219
sions deemed to be really intertwined with the land sovereignty matter and found
that the Marine Protected Area was incompatible with the UNCLOS only on a procedural plane.
Keeping in mind such cautiousness, it is no surprise that the weight of the Award
in the Chagos Marine Protected Area Arbitration beyond UNCLOS interpretation
purposes is also contentious, particularly as regards the existence of the Marine
Protected Area as well as the land sovereignty dispute over the Chagos Archipelago,
including the issue of the military base.
120
As regards the existence of the Marine Protected Area, it should be emphasised
that the Tribunal found a breach of the UNCLOS only on a procedural plane. It is
worth noting that, with respect to the entire case, the Tribunal felt it important to
clarify that its concern had been exclusively “with the manner in which the [Marine
Protected Area] was established, rather than its substance”.
121
Consistent therewith,
it eventually ordered the United Kingdom and Mauritius only “to enter into the
negotiations that the Tribunal would have expected prior to the proclamation of the
[Marine Protected Area], with a view to achieving a mutually satisfactory arrangement for protecting the environment”.
122
The question thus arises about the status of the Marine Protected Area pending
those negotiations or in the event of their failure. It has been reported that, since the
issue of the Award, the United Kingdom has seldom offered Mauritius consultations
on the protection and preservation of the marine environment around the Chagos
Archipelago.
123
Mauritius has seemingly refused the offer in that it wanted to tackle
the problem of the Marine Protected Area coupled with the land sovereignty matter.
124
According to the United Kingdom, the Marine Protected Area is still in
effect.
125
As regards the land sovereignty dispute, at least prima facie the binding nature of
the Lancaster House Undertakings as well as the application of the estoppel principle to the United Kingdom’s repetition of its commitments would weigh in favour
of Mauritius’ claim. As mentioned above, the Tribunal declared that the United
Kingdom’s undertaking to return the Chagos Archipelago to Mauritius when no
longer needed for defence purposes was a legally binding one.
At a closer look, though, Mauritius’ right to have the Archipelago back is of little
help for its claim on sovereignty since that right implies the current—and likely
120 See also Appleby (2015), pp. 538–540, expressing doubts on the implications of the Award also
with respect to the land sovereignty dispute over the Chagos Archipelago.
121 Chagos Marine Protected Area Arbitration, para. 544. Having assessed the unlawfulness of the
Marine Protected Area only on the procedural plane, the Tribunal did not need to take a position on
the general problem of the creation of marine protected areas as a matter of environmental policy
to be assessed against economic and social issues as well as indigenous rights. On the potential
relevance of the point to the case see Papanicolopulu (2011), pp. 677–678; Vithanage (2012),
pp. 659–661; Nguyen (2016), p. 140.
122 Chagos Marine Protected Area Arbitration, para. 544.
123 See Lunn (2017), p. 10.
124 Ibidem.
125 Ibidem.
The Interpretation of the United Nations Convention on the Law of the Sea…
sions deemed to be really intertwined with the land sovereignty matter and found
that the Marine Protected Area was incompatible with the UNCLOS only on a procedural plane.
Keeping in mind such cautiousness, it is no surprise that the weight of the Award
in the Chagos Marine Protected Area Arbitration beyond UNCLOS interpretation
purposes is also contentious, particularly as regards the existence of the Marine
Protected Area as well as the land sovereignty dispute over the Chagos Archipelago,
including the issue of the military base.
120
As regards the existence of the Marine Protected Area, it should be emphasised
that the Tribunal found a breach of the UNCLOS only on a procedural plane. It is
worth noting that, with respect to the entire case, the Tribunal felt it important to
clarify that its concern had been exclusively “with the manner in which the [Marine
Protected Area] was established, rather than its substance”.
121
Consistent therewith,
it eventually ordered the United Kingdom and Mauritius only “to enter into the
negotiations that the Tribunal would have expected prior to the proclamation of the
[Marine Protected Area], with a view to achieving a mutually satisfactory arrangement for protecting the environment”.
122
The question thus arises about the status of the Marine Protected Area pending
those negotiations or in the event of their failure. It has been reported that, since the
issue of the Award, the United Kingdom has seldom offered Mauritius consultations
on the protection and preservation of the marine environment around the Chagos
Archipelago.
123
Mauritius has seemingly refused the offer in that it wanted to tackle
the problem of the Marine Protected Area coupled with the land sovereignty matter.
124
According to the United Kingdom, the Marine Protected Area is still in
effect.
125
As regards the land sovereignty dispute, at least prima facie the binding nature of
the Lancaster House Undertakings as well as the application of the estoppel principle to the United Kingdom’s repetition of its commitments would weigh in favour
of Mauritius’ claim. As mentioned above, the Tribunal declared that the United
Kingdom’s undertaking to return the Chagos Archipelago to Mauritius when no
longer needed for defence purposes was a legally binding one.
At a closer look, though, Mauritius’ right to have the Archipelago back is of little
help for its claim on sovereignty since that right implies the current—and likely
120 See also Appleby (2015), pp. 538–540, expressing doubts on the implications of the Award also
with respect to the land sovereignty dispute over the Chagos Archipelago.
121 Chagos Marine Protected Area Arbitration, para. 544. Having assessed the unlawfulness of the
Marine Protected Area only on the procedural plane, the Tribunal did not need to take a position on
the general problem of the creation of marine protected areas as a matter of environmental policy
to be assessed against economic and social issues as well as indigenous rights. On the potential
relevance of the point to the case see Papanicolopulu (2011), pp. 677–678; Vithanage (2012),
pp. 659–661; Nguyen (2016), p. 140.
122 Chagos Marine Protected Area Arbitration, para. 544.
123 See Lunn (2017), p. 10.
124 Ibidem.
125 Ibidem.
The Interpretation of the United Nations Convention on the Law of the Sea…