198
extends to ‘ancillary’ land sovereignty issues.
33
Both of them adopted a ‘submission
by submission approach’ and accordingly considered the Tribunal’s jurisdiction
with respect to each claim of Mauritius, rather than the dispute as a whole.
Nevertheless, in spite of that common position, the majority and minority reached
different conclusions.
34
Such a contrasting outcome in itself impinges upon the
precedential value of the Award.
35
The majority characterised Mauritius’ first and second submissions, respectively
concerning the United Kingdom’s entitlement as the coastal State to declare the
Marine Protected Area and to unilaterally do so despite the alleged rights of
Mauritius, as actually relating to the land sovereignty dispute over the Chagos
Archipelago. Thus the Tribunal found itself, by three votes to two, without jurisdiction. Instead, in the dissenting and concurring opinion, the minority characterised
Mauritius’ first and second submissions as relating to the interpretation of Article 56
UNCLOS dealing with rights, jurisdiction and duties of the coastal State in the
exclusive economic zone.
36
According to the minority, the Arbitral Tribunal had
jurisdiction in relation to the two submissions in question.
It is true that sometimes the attachment of separate opinions may enhance the
value of judgments. However, in the Chagos Marine Protected Area Arbitration, the
reasoning in both the Award and the dissenting and concurring opinion raises some
doubts thereby hindering the case from being a fundamental precedent as regards
the extension of jurisdiction of Part XV UNCLOS courts and tribunals to disputes
involving land sovereignty matters.
37
3.1 The Dependence of the Identity of the Coastal State
on the Land Sovereignty Dispute
It seems that in the Chagos Marine Protected Area Arbitration the Tribunal took for
granted the need for the settlement of the land sovereignty dispute: no alternative
approach to the determination of the coastal State for the purposes of UNCLOS
interpretation and application, including a factual one, was explored. With regard to
the reasoning in the Award, the majority abstained from explaining why the solution
of the land sovereignty dispute over the Chagos Archipelago was ancillary to the
identification of the coastal State, although the dismissal of Mauritius’ first and
second submissions rested upon such dependence. With regard to the reasoning in
the dissenting and concurring opinion, the minority too omitted to clarify why the
33 Chagos Marine Protected Area Arbitration, para. 220; Dissenting and Concurring Opinion,
para. 45.
34 See also Nguyen (2016), p. 132.
35 Ibidem, p. 135.
36 Dissenting and Concurring Opinion, respectively paras 45 and 47.
37 For a different but still critical viewpoint on the reasoning of the majority and the dissenting
judges see Nguyen (2016), pp. 129–135.
M. Gervasi
extends to ‘ancillary’ land sovereignty issues.
33
Both of them adopted a ‘submission
by submission approach’ and accordingly considered the Tribunal’s jurisdiction
with respect to each claim of Mauritius, rather than the dispute as a whole.
Nevertheless, in spite of that common position, the majority and minority reached
different conclusions.
34
Such a contrasting outcome in itself impinges upon the
precedential value of the Award.
35
The majority characterised Mauritius’ first and second submissions, respectively
concerning the United Kingdom’s entitlement as the coastal State to declare the
Marine Protected Area and to unilaterally do so despite the alleged rights of
Mauritius, as actually relating to the land sovereignty dispute over the Chagos
Archipelago. Thus the Tribunal found itself, by three votes to two, without jurisdiction. Instead, in the dissenting and concurring opinion, the minority characterised
Mauritius’ first and second submissions as relating to the interpretation of Article 56
UNCLOS dealing with rights, jurisdiction and duties of the coastal State in the
exclusive economic zone.
36
According to the minority, the Arbitral Tribunal had
jurisdiction in relation to the two submissions in question.
It is true that sometimes the attachment of separate opinions may enhance the
value of judgments. However, in the Chagos Marine Protected Area Arbitration, the
reasoning in both the Award and the dissenting and concurring opinion raises some
doubts thereby hindering the case from being a fundamental precedent as regards
the extension of jurisdiction of Part XV UNCLOS courts and tribunals to disputes
involving land sovereignty matters.
37
3.1 The Dependence of the Identity of the Coastal State
on the Land Sovereignty Dispute
It seems that in the Chagos Marine Protected Area Arbitration the Tribunal took for
granted the need for the settlement of the land sovereignty dispute: no alternative
approach to the determination of the coastal State for the purposes of UNCLOS
interpretation and application, including a factual one, was explored. With regard to
the reasoning in the Award, the majority abstained from explaining why the solution
of the land sovereignty dispute over the Chagos Archipelago was ancillary to the
identification of the coastal State, although the dismissal of Mauritius’ first and
second submissions rested upon such dependence. With regard to the reasoning in
the dissenting and concurring opinion, the minority too omitted to clarify why the
33 Chagos Marine Protected Area Arbitration, para. 220; Dissenting and Concurring Opinion,
para. 45.
34 See also Nguyen (2016), p. 132.
35 Ibidem, p. 135.
36 Dissenting and Concurring Opinion, respectively paras 45 and 47.
37 For a different but still critical viewpoint on the reasoning of the majority and the dissenting
judges see Nguyen (2016), pp. 129–135.
M. Gervasi