200
Firstly, a de facto perspective on Mauritius’ first and second submissions would
have been coherent with the Tribunal’s reasoning relevant to Mauritius’ fourth submission, with respect to which the Tribunal seemingly adopted a factual approach
that it deemed, albeit implicitly, not to prejudice the land sovereignty dispute.
42
In
particular, as will be seen below, in ruling that it enjoyed jurisdiction in relation to
Mauritius’ fourth submission the Tribunal applied Article 297 on the assumption
that the United Kingdom was the coastal State.
43
The same may be observed with
respect to the merits: in assessing whether the declaration of the Marine Protected
Area was compatible with the UNCLOS, the Tribunal took into consideration the
obligations of the United Kingdom as the coastal State.
44
The possibility for the Tribunal to adopt a de facto approach accordant with its
reasoning concerning Mauritius’ fourth submission was markedly perceptible as
regards Mauritius’ second submission. In this connection, as mentioned above, the
Tribunal was asked to assess the entitlement of the United Kingdom to unilaterally
declare the Marine Protected Area, in spite of certain rights typical of a coastal State
that Mauritius allegedly had. Therefore, in its second submission, Mauritius was
only concerned with some attributes peculiar to a coastal State, regardless of the
identity of the coastal State as well as the determination of the sovereign State.
Indeed, as the minority rightly observed, the underlying assumption of Mauritius’
second submission was that “the United Kingdom had territorial sovereignty and
had ceded certain rights as the sovereign”.
45
a knotty issue. On the definition of the self-determination principle as a source of erga omnes
obligations see Papa (2014), pp. 53–58, and on the principle of self-determination as a constraint
upon the pre-eminence of the effectivité see Milano (2006), pp. 114–123.
42 In the case of the contrary, the majority’s decision not to rule that it had jurisdiction in relation to
Mauritius’ first and second submissions because of their close link with the land sovereignty dispute as the real dispute would make no sense.
43 See also Crosato Neumann (2015); Biad and Edynak (2016), p. 71; Aksenova and Burke (2017),
p. 26. As will be seen later, Article 297 UNCLOS concerns the exercise of sovereign rights by the
coastal State and its application thus presumes the identification thereof.
44 With this regard, see also Qu (2016), p. 47, and Aksenova and Burke (2017), p. 19.
45 Dissenting and Concurring Opinion, para. 19. Similarly, in the South China Sea Arbitration the
Arbitral Tribunal found that it had jurisdiction exactly on the basis of the premise that China was
correct as far as the sovereignty matter was concerned, as even the Philippines suggested: no land
sovereignty dispute was thus deemed to come into consideration in the case. See PCA, In the
Matter of the South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 153 (hereinafter, South China Sea Arbitration). Even though
in the South China Sea Arbitration the Arbitral Tribunal held that the case at stake was distinct
from the case in the Chagos Marine Protected Area Arbitration (ibidem), a comparison between
the assumption of the United Kingdom’ sovereignty under Mauritius’ fourth submission, on the
one hand, and the assumption of China’ sovereignty, on the other, makes it difficult to see such
difference. The assumption of the United Kingdom’ sovereignty allowed the Arbitral Tribunal to
rule that it had jurisdiction in relation to Mauritius’ fourth submission in the Chagos Marine
Protected Area Arbitration and the assumption of China’ sovereignty similarly allowed the Arbitral
Tribunal to rule that it had jurisdiction in the South China Sea Arbitration. It is hard to understand
why, in the Chagos Marine Protected Area Arbitration, the Arbitral Tribunal refrained from
M. Gervasi
Firstly, a de facto perspective on Mauritius’ first and second submissions would
have been coherent with the Tribunal’s reasoning relevant to Mauritius’ fourth submission, with respect to which the Tribunal seemingly adopted a factual approach
that it deemed, albeit implicitly, not to prejudice the land sovereignty dispute.
42
In
particular, as will be seen below, in ruling that it enjoyed jurisdiction in relation to
Mauritius’ fourth submission the Tribunal applied Article 297 on the assumption
that the United Kingdom was the coastal State.
43
The same may be observed with
respect to the merits: in assessing whether the declaration of the Marine Protected
Area was compatible with the UNCLOS, the Tribunal took into consideration the
obligations of the United Kingdom as the coastal State.
44
The possibility for the Tribunal to adopt a de facto approach accordant with its
reasoning concerning Mauritius’ fourth submission was markedly perceptible as
regards Mauritius’ second submission. In this connection, as mentioned above, the
Tribunal was asked to assess the entitlement of the United Kingdom to unilaterally
declare the Marine Protected Area, in spite of certain rights typical of a coastal State
that Mauritius allegedly had. Therefore, in its second submission, Mauritius was
only concerned with some attributes peculiar to a coastal State, regardless of the
identity of the coastal State as well as the determination of the sovereign State.
Indeed, as the minority rightly observed, the underlying assumption of Mauritius’
second submission was that “the United Kingdom had territorial sovereignty and
had ceded certain rights as the sovereign”.
45
a knotty issue. On the definition of the self-determination principle as a source of erga omnes
obligations see Papa (2014), pp. 53–58, and on the principle of self-determination as a constraint
upon the pre-eminence of the effectivité see Milano (2006), pp. 114–123.
42 In the case of the contrary, the majority’s decision not to rule that it had jurisdiction in relation to
Mauritius’ first and second submissions because of their close link with the land sovereignty dispute as the real dispute would make no sense.
43 See also Crosato Neumann (2015); Biad and Edynak (2016), p. 71; Aksenova and Burke (2017),
p. 26. As will be seen later, Article 297 UNCLOS concerns the exercise of sovereign rights by the
coastal State and its application thus presumes the identification thereof.
44 With this regard, see also Qu (2016), p. 47, and Aksenova and Burke (2017), p. 19.
45 Dissenting and Concurring Opinion, para. 19. Similarly, in the South China Sea Arbitration the
Arbitral Tribunal found that it had jurisdiction exactly on the basis of the premise that China was
correct as far as the sovereignty matter was concerned, as even the Philippines suggested: no land
sovereignty dispute was thus deemed to come into consideration in the case. See PCA, In the
Matter of the South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and
Admissibility, 29 October 2015, para. 153 (hereinafter, South China Sea Arbitration). Even though
in the South China Sea Arbitration the Arbitral Tribunal held that the case at stake was distinct
from the case in the Chagos Marine Protected Area Arbitration (ibidem), a comparison between
the assumption of the United Kingdom’ sovereignty under Mauritius’ fourth submission, on the
one hand, and the assumption of China’ sovereignty, on the other, makes it difficult to see such
difference. The assumption of the United Kingdom’ sovereignty allowed the Arbitral Tribunal to
rule that it had jurisdiction in relation to Mauritius’ fourth submission in the Chagos Marine
Protected Area Arbitration and the assumption of China’ sovereignty similarly allowed the Arbitral
Tribunal to rule that it had jurisdiction in the South China Sea Arbitration. It is hard to understand
why, in the Chagos Marine Protected Area Arbitration, the Arbitral Tribunal refrained from
M. Gervasi