216
In addition, the Tribunal considered the obligation of the United Kingdom to
refrain from unjustifiable interference under Article 194(4) “to be equivalent to the
obligation to give ‘due regard’, set out in Article 56(2), or the obligation of good
faith, that follows from Article 2(3)”.
107
As mentioned before, the Tribunal interpreted the ‘due regard’ and ‘good faith’ obligations as procedural requirements to
consult with the rights-holding States and exercise balance between contrasting
rights. Consequently, Article 194(4) required the United Kingdom to explain the
need for the establishment of the Marine Protected Area to Mauritius and to explore
less restrictive alternatives.
108
One might observe that the interpretation of the negative obligation under Article
194(4) as including a positive obligation would be fully consistent with a general
trend in international environmental law. The expansion of the corpus of procedural
obligations to protect the environment is well known: procedural requirements are
increasingly derived from traditionally substantive and negative obligations.
109
Nonetheless, the Tribunal abstained from providing any explanation about the
said interpretation of the obligation to refrain from unjustifiable interference, including any reference to the aforementioned trend in international environmental law.
Moreover, the negative obligation to refrain from unjustifiable interference was substituted at all for positive obligations. The Tribunal omitted to evaluate whether the
establishment of the Marine Protected Area constituted an unjustifiable interference
with Mauritius’ fishing rights.
That substitution allowed the Tribunal to abstain from assessing the substance of
the creation of the Marine Protected Area. It limited itself to “not exclud[ing] the
possibility that environmental considerations could potentially justify, for the purposes of Article 194(4), the infringement of Mauritian fishing rights in the territorial
sea”.
110
On the basis of the very wording of Article 194(4) UNCLOS one may at
least opine that the obligation to abstain from unjustifiable interference would have
primarily required an assessment on the substantive plane.
107 Chagos Marine Protected Area Arbitration, para. 540. In this regard, see Aksenova and Burke
(2017), p. 14, who consider the association of three differently worded provisions as an example
of harmonious interpretation.
108 Chagos Marine Protected Area Arbitration, para. 541.
109 By way of illustration only, suffice it to say that the provisions in the International Law
Commission’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities
(Yearbook of the International Law Commission 2001, Vol. II, part 2, p. 148 ff.) are mostly procedural in nature.
110 Chagos Marine Protected Area Arbitration, para. 541.
M. Gervasi
In addition, the Tribunal considered the obligation of the United Kingdom to
refrain from unjustifiable interference under Article 194(4) “to be equivalent to the
obligation to give ‘due regard’, set out in Article 56(2), or the obligation of good
faith, that follows from Article 2(3)”.
107
As mentioned before, the Tribunal interpreted the ‘due regard’ and ‘good faith’ obligations as procedural requirements to
consult with the rights-holding States and exercise balance between contrasting
rights. Consequently, Article 194(4) required the United Kingdom to explain the
need for the establishment of the Marine Protected Area to Mauritius and to explore
less restrictive alternatives.
108
One might observe that the interpretation of the negative obligation under Article
194(4) as including a positive obligation would be fully consistent with a general
trend in international environmental law. The expansion of the corpus of procedural
obligations to protect the environment is well known: procedural requirements are
increasingly derived from traditionally substantive and negative obligations.
109
Nonetheless, the Tribunal abstained from providing any explanation about the
said interpretation of the obligation to refrain from unjustifiable interference, including any reference to the aforementioned trend in international environmental law.
Moreover, the negative obligation to refrain from unjustifiable interference was substituted at all for positive obligations. The Tribunal omitted to evaluate whether the
establishment of the Marine Protected Area constituted an unjustifiable interference
with Mauritius’ fishing rights.
That substitution allowed the Tribunal to abstain from assessing the substance of
the creation of the Marine Protected Area. It limited itself to “not exclud[ing] the
possibility that environmental considerations could potentially justify, for the purposes of Article 194(4), the infringement of Mauritian fishing rights in the territorial
sea”.
110
On the basis of the very wording of Article 194(4) UNCLOS one may at
least opine that the obligation to abstain from unjustifiable interference would have
primarily required an assessment on the substantive plane.
107 Chagos Marine Protected Area Arbitration, para. 540. In this regard, see Aksenova and Burke
(2017), p. 14, who consider the association of three differently worded provisions as an example
of harmonious interpretation.
108 Chagos Marine Protected Area Arbitration, para. 541.
109 By way of illustration only, suffice it to say that the provisions in the International Law
Commission’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities
(Yearbook of the International Law Commission 2001, Vol. II, part 2, p. 148 ff.) are mostly procedural in nature.
110 Chagos Marine Protected Area Arbitration, para. 541.
M. Gervasi