The United Nations Convention on the Law of the Sea (UNCLOS) establishes a comprehensive dispute settlement mechanism applicable to any dispute, subject to the exhaustive list of limitations and optional exceptions in Section 3, concerning the interpretation or application of UNCLOS. A complex topic that has arisen in several disputes regarding the application of UNCLOS is how to overcome jurisdictional challenges where disputes are of a mixed nature, i.e. disputes that are not limited to differences regarding provisions of UNCLOS but extend also to other rules of international law. It is axiomatic that Article 31(3)(c) of the Vienna Convention on the Law of the Treaties applies notwithstanding as a matter of interpretation. However, the application of Article 31(3)(c) is without prejudice to the fundamental principle consistent with which jurisdiction presupposes consent. Consent to jurisdiction does not extend to areas beyond the substantive undertakings to which the original consent is given. As the Permanent Court of International Justice eloquently observed in Phosphates in Morocco, ‘jurisdiction only exists within the limits within which it has been accepted’ (p. 23).
A certain number of disputes supposedly concerning the interpretation or application of UNCLOS that have been referred to the competent court or tribunal under Article 287 of UNCLOS relate to, or have their existential premise, disputed territorial titles. The question arises whether, and in the affirmative, to what degree, such disputes are eligible to fall within the application of the compulsory dispute settlement mechanism under UNCLOS, notwithstanding the dispute is connected to disputes that are not governed by UNCLOS. In an award rendered in 2015 in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), the arbitral tribunal unequivocally gave little aspiration for allowing such mixed disputes to be resolved under the dispute settlement mechanism in UNCLOS. According to the arbitral tribunal, its jurisdiction could extend to sovereignty disputes, but only ‘if it were genuinely ancillary’ (para 221) to the real object of the dispute. Accordingly, jurisdiction does not, in principle, extend to those parts of the dispute that involve disputed sovereign titles to land territory. Leaving aside the atypical setting in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), the decision in Chagos Marine Protected Area Arbitration has been followed in subsequent cases. Yet it appears reasonable to put forward the proposition that the above-mentioned approach(es) need not be followed where a dispute concerning UNCLOS arises from a violation of the territorial integrity of a State Party to UNCLOS, notwithstanding the use of force having resulted in opposite claims of sovereignty to land territory. The response to this question depends on whether Article 301 of UNCLOS establishes substantive rights.
Incidental Jurisdiction
Under the doctrine of incidental jurisdiction, an international court or tribunal can extend its jurisdiction to areas beyond the consent-based ramifications of jurisdiction. It is uncontested that territorial disputes are extremely rarely able to be perceived as incidental to a dispute concerning the interpretation or application of UNCLOS. This follows directly from the principle that ‘the land dominates the sea’ (para 96). Yet, there are extreme situations in which incidental jurisdiction has been stretched to the quasi unimaginable, one illustration of which is the Enrica Lexie Incident (Italy v. India) case. The arbitral tribunal rejected all the arguments of Italy in which it ascertained that the exercise of criminal jurisdiction by India in regard to the marines onboard the vessel Enrica Lexie was a breach of UNCLOS. Yet, it concluded that under customary international law, the marines were entitled to immunity in relation to the acts they committed (para 833), instructing India to cease its exercise of criminal jurisdiction over the marines (para 888). In his dissenting opinion, Judge Robinson persuasively observed that the matter of immunity ‘is not an incidental question; rather it is a core element of the dispute; it is the real issue in the dispute between the Parties’ (para 81ii) and therefore the arbitral tribunal ‘should have declined jurisdiction over the dispute’ (para 81i). A fortiori, this finding could support the assertion that the awards in Coastal State Rights (Ukraine v. Russia) and Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) in which it was concluded that jurisdiction could extend to sovereignty disputes, but only ‘if it were genuinely ancillary’ (para 221) were unnecessarily restrictive. Yet, the above-mentioned conclusion in the Enrica Lexie Incident is unlikely to be reproduced, given the seemingly excessively liberal approach in determining the limits of its jurisdiction.
