204
issue at stake.
60
The Tribunal acknowledged that a “minor issue of territorial sovereignty” could be ancillary to a dispute concerning the interpretation and application
of the UNCLOS,
61
but held that a dispute not relating to UNCLOS interpretation or
application did not fall within their jurisdiction just by reason of “an incidental connection between the dispute and some matter regulated by the Convention”.
62
The
majority found precisely that the identification of the coastal State for the purposes
of the UNCLOS was only one aspect of the larger dispute relating to sovereignty
over the Chagos Archipelago.
63
It is hardly conceivable that an ancillary matter to be necessarily determined for
the settlement of a dispute may be lesser than the dependent dispute. Rather, the
settlement of a dispute will reasonably depend on the solution of a major matter and
be unavoidably one aspect thereof. Otherwise, there would difficultly be a logic or
legal dependence of the main issue on the ancillary one. The determination of an
ancillary matter will probably be necessary for the solution of several issues and
thus the latter might be considered as aspects of the former.
3.3 The Tribunal’s Approach in Determining That It Had
Jurisdiction in Relation to Mauritius’ Fourth Submission
The majority’s determination of the real dispute is not convincing also because it
abstained from explaining the difference between the real dispute underlying
Mauritius’ first and second submissions, on the one hand, and the real dispute
underlying Mauritius’ fourth submission, on the other. The Tribunal’s approach to
determining its jurisdiction in relation to Mauritius’ fourth submission was therefore incongruous with the reasoning underpinning the dismissal of Mauritius’ first
and second submissions by the majority. The Tribunal found that the identification
of the coastal State under Mauritius’ first and second submissions was one aspect of
the predominant dispute relating to sovereignty over the Chagos Archipelago, but
held that the dispute pertaining to the lawfulness of the declaration of the Marine
Protected Area under Mauritius’ fourth submission was distinct from the territorial
sovereignty dispute.
64
As a consequence, the Tribunal unanimously held that it had
jurisdiction in relation to Mauritius’ fourth submission.
In other words, whereas the majority was concerned about the relevance of the
land sovereignty dispute to Mauritius’ first and second submissions, the Tribunal
60 Indeed, as pointed out by Talmon (2016), p. 933–934, “any evaluation of where the ‘real weight’
of a dispute lies is an inherently subjective exercise”.
61 Chagos Marine Protected Area Arbitration, para. 221. In this regard, see Crosato Neumann
(2015), defining the differentiation between major and minor sovereignty disputes as a “very subjective” determination.
62 Chagos Marine Protected Area Arbitration, para. 220.
63 Ibidem, paras 206–212.
64 Ibidem, para. 210.
M. Gervasi
issue at stake.
60
The Tribunal acknowledged that a “minor issue of territorial sovereignty” could be ancillary to a dispute concerning the interpretation and application
of the UNCLOS,
61
but held that a dispute not relating to UNCLOS interpretation or
application did not fall within their jurisdiction just by reason of “an incidental connection between the dispute and some matter regulated by the Convention”.
62
The
majority found precisely that the identification of the coastal State for the purposes
of the UNCLOS was only one aspect of the larger dispute relating to sovereignty
over the Chagos Archipelago.
63
It is hardly conceivable that an ancillary matter to be necessarily determined for
the settlement of a dispute may be lesser than the dependent dispute. Rather, the
settlement of a dispute will reasonably depend on the solution of a major matter and
be unavoidably one aspect thereof. Otherwise, there would difficultly be a logic or
legal dependence of the main issue on the ancillary one. The determination of an
ancillary matter will probably be necessary for the solution of several issues and
thus the latter might be considered as aspects of the former.
3.3 The Tribunal’s Approach in Determining That It Had
Jurisdiction in Relation to Mauritius’ Fourth Submission
The majority’s determination of the real dispute is not convincing also because it
abstained from explaining the difference between the real dispute underlying
Mauritius’ first and second submissions, on the one hand, and the real dispute
underlying Mauritius’ fourth submission, on the other. The Tribunal’s approach to
determining its jurisdiction in relation to Mauritius’ fourth submission was therefore incongruous with the reasoning underpinning the dismissal of Mauritius’ first
and second submissions by the majority. The Tribunal found that the identification
of the coastal State under Mauritius’ first and second submissions was one aspect of
the predominant dispute relating to sovereignty over the Chagos Archipelago, but
held that the dispute pertaining to the lawfulness of the declaration of the Marine
Protected Area under Mauritius’ fourth submission was distinct from the territorial
sovereignty dispute.
64
As a consequence, the Tribunal unanimously held that it had
jurisdiction in relation to Mauritius’ fourth submission.
In other words, whereas the majority was concerned about the relevance of the
land sovereignty dispute to Mauritius’ first and second submissions, the Tribunal
60 Indeed, as pointed out by Talmon (2016), p. 933–934, “any evaluation of where the ‘real weight’
of a dispute lies is an inherently subjective exercise”.
61 Chagos Marine Protected Area Arbitration, para. 221. In this regard, see Crosato Neumann
(2015), defining the differentiation between major and minor sovereignty disputes as a “very subjective” determination.
62 Chagos Marine Protected Area Arbitration, para. 220.
63 Ibidem, paras 206–212.
64 Ibidem, para. 210.
M. Gervasi