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Prior Consultations and Jurisdiction at ITLOS

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AbstractWhile the rule of prior exhaustion of negotiations is found in certain treaties as a condition governing the jurisdiction of an international tribunal, it hardly makes its presence felt in general international law, given that its customary nature is doubtful. Although in a number of cases the icj has refused to accept the requirement, it is presently taking this condition governing its own jurisdiction more seriously when it is established through conventional clauses. This contrasts with the doctrine established by a sectorial jurisdiction like the itlos, which has the exchange of views provided for in article 283 unclos. The travaux préparatoires of this Convention show that the exchange of views was introduced with the intention of preventing States from having the surprise of an unexpected application before the itlos. Although it is true that this exchange of views constitutes a laxer compromise than preliminary negotiations, in any case it has to be addressed; otherwise the conditions governing itlos jurisdiction would not have been fulfilled. However, it would seem that neither in the mv “Louisa” or in the Arctic Sunrise cases there had been any serious attempt to exchange views regarding the settlement of the dispute between the two States by negotiations or other peaceful means. In spite of that, itlos limited itself to reiterating that a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted. As a result, it would seem sufficient that the applicant limits itself to informing the other party to the dispute of its intention to submit a case to judicial settlement. However, taking into account the recent icj jurisprudence, it seems that there should exist, at the very least, a preliminary exchange of views about the most appropriate way to settle the dispute.


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