Territorial Integrity under UNCLOS
The principle of territorial integrity guaranteeing the existence of States within the existing boundaries makes it relevant to determine whether the expression territorial integrity in Article 301 of LOSC applies to disputes arising from violations of land boundaries, but whose effects extend to the maritime areas projected by the relevant land territory under dispute or, as appropriate, occupation. In the affirmative, it is a reasonable proposition that a relevant court or tribunal, competent under Article 287(1) of LOSC, would have jurisdiction to decide a dispute that arises from disagreements as to whether State A by using force or threatening to do so, and as such prejudicing the territorial integrity of State B and, as appropriate, occupying the territory Y has violated Article 301 of UNCLOS, provided that the de facto alteration to the previously existing acquis arising from the land boundary impacts the rights that State B holds under UNCLOS in the maritime area projected from territory Y.
Article 301 of UNCLOS provides that States ´n exercising their rights and performing their duties under [UNCLOS] shall refrain from any threat or use of force against the territorial integrity or political independence of any State’. It is not unreasonable to put forward the proposition that Article 301 vests States Parties to UNCLOS with a substantive right for its boundaries to be protected by the principle of territorial integrity with the corresponding obligation to refrain from threatening or using force to violate the territorial integrity of other States. Yet the right for the respect of territorial integrity, established in Article 301 is a contingent right. This means that the violation of the territorial integrity under Article 301 of UNCLOS would be contingent upon the violation of a land boundary resulting in alterations to the exercise of rights and performance of duties under UNCLOS in the immediately adjacent maritime area to the relevant land territory. This is an important aspect. Whereas the right in question is contingent upon the above-mentioned alterations, it is a reasonable proposition that Article 301 of UNCLOS vests States with substantive rights to territorial integrity, which, in the affirmative, may be vindicated under the compulsory dispute settlement mechanism. As was observed by the ICJ in the South West Africa cases, ´[j]urisdictional clauses do not determine whether parties have substantive rights, but only whether, if they have them, they can vindicate them by recourse to a tribunal’ (para 98).
It appears obvious that a decision on the merits of the above hypothetical situation concerning the exercise of rights and performance of duties under UNCLOS by State A vis-à-vis State B would necessarily require relying on a premise which relates to a sovereignty dispute between State A and State B concerning the territory Y. To rely on the premises on which lay the claimed sovereignty title(s) would be a condition precedent for deciding on those parts of the dispute that relate to the interpretation or application of UNCLOS in the adjacent maritime area from territory Y, i.e. whether State A would have violated the ‘inviolable’ (UNGA 2625, operative paragraph d) principle enshrined not only in Article 301 of UNCLOS but also in Article 2(4) of the UN Charter. Under the test put forward in the Chagas Marine Protected Area Arbitration, as endorsed in Coastal State Rights, the relevant court or tribunal would only exercise jurisdiction to the dispute if the sovereignty dispute were ‘genuinely ancillary’ to the real object of the dispute. It is recalled that in Coastal State Rights, the arbitral tribunal observed that the dispute regarding sovereignty over Crimea was not ‘a minor issue ancillary to the dispute concerning the interpretation or application’ of UNCLOS (para 195). Rather, the question of sovereignty to Crimea was ‘a prerequisite [..] on a number of claims [which] cannot be addressed without deciding which State is sovereign over Crimea and thus the “coastal State” within the meaning of [UNCLOS]’ (para 195). Supposedly following the approach of the ICJ in East Timor (Portugal v. Australia) (para 22), the arbitral tribunal refused to uphold the submission of the applicant in which the arbitral tribunal was requested to assess the legality of the claimed sovereign title of the respondent. Rather, the arbitral tribunal ‘recognises th[e] reality without engaging in any analysis of whether the Russian Federation’s claim of sovereignty is right or wrong’ (para 178).
In following the above approach of the arbitral tribunal in Coastal State Rights and in the Chagos Marine Protected Area Arbitration, the court or tribunal in the hypothetical dispute between State A and State B would likely decline jurisdiction. Yet, a common feature for both disputes was that neither of the applicants sought to claim the breach of a substantive right to territorial integrity under Article 301 of UNCLOS. In the Chagos Marine Protected Area Arbitration, this may have been difficult for reasons that relate to the lack of use of force. However, in Coastal State Rights, the setting was significantly different, but the applicant – seemingly – did not invoke Article 301 of UNCLOS. The decision of whether to exercise jurisdiction should arguably not be addressed under the formula of incidental jurisdiction, but rather as a matter within the consent-based jurisdiction were one to accept that Article 301 of UNCLOS sets forward substantive rights and obligations, the judicial review of which does not fall within the general limitations or facultative exceptions in UNCLOS. However, establishing jurisdiction does not necessarily mean that the court or tribunal would exercise the jurisdiction. This appears eloquently in the second judgment on preliminary objections in Arbitral Award of 3 October 1899 (Guyana v. Venezuela), where the ICJ observes a distinction between ‘the existence of the Court’s jurisdiction and, on the other, the exercise of its jurisdiction where that jurisdiction is established’ (para 64). An international court or tribunal, properly seized, is obligated to ‘exercise that jurisdiction to its full extent’ (para 19). Yet, this obligation applies only where a ‘court possesses jurisdiction and finds no ground of inadmissibility’ (para 21).
