354
considered to be, “for all intents and purposes”, equivalent and to entail a balance of
rights and interests based upon the importance of the rights involved, the degree of
the interference and the availability of alternative solutions.
Unjustifiable Interference Concerning the “unjustifiable” character of the interference, the application of Art. 194(4) in the Chagos arbitration shows that ‘environmental considerations’ could potentially justify the interference caused by the
measure to the rights of other States in the territorial sea surrounding the Chagos
archipelago, if the necessity of the measure were explained and less restrictive alternatives were explored. But, as the tribunal states, this would require “significant
engagement” with Mauritius to explain the need for the measure.
15
This reasoning
is in line with the approach of the tribunal, as observed throughout the award, which
highlights the practical implication of the due regard obligation in the specific circumstances of the case, i.e. the conduct of the necessary consultations in order to
reach a solution reflecting a ‘conscious’ balancing of rights and interests.
16
The provision of Art. 78(2) of the UNCLOS providing that the exercise of the
sovereign rights of the coastal State over the continental shelf must not infringe or
result in any unjustifiable interference with the rights of other States
17
was invoked
by the arbitral tribunal in the Arctic Sunrise case. In particular, in examining whether
Russia was entitled to take measures against the Arctic Sunrise in order to prevent
interference with its sovereign rights for the exploration and exploitation of nonliving resources in its EEZ, the tribunal found that the ship’s actions did not amount
to such an interference with the exercise of Russia’s sovereign rights; it followed
that, had Russia taken these measures in the exercise of sovereign rights over its
continental shelf, this would have infringed upon and caused an unjustifiable interference with the freedom of navigation and other rights of the Netherlands in the
EEZ.
18
Nevertheless, it should be observed that there is not necessarily a causal
relationship between the two situations, since the issue of interference with the
sovereign rights of the coastal State pertains to the protection of these rights, while
the “justifiable” character of the interference concerns the effect of the measures
taken by the coastal State in the exercise of its rights vis-à-vis other States.
19
Hence,
15 Chagos Marine Protected Area, Award, para. 541.
16 Ibidem, paras 534–535.
17 Art. 78(2) was drafted on the basis of a similar article in the Geneva Convention on the continental shelf (Art. 5.1). The ILC had observed in 1956 that prohibiting any interference with navigation
or fishing caused by the exercise of the sovereign rights over the continental shelf would render
“nominal both the sovereign rights of exploration and exploitation and the very purpose of the
articles as adopted”, Yearbook of the ILC, 1956, vol. II, p. 299. Thus, interference as such is not
sufficient to justify the violation of the obligation of due regard.
18 PCA, Arctic Sunrise (Netherlands v. Russia), Award on the merits, 14 August 2015, para. 331.
19 Thus, the interference caused by the action of a foreign ship with the coastal State’s sovereign
rights does not necessarily imply that the measure taken by this State, in response to such action,
constitutes a ‘justifiable’ interference with the rights of the flag State; the concrete measures taken
by the coastal State may be found to be unreasonable and ‘unjustifiably’ interfering with the rights
of other States.
E. Scalieri
considered to be, “for all intents and purposes”, equivalent and to entail a balance of
rights and interests based upon the importance of the rights involved, the degree of
the interference and the availability of alternative solutions.
Unjustifiable Interference Concerning the “unjustifiable” character of the interference, the application of Art. 194(4) in the Chagos arbitration shows that ‘environmental considerations’ could potentially justify the interference caused by the
measure to the rights of other States in the territorial sea surrounding the Chagos
archipelago, if the necessity of the measure were explained and less restrictive alternatives were explored. But, as the tribunal states, this would require “significant
engagement” with Mauritius to explain the need for the measure.
15
This reasoning
is in line with the approach of the tribunal, as observed throughout the award, which
highlights the practical implication of the due regard obligation in the specific circumstances of the case, i.e. the conduct of the necessary consultations in order to
reach a solution reflecting a ‘conscious’ balancing of rights and interests.
16
The provision of Art. 78(2) of the UNCLOS providing that the exercise of the
sovereign rights of the coastal State over the continental shelf must not infringe or
result in any unjustifiable interference with the rights of other States
17
was invoked
by the arbitral tribunal in the Arctic Sunrise case. In particular, in examining whether
Russia was entitled to take measures against the Arctic Sunrise in order to prevent
interference with its sovereign rights for the exploration and exploitation of nonliving resources in its EEZ, the tribunal found that the ship’s actions did not amount
to such an interference with the exercise of Russia’s sovereign rights; it followed
that, had Russia taken these measures in the exercise of sovereign rights over its
continental shelf, this would have infringed upon and caused an unjustifiable interference with the freedom of navigation and other rights of the Netherlands in the
EEZ.
18
Nevertheless, it should be observed that there is not necessarily a causal
relationship between the two situations, since the issue of interference with the
sovereign rights of the coastal State pertains to the protection of these rights, while
the “justifiable” character of the interference concerns the effect of the measures
taken by the coastal State in the exercise of its rights vis-à-vis other States.
19
Hence,
15 Chagos Marine Protected Area, Award, para. 541.
16 Ibidem, paras 534–535.
17 Art. 78(2) was drafted on the basis of a similar article in the Geneva Convention on the continental shelf (Art. 5.1). The ILC had observed in 1956 that prohibiting any interference with navigation
or fishing caused by the exercise of the sovereign rights over the continental shelf would render
“nominal both the sovereign rights of exploration and exploitation and the very purpose of the
articles as adopted”, Yearbook of the ILC, 1956, vol. II, p. 299. Thus, interference as such is not
sufficient to justify the violation of the obligation of due regard.
18 PCA, Arctic Sunrise (Netherlands v. Russia), Award on the merits, 14 August 2015, para. 331.
19 Thus, the interference caused by the action of a foreign ship with the coastal State’s sovereign
rights does not necessarily imply that the measure taken by this State, in response to such action,
constitutes a ‘justifiable’ interference with the rights of the flag State; the concrete measures taken
by the coastal State may be found to be unreasonable and ‘unjustifiably’ interfering with the rights
of other States.
E. Scalieri