nature of procedures

In Barbados v Trinidad and Tobago, the arbitral tribunal observed that where the parties to a dispute have chosen a particular procedure under Article 281, “their obligation to follow the procedures provided in Part XV will arise where no settlement has been reached through recourse to the agreed means and where their agreement does not exclude any further procedures.”Footnote ⁶¹ Since the agreement in question “did not exclude any further procedures, and since their chosen peaceful settlement procedure — negotiations — failed to result in a settlement of their dispute,” the relevant provisions under Part XV allowed the commencement of arbitral proceedings thereunder.Footnote ⁶² The conditions in question appear cumulative. The question arises whether the presence of an exclusive provision, but the absence of settlement, would nonetheless result in making Part XV inoperative. In its observations on the scope and nature of Article 281 of UNCLOS, including its structure, the arbitral tribunal in the South China Sea Arbitration essentially observed that Article 281 “requires an ‘opting out’ of Part XV procedures.”Footnote ⁶³ Making Part XV of UNCLOS inoperative is not contingent upon the nature of the procedures established by the agreement but, rather, upon the fulfilment of essentially one formal criterion of exclusion. Following this logic of the arbitral tribunal implies recognizing that two or more parties can make the entire functioning of Part XV of UNCLOS redundant if only they intend — explicitly —the procedure to which reference is made in the last phrase of Article 281 to be exclusive, notwithstanding the substantive undertaking of any such exclusive procedure.Footnote ⁶⁴

This understanding also appears to permeate the reasoning of the ICJ in its decision in Somalia v Kenya (Maritime Delimitation). Footnote ⁶⁵ According to the ICJ, states parties to UNCLOS are free to agree between themselves “to a means of settlement that does not lead to a binding decision of a third party (e.g., conciliation). However, if no settlement has been reached by recourse to such means, either of those states parties may submit the dispute to the court or tribunal having jurisdiction under Section 2 of Part XV, unless their agreement to such means of settlement excludes the procedures entailing a binding decision in Section 2 (Art. 281, para. 1).”Footnote ⁶⁶ Consequently, where the exclusiveness of such a procedure appears explicitly, it is not relevant whether the procedures in question are not vested with powers to settle the dispute. This understanding, which appears to contrast with the observations of Bernard Oxman on this particular question,Footnote ⁶⁷ calls for two observations.

First, given the particular formulation of the first of the three criteria established by the arbitral tribunal in the South China Sea Arbitration,Footnote ⁶⁸ it may be inferred that the settlement procedure in question is not of the adjudicative kind. The reasons for this are twofold: on the one hand, the provision makes use of the expression “seek to settle,” while, on the other hand, adjudicative procedures per se are meant to resolve a dispute.Footnote ⁶⁹ In point of fact, an international court or tribunal exercising its competence is obligated to “exercise that jurisdiction to its full extent.”Footnote ⁷⁰ The forum is compelled to “decide the whole of the petitum entrusted to it.”Footnote ⁷¹ For a court or tribunal to “discharge itself from carrying out that primary obligation must be considered as highly exceptional and a step to be taken only when the most cogent considerations of judicial propriety so require,”Footnote ⁷² in which case, the court or tribunal has to “refuse” to exercise its jurisdiction.Footnote ⁷³ From this background, it would appear unlikely that courts and tribunals under Part XV would be able to settle a dispute to the extent that adjudicative fora to which reference is allegedly made in an agreement under Article 281 of UNCLOS are not vested with these powers. The proposition follows accordingly that the expression “procedure” under Article 281 of UNCLOS does not relate to an adjudicative procedure where fora are vested with the power to make binding decisions, from which it may further be inferred that the material scope of this provision does not purport to cover dispute settlement procedures. This consideration cannot be ignored when construing Article 281(1) of UNCLOS with a view to determining whether conciliatory procedures may set aside otherwise binding dispute settlement provisions.

Second, to the extent that the procedure in Article 281 nevertheless relates to adjudicative proceedings, there can be no expectation of any further procedures since, it must be assumed unless otherwise agreed, the decisions in question are binding and final. This raises challenges for the construction of the expression “exclude any further procedure.”Footnote ⁷⁴ It is clear that “further” is not used as an adverb but, rather, as an adjective. Also, “procedure” is not plural but, rather, singular. These details appear to be important as the expression “further procedure”Footnote ⁷⁵ cannot be construed to be identical to the expression “the procedures provided for in this Part,”Footnote ⁷⁶ which is plural and refers unquestionably to Section 2. The adjective “further” appears to indicate that the procedure in question entails means other than those referred to under Article 281(1). Yet, while the English version of Article 281(1) makes use of the pronoun “any,” the French, Spanish, and Russian versions use expressions that vary in a non-negligible manner, referring to the equivalent of exclusion of the possibility of initiating another procedure rather than of “any other procedure”Footnote ⁷⁷ tout court. Footnote ⁷⁸

As mentioned earlier, interestingly, in Barbados v Trinidad and Tobago the arbitral tribunal noted that Article 281 “is intended primarily to cover the situation where the Parties have come to an ad hoc agreement as to the means to be adopted to settle the particular dispute which has arisen.”Footnote ⁷⁹ Yet, under this interpretation, the procedure is considered susceptible to settle the dispute. The question arises indubitably whether an agreement that excludes procedures under Section 2 may constitute an Article 281 agreement if the procedures do not share characteristics belonging to dispute settlement mechanisms — that is, that entail binding decisions and thus the settlement of disputes. It should be noted that in the Dispute Concerning Coastal State Rights, the arbitral tribunal explicitly appeared to embrace the view that to constitute a procedure within the meaning of Article 281 of UNCLOS, the mechanism in question must be a dispute settlement procedure. The arbitral tribunal observed in this regard that no provisions in the putative Article 281 agreements could be classified as “a means of dispute settlement.”Footnote ⁸⁰ On this basis alone, according to the arbitral tribunal, the agreements in question “do not constitute dispute settlement clauses.”Footnote ⁸¹ This fact made any consideration of whether the proceedings were of an exclusive nature redundant.Footnote ⁸² Consequently, in the view of the arbitral tribunal, the means to which reference is made in Article 281 are dispute settlement procedures — that is, mechanisms that are susceptible to settle the dispute independently of the considerations of the disputing parties. Yet, as noted earlier, this statement stands in contradiction to the observations of the ICJ in the Somalia v Kenya decision in which the ICJ indicated that Article 281 agreements may be limited “to a means of settlement that does not lead to a binding decision of a third party.”Footnote ⁸³

To accept that Article 281 may set aside Section 2 provided only that the exclusiveness of the procedure is confirmed notwithstanding the nature of the procedure in question appears difficult to reconcile with the fact that Part XV of UNCLOS was considered the “pivot upon which the delicate equilibrium of the compromise must be balanced.”Footnote ⁸⁴ By the same token, the question arises whether a conciliation procedure enshrined in a putative Article 281 agreement could make the entire dispute settlement mechanism in Section 2 inoperative, notwithstanding that its conclusions per se are not binding. The Virginia Commentary provides in this regard that the parties, in their agreement to resort to a particular procedure, may also specify that this procedure shall be an exclusive one “even if the chosen procedure should not lead to a settlement.”Footnote ⁸⁵ Characterizing Article 281 as “a super provision” under such circumstances would certainly not be too far-fetched.Footnote ⁸⁶ However, it is difficult to reach any dispositive conclusions based on the foregoing statement taking into account that the same commentary provides that “[i]f, however, such a settlement is not reached through the procedure chosen by the parties, article 281 makes it clear that in such a case Part XV will become applicable, and any party will be entitled to resort then to the procedures specified in this Part.”Footnote ⁸⁷

It appears unambiguous that the arbitral tribunal in the Dispute Concerning Coastal State Rights followed the rationale that underlies the latter rather than the former quotation from the Virginia Commentary. The question that arises is: what importance to attribute to the Virginia Commentary in the interpretation of provisions under the convention, in particular when these a priori are not consistent? It should not be ignored that the Virginia Commentary is only meant as a substitute, although an important one, “in the absence of an official legislative history for the Convention, for an objective and comprehensive analysis of the articles in the Convention.”Footnote ⁸⁸ A treaty interpreter need not always limit interpretation of the provisions of UNCLOS by circumscribing the exercise to align with the observations in the Virginia Commentary, at least where there are objective reasons for questioning the conclusions therein. The above commentary regarding Article 281 would appear constitutive of such a circumstance.

The provisions of Part XV of UNCLOS are of such a type that “derogation from [them] is incompatible with the effective execution of the object and purposes of the Convention”Footnote ⁸⁹ and, consequently, impermissible given that “[u]niformity in the interpretation of the Convention should be sought [and] a few carefully defined exceptions should be allowed.”Footnote ⁹⁰ Such waivers could become a subterfuge for a number of states, acting in concert, to make de facto reservations to Part XV of UNCLOS (even though the convention does not allow any reservations or exceptions unless expressly permitted by the convention)Footnote ⁹¹ if the alternative procedures in Article 281 “are not required to contain a compulsory dispute settlement system.”Footnote ⁹² To exemplify this point, applying the criterion of exclusiveness under the standard established by the arbitral tribunal in the South China Sea Arbitration would allow Article 16 of the Convention on the Conservation of Southern Bluefin Tuna to set aside Part XV procedures, so long as there is a fundamental inability of the alternative procedure in question to result in a binding decision on the parties.Footnote ⁹³ This would follow since either party would remain entitled to block referral of the dispute to an adjudicative forum.Footnote ⁹⁴ Yet, “[e]ven if Article 281 were intended also to cover dispute settlement clauses in agreements such as the 1993 CCSBT [Convention for the Conservation of Southern Bluefin Tuna], one comes back to the question: how is it possible to read into one agreement (the 1993 CCSBT) an intention to preclude resort to compulsory procedures in the event of disputes arising under another agreement (the 1982 UNCLOS)?”Footnote ⁹⁵ After all, the fact that the compulsory procedures in Section 2 of Part XV “n’aient qu’une fonction supplétive” is only true in so far as concerns a “mécanisme obligatoire de règlement.”Footnote ⁹⁶ Where the alternative procedure is not constitutive of a règlement, it is devoid of status as a mécanisme.

