202
The distinction between cases of disputed sovereignty and cases of undisputed
sovereignty, with respect to the identity of the ‘coastal State’, seems at least
questionable. It implies that the meaning of that term in the framework of the
UNCLOS depends on the relevant circumstances, namely on the existence of a land
sovereignty dispute as well as the jurisdiction of the courts and tribunals over it.
Rather, a constant adoption of the notion of coastal State as the State having jurisdiction over the land territory fronting a coast would render irrelevant any land
sovereignty matter in the identification of the coastal State. Thus the Tribunal missed
the opportunity to affirm the existence of a unique notion of the expression ‘coastal
State’.
Indeed, it may be argued that the Tribunal itself was not entirely convinced of
such a distinction between cases of disputed sovereignty and cases of undisputed
sovereignty. As mentioned above, with respect to Mauritius’ fourth submission the
Tribunal considered—albeit implicitly—the United Kingdom as the coastal State. It
is thus hard to believe that the factual notion of the ‘coastal State’ simply as the
State having a sea coast cannot apply to cases of disputed land sovereignty.
53
Otherwise, the Tribunal would have been unable to tacitly regard the United
Kingdom as the coastal State in dealing with Mauritius’ fourth submission.
Thirdly, had the majority chosen a factual approach, the question of the scope of
jurisdiction would probably not have come into consideration at all.
54
According to
the majority, that question arose from the existence of a dispute about sovereignty
over the Chagos Archipelago requiring “the application of rules of international law
lying outside the international law of the sea”.
55
Had the identification of the coastal
State been considered as a matter to be determined just de facto, it would have not
been necessary for the majority to apply any rule of international law for this purpose and thus to address—on the basis of their premise—the question of the scope
of jurisdiction.
56
In the words of the Arbitral Tribunal in the South China Sea
53 See Biad and Edynak (2016), p. 64.
54 Such solution is seemingly suggested also by Buga (2012), p. 77.
55 Chagos Marine Protected Area Arbitration, para. 203.
56 It is worth observing that the majority referred to the applicable law, rather than the real subject
matter: jurisdiction. It is well known that applicable law and jurisdiction should not be confused.
Article 293(1) UNCLOS stipulates that “[a] court or tribunal having jurisdiction … shall apply the
Convention and other rules of international law not incompatible with this Convention” (emphasis
added). The provision makes it clear that the scope of jurisdiction has to be primarily determined:
if courts and tribunals convened pursuant to Part XV UNCLOS have jurisdiction, then they will
apply not only the Convention but also other compatible rules of international law. Thus the identification of the coastal State should have been considered as dependent not on the “application of
rules of international law lying outside the international law of the sea” (Chagos Marine Protected
Area Arbitration, para. 203), but, if anything, on the solution of a matter lying outside international
law of the sea, which is to say a land sovereignty dispute. On the distinction to be drawn between
the question of applicable law and the question of jurisdiction see for instance Oxman (2015),
pp. 413–314. Still, there exist cases in which UNCLOS tribunals have seemingly expanded their
jurisdiction in virtue of Article 293(1). For an overview of the relevant case law see Parlett (2017),
pp. 285–291, and, also for further references, the chapter by Marotti in this volume. But see also
M. Gervasi
The distinction between cases of disputed sovereignty and cases of undisputed
sovereignty, with respect to the identity of the ‘coastal State’, seems at least
questionable. It implies that the meaning of that term in the framework of the
UNCLOS depends on the relevant circumstances, namely on the existence of a land
sovereignty dispute as well as the jurisdiction of the courts and tribunals over it.
Rather, a constant adoption of the notion of coastal State as the State having jurisdiction over the land territory fronting a coast would render irrelevant any land
sovereignty matter in the identification of the coastal State. Thus the Tribunal missed
the opportunity to affirm the existence of a unique notion of the expression ‘coastal
State’.
Indeed, it may be argued that the Tribunal itself was not entirely convinced of
such a distinction between cases of disputed sovereignty and cases of undisputed
sovereignty. As mentioned above, with respect to Mauritius’ fourth submission the
Tribunal considered—albeit implicitly—the United Kingdom as the coastal State. It
is thus hard to believe that the factual notion of the ‘coastal State’ simply as the
State having a sea coast cannot apply to cases of disputed land sovereignty.
53
Otherwise, the Tribunal would have been unable to tacitly regard the United
Kingdom as the coastal State in dealing with Mauritius’ fourth submission.
Thirdly, had the majority chosen a factual approach, the question of the scope of
jurisdiction would probably not have come into consideration at all.
54
According to
the majority, that question arose from the existence of a dispute about sovereignty
over the Chagos Archipelago requiring “the application of rules of international law
lying outside the international law of the sea”.
55
Had the identification of the coastal
State been considered as a matter to be determined just de facto, it would have not
been necessary for the majority to apply any rule of international law for this purpose and thus to address—on the basis of their premise—the question of the scope
of jurisdiction.
56
In the words of the Arbitral Tribunal in the South China Sea
53 See Biad and Edynak (2016), p. 64.
54 Such solution is seemingly suggested also by Buga (2012), p. 77.
55 Chagos Marine Protected Area Arbitration, para. 203.
56 It is worth observing that the majority referred to the applicable law, rather than the real subject
matter: jurisdiction. It is well known that applicable law and jurisdiction should not be confused.
Article 293(1) UNCLOS stipulates that “[a] court or tribunal having jurisdiction … shall apply the
Convention and other rules of international law not incompatible with this Convention” (emphasis
added). The provision makes it clear that the scope of jurisdiction has to be primarily determined:
if courts and tribunals convened pursuant to Part XV UNCLOS have jurisdiction, then they will
apply not only the Convention but also other compatible rules of international law. Thus the identification of the coastal State should have been considered as dependent not on the “application of
rules of international law lying outside the international law of the sea” (Chagos Marine Protected
Area Arbitration, para. 203), but, if anything, on the solution of a matter lying outside international
law of the sea, which is to say a land sovereignty dispute. On the distinction to be drawn between
the question of applicable law and the question of jurisdiction see for instance Oxman (2015),
pp. 413–314. Still, there exist cases in which UNCLOS tribunals have seemingly expanded their
jurisdiction in virtue of Article 293(1). For an overview of the relevant case law see Parlett (2017),
pp. 285–291, and, also for further references, the chapter by Marotti in this volume. But see also
M. Gervasi