I. Introduction

1. By letter dated 23 August 2019, the Solicitor-General of the Republic of Mauritius (hereinafter “Mauritius”) informed the President of the International Tribunal for the Law of the Sea (hereinafter “the Tribunal”) of the institution of arbitral proceedings by Mauritius against the Republic of the Maldives (hereinafter “the Maldives”) on 18 June 2019, pursuant to Annex VII to the United Nations Convention on the Law of the Sea (hereinafter “the Convention”). Attached to that letter was the Notification and the Statement of the claim and grounds on which it is based (hereinafter “the Notification”) of Mauritius dated 18 June 2019, instituting arbitral proceedings against the Maldives under Annex VII to the Convention “in the dispute concerning the maritime boundary between Mauritius and Maldives”.

2. Following consultations held by the President of the Tribunal with representatives of Mauritius and the Maldives in Hamburg on 17 September 2019, a Special Agreement was concluded between the two States on 24 September 2019 to submit the dispute concerning the delimitation of the maritime boundary between them in the Indian Ocean to a special chamber of the Tribunal to be formed pursuant to article 15, paragraph 2, of the Statute of the Tribunal (hereinafter “the Statute”).

3. The Special Agreement and Notification between Mauritius and the Maldives dated 24 September 2019 (hereinafter “the Special Agreement”), in its relevant part, reads as follows:

4. The Minutes of Consultations agreed between Mauritius and the Maldives on 17 September 2019 and attached to the Special Agreement read in their relevant part as follows:

1. 3. During the consultations, the Parties agreed to transfer the arbitral proceedings instituted by Mauritius in the dispute concerning the delimitation of the maritime boundary between Mauritius and the Maldives in the Indian Ocean to a special chamber of the Tribunal to be formed pursuant to article 15, paragraph 2, of the Statute. The Parties agreed that the date of the institution of proceedings before the Tribunal is the date on which the Registry of the Tribunal has received the electronic copy of the Special Agreement and Notification signed by both Parties (see paragraph 3 of the Special Agreement and Notification). The proceedings of the special chamber of the Tribunal shall be governed by the provisions contained in the Statute and the Rules of the Tribunal.

2. 4. The Parties agreed that the special chamber to be formed pursuant to article 15, paragraph 2, of the Statute shall be composed of nine members, two of whom will be judges ad hoc chosen by the Parties in accordance with article 17 of the Statute of the Tribunal. The composition of the special chamber will be determined by the Tribunal with the approval of the parties. In this respect, the Parties have agreed on the following names:

   • Judge Jin-Hyun Paik, as President

   • Judge José Luis Jesus

   • Judge Jean-Pierre Cot

   • Judge Shunji Yanai

   • Judge Boualem Bouguetaia

   • Judge Tomas Heidar

   • Judge Neeru Chadha

   Mauritius has not yet chosen its judge ad hoc but will make its nomination in due course. Maldives has chosen Mr Bernard Oxman as judge ad hoc.

5. An electronic copy of the Special Agreement was received by the Registry on 24 September 2019 and the original was received on 7 October 2019. Pursuant to paragraph 3 of the Special Agreement, receipt by the Registry of the electronic copy of the Special Agreement signed by both Parties constituted the notification contemplated in article 55 of the Rules of the Tribunal (hereinafter “the Rules”).

6. As stated in the Special Agreement, the Government of Mauritius had appointed Mr Dheerendra Kumar Dabee, G.O.S.K, S.C, Solicitor-General, as Agent for Mauritius, and the Government of the Maldives had appointed Mr Ibrahim Riffath, Attorney General, as Agent for the Maldives.

7. By Order dated 27 September 2019, the Tribunal decided to accede to the request of Mauritius and the Maldives to form a special chamber of nine judges to deal with the dispute concerning delimitation of their maritime boundary in the Indian Ocean (hereinafter “the Special Chamber”), and determined, with the approval of the Parties, the composition of the Special Chamber as follows:

8. In the Order, the Tribunal stated that, in the Special Agreement, the Maldives had notified the Tribunal of its choice of Mr Bernard Oxman to sit as judge ad hoc in the Special Chamber, and that no objection to the choice of Mr Oxman as judge ad hoc appeared to the Tribunal. The Tribunal also stated that, in the Special Agreement, Mauritius had notified the Tribunal of its intention to choose a judge ad hoc.

9. The Registrar transmitted a copy of the Order of 27 September 2019 to the Parties on the same date.

10. The case was entered in the List of Cases as Case No. 28.

11. By letter dated 27 September 2019, the Registrar, pursuant to the Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the Sea of 18 December 1997 (hereinafter “the Relationship Agreement”), notified the Secretary-General of the United Nations of the institution of proceedings. By a note verbale of the same date, the Registrar also notified the States Parties to the Convention, in accordance with article 24, paragraph 3, of the Statute, of the institution of proceedings.

12. On 8 October 2019, in accordance with article 45 of the Rules, telephone consultations were held by the President of the Special Chamber with representatives of the Parties to ascertain their views with regard to questions of procedure in respect of the case.

13. By letter dated 9 October 2019, the Agent of Mauritius informed the Registrar that Mauritius had chosen Mr Nicolaas Schrijver to sit as judge ad hoc in the case. The Registrar transmitted a copy of the letter to the Maldives on the same date. No objection to the choice of Mr Schrijver as judge ad hoc was raised by the Maldives, and no objection appeared to the Special Chamber. Consequently, in accordance with article 19, paragraph 3, of the Rules, the Parties were informed by separate letters dated 4 November 2019 that Mr Schrijver would be admitted to participate in the proceedings as judge ad hoc, after having made the solemn declaration required under article 9 of the Rules.

14. Having ascertained the views of the Parties, by Order dated 10 October 2019, the President of the Special Chamber, in accordance with articles 59 and 61 of the Rules, fixed the following time-limits for the filing of the pleadings in the case: 9 April 2020 for the Memorial of Mauritius and 9 October 2020 for the Counter-Memorial of the Maldives. The Registrar transmitted a copy of the Order to the Parties on 10 October 2019.

15. By communication addressed to the Registrar and received on 18 December 2019, within the time-limit set by article 97, paragraph 1, of the Rules, the Maldives filed with the Special Chamber written preliminary objections “under article 294 of the Convention and article 97 of the Rules” to the jurisdiction of the Special Chamber and the admissibility of Mauritius' claims (hereinafter “the Preliminary Objections”). The Preliminary Objections were notified to Mauritius on the same date.

16. Upon receipt of the Preliminary Objections by the Registry, pursuant to article 97, paragraph 3, of the Rules, the proceedings on the merits were suspended, as noted in the Order of the President of the Special Chamber dated 19 December 2019.

17. By the same Order, the President of the Special Chamber fixed 17 February 2020 as the time-limit for Mauritius to file its written observations and submissions on the Preliminary Objections filed by the Maldives, and 17 April 2020 as the time-limit for the Maldives to file its written observations and submissions in reply. The Registrar transmitted a copy of the Order to the Parties on 19 December 2019.

18. Pursuant to the Relationship Agreement, the Registrar, by letter dated 18 December 2019, notified the Secretary-General of the United Nations of the Preliminary Objections filed by the Maldives in the case. By note verbale of the same date, the Registrar also notified the States Parties to the Convention of the Preliminary Objections.

19. In accordance with article 45 of the Rules, on 4 February 2020, the President of the Special Chamber held telephone consultations with the representatives of the Parties to ascertain their views with regard to questions of procedure in respect of the Preliminary Objections. During these consultations, the Parties agreed that the hearing should take place from 24 to 27 June 2020.

20. Mauritius filed its written observations and submissions on the Preliminary Objections (hereinafter “the Observations”) on 17 February 2020 and a copy thereof was transmitted to the Maldives on the same date.

21. The written observations and submissions in reply of the Maldives (hereinafter “the Reply”) were filed on 15 April 2020 and a copy thereof was transmitted to Mauritius on the same date.

22. In light of the situation concerning the COVID-19 pandemic, including travel restrictions and safety considerations, by separate communications dated 7 May 2020, the Registrar sought the views of the Parties with regard to the feasibility of holding the hearing on the dates previously agreed.

23. The Maldives, by communication dated 8 May 2020, and Mauritius, by communication dated 13 May 2020, expressed their agreement that the hearing should take place during the week beginning 12 October 2020. The Registrar transmitted a copy of each communication to the other Party on 14 May 2020.

24. By Order dated 19 May 2020, the President of the Special Chamber, having ascertained the views of the Parties, fixed 13 October 2020 as the date for the opening of the oral proceedings. The Registrar transmitted a copy of the Order to the Parties on the same date.

25. By separate letters dated 28 July 2020, the Registrar, referring to the ongoing COVID-19 pandemic and the difficulty to organize an in-person hearing owing to health and safety concerns as well as travel and border restrictions, informed the Parties that the President of the Special Chamber was considering holding the hearing on the scheduled dates in hybrid format. The Registrar stated that a hearing in hybrid format would combine physical and virtual participation of members of the Special Chamber and representatives of the Parties.

26. The Maldives, by letter dated 4 August 2020, and Mauritius, by letter dated 6 August 2020, expressed their agreement that the hearing should be held in hybrid format. The Registrar transmitted a copy of each letter to the other Party on 7 August 2020.

27. By separate letters dated 13 August 2020, the Registrar informed the Parties that the President of the Special Chamber, having ascertained their views, had decided that the hearing would be conducted in hybrid format. On 19 August 2020, the Registrar informed the Parties by telephone of the intention of the members of the Special Chamber, including the judges ad hoc, to participate in the hearing in person or remotely.

28. By letter dated 26 August 2020, the Registrar informed the Parties that Judge Cot had tendered his resignation as member of the Special Chamber by letter dated 26 August 2020 to the President of the Special Chamber with effect from that date, and that, accordingly, a vacancy had occurred in the Special Chamber. The Registrar also informed the Parties that the President of the Special Chamber wished to ascertain their views with regard to the Special Chamber's composition. Further to written consultations, the Parties agreed that Judge Pawlak should fill the vacancy left by the resignation of Judge Cot.

29. With regard to the information referred to in paragraph 27, the Maldives, by letter dated 26 August 2020, expressed concerns regarding the participation of the judges ad hoc in the proceedings “by different means”. The Maldives stated that “[t]his could potentially undermine the fairness of the proceedings” and that “it is consistent with the practice of other international courts and tribunals for parties' respective appointed Judges to participate in hearings and deliberations on the same basis”. Accordingly, the Maldives requested that, “if Judge ad hoc Oxman is to participate in the hearing remotely, then Judge ad hoc Schrijver should also be requested to participate remotely.” A copy of the letter was transmitted by the Registrar to Mauritius on 27 August 2020.

30. By letter dated 31 August 2020, Mauritius opposed the Maldives' request. In the view of Mauritius, the Maldives' proposal “implies a differential treatment for one (or two) members of the Special Chamber from any of the others, and is inconsistent with the ‘complete equality’ of Judges ad hoc with other judges.” With reference to article 17 of the Statute and article 8 of the Rules, Mauritius stated that “[t]he Statute and Rules of the Tribunal do not provide for any distinction of treatment as to these members of the Special Chamber.” Mauritius also stated that it “[was] not aware of any precedent that supports … Maldives' proposal.” In addition, Mauritius submitted that the Maldives “might have raised this matter at an earlier stage, when the question of a hybrid hearing was first raised, and the views of the parties were sought” but that “[i]t did not do so.” A copy of the letter was transmitted by the Registrar to the Maldives on the same date.