On the one hand, it could be argued that Article 281 cannot be considered a provision allowing such de facto exceptions to Part XV of UNCLOS. On the other hand, as has been observed elsewhere, it could also be argued that

The response to the above question must be in the negative. The contrary response would imply that the model of an optional protocol on dispute settlement mechanisms, applicable under the 1958 Geneva Conventions but intentionally excluded during the Third Conference, would be reintroduced in the era of UNCLOS. In this regard, it was observed at the beginning of the Third Conference that an “optional protocol would be a totally inadequate way of dealing with” disputes.Footnote ⁹⁸ In point of fact, this observation was considered of such importance during the Third Conference that to relegate dispute settlement “to an optional protocol” was considered liable to “jeopardize the ratification and even the signing of” UNCLOS. Footnote ⁹⁹ However, whether Article 281 of UNCLOS would allow opting out from Section 2 regardless of whether the alternative procedure is vested with the required characteristics allowing for resolution of the dispute, or whether those characteristics are indeed compulsory in order to opt out, raises the question of what role to attribute to Article 282 of UNCLOS. The latter interpretation might appear to be disqualified on the basis that it would make Article 282 redundant. However, the better view appears to be that Article 281 is not meant to allow for a complete opt-out from Section 2 in the absence of a provision requiring settlement of the dispute.

parallelism of treaties

Article 282 is not an exception to Section 2 of Part XV but allows autonomous choices of forum notwithstanding the binding nature of section 2 of Part XV. Under Article 282, where parties to a dispute regarding the interpretation or application of UNCLOS “have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”Footnote ¹⁰⁰ Surprisingly, this provision has been given relatively modest attention in scholarly writings,Footnote ¹⁰¹ although some adjudicative fora have addressed its scope and meaning.

Given the general nature of a broad range of provisions of UNCLOS, it will be no surprise that disputes relating to the interpretation or application of UNCLOS Footnote ¹⁰² will often also extend to disagreements over the interpretation or application of other treaties. UNCLOS in fact foresees that the law to be applied by courts and tribunals established under Section 2 of Part XV is not limited to the law of the sea governed by UNCLOS. Footnote ¹⁰³ In the MOX Plant case, the respondent advanced the argument that the real dispute between the parties was governed by equivalent compulsory dispute settlement procedures provided for in other applicable treaties. According to ITLOS, notwithstanding that rights or obligations in other treaties are “similar to or identical with the rights or obligations set out in [UNCLOS], the rights and obligations under those agreements have a separate existence from those under” UNCLOS. Footnote ¹⁰⁴ Further, according to ITLOS, as “the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of [UNCLOS] and no other agreement, only the dispute settlement procedures under [UNCLOS] are relevant to that dispute.”Footnote ¹⁰⁵ Consequently, courts and tribunals competent under alternative treaties do not have jurisdiction over disputes concerning the interpretation or application of UNCLOS. This is because, according to ITLOS, “the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires.”Footnote ¹⁰⁶ Parts of this statement appear to be penetrated in the separate observations of Judge Treves, who argued that when a dispute, which may involve substantive matters under UNCLOS, in fact relates to a different agreement — “even [one that] set[s] out obligations overlapping with those set out in” UNCLOS — that agreement is not an agreement that falls within Article 282 of UNCLOS. Footnote ¹⁰⁷ Agreements that fall within Article 282, according to Judge Treves, are those

Judge Treves’ interpretation clearly favours the jurisdiction of fora under Section 2 of Part XV of UNCLOS. Yet, the conclusions of the arbitral tribunal in the South China Sea Arbitration did not go along with this construction of Article 282. According to that arbitral tribunal, four conditions need to be present in order to activate Article 282 of UNCLOS: “(a) that the parties must have agreed through a ‘general, regional or bilateral agreement or otherwise’ that, (b) at the request of any party to the dispute, (c) the dispute shall be submitted to a procedure ‘that entails a binding decision,’ and (d) that the parties have not otherwise agreed to retain access (i.e., to opt back in) to the Part XV, Section 2 procedures.”Footnote ¹⁰⁹ These criteria are not similar to those listed in the separate opinion of Judge Treves in Mox Plant. In particular, the arbitral tribunal in the South China Sea Arbitration stated the second and third criteria to require that, “(b) at the request of any party to the dispute, (c) the dispute shall be submitted to a procedure ‘that entails a binding decision.’”Footnote ¹¹⁰ Yet, according to Article 282, “such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision.”Footnote ¹¹¹ The embedded clause in Article 282 appears subsequent to “shall” and prior to “be.” It therefore appears that, where a party in accordance with any of the agreements enumerated in Article 282 refers the dispute to an agreed alternative adjudicative forum, the latter has exclusive jurisdiction not only over matters under that agreement but also those parts of UNCLOS that are disputed, provided that the decision leads to a binding decision. This is not the same as concluding that the party in question is obliged to submit the dispute to the relevant alternative forum, which appears to be the meaning that results from the construction of the arbitral tribunal in the South China Sea Arbitration. It would indubitably follow from the construction of the arbitral tribunal that, were a forum under Section 2 of Part XV seized under those conditions, it would have to defer jurisdiction.Footnote ¹¹²

Interestingly, while the arbitral tribunal in the South China Sea Arbitration enumerated four required conditions in order to activate Article 282 of UNCLOS, the proposition that five criteria need to be fulfilled would be no exaggeration. This is because the arbitral tribunal held that a reason for which one of the agreements in question could under no circumstances fall within the scope of Article 282 was that it “does not provide expressly for a compulsory binding procedure ‘in lieu of’ the Part XV procedures.”Footnote ¹¹³ It is reasonable to infer from the above that, in the mindset of the arbitral tribunal, the dispute settlement mechanism in Part XV of UNCLOS is not superseded by an alternative dispute settlement mechanism in the absence of an “express” exclusionary provision under another agreement.

Article 282 of UNCLOS may still be open to constructions that will carve out a consolidated understanding, which in the current state of affairs cannot be seen to be the case. The opinions expressed by courts and tribunals to date, while in no sense abundant, are not sufficiently crystallized to constitute a case law upon which disputing parties may rely with certainty.

article 282 agreements and article 36(2) declarations

In 2015, Bernard Oxman observed that Article 282 “does not derogate from the principle of compulsory jurisdiction reflected in Section 2, Part XV; it merely defers to other agreements” that allow an applicant to submit a dispute to binding arbitration or adjudication under those agreements.Footnote ¹¹⁴ Yet the exact contours of Article 282 were held to be unclear. In particular,

In Somalia v Kenya, these particular issues were disputed, which called into question the ordinary meaning of the expression “or otherwise” in Article 282 of UNCLOS. The optional declaration of Kenya accepting compulsory jurisdiction under Article 36(2) of the ICJ Statute accepted jurisdiction over all disputes other than “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement,” one of which, according to Kenya, was Section 2, Part XV of UNCLOS. Due to the fact that neither Somalia nor Kenya had identified the ICJ as the preferred forum under Article 287(1)Footnote ¹¹⁶ of UNCLOS, but had instead abstained from making any such choice, both parties were, it was alleged by the respondent, deemed to have accepted the competence of an arbitral tribunal to be established under Annex VII to the convention, in accordance with Article 287(3)Footnote ¹¹⁷ of UNCLOS. Somalia rejected these arguments, asserting that an optional declaration made under Article 36(2) of the ICJ Statute “takes priority over the dispute resolution procedures contained in Article 287 of UNCLOS.”Footnote ¹¹⁸ The ICJ based its interpretation of “or otherwise” in Article 282 on a circularity argument presented by Somalia, together with an apparently extralegal, quantitative assessment of reservations similar to that of Kenya in effect at the time of the Third Conference, as well as the preparatory work.Footnote ¹¹⁹

That the expression “or otherwise” in Article 282 is considered a renvoi to declarations made pursuant to Article 36(2) of the ICJ Statute is non-controversial and overwhelmingly shared by scholars.Footnote ¹²⁰ Yet this is not the same as saying that reservations included in such optional declarations are to be disregarded due to an alleged overarching hierarchy between optional declarations and procedures under Section 2 of Part XV. Such an approach could be seen to override the intentions of the state in question, which, it is recalled, has a quintessential function in the interpretation of unilateral acts accepting compulsory jurisdiction such as declarations under Article 36(2) of the ICJ Statute. Footnote ¹²¹ The main argument that appears in the judgment is an acceptance of the Catch-22 argument proposed by Somalia — that is, if the reservation in the optional declaration of Kenya were to be construed to refer to Article 282, the latter would bounce it back to the optional declaration, resulting in an irresolvable conflict. Yet this particular reasoning appears to ignore the importance of reservations and qualifications in declarations under Article 36(2) of the ICJ Statute. One member of the bench in Somalia v Kenya characterized such reasoning as “unmeritorious.”Footnote ¹²² Yet, according to the ICJ, a contrary conclusion “would mean that, by ratifying a treaty which gives priority to agreed procedures resulting from optional clause declarations (pursuant to Article 282 of UNCLOS), states would have achieved precisely the opposite outcome, giving priority instead to the procedures contained in Section 2 of Part XV.”Footnote ¹²³

It may be questioned whether this conclusion of the ICJ pays true recognition to the intention of the reservation of Kenya in its optional declaration. This question arises since it is undisputed that the “consensual bond”Footnote ¹²⁴ that arises from optional declarations under Article 36(2) of the ICJ Statute exists “only to the extent to which the Declarations coincide in conferring it.”Footnote ¹²⁵ In his powerful dissenting opinion, Judge Patrick Robinson asserted that, due to the “lucid and unambiguous text [in the Article 36(2) optional declaration of Kenya,] it would be wholly unreasonable to conclude that the optional clause declarations between Kenya and Somalia constitute an agreement that falls within the scope of Article 282 when Part XV of [UNCLOS] sets out in Article 287 other methods of settlement.”Footnote ¹²⁶ The argument of Judge Robinson can be further substantiated in the following manner. Following the analysis of the ICJ, it would be immaterial whether Kenya had actively made use of the options under Article 287(1) of UNCLOS and had chosen either ITLOS or arbitration under Annex VII or, for example, whether it had made a declaration pursuant to Article 298(1)(a)(i) of the convention according to which only ITLOS or Annex VII tribunals would be the competent fora in regard to disputes relating to delimitation of maritime and continental shelf areas.Footnote ¹²⁷ It would appear difficult to accept the proposition that such a choice made under Article 287(1) should not be the context for the purposes of determining the intention of the optional declaration of Kenya under Article 36(2) of the ICJ Statute — and, in particular, the reservations therein. However, it would likewise appear difficult to sustain the above argument in a manner that would be consistent with the analysis of the ICJ. This is so because, regardless of its merits, the reasoning embedded in the ICJ’s conclusions would simply not allow such interpretations.