In these circumstances the court or tribunal could exercise jurisdiction to any admissible submission concerning the interpretation or application of UNCLOS notwithstanding e.g. the generating feature of the dispute results from opposing claims of sovereign titles to land territory, provided that (1) that the dispute arises from a violation of the ‘inviolable’ principle of territorial integrity in Article 301 of UNCLOS, and (2) subject to the condition that this new situation results in an alteration to previously recognized rights and obligations that followed from the land boundary as the acquis existed prior to the violation of the substantive provision establishing a right of territorial integrity. Accordingly, rather than ‘recognis[ing] th[e] reality without engaging in any analysis’ (para 178) to rely on the expression used in Coastal State Rights, the arbitral tribunal could pursuant to Article 301 be considered vested with jurisdiction to rely on a claim that consists in an analysis whether a ´claim of sovereignty is right or wrong’ (para 178). Yet, the court or tribunal would not have jurisdiction to resolve the sovereignty dispute, but merely those derivative parts of the dispute that relate to UNCLOS. However, and most importantly, consistent with Article 301, the court or tribunal could rely on the previously existing acquis, resulting from existing legal commitments entered into prior to the entry into force of UNCLOS for the involved States or agreed between the relevant parties at any subsequent time to the entry into force of UNCLOS.
Concluding Remarks
The importance of Article 301 appears largely understated. It sets forward a substantive right for the respect of territorial integrity, albeit being a contingent right that may become operative only under certain circumstances. It is concluded that Article 301 may be considered breached where a violation of a land boundary results in alterations to previously recognized rights and obligations under UNCLOS in the maritime area adjacent to the relevant land territory, which is the subject and cause of the above-mentioned violation of Article 301. Accordingly, disagreements concerning the exercise of rights and obligations in the relevant maritime area result in a dispute concerning the interpretation or application of UNCLOS. Consequently, the proposition is put forward that the relevant court or tribunal seized under Article 287 ‘shall have jurisdiction’ to resolve those parts of the dispute that relate to the material provisions in UNCLOS, notwithstanding the generative feature arises from opposite claims of sovereign titles to land territory.
A certain number of disputes supposedly concerning the interpretation or application of UNCLOS that have been referred to the competent court or tribunal under Article 287 of UNCLOS relate to, or have their existential premise, disputed territorial titles. The question arises whether, and in the affirmative, to what degree, such disputes are eligible to fall within the application of the compulsory dispute settlement mechanism under UNCLOS, notwithstanding the dispute is connected to disputes that are not governed by UNCLOS. In an award rendered in 2015 in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), the arbitral tribunal unequivocally gave little aspiration for allowing such mixed disputes to be resolved under the dispute settlement mechanism in UNCLOS. According to the arbitral tribunal, its jurisdiction could extend to sovereignty disputes, but only ‘if it were genuinely ancillary’ (para 221) to the real object of the dispute. Accordingly, jurisdiction does not, in principle, extend to those parts of the dispute that involve disputed sovereign titles to land territory. Leaving aside the atypical setting in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), the decision in Chagos Marine Protected Area Arbitration has been followed in subsequent cases. Yet it appears reasonable to put forward the proposition that the above-mentioned approach(es) need not be followed where a dispute concerning UNCLOS arises from a violation of the territorial integrity of a State Party to UNCLOS, notwithstanding the use of force having resulted in opposite claims of sovereignty to land territory. The response to this question depends on whether Article 301 of UNCLOS establishes substantive rights.
