Discretionary Power of Coastal States and the Control of Its Compliance with International Law by International Tribunals

• Autores: Erietta Scalieri
• Localización: Interpretations of the United Nations Convention on the Law of the Sea by international courts and tribunals / Angela Del Vecchio (ed. lit.), Roberto Virzo (ed. lit.), 2019, ISBN 9783030107727, págs. 349-381
• Idioma: inglés
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• Resumen

  • This paper deals with the control by international courts and tribunals of the exercise of the coastal State’s discretionary power. The notion of discretionary power which was initially developed in administrative law is also used in international law and refers primarily to the manner in which the competences of the State—in particular certain powers and competences of the coastal State—are exercised. Limitations to such control derive from the nature of the discretionary power of the coastal State. This article examines, in the light of recent jurisprudence, the extent of the judicial control with respect to disputes involving the discretion of the coastal State, the exercise of judicial restraint, as well as the standards applied by the judge. The analysis further focuses on the procedural limitations to judicial control provided in the UNCLOS, particularly in article 297. This provision excludes from the compulsory procedures of Part XV of UNCLOS certain disputes involving the exercise of sovereign rights of the coastal States. It is through judicial and arbitral practice that some important aspects have been and can be further clarified, especially regarding the scope of the limitation and its procedural aspects.