26
One of the issues that arose during the arbitration
69
concerned the prescriptive
scope of Article 2(3) UNCLOS, which provides that “[t]he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international
law”. The United Kingdom considered the provision to be “purely descriptive”.
70
The Arbitral Tribunal ruled instead that Article 2(3) UNCLOS imposes an obligation.
71
It reached this conclusion relying on various interpretative criteria laid down
in Articles 31–33 VCLT. More specifically, the Tribunal compared the different language versions of the Convention,
72
as well as the text of Article 2(3) with the text
of other articles of UNCLOS that “[include] a provision to the effect that States will
exercise their rights under the Convention subject to, or with regard to, the rights
and duties of other States or rules of international law beyond the Convention
itself”.
73
In addition, it took (excessive)
74
account of the negotiating history of the
provision, looking at the preparatory work of both UNCLOS and the Convention on
the Territorial Sea and the Contiguous Zone,
75
and examined the context of the provision in the light of the Convention’s preamble (thus applying Article 31(2)
VCLT).
76
Finally, as briefly mentioned above, it used purposive interpretation:
Recalling the object and purpose of the Convention, the Tribunal notes the express references in its preamble to the need to consider the ‘closely interrelated’ problems of ocean
spaces ‘as a whole’ and the ‘desirability of establishing through this Convention, … a legal
order for the seas and oceans’. In the Tribunal’s view, these objectives – as well as the need
for coherence in interpreting Article 2(3) within the context of the provisions for other maritime zones – are more readily achieved by viewing Article 2(3) as a source of obligation.
77
Even leaving aside the Tribunal’s considerations on the scope of “other rules of
international law” (i.e., these consisted only of rules of general international law,
which in this case required the United Kingdom to act in good faith),
78
this use of
purposive interpretation seems to me especially significant.
Indeed, as will be better explained in the conclusions, the awards rendered in the
Chagos Marine Protected Area and South China Sea cases are due to adjudicating
bodies competent under UNCLOS whose underlying aim was to emphasize the
purposes of the Convention in order to counter various forms of state unilateralism
that have emerged in recent years.
69 On this point, and for further references, see the chapter by Gervasi in this volume.
70 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, para.
499.
71 Ibidem, para. 514.
72 Ibidem, paras 500–501.
73 Ibidem, para. 503.
74 Parlett (2017), pp. 295–296.
75 Geneva, 29 April 1958; entry into force: 10 September 1964, 516 UNTS 205.
76 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, paras
505–513.
77 Ibidem, para. 504 (emphasis added).
78 Ibidem, paras 516–517.
R. Virzo
One of the issues that arose during the arbitration
69
concerned the prescriptive
scope of Article 2(3) UNCLOS, which provides that “[t]he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international
law”. The United Kingdom considered the provision to be “purely descriptive”.
70
The Arbitral Tribunal ruled instead that Article 2(3) UNCLOS imposes an obligation.
71
It reached this conclusion relying on various interpretative criteria laid down
in Articles 31–33 VCLT. More specifically, the Tribunal compared the different language versions of the Convention,
72
as well as the text of Article 2(3) with the text
of other articles of UNCLOS that “[include] a provision to the effect that States will
exercise their rights under the Convention subject to, or with regard to, the rights
and duties of other States or rules of international law beyond the Convention
itself”.
73
In addition, it took (excessive)
74
account of the negotiating history of the
provision, looking at the preparatory work of both UNCLOS and the Convention on
the Territorial Sea and the Contiguous Zone,
75
and examined the context of the provision in the light of the Convention’s preamble (thus applying Article 31(2)
VCLT).
76
Finally, as briefly mentioned above, it used purposive interpretation:
Recalling the object and purpose of the Convention, the Tribunal notes the express references in its preamble to the need to consider the ‘closely interrelated’ problems of ocean
spaces ‘as a whole’ and the ‘desirability of establishing through this Convention, … a legal
order for the seas and oceans’. In the Tribunal’s view, these objectives – as well as the need
for coherence in interpreting Article 2(3) within the context of the provisions for other maritime zones – are more readily achieved by viewing Article 2(3) as a source of obligation.
77
Even leaving aside the Tribunal’s considerations on the scope of “other rules of
international law” (i.e., these consisted only of rules of general international law,
which in this case required the United Kingdom to act in good faith),
78
this use of
purposive interpretation seems to me especially significant.
Indeed, as will be better explained in the conclusions, the awards rendered in the
Chagos Marine Protected Area and South China Sea cases are due to adjudicating
bodies competent under UNCLOS whose underlying aim was to emphasize the
purposes of the Convention in order to counter various forms of state unilateralism
that have emerged in recent years.
69 On this point, and for further references, see the chapter by Gervasi in this volume.
70 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, para.
499.
71 Ibidem, para. 514.
72 Ibidem, paras 500–501.
73 Ibidem, para. 503.
74 Parlett (2017), pp. 295–296.
75 Geneva, 29 April 1958; entry into force: 10 September 1964, 516 UNTS 205.
76 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, paras
505–513.
77 Ibidem, para. 504 (emphasis added).
78 Ibidem, paras 516–517.
R. Virzo