contains a reservation
excluding disputes regarding the exercise of sovereign rights in the EEZ and relevant law enforcement activities
134
or (b) states that the limitations and exceptions
relating to the settlement of disputes pursuant to the UNCLOS and the 1995
Agreement apply to all disputes concerning the law of the sea, a clause which aims
at aligning the limitations to jurisdiction in the framework of different adjudicating
bodies.
4 Concluding Remarks
The judicial control of the exercise by the coastal State of its discretion and margin
of appreciation focuses mainly on the respect of their limits deriving either from the
relevant substantive rules of the law of the sea or from the standards, especially
reasonableness, as applied by the judge. The discretionary powers of the coastal
State limit the scope of judicial control, but exactly to what extent depends on the
interpretation of the rules and the application of standards by the judge. This dialectical relationship has been highlighted especially in domestic public law in the sense
that the scope of the discretion of the administration is also determined by the
degree of judicial control. The challenge in the law of the sea is to examine the
legality of the exercise by the coastal State of its discretion without resulting in
affecting the balance of competences, rights and obligations reflected in the
UNCLOS. In addition, regarding the automatic limitations to the compulsory
131 Art. 32 of the 1995 Agreement refers to Art. 297(3) of the UNCLOS.
132 Such as the Convention on the Conservation and Management of Fishery Resources in the South
East Atlantic Ocean (2001), Art. 24(4).
133 That is on the basis of Art. 287 and not in the framework of Art. 282 of the UNCLOS.
134 Declaration of Canada on the basis of Art. 36(2); ICJ, Fisheries Jurisdiction Case (Spain v.
Canada), Judgment, 4 December 1998, paras 14, 62, and 84. It should be noted that Canada has
also made the declaration pursuant to Art. 298(1). Also on Norway’s Declaration, see Treves
(1999), p. 816.
Discretionary Power of Coastal States and the Control of Its Compliance…
species.
131
In the dispute settlement procedures beyond the UNCLOS, the application of such an exception to jurisdiction will depend on the applicable convention
and its specific clauses on the settlement of disputes or the special agreement at
issue, whenever such an agreement exists; certain conventions may refer to the settlement of disputes procedures of the UNCLOS, which also contain the automatic
limitations to its compulsory procedures.
132
Concerning the International Court of
Justice, the limitations of Art. 297(2) or (3) are applicable if the Court considers the
dispute in the framework of Part XV of the UNCLOS,
133
unless the parties declare
or agree otherwise. Beyond this framework, a special agreement by which the parties submit the dispute to the Court may provide for an exception to jurisdiction of
this nature with respect to aspects of the dispute touching sovereign rights. It is also
possible that the declaration made by a State under Art. 36(2) of the Statute concerning the compulsory jurisdiction of the Court either (a) contains a reservation
excluding disputes regarding the exercise of sovereign rights in the EEZ and relevant law enforcement activities
134
or (b) states that the limitations and exceptions
relating to the settlement of disputes pursuant to the UNCLOS and the 1995
Agreement apply to all disputes concerning the law of the sea, a clause which aims
at aligning the limitations to jurisdiction in the framework of different adjudicating
bodies.
4 Concluding Remarks
The judicial control of the exercise by the coastal State of its discretion and margin
of appreciation focuses mainly on the respect of their limits deriving either from the
relevant substantive rules of the law of the sea or from the standards, especially
reasonableness, as applied by the judge. The discretionary powers of the coastal
State limit the scope of judicial control, but exactly to what extent depends on the
interpretation of the rules and the application of standards by the judge. This dialectical relationship has been highlighted especially in domestic public law in the sense
that the scope of the discretion of the administration is also determined by the
degree of judicial control. The challenge in the law of the sea is to examine the
legality of the exercise by the coastal State of its discretion without resulting in
affecting the balance of competences, rights and obligations reflected in the
UNCLOS. In addition, regarding the automatic limitations to the compulsory
131 Art. 32 of the 1995 Agreement refers to Art. 297(3) of the UNCLOS.
132 Such as the Convention on the Conservation and Management of Fishery Resources in the South
East Atlantic Ocean (2001), Art. 24(4).
133 That is on the basis of Art. 287 and not in the framework of Art. 282 of the UNCLOS.
134 Declaration of Canada on the basis of Art. 36(2); ICJ, Fisheries Jurisdiction Case (Spain v.
Canada), Judgment, 4 December 1998, paras 14, 62, and 84. It should be noted that Canada has
also made the declaration pursuant to Art. 298(1). Also on Norway’s Declaration, see Treves
(1999), p. 816.
Discretionary Power of Coastal States and the Control of Its Compliance…