31. On 1 September 2020, the President of the Special Chamber held telephone consultations with representatives of the Parties to ascertain the views of the Parties regarding the organization of the hearing.

32. By letter dated 3 September 2020, the Maldives referred again to the issue of the participation of judges ad hoc in the proceedings, maintaining that it had “raised its concerns with the Registrar within two days of receiving the relevant information” and that “[t]here was no unreasonable delay whatsoever.” In its letter, the Maldives also reiterated its request made on 26 August 2020. A copy of the letter was transmitted by the Registrar to Mauritius on 3 September 2020.

33. Mauritius responded by letter dated 4 September 2020, a copy of which the Registrar transmitted to the Maldives on the same day. In its letter, Mauritius referred to its previous arguments, stating, inter alia, that “all judges are equal” and that “ad hoc judges are to be treated no differently than sitting judges.”

34. With regard to the participation of judges ad hoc in the hearing and meetings of the Special Chamber, pursuant to article 45 of the Rules, by letter to the Parties dated 8 September 2020, the President of the Special Chamber indicated that, “in light of the ongoing pandemic, both parties had agreed to hold the hearing in a hybrid format, in which members of the Special Chamber are allowed to participate either in person or remotely.” He stated that “[s]uch format is based on the premise that there is no difference between the two modes of participation” and that “[a]ny suggestion to the contrary runs counter to this basic notion of a hybrid hearing.” The President of the Special Chamber further stated that, in accordance with article 17, paragraph 6, of the Statute and article 8, paragraph 1, of the Rules, “ad hoc judges participate in a case ‘on terms of complete equality’ with the other judges” and that “[t]here is no ground whatsoever in the Statute or the Rules to treat ad hoc judges differently.” He noted that “[i]t is up to each member of the Special Chamber, including judges ad hoc, to decide whether he or she participates in the hearing in person or remotely” and that he “fully respect[ed] the decision of each member in this regard.” The President of the Special Chamber also assured the Parties that “each member, irrespective of his or her mode of participation, [would] be given an equal opportunity to participate fully in the proceedings of the Special Chamber.”

35. By Order dated 15 September 2020, the Tribunal determined, with the approval of the Parties, that Judge Pawlak should fill the vacancy left by the resignation of Judge Cot and that as a result the composition of the Special Chamber formed to deal with this case was as follows:

36. On 15 September 2020, the Registrar transmitted a copy of the Order to each Party.

37. By letter dated 6 October 2020 addressed to the President of the Special Chamber, received by the Registry on 7 October 2020, the Prime Minister of Mauritius notified the Special Chamber of the appointment of Mr Jagdish Dharamchand Koonjul, Ambassador and Permanent Representative of Mauritius to the United Nations in New York, as Co-Agent for Mauritius.

38. Prior to the opening of the oral proceedings, on 9 October 2020, the Agent of the Maldives and the Agent of Mauritius submitted to the Registry materials required under paragraph 14 of the Guidelines concerning the Preparation and Presentation of Cases before the Tribunal.

39. At a public sitting held in hybrid format on 12 October 2020, Mr Oxman and Mr Schrijver each made the solemn declaration required under article 9 of the Rules.

40. In accordance with article 68 of the Rules, on 12 October 2020, prior to the opening of the oral proceedings, the Special Chamber held initial deliberations in hybrid format.

41. On 12 October 2020, the President of the Special Chamber held consultations with representatives of the Parties at the premises of the Tribunal to ascertain the views of the Parties regarding the organization of the hearing.

42. Between 13 and 19 October 2020, the Special Chamber held four public sittings in hybrid format. At these sittings, the Special Chamber was addressed by the following:

For the Maldives:

For Mauritius:

43. During the hearing, the Parties displayed a number of exhibits on screen, including maps and excerpts of documents.

44. The hearing was broadcast on the Internet as a webcast.

45. Pursuant to article 67, paragraph 2, of the Rules, copies of the pleadings and documents annexed thereto were made accessible to the public on the opening of the oral proceedings.

46. In accordance with article 86, paragraph 1, of the Rules, the transcript of the verbatim records of each public sitting was prepared by the Registry in the official languages of the Tribunal used during the hearing. In accordance with article 86, paragraph 4, of the Rules, copies of the transcripts of the said records were circulated to the judges sitting in the case and to the Parties. The transcripts were also made available to the public in electronic format.

47. By separate letters dated 15 October 2020, the Registrar communicated to the Parties, pursuant to article 76 of the Rules, a list of questions which the Special Chamber wished the Parties specially to address. These questions were as follows:

1. 1. What were the legal considerations of the Parties in holding the first meeting on maritime delimitation and submission regarding the extended continental shelf of 21 October 2010 and in agreeing to “make bilateral arrangements on the overlapping area of extended continental shelf of the two States around the Chagos Archipelago” in the joint communiqué of 12 March 2011?

2. 2. According to the Advisory Opinion of the International Court of Justice of 25 February 2019, “all Member States are under an obligation to co-operate with the United Nations in order to complete the decolonization of Mauritius.” This obligation is further explained in paragraph 180 of the Advisory Opinion. Is this obligation relevant to the present case and, if so, how?

3. 3. If delimitation were deferred for reasons indicated in the preliminary objections, what would be the obligations of the Parties under paragraph 3 of articles 74 and 83 of the Convention? Would there be jurisdiction with respect to those obligations?

48. Responses to the aforementioned questions were provided during the second round of oral pleadings by counsel for the Maldives on 17 October 2020, and by counsel for Mauritius on 19 October 2020.

49. By letter dated 16 October 2020 addressed to the President of the Special Chamber, the Agent of the Maldives, with reference to a statement made by counsel of Mauritius during the first round of oral pleadings, requested that the Maldives be allowed, pursuant to article 71 of the Rules, to submit additional documents. On the same date, the Agent of the Maldives transmitted to the Special Chamber the additional documents consisting of copies of three email communications between counsel for the Parties dated 27, 28 and 29 August 2019. On 17 October 2020, the Registrar transmitted the letter of 16 October 2020 and the additional documents to the Agent of Mauritius, in accordance with article 71 of the Rules, for comments the same day. By communication dated 17 October 2020, the Co-Agent of Mauritius informed the Special Chamber that Mauritius did not object to the Maldives' request.

50. By letter dated 17 October 2020, the Registrar informed the Agent of the Maldives that the documents submitted by the Maldives would be included in the case file and that the Maldives could refer to the documents in the second round of oral pleadings. A copy of the letter was transmitted to the Agent of Mauritius.

51. By letter dated 19 October 2020, the Co-Agent of Mauritius, pursuant to article 71, paragraph 4, of the Rules, provided comments on the new documents produced by the Maldives and submitted documents in support of his comments, consisting of copies of the three emails referred to in paragraph 49 and copies of further emails exchanged between counsel for the Parties during the period from 7 to 13 September 2019. By letter dated 19 October 2020, the Registrar transmitted Mauritius' letter and the attached documents to the Agent of the Maldives, indicating that, in accordance with article 71, paragraph 4, of the Rules, the letter and documents would form part of the case file and that Mauritius could refer to the documents in the second round of oral pleadings. A copy of the Registrar's letter was transmitted to the Agent of Mauritius.

52. By letter dated 19 October 2020, the Agent of the Maldives transmitted comments on the letter of Mauritius of 19 October 2020 and accompanying documents. A copy of the letter was transmitted to the Agent of Mauritius.

II. Submissions of the Parties

53. In its Preliminary Objections, and in its Reply, the Maldives requested the Special Chamber to adjudge and declare that:

54. In its Observations, Mauritius requested the Special Chamber to rule that:

1. a. The Preliminary Objections raised by the Maldives are rejected;

2. b. It has jurisdiction to entertain the Application filed by Mauritius;

3. c. There is no bar to its exercise of that jurisdiction; and

4. d. It shall proceed to delimit the maritime boundary between Mauritius and the Maldives.

55. In accordance with article 75, paragraph 2, of the Rules, the following final submissions were presented by the Parties at the conclusion of the last statement made by each Party at the hearing:

On behalf of the Maldives:

On behalf of Mauritius:

III. Factual background

56. Mauritius and the Maldives are States situated in the Indian Ocean. Both States consist of several islands. According to Mauritius, “[t]he territory of Mauritius includes, in addition to the main Island, inter alia, the Chagos Archipelago, which is located approximately 2,200 kilometres north-east of the main Island of Mauritius.” Mauritius states that the Chagos Archipelago “is about 517 kilometres from Maldives”.

57. In 1814, France, by the Treaty of Paris, ceded Mauritius and its dependencies to the United Kingdom. According to Mauritius, between 1814 and 1965, the United Kingdom administered the Chagos Archipelago as “a dependency of the colony of Mauritius.”

58. In September 1965, a constitutional conference took place in London involving representatives of the colony of Mauritius and the United Kingdom. Mauritius submits that at that conference “the British Government made the independence of Mauritius conditional on Mauritian Ministers ‘agreeing’ to detachment [of the Chagos Archipelago], linking ‘both matters in a possible package deal’”, and that the British Prime Minister “procured the supposed but reluctant ‘agreement’ of Premier Ramgoolam [of Mauritius] and two of his colleagues to the detachment of the Chagos Archipelago.” Mauritius notes that, when considering “the question of whether the people of Mauritius had given their consent to the detachment of a part of their territory”, the International Court of Justice (hereinafter “the ICJ”) found that it was “not possible to talk of an international agreement, when one of the parties to it, Mauritius, which is said to have ceded the territory to the United Kingdom, was under the authority of the latter.”

59. On 8 November 1965, the United Kingdom adopted The British Indian Ocean Territory Order, which provided that the Chagos Archipelago, with certain other islands, “shall together form a separate colony which shall be known as the British Indian Ocean Territory.” On 12 March 1968, Mauritius became an independent State. The United Kingdom continues to administer the Chagos Archipelago.

60. On 16 December 1965, the United Nations General Assembly (hereinafter “the UNGA”) adopted resolution 2066 (XX) on the “Question of Mauritius”, in which it noted “with deep concern that any step taken by the administering Power to detach certain islands from the Territory of Mauritius for the purpose of establishing a military base would be in contravention of the Declaration” (referring to the Declaration on the Granting of Independence to Colonial Countries and Peoples) and invited the “administering Power to take no action which would dismember the Territory of Mauritius and violate its territorial integrity”.

61. According to the Maldives, since 1814 and following the establishment of the British Indian Ocean Territory (hereinafter “the BIOT”) in 1965, “the United Kingdom has consistently claimed sovereignty over the Chagos Archipelago.” The Maldives states that, “since at least 1980, Mauritius has claimed that it is sovereign over the Chagos Archipelago”.

62. In a letter dated 19 June 2001 addressed to the Minister of Foreign Affairs of the Maldives, the Minister of Foreign Affairs and Regional Cooperation of Mauritius stated that Mauritius was “embarking on the exercise to delimit the Continental Shelf around the Chagos Archipelago” and asked the Maldives to “agree to preliminary negotiations being initiated at an early date.” By a diplomatic note dated 18 July 2001, the Ministry of Foreign Affairs of the Maldives replied that:

63. According to Mauritius, in February 2010, the Maldives proposed “that Mauritius and Maldives hold discussions for the delimitation of the exclusive economic zone of [their] two countries.” In a letter of 2 March 2010, addressed to the Minister of Foreign Affairs of the Maldives, the Minister of Foreign Affairs, Regional Integration and International Trade of Mauritius referred to the Maldives' proposal that “Mauritius and Maldives hold discussions for the delimitation of the exclusive economic zones of [their] two countries”, adding that this proposal was “under active consideration by the relevant Mauritian authorities”.