Judge Robinson also expressed virulent criticism of the quantitative argument of the ICJ, according to which, at the commencement of the Third Conference, more than half of the optional declarations under Article 36(2) of the ICJ Statute contained reservations similar to that of Kenya. According to the ICJ, this number of similar or identical reservations allegedly supported the conclusion that such declarations are part and parcel of what is captured by the expression “or otherwise” in Article 282.Footnote ¹²⁸ According to the ICJ, “Article 282 should therefore be interpreted so that an agreement to the Court’s jurisdiction through optional clause declarations falls within the scope of that Article and applies ‘in lieu’ of procedures provided for in Section 2 of Part XV, even when such declarations contain a reservation to the same effect as that of Kenya.”Footnote ¹²⁹ On this issue, Judge Robinson observed that “[a]lthough the majority’s numerical focus is deeply flawed, one cannot help but engage with that approach if only to observe that the majority to which it clings is not a significant one.”Footnote ¹³⁰ Judge Robinson further asserted that “[t]he approach of the majority is untenable. … What is called for is not a quantitative assessment but a qualitative evaluation of the impact of the reservation on the optional clause declarations and thus, on whether there is an agreement that falls within the scope of Article 282.”Footnote ¹³¹ In a convincing manner, Judge Robinson made the following a contrario argument: “Since the majority has a majoritarian fixation it would seem that the reasoning in paragraph 129 would also lead to the conclusion that the travaux préparatoires should be construed as evidencing an intention to exclude from the scope of Article 282 optional clause declarations with reservations different from that of Kenya, but which, unlike Kenya’s, do not constitute the majority of the universe of declarations in the relevant period.”Footnote ¹³² Yet, according to the ICJ, the procedures in Section 2 “are residual to the provisions of Section 1,”Footnote ¹³³ from which it reached the conclusion that Article 282 should “be interpreted so that an agreement to the Court’s jurisdiction through optional clause declarations falls within the scope of that Article and applies ‘in lieu’ of procedures provided for in Section 2 of Part XV, even when such declarations contain a reservation to the same effect as that of Kenya.”Footnote ¹³⁴

It appears from these observations that, while the decision of the ICJ on jurisdiction and admissibility in Somalia v Kenya garnered general approval among the judges on the bench, there remain questions surrounding Article 282 that surely will be addressed in future disputes before the ICJ, ITLOS, and Annex VII arbitral tribunals. Such questions will arise since it may not be the case that ITLOS or an Annex VII arbitral tribunal will decline jurisdiction as these fora may not necessarily agree that a state in a situation similar to that of Kenya, or one that has made a deliberate choice under Article 287(1) similar to those mentioned above should be, to use Oxman’s expression, “precluded by Article 282 from submitting the dispute to the other applicable procedure under Section 2 of Part XV of [UNCLOS].”Footnote ¹³⁵

scope and nature of article 297(1) of unclos

Section 3 of Part XV of UNCLOS contains three articles. The first bears the title “Limitations on Applicability of Section 2” and contains three paragraphs. The second paragraph of Article 297Footnote ¹³⁶ does not cause any challenges of extraordinary amplitude in so far as concerns its interpretation, while the first paragraph is curiously crafted and calls for further scrutiny. This arises as it provides a list of areas over which jurisdiction is confirmed, even though the provision is a limitative clause in regard to compulsory jurisdiction. According to Article 297(1), “[d]isputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention shall be subject to the procedures provided for in Section 2 in the following cases.”Footnote ¹³⁷ Thus, while the apparent purpose of Article 297 of UNCLOS is to limit jurisdiction regarding the application of Section 2, Article 297(1) is susceptible to create uncertainty on the ambit of those limitations. This arises since, subsequent to the expression “the following cases,” Article 297(1) enumerates three categories of disputes in which courts and tribunals under Section 2 of Part XV are vested with jurisdiction, notwithstanding the fact that the provision in question is designated as an exception. In point of fact, “Article 297 does not provide any exception to Article 288(1) of UNCLOS. It is phrased entirely in affirmative terms.”Footnote ¹³⁸

Two interrelated questions arise in this regard. First, why would the drafters limit jurisdiction in confirmative language? Second, given the confirmative language in a provision that deals with limitations to compulsory jurisdiction, is the listed enumeration of categories exhaustive? In this regard, the arbitral tribunal in the Southern Bluefin Tuna case observed that “[p]aragraph 1 of Article 297 limits the application of such procedures to disputes concerning the exercise by a coastal State of its sovereign rights or jurisdiction in certain identified cases only.”Footnote ¹³⁹ It has been noted that this construction of Article 297(1) “had the effect of implying an ‘only’ into the paragraph.”Footnote ¹⁴⁰ Accordingly, the enumeration in Article 297(1) appears exhaustive. While there is no obligation to do so,Footnote ¹⁴¹ it is noteworthy that the arbitral tribunal in Southern Bluefin Tuna had no recourse to the travaux préparatoires with a view to confirming its construction according to the general rules of interpretation under Article 31 of the VCLT, pursuant to which the provisions in paragraph 1 of Article 297 shall be given their “ordinary meaning … in their context and in light of [UNCLOS’s] object and purpose.”Footnote ¹⁴² In point of fact, in an apparently bold statement,Footnote ¹⁴³ the arbitral tribunal claimed that UNCLOS “falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions.”Footnote ¹⁴⁴ The arbitral tribunal accordingly declined jurisdiction, while none of the twenty-two ITLOS judges sitting on the benchFootnote ¹⁴⁵ , it should be recalled, dissented to the establishment of prima facie jurisdictionFootnote ¹⁴⁶ in the provisional measures case under Article 290(5) of UNCLOS. Footnote ¹⁴⁷ However, this construction of the arbitral tribunal was shared not only in early writingsFootnote ¹⁴⁸ but also more recently.Footnote ¹⁴⁹

The confusion that arose from the above finding of the arbitral tribunal in the Southern Bluefin Tuna case should be seen in the curious context of the remaining paragraphs of Article 297. While paragraph 2 and, albeit to a lesser degree, paragraph 3 exclude in an unequivocal manner enumerated categories of cases from the application of the procedures under Section 2 of Part XV, the same does not apply to paragraph 1. Textual construction of a treaty provision is a prominent step in the interpretation process as the “[i]nterpretation must be based above all upon the text of the treaty.”Footnote ¹⁵⁰ In fact, textual construction reflects the intention of the contracting parties to a treaty.Footnote ¹⁵¹ Against this background, it has been concluded that “the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur.”Footnote ¹⁵² Given the wording of Article 297(1), it could be argued that the approach of the arbitral tribunal in the Southern Bluefin Tuna case attributes an ordinary meaning to the terms of that provision. It has been observed elsewhere that “Article 297 UNCLOS is not very clearly drafted; it first affirms the obligation to have recourse to compulsory dispute settlement and then establishes limits which, if interpreted broadly, may deprive the dispute settlement mechanism of all of its meaning concerning the exercise of the coastal State’s rights in respect of the [EEZ].”Footnote ¹⁵³

In fact, the conclusion of the arbitral tribunal in the Southern Bluefin Tuna case can be seen to concord with the canon expressio unius est exclusio alterius. Footnote ¹⁵⁴ This canon, famously illustrated in Petroleum Development v Sheikh of Abu Dhabi,Footnote ¹⁵⁵ sets a “well established presumption”Footnote ¹⁵⁶ in treaty interpretation that cannot be completely ignored, provided it assists in establishing the ordinary meaning, context, and object and purpose of the relevant terms in Article 297(1) of UNCLOS. Footnote ¹⁵⁷ It would certainly appear that the reasoning of the arbitral tribunal in the Southern Bluefin Tuna case was influenced by the above-mentioned canon. However, that analysis paid no attention to the preparatory works, which may be seen to support an opposite conclusion. Consistent with Article 288(1) of UNCLOS, “[a] court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention.”Footnote ¹⁵⁸ While Article 297 obviously limits the extent of jurisdiction established by Article 288(1) of UNCLOS, Article 288(1) does appear to establish a general presumption of compulsory jurisdiction, both of which are context for the purposes of fulfilling the requirements of Article 31(1) of the VCLT.

The issue of the material scope and meaning of Article 297(1) also arose in the Chagos Marine Protected Area arbitration. There the arbitral tribunal took not only a different approach from that of the arbitral tribunal in Southern Bluefin Tuna but also one that could be perceived as a genuine “interpretative volte face.”Footnote ¹⁵⁹ According to the arbitral tribunal in Chagos Marine Protected Area, Article 297(1) “reaffirms, but does not limit, the Tribunal’s jurisdiction pursuant to Article 288(1) of the Convention.”Footnote ¹⁶⁰ Further, according to the arbitral tribunal, “[i]f Article 297(1) were understood to mean that a Tribunal would have jurisdiction over the exercise of sovereign rights and jurisdiction only in the specified cases, there would have been no need for Article 297(3) to expressly exclude disputes over the living resources of the [EEZ]: such disputes would be excluded already, by virtue of their non-inclusion in the list of cases set out in Article 297(1).”Footnote ¹⁶¹

Notwithstanding the arbitral tribunal’s apparently unequivocal view on this point, it decided also to examine the history in regard to Article 297 with a view to confirming the construction it had reached pursuant to the general rule of interpretation reflected in Article 31(1) of the VCLT. According to the arbitral tribunal, Article 297(1) “underwent a series of substantial revisions that dramatically changed its structure and content.”Footnote ¹⁶² The arbitral tribunal noted that, in early drafts of what became Article 297, the draft provision “did provide that compulsory dispute resolution would only apply to the three cases.”Footnote ¹⁶³ The arbitral tribunal noted among other changes the omission of “only” in the final text of what became Article 297(3)(a). This omission could not be seen other than as having a significant bearing.Footnote ¹⁶⁴ According to the arbitral tribunal, “the drafting history confirms the conclusion it reached from the textual construction of Article 297. Article 297(1) reaffirms a tribunal’s jurisdiction over the enumerated cases.”Footnote ¹⁶⁵ However, the arbitral tribunal added some apparently unnecessary ambiguity when observing that “Article 297(1) thus expressly expands the Tribunal’s jurisdiction to certain disputes involving the contravention of legal instruments beyond the four corners of the Convention itself.”Footnote ¹⁶⁶ Whereas Article 297(1) reaffirms jurisdiction, it clearly cannot be seen to expand jurisdiction in comparison to Article 288(1) since the basis for reaffirmation is Article 288(1) itself.

