Compulsory jurisdiction under the law of the Sea Convention: its achievements and limits

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Author: Mariko Kawano

DOI: 10.21128/2226-2059-2021-3-157-172

Keywords: arbitral tribunal constituted in accordance with Annex VII, compulsory jurisdiction, International Tribunal for the Law of the Sea, United Nations Convention on the Law of the Sea

Abstract

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a special regime for the settlement of international disputes concerning its interpretation or application. Thanks to the mechanism of the enhanced compulsory jurisdiction provided by Section 2, various cases have been referred to the court or tribunals. Accumulation of the precedents has contributed to the clarification of the interpretation and application of the provisions relevant to the functions of the compulsory jurisdiction of international court and tribunals. This article examines the achievements and limits of the dispute settlement mechanism of Part XV. As far as the choice of the procedures in accordance with Article 287 is concerned, it is possible to say that the choice made by State Parties is respected as much as possible. Article 286 sets out the following requirements for a State Party to resort to the compulsory jurisdiction under Section 2: existence of a dispute concerning the interpretation or application of the UNCLOS; no settlement has been reached by recourse to Section 1; subject to the limitations and optional exceptions in accordance with Section 3. With regard to the first requirement, the ITLOS and arbitral tribunals have examined the subject-matter of the dispute before them and have tried to identify those concerning the interpretation or application of the UNCLOS. It is possible to say that examining the second requirement, the ITLOS and arbitral tribunals have emphasized the sound function of the compulsory dispute settlement mechanism under Section 2. As the third requirement relates to the scope of the compulsory jurisdiction of the court and tribunals, the ITLOS and arbitral tribunals have strictly interpreted the terms of Articles 297 and 298. Their Strict interpretation have allowed the Applicant to resort to the compulsory dispute settlement under Section 2. It is also necessary to note the strategic use of Article 300 in the arguments concerning the breach of the obligations under the UNCLOS in various precedents.

About the author: Mariko Kawano – LL.M., Professor of International Law, Waseda University School of Law, Tokyo, Japan

Citation: Kawano M. (2021) Obyazatel’naya yurisdiktsiya soglasno Konventsii OON po morskomu pravu: do­stizheniya i ogranicheniya [Compulsory jurisdiction under the law of the Sea Convention: its achievements and limits]. Mezhdunarodnoe pravosudie, vol.11, no.3, pp.157–172. (In Russian).

References

Buga I. (2012) Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals. The International Journal of Marine and Coastal Law, vol.27, no.1, pp.59–95.

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