64. On 1 April 2010, the United Kingdom announced the creation of a marine protected area (hereinafter “the MPA”) in and around the Chagos Archipelago. On 20 December 2010, Mauritius instituted arbitral proceedings against the United Kingdom pursuant to Annex VII of the Convention, requesting the Arbitral Tribunal to adjudge and declare, in respect of the Chagos Archipelago, that:

1. (1) the United Kingdom is not entitled to declare an “MPA” or other maritime zones because it is not the “coastal State” within the meaning of inter alia Articles 2, 55, 56 and 76 of the Convention; and/or

2. (2) having regard to the commitments that it has made to Mauritius in relation to the Chagos Archipelago, the United Kingdom is not entitled unilaterally to declare an “MPA” or other maritime zones because Mauritius has rights as a “coastal State” within the meaning of inter alia Articles 56(1)(b)(iii) and 76(8) of the Convention; and/or …

3. (4) The United Kingdom's purported “MPA” is incompatible with the substantive and procedural obligations of the United Kingdom under the Convention, including inter alia Articles 2, 55, 56, 63, 64, 194 and 300, as well as Article 7 of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995. (Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom of Great Britain and Northern Ireland, Award of 18 March 2015, RIAA, Vol. XXXI, p. 359, at pp. 440–441, para. 158)

65. On 26 July 2010, the Maldives made a submission to the Commission on the Limits of the Continental Shelf (hereinafter “the CLCS”) pursuant to paragraph 8 of article 76 of the Convention. In a diplomatic note dated 21 September 2010, addressed to the Ministry of Foreign Affairs of the Maldives, the Ministry of Foreign Affairs, Regional Integration and International Trade of Mauritius noted that the Government of Mauritius was “agreeable to holding formal talks with the Government of … Maldives for the delimitation of the exclusive economic zones (EEZs) of Mauritius and Maldives.” It also stated that Mauritius had taken note of the Maldives' submission to the CLCS and that “the holding of EEZ delimitation boundary talks [was] all the more relevant in the light of” that submission.

66. On 21 October 2010, a “first meeting on maritime delimitation and submission regarding the extended continental shelf between the Republic of Maldives and Republic of Mauritius” took place in Malé “to discuss a potential overlap of the extended continental shelf and to exchange views on maritime boundary delimitation between the two respective States.” According to the minutes of the meeting, which were signed by representatives of both States, the two sides “agreed to exchange coordinates of their respective base points as soon as possible in order to facilitate the eventual discussions on the maritime boundary.” With regard to the Maldives' submission to the CLCS, the representative of the Maldives stated that the exclusive economic zone coordinates of “Mauritius in the Chagos region were not taken into consideration” and that “this would be rectified by an addendum to the submission”.

67. From 11 to 13 March 2011, the President of the Maldives paid a State visit to Mauritius. A joint communiqué issued during this visit, on 12 March 2011, records that the Prime Minister of Mauritius and the President of the Maldives “agreed to make bilateral arrangements on the overlapping area of extended continental shelf of the two States around the Chagos Archipelago.”

68. In a diplomatic note dated 24 March 2011, addressed to the Secretary-General of the United Nations, the Permanent Mission of Mauritius to the United Nations, referring to the Maldives' submission to the CLCS and the October 2010 meeting between the two countries, noted that “no addendum has up to now been filed with the Secretary-General of the United Nations” by the Maldives. The diplomatic note states that Mauritius “protests formally against the submission … in as much as the Extended Continental Shelf being claimed by … Maldives encroaches on the Exclusive Economic Zone of … Mauritius”.

69. On 18 March 2015, the Arbitral Tribunal constituted pursuant to Annex VII to the Convention rendered its award in the Arbitration regarding the Chagos Marine Protected Area (hereinafter “the Chagos arbitral award”). The Arbitral Tribunal found, in relation to its jurisdiction, “that it lacks jurisdiction with respect to Mauritius' First and Second Submissions” (Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom of Great Britain and Northern Ireland, Award of 18 March 2015, RIAA, Vol. XXXI, p. 359, at p. 582, para. 547). It also found that it had jurisdiction pursuant to article 288, paragraph 1, and article 297, paragraph 1(c), of the Convention to consider Mauritius' Fourth Submission and the compatibility of the MPA with certain provisions of the Convention. In relation to the merits, the Arbitral Tribunal found that, in establishing the MPA surrounding the Chagos Archipelago, the United Kingdom breached its obligations under article 2, paragraph 3, article 56, paragraph 2, and article 194, paragraph 4, of the Convention.

70. In resolution 71/292 of 22 June 2017, the UNGA decided to request the ICJ, pursuant to Article 65 of its Statute, to give an advisory opinion on the following questions:

1. (a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;

2. (b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?

71. On 25 February 2019, the ICJ delivered its advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (hereinafter “the Chagos advisory opinion”). The operative part of the Chagos advisory opinion provides as follows:

72. Following the Chagos advisory opinion, in a diplomatic note dated 7 March 2019, addressed to the Permanent Mission of the Maldives to the United Nations, the Permanent Mission of Mauritius to the United Nations referred to the “meeting on maritime delimitation held between Mauritius and the Maldives in Malé in October 2010” and invited the Maldives “to a second round of discussions in the second week of April in Mauritius.” The Maldives did not respond to that note.

73. In a communiqué of the Mauritian Prime Minister's Office of 30 April 2019, it was stated that it is “undeniable that the Republic of Mauritius is the sole State lawfully entitled to exercise sovereignty and sovereign rights in relation to the Chagos Archipelago and its maritime zones.” On the other hand, on the same date, the United Kingdom Minister of State for Europe and the Americas stated that:

74. On 22 May 2019, the UNGA adopted resolution 73/295 entitled “Advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965”. In the resolution, the UNGA, inter alia,

75. The resolution was adopted with 116 votes in favour, 6 against and 56 abstentions. Mauritius voted in favour of the resolution. The Maldives and the United Kingdom voted against.

76. The representative of the United Kingdom, commenting on that resolution before the UNGA on 22 May 2019, reiterated that “[t]he United Kingdom is not in doubt about our sovereignty over the British Indian Ocean Territory” and that “[i]t has been under continuous British sovereignty since 1814.”

77. The United Kingdom did not take any action on the demand of the UNGA within the period indicated in paragraph 3 of the above-mentioned resolution.

IV. The Maldives' preliminary objections to jurisdiction and admissibility

78. Mauritius and the Maldives are both States Parties to the Convention, having ratified it on 4 November 1994 and 7 September 2000, respectively. In its Notification, Mauritius relied on articles 286 and 288, paragraph 1, of the Convention to found the jurisdiction of an arbitral tribunal to be constituted in accordance with Annex VII to the Convention. As noted in paragraph 2 of the present Judgment, by the Special Agreement, the Parties agreed to transfer their dispute to a special chamber of the Tribunal.

79. The Maldives raises five preliminary objections to the jurisdiction of the Special Chamber and the admissibility of Mauritius' claims. According to the Maldives' first preliminary objection, the United Kingdom is an indispensable third party to the present proceedings, and, as the United Kingdom is not a party to these proceedings, the Special Chamber does not have jurisdiction over the alleged dispute. In its second preliminary objection, the Maldives submits that the Special Chamber has no jurisdiction to determine the disputed issue of sovereignty over the Chagos Archipelago, which it would necessarily have to do if it were to determine Mauritius' claims in these proceedings. The Maldives contends in its third preliminary objection that, as Mauritius and the Maldives have not engaged, and cannot meaningfully engage, in the negotiations required by articles 74 and 83 of the Convention, the Special Chamber lacks jurisdiction. According to the Maldives' fourth preliminary objection, there is not, and cannot be, a dispute between Mauritius and the Maldives concerning its maritime boundary. Without such a dispute, the Special Chamber has no jurisdiction. Finally, the Maldives submits that Mauritius' claims constitute an abuse of process and should therefore be rejected as inadmissible at the preliminary objections phase.

80. The Special Chamber will now examine the above preliminary objections in the order presented by the Maldives.

V. First preliminary objection: Indispensable third party

81. The Maldives' first preliminary objection is that the Special Chamber lacks jurisdiction “because an indispensable party, namely the United Kingdom, is absent in these proceedings and did not consent to be a party to them.”

82. The Maldives maintains that, under the well-established Monetary Gold principle, “a court or tribunal cannot exercise its jurisdiction in the absence of an indispensable party”. Referring to the findings of the ICJ and the Tribunal, the Maldives states that under the Monetary Gold principle: (1) a State not party to proceedings is an “indispensable party” when the decision between the parties cannot be reached without the court or tribunal examining the validity of the conduct of this State or its legal position; and (2) an international court or tribunal cannot exercise its jurisdiction in the absence of such an indispensable party.

83. The Maldives contends that the Monetary Gold principle plainly applies to the present case and prevents the Special Chamber from exercising jurisdiction. According to the Maldives, there is a long-standing and unresolved sovereignty dispute between Mauritius and the United Kingdom over the Chagos Archipelago.

Thus, in order to entertain Mauritius' delimitation claims, the Special Chamber would necessarily be required to rule on those States' respective sovereignty claims. In other words, the subject matter of the Special Chamber's decision in the present case would necessarily entail a determination as to whether the United Kingdom is or is not sovereign over the Chagos Archipelago. However, in the view of the Maldives, the Special Chamber cannot make such a determination without the consent of the United Kingdom.

84. In this regard, the Maldives argues that the legal situation in the present case is strikingly similar to the East Timor case. In the latter case, the Maldives points out, the ICJ noted that the very subject matter of its decision would necessarily be a determination of whether Indonesia, which was not a party to the proceedings, “could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf” and concluded that it “could not make such a determination in the absence of the consent of Indonesia.”

85. With respect to Mauritius' contention that the Chagos advisory opinion has already determined that the United Kingdom has no sovereign rights with regard to the Chagos Archipelago, so that the Special Chamber should consider that the United Kingdom's claim to sovereignty or sovereign rights is not plausible, the Maldives claims that “the Special Chamber should acknowledge that the sovereignty dispute between the United Kingdom and Mauritius does exist and has not been resolved as a matter of fact.”

86. According to the Maldives, despite the advisory opinion and the subsequent UNGA resolution 73/295, the United Kingdom “maintains its claim over Chagos, which it continues to administer as the British Indian Ocean Territory.” The Maldives states that Mauritius acknowledges this fact and that Mauritius has “reiterate[ed] its view that the ICJ Advisory Opinion ‘made clear that the Chagos Archipelago is, and has always been, a part of Mauritius’.” Thus, in the Maldives' view, it is plain that the matter of sovereignty over the Chagos Archipelago remains in dispute between Mauritius and the United Kingdom.

87. Moreover, the Maldives submits that “Mauritius' present claims” also require the Special Chamber to rule on:

88. As to whether the Monetary Gold principle applies in the context of decolonization, the Maldives asserts that the East Timor case

89. The Maldives concludes that a decision on Mauritius' maritime claims in the present proceedings would necessarily require the Special Chamber to rule on the United Kingdom's legal interests, which would not only be affected by, but would form the very subject matter of, this decision. Since the United Kingdom is absent from the present proceedings, the Maldives submits that the Special Chamber should decline jurisdiction.