Leaving aside the latter caveat, it is clear that two radically opposed interpretations have been put forward by arbitral tribunals established under the same provisions of UNCLOS Footnote ¹⁶⁷ and, it must be assumed, that follow the same customary treaty interpretative rules. There can be no doubt that these jurisdictional developments will affect how states are inclined to interpret UNCLOS and raise ancillary questions of significant importance for the extent to which courts and tribunals will be committed, if not obliged,Footnote ¹⁶⁸ to follow the findings of courts and tribunals that have rendered decisions in previous cases. Yet, insofar as concerns whether interpretation of Article 297(1) is now to be considered finally settled, it should be noted that the applicant in the South China Sea Arbitration revised its interpretation of Article 297(1), as expressed in its memorial, to be in line with the conclusion of the arbitral tribunal in Chagos Marine Protected Area. Footnote ¹⁶⁹

scope and nature of article 297(3)(a) of unclos

Article 297(3) is a complex provision. A reason for this complexity is the object of this particular provision. It deals with the question of jurisdiction under Part XV regarding fisheries in waters under national jurisdiction. This matter was sensitive during the Third Conference given opposing positions of states on the legal nature of the water column superjacent to the continental shelf. Ambiguity on sensitive issues is certainly a common phenomenon in multilateral treaty drafting exercises. As observed by Christine Gray, “[t]ypically the price of consensus has been ambiguity on the crucial issues that divide states.”Footnote ¹⁷⁰ This is true of the compromise crystallized in Article 297(3).

It would appear that fisheries-related measures are subject to Section 2, except those that are enumerated in Article 297(3)(a). Yet, consistent with Article 297(3)(b), any party to a dispute under the exceptions in Article 297(3)(a) can nevertheless refer such disputes to compulsory conciliation procedures if no agreement is reached pursuant to procedures under Section 1 of Part XV.Footnote ¹⁷¹ This structure makes it even more important to determine the exact scope of the exceptions to compulsory jurisdiction under Article 297(3)(a):

This provision’s first reference to fisheries is not preceded with a reference to maritime areas under national jurisdiction, while the second reference does include such explicit qualification. Two propositions could be made. First, high seas fisheries are generally subject to procedures under Section 2 of Part XV. Second, disputes regarding coastal states’ sovereign rights with respect to the living resources in the EEZ or their exercise, including their discretionary powers for determining the total allowable catch, harvest capacity, and the terms and conditions established in their conservation and management laws and regulations, are not subject to the procedures in Section 2. Yet it is difficult to accept that general rules of interpretation allow the conclusion that all EEZ fisheries-related matters are excluded from Section 2 of Part XV.Footnote ¹⁷³ The absence of a reference to the EEZ prior to the mention of “fisheries” in the first part of Article 297(3)(a) merely supports the understanding that the reaffirmation of jurisdiction therein relates to all fisheries, including EEZ fisheries. The travaux préparatoires appear to confirm such an understanding:

It follows from the above that, if it fails to be excluded, a fisheries-related matter is part of the category “that would remain subject to adjudication.”Footnote ¹⁷⁵ Thus, if a category is not (1) subject to compulsory resort to conciliation or (2) completely excluded from Section 2, it is subject to procedures under Section 2. It therefore needs to be determined whether there are EEZ fisheries-related matters that do not fall within the coastal state’s “sovereign rights with respect to the living resources in the [EEZ] or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations,”Footnote ¹⁷⁶ all of which are completely excluded from Section 2.

In the Dispute Concerning Coastal State Rights, the respondent advanced an obiter dictum of the arbitral tribunal in the Southern Bluefin Tuna case in its submission that “[d]isputes concerning living resources within 200 nautical miles are specifically and automatically excluded from binding compulsory dispute settlement by Article 297(3)(a).”Footnote ¹⁷⁷ Yet the arbitral tribunal in the Southern Bluefin Tuna case merely observed that “[u]nder paragraph 3 of Article 297, Section 2 procedures are applicable to disputes concerning fisheries but, and this is an important ‘but,’ the coastal State is not obliged to submit to such procedures where the dispute relates to its sovereign rights or their exercise with respect to living resources in its EEZ.”Footnote ¹⁷⁸ The proposition that this statement supports the idea that all EEZ fisheries-related matters are excluded from the procedures under Section 2 of Part XV appears inapposite. It merely duplicates the relevant terms of Article 297(3)(a) without further qualification. For reasons extraneous to Article 297(3)(a), the arbitral tribunal in the Dispute Concerning Coastal State Rights noted that the “interference by the Russian Federation with fisheries activities alleged by Ukraine occurred within an area that cannot be determined to constitute the [EEZ] of the Russian Federation or Ukraine,”Footnote ¹⁷⁹ and, therefore, the conditions for the application of Article 297(3)(a) were not considered to be met. Thus, due to the particular setting that governs this dispute, as it follows from the decision on preliminary objections, the final award on the merits will very likely not touch upon the above-mentioned questions.

In the Chagos Marine Protected Area arbitration, Judges James Kateka and Rüdiger Wolfrum observed in their joint dissenting opinion

The above observation appears clearly supported in the preparatory works,Footnote ¹⁸¹ which reinforce the understanding that the absence of a reference to the EEZ prior to the mention of fisheries in the first part of Article 297(3)(a) should not be construed to mean a reaffirmation of jurisdiction in regard to high seas fisheries only. In the same line of reasoning, Judges Kateka and Wolfrum persuasively concluded that, contrary to the view expressed by the respondent, “[t]he protection of the biodiversity does not come under the sovereign rights concerning the protection and management of living resources. It is a matter of the protection of the environment…. Considering that this is a decision on an MPA [marine protected area], rather than a decision on fishing, Article 297(3)(a) of the Convention does not apply.”Footnote ¹⁸²

The scope of Article 297(3)(a) in regard to straddling and highly migratory species was addressed in the Chagos Marine Protected Area arbitration. According to the applicant, the marine protected area enforced by the respondent was inconsistent with Articles 63 and 64 of UNCLOS. The applicant argued that “[t]he dispute is not based on the purported sovereign rights of the UK [United Kingdom] as a coastal State in relation to living resources in the EEZ[; rather] the dispute concerns the rights of Mauritius.”Footnote ¹⁸³ According to the respondent, “Article 297(3)(a) bars jurisdiction over measures relating to straddling and highly migratory fish stocks in the [EEZ],”Footnote ¹⁸⁴ an argument that penetrated the reasoning of the arbitral tribunal, which — symptomatically — appears in paragraph 297 of the award of the arbitral tribunal:

Consequently, according to the arbitral tribunal, “Articles 63 and 64 (as well as the 1995 Fish Stocks Agreement) are, on their face, measures in respect of fisheries and in their application in the [EEZ] are subject to the exclusion in Article 297(3)(a).… The Tribunal also finds no basis … for the proposition that the exclusion in Article 297(3) does not apply to procedural obligations.”Footnote ¹⁸⁶ Consequently, the exclusion from compulsory jurisdiction that follows from Article 297(3)(a) relates to substantive as well as procedural undertakings in regard to EEZ prerogatives, including the material scope of Article 63(1)–(2) of UNCLOS. Concluding accordingly, the arbitral tribunal appeared to substantiate its position by referring to the conclusions of the arbitral tribunal in the Barbados v Trinidad and Tobago case in so far as concerns flying fish. Upon referring to the latter decision, the arbitral tribunal in the Chagos Marine Protected Area arbitration held that any EEZ “undertaking with respect to fishing rights is clearly related to living resources and … falls under the exclusion from jurisdiction set out in Article 297(3)(a).”Footnote ¹⁸⁷ Yet it appears that the reference to Barbados v Trinidad and Tobago, due to the particular prevailing circumstances in that case, was inapposite for the purpose of substantiating the conclusion of the arbitral tribunal in Chagos Marine Protected Area in so far as concerns its understanding of the proper meaning of the terms of Article 297(3)(a) of UNCLOS. This is because the material object under scrutiny in Barbados v Trinidad and Tobago was not substantiated under Article 62(2) of UNCLOS in regard to any right of access.Footnote ¹⁸⁸ In fact, the claim of Barbados to a right of access to fish in the EEZ of Trinidad and Tobago was “made on the basis that such a right could be awarded by the Tribunal as a remedy infra petita in the dispute concerning the course of the maritime boundary.”Footnote ¹⁸⁹ Thus, the arbitral tribunal assessed the claim of Barbados only because Trinidad and Tobago had accepted that the arbitral tribunal undertake this exercise.Footnote ¹⁹⁰ According to the arbitral tribunal, “it does not have jurisdiction to make an award establishing a right of access for Barbadian fishermen to flying fish within the EEZ of Trinidad and Tobago, because that award is outside its jurisdiction by virtue of the limitation set out in UNCLOS Article 297(3)(a) and because, viewed in the context of the dispute over which the Tribunal does have jurisdiction, such an award would be ultra petita.”Footnote ¹⁹¹ Yet, while flying fish for present purposes is a shared stock under Article 63(1) of UNCLOS, ensuring access to the EEZ certainly is not part and parcel of the procedural obligations underlying Article 63(1). Quite the contrary, its effective application, contrary to Article 63(2), presumes and is contingent upon the presence of the relevant fish stocks in the maritime areas under national jurisdiction of the relevant coastal state, which, in principle, does not make the exercise of sovereign rights contingent upon access to the EEZ of a third state. Access arrangements may be part of a matrix arrangement on allocation in a comprehensive management and conservation scheme in regard to shared fish stocks, but certainly fall outside the obligations under Article 63(1) of UNCLOS. Further, under any imaginative standard, the accommodation of a claim of a right of access would necessarily be a substantive, rather than a procedural, obligation.

Consequently, it can be concluded that the reference on which the arbitral tribunal in Chagos Marine Protected Area relied to substantiate its understanding that procedural undertakings under Article 63 are not subject to Section 2 of Part XV appears largely inapposite. Rather, in line with the observations of Judges Kateka and Wolfrum,Footnote ¹⁹² the question is whether there are procedural obligations that do not relate to the enumerated list of EEZ fisheries-related matters in Article 297(3) and that thus fall within the reaffirmative jurisdictional clause in the first part of Article 297(3)(a) of UNCLOS. The arbitral tribunal in Chagos Marine Protected Area failed to make this distinction. This being said, it is undisputed since the arbitral tribunal’s findings in the South China Sea Arbitration that Article 297(3)(a) relates to situations “where a claim is brought against a State’s exercise of its sovereign rights in respect of living resources in its own [EEZ]. These provisions do not apply where a State is alleged to have violated the Convention in respect of the [EEZ] of another State.”Footnote ¹⁹³ Yet breaches of Article 63(1) of UNCLOS, for obvious reasons, cannot relate to alleged breaches of State A in so far as concerns the exercise of sovereign rights of State B in its EEZ. It is a stand-alone obligation, but obviously connected to Article 56(2) of UNCLOS.

