207
notwithstanding, the Tribunal proceeded to ascertain that Mauritius’ fourth submission fell within the scope of Article 297(1)(c). That provision stipulates that disputes on the interpretation or application of the UNCLOS with regard to the exercise
of the rights and jurisdiction of the coastal State shall be subject to the compulsory
procedures entailing binding decisions when the coastal State has allegedly violated
international rules and standards for the protection of the environment.
In the light of the aforementioned doubts arising from the Tribunal disregarding
the land sovereignty dispute in ruling that it had jurisdiction in relation to Mauritius’
fourth submission, it is arguable that the—redundant—application of Article 297(1)
(c) was an effort to corroborate the basis for that jurisdiction. The broadening—and
unconvincing—interpretation of Article 297(1)(c) UNCLOS confirms that
impression.
The Tribunal seemingly deemed a dispute concerning the violation of international rules and standards for the protection of the environment under Article 297(1)
(c) to be equivalent to a dispute concerning the breach of non-environmental obligations due to the adoption of an environmental measure. In other words, the Tribunal
missed the point that it was the United Kingdom that, in declaring the Marine
Protected Area, adopted a measure for the protection of the environment. Such environmental measure was allegedly in conflict with the United Kingdom’s obligations
concerning Mauritius’ fishing rights, the undertakings to return the Chagos
Archipelago and the benefit of any minerals or oil discovered in or near the
Archipelago to Mauritius as well as the obligation to refrain from unjustifiably
interfering with activities carried out by Mauritius in the territorial sea. What was at
stake was the alleged violation of those obligations and undertakings of the United
Kingdom because of the adoption of an environmental measure, rather than the
alleged violation of international rules and standards for the protection of the
environment.
75
It also held that the provision was placed in an article concerning limitations because of the relevant procedural safeguards then included in Article 294 UNCLOS (ibidem, paras. 309–315). The
Tribunal eventually found that Article 297(1) expanded the scope of jurisdiction through the reference to sources of international law beyond the UNCLOS under each of the three cases there specified (ibidem, para. 316). On the relationship between Article 288(1) and Article 297 UNCLOS see
also Nguyen (2016), pp. 135–139.
75 It is therefore immaterial that the Tribunal held that, in Article 297(1)(c), the expression “international rules and standards for the protection of the environment” included procedural constraints,
in addition to the substantive ones (Chagos Marine Protected Area Arbitration, para. 322).
Regardless of the procedural or substantive nature of the obligations that the United Kingdom had
allegedly breached, they did not relate to the protection of the environment.
The Interpretation of the United Nations Convention on the Law of the Sea…
notwithstanding, the Tribunal proceeded to ascertain that Mauritius’ fourth submission fell within the scope of Article 297(1)(c). That provision stipulates that disputes on the interpretation or application of the UNCLOS with regard to the exercise
of the rights and jurisdiction of the coastal State shall be subject to the compulsory
procedures entailing binding decisions when the coastal State has allegedly violated
international rules and standards for the protection of the environment.
In the light of the aforementioned doubts arising from the Tribunal disregarding
the land sovereignty dispute in ruling that it had jurisdiction in relation to Mauritius’
fourth submission, it is arguable that the—redundant—application of Article 297(1)
(c) was an effort to corroborate the basis for that jurisdiction. The broadening—and
unconvincing—interpretation of Article 297(1)(c) UNCLOS confirms that
impression.
The Tribunal seemingly deemed a dispute concerning the violation of international rules and standards for the protection of the environment under Article 297(1)
(c) to be equivalent to a dispute concerning the breach of non-environmental obligations due to the adoption of an environmental measure. In other words, the Tribunal
missed the point that it was the United Kingdom that, in declaring the Marine
Protected Area, adopted a measure for the protection of the environment. Such environmental measure was allegedly in conflict with the United Kingdom’s obligations
concerning Mauritius’ fishing rights, the undertakings to return the Chagos
Archipelago and the benefit of any minerals or oil discovered in or near the
Archipelago to Mauritius as well as the obligation to refrain from unjustifiably
interfering with activities carried out by Mauritius in the territorial sea. What was at
stake was the alleged violation of those obligations and undertakings of the United
Kingdom because of the adoption of an environmental measure, rather than the
alleged violation of international rules and standards for the protection of the
environment.
75
It also held that the provision was placed in an article concerning limitations because of the relevant procedural safeguards then included in Article 294 UNCLOS (ibidem, paras. 309–315). The
Tribunal eventually found that Article 297(1) expanded the scope of jurisdiction through the reference to sources of international law beyond the UNCLOS under each of the three cases there specified (ibidem, para. 316). On the relationship between Article 288(1) and Article 297 UNCLOS see
also Nguyen (2016), pp. 135–139.
75 It is therefore immaterial that the Tribunal held that, in Article 297(1)(c), the expression “international rules and standards for the protection of the environment” included procedural constraints,
in addition to the substantive ones (Chagos Marine Protected Area Arbitration, para. 322).
Regardless of the procedural or substantive nature of the obligations that the United Kingdom had
allegedly breached, they did not relate to the protection of the environment.
The Interpretation of the United Nations Convention on the Law of the Sea…