The Mox Plant Case (Ireland v. United Kingdom), ITLOS Case No. 10, Order, Separate Opinion of Judge Treves (December 3, 2001)
1. While I agree with the decision and with its reasons, I wish to clarify certain aspects which, in my opinion, require to be seen in a broader perspective.
2. In rejecting the contention that article 282 was applicable in order to exclude prima facie the jurisdiction of the Annex VII arbitral tribunal, the Tribunal ruled out that the general, regional or bilateral agreements mentioned in that article could be agreements providing for submission to binding adjudication, at the request of a party, of a dispute concerning the interpretation or application of the provisions of these agreements, even where such provisions set out rights and obligations identical or similar to those set out in the Convention. I concur with the reasons given, which draw from the literal formulation of article 282, and from the consideration that even identical provisions in different treaties have a "separate existence"1 and may be interpreted differently2 (paragraphs 50-51). This interpretation would seem to correspond to the preparatory work for article 282.3
3. Consequently, an agreement providing for settlement of disputes at the request of one party by a court or tribunal whose decision is binding is not one of the “agreements” mentioned in article 282 whenever the disputes envisaged therein are those concerning the interpretation or application of the substantive provisions of the agreement and not of the Convention, even in case they set out obligations overlapping with those set out in the Convention. The agreements to which article 282 refers are the general, regional or bilateral ones concerning disputes definined as encompassing disputes concerning the interpretation or application of the Convention, be they agreements for the settlement of disputes specifically mentioned as relating to the interpretation or application of the Convention, agreements for the settlement of disputes in general (including the acceptance, by both parties, without relevant reservations, of the optional clause of Article 36, paragraph 2, of the Statute of the International Court of Justice), and agreements for the settlement of categories of disputes defined so that they may include those concerning the interpretation or application of the Convention (such as, for instance, disputes concerning maritime navigation).