90. While Mauritius “does not dispute that the Monetary Gold principle is ‘a well- established procedural rule in international judicial proceedings’”, it submits that “this principle has no application to the present case.” Mauritius maintains that “[t]he Monetary Gold principle can have no application in circumstances where a third State has no rights.”

91. According to Mauritius, the United Kingdom is plainly not an indispensable party in this case. It maintains that the United Kingdom is not even an interested party, because “it has no legal interest in the Chagos Archipelago, and therefore none that can be affected by a delimitation of the maritime boundary separating the Archipelago from the Maldives, which is the object of this case.”

92. Mauritius submits that “[t]he bar for declining to exercise jurisdiction is very high”, referring to the finding of the ICJ in Monetary Gold Removed from Rome in 1943 that, “[i]n the present case, Albania's legal interests would not only be affected by a decision, but would form the very subject-matter of the decision.” Mauritius argues that the subject matter of the Special Chamber's decision does not require it to make a prior determination of rights and obligations of the United Kingdom that would form the subject matter of the decision to be rendered as “[t]hat determination has already been made by the ICJ.”

93. For Mauritius, “[t]he subject-matter of the present proceedings is the delimitation of a maritime area adjacent to insular features over which the United Kingdom, as the ICJ has made clear, has no plausible claim of sovereignty or sovereign rights.” Mauritius submits that the United Kingdom is not an indispensable party to these proceedings because, as the ICJ determined, “the United Kingdom has no sovereignty, or sovereign rights, in respect of any part of the Chagos Archipelago.”

94. According to Mauritius, since the United Kingdom has no sovereignty, or sovereign rights or other material rights, in respect of any part of the territory of Mauritius, it follows that “the United Kingdom has no rights that could in any way be affected by a delimitation of the maritime boundary between Mauritius and the Maldives.”

95. Regarding the East Timor case, Mauritius submits that the ICJ, in that case, could not treat the resolutions of political organs, without more, as having resolved a dispute about the lawfulness of Indonesia's conduct and on that basis alone proceed to adjudicate Indonesia's rights in its absence. In contrast, “here we have the ICJ's authoritative, and correct, by admission, judicial determinations that directly address, and resolve, the legal status of the Chagos Archipelago as an integral part of Mauritius' territory.”

96. Regarding the United Kingdom's sovereignty claim to the Chagos Archipelago after the ICJ rendered its advisory opinion, Mauritius contends that “the Maldives cannot hide behind fallacious assertions by the United Kingdom that, contrary to the Advisory Opinion, it has ‘no doubt’ about its sovereignty over the Chagos Archipelago.” According to Mauritius, this gives more weight to “a defiant political statement by a recalcitrant State than to the Court's authoritative legal determination of the issue.”

* * *

97. The Special Chamber recalls that the Tribunal stated in the M/V “Norstar” Case that the Monetary Gold principle is “a well-established procedural rule in international judicial proceedings” (M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 44, at p. 84, para. 172). The Special Chamber notes in this regard that the Parties are in agreement as to the effect of the Monetary Gold principle. The Parties further agree that Mauritius' claims can be entertained only if the Special Chamber accepts that Mauritius, not the United Kingdom, has sovereignty over the Chagos Archipelago.

98. However, the Parties disagree as to whether the United Kingdom is an indispensable party to the present proceedings. While the Maldives argues that the United Kingdom is an indispensable party as there is an extant sovereignty dispute between the United Kingdom and Mauritius over the Chagos Archipelago, Mauritius contends that the United Kingdom is not such a party because the ICJ has already determined that it has no sovereignty, or sovereign rights, in respect of any part of the Chagos Archipelago. Thus the Parties' disagreement boils down to the question as to whether a sovereignty dispute between Mauritius and the United Kingdom over the Chagos Archipelago still exists or has been resolved.

99. Accordingly, if a sovereignty dispute over the Chagos Archipelago exists, the United Kingdom may be regarded as an indispensable party and the Monetary Gold principle would prevent the Special Chamber from exercising its jurisdiction. On the other hand, if such sovereignty dispute has been resolved in favour of Mauritius, the United Kingdom may not be regarded as an indispensable party and the Monetary Gold principle would not apply.

100. As the Special Chamber will examine below, the core issue of the second preliminary objection raised by the Maldives also concerns the legal status of the Chagos Archipelago. Therefore, this issue is central to both the first and the second preliminary objection. The Special Chamber observes that the Parties acknowledge that their entire cases for both preliminary objections rest on the “core premise”, namely that for the Maldives, the sovereignty dispute between Mauritius and the United Kingdom remains unresolved and that for Mauritius, the sovereignty issue has been resolved in its favour. It also observes that during the oral proceedings the Parties presented their arguments on the first and second preliminary objections in combination. The Special Chamber thus considers it appropriate to examine the two objections together insofar as the legal status of the Chagos Archipelago is concerned. Accordingly, the Special Chamber will proceed to the second preliminary objection of the Maldives and scrutinize the key issues common to these two preliminary objections. It will then give its findings on the first and second preliminary objections of the Maldives.

VI. Second preliminary objection: Disputed issue of sovereignty

101. The Special Chamber will now turn to the second preliminary objection of the Maldives, namely that the Special Chamber has “no jurisdiction to determine the disputed issue of sovereignty over the Chagos Archipelago, which it would necessarily have to do if it were to determine Mauritius' claims in these proceedings.”

102. In addressing this objection, the Special Chamber will begin by examining the scope of its jurisdiction under article 288, paragraph 1, of the Convention and the nature of the dispute submitted to it. It will then consider the question of the legal status of the Chagos Archipelago.

VII. Third preliminary objection: Requirement under articles 74 and 83 of the Convention

252. The Special Chamber will now consider the Maldives' third preliminary objection that “Articles 74 and 83 of UNCLOS stipulate that negotiations between the parties are a procedural precondition to jurisdiction” and that “this precondition has not been – and cannot meaningfully be – fulfilled in the present case.”

VIII. Fourth preliminary objection: Existence of a dispute

294. The Special Chamber now turns to the Maldives' preliminary objection that “there is no maritime boundary dispute between the Parties, and the [Special Chamber] manifestly lacks jurisdiction over this case.”

295. The Maldives submits that “UNCLOS Article 288(1) makes explicit that only disputes concerning the interpretation or application of UNCLOS fall within the Tribunal's jurisdiction” and that “[a] claim will concern ‘the interpretation or application’ of Articles 74(1) and 83(1) only if it addresses the ‘delimitation of the exclusive economic zone [or continental shelf] between States with opposite or adjacent coasts’.”

296. The Maldives further submits that Mauritius' claim to be a State with a relevant opposite or adjacent coast to the Maldives is predicated on its assertion that it has sovereignty over the Chagos Archipelago, which is disputed by the United Kingdom. For the Maldives, there can be no dispute between the Maldives and Mauritius over maritime delimitation until such time as Mauritius becomes the undisputed opposite coastal State within the meaning of article 74, paragraph 1, and article 83, paragraph 1, of the Convention.

297. The Maldives argues “[a]dditionally and alternatively” that,

It contends that

According to the Maldives, Mauritius has not provided any evidence of a dispute, consisting of positively opposed claims as to their respective maritime zones, between the Parties.

298. The Maldives maintains that it is insufficient merely to show that there could be a potential dispute because of notional overlap between the Parties' maximum possible entitlements. It argues that “[a] dispute requires disagreement on where the actual maritime boundary should lie; otherwise, any State with an adjacent coast, or an opposite coast less than 400 nautical miles from another State's coast, could be hauled before ITLOS.”

299. The Maldives submits that the Notification of Mauritius has not pointed to any dispute or positive opposition between the Parties regarding their respective maritime boundary claims. Furthermore, none of the exchanges between the Maldives and Mauritius referred to in the Notification establish that a dispute exists.

300. The Maldives further submits that

301. Regarding the crystallization of the dispute, the Maldives contends that,

302. Regarding legislation adopted by the Parties, the Maldives maintains that it “does not establish the existence of a dispute … For one thing, the legislation did not create a dispute of sufficient clarity to ground the Special Chamber's jurisdiction. This much is evident from the Parties' subsequent diplomatic exchanges”.

Furthermore, according to the Maldives, its legislation

In its view, the mere existence of an overlap is not evidence of a dispute. Referring to “the so-called ‘official depictions of overlapping boundary claims’”, the Maldives contends that Mauritius has presented none of these.

303. The Maldives argues that, in subsequent diplomatic exchanges, the Parties spoke of a potential dispute which they might attempt to pre-empt through negotiations and that there were no claims affirmatively opposed and rejected.

304. Referring to the meeting between the Parties on 21 October 2010, the Maldives contends that the meeting concerned its submission to the CLCS a few months earlier and that, in the meeting, “Mauritius stated only that ‘to the north of the Chagos Archipelago there is an area of potential overlap of the extended continental shelf of the Republic of Maldives and the Republic of Mauritius’.” It adds that, during the meeting, “both sides agreed that they would ‘exchange coordinates of their respective base points … in order to facilitate the eventual discussions on the maritime boundary’.” For the Maldives, this was a mere expression of intention to discuss a maritime boundary in the future. It argues that its

305. With reference to the joint communiqué of 12 March 2011, the Maldives submits that it “states that the Parties ‘agreed to make bilateral arrangements on the overlapping area of extended continental shelf’ between them.” In the view of the Maldives, this is obviously an intention to cooperate before a dispute is crystallized.

306. As to the diplomatic note sent by Mauritius to the Secretary-General of the United Nations on 24 March 2011, the Maldives asserts that this note made only vague statements about Maldives' submission not taking into account the exclusive economic zone around the Chagos Archipelago without any clarification as to an area of overlapping claims.

307. In response to the third question posed by the Special Chamber (see paragraph 47 above), the Maldives expresses its view on Mauritius' claim in relation to article 74, paragraph 3, and article 83, paragraph 3, of the Convention stated in paragraph 28 of the Notification. In particular, the Maldives argues that any claim relating to either of these obligations would be outside the jurisdiction of the Special Chamber, as Mauritius has never produced any evidence and never even suggested that

308. For its part, Mauritius rejects the contention of the Maldives that “there cannot exist any valid dispute as regards maritime delimitation between Mauritius and the Maldives until the dispute between Mauritius and the United Kingdom concerning the sovereignty over the Chagos Archipelago is resolved”. For Mauritius, “[t]his is simply another iteration of the Maldives' erroneous argument that sovereignty over the Chagos Archipelago is uncertain merely because the United Kingdom continues to assert a claim.”

309. Mauritius submits that the evidence confirms that a dispute in regard to the course of the maritime boundary in the area adjacent to the Chagos Archipelago has existed between the Parties since at least 2010. According to Mauritius,

310. Mauritius further submits that the objection of the Maldives “that when Mauritius filed its Notification and Statement of Claim on 18 June 2019, it did so in the absence of a dispute between the Parties in respect of the maritime boundary in the EEZ and continental shelf” has no factual or legal support.

311. In response to the contention of the Maldives that there has been no “positive opposition between the Parties regarding their respective maritime boundary claims”, Mauritius asserts that the untenable nature of this argument is revealed by the contemporaneous official documents and communications between the Parties, including official depictions of overlapping boundary claims.

