197
3 Ambiguities of the Award with Respect
to the Determination of the Scope of Jurisdiction of Part
XV UNCLOS Courts and Tribunals
It is in the determination of the scope of jurisdiction of courts and tribunals convened pursuant to Part XV UNCLOS that the utmost ambivalence of the Award
emerges. The Award does not provide only one answer to the question whether the
scope of jurisdiction of Part XV UNCLOS courts and tribunals includes land sovereignty matters involved in maritime disputes.
31
That question was crucial though,
since the relevance of the land sovereignty dispute to the Chagos Marine Protected
Area Arbitration depended precisely on the scope of jurisdiction of the Arbitral
Tribunal.
It is well known that Article 288(1) UNCLOS only stipulates that “any dispute
concerning the interpretation and application of this Convention” falls within the
jurisdiction of Part XV UNCLOS courts and tribunals. Seemingly, the provision just
indicates that ‘pure’ land sovereignty disputes, having by definition no links with
UNCLOS interpretation and application, fall outside the jurisdiction of courts and
tribunals convened pursuant to Part XV UNCLOS. It remains an open question as
to whether that jurisdiction extends to ‘mixed disputes’, where land sovereignty
claims are intertwined or concurrent with UNCLOS interpretation and
application.
32
There is no reference to land sovereignty disputes in the UNCLOS dispute settlement provisions, except Article 298(1)(a)(i) stipulating that disputes concerning sea
boundary delimitations or historic bays and titles, with respect to which States
declare not to accept compulsory procedures entailing binding decisions, are also
excluded from submission to conciliation under Annex V, section 2, UNCLOS, if
they involve “the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory”. However, Article
298(1)(a)(i) UNCLOS had no bearing on the Chagos Marine Protected Area
Arbitration, which did not deal with sea boundary delimitations or historic bays and
titles. Moreover, neither Mauritius nor the United Kingdom made any declaration
refusing compulsory procedures entailing binding decisions.
In principle, a contribution to the solution of the question about the scope of
jurisdiction of Part XV UNCLOS courts and tribunals as regards land sovereignty
disputes may be found in the majority and minority agreeing that that jurisdiction
31 Rather, Colson and Vohrer “believe the award will ultimately be remembered for upholding the
strict view that the states parties to the [United Nations] Convention [on the Law of the Sea] have
not authorized its dispute settlement bodies to decide questions of sovereignty over land territory”
(Colson and Vohrer 2015, p. 851).
32 Indeed, the question of the jurisdiction of courts and tribunals convened pursuant to Part XV
UNCLOS on ‘mixed disputes’ is hotly debated. In this connection, see Boyle (1997), pp. 44–46;
Buga (2012), Oxman (2015) p. 400.
The Interpretation of the United Nations Convention on the Law of the Sea…
3 Ambiguities of the Award with Respect
to the Determination of the Scope of Jurisdiction of Part
XV UNCLOS Courts and Tribunals
It is in the determination of the scope of jurisdiction of courts and tribunals convened pursuant to Part XV UNCLOS that the utmost ambivalence of the Award
emerges. The Award does not provide only one answer to the question whether the
scope of jurisdiction of Part XV UNCLOS courts and tribunals includes land sovereignty matters involved in maritime disputes.
31
That question was crucial though,
since the relevance of the land sovereignty dispute to the Chagos Marine Protected
Area Arbitration depended precisely on the scope of jurisdiction of the Arbitral
Tribunal.
It is well known that Article 288(1) UNCLOS only stipulates that “any dispute
concerning the interpretation and application of this Convention” falls within the
jurisdiction of Part XV UNCLOS courts and tribunals. Seemingly, the provision just
indicates that ‘pure’ land sovereignty disputes, having by definition no links with
UNCLOS interpretation and application, fall outside the jurisdiction of courts and
tribunals convened pursuant to Part XV UNCLOS. It remains an open question as
to whether that jurisdiction extends to ‘mixed disputes’, where land sovereignty
claims are intertwined or concurrent with UNCLOS interpretation and
application.
32
There is no reference to land sovereignty disputes in the UNCLOS dispute settlement provisions, except Article 298(1)(a)(i) stipulating that disputes concerning sea
boundary delimitations or historic bays and titles, with respect to which States
declare not to accept compulsory procedures entailing binding decisions, are also
excluded from submission to conciliation under Annex V, section 2, UNCLOS, if
they involve “the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory”. However, Article
298(1)(a)(i) UNCLOS had no bearing on the Chagos Marine Protected Area
Arbitration, which did not deal with sea boundary delimitations or historic bays and
titles. Moreover, neither Mauritius nor the United Kingdom made any declaration
refusing compulsory procedures entailing binding decisions.
In principle, a contribution to the solution of the question about the scope of
jurisdiction of Part XV UNCLOS courts and tribunals as regards land sovereignty
disputes may be found in the majority and minority agreeing that that jurisdiction
31 Rather, Colson and Vohrer “believe the award will ultimately be remembered for upholding the
strict view that the states parties to the [United Nations] Convention [on the Law of the Sea] have
not authorized its dispute settlement bodies to decide questions of sovereignty over land territory”
(Colson and Vohrer 2015, p. 851).
32 Indeed, the question of the jurisdiction of courts and tribunals convened pursuant to Part XV
UNCLOS on ‘mixed disputes’ is hotly debated. In this connection, see Boyle (1997), pp. 44–46;
Buga (2012), Oxman (2015) p. 400.
The Interpretation of the United Nations Convention on the Law of the Sea…