205
eschewed the matter in ruling that it had jurisdiction in relation to Mauritius’ fourth
submission. The Tribunal limited itself to observing the existence of another dispute “with respect to the manner in which the [Marine Protected Area] was declared
and the implications of the [Marine Protected Area] for the Lancaster House
Undertakings”, without however clarifying why the land sovereignty issue was not
the ‘real dispute’ underlying also this submission, as it was with regard to Mauritius’
first and second submissions.
65
The fact that the United Kingdom characterised
Mauritius’ fourth submission as the ‘non sovereignty’ submission could have hardly
been decisive to that effect since it is for the courts and tribunals to determine the
real dispute of a case, as the Tribunal repeatedly affirmed.
66
It is far from clear how it is possible that Mauritius was interested in the land
sovereignty matter in claiming that the United Kingdom was not entitled to unilaterally declare the Marine Protected Area over the Chagos Archipelago, but no longer
or less interested in that land sovereignty matter in claiming the incompatibility of
the Area with the UNCLOS. In assessing the scope of jurisdiction with regard to
Mauritius’ first submission, the Tribunal held in general terms that it found “scant
evidence that Mauritius was specifically concerned with the United Kingdom’s
implementation of the [United Nations] Convention [on the Law of the Sea]”.
67
Nonetheless, the Tribunal eventually refrained from considering such “scant evidence” with respect to Mauritius’ fourth submission.
Indeed, it seems difficult, at a minimum, to draw a stark distinction 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
former and the latter were unavoidably intertwined. By way of illustration only, the
Tribunal admitted that the determination of the nature of the United Kingdom’s
undertakings was crucial both for Mauritius’ first and second submissions and for
Mauritius’ fourth submission.
68
Moreover, with respect to the obligation to exchange
views under Article 283 UNCLOS,
69
the Tribunal held that the United Kingdom was
aware of the existence of the dispute on the Marine Protected Area because Mauritius
not only claimed the need for bilateral talks to the end of the establishment thereof
but also expressed concerns for the impact of the Area on such matters as sovereignty and resettlement.
70
The Tribunal focussed on Article 297(3)(a) UNCLOS rather than demonstrating
that, despite the existence and importance of the land sovereignty dispute concerning the Chagos Archipelago, the real dispute underlying Mauritius’ fourth submission did actually lie in the interpretation and application of the UNCLOS under
Article 288. Article 297(3)(a) stipulates that, in the event of disputes about the interpretation or application of the UNCLOS with regard to fisheries, the coastal State
65 Ibidem, para. 210.
66 Ibidem, paras. 208 and 285.
67 Ibidem, para 211.
68 Ibidem, para. 418.
69 See infra, para. 5.
70 Chagos Marine Protected Area Arbitration, para. 382.
The Interpretation of the United Nations Convention on the Law of the Sea…
eschewed the matter in ruling that it had jurisdiction in relation to Mauritius’ fourth
submission. The Tribunal limited itself to observing the existence of another dispute “with respect to the manner in which the [Marine Protected Area] was declared
and the implications of the [Marine Protected Area] for the Lancaster House
Undertakings”, without however clarifying why the land sovereignty issue was not
the ‘real dispute’ underlying also this submission, as it was with regard to Mauritius’
first and second submissions.
65
The fact that the United Kingdom characterised
Mauritius’ fourth submission as the ‘non sovereignty’ submission could have hardly
been decisive to that effect since it is for the courts and tribunals to determine the
real dispute of a case, as the Tribunal repeatedly affirmed.
66
It is far from clear how it is possible that Mauritius was interested in the land
sovereignty matter in claiming that the United Kingdom was not entitled to unilaterally declare the Marine Protected Area over the Chagos Archipelago, but no longer
or less interested in that land sovereignty matter in claiming the incompatibility of
the Area with the UNCLOS. In assessing the scope of jurisdiction with regard to
Mauritius’ first submission, the Tribunal held in general terms that it found “scant
evidence that Mauritius was specifically concerned with the United Kingdom’s
implementation of the [United Nations] Convention [on the Law of the Sea]”.
67
Nonetheless, the Tribunal eventually refrained from considering such “scant evidence” with respect to Mauritius’ fourth submission.
Indeed, it seems difficult, at a minimum, to draw a stark distinction 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
former and the latter were unavoidably intertwined. By way of illustration only, the
Tribunal admitted that the determination of the nature of the United Kingdom’s
undertakings was crucial both for Mauritius’ first and second submissions and for
Mauritius’ fourth submission.
68
Moreover, with respect to the obligation to exchange
views under Article 283 UNCLOS,
69
the Tribunal held that the United Kingdom was
aware of the existence of the dispute on the Marine Protected Area because Mauritius
not only claimed the need for bilateral talks to the end of the establishment thereof
but also expressed concerns for the impact of the Area on such matters as sovereignty and resettlement.
70
The Tribunal focussed on Article 297(3)(a) UNCLOS rather than demonstrating
that, despite the existence and importance of the land sovereignty dispute concerning the Chagos Archipelago, the real dispute underlying Mauritius’ fourth submission did actually lie in the interpretation and application of the UNCLOS under
Article 288. Article 297(3)(a) stipulates that, in the event of disputes about the interpretation or application of the UNCLOS with regard to fisheries, the coastal State
65 Ibidem, para. 210.
66 Ibidem, paras. 208 and 285.
67 Ibidem, para 211.
68 Ibidem, para. 418.
69 See infra, para. 5.
70 Chagos Marine Protected Area Arbitration, para. 382.
The Interpretation of the United Nations Convention on the Law of the Sea…