386
two concepts when referring to courts or tribunals “having jurisdiction”, that is to
say courts or tribunals whose jurisdiction is already established.
The case law of UNCLOS Tribunals is full of statements emphasizing the distinction between the two concepts. Among the first and most significant statements
to that effect is one of the Annex VII Tribunal in Mox Plant, stating that “[…] there
is a cardinal distinction between the scope of its jurisdiction under article 288, paragraph 1, of the Convention, on the one hand, and the law to be applied by the
Tribunal under article 293 of the Convention, on the other hand”. In the same statement the arbitral Tribunal also held that “to the extent that any aspects of Ireland’s
claims arise directly under legal instruments other than the Convention, such claims
may be inadmissible”.
12
Most recently, the distinction between jurisdiction and applicable law has been
further emphasized in the abovementioned Arctic Sunrise case, where the Annex
VII Tribunal held that “Article 293(1) does not extend the jurisdiction of a tribunal
[…] [It] is not […] a means to obtain a determination that some treaty other than the
Convention has been violated, unless that treaty is otherwise a source of jurisdiction
[as in the cases governed by Article 288(2)], or unless the treaty otherwise directly
applies pursuant to the Convention”.
13
The same reasoning goes for customary international rules not incorporated in
the Convention. This latter point was made clear by Judges Wolfrum and Cot, who
observed that “the Tribunal is mandated only to decide on disputes concerning the
interpretation and application of the Convention. […] Article 293 of the Convention
provides that the Tribunal may have recourse to general international law not incompatible with the Convention. These two issues have to be separated clearly […]. A
dispute concerning the interpretation and application of a rule of customary law
therefore does not trigger the competence of the Tribunal unless such rule of customary international law has been incorporated in the Convention”.
14
Whereas in principle the possible applications of Art. 293(1), together with the
explicit recognition of its non-expanding effect, are well-established, some decisions seem to run contrary to such assumptions. So far, in at least four cases
UNCLOS Tribunals apparently relied upon Art. 293(1) in order to adopt findings as
to the violation of external rules of international law, thereby expanding their ratione materiae jurisdiction.
In M/V Saiga (No. 2) the International Tribunal for the Law of the Sea (ITLOS
or the Tribunal) addressed the claim by Saint Vincent and the Grenadines that
Guinea used excessive and unreasonable force in stopping and arresting the Saiga.
According to the Tribunal, “[a]lthough the Convention does not contain express
provisions on the use of force in the arrest of ships, international law, which is
12 PCA, Mox Plant Case (Ireland v. United Kingdom), Order No. 3, Suspension of Proceedings on
Jurisdiction and Merits and Request for Further Provisional Measures, 24 June 2003. See also
PCA, The Eurotunnel Arbitration, Partial Award, 30 January 2007, para. 152.
13 Arctic Sunrise Arbitration, para. 192.
14 ITLOS, “ARA” Libertad Case (Argentina v. Ghana), Order, 15 December 2012, Separate
Opinion of Judges Wolfrum and Cot, para. 7.
L. Marotti
two concepts when referring to courts or tribunals “having jurisdiction”, that is to
say courts or tribunals whose jurisdiction is already established.
The case law of UNCLOS Tribunals is full of statements emphasizing the distinction between the two concepts. Among the first and most significant statements
to that effect is one of the Annex VII Tribunal in Mox Plant, stating that “[…] there
is a cardinal distinction between the scope of its jurisdiction under article 288, paragraph 1, of the Convention, on the one hand, and the law to be applied by the
Tribunal under article 293 of the Convention, on the other hand”. In the same statement the arbitral Tribunal also held that “to the extent that any aspects of Ireland’s
claims arise directly under legal instruments other than the Convention, such claims
may be inadmissible”.
12
Most recently, the distinction between jurisdiction and applicable law has been
further emphasized in the abovementioned Arctic Sunrise case, where the Annex
VII Tribunal held that “Article 293(1) does not extend the jurisdiction of a tribunal
[…] [It] is not […] a means to obtain a determination that some treaty other than the
Convention has been violated, unless that treaty is otherwise a source of jurisdiction
[as in the cases governed by Article 288(2)], or unless the treaty otherwise directly
applies pursuant to the Convention”.
13
The same reasoning goes for customary international rules not incorporated in
the Convention. This latter point was made clear by Judges Wolfrum and Cot, who
observed that “the Tribunal is mandated only to decide on disputes concerning the
interpretation and application of the Convention. […] Article 293 of the Convention
provides that the Tribunal may have recourse to general international law not incompatible with the Convention. These two issues have to be separated clearly […]. A
dispute concerning the interpretation and application of a rule of customary law
therefore does not trigger the competence of the Tribunal unless such rule of customary international law has been incorporated in the Convention”.
14
Whereas in principle the possible applications of Art. 293(1), together with the
explicit recognition of its non-expanding effect, are well-established, some decisions seem to run contrary to such assumptions. So far, in at least four cases
UNCLOS Tribunals apparently relied upon Art. 293(1) in order to adopt findings as
to the violation of external rules of international law, thereby expanding their ratione materiae jurisdiction.
In M/V Saiga (No. 2) the International Tribunal for the Law of the Sea (ITLOS
or the Tribunal) addressed the claim by Saint Vincent and the Grenadines that
Guinea used excessive and unreasonable force in stopping and arresting the Saiga.
According to the Tribunal, “[a]lthough the Convention does not contain express
provisions on the use of force in the arrest of ships, international law, which is
12 PCA, Mox Plant Case (Ireland v. United Kingdom), Order No. 3, Suspension of Proceedings on
Jurisdiction and Merits and Request for Further Provisional Measures, 24 June 2003. See also
PCA, The Eurotunnel Arbitration, Partial Award, 30 January 2007, para. 152.
13 Arctic Sunrise Arbitration, para. 192.
14 ITLOS, “ARA” Libertad Case (Argentina v. Ghana), Order, 15 December 2012, Separate
Opinion of Judges Wolfrum and Cot, para. 7.
L. Marotti