Chapter IV: Treaty Interpretation and the Basis of Jurisdiction for
A. Article 288(1)
Generally, Article 288(1) provides the basis of compulsory jurisdiction (i.e.
disputes submitted under Section 2 of UNCLOS Part XV) for “UNCLOS disputes,”
which are disputes governed by rules of UNCLOS. It does not, however, provide the basis of jurisdiction for “non-UNCLOS” disputes, which are disputes not governed by UNCLOS.328
Two exceptions to this principle rule are found.329 The first is governed by Section 3 of UNCLOS Part XV,330 which sets out exceptions to the compulsory jurisdiction of UNCLOS Part XV. The second exception concerns jurisdiction over
“non-UNCLOS” disputes that are found in certain UNCLOS provisions and general principles of international law.331
1. Elements of Article 288(1): a dispute concerning the interpretation or application of UNCLOS
UNCLOS does not dwell upon the concept of “dispute.” Provisions pertaining to voluntary (Article 279) and compulsory jurisdiction (Article 286 and 288) refer to virtually identical conditions for “disputes.”332
328 Tzeng, supra note 4, at 505–6.
329 Id.
330 UNCLOS, supra note 3, art. 297–9.
331 Tzeng, supra note 4, at 506.
332 UNCLOS, supra note 3, art. 279, 286, 288.
a. A Dispute between State Parties
Article 288(1) unequivocally refers to disputes exclusively between States that are Parties to UNCLOS. Two conditions must be identified in order to resort to Part XV mechanisms.333 First, States must have signed and ratified or otherwise acceded to UNCLOS.334 Second, UNCLOS must have entered into force at the time the dispute arises.335
b. Existence of a Dispute
As depicted in Article 288(1), “any dispute concerning the interpretation or application of [UNCLOS]” appears broad, but is not without conditions. Although, UNCLOS does not provide the conditions for the existence of a dispute, delegates to the UNCLOS Conference regarded the meaning of dispute as “self-evident.”336 It follows that reference to the practice the ICJ is necessary.337
The existence of a dispute is a condition for an UNCLOS Tribunal to exercise its judicial function. As observed by the International Court of Justice:
[I]t is not sufficient for one party to assert that there is a dispute, since “whether there exists an international dispute is a matter for objective determination.”338
Moreover, in the opinion of the ICJ, the existence of the dispute is not required to be manifested in a particular way.
[The court] cannot require that the dispute should have manifested itself in a formal way;
according to the Court's view, it should be sufficient if the two Governments have in fact
333 Ranjeva, supra note 89, at 1339.
334 UNCLOS, supra note 3, art. 305–7.
335 Id., art. 308.
336 Ranjeva, supra note 89, at 1340..
337 Id.
338 Nuclear Tests (Austl. v. Fr.), supra note 57, at 270–1, ¶ 55.
shown themselves as holding opposite views in 'regard to the meaning or scope of a judgment of the Court.339
Thus, the object of a dispute is defined as “a difference of view which has not been capable of otherwise being overcome.”340 Viewing a law of the sea dispute in light of the ICJ approach appears to be of no difficulty. While no particular form of manifestation of a dispute is required, the necessary recourse to diplomatic means may be sufficient to prove the existence of a dispute.341
c. Disputes over the interpretation or application of UNCLOS
A clause containing the formulation identical or similar to that of Article 288(1)—
“any disputes concerning the interpretation or application”—is commonly seen in dispute settlement. However, no consensus is found on the meaning of
“interpretation or application.”342
The breach of a rule of international law is merely one of the various disputes.343 The ICJ held, though not in the context of UNCLOS, the “interpretation or application” of a treaty to indicate, inter alia, the jurisdiction to determine whether a party has breached the treaty.344 Some scholars have even found a distinction between “interpretation” and “application” to be unnecessary since relevant clauses employ these two composite terms and either one would render a dispute subject to the jurisdiction of the judicial forum.345 Other jurists have similarly pointed out that “the two elements constitute a compendious term of art generally covering all disputes as to rights and duties having their source in the
339 Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory) (Ger. v. Pol.), 1927 P.C.I.J.
