The Chagos Marine Protected Area Arbitration: A Case Study of the Creeping Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals

International & Comparative Law Quarterly 65, 2016, Forthcoming

Bonn Research Papers on Public International Law No 9/2016

31 Pages Posted: 19 Jun 2016

See all articles by Stefan A. G. Talmon

Stefan A. G. Talmon

University of Bonn, Institute of Public International Law

Date Written: June 16, 2016

Abstract

This article shows that the Tribunal in the Chagos Marine Protected Area Arbitration between Mauritius and the United Kingdom has contributed considerably to the creeping expansion of compulsory jurisdiction of courts and tribunals established under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has employed three techniques to do so. First, it has read down the jurisdictional precondition to exchange views in Article 283(1) of the UNCLOS; second, it has expanded the limited scope of compulsory subject-matter jurisdiction under section 2 of Part XV by broadening the meaning of the phrase ‘any dispute concerning the interpretation or application of this Convention’ to include incidental, related – and through the backdoor of a balancing exercise – even extraneous disputes; and, third, it has restricted the limitations and exceptions to compulsory jurisdiction in Articles 297 and 298 of the UNCLOS. Few would have predicted in 1982 that a Part XV court or tribunal would – within the context of such a balancing exercise – ever find that a colonial era undertaking created binding legal obligations under international law and that the United Kingdom was obliged to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes. The Tribunal’s expansive reading of the jurisdictional provisions in Part XV opens up the possibility of future rulings, albeit incidentally, on issues that have nothing to do with the law of the sea.

Keywords: law of the sea, dispute settlement, UNCLOS Part XV courts and tribunals, compulsory jurisdiction, Chagos Marine Protected Area Arbitration

Suggested Citation

Talmon, Stefan A. G., The Chagos Marine Protected Area Arbitration: A Case Study of the Creeping Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals (June 16, 2016). International & Comparative Law Quarterly 65, 2016, Forthcoming; Bonn Research Papers on Public International Law No 9/2016. Available at SSRN: https://ssrn.com/abstract=2796685

Stefan A. G. Talmon (Contact Author)

University of Bonn, Institute of Public International Law ( email )

Adenauerallee 24-42
D-53113 Bonn
Germany

Register to save articles to
your library

Register

Paper statistics

Downloads
295
Abstract Views
953
rank
102,028
PlumX Metrics