195
of the Chagos Archipelago and covering an area of more than half a million square
kilometres.
21
Mauritius promptly objected to the proclamation of the Marine
Protected Area. It claimed that the United Kingdom had taken the decision to create
the Area without consultation with or the consent of Mauritius and with disregard
for the right of settlement of Mauritians in the Chagos Archipelago, including the
right of Mauritians of Chagossian origin to return. Thus, Mauritius declared that it
did not recognise the Marine Protected Area, also considering that the Chagos
Archipelago should have been returned to Mauritius in 2016 upon the expiry of the
aforementioned—allegedly unlawful—BIOT Agreement between the United
Kingdom and the United States.
22
Mauritius made four submissions before the Arbitral Tribunal,
23
but only the
first, second and fourth claims properly concerned the establishment of the Marine
Protected Area: consequently, this chapter will mainly focus on them.
24
Firstly,
Mauritius requested the Tribunal to state that the United Kingdom was not the
coastal State under the UNCLOS and therefore was not entitled to declare the
Marine Protected Area as well as other maritime zones. Secondly, Mauritius
claimed, on the basis of the commitments that the United Kingdom had allegedly
made, to have certain rights as a coastal State under the UNCLOS and hence that
the United Kingdom was not entitled to unilaterally declare a marine protected area
or other maritime zones. Thirdly, Mauritius requested the Tribunal to order that the
United Kingdom abstain from any step possibly preventing the Commission on the
Limits of the Continental Shelf from making recommendations to Mauritius with
regard to the Chagos Archipelago.
25
Fourthly, Mauritius submitted that the United
Kingdom had breached substantive and procedural obligations under the UNCLOS
as well as the Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 Relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks of 4 August 1995 (henceforth, the 1995 Fish Stocks Agreement).
26
In
21 For some initial remarks on the establishment of the Marine Protected Area see Sand (2010).
22 Chagos Marine Protected Area Arbitration, paras 148–154.
23 Ibidem, para. 158. For an analysis of Mauritius’ submissions see Papanicolopulu (2011).
24 As will be seen shortly, Mauritius’ third submission was more broadly concerned with proceedings before the Commission on the Limits of the Continental Shelf.
25 The Arbitral Tribunal eventually found that, in this regard, there was no dispute between
Mauritius and the United Kingdom (Chagos Marine Protected Area Arbitration, para. 349).
Indeed, Mauritius had not originally included this submission in the Notification and Statement of
Claim of 20 December 2010, but added it during the proceedings, when it felt the risk that the
United Kingdom would raise objections to its submissions before the Commission on the Limits
of the Continental Shelf. Mauritius inferred such a risk from the United Kingdom statement that
Mauritius was not the coastal State in respect of the Chagos Archipelago and thus would not have
any standing before the Commission on the Limits of the Continental Shelf. Yet, the Tribunal contextualised the statement and remarked on the general willingness of Mauritius and the United
Kingdom to adopt a “sovereignty umbrella” approach with respect to the submissions to the
Commission on the Limits of the Continental Shelf (ibidem, paras 331–350).
26 Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling
The Interpretation of the United Nations Convention on the Law of the Sea…
of the Chagos Archipelago and covering an area of more than half a million square
kilometres.
21
Mauritius promptly objected to the proclamation of the Marine
Protected Area. It claimed that the United Kingdom had taken the decision to create
the Area without consultation with or the consent of Mauritius and with disregard
for the right of settlement of Mauritians in the Chagos Archipelago, including the
right of Mauritians of Chagossian origin to return. Thus, Mauritius declared that it
did not recognise the Marine Protected Area, also considering that the Chagos
Archipelago should have been returned to Mauritius in 2016 upon the expiry of the
aforementioned—allegedly unlawful—BIOT Agreement between the United
Kingdom and the United States.
22
Mauritius made four submissions before the Arbitral Tribunal,
23
but only the
first, second and fourth claims properly concerned the establishment of the Marine
Protected Area: consequently, this chapter will mainly focus on them.
24
Firstly,
Mauritius requested the Tribunal to state that the United Kingdom was not the
coastal State under the UNCLOS and therefore was not entitled to declare the
Marine Protected Area as well as other maritime zones. Secondly, Mauritius
claimed, on the basis of the commitments that the United Kingdom had allegedly
made, to have certain rights as a coastal State under the UNCLOS and hence that
the United Kingdom was not entitled to unilaterally declare a marine protected area
or other maritime zones. Thirdly, Mauritius requested the Tribunal to order that the
United Kingdom abstain from any step possibly preventing the Commission on the
Limits of the Continental Shelf from making recommendations to Mauritius with
regard to the Chagos Archipelago.
25
Fourthly, Mauritius submitted that the United
Kingdom had breached substantive and procedural obligations under the UNCLOS
as well as the Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 Relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks of 4 August 1995 (henceforth, the 1995 Fish Stocks Agreement).
26
In
21 For some initial remarks on the establishment of the Marine Protected Area see Sand (2010).
22 Chagos Marine Protected Area Arbitration, paras 148–154.
23 Ibidem, para. 158. For an analysis of Mauritius’ submissions see Papanicolopulu (2011).
24 As will be seen shortly, Mauritius’ third submission was more broadly concerned with proceedings before the Commission on the Limits of the Continental Shelf.
25 The Arbitral Tribunal eventually found that, in this regard, there was no dispute between
Mauritius and the United Kingdom (Chagos Marine Protected Area Arbitration, para. 349).
Indeed, Mauritius had not originally included this submission in the Notification and Statement of
Claim of 20 December 2010, but added it during the proceedings, when it felt the risk that the
United Kingdom would raise objections to its submissions before the Commission on the Limits
of the Continental Shelf. Mauritius inferred such a risk from the United Kingdom statement that
Mauritius was not the coastal State in respect of the Chagos Archipelago and thus would not have
any standing before the Commission on the Limits of the Continental Shelf. Yet, the Tribunal contextualised the statement and remarked on the general willingness of Mauritius and the United
Kingdom to adopt a “sovereignty umbrella” approach with respect to the submissions to the
Commission on the Limits of the Continental Shelf (ibidem, paras 331–350).
26 Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling
The Interpretation of the United Nations Convention on the Law of the Sea…