31
diction of the courts and tribunals competent under Section II of Part XV of
UNCLOS.
104
Returning to the question of the applicable law, as briefly noted at the beginning
of this section, there is a third way in which the systemic integration method and,
therefore, rules extrinsic to UNCLOS have been applied. More specifically, some
international courts and tribunals have deemed it appropriate to take into account
other relevant rules of treaty or general international law without invoking Article
31(3)(c) VCLT or Article 293(1) UNCLOS.
With regard to treaty law, we may cite as examples the ITLOS decisions
105
on the
regulation by a coastal State of bunkering of foreign vessels fishing in its EEZ,
which is an activity not expressly regulated by UNCLOS. To justify its view that
such regulation “is among those measures which the Coastal State may take in its
exclusive economic zone”,
106
the Hamburg Tribunal relied, among other things, on
a number of multilateral agreements
107
that “include supply of fishing vessels in the
definition of ‘fishing-related activities”.
108
As regards general international law, it may be recalled that, in ARA Libertad,
ITLOS coordinated the UNCLOS provisions on the immunities of warships with
the rules of general international law on the matter. Having reiterated that the compatibility clause in Article 32 (“nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial purposes”) is
applicable to all maritime areas,
109
the Tribunal added that: “in accordance with
general international law, a warship enjoys immunities, including in internal
waters”.
110
ITLOS has used the same technique in interpreting the rule of prior exhaustion
of local remedies laid down in Article 295 UNCLOS. The final part of this provision
specifies that the rule applies “where this is required by international law”. As a
consequence, ITLOS has recalled on many occasions that:
It is a well-established principle of customary international law that the exhaustion of local
remedies is a prerequisite for the exercise of diplomatic protection. This principle is
reflected in article 14, paragraph 1, of the Draft Articles on Diplomatic Protection adopted
by the International Law Commission in 2006, which provides that ‘[a] State may not present an international claim in respect of an injury to a national … before the injured person
has … exhausted all local remedies’. It is also established in international law that the
104 For an in-depth analysis, see the chapter by Marotti in this volume.
105 See in particular ITLOS, M/V Saiga (Saint Vincent and the Grenadines v. Guinea), Prompt
Release, Judgment, 4 December 1997, para. 57; The M/V “Virginia G” Case (Panama/GuineaBissau), Judgment, paras 215–219.
106 The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, para. 217.
107 Ibidem, para. 216.
108 Ibidem, para. 219.
109 ITLOS, “ARA Libertad” (Argentina v. Ghana), Provisional Measures, Order, 15 December
2012, para. 64. It must be remembered that in the high seas (and by virtue of Article 58 UNCLOS
in the EEZ) the right to immunities of warships is enshrined also in Art. 95 UNCLOS.
110 Ibidem, para. 92.
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…
diction of the courts and tribunals competent under Section II of Part XV of
UNCLOS.
104
Returning to the question of the applicable law, as briefly noted at the beginning
of this section, there is a third way in which the systemic integration method and,
therefore, rules extrinsic to UNCLOS have been applied. More specifically, some
international courts and tribunals have deemed it appropriate to take into account
other relevant rules of treaty or general international law without invoking Article
31(3)(c) VCLT or Article 293(1) UNCLOS.
With regard to treaty law, we may cite as examples the ITLOS decisions
105
on the
regulation by a coastal State of bunkering of foreign vessels fishing in its EEZ,
which is an activity not expressly regulated by UNCLOS. To justify its view that
such regulation “is among those measures which the Coastal State may take in its
exclusive economic zone”,
106
the Hamburg Tribunal relied, among other things, on
a number of multilateral agreements
107
that “include supply of fishing vessels in the
definition of ‘fishing-related activities”.
108
As regards general international law, it may be recalled that, in ARA Libertad,
ITLOS coordinated the UNCLOS provisions on the immunities of warships with
the rules of general international law on the matter. Having reiterated that the compatibility clause in Article 32 (“nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial purposes”) is
applicable to all maritime areas,
109
the Tribunal added that: “in accordance with
general international law, a warship enjoys immunities, including in internal
waters”.
110
ITLOS has used the same technique in interpreting the rule of prior exhaustion
of local remedies laid down in Article 295 UNCLOS. The final part of this provision
specifies that the rule applies “where this is required by international law”. As a
consequence, ITLOS has recalled on many occasions that:
It is a well-established principle of customary international law that the exhaustion of local
remedies is a prerequisite for the exercise of diplomatic protection. This principle is
reflected in article 14, paragraph 1, of the Draft Articles on Diplomatic Protection adopted
by the International Law Commission in 2006, which provides that ‘[a] State may not present an international claim in respect of an injury to a national … before the injured person
has … exhausted all local remedies’. It is also established in international law that the
104 For an in-depth analysis, see the chapter by Marotti in this volume.
105 See in particular ITLOS, M/V Saiga (Saint Vincent and the Grenadines v. Guinea), Prompt
Release, Judgment, 4 December 1997, para. 57; The M/V “Virginia G” Case (Panama/GuineaBissau), Judgment, paras 215–219.
106 The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment, para. 217.
107 Ibidem, para. 216.
108 Ibidem, para. 219.
109 ITLOS, “ARA Libertad” (Argentina v. Ghana), Provisional Measures, Order, 15 December
2012, para. 64. It must be remembered that in the high seas (and by virtue of Article 58 UNCLOS
in the EEZ) the right to immunities of warships is enshrined also in Art. 95 UNCLOS.
110 Ibidem, para. 92.
The ‘General Rule of Interpretation’ in the International Jurisprudence Relating…