312. As to the crystallization of the dispute, Mauritius contends that

313. Regarding the argument of the Maldives that a dispute would need to have crystallized during the “brief window” after the ICJ had rendered the Advisory Opinion and before Mauritius had filed its Notification, Mauritius maintains that it is

314. With respect to legislation adopted by the Parties, Mauritius submits that overlaying the maritime claims made by the two States, as they appear in their respective legislation, leaves no doubt as to the fact that they necessarily create a conflict affecting an area of some 96,000 square kilometres. In its view, graphic representations illustrate the extent of the Parties' claims and the fact that those claims inevitably create a situation of conflict. According to Mauritius, this state of affairs was, moreover, confirmed in no uncertain terms by the Parties themselves in the course of their exchanges on the delimitation of their maritime areas.

315. Referring to the meeting between the Parties on 21 October 2010, Mauritius states that it “was convened expressly ‘to discuss a potential overlap of the extended continental shelf and to exchange views on maritime boundary delimitation between the two States.’” Mauritius contends that,

316. Mauritius argues that, in subsequent exchanges between the Parties, including the joint communiqué of 12 March 2011, the disappearance of the qualifier “potential” is confirmed and reference is made clearly and exclusively to an established overlapping area between the maritime zones of the two States.

317. Mauritius asserts that,

318. Mauritius contends that, even if it were assumed that the extent of the area of overlap resulting from the Parties' opposing claims must be specified for a dispute to be deemed to exist, which it does not think to be the case, all the ingredients were thus present, from that moment, in order to determine precisely the contours of the area of overlap. It adds that,

319. In response to the third question posed by the Special Chamber (see paragraph 47 above), Mauritius expresses its view that “there is no bar to the exercise by this Special Chamber of jurisdiction in relation to the Parties' obligations under paragraph 3 of articles 74 and 83.” Mauritius adds that if, however, the Special Chamber finds that it cannot exercise jurisdiction to delimit the Parties' maritime boundaries, “then we have difficulty in seeing how it could exercise jurisdiction in relation to those obligations.”

* * *

320. The Special Chamber notes that the Maldives' objection under consideration is based on two principal arguments. First, the Maldives argues that there can be no dispute between it and Mauritius over maritime delimitation until such time as Mauritius becomes the undisputed State with an opposite coast to the Maldives within the meaning of article 74, paragraph 1, and article 83, paragraph 1, of the Convention. Second, the Maldives argues that there was no dispute, consisting of positively opposed claims as to their respective maritime zones, between it and Mauritius when the proceedings under Part XV of the Convention were initiated.

321. With respect to the first argument, the Special Chamber notes that it concluded in paragraph 251 above that it is satisfied that Mauritius can be regarded as the State with an opposite or adjacent coast to the Maldives within the meaning of article 74, paragraph 1, and article 83, paragraph 1, of the Convention. The Special Chamber, therefore, finds that this argument is without a basis.

322. With respect to the second argument, the Special Chamber recalls the jurisprudence of the Tribunal to the effect that, for it to have jurisdiction ratione materiae to entertain a case, “a dispute concerning the interpretation or application of the Convention between the Parties must have existed at the time of the filing of the Application” (M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016 , p. 44, at p. 65, para. 84; see also M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 4, at p. 46, para. 151).

323. The Special Chamber notes that, in the Southern Bluefin Tuna Cases, the Tribunal stated that

324. The Special Chamber further notes that, in Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, the ICJ held that, in order for a dispute to exist,

325. The Special Chamber observes that, by its Maritime Zones Act of 1977, Mauritius declared an exclusive economic zone extending to a distance of 200 nautical miles from the baseline (section 6) and a continental shelf extending to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline where the outer edge does not extend up to that distance (section 5). This was reaffirmed in Mauritius' Maritime Zones Act of 2005 (sections 14 and 18).

326. By Law No. 30/76 of 1976, the Maldives declared an exclusive economic zone, indicating the coordinates of its outer limits. In its Maritime Zones Act No. 6/96 of 1996, which repealed Law No. 30/76, the Maldives declared an exclusive economic zone extending up to 200 nautical miles from the archipelagic baselines (section 6). Section 7 of this Act further provides that

327. The Special Chamber notes that it is clear from the national legislation adopted by the Parties that their respective claims to an exclusive economic zone in the relevant area overlap. This is further illustrated by the graphic representations made by Mauritius in these proceedings.

328. The Special Chamber observes that, on 26 July 2010, the Maldives submitted information to the CLCS on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.

329. The Special Chamber notes that the Parties met on 21 October 2010 “to discuss a potential overlap of the extended continental shelf and to exchange views on maritime boundary delimitation between the two respective States.” According to the Minutes of the meeting,

330. At the same meeting, Mauritius stated “that the Mauritius side also noted that to the north of the Chagos archipelago there is an area of potential overlap of the extended continental shelf of the Republic of Maldives and the Republic of Mauritius”. The Maldives “agreed that both sides will work jointly on the area of overlap.” In a joint communiqué of 12 March 2011, following a meeting between the President of the Maldives and the Prime Minister of Mauritius, the Parties “agreed to make bilateral arrangements on the overlapping area of extended continental shelf of the two States around the Chagos Archipelago.”

331. The Special Chamber notes that, despite the assurance by the Maldives that an addendum to its submission to the CLCS would be made to take into consideration the coordinates of Mauritius' exclusive economic zone, no such addendum was submitted. As a consequence, Mauritius sent a diplomatic note to the Secretary-General of the United Nations on 24 March 2011, “protest[ing] formally against the submission made by the Republic of Maldives in as much as the Extended Continental Shelf being claimed by the Republic of Maldives encroaches on the Exclusive Economic Zone of the Republic of Mauritius.”

332. In the view of the Special Chamber, it is clear from the above that there is an overlap between the claim of the Maldives to a continental shelf beyond 200 nautical miles and the claim of Mauritius to an exclusive economic zone in the relevant area. In light of the formal protest of Mauritius, in its diplomatic note of 24 March 2011, to the submission by the Maldives to the CLCS, the Parties clearly hold opposite views and the claim of the Maldives is positively opposed by Mauritius.

333. The Special Chamber cannot accept the Maldives' argument that “[a] dispute requires disagreement on where the actual maritime boundary should lie”. In the Special Chamber's view, maritime delimitation disputes are not limited to disagreement concerning the location of the actual maritime boundary and may arise in various other forms and situations.

334. The Special Chamber notes the contention of the Maldives that a dispute would need to have crystallized during the “brief window” after the ICJ had rendered the Chagos advisory opinion and before Mauritius had filed its Notification. In the view of the Special Chamber, it is clear from the above that a disagreement existed between the Parties regarding maritime delimitation long before the Chagos advisory opinion was rendered. While the Maldives may have been justified in having reservations with respect to the existence of a dispute between it and Mauritius before the ICJ rendered the advisory opinion, this is no longer the case now that the advisory opinion has been rendered. In this regard, the Special Chamber also takes note of the invitation by Mauritius to the Maldives to a second round of discussions on maritime delimitation in a diplomatic note of 7 March 2019, to which the Maldives did not respond. As the ICJ stated,

335. The Special Chamber, therefore, concludes that in the present case a dispute existed between the Parties concerning the delimitation of their maritime boundary at the time of the filing of the Notification.

336. Accordingly, the fourth preliminary objection of the Maldives is rejected.

IX. Fifth preliminary objection: Abuse of process

337. The Special Chamber now turns to the Maldives' preliminary objection that “Mauritius' claims are inadmissible because they constitute an abuse of process.”

338. The Maldives submits that it founds this objection on the well-established procedural rule according to which a claim will be inadmissible and an international court or tribunal must refrain from exercising jurisdiction if the claimant's application constitutes an abuse of process. In this regard, it refers, inter alia, to the case law of the ICJ.

339. The Maldives argues that,

In the Maldives' view,

It maintains that “[u]sing UNCLOS compulsory procedures to obtain a ruling on a territorial dispute with a third State is the very definition of an abuse of process.”

340. The Maldives disagrees with the position of Mauritius that, by raising preliminary objections in these proceedings, the Maldives has acted inconsistently with the “obligation to co-operate with the United Nations in order to complete the decolonization of Mauritius” stated in the Chagos advisory opinion. The Maldives, in its response to the second question posed by the Special Chamber (see paragraph 47 above), submits that “the raising of preliminary objections … is not in any way inconsistent with its obligation to cooperate in the decolonization of Mauritius.”

341. Mauritius contends that the Maldives' objection based on an alleged abuse of process by Mauritius is itself vexatious, and, like all its other preliminary objections, unfounded. Mauritius further contends that it may be that the case law of the ICJ includes instances in which the principle of abuse of process has been invoked. It adds, however, that the Court has never once found the conditions for an application of the principle to be satisfied.

342. Mauritius submits that the Maldives' objection “is patently frivolous” and “echoes the same refrain as the other, equally baseless objections: that Mauritius seeks adjudication of a territorial dispute between itself and the United Kingdom, a dispute over which the Special Chamber may not exercise jurisdiction.”

343. Mauritius asserts that it does not seek a ruling on sovereignty over the Chagos Archipelago and that such a ruling has already been issued by the ICJ. It further asserts that “the Maldives' reliance on the decision in the Chagos MPA Arbitration to demonstrate an alleged abuse of process by Mauritius is entirely ill- founded” since

344. In response to the second question posed by the Special Chamber (see paragraph 47 above), Mauritius submits that the Maldives, by raising a preliminary objection which is based on the argument that the United Kingdom is an indispensable third party to the present proceedings, is taking action in violation of the advisory opinion and UNGA resolution 73/295. According to Mauritius, “[i]f any party has committed an abuse of process, it is the Maldives.”

* * *

345. The Special Chamber concluded in paragraph 293 above that the obligation under article 74, paragraph 1, and article 83, paragraph 1, of the Convention has been fulfilled. It concluded further in paragraph 335 above that a dispute existed between the Parties concerning the delimitation of their maritime boundary at the time of the filing of the Notification.

346. Article 74, paragraph 2, and article 83, paragraph 2, of the Convention each provide that, “[i]f no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV” (emphasis added by the Special Chamber).

347. The Special Chamber notes that, by filing its Notification on 18 June 2019, Mauritius resorted to the dispute settlement procedures provided for in Part XV of the Convention, in accordance with article 74, paragraph 2, and article 83, paragraph 2, of the Convention.

348. The Special Chamber recalls that Mauritius' claims, as set out in paragraphs 27 and 28 of the Notification, read as follows:

1. 27. Mauritius requests the Tribunal to delimit, in accordance with the principles and rules set forth in UNCLOS, the maritime boundary between Mauritius and Maldives in the Indian Ocean, in the EEZ and continental shelf, including the portion of the continental shelf pertaining to Mauritius that lies more than 200 nautical miles from the baselines from which its territorial sea is measured.

2. 28. Mauritius also requests the Tribunal to declare that Maldives has violated its obligation to, pending agreement as provided for in paragraphs 1 of Articles 74 and 83 of UNCLOS, make every effort to enter into provisional arrangements of a practical nature and, during such transitional periods, not to jeopardize or hamper the reaching of the final agreement.

As is evident from the above, Mauritius' claims are confined to articles 74 and 83 of the Convention.

349. The Special Chamber, therefore, does not consider that Mauritius' claims constitute an abuse of process.

350. Accordingly, the fifth preliminary objection of the Maldives is rejected.

X. Conclusions on jurisdiction and admissibility

351. For the above reasons, the Special Chamber concludes that it has jurisdiction to adjudicate upon the dispute concerning the delimitation of the maritime boundary between the Parties in the Indian Ocean and that the claim submitted by Mauritius in this regard is admissible.

352. The Special Chamber finds it appropriate to defer to the proceedings on the merits questions concerning the extent to which it may exercise its jurisdiction over the above dispute, including questions arising under article 76 of the Convention.