Incidental Jurisdiction
Under the doctrine of incidental jurisdiction, an international court or tribunal can extend its jurisdiction to areas beyond the consent-based ramifications of jurisdiction. It is uncontested that territorial disputes are extremely rarely able to be perceived as incidental to a dispute concerning the interpretation or application of UNCLOS. This follows directly from the principle that ‘the land dominates the sea’ (para 96). Yet, there are extreme situations in which incidental jurisdiction has been stretched to the quasi unimaginable, one illustration of which is the Enrica Lexie Incident (Italy v. India) case. The arbitral tribunal rejected all the arguments of Italy in which it ascertained that the exercise of criminal jurisdiction by India in regard to the marines onboard the vessel Enrica Lexie was a breach of UNCLOS. Yet, it concluded that under customary international law, the marines were entitled to immunity in relation to the acts they committed (para 833), instructing India to cease its exercise of criminal jurisdiction over the marines (para 888). In his dissenting opinion, Judge Robinson persuasively observed that the matter of immunity ‘is not an incidental question; rather it is a core element of the dispute; it is the real issue in the dispute between the Parties’ (para 81ii) and therefore the arbitral tribunal ‘should have declined jurisdiction over the dispute’ (para 81i). A fortiori, this finding could support the assertion that the awards in Coastal State Rights (Ukraine v. Russia) and Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) in which it was concluded that jurisdiction could extend to sovereignty disputes, but only ‘if it were genuinely ancillary’ (para 221) were unnecessarily restrictive. Yet, the above-mentioned conclusion in the Enrica Lexie Incident is unlikely to be reproduced, given the seemingly excessively liberal approach in determining the limits of its jurisdiction.
Territorial Integrity under UNCLOS
The principle of territorial integrity guaranteeing the existence of States within the existing boundaries makes it relevant to determine whether the expression territorial integrity in Article 301 of LOSC applies to disputes arising from violations of land boundaries, but whose effects extend to the maritime areas projected by the relevant land territory under dispute or, as appropriate, occupation. In the affirmative, it is a reasonable proposition that a relevant court or tribunal, competent under Article 287(1) of LOSC, would have jurisdiction to decide a dispute that arises from disagreements as to whether State A by using force or threatening to do so, and as such prejudicing the territorial integrity of State B and, as appropriate, occupying the territory Y has violated Article 301 of UNCLOS, provided that the de facto alteration to the previously existing acquis arising from the land boundary impacts the rights that State B holds under UNCLOS in the maritime area projected from territory Y.
Article 301 of UNCLOS provides that States ´n exercising their rights and performing their duties under [UNCLOS] shall refrain from any threat or use of force against the territorial integrity or political independence of any State’. It is not unreasonable to put forward the proposition that Article 301 vests States Parties to UNCLOS with a substantive right for its boundaries to be protected by the principle of territorial integrity with the corresponding obligation to refrain from threatening or using force to violate the territorial integrity of other States. Yet the right for the respect of territorial integrity, established in Article 301 is a contingent right. This means that the violation of the territorial integrity under Article 301 of UNCLOS would be contingent upon the violation of a land boundary resulting in alterations to the exercise of rights and performance of duties under UNCLOS in the immediately adjacent maritime area to the relevant land territory. This is an important aspect. Whereas the right in question is contingent upon the above-mentioned alterations, it is a reasonable proposition that Article 301 of UNCLOS vests States with substantive rights to territorial integrity, which, in the affirmative, may be vindicated under the compulsory dispute settlement mechanism. As was observed by the ICJ in the South West Africa cases, ´[j]urisdictional clauses do not determine whether parties have substantive rights, but only whether, if they have them, they can vindicate them by recourse to a tribunal’ (para 98).
It appears obvious that a decision on the merits of the above hypothetical situation concerning the exercise of rights and performance of duties under UNCLOS by State A vis-à-vis State B would necessarily require relying on a premise which relates to a sovereignty dispute between State A and State B concerning the territory Y. To rely on the premises on which lay the claimed sovereignty title(s) would be a condition precedent for deciding on those parts of the dispute that relate to the interpretation or application of UNCLOS in the adjacent maritime area from territory Y, i.e. whether State A would have violated the ‘inviolable’ (UNGA 2625, operative paragraph d) principle enshrined not only in Article 301 of UNCLOS but also in Article 2(4) of the UN Charter. Under the test put forward in the Chagas Marine Protected Area Arbitration, as endorsed in Coastal State Rights, the relevant court or tribunal would only exercise jurisdiction to the dispute if the sovereignty dispute were ‘genuinely ancillary’ to the real object of the dispute. It is recalled that in Coastal State Rights, the arbitral tribunal observed that the dispute regarding sovereignty over Crimea was not ‘a minor issue ancillary to the dispute concerning the interpretation or application’ of UNCLOS (para 195). Rather, the question of sovereignty to Crimea was ‘a prerequisite [..] on a number of claims [which] cannot be addressed without deciding which State is sovereign over Crimea and thus the “coastal State” within the meaning of [UNCLOS]’ (para 195). Supposedly following the approach of the ICJ in East Timor (Portugal v. Australia) (para 22), the arbitral tribunal refused to uphold the submission of the applicant in which the arbitral tribunal was requested to assess the legality of the claimed sovereign title of the respondent. Rather, the arbitral tribunal ‘recognises th[e] reality without engaging in any analysis of whether the Russian Federation’s claim of sovereignty is right or wrong’ (para 178).
