12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
225
12.2.5 Declaration on the Optional Exception (Article 298)
Article 298(1) of UNCLOS provides the system of optional exceptions to applicability of section 2, as follows:
1. […] a State may […] declare in writing that it does not accept any one or more of the
procedures provided for in section 2 with respect to one or more of the following categories
of disputes:
a. (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating
to sea boundary delimitations, or those involving historic bays or titles […];
b. disputes concerning military activities, including military activities by government
vessels and aircraft engaged in non-commercial service, and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights or jurisdiction
excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2
or 3;
c. disputes in respect of which the Security Council of the United Nations is exercising the
functions assigned to it by the Charter of the United Nations […].
Optional exceptions under Article 298 entail the same function as that of reservations attached to ICJ optional clause declarations, by excluding the listed three
categories of disputes from the jurisdiction of the UNCLOS-DSM, especially from
the compulsory jurisdiction of Annex VII tribunals. Japan, having not deposited
a declaration under Article 298,
17 accepts the compulsory jurisdiction of Annex
VII tribunals (Article 287) on any kind of dispute without exception (Article 298),
insofar as that dispute concerns ‘the interpretation or application of this Convention [UNCLOS]’ (Article 288(1)). It can be explained that such an arguably positive
attitude towards the UNCLOS-DSM is based on Japan’s intention to retain the possibility to submit cases
18 against neighbouring countries.
19 Such an intention may be
discerned in Japan’s statement concerning the Bangladesh and Myanmar case. Even
though Japan was simply a third party to the case, Japan expressed its gratitude to
the Judgment, and welcomed the solution of a maritime delimitation dispute in the
following terms
20 :
17 ITLOS, ‘Declarations made by States Parties under article 298’, available at https://www.
itlos.org/en/jurisdiction/declarations-of-states-parties/declarations-made-by-states-parties-underarticle-298/.
18 It is necessary to consider the principle of reciprocity, established with regard to the reservations
attached to the ICJ optional clause declarations, according to which any applicant State can rely
on the reservation (or optional exception declaration under UNCLOS) of the respondent State.
Consequently, were Japan to deposit a declaration under Article 298(1)(a)(i) to exclude a ‘sea
boundary delimitation’ dispute, Japan could not subsequently seek to raise such kind of dispute
against any other contracting party.
19 As to several conceivable disputes between Japan and other countries, see Dai Tamada, ‘Japan
and the International Court of Justice’, in Achilles Skordas (ed.), Research Handbook on the International Court of Justice (forthcoming). As to Japan’s territorial disputes in general, see Serita
Kentaro (translated by Alex Meyer), The Territory of Japan: Its History and Legal Basis (2010).
20 MOFA, ‘Statement by the Press Secretary, Ministry of Foreign Affairs of Japan on Delivery of the
Judgment by the International Tribunal for the Law of the Sea on the dispute concerning delimitation
225
12.2.5 Declaration on the Optional Exception (Article 298)
Article 298(1) of UNCLOS provides the system of optional exceptions to applicability of section 2, as follows:
1. […] a State may […] declare in writing that it does not accept any one or more of the
procedures provided for in section 2 with respect to one or more of the following categories
of disputes:
a. (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating
to sea boundary delimitations, or those involving historic bays or titles […];
b. disputes concerning military activities, including military activities by government
vessels and aircraft engaged in non-commercial service, and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights or jurisdiction
excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2
or 3;
c. disputes in respect of which the Security Council of the United Nations is exercising the
functions assigned to it by the Charter of the United Nations […].
Optional exceptions under Article 298 entail the same function as that of reservations attached to ICJ optional clause declarations, by excluding the listed three
categories of disputes from the jurisdiction of the UNCLOS-DSM, especially from
the compulsory jurisdiction of Annex VII tribunals. Japan, having not deposited
a declaration under Article 298,
17 accepts the compulsory jurisdiction of Annex
VII tribunals (Article 287) on any kind of dispute without exception (Article 298),
insofar as that dispute concerns ‘the interpretation or application of this Convention [UNCLOS]’ (Article 288(1)). It can be explained that such an arguably positive
attitude towards the UNCLOS-DSM is based on Japan’s intention to retain the possibility to submit cases
18 against neighbouring countries.
19 Such an intention may be
discerned in Japan’s statement concerning the Bangladesh and Myanmar case. Even
though Japan was simply a third party to the case, Japan expressed its gratitude to
the Judgment, and welcomed the solution of a maritime delimitation dispute in the
following terms
20 :
17 ITLOS, ‘Declarations made by States Parties under article 298’, available at https://www.
itlos.org/en/jurisdiction/declarations-of-states-parties/declarations-made-by-states-parties-underarticle-298/.
18 It is necessary to consider the principle of reciprocity, established with regard to the reservations
attached to the ICJ optional clause declarations, according to which any applicant State can rely
on the reservation (or optional exception declaration under UNCLOS) of the respondent State.
Consequently, were Japan to deposit a declaration under Article 298(1)(a)(i) to exclude a ‘sea
boundary delimitation’ dispute, Japan could not subsequently seek to raise such kind of dispute
against any other contracting party.
19 As to several conceivable disputes between Japan and other countries, see Dai Tamada, ‘Japan
and the International Court of Justice’, in Achilles Skordas (ed.), Research Handbook on the International Court of Justice (forthcoming). As to Japan’s territorial disputes in general, see Serita
Kentaro (translated by Alex Meyer), The Territory of Japan: Its History and Legal Basis (2010).
20 MOFA, ‘Statement by the Press Secretary, Ministry of Foreign Affairs of Japan on Delivery of the
Judgment by the International Tribunal for the Law of the Sea on the dispute concerning delimitation