203
Arbitration, the Tribunal would have not needed to first render a decision on sovereignty to identify the coastal State.
57
3.2 The Determination of the Real Dispute Underlying
Mauritius’ First and Second Submissions
Leaving aside the absence of any explanation for the found dependence of the identity of the coastal State on the land sovereignty dispute as well as the possibility for
the Tribunal to adopt a de facto approach, the primary concern of the majority for
the determination of the ‘real’ dispute underlying Mauritius’ first and second submissions casts doubts.
Whereas it is for the courts and tribunals to ascertain the real dispute underlying
a case, in the Chagos Marine Protected Area Arbitration the search for the ‘real
dispute’ seemingly contradicts the premise of the majority since, as a result of that
premise, there would have been no need for such a search. It seems that the majority
at first perceived the identification of the coastal State as a matter falling within the
scope of jurisdiction of courts and tribunals convened pursuant to Part XV UNCLOS:
the identity of the coastal State had to be determined “for the purposes of the
Convention”.
58
Even though the majority deemed it necessary to apply sources of
law other than the international law of the sea and to address matters not relating to
the interpretation and application of the UNCLOS, like the land sovereignty dispute
over the Chagos Archipelago, it acknowledged an extension of jurisdiction to “ancillary determinations of law as are necessary to resolve the dispute presented”.
59
Following such a premise the majority should have ruled that the Tribunal had
jurisdiction over Mauritius’ first and second submissions. Had the solution of the
land sovereignty matter been actually necessary to determine the identity of the
coastal State for the purposes of the UNCLOS, the case would have fallen exactly
within the hypothesis of jurisdiction extending to “ancillary determinations of law”.
Thus it is hard to understand why the Tribunal eventually concerned itself with the
determination of the ‘real dispute’.
Furthermore, the determination of the real dispute risks proving deceptive as
regards the identification of the ancillary matter, which could be easily considered
as the real dispute because of its logic or legal importance for the solution of the
Tzeng (2016), p. 256, suggesting that Article 293(1) UNCLOS would have been applied unnecessarily as well as incorrectly, since those cases would have fallen anyway within the scope of jurisdiction of the UNCLOS tribunals, on the basis of other UNCLOS provisions.
57 South China Sea Arbitration, Award on Jurisdiction and Admissibility, 29 October 2015, para.
153.
58 Chagos Marine Protected Area Arbitration, para. 203.
59 Ibidem, para. 220.
The Interpretation of the United Nations Convention on the Law of the Sea…
Arbitration, the Tribunal would have not needed to first render a decision on sovereignty to identify the coastal State.
57
3.2 The Determination of the Real Dispute Underlying
Mauritius’ First and Second Submissions
Leaving aside the absence of any explanation for the found dependence of the identity of the coastal State on the land sovereignty dispute as well as the possibility for
the Tribunal to adopt a de facto approach, the primary concern of the majority for
the determination of the ‘real’ dispute underlying Mauritius’ first and second submissions casts doubts.
Whereas it is for the courts and tribunals to ascertain the real dispute underlying
a case, in the Chagos Marine Protected Area Arbitration the search for the ‘real
dispute’ seemingly contradicts the premise of the majority since, as a result of that
premise, there would have been no need for such a search. It seems that the majority
at first perceived the identification of the coastal State as a matter falling within the
scope of jurisdiction of courts and tribunals convened pursuant to Part XV UNCLOS:
the identity of the coastal State had to be determined “for the purposes of the
Convention”.
58
Even though the majority deemed it necessary to apply sources of
law other than the international law of the sea and to address matters not relating to
the interpretation and application of the UNCLOS, like the land sovereignty dispute
over the Chagos Archipelago, it acknowledged an extension of jurisdiction to “ancillary determinations of law as are necessary to resolve the dispute presented”.
59
Following such a premise the majority should have ruled that the Tribunal had
jurisdiction over Mauritius’ first and second submissions. Had the solution of the
land sovereignty matter been actually necessary to determine the identity of the
coastal State for the purposes of the UNCLOS, the case would have fallen exactly
within the hypothesis of jurisdiction extending to “ancillary determinations of law”.
Thus it is hard to understand why the Tribunal eventually concerned itself with the
determination of the ‘real dispute’.
Furthermore, the determination of the real dispute risks proving deceptive as
regards the identification of the ancillary matter, which could be easily considered
as the real dispute because of its logic or legal importance for the solution of the
Tzeng (2016), p. 256, suggesting that Article 293(1) UNCLOS would have been applied unnecessarily as well as incorrectly, since those cases would have fallen anyway within the scope of jurisdiction of the UNCLOS tribunals, on the basis of other UNCLOS provisions.
57 South China Sea Arbitration, Award on Jurisdiction and Admissibility, 29 October 2015, para.
153.
58 Chagos Marine Protected Area Arbitration, para. 203.
59 Ibidem, para. 220.
The Interpretation of the United Nations Convention on the Law of the Sea…