(ser. A) No. 13, 10–11 (Dec. 16).
340 Id.
341 Ranjeva, supra note 89, at 1340.
342 Tzeng, supra note 4, at 505.
343 Id.
344 Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. Rep. 161, ¶ 31 (Nov. 6).
345 Serdy (art.279), supra note 108, at 1815, ¶ 7; Treves (2017), supra note 5, at 1847, ¶ 10.
controlling.”346 By the same token, a court or tribunal’s “jurisdiction is limited to that conferred on it” and does not include the jurisdiction to determine breaches of rules of international law beyond the treaty.347
In any event, a dividing line is necessary to tell apart disputes concerning the interpretation or application of UNCLOS and disputes that do not.348 This
“depends on the relationship between the claim and the treaty on which the claim is sought to be based.”349 The task to determine whether a dispute falls within the limits of a treaty’s jurisdiction calls for an interpretation of the said treaty.350 2. Application of the VCLT to UNCLOS Article 288(1)
Articles 288 set out the requirement that disputes concerning the “interpretation or application” of UNCLOS are subject to compulsory procedures under Section 2 of UNCLOS. The jurisdictional clause appears ambiguous. Equivocal or unambiguous legal texts must undergo interpretation to ascertain its meaning or confirm its clarity.351 UNCLOS provisions regarding subject-matter jurisdiction and its limitations undoubtedly call for interpretation in accordance with rules codified in Articles 31 and 32 of the VCLT.
a. The Text
The text of Article 288(1) only prescribes that disputes subject to compulsory jurisdiction must be disputes concerning “the interpretation or application” of
346 GARCÍA-REVILLO, supra note 28, at 39 (citing Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 I.C.J. Rep. 12, 59 (Apr. 26) (separate opinion of Judge Shahabuddeen)).
347 Tzeng, supra note 4, at 505 (citing Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), supra note 96, ¶ 271; Oil Platforms (Iran v. U.S.), supra note 344, ¶ 42).
348 GARCÍA-REVILLO, supra note 28, at 39.
349 Oil Platforms (Iran v. U.S.), 1996 Judgment, I.C.J. Rep. 803, 822, 824 (Dec. 12) (separate opinion of Judge Shahabuddeen).
350 GARCÍA-REVILLO, supra note 28, at 40–1.
351 POPA, supra note 222, at 91.
UNCLOS. Some academic literature discusses the issue of this thesis on the premise that such disputes are ones that are governed by UNCLOS.352 Similarly, some have argued that Article 288(1) in no way suggest exclusion of territorial sovereignty disputes given the absence of such terms thereto.353 The terms of Article 288(1) is thus equivocal in informing whether territorial sovereignty disputes concern the interpretation or application of UNCLOS.
b. The Context
To shed light on the meaning of Article 288(1), namely, whether UNCLOS distinguishes between so-called “UNCLOS dispute” and “non-UNCLOS dispute,”
the context of the provision must be given weight. The preamble and annexes of a treaty are part of the context.354 The last paragraph to the preamble of UNCLOS states: “[A]ffirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.”355 The preamble indicates UNCLOS makes a distinction between disputes that are addressed by the Convention and those that are not. Territorial sovereignty disputes are not resolved by provisions of UNCLOS, hence, are not “UNCLOS disputes” concerning the interpretation or application of UNCLOS.
Article 297 and 298 are also part of the context of Article 288(1). Based on the text of Article 297, no automatic exception for territorial sovereignty disputes is contained thereto. Article 297(1) sets out three types of disputes that must be subject to compulsory jurisdiction. While Article 297(2) and (3) allows compulsory jurisdiction to be exercised over marine scientific research and fisheries, it also preclude States’ obligation of submitting to compulsory procedures any dispute arising out of its exercise of certain rights with respect to marine scientific research in the exclusive economic zone or on the continental shelf, or any dispute relating to its sovereign rights with respect to the living
352 See, e.g., Oxman, Beckman, Wood and Klein in Part III, Chapter IV.
353 See, e.g., Kateka and Wolfrum in Part III, Chapter IV.
354 VCLT, supra note 223, art. 31(2).
355 UNCLOS, supra note 3, Preamble.
resources in the exclusive economic zone. However, nowhere in Article 297 is a dispute of territorial sovereignty excluded.
