218
The Tribunal held that the associated notes and letters were sufficient for the requirement under Article 283(1) UNCLOS to be satisfied.
116
Nevertheless, in these notes and letters, the United Kingdom and Mauritius
referred to bilateral talks not as a means to settle the dispute over the Marine
Protected Area but as the object of that dispute. The Tribunal admitted the concrete
difficulties in drawing a stark distinction between consultations on the merits of a
dispute and consultations on the means of settlement.
117
It significantly referred to
the exchange of views in the Southern Bluefin Tuna case as an “idealized form”:
there, Australia, New Zealand, and Japan communicated among themselves about
whether it would be best to submit their dispute to the arbitration under the 1993
Convention for the Conservation of Southern Bluefin Tuna or the UNCLOS.
118
Be
that as it may, the Tribunal repeatedly ruled out that Article 283 UNCLOS would
require the Parties to exchange their views on the substance of the dispute.
119
6 The Chagos Marine Protected Area Arbitration
Beyond the International Law of the Sea
Owing to the illustrated ambiguities the precedential value of the Chagos Marine
Protected Area Arbitration for UNCLOS interpretation purposes is open to doubt.
Since the more the land sovereignty dispute was relevant to the law of the sea issue
at stake the more the UNCLOS interpretation proves to be ambivalent, it is plausible
to conclude that the influence of the land sovereignty dispute was the root cause of
the ambiguities in the Award.
The Tribunal was arguably cautious about issuing an Award potentially having a
bearing on the land sovereignty dispute on the Chagos Archipelago. As set out
before, the Tribunal ruled that it did not have jurisdiction in relation to the submis116 Ibidem, paras 383–385.
117 Ibidem, para. 381. The Tribunal’s extensive application of Article 283 UNCLOS seemingly
makes the obligation to exchange views very easy to be satisfied where the merits of the dispute
also concern an alleged obligation to consult on the conduct at stake. In the event, substantive talks
on the obligation to consult may be simply characterised as exchanges of views on negotiations as
a means of dispute settlement. The overlap between substantive talks and exchanges of views on
the means of dispute settlement risks impinging on the rationale itself of the obligation under
Article 283 UNCLOS. The provision is aimed at ensuring that all the Parties to a dispute be aware
of that dispute and the object thereof, so that the initiation of compulsory proceedings would not
be entirely unexpected (Chagos Marine Protected Area Arbitration, para. 382). As mentioned
before, in fact Mauritius and the United Kingdom never consulted about the means of dispute
settlement. Consequently, the doubt arises whether the United Kingdom was aware of the very
existence of a dispute to be settled as far as the Marine Protected Area was concerned.
118 Chagos Marine Protected Area Arbitration, paras 380–381.
119 The structure of sections 1 and 2 of Part XV UNCLOS drove the Tribunal to question whether
an obligation on substantive consultation existed outside the scope of Article 283 (Chagos Marine
Protected Area Arbitration, para. 379). Yet, the Tribunal eventually abstained from answering the
question.
M. Gervasi
The Tribunal held that the associated notes and letters were sufficient for the requirement under Article 283(1) UNCLOS to be satisfied.
116
Nevertheless, in these notes and letters, the United Kingdom and Mauritius
referred to bilateral talks not as a means to settle the dispute over the Marine
Protected Area but as the object of that dispute. The Tribunal admitted the concrete
difficulties in drawing a stark distinction between consultations on the merits of a
dispute and consultations on the means of settlement.
117
It significantly referred to
the exchange of views in the Southern Bluefin Tuna case as an “idealized form”:
there, Australia, New Zealand, and Japan communicated among themselves about
whether it would be best to submit their dispute to the arbitration under the 1993
Convention for the Conservation of Southern Bluefin Tuna or the UNCLOS.
118
Be
that as it may, the Tribunal repeatedly ruled out that Article 283 UNCLOS would
require the Parties to exchange their views on the substance of the dispute.
119
6 The Chagos Marine Protected Area Arbitration
Beyond the International Law of the Sea
Owing to the illustrated ambiguities the precedential value of the Chagos Marine
Protected Area Arbitration for UNCLOS interpretation purposes is open to doubt.
Since the more the land sovereignty dispute was relevant to the law of the sea issue
at stake the more the UNCLOS interpretation proves to be ambivalent, it is plausible
to conclude that the influence of the land sovereignty dispute was the root cause of
the ambiguities in the Award.
The Tribunal was arguably cautious about issuing an Award potentially having a
bearing on the land sovereignty dispute on the Chagos Archipelago. As set out
before, the Tribunal ruled that it did not have jurisdiction in relation to the submis116 Ibidem, paras 383–385.
117 Ibidem, para. 381. The Tribunal’s extensive application of Article 283 UNCLOS seemingly
makes the obligation to exchange views very easy to be satisfied where the merits of the dispute
also concern an alleged obligation to consult on the conduct at stake. In the event, substantive talks
on the obligation to consult may be simply characterised as exchanges of views on negotiations as
a means of dispute settlement. The overlap between substantive talks and exchanges of views on
the means of dispute settlement risks impinging on the rationale itself of the obligation under
Article 283 UNCLOS. The provision is aimed at ensuring that all the Parties to a dispute be aware
of that dispute and the object thereof, so that the initiation of compulsory proceedings would not
be entirely unexpected (Chagos Marine Protected Area Arbitration, para. 382). As mentioned
before, in fact Mauritius and the United Kingdom never consulted about the means of dispute
settlement. Consequently, the doubt arises whether the United Kingdom was aware of the very
existence of a dispute to be settled as far as the Marine Protected Area was concerned.
118 Chagos Marine Protected Area Arbitration, paras 380–381.
119 The structure of sections 1 and 2 of Part XV UNCLOS drove the Tribunal to question whether
an obligation on substantive consultation existed outside the scope of Article 283 (Chagos Marine
Protected Area Arbitration, para. 379). Yet, the Tribunal eventually abstained from answering the
question.
M. Gervasi