To the extent that courts and tribunals intend to follow the approach of the arbitral tribunal in Chagos Marine Protected Area, it should be expected that the ratio decidendi will be assessed in light of the above-mentioned observations. It should be borne in mind that Article 56(1)(a) of UNCLOS should also be construed in juxtaposition to Article 56(2), according to which “the coastal State shall have due regard to the rights and duties of other States.”Footnote ¹⁹⁴ Thus, while the obligation of due regard is related to the principle of coastal states’ sovereign rights, it is an independent obligation. The principle of due regard has a long-standing history in international law. It was characterized by Lassa Oppenheim in 1912 in the following terms: “A State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State.”Footnote ¹⁹⁵ The procedural obligation enshrined in Article 63 of UNCLOS is inextricably connected with Article 56(2) of the convention, albeit not in any manner that is susceptible to transform the pactum de contrahendo obligation of states to seek to agree on joint management and conservation measures in regard to shared and, as appropriate, straddling fish stocks.Footnote ¹⁹⁶

Given its omission from the list of areas excepted from Section 2 of Part XV, it would certainly appear that procedural obligations under Article 63 of UNCLOS may be scrutinized by a forum established under Section 2 of Part XV. While the ruling of the arbitral tribunal in Chagos Marine Protected Area is not, to use an expression of Gilbert Guillaume, a “jugement isolé,” it need not, with due respect to the learned arbitrators in question, necessarily be considered an authoritative precedent for the reasons expressed above.Footnote ¹⁹⁷ The separate opinion of Judge Jin-Hyun Paik in ITLOS’s Sub-Regional Fisheries Commission advisory opinion, subsequent to the decision in the Chagos Marine Protected Area arbitration, is particularly lucid in this regard. Judge Paik stressed that obligations vis-à-vis third states with respect to the application of Article 63(1) go hand in hand with the immutable principle that coastal states have sovereign rights to living resources within their EEZ. Yet, according to Judge Paik, not being enumerated in the list of limitations in Article 297(3)(a) implies that “any dispute arising from the alleged failure to comply with the obligation under article 63, paragraph 1, of UNCLOS, unlike those disputes arising from the exercise of sovereign rights of the coastal State with respect to the living resources in its EEZ, can be submitted to the compulsory procedure under Part XV, Section 2, of the Convention.”Footnote ¹⁹⁸ Accordingly, in the view of Judge Paik, the list of exceptions enumerated in Article 297(3)(a) of UNCLOS is exhaustive and consequently does not entail that all EEZ fisheries-related measures are beyond the application of Section 2 of Part XV.

It remains to be seen how courts and tribunals in future cases will construe Article 297(3)(a). However, it has been established beyond any doubt that the reliance of the arbitral tribunal in the Chagos Marine Protected Area arbitration on the ruling in Bardados v Trinidad and Tobago, in so far as concerns its finding that all EEZ fisheries-related measures are beyond the scope of Section 2 of Part XV, must be assessed de novo. It also remains to be seen whether the observations of Judge Paik in the above-mentioned separate opinion and the conclusions of Judges Kateka and Wolfrum in their above-mentioned joint dissenting opinion will have a bearing on future deliberations on this important question regarding the application of Section 2 to EEZ fisheries-related measures.

delimitation and historic bays or titles exceptions

The application of the procedures under Section 2 of Part XV in regard to any of the subjects identified in Article 298(1)(a)(i) raises significant challenges where the title to terra firma, generating the respective maritime entitlements, is disputed. The challenges are structural and confined to consideration of whether a dispute over title to such territory is a “dispute concerning the interpretation or application of th[e] Convention.”Footnote ²⁰⁰ It is well established that courts and tribunals, notwithstanding the particular provisions of governing compromissory clauses, are vested with jurisdiction to make such findings of fact or ancillary determinations of law as are necessary to resolve the dispute.Footnote ²⁰¹ Yet an incidental connection between the dispute and UNCLOS has been considered “insufficient to bring the dispute, as a whole, within the ambit of Article 288(1).”Footnote ²⁰² Accordingly, only in disputes where the “real issue in the case” and the “object of the claim” relate to interpretation of UNCLOS will Part XV become applicable.Footnote ²⁰³ Whether courts and tribunals competent under Part XV of UNCLOS can assume their jurisdiction to extend to disputes over territory has been given some attention in recent decisions.

In the Chagos Marine Protected Area arbitration, the arbitral tribunal upheld the argument of the respondent according to which accepting jurisdiction over territorial disputes is impermissible under UNCLOS. If a dispute over title to terra firma were to be understood as a dispute concerning the interpretation or application of UNCLOS, there would obviously have been opt-out exceptions “for States not wishing their sovereignty claims to be adjudicated.”Footnote ²⁰⁴ Further, the arbitral tribunal ruled that to conclude to the contrary “would do violence to the intent of the drafters of the Convention.”Footnote ²⁰⁵ For this reason, the arbitral tribunal concluded that the parties’ dispute regarding sovereignty over the Chagos Archipelago did not fall within its jurisdiction. While two of the arbitrators dissented on this issue,Footnote ²⁰⁶ the decision of the arbitral tribunal must be seen as authoritative for the purposes of applying Article 288(1) of UNCLOS in so far as concerns disputed titles to terra firma.

However, it should also be borne in mind that the arbitral tribunal expressly observed that it “does not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention.”Footnote ²⁰⁷ It would be necessary to determine “where the relative weight of the dispute lies,” implying that the arbitral tribunal would be precluded from exercising jurisdiction in regard to a dispute that “primarily concern[ed] [land] sovereignty.”Footnote ²⁰⁸ It would have been permissible for the arbitral tribunal to rule on a dispute “primarily [concerning] a matter of the interpretation and application of the term ‘coastal State,’ with the issue of [land] sovereignty forming one aspect of a larger question.”Footnote ²⁰⁹ The arbitral tribunal, in assessing the different arguments, ruled that the preponderant weight of the dispute related to title to the Chagos Archipelago, and, therefore, an exercise of jursidiction would be unjustified.Footnote ²¹⁰

In the South China Sea Arbitration, the applicant was obviously of the view that its claims regarding Chinese activities and certain maritime features in the South China Sea that were occupied by China were disputes regarding UNCLOS. China expressed two overarching objections to the putative classification of the dispute by the Philippines. According to China, the dispute concerned (1) territorial sovereignty over several maritime features in the South China Sea and (2) matters that appertained to maritime delimitation and that were, therefore, excluded in any event from compulsory jurisdiction given its declarations to this effect in accordance with Article 298(1)(a)(i).

To address such matters, the “applicant’s notification and statement of claim instituting the proceedings ha[d] particular significance.”Footnote ²¹¹ It is well established that the “nature of the dispute may have significant jurisdictional implications, including whether the dispute can fairly be said to concern the interpretation or application of the Convention or whether subject-matter based exclusions from jurisdiction are applicable.”Footnote ²¹² In order to conform to jurisdictional requirements, courts and tribunals are required, “on an objective basis,”Footnote ²¹³ to “isolate the real issue in the case and to identify the object of the claim,”Footnote ²¹⁴ a process not limited to interpreting the submissions of the parties but also “diplomatic exchanges, public statements and other pertinent evidence.”Footnote ²¹⁵

In its objective assessment of the dispute before it, the arbitral tribunal in the South China Sea Arbitration observed at the outset that there was clearly a sovereignty dispute between the parties but that this dispute could not prejudice the classification of the claims of the applicant.Footnote ²¹⁶ The arbitral tribunal observed that its jurisdiction did not extend to claims the resolution of which would “expressly or implicitly” require the settlement of a territorial dispute.Footnote ²¹⁷ According to the arbitral tribunal, however, none of the submissions of the applicant “require[d] an implicit determination of sovereignty.”Footnote ²¹⁸ In a very important statement, the arbitral tribunal also observed that a dispute concerning the “existence of an entitlement to maritime zones is distinct from a dispute concerning the delimitation of those zones in an area where the entitlements of parties overlap.”Footnote ²¹⁹ In the decision on the merits, the arbitral tribunal further developed this observation to mean that, “[w]hile all sea boundary delimitations will concern entitlements, the converse is not the case: all disputes over entitlements do not concern delimitation.”Footnote ²²⁰ This statement implied, accordingly, that the arbitral tribunal was vested with competence to determine whether the features in question were islands that fall under Article 121(2) or rocks within the meaning of Article 121(3) of UNCLOS. This ruling must be considered significant since the determination of entitlements is indeed a prerequisite for delimitation.Footnote ²²¹ Yet, according to the arbitral tribunal, this “is a distinct issue.”Footnote ²²² In fact, had the arbitral tribunal concluded to the contrary, its jurisdiction would have been precluded in relation to submissions 3, 4, 5, 6, and 7 of the applicant.Footnote ²²³

Prior to proceeding accordingly, the arbitral tribunal first sought to determine whether the second set of optional exceptions in Article 298(1)(a)(i) — that is, those involving historic bays or titles — could be considered activated in this particular case. China had unequivocally claimed that its rights to the maritime area landward of the nine-dash line was “formed in the long historical course,”Footnote ²²⁴ implying that the arbitral tribunal was obligated to assess the applicability of the second alternative under Article 298(1)(a)(i).Footnote ²²⁵ In order to address submissions 1 and 2 of the applicant, it was thus required that the arbitral tribunal undertake an interpretation of the notion of “historic title,” an enumerated exception in Article 298(1)(a)(i). Historic title “refer[s] to historic sovereignty to land or maritime areas,” while “[h]istoric rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of sovereignty.”Footnote ²²⁶ Historic title is understood as sovereignty over maritime areas that derives from historic circumstances, while “historic rights are nowhere mentioned in the Convention, and the Tribunal sees nothing to suggest that Article 298(1)(a)(i) was intended to also exclude jurisdiction over a broad and unspecified category of possible claims to historic rights falling short of sovereignty.”Footnote ²²⁷ Finally, in a persuasive manner, the arbitral tribunal also referred to dispositive evidenceFootnote ²²⁸ in support of its ruling that the Chinese claims of “historic rights” were under no circumstances, notwithstanding their nomenclature, claims “to historical title.”Footnote ²²⁹ Accordingly, claims of a historic nature cannot as such be considered to fall within one of the optional exceptions to compulsory jurisdiction.