Though Article 297 does not mention anything of territorial claims, some contend the non-inclusion of such disputes does not necessarily suggest the drafters consented to compulsory jurisdiction over them.356 Thus, the exclusionary clause should be read into Article 297 despite the lack of explicit reference. Others suggest that since territorial sovereignty dispute was left out of Article 297, it is not excluded from compulsory jurisdiction.357 There appear to be no grounds to take recourse to the preparatory works of UNCLOS, for Article 297 unequivocally contains no such exception and its ordinary meaning does not render it ambiguous or otherwise absurd. In any event, the drafting history of UNCLOS indicates that the intention of the drafters to include territorial claims in Article 297 did not prevail.358 The fact that the proposal to include territorial sovereignty dispute in Article 297 did not receive consensus reveals the parties did not intend to leave it out.359 It was also expressed by many States during the drafting process that exceptions to compulsory jurisdiction are to “be interpreted restrictively.”360 The drafters intended to keep the possible exceptions available to the minimum and within a limited extent.361 Therefore, Article 298 is to be construed as permitting exceptions narrower than those expressly allowed therein. 362 This demonstrates Article 298(1)(a)(i) intends to deal with specifically sea boundary disputes that involved sovereignty issues. The provision has since ruled out territorial sovereignty disputes from delimitation of sea boundaries. An a contrario reading of Article 298(1)(a)(i) would hence not
356 See, e.g., Proelss in Part III, Chapter IV.
357 See, e.g., Kateka and Wolfrum in Part III, Chapter IV.
358 Virginia Commentary, supra note 109, at 112.
359 Id.
360 Id., at 92, ¶ 297.5.
361 Id., at 115, ¶ 298.13; Rao (2007), supra note 5, at 881.
362 Virginia Commentary, supra note 109, at 115, ¶ 298.13; Rao (2007), supra note 5, at 881.
exceed the terms of the provision to exclude all disputes concerning territorial sovereignty.
Nevertheless, the negotiating history of Article 297 and 298 appears to confirm the exclusion of land sovereignty disputes. As also noted in the drafting history, when drafts of the dispute settlement provision were presented during the negotiating process by the representative of El Salvador, who presented the draft of UNCLOS in the 1974 conference, he emphasized that “among the exceptions to which obligatory jurisdiction did not apply were the questions directly related to the territorial integrity of States.363 Otherwise, the convention would go too far and might dissuade a number of States from ratifying and even signing it [emphasis added].”364 In addition, some States feared that “under the guise of a dispute relating to a sea boundary delimitation, a party to a dispute might bring up a dispute involving claims to land territory or an island.”365 The relevant provision was thus amended as it exists in Article 298(1)(a)(i) now to accommodate this concern.366
c. Object and Purpose
The object and purpose of adopting dispute settlement provision can be found in the UNCLOS Preamble, which states UNCLOS is “prompted by the desire to settle […] all issues relating to the law of the sea.”367 Even in light of supplementary means of interpretation in Article 32, the preparatory work of UNCLOS indicates that States hoped for continuous and increasing recourse to the dispute settlement procedures which would “permit the solution of the problems of interpretation and application in the future convention” as controversies were
363 51st Plenary Meeting, supra note 130, at 213, ¶ 10.; Virginia Commentary, supra note 109, at, 88, ¶ 297.1.
364 Virginia Commentary, supra note 109, at 88.
365 Id., at 117, ¶ 298.20.
366 Memorandum by the President of the Conference on document A/CONF.62/WP.10, supra note 174, at 70.
367 UNCLOS, supra note 3, Preamble.
expected to inevitably rise from the new convention.368 UNCLOS dispute settlement system was adopted to deal with problems which stem from the Convention itself. This implies that compulsory procedures did not want to address questions beyond what was regulated in UNCLOS.