Jurisdiction and applicable law under UNCLOS.

• Position: UN Convention on the Law of the Sea

INTRODUCTION

In the recent case of Chagos Marine Protected Area, (1) a five-member tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS) (2) held in its hands the fate of the Chagos Archipelago. One of the questions before the tribunal was whether it had the jurisdiction to declare that the British occupation of the Chagos Archipelago and the forcible removal of the Archipelago's indigenous population violated the fundamental right to self-determination. The answer hinged on a technical, procedural point: Does the applicable law provision of UNCLOS, Article 293(1), expand the jurisdiction of UNCLOS tribunals? (3)

The law was not on the side of the Chagossians. It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals. (4) So after Mauritius impliedly asserted that Article 293(1) could expand the jurisdiction of the tribunal, (5) the United Kingdom--the other party to the dispute--quickly refuted the assertion, noting that " [t]his is an old debate, and one that, quite frankly, we should not be having." (6) The tribunal ultimately ruled in favor of the United Kingdom on this point. But if the principle is so well-established and the debate so old, why did it receive so much attention in the written and oral stages of the proceedings?

The reason is straightforward but possibly appalling to international lawyers: UNCLOS tribunals have not uniformly conformed to the principle. As of September 2016, UNCLOS tribunals in seven cases have considered whether Article 293(1) can expand their jurisdiction. On the one hand, the tribunals in M/V Saiga (No. 2), (7) Guyana v. Suriname, (8) and M/V Virginia G9 (the M/V Saiga line of cases) effectively invoked Article 293(1) to expand their jurisdiction. On the other hand, the tribunals in MOX Plant, (10) Chagos, (11) Arctic Sunrise, (12) and Duzgit Integrity (13) (the MOX Plant line of cases) stood by the principle, rejecting any expansion of jurisdiction under Article 293(1). (14) Other UNCLOS tribunals have simply not addressed the question. (15)

Despite this inconsistency in jurisprudence, the question of jurisdiction under Article 293(1) has received little attention among scholars. The eminent treatises on the law of the sea bypass the question entirely. (16) One commentator raised the issue in the context of the M/V Saiga (No. 2) dispute, (17) and another briefly touched on the issue in the context of the MOX Plant case. (18) But no scholar has ever analyzed multiple cases interpreting Article 293(1) in a single text. Even the judgments and awards of UNCLOS tribunals do not dedicate much discussion to the subject. This Comment aims not only to fill this gap in the literature, but also to help inform pending and future UNCLOS disputes implicating Article 293(1), including the high-profile case of Ukraine v. Russia.

This Comment is organized as follows. Part I provides background on UNCLOS and explains why Article 293(1) does not expand the jurisdiction of UNCLOS tribunals. Part II explains how the UNCLOS tribunals in the M/V Saiga (No. 2) line of cases nonetheless exercised jurisdiction under Article 293(1). Part III then presents how the UNCLOS tribunals in the MOX Plant line of cases rejected jurisdiction under Article 293(1) but failed to recognize the legal error in the M/V Saiga (No. 2) line of cases. The Comment then concludes by noting how the failure to recognize this error may ultimately undermine the UNCLOS dispute settlement regime.

1. UNCLOS AND ARTICLE 293(1)

   A critical difference between domestic legal systems and the international legal order is that the latter lacks courts with compulsory jurisdiction. (19) One who suffers an injury under domestic law will usually be able to seek relief in a domestic court with jurisdiction over the claim, whereas one who suffers an injury under international law often cannot find a judicial forum with jurisdiction.

   The drafters of UNCLOS sought to change this reality with respect to claims concerning the law of the sea. Famously characterized as "a constitution for the oceans," (20) the Convention sets out in 320 articles and nine annexes a comprehensive body of law governing practically all matters relating to the law of the sea, such as maritime delimitation, environmental protection, fisheries management, and marine scientific research. Most importantly for the purposes of this Comment, Part XV of the Convention establishes a dispute settlement mechanism to ensure compliance with the Convention. Two provisions in Part XV are particularly relevant.

