206
shall not be obliged to accept the submission of any dispute relating to its sovereign
rights or the exercise thereof with respect to living resources in the exclusive economic zone to the compulsory procedures entailing binding decisions.
With the aim of verifying whether jurisdiction in relation to Mauritius’ fourth
submission was precluded by Article 297(3)(a), the Tribunal just proceeded to
assess the scope and nature of the Marine Protected Area and the rights of Mauritius
allegedly violated, without any reference to the land sovereignty matter.
71
Having
found that Article 297(3)(a) was not a bar to jurisdiction, the Tribunal simply
declared that “a dispute over the [Marine Protected Area]’s alleged violation of
specific articles of the Convention [was] a dispute concerning the interpretation or
application of the Convention” and therefore found that it enjoyed jurisdiction in
relation to Mauritius’ fourth submission pursuant to Article 288(1) UNCLOS.
72
As
will be seen below, though, the “specific articles of the Convention” allegedly violated triggered Mauritius’ rights arising from the commitments that the United
Kingdom had made in return for the detachment of the Chagos Archipelago: in
assessing its jurisdiction with regard to Mauritius’ fourth submission the Tribunal
paid no heed to that connection.
73
Furthermore, owing to the difficulties for the Tribunal to demonstrate that, unlike
Mauritius’ first and second submissions, Mauritius’ fourth submission was not
intertwined with the land sovereignty matter, the Tribunal’s approach to the determination of jurisdiction in relation to Mauritius’ fourth submission proves inherently incoherent, regardless of any comparison with the reasoning underlying the
dismissal of Mauritius’ first and second submissions. In particular, in ruling that it
had jurisdiction in relation to Mauritius’ fourth submission, the Tribunal needlessly
applied Article 297(1)(c) UNCLOS.
The Tribunal held that Article 288(1) UNCLOS established its jurisdiction in
relation to the alleged incompatibility of the Marine Protected Area with the
UNCLOS and thus deemed it unnecessary to apply also Article 297(1)(c).
74
This
71 Ibidem, paras 283–285.
72 Ibidem, para. 318.
73 See also Qu (2016), pp. 43–44.
74 The Tribunal took the occasion to clarify, in general terms, the relationship between Article
288(1) and Article 297 UNCLOS. According to the Tribunal, if a dispute concerns the interpretation or application of the UNCLOS without falling within one of the exceptions under paragraphs
2 and 3 of Article 297, then the compulsory jurisdiction will flow from Article 288(1), because it
is unnecessary that the dispute also falls within one of the cases under Article 297(1) (Chagos
Marine Protected Area Arbitration, para. 317). Whereas paragraphs 2 and 3 of Article 297
UNCLOS provide limitations on the applicability of compulsory procedures entailing binding
decisions, paragraph 1 enumerates three cases when disputes concerning the interpretation or
application of the UNCLOS with regard to the exercise by a coastal State of its sovereign rights or
jurisdiction shall be subject to the compulsory procedures entailing binding decisions. The Tribunal
found that the text of Article 297(1) UNCLOS made it clear that the provision did not limit the
scope of jurisdiction to the three specified cases with respect to disputes concerning the exercise of
the sovereign rights and jurisdiction of a coastal State (ibidem, para. 308). Owing to the ambiguity
of Article 297(1), it is on the basis of the relevant negotiations and the emerging intent of the drafters that the Tribunal confirmed that the provision was not meant to limit the scope of jurisdiction.
M. Gervasi
shall not be obliged to accept the submission of any dispute relating to its sovereign
rights or the exercise thereof with respect to living resources in the exclusive economic zone to the compulsory procedures entailing binding decisions.
With the aim of verifying whether jurisdiction in relation to Mauritius’ fourth
submission was precluded by Article 297(3)(a), the Tribunal just proceeded to
assess the scope and nature of the Marine Protected Area and the rights of Mauritius
allegedly violated, without any reference to the land sovereignty matter.
71
Having
found that Article 297(3)(a) was not a bar to jurisdiction, the Tribunal simply
declared that “a dispute over the [Marine Protected Area]’s alleged violation of
specific articles of the Convention [was] a dispute concerning the interpretation or
application of the Convention” and therefore found that it enjoyed jurisdiction in
relation to Mauritius’ fourth submission pursuant to Article 288(1) UNCLOS.
72
As
will be seen below, though, the “specific articles of the Convention” allegedly violated triggered Mauritius’ rights arising from the commitments that the United
Kingdom had made in return for the detachment of the Chagos Archipelago: in
assessing its jurisdiction with regard to Mauritius’ fourth submission the Tribunal
paid no heed to that connection.
73
Furthermore, owing to the difficulties for the Tribunal to demonstrate that, unlike
Mauritius’ first and second submissions, Mauritius’ fourth submission was not
intertwined with the land sovereignty matter, the Tribunal’s approach to the determination of jurisdiction in relation to Mauritius’ fourth submission proves inherently incoherent, regardless of any comparison with the reasoning underlying the
dismissal of Mauritius’ first and second submissions. In particular, in ruling that it
had jurisdiction in relation to Mauritius’ fourth submission, the Tribunal needlessly
applied Article 297(1)(c) UNCLOS.
The Tribunal held that Article 288(1) UNCLOS established its jurisdiction in
relation to the alleged incompatibility of the Marine Protected Area with the
UNCLOS and thus deemed it unnecessary to apply also Article 297(1)(c).
74
This
71 Ibidem, paras 283–285.
72 Ibidem, para. 318.
73 See also Qu (2016), pp. 43–44.
74 The Tribunal took the occasion to clarify, in general terms, the relationship between Article
288(1) and Article 297 UNCLOS. According to the Tribunal, if a dispute concerns the interpretation or application of the UNCLOS without falling within one of the exceptions under paragraphs
2 and 3 of Article 297, then the compulsory jurisdiction will flow from Article 288(1), because it
is unnecessary that the dispute also falls within one of the cases under Article 297(1) (Chagos
Marine Protected Area Arbitration, para. 317). Whereas paragraphs 2 and 3 of Article 297
UNCLOS provide limitations on the applicability of compulsory procedures entailing binding
decisions, paragraph 1 enumerates three cases when disputes concerning the interpretation or
application of the UNCLOS with regard to the exercise by a coastal State of its sovereign rights or
jurisdiction shall be subject to the compulsory procedures entailing binding decisions. The Tribunal
found that the text of Article 297(1) UNCLOS made it clear that the provision did not limit the
scope of jurisdiction to the three specified cases with respect to disputes concerning the exercise of
the sovereign rights and jurisdiction of a coastal State (ibidem, para. 308). Owing to the ambiguity
of Article 297(1), it is on the basis of the relevant negotiations and the emerging intent of the drafters that the Tribunal confirmed that the provision was not meant to limit the scope of jurisdiction.
M. Gervasi