The Philippines requested that the arbitral tribunal declare that certain maritime features “are part of the [EEZ] and continental shelf of the Philippines”Footnote ²³⁰ or, alternatively, that certain Chinese undertakings had interfered with the generic rights of the applicant in its EEZ. According to the arbitral tribunal, it would only consider this submission if it could be determined that “China could not possess any potentially overlapping entitlement in that area.”Footnote ²³¹ To the extent that the arbitral tribunal found the features in question to constitute rocks within the meaning of Article 121(3) of UNCLOS, this would necessarily imply that seaward of the outer limit of the territorial sea would be the EEZ of the Philippines.Footnote ²³² Likewise, if the maritime features were considered to be low tide elevations within the meaning of Article 13(2) of UNCLOS, they were per se unable to generate any maritime entitlements whatsoever that could interfere with the EEZ of the Philippines.Footnote ²³³ The arbitral tribunal concluded that none of the high-tide features in the Spratly Islands were islands under Article 121(3) of UNCLOS and therefore did not generate any entitlement beyond the maximum twelve nautical mile breadth of the territorial sea. Consequently, there was “no possible entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal and no jurisdictional obstacle to the Tribunal’s consideration of the Philippines’ Submission No. 5.”Footnote ²³⁴

Having concluded accordingly, the arbitral tribunal was able to proceed with “consideration of the Philippines’ Submissions No. 8 through 13, concerning Chinese activities in the South China Sea.”Footnote ²³⁵ It is apparent that the arbitral tribunal, rather than determining whether the preponderant weight of the dispute depended on a disagreement over sovereign title to terra firma,Footnote ²³⁶ approached the question by deciding that resolution of the dispute did not call for an express or implicit settlement of a territorial dispute.Footnote ²³⁷ Yet, it can be seen that, while the Chinese assertion of being a coastal state is not a sovereignty claim as such, it does to some extent signal a disagreement over sovereignty — that is, a disagreement about whether China has a vested sovereign title to terra firma in the form of an island within the scope of Article 121(2) of UNCLOS. On the one hand, the inclusion of such a disagreement within Article 288(1) of UNCLOS appears slightly bold since the conclusion of the arbitral tribunal obviously would have been different if the Philippines had also asserted an Article 121(2) entitlement to the features in question. Thus, it follows that, where the entitlement is challenged but not sovereignty, Article 298(1)(a)(i) is not triggered. On the other hand, Article 121 of UNCLOS clearly includes substantive criteria for features to generate territorial sea entitlements and for features to also generate EEZ and continental shelf entitlements. To dismiss the submissions of the Philippines under these circumstances could have been seen as reading exceptions into Article 298(1)(a)(i) that do not follow from the letter of the law.

The decision of the arbitral tribunal in the Dispute Concerning Coastal State Rights is also instrumental in furthering our understanding of the extent to which disputed title to territory can be included in disputes that are sought to be resolved pursuant to compulsory procedures under Section 2 of Part XV. The respondent argued that Ukraine’s claim “turns on, and is rooted in, a pre-supposition of unlawful conduct by Russia in Crimea in 2014.”Footnote ²³⁸ The arbitral tribunal noted that “while Ukraine formulates its dispute with the Russian Federation in terms of the alleged violation of its rights under the Convention … many of its claims in the Notification and Statement of Claim are based on the premise that Ukraine is sovereign over Crimea.”Footnote ²³⁹ Further, the applicant “submits that this premise must be accepted … because the Russian Federation’s claim of sovereignty over Crimea is inadmissible and implausible.”Footnote ²⁴⁰ Thus, the arbitral tribunal concluded that “the claims submitted by Ukraine in its Notification and Statement of Claim rest on the premise that the territorial status of Crimea is settled.”Footnote ²⁴¹ The applicant argued further that it would nullify or make nugatory the application of Part XV were the arbitral tribunal to uphold the objection of the respondent. And, according to the applicant, this would imply that in “any future case concerning violations of a coastal State’s rights, the respondent State accused of breaching UNCLOS could easily nullify its consent to compulsory dispute resolution by asserting a baseless territorial claim, and thereby manufacturing a territorial dispute.”Footnote ²⁴²

The applicant also sought to distinguish the situation in Crimea in support of its argument that the findings of the arbitral tribunals in the Chagos Marine Protected Area arbitration and the South China Sea Arbitration, respectively, did not constitute authoritative precedents in so far as concerned determining the scope of the tribunal’s jurisdiction in its dispute with Russia. Those cases “involved longstanding and acknowledged sovereignty disputes, with no question as to the plausibility of the sovereignty claims on each side, and no resolution of the General Assembly [of the United Nations] addressing the inadmissibility of one set of claims.”Footnote ²⁴³ According to the applicant, “[t]he objective reality is that there has been no change in the status of Crimea as an unquestioned part of Ukraine. … Even an express ruling of the Tribunal re-affirming that Crimea is part of Ukraine — something Ukraine expressly does not seek — would not materially improve Ukraine’s legal position on that settled matter.”Footnote ²⁴⁴ Against this background, according to the applicant, the sovereignty claim of the respondent “cannot be the basis for a declination of jurisdiction that would permit Russia to violate [UNCLOS] while escaping its consent to arbitrate, while also grievously weakening the framework for dispute resolution established under the Convention.”Footnote ²⁴⁵

Not surprisingly, the respondent vehemently disputed the merits of the claim of the applicant.Footnote ²⁴⁶ Whether Crimea is Ukrainian or Russian territory has been discussed at length elsewhere and will not be further examined in this article.Footnote ²⁴⁷ The arbitral tribunal observed that the claims of the applicant in so far as concerns its rights as a coastal state are based on the “premise that Ukraine is sovereign over Crimea, and thus the ‘coastal State’ within the meaning of various provisions of the Convention it invokes.”Footnote ²⁴⁸ The arbitral tribunal noted unequivocally that to entertain the claims of Ukraine would go beyond the scope of its jurisdiction under Article 288(1) and violate the intention of the drafters of UNCLOS. This is evidenced by the mere fact that “a sovereignty dispute is not included either in the limitations on, or in the optional exceptions to, the applicability of compulsory dispute settlement procedures”Footnote ²⁴⁹ which, according to the arbitral tribunal, “supports the view that the drafters of the Convention did not consider such a dispute to be ‘a dispute concerning the interpretation or application of the Convention.’”Footnote ²⁵⁰

While the applicant submitted that the obligation of non-recognition under Article 41 of the International Law Commission’s Articles on State Responsibility, Footnote ²⁵¹ in regard to serious breaches of obligations under a peremptory norm of general international law, obliged the arbitral tribunal to declare the sovereignty claim of Russia to Crimea to be inadmissible, the arbitral tribunal was unable to entertain that submission. The applicant bolstered its claim by referring to numerous resolutions of the United Nations General Assembly (UNGA) calling on all states not to recognize an alteration to the territorial status of Crimea.Footnote ²⁵² The arbitral tribunal recognized that its jurisdiction extends to interpreting documents of international organizations, including UNGA resolutions. Yet to interpret the UNGA resolutions pursuant to the position argued by Ukraine would amount to entertaining jurisdiction to resolve disputed title to terra firma, which the arbitral tribunal held “it has no jurisdiction to do.”Footnote ²⁵³ Interestingly the arbitral tribunal observed nevertheless that “the UNGA resolutions in question are framed in exhortatory language [and] were not adopted unanimously or by consensus but with many States abstaining or voting against them.”Footnote ²⁵⁴ There would appear to have been no need to make these statements given the lack of jurisdiction to entertain the submission. This raises the question whether the arbitral tribunal may have reasoned otherwise had the UNGA resolutions in question been adopted on a quasi unanimous basis and in less exhortatory language. Nevertheless, “without engaging in any analysis of whether the Russian Federation’s claim of sovereignty is right or wrong,”Footnote ²⁵⁵ the arbitral tribunal dismissed the inadmissibility submission of Ukraine on the grounds that it went beyond the scope of its jurisdiction under Article 288(1) of UNCLOS. According to the arbitral tribunal, the pivotal element in determining whether it had jurisdiction to entertain the relevant submission was “whether a dispute as to which State has sovereignty over Crimea exists.”Footnote ²⁵⁶ In the affirmative, it would have to decline jurisdiction, unless the territorial dispute was only remote in comparison to the principal points of contention. In the negative, jurisdiction would exist. Thus, there was a requirement to determine whether a dispute, in the jurisdictional meaning of the term, existed.

The criteria determining the existence vel non of a dispute are well established by decisions of international courts and tribunals.Footnote ²⁵⁷ The claim of one of the disputing parties must be “positively opposed by the other and … the two sides must ‘hold clearly opposite views’ concerning the question of the performance or non-performance of certain international obligations.”Footnote ²⁵⁸ The determination of the existence of a dispute is a matter for “objective determination”Footnote ²⁵⁹ from which it follows that a “mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its inexistence.”Footnote ²⁶⁰ The arbitral tribunal in the Dispute Concerning Coastal State Rights observed on this note that the threshold for establishing the existence of a dispute “is rather low [but] a mere assertion would be insufficient in proving the existence of a dispute.”Footnote ²⁶¹ Yet, the arbitral tribunal noted that this does not mean that the “validity or strength of the assertion should be put to a plausibility test or other test in order to verify the existence of a dispute.”Footnote ²⁶² It observed that since 2014 there exists a dispute of which neither party could be unaware, and, for this reason, it was not possible to “accept Ukraine’s argument that the Russian Federation’s claim of sovereignty is implausible.”Footnote ²⁶³ It follows accordingly that the determination of whether there exists a dispute vel non related to terra firma was conducted on an objective basis. Taking into account Article 288(1) of UNCLOS, the arbitral tribunal was unable to entertain jurisdiction on this submission of the applicant.

It would appear from the findings of the arbitral tribunals in Chagos Marine Protected Area, the South China Sea Arbitration, and the Dispute Concerning Coastal State Rights that a uniform approach has crystallized in so far as concerns whether the fora under Section 2 of Part XV may exercise jurisdiction where the real object of a dispute relates to title to terra firma. Yet the conclusions of the ITLOS Special Chamber in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean introduces complexity to the question.Footnote ²⁶⁴ This dispute is of a particular kind, given the track record of previous arbitral proceedings between Mauritius and the United Kingdom and the subsequent rendering of an advisory opinion by the ICJ.Footnote ²⁶⁵ The ICJ was “of the opinion that, having regard to international law, the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968, following the separation of the Chagos Archipelago.”Footnote ²⁶⁶ The ICJ was also “of the opinion that the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible.”Footnote ²⁶⁷

One cannot truly describe these observations of the ICJ as operative paragraphs as an “advisory opinion as such has no binding force”Footnote ²⁶⁸ and consequently is unable to constitute res judicata. It is for these very reasons that the consent of states that are not in agreement on the relevant pending legal questions is not needed, contrary to contentious cases where the consent of the disputing parties is a necessary requisite for jurisdiction. In point of fact, “[t]he situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States.”Footnote ²⁶⁹ Yet, according to the ITLOS Special Chamber, the principle of consent “does not mean that the advisory opinion could not entail implications for the disputed issue of sovereignty.”Footnote ²⁷⁰ According to the Special Chamber, the rendering of the advisory opinion resulted in “determinations”Footnote ²⁷¹ that the United Kingdom’s continued administration of the Chagos Archipelago “is an unlawful act of a continuing character, entailing its international responsibility.”Footnote ²⁷² Further, while it is “generally recognized that advisory opinions of the ICJ cannot be considered legally binding,” it is, according to the Special Chamber, equally recognized that an advisory opinion “entails an authoritative statement of international law.”Footnote ²⁷³ Consequently, “judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the ‘principal judicial organ’ of the [UN] with competence in international law.”Footnote ²⁷⁴