353. Regarding the Parties' views in relation to Mauritius' claim stated in paragraph 28 of its Notification concerning the obligations under article 74, paragraph 3, and article 83, paragraph 3, of the Convention (see paragraphs 307 and 319 above), the Special Chamber finds it appropriate to reserve this matter for consideration and decision in the proceedings on the merits, as this point has not yet been fully argued by the Parties.

XI. Operative provisions

354. For the above reasons, the Special Chamber

1. (1) Unanimously,

Rejects the first preliminary objection raised by the Maldives on the grounds that the United Kingdom is an indispensable third party to the present proceedings.

1. (2) By 8 votes to 1,

Rejects the second preliminary objection raised by the Maldives on the grounds that the Special Chamber lacks jurisdiction to determine the disputed issue of sovereignty over the Chagos Archipelago.

IN FAVOUR:    Judge PAIK, President of the Special Chamber; Judges JESUS, PAWLAK, YANAI, BOUGUETAIA, HEIDAR, CHADHA; Judge ad hoc SCHRIJVER;

AGAINST:    Judge ad hoc OXMAN.

1. (3) By 8 votes to 1,

Rejects the third preliminary objection raised by the Maldives relating to articles 74 and 83 of the Convention.

IN FAVOUR:   Judge PAIK, President of the Special Chamber; Judges JESUS, PAWLAK, YANAI, BOUGUETAIA, HEIDAR, CHADHA; Judge ad hoc SCHRIJVER;

AGAINST:    Judge ad hoc OXMAN.

1. (4) Unanimously,

Rejects the fourth preliminary objection raised by the Maldives based on the non-existence of a dispute between the Parties.

1. (5) Unanimously,

Rejects the fifth preliminary objection raised by the Maldives based on an abuse of process.

1. (6) By 8 votes to 1,

Finds that it has jurisdiction to adjudicate upon the dispute submitted to it by the Parties concerning the delimitation of the maritime boundary between them in the Indian Ocean and that the claim submitted by Mauritius in this regard is admissible; defers, however, to the proceedings on the merits questions regarding the extent to which the Special Chamber may exercise its jurisdiction, including questions arising under article 76 of the Convention.

IN FAVOUR:   Judge PAIK, President of the Special Chamber; Judges JESUS, PAWLAK, YANAI, BOUGUETAIA, HEIDAR, CHADHA; Judge ad hoc SCHRIJVER;

AGAINST:    Judge ad hoc OXMAN.

1. (7) Unanimously,

Reserves for consideration and decision in the proceedings on the merits the question of jurisdiction and admissibility with respect to Mauritius' claim stated in paragraph 28 of its Notification concerning the obligations under article 74, paragraph 3, and article 83, paragraph 3, of the Convention.

Done in English and in French, both texts being equally authoritative, in the Free and Hanseatic City of Hamburg, this twenty-eighth day of January, two thousand and twenty-one, in three copies, one of which will be placed in the archives of the Tribunal and the others transmitted to the Government of the Republic of Mauritius and the Government of the Republic of the Maldives, respectively.

(signed)

Jin-Hyun Paik

President of the Special Chamber

(signed)

Ximena Hinrichs Oyarce

Registrar

Judges ad hoc OXMAN and SCHRIJVER, availing themselves of the right conferred on them by article 125, paragraph 2, of the Rules of the Tribunal, append their joint declaration to the Judgment of the Special Chamber.

Judge ad hoc OXMAN, availing himself of the right conferred on him by article 30, paragraph 3, of the Statute of the Tribunal, appends his separate and dissenting opinion to the Judgment of the Special Chamber.

JOINT DECLARATION OF JUDGES AD HOC OXMAN AND SCHRIJVER

Consideration of preliminary objections to jurisdiction and admissibility prior to the submission of pleadings on the merits serves the useful purpose of obviating the need to expend the effort necessary to prepare those pleadings in the event that the preliminary objections are upheld. It does, however, mean that on certain issues limited information is available regarding the factual and legal predicates for the claims, and that the parties may not necessarily raise and address all relevant questions at this stage.

The Judgment, wisely in our view, in subparagraph (6) of the dispositif defers to the proceedings on the merits questions regarding the extent to which the Special Chamber may exercise its jurisdiction, including questions arising under article 76 of the Convention.

Subparagraph (7) of the dispositif reserves for consideration and decision in the proceedings on the merits the question of jurisdiction and admissibility relating to Mauritius' claim stated in paragraph 28 of the Notification. We wish to record our view that subparagraph (7) refers to the claim of violation set forth in paragraph 28 of the Notification, and does not call into question the duty of the Parties to comply with paragraph 3 of article 74 and paragraph 3 of article 83 of the Convention. We trust they will do so in a spirit of understanding and co-operation.

Lastly, pursuant to the rules and practices of the Tribunal, matters concerning scheduling and the hybrid nature of these proceedings were addressed by the President of the Special Chamber in consultation with the Parties. Each of us first learned in the latter part of December 2020 of the communications to which reference is made in paragraphs 29 to 34 of the Judgment. We wish to express our appreciation to the President, the Registry, and the Parties for their discretion in this regard.

(signed)

Bernard H. Oxman

(signed)

Nicolaas J. Schrijver

SEPARATE AND DISSENTING OPINION OF JUDGE AD HOC OXMAN

1. I believe that the request of Mauritius for judicial determination of a permanent maritime boundary is not yet admissible. I also believe that paragraph 3 of article 74 and paragraph 3 of article 83 apply to the activities of the Parties in the area that is within 200 nautical miles of the coast of both the Maldives and the Chagos Archipelago. The reasons are set forth below.

* * *

2. The record in this case does not reveal a dispute regarding the location of a maritime boundary, or the method to be used to determine its location, that is comparable to the delimitation disputes that have been submitted for binding determination by an international court or tribunal on numerous occasions since proceedings were instituted before the International Court of Justice (hereinafter “the ICJ”) over a half century ago in the North Sea Continental Shelf cases, or indeed since the Grisbådarna arbitration over a century ago.

3. The Notification and the Statement of the claim and grounds on which it is based (hereinafter “the Notification”) avers that “[d]espite the efforts of Mauritius to engage Maldives in negotiations to agree upon a maritime boundary, other than agreeing to attend a single meeting in October 2010, Maldives has declined to participate in such negotiations.” It goes on to indicate that proceedings were accordingly instituted by Mauritius under the compulsory jurisdiction provisions of Section 2 of Part XV of the United Nations Convention on the Law of the Sea (hereinafter “the Convention”).

4. At the outset of the hearing, the Agent of the Maldives explained the reasons for its reluctance to accept Mauritius' invitation to engage in delimitation negotiations with respect to areas off the coast of the Chagos Archipelago. Those reasons relate to a principle to which reference is made in numerous maritime delimitation cases, namely, to cite one example, that coastal State

This Tribunal referred to the principle that the land dominates the sea in its first maritime delimitation judgment (Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4, at p. 56, para. 185).

5. The Agent of the Maldives stated that it “cannot be expected to take sides” in a dispute between Mauritius and the United Kingdom regarding the Chagos Archipelago, “a conflict which is not of our making” and “a dispute in which the Maldives has repeatedly stated that it does not wish to interfere.” He explained that the Maldives “is understandably reluctant to become entangled in a controversial dispute with two States with which it enjoys important and friendly relations,” noting in this regard that since 2011 “the Maldives has adopted a policy of refraining from bilateral talks with either party to the exclusion of the other.” He observed that if there were no such dispute, “there would be no issue with delimitation. The Maldives would eagerly negotiate an agreement on the maritime boundary.”

6. The history of the dispute between Mauritius and the United Kingdom regarding the Chagos Archipelago is recounted in the Chagos arbitral award (Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom of Great Britain and Northern Ireland, Award of 18 March 2015, RIAA, Vol. XXXI, p. 359, at pp. 383–440, paras. 54–157) (hereinafter “the Chagos Arbitral Award”) and in the Chagos advisory opinion (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95, at pp. 107–111, paras. 25–53) (hereinafter “the Chagos Advisory Opinion”).

7. There is nothing unusual in international relations about trying to avoid being drawn into a dispute between other parties. A compendium of State practice to this effect, having consumed volumes, might still be incomplete. Such restraint may have desirable effects with respect to the maintenance of public order in general, and the prevention of aggravation and extension of disputes in particular. So much so that, absent countervailing rights and duties, the law may even encourage such restraint (see Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA resolution 2625 (XXV), 24 October 1970 (“States parties to an international dispute, as well as other States, shall refrain from any action which may aggravate the situation”) (emphasis added)).

8. The question is whether the relevant provisions of the Convention compel a State to negotiate a maritime boundary notwithstanding the foregoing concerns and, in this connection, whether the compulsory dispute-settlement provisions of the Convention may be used directly or indirectly to achieve that result. These issues arise in the context of the requests for relief by Mauritius set forth respectively in paragraphs 27 and 28 of the Notification, namely:

and

Article 74 and article 83

9. Both of the foregoing claims relate to article 74 and article 83 of the Convention, the former article addressing the exclusive economic zone (“EEZ”) and the latter the continental shelf in identical terms. The four paragraphs of each of these articles provide as follows:

1. 1. The delimitation of the [exclusive economic zone] [continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. 3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

4. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the [exclusive economic zone] [continental shelf] shall be determined in accordance with the provisions of that agreement.

10. The four paragraphs of article 74 and of article 83 of the Convention address both the substantive and procedural consequences of overlapping entitlements under article 57 and article 76, respectively. Article 74 and article 83 contemplate determination of a maritime boundary that ordinarily divides the overlapping entitlements. That is an outcome whose benefits arise from applying the same geographic allocation to all affected entitlements and duties. The fact that delimitation may not in itself adequately address regulatory needs is made clear with respect to living resources by article 63, paragraph 1, article 64, paragraph 1, article 66, paragraph 4, and article 67, paragraph 3; with respect to pollution by article 194, paragraph 2, article 208, paragraph 4, and article 210, paragraph 5; and with respect to both as well as marine scientific research by article 123. Also, many delimitation agreements contain special clauses regarding deposits in the seabed and subsoil of non-living resources, especially those in fluid form, that are traversed by a boundary.

11. “Article 83, paragraph 1, of UNCLOS, in providing that delimitation shall be effected by way of agreement, requires that there be negotiations conducted in good faith, but not that they should be successful” (Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment, I.C.J. Reports 2017, p. 3, at p. 37, para. 90; see Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d'Ivoire), Judgment, ITLOS Reports 2017, p. 4, at p. 162, para. 604) (hereinafter “the Ghana/Côte d'Ivoire Judgment”).Footnote ¹ One might add that the first judgment of the ICJ on delimitation of the continental shelf contains an oft-cited passage concerning the duty to negotiate (North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, I.C.J. Reports 1969, p. 3, at p. 87, para. 85(a)).

12. The agreements referred to in paragraphs 1 and 4 of article 74 and paragraphs 1 and 4 of article 83 may provide for joint or cooperative implementation of some or all of the coastal State rights with respect to some or all of the area of overlap. The existence of such agreements illustrates the fact that paragraph 1 does not necessarily require delimitation.

13. A further illustration may be found in the ubiquity of overlapping entitlements that have yet to be delimited, decades after the adoption and entry into force of the Convention. That does not mean that the coastal States concerned are in breach of the Convention. It also does not mean that the undelimited areas are not regulated by article 74 and article 83. What it means is that the areas of overlap are governed by paragraph 3 of those articles. The number and significance of these undelimited areas, and the fact that some are the object of serious political differences, suggest caution in considering limitations on the scope and application of paragraph 3 of those articles. The rules on how to live with unresolved issues are of no less importance than the rules on how to resolve them.

