United Kingdom raised the objection by invoking Article 297 (3) (a) regarding the
disputes concerning fisheries.
9 The Arbitral Tribunal examined whether the character of the MPA and the rights of Mauritius that were at issue were beyond the scope
of the exception under Article 297 (3) (a).
10 Then, regarding the applicability of
Article 297(1)(c), the Arbitral Tribunal found that the fourth submission of Mauritius
fell within the scope of its compulsory jurisdiction under that provision.
11
On the merits, the Tribunal admitted Mauritius’ arguments based on Articles 2
(3) and 56(2) and Article 194. With regard to the breach of Articles 2(3) and 56(2),
the Tribunal found that United Kingdom did not fulfil the obligation to undertake
consultation with Mauritius and to balance its own rights and interests with those of
Mauritius.
12 In this context, the rights and interests to be ballanced were those of
Mauritius relating to the fishing rights accorded by the Lancaster House Undertakings and those of MPA. As far as the breach of Article 194 was concerned, it should
be noted that the Tribunal pointed out that Article 194 is “not limited to measures
aimed strictly at controlling pollution and extends to measures focused primarily on
conservation and preservation of ecosystems,” referring to paragraph 5. Then, the
Tribunal found that while United Kingdom had not violate an obligation pursuant to
paragraph 1, its declaration of the MPA was not compatible with paragraph 4 and
Mauritian fishing activities in the territorial sea.
13 The Tribunal took the view that
“Article 194(4) requires a balancing act between competing rights, based upon an
evaluation of the extent of the interference, the availability of alternatives, and the
importance of the rights and policies at issue,” but that it applies to the activities
presently carried out pursuant to the rights. It considered that although Article
194 (4) requires a balancing act between competing rights in the same way with
Articles 2 (3) and 56 (2), it differs from those provitions "in that it applies only to the
'activities carried out by other States' pursuant to their rights, rather than to the rights
themselves." The Tribunal also admitted the potential possibility of justification of
the infringement of Mauritian fishing rights in the territorial sea because of the
environmental consideration. However, it found that UK did not pursue significant
engagement with Mauritius to explain the need for the measures and to explore less
restrictive alternatives to justify that infringement.
14
In the South China Sea Arbitration, one of the issues on the merits was the
legality of China’s conduct in relation to the activities of the fishing vessels flying the
Chinese flag. The Arbitral Tribunal supported the findings and stated that Article
192 entails “the positive obligation to take active measures to protect and preserve
the marine environment, and by logical implication, entails the negative obligation
9 The Arbitral Tribunal summed up the positions of the Parties, id., para. 232, and examined their
arguments extensively, id., paras. 283–323.
10 Id., para. 301.
11 Id., para. 319.
12 Id., paras. 534–535.
13 Id., paras. 539–541.
14 Id., paras. 540–541.
12
M. Kawano
disputes concerning fisheries.
9 The Arbitral Tribunal examined whether the character of the MPA and the rights of Mauritius that were at issue were beyond the scope
of the exception under Article 297 (3) (a).
10 Then, regarding the applicability of
Article 297(1)(c), the Arbitral Tribunal found that the fourth submission of Mauritius
fell within the scope of its compulsory jurisdiction under that provision.
11
On the merits, the Tribunal admitted Mauritius’ arguments based on Articles 2
(3) and 56(2) and Article 194. With regard to the breach of Articles 2(3) and 56(2),
the Tribunal found that United Kingdom did not fulfil the obligation to undertake
consultation with Mauritius and to balance its own rights and interests with those of
Mauritius.
12 In this context, the rights and interests to be ballanced were those of
Mauritius relating to the fishing rights accorded by the Lancaster House Undertakings and those of MPA. As far as the breach of Article 194 was concerned, it should
be noted that the Tribunal pointed out that Article 194 is “not limited to measures
aimed strictly at controlling pollution and extends to measures focused primarily on
conservation and preservation of ecosystems,” referring to paragraph 5. Then, the
Tribunal found that while United Kingdom had not violate an obligation pursuant to
paragraph 1, its declaration of the MPA was not compatible with paragraph 4 and
Mauritian fishing activities in the territorial sea.
13 The Tribunal took the view that
“Article 194(4) requires a balancing act between competing rights, based upon an
evaluation of the extent of the interference, the availability of alternatives, and the
importance of the rights and policies at issue,” but that it applies to the activities
presently carried out pursuant to the rights. It considered that although Article
194 (4) requires a balancing act between competing rights in the same way with
Articles 2 (3) and 56 (2), it differs from those provitions "in that it applies only to the
'activities carried out by other States' pursuant to their rights, rather than to the rights
themselves." The Tribunal also admitted the potential possibility of justification of
the infringement of Mauritian fishing rights in the territorial sea because of the
environmental consideration. However, it found that UK did not pursue significant
engagement with Mauritius to explain the need for the measures and to explore less
restrictive alternatives to justify that infringement.
14
In the South China Sea Arbitration, one of the issues on the merits was the
legality of China’s conduct in relation to the activities of the fishing vessels flying the
Chinese flag. The Arbitral Tribunal supported the findings and stated that Article
192 entails “the positive obligation to take active measures to protect and preserve
the marine environment, and by logical implication, entails the negative obligation
9 The Arbitral Tribunal summed up the positions of the Parties, id., para. 232, and examined their
arguments extensively, id., paras. 283–323.
10 Id., para. 301.
11 Id., para. 319.
12 Id., paras. 534–535.
13 Id., paras. 539–541.
14 Id., paras. 540–541.
12
M. Kawano