This conclusion of the Special Chamber raises questions that touch on the very foundation of international law, including how to construe the so-called ‘weight and authority’ of advisory opinions in as much as they are judicial decisions. There can be no doubt that international law is not based on precedent and that res judicata Footnote ²⁷⁵ is only applicable as between the disputing parties. In point of fact, the inclusion of Article 59 in the ICJ Statute was intended to exclude any role for the doctrine of stare decisis in international law.Footnote ²⁷⁶ However, it is undisputed that precedents nevertheless have a potent role in international law.Footnote ²⁷⁷ Thus, it is noteworthy, given the above-mentioned premise, how the “weight and authority” (to use an expression of the Special Chamber) of an ICJ advisory opinion can result in depriving the differences that exist between Mauritius and the United Kingdom of the status of a dispute on sovereignty over the Chagos Archipelago. This is material as it is not possible to construe the Special Chamber’s decision to entertain jurisdiction other than as a finding that the territorial dispute is settled.Footnote ²⁷⁸ Yet the United Kingdom strongly rejects any understanding pursuant to which it is not sovereign over the Chagos Archipelago and persistently holds to its position that the issue in question “remains at heart a bilateral sovereignty dispute between Mauritius and the United Kingdom.”Footnote ²⁷⁹ Nevertheless, given the Special Chamber’s ruling, the position of the United Kingdom cannot be conceived other than as a “mere assertion [of] the existence of a dispute.”Footnote ²⁸⁰ Consequently, it can be concluded that the standard established in the Dispute Concerning Coastal State Rights, according to which the threshold for establishing the existence of a dispute “is rather low,”Footnote ²⁸¹ was not followed by the arbitral tribunal in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean.

To summarize, it is concluded that the case law of courts and tribunals regarding the scope of the exceptions under Article 298(1)(a)(i) has appeared to crystallize around an understanding that the jurisdiction of courts and tribunals under Part XV of UNCLOS does not extend to territorial disputes, except where such disputed elements are only incidental. Further, the threshold for determining the existence of a territorial dispute has been set at a relatively low level. Yet this coherent approach has been challenged by the ruling of the Special Chamber in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean. The facts of that case are peculiar and are unlikely to be reproduced. Thus, it remains to be seen to what extent the reasoning in that decision will impact future disputes regarding the interpretation and application of UNCLOS that also relate to territorial disputes.

military activities

Accepting compulsory jurisdiction in regard to disputes involving military activities was a sensitive topic during the Third Conference.Footnote ²⁸² A compromise was crystallized in Article 298(1)(b), under which states parties may declare in writing that they do not accept the procedures in Section 2 of Part XV in regard to two alternative areas relating to the use of force. The first relates to “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service.”Footnote ²⁸³ The expression “military activities” is not subject to any definition in UNCLOS Footnote ²⁸⁴ and, until recently, has been addressed only vaguely.Footnote ²⁸⁵ Some commentators have advocated a broad understanding of “military activities” as including but “not limited to actions by warships and military aircraft or government vessels and aircraft engaged in non-commercial service.”Footnote ²⁸⁶ It has also been observed that Article 298(1)(b) recognizes state preferences not to use “compulsory third-party procedures for resolving disputes about military activities,” the characterization of which can “be made in accordance with strategic policies [in order to] protect[] States from formal international review through legal processes of the elect.”Footnote ²⁸⁷ Yet placing too much focus on what constitutes a military activity stricto sensu is susceptible of blurring the understanding of Article 298(1)(b) of UNCLOS. In point of fact, recent decisions of courts and tribunals appear to establish, while not in an entirely consistent manner, a high bar for the application of the exception in Article 298(1)(b).

In the South China Sea Arbitration, the notion “military activities” was given extensive consideration. The arbitral tribunal stressed the importance of the fact that “Article 298(1)(b) applies to ‘disputes concerning military activities’ and not to ‘military activities’ as such.”Footnote ²⁸⁸ Consequently, what matters is whether the dispute as such concerns military activities rather than whether a State was involved in military activities “in some manner in relation to the dispute.”Footnote ²⁸⁹ Accordingly, not every military operation will be classified a military activity under Article 298(1)(b) as the determination of such a typology will in each and every case be qualified pursuant to a determination of whether the activity relates to a dispute regarding the interpretation or application of UNCLOS. Notwithstanding whether actions have been taken by military forces, the activities must be “objectively classified as military in nature” in order to trigger the military exception under Article 298(1)(b).Footnote ²⁹⁰

The use of the preposition “concerning”Footnote ²⁹¹ military activities in Article 298(1)(b) was given particular attention in the Dispute Concerning Coastal State Rights. According to the applicant, the ordinary meaning of “concerning” was “about” or “in reference to.”Footnote ²⁹² Accordingly, a mere causal link between a military activity and a dispute would not qualify for the military activity exception. This was supported by the argument that “[h]ad the States Parties intended to allow such a broad and sweeping application of Article 298(1)(b), they would have used different language, such as ‘arising out of,’ or ‘in connection with.’”Footnote ²⁹³ On this issue, the arbitral tribunal appeared to uphold the arguments of the applicant when ascertaining that the “Convention employs the term ‘concerning,’ in contrast to other terms, such as ‘arising out of,’ ‘arising from,’ or ‘involving,’ used [in Articles 151(8), 289, 297(1), 297(2(a), and 297(2)(b)] to characterise disputes.”Footnote ²⁹⁴ As such, the preposition “concerning,” according to the arbitral tribunal, “circumscribes the military activities exception by limiting it to those disputes whose subject matter is military activities.”Footnote ²⁹⁵ By the same token, “a mere ‘causal’ or historical link between certain alleged military activities and the activities in dispute cannot be sufficient to bar an arbitral tribunal’s jurisdiction under Article 298(1)(b).”Footnote ²⁹⁶

Whether or not a military vessel is employed in operations that can be considered military in nature does not prejudice the determination of whether these operations relate to military activities within the meaning of Article 298(1)(b). Accordingly, whether the vessel is military is not “conclusive” for determining whether the military exception is applicable.Footnote ²⁹⁷ It might seem uncontroversial to assert that, absent evidence to the contrary, it can ordinarily be assumed that interactions of military vessels constitute “military activities.” Yet, while this may be acceptable in light of the definition of military activities by the above-mentioned commentators, it appears from practice that this cannot be asserted with certainty. Whether or not the activities are pursued by law enforcement or naval vessels is not material for the purpose of Article 298(1)(b) of UNCLOS. The use of force by a military vessel may be classified as a law enforcement activity, while the use of force by a law enforcement vessel may be characterized as military activity. Accordingly, the nature of the vessels conducting the operations concerned should not be given preponderant weight as the “traditional distinction between naval vessels and law enforcement vessels in terms of their roles has become considerably blurred.”Footnote ²⁹⁸

In the South China Sea Arbitration, the arbitral tribunal appeared to establish a low standard for finding that military operations constitute “military activities” within the meaning of Article 298(1)(b). The involvement in that case of military and paramilitary vessels appears to have contributed to the establishment of this low standard, which does not appear to pay attention to whether the military operations themselves are at the core of the dispute. The arbitral tribunal noted the standoff over the Second Thomas Shoal during which Chinese governmental vessels sought to prevent the resupply and rotation of Philippine troops. While there were no Chinese military vessels involved in the standoff, these were “reported to have been in the vicinity.”Footnote ²⁹⁹ It remains unclear whether this pseudo-presence of military vessels was a conclusive factor for determining that such a situation “represents a quintessentially military situation,” particularly as the vessels in question were “arrayed in opposition to one another.”Footnote ³⁰⁰ In any event, it is apparent that the arbitral tribunal favoured the establishment of a standard according to which any use of force falls within the military activities exception.Footnote ³⁰¹

Such a standard is significantly lower than the general criterion established in the Dispute Concerning Coastal State Rights. In the latter case, the arbitral tribunal expressed the view that the military activities exception in Article 298(1)(b) could only be triggered in regard to disputes whose subject matter relates to military activities.Footnote ³⁰² This higher standard was also clearly enshrined in the provisional measures order of ITLOS in the Case Concerning the Detention of Three Ukrainian Naval Vessels. Footnote ³⁰³

In the Dispute Concerning Coastal State Rights, the arbitral tribunal was explicit as to the insufficiency of a use of force as such to bring a case within the ambit of Article 298(1)(b). According to the arbitral tribunal, it was not possible to classify the alleged use of physical force in order to exclude Ukraine from access to, and exploitation of, hydrocarbon fields and fisheries as military activities within the meaning of Article 298(1)(b) of UNCLOS. Footnote ³⁰⁴ In support of its conclusion, the arbitral tribunal noted that the use of force alleged by Ukraine “appears to have been directed towards maintaining civilian activities such as the exploitation of hydrocarbons and fisheries.”Footnote ³⁰⁵

In the Case Concerning Ukrainian Naval Vessels, ITLOS, in establishing prima facie jurisdiction, refused to accept that firing warning shots and then targeted shots against a naval vessel that resulted in damaging the vessel and injuring servicemen amounted to military activities within the meaning of Article 298(1)(b) of UNCLOS. It should be borne in mind that the statement of claim of Ukraine related to the immunity of three Ukrainian naval vessels and not to the use of force by Russia,Footnote ³⁰⁶ while the dispute between the parties was essentially limited to rights concerning transit of the Kerch Strait. In reaching its conclusion, ITLOS meticulously assessed the sequence of events in order to determine whether the use of force related to the alleged breaches of UNCLOS rather than determining whether the use of force was a breach of a convention concluded between the parties in 2003.Footnote ³⁰⁷ This distinction has substantial implications in so far as concerns the application of Article 298(1)(b), notwithstanding that ITLOS has previously concluded “that a warship is an expression of the sovereignty of the State whose flag it flies”Footnote ³⁰⁸ and that one could expect that firing shots at such a vessel would naturally constitute military activities. While there can be no doubt that coast guard vessels of the respondent fired at military vessels of the applicant, the actions in question failed to qualify as military activities under Article 298(1)(b), notwithstanding that the situation clearly fell within the parameters of a “quintessential military situation” as described by the arbitral tribunal in the South China Sea Arbitration. Footnote ³⁰⁹

