214
The said ambiguities pertaining to the interpretation of Article 2(3) may be
viewed against the backdrop of the land sovereignty dispute. In fact, the merely
indirect reference to the United Kingdom’s undertakings through the good faith
principle attenuated their relevance to the alleged violation of Article 2(3) UNCLOS:
the provision required the United Kingdom to act in compliance not with its undertakings, but with the good faith principle. As a consequence, the alleged incompatibility was no longer between the creation of the Marine Protected Area and
Mauritius’ rights, but between the creation of the Marine Protected Area and the
United Kingdom’s obligation to act in good faith towards Mauritius, including with
regard to its own undertakings.
Consequently, the Tribunal did not need to assess the compatibility of the Marine
Protected Area with the UNCLOS on the substantive plane. The shift from Mauritius’
rights to the good faith principle allowed the Tribunal to transform the United
Kingdom’s substantive obligation to respect Mauritius’ rights into a procedural
obligation to consult with Mauritius and balance its own rights and interests with
those of Mauritius.
It was therefore easy for the Tribunal to affirm that the requirements of Articles
2(3) and 56(2) UNCLOS were “for all intents and purposes, equivalent”.
101
As mentioned before, Article 56(2) UNCLOS requires the coastal State to have due regard
to the rights and duties of other States in exercising its rights and performing its
duties in the exclusive economic zone. The Tribunal understandably held that the
“due regard” requirement, while depending on the specific rights at stake, entailed
“at least some consultation with the rights-holding State”:
102
it regarded the obligation under Article 56(2) as procedural in nature. The Tribunal found that, in declaring the Marine Protected Area, the United Kingdom had breached Articles 2(3) and
56(2) UNCLOS because it failed to fulfil the purposes of both consultations and the
balance.
103
4.3 Ambiguities in the Interpretation of Article 194 UNCLOS
In addition to Articles 2(3) and 56(2) UNCLOS, the Tribunal found that the declaration of the Marine Protected Area was incompatible with Article 194(4), as far as
Mauritius’ fishing rights in the territorial sea are concerned. The provision stipulates
that “[i]n taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried
out by States in the exercise of their rights and in pursuance of their duties”.
101 Ibidem, para. 520.
102 Ibidem, para. 519.
103 Ibidem, paras. 534–535.
M. Gervasi
The said ambiguities pertaining to the interpretation of Article 2(3) may be
viewed against the backdrop of the land sovereignty dispute. In fact, the merely
indirect reference to the United Kingdom’s undertakings through the good faith
principle attenuated their relevance to the alleged violation of Article 2(3) UNCLOS:
the provision required the United Kingdom to act in compliance not with its undertakings, but with the good faith principle. As a consequence, the alleged incompatibility was no longer between the creation of the Marine Protected Area and
Mauritius’ rights, but between the creation of the Marine Protected Area and the
United Kingdom’s obligation to act in good faith towards Mauritius, including with
regard to its own undertakings.
Consequently, the Tribunal did not need to assess the compatibility of the Marine
Protected Area with the UNCLOS on the substantive plane. The shift from Mauritius’
rights to the good faith principle allowed the Tribunal to transform the United
Kingdom’s substantive obligation to respect Mauritius’ rights into a procedural
obligation to consult with Mauritius and balance its own rights and interests with
those of Mauritius.
It was therefore easy for the Tribunal to affirm that the requirements of Articles
2(3) and 56(2) UNCLOS were “for all intents and purposes, equivalent”.
101
As mentioned before, Article 56(2) UNCLOS requires the coastal State to have due regard
to the rights and duties of other States in exercising its rights and performing its
duties in the exclusive economic zone. The Tribunal understandably held that the
“due regard” requirement, while depending on the specific rights at stake, entailed
“at least some consultation with the rights-holding State”:
102
it regarded the obligation under Article 56(2) as procedural in nature. The Tribunal found that, in declaring the Marine Protected Area, the United Kingdom had breached Articles 2(3) and
56(2) UNCLOS because it failed to fulfil the purposes of both consultations and the
balance.
103
4.3 Ambiguities in the Interpretation of Article 194 UNCLOS
In addition to Articles 2(3) and 56(2) UNCLOS, the Tribunal found that the declaration of the Marine Protected Area was incompatible with Article 194(4), as far as
Mauritius’ fishing rights in the territorial sea are concerned. The provision stipulates
that “[i]n taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried
out by States in the exercise of their rights and in pursuance of their duties”.
101 Ibidem, para. 520.
102 Ibidem, para. 519.
103 Ibidem, paras. 534–535.
M. Gervasi