Tullio Treves, Conflicts Between the International Tribunal for the ...

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814 INTERNATIONAL LAW AND POLITICS [Vol. 31:809nomic zone and, respectively, natural resources of the seabedof archipelagic waters and of the continental shelf).It emerges clearly from these reservations that states haveexcluded disputes from compulsory jurisdiction of the Courtthat they cannot exclude from compulsory jurisdiction of acourt or tribunal under the Convention. The recent fisheriescase between Spain and Canada is an interesting example because,when the underlying events occurred, neither state wasa party to the Convention. 18 The case concerned the boardingon the high seas of a Spanish fishing vessel (the Estai) by aCanadian patrol boat, in pursuance of the Canadian CoastalFisheries Protection Act of the Northwest Atlantic FisheriesOrganization (NAFO). Canada claimed that its acceptance ofthe compulsory jurisdiction of the Court did not apply to thecase because the dispute was covered by a reservation excludingdisputes “arising out of or concerning conservation andmanagement measures taken by Canada with respect to vesselsfishing in the NAFO Regulatory area . . . and the enforcementof such measures.” 19 In its judgment of December 4, 1998, theCourt relied on the Canadian reservation in finding that it hadno jurisdiction. Had both Spain and Canada been parties tothe Convention at the time the boarding occurred, the situationwould have been quite different. No provision in theConvention excludes, or permits the exclusion of, conservationor management measures and their enforcement on thehigh seas from the compulsory jurisdiction of the courts andtribunals mentioned in Article 287. Article 297, paragraph 3,excludes from such compulsory jurisdiction disputes relatingto the coastal state’s sovereign rights with respect to living resourcesand makes it clear that these are resources in the exclusiveeconomic zone. 20 Article 298, paragraph 1(b), which18. See Fisheries Jurisdiction Case (Spain v. Can.), 1998 I.C.J. (Dec. 4),(visited July 6, 1999) . See generally A. Anna Zumwalt,Straddling Stock Spawn Fish War on the High Seas, 3 U.C. DAVIS J. INT’L L.& POL’Y 35 (1997); Andrew Schaefer, Canada-Spain Fishing Dispute (The TurbotWar), 8 GEO. INT’L ENVTL. L. REV. 437 (1996-1997).19. See Counter-Memorial of Canada (Jurisdiction) (Spain v. Can.), 1996I.C.J. Pleadings (Fisheries Jurisdiction Case) (Feb. 29, 1996), (visited July 6,1999) (visited July 6, 1999).20. See Convention on the Law of the Sea, supra note 2, art. 297.
1999] INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA 815permits declarations excluding disputes concerning law enforcementactivities from compulsory jurisdiction, specifiesthat these activities must be “in regard of the exercise of sovereignrights or jurisdiction excluded from the jurisdiction of acourt or tribunal under Article 297, paragraph 2 or 3”—that isto say, in the exclusive economic zone. 21Once a reservation excludes a dispute from the compulsoryjurisdiction of the Court, Article 282 cannot function, andthe rules on compulsory jurisdiction of the Convention are tobe applied.IV.THE RELEVANCE OF LIMITATIONS AND OPTIONALEXCEPTIONS TO THE COMPULSORY JURISDICTION OFTHE TRIBUNALTo determine which disputes can be brought to the Courtand to the Tribunal unilaterally, it is insufficient to examinethe impact of the reservations on the acceptance of the optionalclause by the disputing parties. It is necessary to verifywhether one or more of the limitations of, or optional exceptionsto, the applicability of the rules on compulsory jurisdiction,set out in Articles 297 and 298 of the Convention, apply.For instance, if one of the parties has accepted the optionalclause with a reservation concerning disputes regardingthe “determination and delimitation of its maritime boundaries,”the ability to bring a case to a court or tribunal dependson whether one of the parties has made a declaration stating itdoes not accept the jurisdiction of such courts or tribunalsunder Article 298, paragraph 1(a). If such a declaration hasbeen made, there would be no compulsory settlement clausein force between the parties, unless the requirements for“compulsory” conciliation under Article 298 are satisfied. Ifsuch a declaration under Article 298, paragraph 1(a), has notbeen made—as is the case for India and Malta, which havemade the above-mentioned reservation to their acceptance ofthe optional clause—a party will be entitled to invoke the obligationunder the Convention to submit the dispute to the jurisdictionof a court or tribunal.Some aspects of a complex dispute may come under thejurisdiction of the Court, while others fall under the jurisdic-21. Id. art. 298, para. 1(b).
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