   First, the jurisdiction provision, Article 288(1), grants UNCLOS tribunals the jurisdiction to settle UNCLOS claims. (21) Consequently, aside from a few exceptions, (22) any state that suffers an injury under UNCLOS may seek relief from an UNCLOS tribunal. In theory, UNCLOS tribunals may take one of four forms: the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), an Annex VII tribunal, or an Annex VIII tribunal. (23) In practice, however, all UNCLOS tribunals have either been ITLOS or an Annex VII tribunal. ITLOS is a permanent judicial body composed of twenty-one judges. (24) By contrast, Annex VII tribunals are ad hoc arbitral tribunals normally composed of five arbitrators. (25) Together, ITLOS and Annex VII tribunals have been seized of twenty-one disputes (excluding prompt release cases) and have reached a decision on the merits in ten of those disputes. (26)

   Second, the Convention's applicable law provision, Article 293(1), provides that UNCLOS tribunals "shall apply this Convention and other rules of international law not incompatible with this Convention." (27) Some have interpreted Article 293(1) to expand the jurisdiction of UNCLOS tribunals to include certain non-UNCLOS claims. Under this interpretation, Article 293(1) would grant UNCLOS tribunals the jurisdiction to declare whether states have violated certain non-UNCLOS rules of international law, such as the rules on the use of force, the rules on the acquisition of territory, and the rules of international human rights law. This interpretation, however, is incorrect.

   A proper interpretation of Article 293(1) requires recourse to Article 31 of the Vienna Convention on the Law of Treaties (VCLT). (28) Article 31 is universal ly considered to reflect customary international law, (29) and scholars agree that international courts and tribunals must apply the Article when interpreting treaties. (30) Article 31 provides: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (31) In other words, one must examine the items: the ordinary meaning of the text, the context, and the object and purpose of the treaty.

   First, the ordinary meaning of the text of Article 293(1) conveys the notion that it does not expand the jurisdiction of UNCLOS tribunals. In fact, the very wording of the provision reveals that it only speaks to applicable law, not jurisdiction. Article 293(1) states: "A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention." (32) It therefore envisages a two-step process: first, the UNCLOS tribunal must determine whether it has jurisdiction (under Article 288); second, if it has jurisdiction (and only if it has jurisdiction), then the tribunal shall apply UNCLOS and "other rules of international law." Given that Article 288(1) grants UNCLOS tribunals jurisdiction only over UNCLOS claims, (33) the "other rules of international law" should be interpreted as referring primarily to rules of international law that help UNCLOS tribunals exercise their jurisdiction over UNCLOS claims. (34)

   Second, the context of Article 293(1) affirms this interpretation. The official title of Article 288 is "Jurisdiction" and that of Article 293 is "Applicable Law," reinforcing the fact that the Convention considers them to be two separate notions. One cannot use the applicable law provision (Article 293) to expand jurisdiction; otherwise, it would violate the jurisdiction provision (Article 288).

   Third, the object and purpose of UNCLOS, as expressed in the Preamble, is to govern "all issues relating to the law of the sea." (35) It is not intended to govern issues outside the law of the sea. Consequently, it makes sense that Article 293(1) cannot expand the jurisdiction of UNCLOS tribunals beyond their jurisdiction under Article 288(1) to resolve UNCLOS claims.

   Therefore, Article 293(1) should not be interpreted as an expansion of the jurisdiction of UNCLOS tribunals beyond UNCLOS.

2. CASES EXERCISING JURISDICTION

   Despite this seemingly straightforward analysis, UNCLOS tribunals have invoked Article 293(1) to expand their jurisdiction to non-UNCLOS claims in three cases. The first was ITLOS's second case: M/V Saiga (No. 2). In 1997, Saint Vincent and the Grenadines (St. Vincent) instituted an UNCLOS arbitration against Guinea claiming, inter alia, that Guinea had violated the prohibition on the use of excessive force in the detention of ships when Guinean authorities arrested a ship registered in St. Vincent. (36) Although the prohibition is an established norm of customary international law, (37) it is not explicitly enshrined in UNCLOS. (38) The most pertinent provision concerning the use of force in UNCLOS is Article 301, but this provision prohibits only the threat or use of force "against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations." (39) ITLOS therefore concluded that UNCLOS does not expressly regulate the use of force in the arrest of ships. (40) As a result...