30
It should be recalled, however, that, by virtue of Article 293(1) UNCLOS, an
international court or tribunal can only apply the systemic integration approach, and
thus take into account “other rules not incompatible with the Convention”, if it has
ascertained that it has jurisdiction under Section II of Part XV of UNCLOS.
In other words, the court or tribunal must, in any case, be competent to hear and
rule on disputes relating to the interpretation and application of UNCLOS
95
and may
not exercise its jurisdiction in the case of disputes concerning only other rules that
are not incompatible with UNCLOS. This is because, as observed by the Annex VII
Arbitral Tribunal in the MOX Plant case, “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”.
96
Elaborating on the passage just quoted above, the Annex VII Arbitral Tribunal in
the Arctic Sunrise
97
case held that it had no jurisdiction over issues concerning the
interpretation and application of the International Covenant on Civil and Political
Rights.
98
Indeed, although considerations of humanity must be taken into account
99
when interpreting UNCLOS, the Tribunal pointed out that:
Article 293(1) does not extend the jurisdiction of a tribunal. Rather, it ensures that, in exercising its jurisdiction under the Convention, a tribunal can give full effect to the provisions
of the Convention. For this purpose, some provisions of the Convention directly incorporate
other rules of international law.
100 […] Article 293 is not, however, 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, or unless the treaty otherwise directly applies
pursuant to the Convention.
101
The same holds true for the determination of violations of general international
law, even though a number of controversial passages in the decisions of different
international tribunals may seem to suggest otherwise.
102
In my opinion these decisions are not based on an interpretation in accordance with Art. 31(1) VCLT—that
is, an interpretation “in good faith in accordance with the ordinary meaning to be
given to the terms of Article 293(1) in their context and in the light of its object and
purpose”.
103
Indeed, Article 293(1) is not a provision aimed at extending the juris95 See Art. 288(1) UNCLOS.
96 PCA, The MOX Plant Case (Ireland v. United Kingdom), Order No. 3, 24 June 2003, para. 19.
97 PCA, Arctic Sunrise (Netherlands v. Russia), Award on the Merits, 14 August 2015, para. 198.
98 New York, 16 December 1966; entry into force: 23 March 1976; 999 UNTS 171.
99 Arctic Sunrise (Netherlands v. Russia), Award on the Merits, para. 198. See also, The Duzgit
Integrity Arbitration (Malta v. São Tomé and Principe), Award, para. 207.
100 Arctic Sunrise (Netherlands v. Russia), Award on the Merits, para. 198.
101 Ibidem, para. 192.
102 Again, with regard to the prohibition of the use of force, see M/V Saiga (No. 2) (Saint Vincent
and the Grenadines v. Guinea), Judgment, para. 155; Guyana v. Suriname, Award, para. 406; The
M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, paras 350–362. For a critical discussion of this case law, see Tzeng (2016), especially pp. 258–261.
103 In this sense see also Tzeng (2016), pp. 246–247.
R. Virzo
It should be recalled, however, that, by virtue of Article 293(1) UNCLOS, an
international court or tribunal can only apply the systemic integration approach, and
thus take into account “other rules not incompatible with the Convention”, if it has
ascertained that it has jurisdiction under Section II of Part XV of UNCLOS.
In other words, the court or tribunal must, in any case, be competent to hear and
rule on disputes relating to the interpretation and application of UNCLOS
95
and may
not exercise its jurisdiction in the case of disputes concerning only other rules that
are not incompatible with UNCLOS. This is because, as observed by the Annex VII
Arbitral Tribunal in the MOX Plant case, “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”.
96
Elaborating on the passage just quoted above, the Annex VII Arbitral Tribunal in
the Arctic Sunrise
97
case held that it had no jurisdiction over issues concerning the
interpretation and application of the International Covenant on Civil and Political
Rights.
98
Indeed, although considerations of humanity must be taken into account
99
when interpreting UNCLOS, the Tribunal pointed out that:
Article 293(1) does not extend the jurisdiction of a tribunal. Rather, it ensures that, in exercising its jurisdiction under the Convention, a tribunal can give full effect to the provisions
of the Convention. For this purpose, some provisions of the Convention directly incorporate
other rules of international law.
100 […] Article 293 is not, however, 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, or unless the treaty otherwise directly applies
pursuant to the Convention.
101
The same holds true for the determination of violations of general international
law, even though a number of controversial passages in the decisions of different
international tribunals may seem to suggest otherwise.
102
In my opinion these decisions are not based on an interpretation in accordance with Art. 31(1) VCLT—that
is, an interpretation “in good faith in accordance with the ordinary meaning to be
given to the terms of Article 293(1) in their context and in the light of its object and
purpose”.
103
Indeed, Article 293(1) is not a provision aimed at extending the juris95 See Art. 288(1) UNCLOS.
96 PCA, The MOX Plant Case (Ireland v. United Kingdom), Order No. 3, 24 June 2003, para. 19.
97 PCA, Arctic Sunrise (Netherlands v. Russia), Award on the Merits, 14 August 2015, para. 198.
98 New York, 16 December 1966; entry into force: 23 March 1976; 999 UNTS 171.
99 Arctic Sunrise (Netherlands v. Russia), Award on the Merits, para. 198. See also, The Duzgit
Integrity Arbitration (Malta v. São Tomé and Principe), Award, para. 207.
100 Arctic Sunrise (Netherlands v. Russia), Award on the Merits, para. 198.
101 Ibidem, para. 192.
102 Again, with regard to the prohibition of the use of force, see M/V Saiga (No. 2) (Saint Vincent
and the Grenadines v. Guinea), Judgment, para. 155; Guyana v. Suriname, Award, para. 406; The
M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, paras 350–362. For a critical discussion of this case law, see Tzeng (2016), especially pp. 258–261.
103 In this sense see also Tzeng (2016), pp. 246–247.
R. Virzo