In following the above approach of the arbitral tribunal in Coastal State Rights and in the Chagos Marine Protected Area Arbitration, the court or tribunal in the hypothetical dispute between State A and State B would likely decline jurisdiction. Yet, a common feature for both disputes was that neither of the applicants sought to claim the breach of a substantive right to territorial integrity under Article 301 of UNCLOS. In the Chagos Marine Protected Area Arbitration, this may have been difficult for reasons that relate to the lack of use of force. However, in Coastal State Rights, the setting was significantly different, but the applicant – seemingly – did not invoke Article 301 of UNCLOS. The decision of whether to exercise jurisdiction should arguably not be addressed under the formula of incidental jurisdiction, but rather as a matter within the consent-based jurisdiction were one to accept that Article 301 of UNCLOS sets forward substantive rights and obligations, the judicial review of which does not fall within the general limitations or facultative exceptions in UNCLOS. However, establishing jurisdiction does not necessarily mean that the court or tribunal would exercise the jurisdiction. This appears eloquently in the second judgment on preliminary objections in Arbitral Award of 3 October 1899 (Guyana v. Venezuela), where the ICJ observes a distinction between ‘the existence of the Court’s jurisdiction and, on the other, the exercise of its jurisdiction where that jurisdiction is established’ (para 64). An international court or tribunal, properly seized, is obligated to ‘exercise that jurisdiction to its full extent’ (para 19). Yet, this obligation applies only where a ‘court possesses jurisdiction and finds no ground of inadmissibility’ (para 21).
In these circumstances the court or tribunal could exercise jurisdiction to any admissible submission concerning the interpretation or application of UNCLOS notwithstanding e.g. the generating feature of the dispute results from opposing claims of sovereign titles to land territory, provided that (1) that the dispute arises from a violation of the ‘inviolable’ principle of territorial integrity in Article 301 of UNCLOS, and (2) subject to the condition that this new situation results in an alteration to previously recognized rights and obligations that followed from the land boundary as the acquis existed prior to the violation of the substantive provision establishing a right of territorial integrity. Accordingly, rather than ‘recognis[ing] th[e] reality without engaging in any analysis’ (para 178) to rely on the expression used in Coastal State Rights, the arbitral tribunal could pursuant to Article 301 be considered vested with jurisdiction to rely on a claim that consists in an analysis whether a ´claim of sovereignty is right or wrong’ (para 178). Yet, the court or tribunal would not have jurisdiction to resolve the sovereignty dispute, but merely those derivative parts of the dispute that relate to UNCLOS. However, and most importantly, consistent with Article 301, the court or tribunal could rely on the previously existing acquis, resulting from existing legal commitments entered into prior to the entry into force of UNCLOS for the involved States or agreed between the relevant parties at any subsequent time to the entry into force of UNCLOS.
Concluding Remarks
The importance of Article 301 appears largely understated. It sets forward a substantive right for the respect of territorial integrity, albeit being a contingent right that may become operative only under certain circumstances. It is concluded that Article 301 may be considered breached where a violation of a land boundary results in alterations to previously recognized rights and obligations under UNCLOS in the maritime area adjacent to the relevant land territory, which is the subject and cause of the above-mentioned violation of Article 301. Accordingly, disagreements concerning the exercise of rights and obligations in the relevant maritime area result in a dispute concerning the interpretation or application of UNCLOS. Consequently, the proposition is put forward that the relevant court or tribunal seized under Article 287 ‘shall have jurisdiction’ to resolve those parts of the dispute that relate to the material provisions in UNCLOS, notwithstanding the generative feature arises from opposite claims of sovereign titles to land territory.