213
The very need to take into account the preparatory work is questionable.
94
The
Tribunal abstained from providing any explanation for that modus procedendi but
the reference of both Mauritius and the United Kingdom to the 1956 Draft Articles.
95
It is here suggested that the ordinary meaning of the expression “other rules of
international law” alludes to both general international law and treaty law: the context of the terms and the object and purpose of the UNCLOS would not be in conflict with such a conclusion.
96
The application of the general rule of interpretation to
Article 2(3) would neither leave the meaning ambiguous or obscure nor lead to a
manifestly absurd or unreasonable result.
97
Even if one concedes the need to consider the negotiating history of Article 2(3),
the relevant interpretation by the majority is far from indisputable. For instance, the
minority disagreed and held that the 1956 Draft Articles showed that the phrase
“other rules of international law” had a broader scope, including general international law as well as treaty law, unilateral commitments and binding decisions of
international organisations.
98
In addition, despite the restrictive interpretation of the scope of the expression
“other rules of international law” in Article 2(3), the Tribunal eventually adopted an
extensive interpretation of the provision to incorporate the United Kingdom’s commitments.
99
According to the Tribunal, “general international law require[d] the
United Kingdom to act in good faith in its relations with Mauritius, including with
respect to undertakings”.
100
It is self-evident that, through the good faith principle,
any rule of international would fall within the ambit of Article 2(3) UNCLOS,
whether general or not: the interpretation of the phrase “other rules of international
law” as relating only to general norms would lose purport.
94 See also Colson and Vohrer (2015), p. 849, and Parlett (2017), p. 293. Weckel (2015) too is critical of the importance that the travaux préparatoires were generally given in the Award in the
Chagos Marine Protected Area Arbitration.
95 Chagos Marine Protected Area Arbitration, para. 515.
96 Under the heading “General rule of interpretation”, Article 31 of the 1969 Vienna Convention on
the Law of Treaties, needless to say, reads as follows: “[a] treaty shall be interpreted in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose”. It is commonly recognised that that provision reflects general international law. Indeed, the United Kingdom ratified the 1969 Vienna Convention on the
Law of Treaties on 25 January 1971 and Mauritius acceded to it on 18 January 1973.
97 It is well known that Article 32 of the 1969 Vienna Convention on the Law of Treaties stipulates
that “[r]ecourse may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusions, in order to confirm the meaning resulting from the application of article 31 [see supra, footnote 96], or to determine the meaning when
the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b)
Leads to a result which is manifestly absurd or unreasonable”.
98 Dissenting and Concurring Opinion, paras. 92–94. See also Talmon (2016), p. 938.
99 See also Parlett (2017), pp. 292 ff., especially 295–296, expressing concerns about the—probable—risk that the expansive approach the Tribunal adopted may eventually induce States “to
reconsider their commitment to Part XV Procedures and hence to the Convention itself”.
100 Chagos Marine Protected Area Arbitration, para. 517.
The Interpretation of the United Nations Convention on the Law of the Sea…
The very need to take into account the preparatory work is questionable.
94
The
Tribunal abstained from providing any explanation for that modus procedendi but
the reference of both Mauritius and the United Kingdom to the 1956 Draft Articles.
95
It is here suggested that the ordinary meaning of the expression “other rules of
international law” alludes to both general international law and treaty law: the context of the terms and the object and purpose of the UNCLOS would not be in conflict with such a conclusion.
96
The application of the general rule of interpretation to
Article 2(3) would neither leave the meaning ambiguous or obscure nor lead to a
manifestly absurd or unreasonable result.
97
Even if one concedes the need to consider the negotiating history of Article 2(3),
the relevant interpretation by the majority is far from indisputable. For instance, the
minority disagreed and held that the 1956 Draft Articles showed that the phrase
“other rules of international law” had a broader scope, including general international law as well as treaty law, unilateral commitments and binding decisions of
international organisations.
98
In addition, despite the restrictive interpretation of the scope of the expression
“other rules of international law” in Article 2(3), the Tribunal eventually adopted an
extensive interpretation of the provision to incorporate the United Kingdom’s commitments.
99
According to the Tribunal, “general international law require[d] the
United Kingdom to act in good faith in its relations with Mauritius, including with
respect to undertakings”.
100
It is self-evident that, through the good faith principle,
any rule of international would fall within the ambit of Article 2(3) UNCLOS,
whether general or not: the interpretation of the phrase “other rules of international
law” as relating only to general norms would lose purport.
94 See also Colson and Vohrer (2015), p. 849, and Parlett (2017), p. 293. Weckel (2015) too is critical of the importance that the travaux préparatoires were generally given in the Award in the
Chagos Marine Protected Area Arbitration.
95 Chagos Marine Protected Area Arbitration, para. 515.
96 Under the heading “General rule of interpretation”, Article 31 of the 1969 Vienna Convention on
the Law of Treaties, needless to say, reads as follows: “[a] treaty shall be interpreted in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose”. It is commonly recognised that that provision reflects general international law. Indeed, the United Kingdom ratified the 1969 Vienna Convention on the
Law of Treaties on 25 January 1971 and Mauritius acceded to it on 18 January 1973.
97 It is well known that Article 32 of the 1969 Vienna Convention on the Law of Treaties stipulates
that “[r]ecourse may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusions, in order to confirm the meaning resulting from the application of article 31 [see supra, footnote 96], or to determine the meaning when
the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b)
Leads to a result which is manifestly absurd or unreasonable”.
98 Dissenting and Concurring Opinion, paras. 92–94. See also Talmon (2016), p. 938.
99 See also Parlett (2017), pp. 292 ff., especially 295–296, expressing concerns about the—probable—risk that the expansive approach the Tribunal adopted may eventually induce States “to
reconsider their commitment to Part XV Procedures and hence to the Convention itself”.
100 Chagos Marine Protected Area Arbitration, para. 517.
The Interpretation of the United Nations Convention on the Law of the Sea…