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South China Sea - International law and the P5: what this means for Mauritius

22 juillet 2016, 08:31

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The award of the international tribunal in the Philippines v. China arbitration case hit the headlines across the media worldwide. It is being taken very seriously in capitals across the world because it may have serious implications not only for future geo-strategic interests in the South China Sea but also for international law.

The fact that the Tribunal’s decision is being taken so seriously is of some significance to Mauritius. The Tribunal is similar to the one that decided the Mauritius v UK dispute over the Chagos Marine Protected Area. Indeed, both Tribunals were appointed under Annex 7 of the UN Convention on the Law of the Sea.

The legal team appearing for the Philippines in this case consisted mainly of lawyers who appeared for Mauritius in the MPA case. The main issues in both the Philippines and Mauritius cases gave rise to legal arguments about land sovereignty and maritime boundaries and about historic rights under the law of the sea.

If anything, the decision of the award in the Mauritius case has the added advantage of having been made after the Tribunal had the benefit of considering legal arguments from both parties. In the Philippines case, this was not possible as China claimed that the Tribunal did not have jurisdiction over the matter and it refused to take part in the proceedings. China had also declared before the award was made that it would reject the Tribunal’s decision.

Though the decision of a tribunal set up under UNCLOS is binding on the parties, there is no mechanism under international law to enforce the decision. Legal scholars will no doubt debate the consequences for the law of the sea dispute settlement provisions and for international law generally, of China’s stance both in the course of the proceedings and after the award was made.

The stance taken by the US and the UK over Mauritius’s decision to seek support for a resolution requesting an advisory opinion of the International Court of Justice also gives rise to questions regarding these countries commitment to rule of law and support for international law.

In a Joint Press Statement dated 24 June 2016, the US Embassy and the UK High Commission in Port Louis stated that, “Referral of this matter to the International Court of Justice would cause lasting damage to Mauritius’ bilateral relations with both the UK and the USA.”

The Joint Statement clearly implies that should Mauritius seek UN support for a General Assembly request for an advisory opinion, in other words seek judicial opinion on the law relating to the excision of the Chagos Archipelago, this would have damaging consequences on the country’s interests.

Are such overt threats consistent with the declared support for rule of law and international law?

In an editorial published in the New York Times on July 12, 2016 the paper’s Editorial Board writes, “The Obama administration has said that disputes should be resolved according to international law, a position it now reaffirms.” Earlier this year, Jack Goldsmith, a Harvard law Professor wrote an article in the Harvard Journal of International Law on “The Contributions of the Obama Administration to the Practice and Theory of International Law” in which he recalled that Obama had devoted a chapter of his 2006 book The Audacity of Hope to international relations and made plain that he understood international law intimately and viewed it as a constructive force in international relations.

How can the personal commitment of President Obama, a former law Professor, to International Law and his administration’s repeated view that disputes should be resolved according to international law be reconciled with the pressure being put on a small State to seek judicial clarification on important issues of international law?

The UK ensured that Mauritius would not be allowed to take the dispute over sovereignty before the International Court of Justice except with the consent of the British Government. Both the UK and the US now want to put pressure to bear on Mauritius to refrain from even attempting to obtain UN support for a resolution that would only seek an advisory opinion from the international court.

The South China Sea case and the legal dispute over the Chagos involve three parties who are Permanent members of the Security Council which under the UN Charter has primary responsibility for the maintenance of peace and security. In discharging these duties the Council is required to act in accordance with the Purposes and Principles of the United Nations. The International Court of Justice is the principal judicial organ of the United Nations and yet two Permanent Members of the Security Council are threatening Mauritius with serious consequences if a majority of the member States of the UN decide to seek an advisory opinion form the principal judicial organ of the organisation.