208
4 The Alleged Incompatibility of the Marine Protected Area
with the UNCLOS: The Persistent Relevance of the Land
Sovereignty Dispute
In addition to plausibly explaining the said inconsistencies underlying—inter
alia—the Tribunal’s ruling that it had jurisdiction in relation to Mauritius’ fourth
submission, the influence of the land sovereignty dispute reveals the ambiguities in
the interpretation of the UNCLOS provisions pertaining to the merits of that submission. Before considering these ambiguities, it is necessary to describe the provisions of the UNCLOS involved since the Tribunal found that it enjoyed jurisdiction
only as regards certain claims. Mauritius had alleged that the establishment of the
Marine Protected Area was incompatible with the United Kingdom’s obligations
under Articles 2, 55, 56, 63, 64, 194, and 300 UNCLOS as well as Article 7 of the
1995 Fish Stocks Agreement.
The Tribunal found itself without jurisdiction as regards the alleged violations of
Articles 63 and 64 UNCLOS and Article 7 of the 1995 Fish Stocks Agreement.
76
These provisions triggered the application of the exception in Article 297(3)(a)
UNCLOS, which as mentioned before stipulates that the coastal State is not obliged
to accept the submission of a dispute concerning fisheries to the compulsory procedures entailing binding decisions insofar as such dispute relates to its sovereign
rights or the exercise thereof with respect to the living resources in the exclusive
economic zone. In particular, Articles 63 and 64 UNCLOS regulate the rights of the
coastal State with respect to stocks occurring in the exclusive economic zone of two
or more coastal States or both within the exclusive economic zone and in an area
beyond and adjacent to it, and to highly migratory stocks. Similarly, Article 7 of the
1995 Fish Stocks Agreement deals with compatible conservation and management
measures concerning straddling fish stocks and highly migratory fish stocks.
Be that as it may, the Tribunal excluded that the exception under Article 297(3)
(a) UNCLOS was a bar to having jurisdiction in relation to Mauritius’ fourth submission as a whole. Although the United Kingdom presented the establishment of
the Marine Protected Area as a measure relating to fisheries and thus as the exercise
of its sovereign rights on the living resources of the exclusive economic zone, which
would have entirely precluded the Tribunal’s jurisdiction in relation to Mauritius’
fourth submission by Article 297(3)(a), the Arbitral Tribunal characterised the
Marine Protected Area as a broader measure aimed at the conservation of the marine
environment. Such a definition was based on statements of the United Kingdom
confirming the width of the environmental purposes of the Marine Protected Area:
according to the Tribunal, those statements hampered the United Kingdom from
re-characterising the Marine Protected Area as a measure only pertaining to fisheries.
77
As a result, the Tribunal confined the effect of the exception under Article
76 Chagos Marine Protected Area Arbitration, paras 300–301.
77 Ibidem, paras 286–291.
M. Gervasi
4 The Alleged Incompatibility of the Marine Protected Area
with the UNCLOS: The Persistent Relevance of the Land
Sovereignty Dispute
In addition to plausibly explaining the said inconsistencies underlying—inter
alia—the Tribunal’s ruling that it had jurisdiction in relation to Mauritius’ fourth
submission, the influence of the land sovereignty dispute reveals the ambiguities in
the interpretation of the UNCLOS provisions pertaining to the merits of that submission. Before considering these ambiguities, it is necessary to describe the provisions of the UNCLOS involved since the Tribunal found that it enjoyed jurisdiction
only as regards certain claims. Mauritius had alleged that the establishment of the
Marine Protected Area was incompatible with the United Kingdom’s obligations
under Articles 2, 55, 56, 63, 64, 194, and 300 UNCLOS as well as Article 7 of the
1995 Fish Stocks Agreement.
The Tribunal found itself without jurisdiction as regards the alleged violations of
Articles 63 and 64 UNCLOS and Article 7 of the 1995 Fish Stocks Agreement.
76
These provisions triggered the application of the exception in Article 297(3)(a)
UNCLOS, which as mentioned before stipulates that the coastal State is not obliged
to accept the submission of a dispute concerning fisheries to the compulsory procedures entailing binding decisions insofar as such dispute relates to its sovereign
rights or the exercise thereof with respect to the living resources in the exclusive
economic zone. In particular, Articles 63 and 64 UNCLOS regulate the rights of the
coastal State with respect to stocks occurring in the exclusive economic zone of two
or more coastal States or both within the exclusive economic zone and in an area
beyond and adjacent to it, and to highly migratory stocks. Similarly, Article 7 of the
1995 Fish Stocks Agreement deals with compatible conservation and management
measures concerning straddling fish stocks and highly migratory fish stocks.
Be that as it may, the Tribunal excluded that the exception under Article 297(3)
(a) UNCLOS was a bar to having jurisdiction in relation to Mauritius’ fourth submission as a whole. Although the United Kingdom presented the establishment of
the Marine Protected Area as a measure relating to fisheries and thus as the exercise
of its sovereign rights on the living resources of the exclusive economic zone, which
would have entirely precluded the Tribunal’s jurisdiction in relation to Mauritius’
fourth submission by Article 297(3)(a), the Arbitral Tribunal characterised the
Marine Protected Area as a broader measure aimed at the conservation of the marine
environment. Such a definition was based on statements of the United Kingdom
confirming the width of the environmental purposes of the Marine Protected Area:
according to the Tribunal, those statements hampered the United Kingdom from
re-characterising the Marine Protected Area as a measure only pertaining to fisheries.
77
As a result, the Tribunal confined the effect of the exception under Article
76 Chagos Marine Protected Area Arbitration, paras 300–301.
77 Ibidem, paras 286–291.
M. Gervasi