209
297(3)(a) UNCLOS to the allegedly breached provisions relating to fisheries in the
exclusive economic zone.
The Tribunal accordingly ruled that it had jurisdiction in relation to the alleged
incompatibility of the Marine Protected Area with the other provisions of the
UNCLOS allegedly violated, except Article 55. The Tribunal held that that provision was basically aimed at defining the exclusive economic zone and thus was
absorbed by the scope of Mauritius’ alleged rights under Article 56 UNCLOS.
78
The
Tribunal therefore proceeded to assess the merits of the case with respect only to
Articles 2(3), 56(2), 194, and 300 UNCLOS.
79
4.1 The Influence of the Land Sovereignty Dispute
on the Determination of the Source of Mauritius’ Rights:
The Tribunal’s Cautiousness About the Application
of the Lancaster House Undertakings
As mentioned before, Mauritius contended that the establishment of the Marine
Protected Area was incompatible with, inter alia, Articles 2(3) and 56(2)
UNCLOS. Article 2(3) stipulates that the exercise of sovereignty over the territorial
sea is subject to the UNCLOS as well as other rules of international law. Article
56(2) provides that the coastal State is obliged, in exercising its rights and
78 Ibidem, para. 303.
79 Hereinafter the analysis will focus on Articles 2(3), 56(2) and 194 UNCLOS. The Tribunal paid
little attention to Article 300 such that it has no real bearing on the Award. As is well known, Article
300 UNCLOS stipulates that “States Parties shall fulfil in good faith the obligations assumed under
this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this
Convention in a manner which would not constitute an abuse of right”. Mauritius alleged that the
United Kingdom had breached the provision on the basis of the record of a meeting of the United
States with the BIOT officials in a leaked cable. Accordingly, it claimed that the proclamation of
the Marine Protected Area served in reality to fulfil the United Kingdom’s aim to prevent the
Chagos Islanders from resettling on the Archipelago rather than the protection and preservation of
the marine environment under Article 56(1)(b)(iii) UNCLOS (Chagos Marine Protected Area
Arbitration, paras 491–494). The Tribunal limited itself to not “consider[ing] it appropriate to
place weight on a record of such provenance” (ibidem, para. 542), without providing any further
explanation. In addition, the Tribunal just mentioned in passing the relevant English court’s decision finding “that the content of that meeting was not as recorded in the leaked cable” (ibidem).
Thus the expectation of a leading interpretation and application of Article 300 UNCLOS, as
expressed by Papanicolopulu (2011), p. 676, could scarcely be deemed to have been met, as also
Aksenova and Burke (2017), p. 15, observe. At the very maximum, leaving aside the lack of any
relevant clarification, one cannot but infer the inadmissibility of leaked cables as evidence in proceedings before courts and tribunals convened pursuant to Part XV UNCLOS. The minority too
abstained from taking a position on the admissibility of leaked cables as evidence, although it
disagreed with the majority over the latter’s conclusions on Article 300 UNCLOS: from a broader
perspective, the minority found a breach of the good faith principle under Article 300 UNCLOS
since the United Kingdom had disregarded the rights and interests of Mauritius in declaring the
Marine Protected Area (Dissenting and Concurring Opinion, paras 89–91).
The Interpretation of the United Nations Convention on the Law of the Sea…
297(3)(a) UNCLOS to the allegedly breached provisions relating to fisheries in the
exclusive economic zone.
The Tribunal accordingly ruled that it had jurisdiction in relation to the alleged
incompatibility of the Marine Protected Area with the other provisions of the
UNCLOS allegedly violated, except Article 55. The Tribunal held that that provision was basically aimed at defining the exclusive economic zone and thus was
absorbed by the scope of Mauritius’ alleged rights under Article 56 UNCLOS.
78
The
Tribunal therefore proceeded to assess the merits of the case with respect only to
Articles 2(3), 56(2), 194, and 300 UNCLOS.
79
4.1 The Influence of the Land Sovereignty Dispute
on the Determination of the Source of Mauritius’ Rights:
The Tribunal’s Cautiousness About the Application
of the Lancaster House Undertakings
As mentioned before, Mauritius contended that the establishment of the Marine
Protected Area was incompatible with, inter alia, Articles 2(3) and 56(2)
UNCLOS. Article 2(3) stipulates that the exercise of sovereignty over the territorial
sea is subject to the UNCLOS as well as other rules of international law. Article
56(2) provides that the coastal State is obliged, in exercising its rights and
78 Ibidem, para. 303.
79 Hereinafter the analysis will focus on Articles 2(3), 56(2) and 194 UNCLOS. The Tribunal paid
little attention to Article 300 such that it has no real bearing on the Award. As is well known, Article
300 UNCLOS stipulates that “States Parties shall fulfil in good faith the obligations assumed under
this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this
Convention in a manner which would not constitute an abuse of right”. Mauritius alleged that the
United Kingdom had breached the provision on the basis of the record of a meeting of the United
States with the BIOT officials in a leaked cable. Accordingly, it claimed that the proclamation of
the Marine Protected Area served in reality to fulfil the United Kingdom’s aim to prevent the
Chagos Islanders from resettling on the Archipelago rather than the protection and preservation of
the marine environment under Article 56(1)(b)(iii) UNCLOS (Chagos Marine Protected Area
Arbitration, paras 491–494). The Tribunal limited itself to not “consider[ing] it appropriate to
place weight on a record of such provenance” (ibidem, para. 542), without providing any further
explanation. In addition, the Tribunal just mentioned in passing the relevant English court’s decision finding “that the content of that meeting was not as recorded in the leaked cable” (ibidem).
Thus the expectation of a leading interpretation and application of Article 300 UNCLOS, as
expressed by Papanicolopulu (2011), p. 676, could scarcely be deemed to have been met, as also
Aksenova and Burke (2017), p. 15, observe. At the very maximum, leaving aside the lack of any
relevant clarification, one cannot but infer the inadmissibility of leaked cables as evidence in proceedings before courts and tribunals convened pursuant to Part XV UNCLOS. The minority too
abstained from taking a position on the admissibility of leaked cables as evidence, although it
disagreed with the majority over the latter’s conclusions on Article 300 UNCLOS: from a broader
perspective, the minority found a breach of the good faith principle under Article 300 UNCLOS
since the United Kingdom had disregarded the rights and interests of Mauritius in declaring the
Marine Protected Area (Dissenting and Concurring Opinion, paras 89–91).
The Interpretation of the United Nations Convention on the Law of the Sea…