14. Only paragraph 2 of article 74 and paragraph 2 of article 83 may, but do not necessarily, compel delimitation. Some States have exercised the specific right under article 298, paragraph 1(a)(i), to exclude “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations” from compulsory arbitration or adjudication under the Convention. Whatever the jurisdictional constraints on a court or tribunal to which a delimitation dispute has been submitted, it also should be borne in mind that paragraph 2 of article 74 and paragraph 2 of article 83 refer to all of the dispute-settlement procedures provided for in Part XV, not just arbitration and adjudication. A possible consequence of applying those paragraphs is agreement on conciliation under article 284 or submission of the dispute to compulsory conciliation by one party under article 298, paragraph 1(a)(i). That may result, and indeed has resulted, in much more than simple delimitation (see Timor Sea Conciliation between Timor- Leste and Australia, Report and Recommendations of 9 May 2018, paras. 303–306, Annex 28: Maritime Boundary Treaty, Arts. 2, 4, 7, Annex B) (PCA Case No. 2016- 10) (hereinafter “the Timor Sea Conciliation”).

15. Mauritius suggests that paragraph 2 of article 74 and paragraph 2 of article 83 impose no jurisdictional requirement additional to that contained in Part XV, notably article 283, paragraph 1. Were there any doubt about the importance and relevance of paragraph 2 of article 74 and paragraph 2 of article 83, it should be noted that their “reasonable period of time” requirement is repeated in article 298, paragraph 1(a)(i), as a condition for compulsory conciliation of a delimitation dispute that is excluded from arbitration or adjudication by a declaration under that article. In the first such conciliation, the refusal of a State to negotiate on delimitation was examined in the light of that condition (Timor Sea Conciliation, Decision on Australia's Objections to Competence of 19 September 2016, paras. 77–82).

16. The reference to a reasonable period of time in the cited provisions makes clear that the existence of overlapping entitlements under article 57 and article 76 does not, in itself, mean that a delimitation dispute has yet arisen that is ready to be addressed under Part XV in general, and Sections 2 and 3 of that part in particular. Such a dispute typically arises after one party claims or proposes a maritime boundary or a method of delimitation that the other party rejects. Even then, one might need to draw a distinction between a continuing negotiation and an impasse.

17. Paragraph 2 of article 74 and paragraph 2 of article 83 need not be regarded as imposing a jurisdictional limitation as such. The “reasonable period of time” requirement set forth in those paragraphs might better be regarded as regulating the admissibility of a delimitation claim arising in the specific context of paragraph 1 of each of those articles, with which it is directly associated. Those articles are found in Parts V and VI of the Convention on the EEZ and continental shelf, not Part XV on settlement of disputes. Jurisdiction over a dispute concerning the interpretation or application of those articles is not necessarily predicated on Part XV, as article 282 makes clear. The wording of the “reasonable period of time” requirement appears to confer some latitude. The process presumably entails a case-specific evaluation directed to a question the answer to which will determine whether it is yet time for a court or tribunal to step in and establish a permanent maritime boundary itself, bearing in mind that the alternative is not a legal vacuum: paragraph 3 of each of those articles continues to regulate conduct within the area of overlapping entitlements pending delimitation.

The nature and scope of the dispute

18. The record in this case indicates that there is an area of overlapping entitlements that is within 200 nautical miles (nm) of the coasts of both the Maldives and the Chagos Archipelago. The map that accompanies the executive summary of the Maldives' submission to the Commission on the Limits of the Continental Shelf (hereinafter “the CLCS”) indicates that the Maldives regards its entitlements as extending into that area.Footnote ² Mauritius depicts its entitlements as extending into that area as well. The location of this area of overlap may be ascertained with reasonable clarity, as Mauritius illustrated from its perspective in its Written Observations.Footnote ³ It encompasses a discrete portion of the respective 200-mile zones at their far reaches, even taking into account the use of different basepoints to which reference was made in these proceedings.

19. There appears to be no evidence in the record that either Party made a concrete delimitation proposal with respect to that area of overlap prior to the institution of proceedings in this case. During the first round of oral proceedings, the Co-Agent of Mauritius showed a map that illustrates its view of the area of overlap within 200 nm and depicts a line running midway through it that is labelled “Potential Median Line”.Footnote ⁴ There is, however, no indication that such a line had been claimed by Mauritius or proposed to the Maldives as either a permanent maritime boundary or a provisional limit.

20. The record does indicate the emergence of a difference between the Parties with respect to the submission of the Maldives to the CLCS. Such submissions concern the seaward limits of continental shelf entitlements beyond 200 nm under article 76, not delimitation of overlapping entitlements under article 83. The absence of delimitation is relevant to CLCS submissions because the CLCS, under its Rules of Procedure, may decline to review a submission without the consent of a State with potentially overlapping entitlements. While CLCS Rule 46 and Annex I to its Rules of Procedure speak of disputes in this context, the CLCS is not a dispute-settlement body and the reference to “land or maritime disputes” is much broader than a legal dispute with respect to delimitation.Footnote ⁵ Sometimes the State with potentially overlapping entitlements consents to consideration of the submission by the CLCS on the understanding that this is without prejudice to the question of delimitation. Sometimes it does not consent and the CLCS does not proceed.

21. The map that accompanies the executive summary of the submission of the Maldives illustrates the continental shelf entitlements of the Maldives in the area beyond 200 nm from its coast whose outer limits it is submitting for review by the CLCS under article 76, paragraph 8, and Annex II. That map reveals that the submission with respect to the continental shelf entitlements of the Maldives beyond 200 nm from its coast is not intended to extend within the EEZ of other States, whose limits are illustrated in yellow. In this regard the map depicts a 200-mile EEZ measured from the Chagos Archipelago.Footnote ⁶

22. Mauritius informed the Maldives that there was an error in the map's depiction of the precise location of the 200-mile limit measured from the Chagos Archipelago, so that there is an area of limited size where the continental shelf entitlement beyond 200 nm from its coast that is illustrated by the Maldives overlaps with the area within 200 nm of the Chagos Archipelago as measured by Mauritius. When the Maldives failed to amend the map, Mauritius transmitted a note to the CLCS protesting the encroachment into its EEZ of the extended continental shelf entitlement depicted in the map.Footnote ⁷

23. While the note addresses overlapping claims of entitlement, it does not address delimitation as such.Footnote ⁸ This is confirmed by the map shown by the Co-Agent of Mauritius during the first round of oral proceedings: the “Potential Median Line” is located only within 200 nm of both coasts.Footnote ⁹

24. It is accordingly apparent, as previously noted, that this case is not before the Special Chamber because of a difference between the Parties regarding how overlapping entitlements should be delimited. It is here because one of the Parties has declined to proceed with delimitation negotiations. The reasons for doing so help to define the nature and scope of the dispute between the Parties.

25. The preliminary objections and the arguments of the Parties focus largely on the question of jurisdiction to decide on the status of the Chagos Archipelago in order to determine whether Mauritius is the State with opposite or adjacent coasts to which paragraph 1 of article 74 and paragraph 1 of article 83 refer.Footnote ¹⁰ Approaching that issue frontally engages the established jurisprudence that eschews the exercise of jurisdiction over issues regarding rights to land territory in proceedings under the compulsory jurisdiction provisions of Section 2 of Part XV of the United Nations Convention on the Law of the Sea (see Arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname, Award of 17 September 2007, RIAA, Vol. XXX, p. 1, at pp. 42–45, paras. 174–181, p. 86, paras. 307–308; Chagos Arbitral Award, at pp. 458–460, paras. 214–221; South China Sea Arbitration between the Republic of the Philippines and the People's Republic of China, Award of 12 July 2016, RIAA, Vol. XXXIII, p. 153, at pp. 184–185, para. 5 (hereinafter “South China Sea Arbitral Award”);Footnote ¹¹ Arbitration concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait between Ukraine and the Russian Federation, Award concerning Preliminary Objections of the Russian Federation of 21 February 2020, PCA Case No. 2017–06 at pp. 48–49, para. 156, p. 59, para. 197) (hereinafter “the Coastal State Rights Arbitral Award”).

26. The South China Sea award makes a similar point with respect to the territorial claims of third States as well (South China Sea Arbitral Award, at p. 239, para. 157). This is one of the reasons given for concluding that the third-State claimants are not indispensable parties (ibid.). Although the situations are different, that reasoning tends to suggest that the predicate for the second preliminary objection subsumes the predicate for the first in this case (see Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America), Preliminary Question, Judgment, I.C.J. Reports 1954, p. 19, at p. 32 (“Albania's legal interests . . . would form the very subject-matter of the decision”)).

27. Mauritius asserts at the outset of its Written Observations, “The existence of the ICJ Advisory Opinion and the UN General Assembly Resolution are matters of fact, which, as shown below, are determinative of the legal issues raised by the Maldives' Preliminary Objections.” Mauritius thereby invites the Special Chamber to avoid the question of the existence of jurisdiction to determine disputed rights to land territory by attributing conclusive prescriptive and, in practical effect, res judicata consequences to the advisory opinion and the ensuing General Assembly resolution 73/295 of 22 May 2019. In doing so, Mauritius attempts to avoid the distinction between the authoritative nature of an advisory opinion of the ICJ and its legally binding effect, and the distinction between the competence of the General Assembly to deal with a matter and the legally binding effect of its conclusions. It may be noted in this regard that General Assembly resolution 73/295, like the General Assembly resolutions unsuccessfully invoked by Ukraine in the Coastal State Rights arbitration, was “not adopted unanimously or by consensus but with many States abstaining or voting against” it (see Coastal State Rights Arbitral Award, at p. 54, para. 175).Footnote ¹²

28. Even if Mauritius correctly perceives the intended meaning of the advisory opinion and the ensuing General Assembly resolution, its understanding of their legal effects is clearly not embraced by the United Kingdom.Footnote ¹³ In this regard the question before the Special Chamber is not whether that difference would constitute a dispute for purposes of satisfying the requirements for adjudication.Footnote ¹⁴ The question is whether the issue posed is outside its jurisdiction.

29. It is not apparent how, or why, the established jurisprudence, which eschews the exercise of compulsory jurisdiction under the Convention with respect to issues regarding rights to land territory, can be or should be avoided where there is a disagreement regarding the legal effect of a treaty, or judgment, award, or advisory opinion, or resolution of an international organization that addresses such rights.Footnote ¹⁵ The Coastal State Rights award suggests otherwise:

It is not clear why that logic should not apply to the Chagos advisory opinion as well. Shortly after the hearing on preliminary objections in the present proceedings, the ICJ rendered a judgment in which it noted the close connection for jurisdictional purposes between a boundary dispute and a dispute regarding an arbitral award concerning the boundary (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Judgment on Jurisdiction, para. 130, to be published in I.C.J. Reports 2020).

30. Approaching the issue of the status of the Chagos Archipelago frontally also magnifies the scope of the dispute between the Parties to this case. Mauritius maintains that its sovereignty over the Chagos Archipelago is beyond dispute as a matter of law. The Maldives, noting that there is in fact a dispute between Mauritius and the United Kingdom regarding the Chagos Archipelago, declines to be drawn into that dispute. The differences between these positions are narrower than the arguments concerning the jurisdictional objections may suggest.Footnote ¹⁶ It is possible to apply article 74 and article 83 only where these positions necessarily conflict, that is to the narrow questions that are unavoidably in dispute between the Parties at this juncture.

