353
ship Arctic Sunrise by Russia in its EEZ. It reached the conclusion that, lacking such
a basis, Russia breached the provisions of the UNCLOS regarding the rights and
freedoms of third States in the EEZ of the coastal State, as well as the obligation to
have due regard to these rights (Art. 56(2)).
The obligation of the coastal State to have due regard to the rights of other States
can be considered to be a limitation to the exercise of its discretionary power or
margin of appreciation contained in its sovereign rights. The breach of this rule was
also observed in the Chagos award which introduces interesting elements for the
interpretation of Art. 56(2). The arbitral tribunal rejected both the interpretation
which would necessarily oblige the coastal State to give effect to the rights of other
States or to refrain from acts that interfere with those rights, as well as the “opposite” interpretation which would limit the obligation of the coastal State to only
“taking account” of the rights of other States and to not ignoring them. The content
of the due regard obligation is not uniform, since it is determined depending on the
circumstances of each case; the elements to be considered and assessed are, on the
one hand, the nature and importance of the rights of other States and the extent to
which they are affected, and, on the other hand, the nature and importance of the
activities of the coastal State and the existence of alternative measures to attain the
same goal. Thus, the tribunal reaches the conclusion that Mauritius’ rights arising
from the undertakings of the UK
11
are “significant and entitled (…) to a corresponding degree of regard”, especially since they have been affected (or will be affected)
by the proclamation of the marine protected area by the UK. This situation requires
“at least, consultation and a balancing exercise” with Mauritius rights; consequently,
non-compliance with this requirement breaches Art. 56(2) of the UNCLOS.
12
In this respect, the interest of the award lies, primarily, in the fact that the reference “rights of other States” in Art. 56(2) is deemed to include a wider category of
rights which is not strictly limited to the rights provided for in the Convention,
13
but
comprises also rights stemming from undertakings, as is Mauritius’ right to the
return of the Chagos archipelago. Secondly, the tribunal takes a common approach
for the obligations arising from Arts. 2(3), 56(2) and 194(4) throughout different
zones: the obligation to act in good faith with respect to Mauritius’ rights in the territorial sea, the due regard obligation in the EEZ, as well as the obligation not to
unjustifiably interfere with the activities of other States exercising their rights
14
are
11 The Undertakings of the UK relate to fishing rights, to the return of the Archipelago when no
longer needed for defence purposes and to the benefit of oil and mineral resource, Chagos Marine
Protected Area, Award, paras 297–298. On this case, Ros (2017), pp. 808–812.
12 Chagos Marine Protected Area, Award, paras 521 and 534–536.
13 The provision aims at striking a balance between the rights and interests of States, see Nordquist
(1993), pp. 543–544. In the Enrica Lexie incident, Italy contends that India breached Arts. 2(3),
56(2) and 58(2) which require the Tribunal to apply the international law principles relating to the
immunity of States and their officials and invokes also Art. 293 of the UNCLOS: ITLOS, Enrica
Lexie (Italy v. India), Provisional Measures, Request and Notification of Italy, para. 29.
14 Chagos Marine Protected Area, Award, paras 503, 520 and 540. Unlike the other provisions, Art.
194(4) refers to the interference with the activities of other States, and not with the rights.
Discretionary Power of Coastal States and the Control of Its Compliance…
ship Arctic Sunrise by Russia in its EEZ. It reached the conclusion that, lacking such
a basis, Russia breached the provisions of the UNCLOS regarding the rights and
freedoms of third States in the EEZ of the coastal State, as well as the obligation to
have due regard to these rights (Art. 56(2)).
The obligation of the coastal State to have due regard to the rights of other States
can be considered to be a limitation to the exercise of its discretionary power or
margin of appreciation contained in its sovereign rights. The breach of this rule was
also observed in the Chagos award which introduces interesting elements for the
interpretation of Art. 56(2). The arbitral tribunal rejected both the interpretation
which would necessarily oblige the coastal State to give effect to the rights of other
States or to refrain from acts that interfere with those rights, as well as the “opposite” interpretation which would limit the obligation of the coastal State to only
“taking account” of the rights of other States and to not ignoring them. The content
of the due regard obligation is not uniform, since it is determined depending on the
circumstances of each case; the elements to be considered and assessed are, on the
one hand, the nature and importance of the rights of other States and the extent to
which they are affected, and, on the other hand, the nature and importance of the
activities of the coastal State and the existence of alternative measures to attain the
same goal. Thus, the tribunal reaches the conclusion that Mauritius’ rights arising
from the undertakings of the UK
11
are “significant and entitled (…) to a corresponding degree of regard”, especially since they have been affected (or will be affected)
by the proclamation of the marine protected area by the UK. This situation requires
“at least, consultation and a balancing exercise” with Mauritius rights; consequently,
non-compliance with this requirement breaches Art. 56(2) of the UNCLOS.
12
In this respect, the interest of the award lies, primarily, in the fact that the reference “rights of other States” in Art. 56(2) is deemed to include a wider category of
rights which is not strictly limited to the rights provided for in the Convention,
13
but
comprises also rights stemming from undertakings, as is Mauritius’ right to the
return of the Chagos archipelago. Secondly, the tribunal takes a common approach
for the obligations arising from Arts. 2(3), 56(2) and 194(4) throughout different
zones: the obligation to act in good faith with respect to Mauritius’ rights in the territorial sea, the due regard obligation in the EEZ, as well as the obligation not to
unjustifiably interfere with the activities of other States exercising their rights
14
are
11 The Undertakings of the UK relate to fishing rights, to the return of the Archipelago when no
longer needed for defence purposes and to the benefit of oil and mineral resource, Chagos Marine
Protected Area, Award, paras 297–298. On this case, Ros (2017), pp. 808–812.
12 Chagos Marine Protected Area, Award, paras 521 and 534–536.
13 The provision aims at striking a balance between the rights and interests of States, see Nordquist
(1993), pp. 543–544. In the Enrica Lexie incident, Italy contends that India breached Arts. 2(3),
56(2) and 58(2) which require the Tribunal to apply the international law principles relating to the
immunity of States and their officials and invokes also Art. 293 of the UNCLOS: ITLOS, Enrica
Lexie (Italy v. India), Provisional Measures, Request and Notification of Italy, para. 29.
14 Chagos Marine Protected Area, Award, paras 503, 520 and 540. Unlike the other provisions, Art.
194(4) refers to the interference with the activities of other States, and not with the rights.
Discretionary Power of Coastal States and the Control of Its Compliance…