Implicated Issues and Renvoi Clauses

Abstract

As is well known, Part XV of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes a compulsory system of peaceful settlement of disputes concerning the interpretation and application of the Convention—a feature which has been described in legal writings as one of the core elements that distinguish UNCLOS from earlier multilateral agreements. Article 288 (1) UNCLOS limits the jurisdiction of courts and tribunals under Part XV UNCLOS to “disputes concerning the interpretation or application of this Convention,” thus describing the scope of jurisdiction ratione materiae of the dispute settlement mechanisms mentioned in Article 287 UNCLOS. Considering the crucial importance of state consent to jurisdiction that is embodied in Articles 279 and 288 (1) UNCLOS, it seems obvious that such a court or tribunal cannot be held to have jurisdiction to render a decision on the merits concerning a dispute which does not concern the interpretation or application of UNCLOS. However, the case is less clear in situations where a dispute which indeed affects the interpretation or application of UNCLOS makes it necessary, at least potentially, for the court or tribunal to adjudicate on other (preceding) issues not governed by the Convention, i.e., if the dispute implicates matters that do not (only) concern the interpretation or application of the Convention. The most relevant example for such a situation is the existence of a (land or insular) territorial dispute, considering that UNCLOS, while prescribing the extent to which the sovereignty of a coastal state stretches over the sea and the sovereign rights and jurisdiction that it is entitled to exercise over a certain maritime zone, does not regulate issues related to title to territory. Disputes involving incidental matters concerning territorial sovereignty were recently submitted to Annex VII tribunals in three important cases, namely the Chagos Marine Protected Area Arbitration, the South China Sea Arbitration, and the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait. The recent award of 21 February 2020 (addressing preliminary objections) rendered in the latter case is used as the starting point for conducting a comparative and critical assessment of the different approaches adopted by the three arbitral tribunals in the context relevant here. A second challenge concerning the scope of the regime of peaceful dispute settlement has arisen in relation to provisions prescribing “rules of reference,” or renvoi clauses respectively. Such provisions, examples for which include Articles 2 (3), 58 (2), 210 (6), and 211 (5) UNCLOS, contain references to “other rules of international law,” “other pertinent rules of international law,” “global rules and standards,” or “generally accepted international rules and standards,” thus developing the content of UNCLOS by referring to other international instruments, or international law as such. In this respect, the question arises whether the jurisdiction ratione materiae of courts and tribunals under Part XV UNCLOS is limited to the interpretation and application of UNCLOS provisions containing the renvoi clause concerned, or whether it extends to the rules referred to by UNCLOS enshrined in other instruments, also taking into account that according to Article 293 (1) UNCLOS, “a court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.” If jurisdiction ratione materie were also affirmed concerning the referenced regimes, this could potentially entail a far-reaching expansion of the system of peaceful dispute settlement under UNCLOS. Ultimately, the Convention could be used as the gateway to subject disputes regarding other international law regimes to a compulsory dispute settlement system. Against this background, it is necessary to ask whether such a broad understanding can be reconciled with fundamental principles of peaceful dispute settlement and international law as a whole—a question that is addressed and answered based on recent statements made by courts and tribunals within the framework of Part XV UNCLOS.