217
5 A contrario. The Less the Land Sovereignty Dispute
Was Relevant, the Clearer the Interpretation
of the UNCLOS Was: The Obligation to Exchange
Views under Article 283
The impression that the degree of ambiguity of the interpretation of the UNCLOS
in the Chagos Marine Protected Area Arbitration is proportional to the relevance of
the land sovereignty dispute is corroborated by the unequivocal interpretation of a
provision weakly linked to the land sovereignty dispute: Article 283 UNCLOS concerning the obligation to exchange views. In particular, before proceeding to ascertain the compatibility of the Marine Protected Area with the UNCLOS under
Mauritius’ fourth submission, the Tribunal assessed whether the relevant requirements had been met: Article 283 UNCLOS stipulates that “[w]hen a dispute arises
[…] the parties to the dispute shall proceed expeditiously to an exchange of views
regarding its settlement by negotiation or other peaceful means”. In general terms,
that provision is procedural in nature and concerns the submission of a dispute to
courts and tribunals convened pursuant to Part XV UNCLOS.
In the Chagos Marine Protected Area Arbitration the Tribunal unambiguously
lowered the threshold under Article 283 UNCLOS.
111
In this connection, it is noteworthy that the provision came into consideration with exclusive respect to
Mauritius’ fourth submission, to which the Tribunal deemed the land sovereignty
dispute to be less relevant.
112
In the light of the above, it is reasonable to assume that
it is not by chance that the Tribunal made it easier to meet conditions with regard to
the ‘non-sovereignty’ submission.
The Tribunal stated that Article 283 UNCLOS would merely require the Parties
to consult about the means for solving their dispute, without in fact setting up negotiations or other forms of peaceful dispute settlement.
113
As a result, negotiations on
the substance of the dispute would not represent a prerequisite for recourse to the
compulsory procedure.
114
Moreover, under Article 283, the Parties would be obliged
neither to consult on all the peaceful means of dispute settlement nor to exactly
consider the compulsory procedure.
115
The Tribunal went further in considering the talks on the merits of the dispute as
exchanges of views on the means of dispute settlement. In particular, there had been
dialogue between the Parties about the need for the United Kingdom to discuss with
Mauritius the establishment of the Marine Protected Area in the Chagos Archipelago.
111 See also Klein (2016), p. 407; Nguyen (2016), pp. 140–142; Talmon (2016), pp. 930–932.
112 Chagos Marine Protected Area Arbitration, para. 354.
113 Ibidem, para. 378.
114 Ibidem, paras 378–381. The said interpretation was later confirmed in the Award on Jurisdiction
and Admissibility, 29 October 2015, issued in the South China Sea Arbitration, para. 333.
115 Chagos Marine Protected Area Arbitration, para. 385.
The Interpretation of the United Nations Convention on the Law of the Sea…
5 A contrario. The Less the Land Sovereignty Dispute
Was Relevant, the Clearer the Interpretation
of the UNCLOS Was: The Obligation to Exchange
Views under Article 283
The impression that the degree of ambiguity of the interpretation of the UNCLOS
in the Chagos Marine Protected Area Arbitration is proportional to the relevance of
the land sovereignty dispute is corroborated by the unequivocal interpretation of a
provision weakly linked to the land sovereignty dispute: Article 283 UNCLOS concerning the obligation to exchange views. In particular, before proceeding to ascertain the compatibility of the Marine Protected Area with the UNCLOS under
Mauritius’ fourth submission, the Tribunal assessed whether the relevant requirements had been met: Article 283 UNCLOS stipulates that “[w]hen a dispute arises
[…] the parties to the dispute shall proceed expeditiously to an exchange of views
regarding its settlement by negotiation or other peaceful means”. In general terms,
that provision is procedural in nature and concerns the submission of a dispute to
courts and tribunals convened pursuant to Part XV UNCLOS.
In the Chagos Marine Protected Area Arbitration the Tribunal unambiguously
lowered the threshold under Article 283 UNCLOS.
111
In this connection, it is noteworthy that the provision came into consideration with exclusive respect to
Mauritius’ fourth submission, to which the Tribunal deemed the land sovereignty
dispute to be less relevant.
112
In the light of the above, it is reasonable to assume that
it is not by chance that the Tribunal made it easier to meet conditions with regard to
the ‘non-sovereignty’ submission.
The Tribunal stated that Article 283 UNCLOS would merely require the Parties
to consult about the means for solving their dispute, without in fact setting up negotiations or other forms of peaceful dispute settlement.
113
As a result, negotiations on
the substance of the dispute would not represent a prerequisite for recourse to the
compulsory procedure.
114
Moreover, under Article 283, the Parties would be obliged
neither to consult on all the peaceful means of dispute settlement nor to exactly
consider the compulsory procedure.
115
The Tribunal went further in considering the talks on the merits of the dispute as
exchanges of views on the means of dispute settlement. In particular, there had been
dialogue between the Parties about the need for the United Kingdom to discuss with
Mauritius the establishment of the Marine Protected Area in the Chagos Archipelago.
111 See also Klein (2016), p. 407; Nguyen (2016), pp. 140–142; Talmon (2016), pp. 930–932.
112 Chagos Marine Protected Area Arbitration, para. 354.
113 Ibidem, para. 378.
114 Ibidem, paras 378–381. The said interpretation was later confirmed in the Award on Jurisdiction
and Admissibility, 29 October 2015, issued in the South China Sea Arbitration, para. 333.
115 Chagos Marine Protected Area Arbitration, para. 385.
The Interpretation of the United Nations Convention on the Law of the Sea…