31. This would be far from the first case where a court or tribunal took such a restrained approach. That does not mean that every case is necessarily best approached in this way. But prior to the institution of proceedings in this case, the ICJ in its advisory opinion addressed, in a manner and to an extent that the Court deemed appropriate, the nature and implications of basic principles invoked by Mauritius in the present proceedings, and made clear that it is for the United Nations General Assembly to consider the ensuing steps (Chagos Advisory Opinion, at p. 139, para. 179).

32. The question before the Special Chamber is not whether it should reach the same conclusion on the merits with respect to the status of the Chagos Archipelago as that which is expressed in or implied by the advisory opinion or the ensuing General Assembly resolution. That would require adjudicating the merits of the claims to the islands, which would run counter to the jurisdictional limitations recognized by the existing jurisprudence. Rather in this case, Mauritius invites the Special Chamber to treat the territorial dispute as resolved by the Advisory Opinion and the ensuing General Assembly action. Quite apart from its underlying analytical challenges, accepting that invitation risks complicating the exercise by the General Assembly of its political functions and the exercise by the ICJ of its discretion with respect to requests for advisory opinions.

33. The advisory opinion states “that all Member States are under an obligation to co-operate with the United Nations in order to complete the decolonization of Mauritius” (para. 183(5)). It does not necessarily follow that this precludes the Maldives from declining to negotiate a maritime boundary with Mauritius for the time being. A more fulsome observation in this regard might, without questioning the authority or importance of the statement, nevertheless question whether its interpretation or application is within the jurisdiction of the Special Chamber, referring in this connection to the existing jurisprudence eschewing the exercise of jurisdiction under Section 2 of Part XV of the Convention with respect to issues regarding rights to land territory. In this connection it might be noted that questions regarding the right of self-determination and decolonization were addressed by the Third United Nations Conference on the Law of the Sea in resolution III rather than in the text of the Convention, that there is no reference to that resolution in the text of the Convention, that such matters are beyond the scope of the substantive and dispute-settlement obligations accepted by the States Parties in consenting to be bound by the Convention, and that the references to international law in article 74, article 83, and article 293 are not open-ended invitations to conclude otherwise.

The request for judicial determination of a permanent maritime boundary

34. It is difficult to reach a conclusion that there is jurisdiction to proceed with delimitation in this case that is compatible not only with a cautious view of the legally binding effect of the ICJ advisory opinion and ensuing General Assembly resolution but that is also compatible at the same time with a restrained view of the Special Chamber's jurisdiction to pronounce on rights to land territory. The two are in tension with each other, pulling in opposite directions in that context. There is little if anything in the record of this case to suggest that there is a need for a permanent maritime boundary to divide the area of overlapping entitlements that is pressing enough to require such an undertaking at present. In my view, it is preferable to consider alternatives under articles 74 and 83 that avoid foreclosing such action in the future if need be, and that for the time being restrain the activities of the Parties in the area of overlapping entitlements.

35. The object of paragraph 1 of article 74 and of paragraph 1 of article 83 is a maritime boundary. Land and maritime boundaries share the characteristics of formality and finality, whatever the conceptual distinctions between them (see Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61, para. 217). The “establishment of a permanent maritime boundary is a matter of grave importance” (Nicaragua v. Honduras, at p. 659, para. 253).

36. These characteristics amplify the differences between the Parties to this case. These characteristics also suggest that paragraph 1 of article 74 and paragraph 1 of article 83 should not be interpreted to require a State to negotiate on a permanent maritime boundary when it declines to do so on the grounds that this would require it to become entangled in a disagreement between other States that exists in fact with respect to the territory of which the opposite or adjacent coast forms part. From this it should ordinarily follow that the “reasonable period of time” referred to in paragraph 2 for reaching agreement under paragraph 1 has not yet elapsed. Otherwise, in situations of failure to negotiate, one would impose the same result as would obtain in the absence of a reasonable justification.

37. In the Timor Sea Conciliation, the Conciliation Commission did not accept Australia's asserted justifications for declining to negotiate on delimitation, and accordingly concluded that a reasonable period of time had elapsed under article 298, paragraph 1(a)(i) (Timor Sea Conciliation, Decision on Australia's Objections to Competence, paras. 77–82). It is evident that Australia's objective in that context was to preclude delimitation. It may be assumed for purposes of the present case that a comparable refusal to negotiate under paragraph 1 of article 74 and paragraph 1 of article 83 would ordinarily mean that a reasonable period of time had elapsed under paragraph 2.

38. The Maldives has made clear that its reluctance to negotiate a maritime boundary is based on its desire not to be drawn into a dispute between other States that is not of its making and to which it is not party. The Maldives has also indicated that it is prepared to proceed with delimitation negotiations once the dispute between the other States is resolved. As previously noted, that position in my view merits respect for important reasons of public order.

39. The effect to be accorded the reluctance of the Maldives to negotiate a permanent maritime boundary is not logically contingent on the legal merits of the respective positions taken by the disputing parties. Territorial claimants not infrequently insist that opposing claims are mere assertions that merit no legal cognizance; whether that view is or is not correct says little if anything about the posture of a third State that seeks to avoid entanglement in the disagreement. Nor is the effect to be accorded the reluctance of the Maldives to negotiate logically contingent on any particular characterization of the disagreement between Mauritius and the United Kingdom, be it one over territorial sovereignty or one over completion of the process of decolonization as envisaged in the ICJ advisory opinion and General Assembly resolution 73/295. Indeed, resolution III of the Third United Nations Conference on the Law of the Sea suggests that it could be both.

40. A conclusion for the foregoing reasons that the request of Mauritius for judicial determination of a permanent maritime boundary is not yet admissible renders it unnecessary to address and decide on each of the preliminary objections with regard to that claim. This in itself, in my view, is a helpful consequence of resolving in the foregoing manner the narrow questions that necessarily divide the Parties to this case.

41. The issue thereby decided under paragraphs 1 and 2 of article 74 and paragraphs 1 and 2 of article 83 is the effect of the position of the Maldives with respect to the negotiation of a maritime boundary under paragraph 1, not that of the sovereignty claim of another State. There is ample evidence in the record of this case that the Maldives' explanation of the reason for its reluctance to negotiate a maritime boundary with Mauritius is a not a mere fabrication or pretext for precluding delimitation (see Coastal State Rights Arbitral Award, at p. 57, para. 189). No additional pronouncement on the existence, let alone the merits, of a territorial dispute regarding the Chagos Archipelago is required.Footnote ¹⁷ That in turn avoids the risk of calling into question the coherence of the jurisprudence regarding jurisdiction to determine rights to land territory in proceedings instituted under the compulsory jurisdiction provisions of Section 2 of Part XV of the Convention.

42. A decision on jurisdiction and admissibility in this case need not, and preferably should not, amplify the dispute between the Parties by treating their basic positions of principle as being in fundamental and unavoidable conflict. Alternative inferences need not be excluded where this is unnecessary to decide the question. It might be maintained that the conclusion that a reasonable period of time for negotiation under paragraph 1 of article 74 and paragraph 1 of article 83 has not yet elapsed implies that Mauritius is the State with an opposite or adjacent coast under those paragraphs; it also might be maintained that all that is decided is that paragraph 1 does not require the Maldives to negotiate with Mauritius on a final boundary when the Maldives declines to do so pending resolution of a dispute regarding territory of which the opposite or adjacent coast forms part.

Obligations under paragraph 3 of article 74 and paragraph 3 of article 83

43. The conclusion, for the foregoing reasons, that the request of Mauritius for judicial determination of a permanent maritime boundary is not yet admissible would not necessarily mean that the Parties have no obligations under paragraph 3 of article 74 and paragraph 3 of article 83 pending delimitation.

44. The more flexible word “arrangements” in paragraph 3 may be compared with the more formal word “agreement” in paragraph 1 of each of those articles. The contrast is marked. The function of paragraph 3 is not delimitation, but rather management of the situation pending delimitation. It provides the basis for self-restraint and enhances both the willingness and the ability of governments to forestall and resist pressures for destabilizing action.

45. Paragraph 3 specifies two obligations in this regard (see Ghana/Côte d'Ivoire Judgment, at p. 166, para. 626). One is to make every effort to enter into provisional arrangements of a practical nature with the other party, on the understanding that such arrangements are without prejudice to the final delimitation. The other is to make every effort not to jeopardize or hamper the reaching of the final agreement. The latter obligation might be satisfied either by unilateral self-restraint or by provisional arrangements with the other party or both.

46. One may reasonably assume that the term “States concerned” in paragraph 3 of article 74 and paragraph 3 of article 83 includes the “States with opposite or adjacent coasts” referred to in paragraph 1. But that need not necessarily limit the application of paragraph 3. The immediate context for the interpretation of the words “States concerned” in paragraph 3 is that paragraph. Its function is different from that of paragraph 1. It is not apparent why the words “[p]ending agreement as provided for in paragraph 1” cannot be understood to embrace an impediment to agreement such as that which led the Maldives to decline to negotiate a maritime boundary for the time being

47. It is neither logically necessary nor consistent with the overall structure of article 74 and article 83 to conclude that relieving the Maldives for the time being of its obligation to negotiate under paragraph 1, in order to avoid being drawn into a dispute between other States, also relieves both Parties of their obligations under paragraph 3. While negotiating a permanent maritime boundary may be difficult to reconcile with a policy of avoiding involvement in a dispute between other States regarding land territory of which the opposite or adjacent coast forms part, that need not be the case with respect to self-restraint and informal arrangements. Self-restraint may be unilateral, need not be directed explicitly to any given State, and need not apply to all of the area in which the 200-mile zones overlap. The fact that both Parties are also flag States with respect to certain activities may provide a convenient basis for affirmative cooperation in a manner that avoids prejudice to either's position.

48. In its Written Observations, the Maldives asserts that the Chagos arbitral award “retains res judicata force between the United Kingdom and Mauritius.” Similarly, counsel for the Maldives states that the award remains “pleinement pertinente” and has “le « caractère définitif » des décisions revêtues de l'autorité de la chose jugée.” From that perspective, the reasons advanced by the Maldives for declining to negotiate a boundary under paragraph 1 of article 74 and paragraph 1 of article 83, and its jurisdictional objections in regard to the judicial determination of a permanent maritime boundary, need not extend to the question of its obligations under paragraph 3 with respect to the legal interests of Mauritius identified in the Chagos arbitral award. In addition to a reversionary interest in the Chagos Archipelago itself, these interests include both fishing and the benefit of any minerals or oil discovered in or near the Chagos Archipelago (see Chagos Arbitral Award at pp. 539–542, paras. 429–434, p. 548, para. 448, pp. 550–551, para. 453). The inclusion of these legal interests as objects of the obligations of the Maldives under paragraph 3 would be consistent with the object and purpose of that paragraph, and would thereby embrace what are widely regarded as the principal economic benefits of EEZ and continental shelf entitlements.

49. Accordingly, I agree that the legal interests of Mauritius identified in the Chagos arbitral award may play a role in this case.Footnote ¹⁸ In my opinion that role is best directed to paragraph 3 of article 74 and paragraph 3 of article 83. The text of those paragraphs and their object and purpose lend themselves to flexible application of a transitional nature that, to the extent required, may be addressed in geographic and substantive detail.

(signed)

Bernard H. Oxman