196
turn, the United Kingdom requested the Tribunal to find itself without jurisdiction
at all or, in the alternative, to dismiss each of Mauritius’ claims.
27
As will be seen below, the Tribunal held that it enjoyed jurisdiction only in relation to Mauritius’ fourth submission, with respect just to some of the UNCLOS
provisions that Mauritius had invoked. On the merits, it found that the establishment
of the Marine Protected Area was incompatible with the UNCLOS as regards the
United Kingdom’s undertakings to ensure Mauritius the availability of fishing rights
in the territorial sea, to return the Chagos Archipelago to Mauritius when no longer
needed for defence purposes, and to return the benefit of any minerals or oil discovered in or near the Islands to Mauritius.
28
The dissenting and concurring opinion of
Judges Kateka and Wolfrum is attached to the Award.
29
In answering the question about the precedential value of the Chagos Marine
Protected Area Arbitration for the interpretation of the UNCLOS, this chapter
argues that the Award proves ambiguous by reason of the influence of the land sovereignty dispute over the Archipelago. It will be shown that the more the land sovereignty matter was relevant—or perceived to be relevant—to the issue at stake, the
more the interpretation of the UNCLOS is found to be ambivalent. As a result, a
clear-cut assessment of the authority of the Award for the interpretation of the
UNCLOS is far from persuasive.
30
From a broader perspective, the ambiguities in
the Award may explain why, so far, the consequences of the Award have been marginal with respect to the very existence of the Marine Protected Area and the land
sovereignty dispute over the Chagos Archipelago, including the above mentioned
matter of the military base on Diego Garcia.
Fish Stocks and Highly Migratory Fish Stocks, adopted on 4 August 1995 at New York and entered
into force on 11 December 2001, 2167 UNTS 3. The Agreement was adopted by the United
Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, convened by the
UN General Assembly (resolution 47/192, 22 December 1992) “with a view to promoting effective
implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks” (para. 2). For an overview of the Agreement see
Örebech et al. (1998), and Rayfuse (1999).
27 Chagos Marine Protected Area Arbitration, para. 159.
28 Ibidem, para. 547.
29 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom). Dissenting and
Concurring Opinion (hereinafter, Dissenting and Concurring Opinion).
30 It is well known that the precedential value of the decisions of international courts and tribunals
depends also on the quality and persuasiveness of the reasoning. In this regard, see ex pluribus
Mendelson (1998), p. 202, and Pellet (2012), p. 856.
M. Gervasi
turn, the United Kingdom requested the Tribunal to find itself without jurisdiction
at all or, in the alternative, to dismiss each of Mauritius’ claims.
27
As will be seen below, the Tribunal held that it enjoyed jurisdiction only in relation to Mauritius’ fourth submission, with respect just to some of the UNCLOS
provisions that Mauritius had invoked. On the merits, it found that the establishment
of the Marine Protected Area was incompatible with the UNCLOS as regards the
United Kingdom’s undertakings to ensure Mauritius the availability of fishing rights
in the territorial sea, to return the Chagos Archipelago to Mauritius when no longer
needed for defence purposes, and to return the benefit of any minerals or oil discovered in or near the Islands to Mauritius.
28
The dissenting and concurring opinion of
Judges Kateka and Wolfrum is attached to the Award.
29
In answering the question about the precedential value of the Chagos Marine
Protected Area Arbitration for the interpretation of the UNCLOS, this chapter
argues that the Award proves ambiguous by reason of the influence of the land sovereignty dispute over the Archipelago. It will be shown that the more the land sovereignty matter was relevant—or perceived to be relevant—to the issue at stake, the
more the interpretation of the UNCLOS is found to be ambivalent. As a result, a
clear-cut assessment of the authority of the Award for the interpretation of the
UNCLOS is far from persuasive.
30
From a broader perspective, the ambiguities in
the Award may explain why, so far, the consequences of the Award have been marginal with respect to the very existence of the Marine Protected Area and the land
sovereignty dispute over the Chagos Archipelago, including the above mentioned
matter of the military base on Diego Garcia.
Fish Stocks and Highly Migratory Fish Stocks, adopted on 4 August 1995 at New York and entered
into force on 11 December 2001, 2167 UNTS 3. The Agreement was adopted by the United
Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, convened by the
UN General Assembly (resolution 47/192, 22 December 1992) “with a view to promoting effective
implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks” (para. 2). For an overview of the Agreement see
Örebech et al. (1998), and Rayfuse (1999).
27 Chagos Marine Protected Area Arbitration, para. 159.
28 Ibidem, para. 547.
29 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom). Dissenting and
Concurring Opinion (hereinafter, Dissenting and Concurring Opinion).
30 It is well known that the precedential value of the decisions of international courts and tribunals
depends also on the quality and persuasiveness of the reasoning. In this regard, see ex pluribus
Mendelson (1998), p. 202, and Pellet (2012), p. 856.
M. Gervasi