387
applicable by virtue of article 293 of the Convention, requires that the use of force
must be avoided as far as possible and, where force is unavoidable, it must not go
beyond what is reasonable and necessary in the circumstances”.
15
It then found that
Guinea “used excessive force and endangered human life before and after boarding
the Saiga, and thereby violated the rights of Saint Vincent and the Grenadines under
international law”.
16
This finding was finally included in the operative part of the
judgment.
17
In a similar vein, in the Guyana/Suriname Arbitration, the Annex VII Tribunal
considered the interpretation of Art. 293(1) given by ITLOS in the M/V Saiga (No.2)
judgment as “reasonable” and stated that “Suriname’s contention that this Tribunal
had ‘no jurisdiction to adjudicate alleged violations of the United Nations Charter
and general international law’ cannot be accepted”.
18
In the operative provision of
the award the Tribunal then included the findings concerning the unlawful use or
threat of force.
19
The decision rendered in the M/V Virginia G case provides a further example of
the expanding effect drawn from Art. 293(1). In this case the Tribunal followed the
same approach taken in Saiga (No.2) as to the alleged excessive use of force by the
Respondent
20
and eventually stated expressly that it did not found that “GuineaBissau used excessive force leading to physical injuries or endangering human life
during the boarding and sailing of the M/V Virginia G to the port of Bissau”.
21
Here
again, the Tribunal included this finding in the operative part of the judgment.
Also the recent award in the South China Sea Arbitration might signal an expansion of UNCLOS Part XV jurisdiction through the applicable law clause. In assessing the Philippine’s claim that China acted “to aggravate and extend the dispute
between the Parties”, the Tribunal made a quite extensive inquiry as to existence of
a duty on the parties to refrain from aggravating or extending the dispute during the
pendency of a dispute settlement procedure.
22
The Tribunal eventually linked this
duty to Articles 279, 296 and 300 of the Convention and observed that there was “no
need to reach beyond the text of the Convention to identify the source of the law
15 ITLOS, M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July
1999, para. 155.
16 Ibidem, para. 159.
17 In the operative part the Tribunal stated that “while stopping and arresting the Saiga Guinea used
excessive force contrary to international law and thereby violated the rights of Saint Vincent and
the Grenadines”, para. 183(9) (emphasis added).
18 PCA, Guyana v. Suriname, Award, 17 September 2007, para. 406.
19 In the dispositif the Tribunal stated that it had “jurisdiction to consider and rule on Guyana’s
allegation that Suriname has engaged in the unlawful use or threat of force contrary to the
Convention, the UN Charter, and general international law” (para. 487(ii)) and that “the expulsion
from the disputed area of the CGX oil rig and drill ship C.E. Thornton by Suriname on 3 June 2000
constituted a threat of the use of force in breach of the Convention, the UN Charter, and general
international law” (para. 488).
20 ITLOS, M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, 14 April 2014, paras 350–362.
21 See ibidem, para. 452(13).
22 South China Sea Arbitration, Award, 12 July 2016, para. 1150 ff.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…
applicable by virtue of article 293 of the Convention, requires that the use of force
must be avoided as far as possible and, where force is unavoidable, it must not go
beyond what is reasonable and necessary in the circumstances”.
15
It then found that
Guinea “used excessive force and endangered human life before and after boarding
the Saiga, and thereby violated the rights of Saint Vincent and the Grenadines under
international law”.
16
This finding was finally included in the operative part of the
judgment.
17
In a similar vein, in the Guyana/Suriname Arbitration, the Annex VII Tribunal
considered the interpretation of Art. 293(1) given by ITLOS in the M/V Saiga (No.2)
judgment as “reasonable” and stated that “Suriname’s contention that this Tribunal
had ‘no jurisdiction to adjudicate alleged violations of the United Nations Charter
and general international law’ cannot be accepted”.
18
In the operative provision of
the award the Tribunal then included the findings concerning the unlawful use or
threat of force.
19
The decision rendered in the M/V Virginia G case provides a further example of
the expanding effect drawn from Art. 293(1). In this case the Tribunal followed the
same approach taken in Saiga (No.2) as to the alleged excessive use of force by the
Respondent
20
and eventually stated expressly that it did not found that “GuineaBissau used excessive force leading to physical injuries or endangering human life
during the boarding and sailing of the M/V Virginia G to the port of Bissau”.
21
Here
again, the Tribunal included this finding in the operative part of the judgment.
Also the recent award in the South China Sea Arbitration might signal an expansion of UNCLOS Part XV jurisdiction through the applicable law clause. In assessing the Philippine’s claim that China acted “to aggravate and extend the dispute
between the Parties”, the Tribunal made a quite extensive inquiry as to existence of
a duty on the parties to refrain from aggravating or extending the dispute during the
pendency of a dispute settlement procedure.
22
The Tribunal eventually linked this
duty to Articles 279, 296 and 300 of the Convention and observed that there was “no
need to reach beyond the text of the Convention to identify the source of the law
15 ITLOS, M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July
1999, para. 155.
16 Ibidem, para. 159.
17 In the operative part the Tribunal stated that “while stopping and arresting the Saiga Guinea used
excessive force contrary to international law and thereby violated the rights of Saint Vincent and
the Grenadines”, para. 183(9) (emphasis added).
18 PCA, Guyana v. Suriname, Award, 17 September 2007, para. 406.
19 In the dispositif the Tribunal stated that it had “jurisdiction to consider and rule on Guyana’s
allegation that Suriname has engaged in the unlawful use or threat of force contrary to the
Convention, the UN Charter, and general international law” (para. 487(ii)) and that “the expulsion
from the disputed area of the CGX oil rig and drill ship C.E. Thornton by Suriname on 3 June 2000
constituted a threat of the use of force in breach of the Convention, the UN Charter, and general
international law” (para. 488).
20 ITLOS, M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, 14 April 2014, paras 350–362.
21 See ibidem, para. 452(13).
22 South China Sea Arbitration, Award, 12 July 2016, para. 1150 ff.
Between Consent and Effectiveness: Incidental Determinations and the Expansion…