36
which in a recent ruling
133
referred with approval to a judgment of ITLOS
134
and an
award of an arbitral tribunal constituted under Annex VII to UNCLOS.
135
Secondly, and most importantly for the theme of this chapter, there is constant
recourse to the interpretative criteria codified in the VCLT, in particular those set out
in Article 31. After all, as noted earlier, many decisions concerning the interpretation of UNCLOS provisions emphasize the correspondence between general international law and the “general rule” codified in Article 31 VCLT.
Thirdly, international courts and tribunals often apply the general rule of interpretation to avoid endorsing a unilateral interpretation of UNCLOS, as well as to lay
stress on the progressive emergence of new rules that reflect a change in the interests
of the international community as a whole.
For example, as observed before, on many occasions they have given prominence to the object and purpose of the Montego Bay Convention.
In this regard, consider again the purposive interpretation of Article 121(3)
UNCLOS offered in the award on the merits of the South China Sea arbitration case.
As recalled above, the Arbitral Tribunal held that Article 121(3), which provides
that “rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf”, responds to the need to
prevent excessive and unjustified unilateral claims by coastal States—claims which,
in the case of the continental shelf, would threaten to affect the size of the
International Seabed Area, thus undermining the common heritage of mankind, and,
in the case of the EEZ, would generate “enormous entitlements to maritime spaces
that would serve not to benefit the local populations, but to award a windfall to the
(potentially distant) State to have maintained a claim to such a feature”.
136
From this
perspective, the Tribunal’s interpretation can certainly be seen as “reflecting the
progressive development of the law of the sea toward universalism”.
137
Finally, another example of this trend, are the references to international obligations concerning marine environment protection and to considerations of humanity
in the law of the sea—both of which are discussed in other chapters of this volume.
138
One can most certainly commend these references as well as, more in general, a jurisprudence that clearly seeks to restrain creeping jurisdiction (where its
only purpose is to protect the interests of a coastal State, rather than also to protect
133 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
Judgment, paras 108, 153.
134 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment,
para. 317.
135 PCA, Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award, 7 July 2014,
para. 302.
136 South China Sea Arbitration (Philippines v. China), Award, para. 516.
137 Tanaka (2017), p. 379.
138 With regard to marine environment protection, see the chapter by Proells in this volume; with
regard to considerations of humanity, see the chapter by Cannone on the Enrica Lexie dispute and
the chapter by Delfino, in this volume.
R. Virzo
which in a recent ruling
133
referred with approval to a judgment of ITLOS
134
and an
award of an arbitral tribunal constituted under Annex VII to UNCLOS.
135
Secondly, and most importantly for the theme of this chapter, there is constant
recourse to the interpretative criteria codified in the VCLT, in particular those set out
in Article 31. After all, as noted earlier, many decisions concerning the interpretation of UNCLOS provisions emphasize the correspondence between general international law and the “general rule” codified in Article 31 VCLT.
Thirdly, international courts and tribunals often apply the general rule of interpretation to avoid endorsing a unilateral interpretation of UNCLOS, as well as to lay
stress on the progressive emergence of new rules that reflect a change in the interests
of the international community as a whole.
For example, as observed before, on many occasions they have given prominence to the object and purpose of the Montego Bay Convention.
In this regard, consider again the purposive interpretation of Article 121(3)
UNCLOS offered in the award on the merits of the South China Sea arbitration case.
As recalled above, the Arbitral Tribunal held that Article 121(3), which provides
that “rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf”, responds to the need to
prevent excessive and unjustified unilateral claims by coastal States—claims which,
in the case of the continental shelf, would threaten to affect the size of the
International Seabed Area, thus undermining the common heritage of mankind, and,
in the case of the EEZ, would generate “enormous entitlements to maritime spaces
that would serve not to benefit the local populations, but to award a windfall to the
(potentially distant) State to have maintained a claim to such a feature”.
136
From this
perspective, the Tribunal’s interpretation can certainly be seen as “reflecting the
progressive development of the law of the sea toward universalism”.
137
Finally, another example of this trend, are the references to international obligations concerning marine environment protection and to considerations of humanity
in the law of the sea—both of which are discussed in other chapters of this volume.
138
One can most certainly commend these references as well as, more in general, a jurisprudence that clearly seeks to restrain creeping jurisdiction (where its
only purpose is to protect the interests of a coastal State, rather than also to protect
133 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
Judgment, paras 108, 153.
134 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment,
para. 317.
135 PCA, Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award, 7 July 2014,
para. 302.
136 South China Sea Arbitration (Philippines v. China), Award, para. 516.
137 Tanaka (2017), p. 379.
138 With regard to marine environment protection, see the chapter by Proells in this volume; with
regard to considerations of humanity, see the chapter by Cannone on the Enrica Lexie dispute and
the chapter by Delfino, in this volume.
R. Virzo