ITLOS dissected the course of events in a timeline with three different incidents.Footnote ³¹⁰ The three Ukrainian naval vessels sought to transit the Kerch Strait to the port of Berdyansk in the Sea of Azov but were blocked by Russian coast guard vessels. According to Russia, referring to numerous official statements of Ukraine supporting the classification of the use of force as military activities, “[w]hilst it is not in any way accepted that Russia engaged in an unlawful use of force, including any act of aggression, it is clear that it is common ground that the incident concerned military activities.”Footnote ³¹¹ Yet ITLOS took the view that, in order to determine “the nature of the activities in question,”Footnote ³¹² it was necessary to shed light on “whether the arrest and detention took place in the context of a military operation or a law enforcement operation.”Footnote ³¹³

The cause of the incident was the Russian Federation’s denial of passage by the Ukrainian naval vessels through the Kerch Strait and the attempt by those vessels to proceed nonetheless, whereupon the vessels were ordered to wait in the vicinity of an anchorage where they were held for eight hours. From the above background, the ITLOS concluded that “at the core of the dispute was the Parties’ differing interpretation of the regime of passage through the Kerch Strait. In the view of the Tribunal, such a dispute is not military in nature.”Footnote ³¹⁴ ITLOS stressed also that force was employed in the process of arrest and “the context in which such force was used is of particular relevance.”Footnote ³¹⁵ After being held for eight hours, the Ukrainian naval vessels abandoned their mission to transit the Kerch Strait and sailed away. The Russian coast guard then resorted to force as the Ukrainian naval vessels ignored the order to stop. Accordingly, the use of force did not relate to the dispute, which, as mentioned earlier, was centred on transiting the Kerch Strait. ITLOS therefore concluded that the use of force in question concerned “a law enforcement operation rather than a military operation.”Footnote ³¹⁶ Yet, in the event that force had been used during the tentative transit of the Kerch Strait, that conclusion, without doubt, would have been different in so far as concerns the refusal to classify the acts as military activities. In such a situation, there would not have been a mere causal link between the dispute and the use of force.

Interestingly, ITLOS did not consider whether the conduct of the Ukrainian vessels was itself constitutive of military activities, including whether “secret” operations, as alleged by Russia in its memorandum,Footnote ³¹⁷ could be considered non-innocent and, therefore, in light of the circumstances of this particular case, military activities.Footnote ³¹⁸ However, given that the order concerned a request for provisional measures, any such finding would indubitably have involved undertaking a review on the merits and, therefore, been beyond the scope of the proceedings.

The characterization by a state of its own conduct is, in principle, immaterial in so far as concerns the application of Article 298(1)(b) of UNCLOS. This principle applies in particular where a respondent state objects to the availability of the procedures in Section 2 of Part XV and therefore characterizes the acts in question as military activities. A fortiori, where a state, although not appearing in the proceedings, has repeatedly classified the activities in question as civilian prior to the proceedings, it is difficult not to attach preponderant weight to such classification proprio motu. In the South China Sea Arbitration, the applicant raised this argument in so far as concerns Submission no. 12. According to the applicant, the respondent had repeatedly stated that the facilities at Mischief Reef were being built for civilian use.Footnote ³¹⁹ Accordingly, the involvement of the military in land reclamation activities could not automatically result in this activity becoming a military activity within the meaning of Article 298(1)(b).Footnote ³²⁰ Judging from meeting reports between the Philippines and China, it would appear that China had not, vis-à-vis the Philippines, claimed that the activities in question were military activities.Footnote ³²¹ Quite the contrary; the arbitral tribunal therefore attributed weight to China’s repeated and unequivocal characterization of the construction and installations on Mischief Reef as not pursuing militarization. For these reasons, the arbitral tribunal concluded that it would “not deem activities to be military in nature when China itself has consistently resisted such classifications and affirmed the opposite at the highest level.”Footnote ³²²

Yet, as ITLOS observed in the Case Concerning Ukrainian Naval Vessels, the characterization of activities by a state “can be subjective and at variance with the actual conduct.”Footnote ³²³ Consequently, it is conceivable that statements that are in contradiction with previous unequivocal declarations can also be plainly disregarded, an illustration of which appears also in the Dispute Concerning Coastal State Rights. There the respondent relied on the importance that the arbitral tribunal in the South China Sea Arbitration attached to the repeated statements of China to the effect that its activities on Mischief Reef were civilian.Footnote ³²⁴ Given Ukraine’s alleged characterization in multiple fora of the activities of Russia as military, Russia argued that both parties were in fact in agreement that the dispute related to military activities,Footnote ³²⁵ which was said to be a straightforward recognition that there was no need to address this matter at the merits stage of the proceedings.Footnote ³²⁶ Further, while “categorically reject[ing] any allegation that it has engaged in unlawful military activities,”Footnote ³²⁷ the only reason for which the respondent objected to jurisdiction according to the first alternative in Article 298(1)(b) was due to express statements to this effect by the applicant.Footnote ³²⁸ The arbitral tribunal did not accept the submission of the applicant, emphasizing instead the requirement of an objective determination of the activities in question.

To summarize, recent decisions of courts and tribunals have significantly contributed to an understanding of the military activities exception in Article 298(1)(b) of UNCLOS. The findings in the Dispute Concerning Coastal State Rights, on the one hand, and in the Case Concerning Ukrainian Naval Vessels, on the other, epitomize the jurisprudential acquis on this particular topic. These decisions have elucidated the interpretation and application of Article 298(1)(b). It is noteworthy that, among the five arbitrators that constituted the arbitral tribunal in the Dispute Concerning Coastal State Rights, three are incumbent ITLOS judges. The arbitral tribunal was also presided by Judge Paik who, during the proceedings and deliberation on the award concerning the preliminary objections of the Russian Federation, was also president of ITLOS. The interpretative approaches taken by ITLOS and the arbitral tribunal in regard to Article 298(1)(b) are similar. This is obviously no coincidence.

law enforcement activities

Other than allowing an optional exception to the application of procedures under Section 2 of Part XV in regard to disputes concerning military activities, Article 298(1)(b) also permits exceptions from compulsory jurisdiction regarding “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.”Footnote ³²⁹ The distinction between “military activities” and “law enforcement activities” is an important element in regard to the application of Article 298(1)(b).Footnote ³³⁰ Law enforcement activities in regard to areas that are not covered by Article 297(2)–(3) of UNCLOS are subject to the procedures under Section 2 of Part XV. This arises since the exception in regard to law enforcement activities in Article 298(1)(b) only relates to disputes concerning the application of Article 297(2)–(3) — that is, only law enforcement activities in regard to the exercise of sovereign rights and jurisdiction excluded from compulsory jurisdiction pursuant to the provisions of Article 297(2)–(3). Consequently, a military operation or paramilitary operation that does not pass the bar for constituting military activities within the meaning of Article 298(1)(b) will only be excepted from Section 2 of Part XV if the operation in question relates to the exercise of the above-mentioned sovereign rights and jurisdiction. Consequently, it can be asserted that the law enforcement activities exception is more circumscribed than the military activities exception. Yet whether this is the case depends obviously on the standard to be met in order to constitute military activities within the meaning of Article 298(1)(b).

For these purposes, the applicant in the South China Sea Arbitration stressed that none of its claims related to Chinese violations of the subject matter of Article 297(2)–(3) of UNCLOS. Consequently, the law enforcement exception was said to be inapplicable.Footnote ³³¹ In fact, this was emphatically stressed by the applicant in submitting that its “claims only concern areas where China has no entitlement to an EEZ or continental shelf.”Footnote ³³² Where states make use of the optional law enforcement exception to compulsory jurisdiction under Article 298(1)(b) of UNCLOS, such a declaration “does not exclude from the jurisdiction of the procedures in Section 2 of Part XV of UNCLOS any dispute that concerns ‘law enforcement activities in regard to the exercise of sovereign rights or jurisdiction’ unless the dispute is also excluded from the jurisdiction of a court or tribunal under paragraph 2 or 3 of article 297.”Footnote ³³³

Russia’s declaration under Article 298(1)(b) of UNCLOS failed to limit itself to law enforcement activities in regard to the areas that fall within Article 297(2)–(3). To accept the plea that the optional exception to compulsory jurisdiction should accordingly be understood to cover other areas would be tantamount to making a reservation to UNCLOS. It was not a difficult undertaking for the arbitral tribunal confronted with this situation in the Arctic Sunrise arbitration to observe that, notwithstanding the wording of a declaration pursuant to Article 298(1)(b), a declaring state “cannot create an exclusion that is wider in scope than what is permitted by article 298(1)(b).”Footnote ³³⁴

The law enforcement activities exception makes a renvoi to sovereign rights and jurisdiction in the EEZ. Accordingly, addressing a claim of a party according to which a law enforcement measure of a third state is in violation of its rights under UNCLOS, whether or not the area is subject to final delimitation lines, may prejudice the final settlement of possible maritime boundary disputes. In the South China Sea Arbitration, the arbitral tribunal expressed the view that a claim relating to a breach of rights under UNCLOS by law enforcement activities of a third state can only be addressed, barring agreement to the contrary, if the incident occurred in a maritime area that is not under dispute according to objective criteria. According to the arbitral tribunal, “if any maritime feature claimed by China within 200 nautical miles of these areas were to be a fully entitled island for purposes of Article 121, the ‘resulting overlap and the exclusion of boundary delimitation from the Tribunal’s jurisdiction by Article 298, would prevent the Tribunal from addressing the submissions.’”Footnote ³³⁵ In the Dispute Concerning Coastal State Rights, the arbitral tribunal observed that “the sovereign character of the rights allegedly exercised by the declaring State and the entitlement of the declaring State to the area in question as that State’s [EEZ] must be objectively established for the optional exception to apply.”Footnote ³³⁶ The arbitral tribunal had already noted that a dispute existed objectively regarding which of the parties held title to Crimea. Yet, in the absence of jurisdiction to address this matter, it was not possible to determine “who is the coastal State with respect to the waters adjacent to Crimea. … Nor can any claims [be determined] which depend upon the premise that one or the other Party is sovereign over Crimea.”Footnote ³³⁷ Accordingly, the arbitral tribunal rejected the objection of the Russian Federation since the conditions for applying Article 298(1)(b) were not met.

There is still no case law that upholds the invocation of an exception to compulsory jurisdiction according to the law enforcement activities exception. Courts and tribunals have nevertheless been able to establish some guiding principles that will assist in states’ understanding of this particular exception. Further, the interpretation that courts and tribunals have attached to the preposition “concerning” in regard to the application of the military activities exception must also be seen to apply mutatis mutandis in regard to determining which enforcement measures fall within the second alternative of Article 298(1)(b). Consequently, it must be expected that a mere causal link between the measure in question and the claim of the applicant will not be sufficient to bring the latter within the scope of the law enforcement activities exception.