Pandemics, Procedure and Participation: Hybrid Hearings in the Mauritius/Maldives Maritime Boundary Dispute

Introduction

On 28 January 2021, an ITLOS Special Chamber delivered its Judgment on Preliminary Objections in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives, PO Judgment). This progressive judgment has stirred rich academic debate, including Thin’s contribution on the legal effect of soft law and Roeben and Jankovic’s contribution on the consolidation of sovereignty. State responses are likewise mixed, with the UK being –as the other claimant/assertion state to sovereignty over the Chagos Archipelago– dismissive of its relevance (UK Minister of Foreign Affairs Statement 5 Nov 2019; Answers 8 Feb 2021; 10 Feb 2021; 15 Feb 2021; 22 Feb 2021; 8 March 2021; contra Shadow Foreign Secretary, 11 Feb 2021).

In this post I leave the substantive law debate to colleagues and instead examine a procedural law dispute that arose within the Mauritius/Maldives Dispute, PO proceedings. More specifically, it is apparent that during the consultation of parties in respect of the proceedings’ procedure (Rules of ITLOS, Article 45), Mauritius and Maldives disagreed on the fairness of Judges ad hoc participating by different means (remote or in person), and whether Judges ad hoc can be directed to participate by a particular means. The Mauritius/Maldives Dispute, PO proceedings were the first ITLOS hearings to embrace a hybrid format and the historical context of this disagreement is found in the 2020 Amendments to the Rules of ITLOS.

This post first proceeds with an overview of the responses of UNCLOS dispute settlement procedures to COVID-19 and its impact on their respective rules of procedure. With this contextual framework in place, the procedural disagreements in the Mauritius/Maldives Dispute, PO is examined. This post will conclude on the importance of equal judicial participation in all stages of proceedings, including at hearings.

Innovation of UNCLOS Dispute Settlement Procedures in light of COVID-19

Article 287(1) of UNCLOS lists the principal dispute settlement procedures available to parties to settle disputes concerning the interpretation or application of UNCLOS. This includes the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), Annex VII Arbitral Tribunals, and Annex VIII Arbitral Tribunals. Article 284 and 297 of UNCLOS provide for application of Annex V Conciliation Commissions. We shall focus on these bodies, although arbitral institutions in other fields have also promoted virtual hearings in response to COVID-19 (Popović & Simonovich 2020).

The ICJ was the first to move, initially suspending or postponing hearings in early 2020, followed by amendment of the Rules of Court on 25 June 2020. The amended Articles 59(2) and 94(2) of the Rules of Court state that the Court may, “for health, security or other compelling reasons,” hold hearings or readings of judgments by video link. Written proceedings in Ukraine v. Russia (twice), Gambia v. Myanmar and Guatemala/Belize have all been extended because of the impact of COVID-19 on governmental preparation. In response to COVID-19, oral proceedings have occurred by video link (Guyana v. Venezuela, Judgment Paragraph 14; Qatar v. UAE, Judgment Paragraph 20). Of the 7 ICJ judgments or orders read in court since January 2020, public access has been restricted to video link in all but 1 case (i.e. Gambia v Myanmar in January 2020). Both the President and Registrar of the ICJ are confident that the swift amendment of procedures and the embracement of technology allowed the ICJ to continue to fulfil its functions, despite COVID-19.

ITLOS followed suit in September 2020, amending Articles 41(7), 74(2), 112(5), 124(3) and 135(1bis) of the Rules of ITLOS to provide for the conduct of meetings, hearings or readings with remote participation and/or public access “as an exceptional measure, for public health, security or other compelling reasons”. ITLOS has not published its deliberations (Rules of ITLOS, Article 42(1)), but the Chair of the Committee on Rules and Judicial Practice –the body that proposes amendments– has said (pp. 4-5) that the amendments were proposed in response to COVID-19.

The Mauritius/Maldives Dispute was originally submitted to an Annex VII Arbitral Tribunal before being transferred to ITLOS following consultations with the President of the Tribunal (Mauritius/Maldives Order 2019/4). Under Article 5 of Annex VII of UNCLOS and Article 4 of Annex VIII of UNCLOS, said Arbitral Tribunals shall determine their own rules of procedure. Given the lack of post-2020 devised rules, the practice of Annex VII/VIII Arbitral Tribunals does not appear to publicly address the impact of the COVID-19 pandemic on proceedings (e.g. Dispute Concerning Coastal State Rights, Rules, Articles 8 & 16). The procedural timetable in the Dispute Concerning Coastal State Rights was recently revised to extend the memorial submission deadlines, but unlike the ICJ practice it is silent on the rationale of Ukraine’s application (Procedural Order No 7).

Conciliation Commissions under Annex V of UNCLOS shall likewise determine their own rules of procedure (UNCLOS, Annex V, Article 4). The ground-breaking Timor Sea Conciliation is the only practice to-date, but its Rules of Procedure were considerably flexible any hypothetically could have adjusted to a global pandemic (Timor Sea Conciliation, Rules, Articles 10(1), 12(2), 14 & 18(4)).

Finally, the appointed registrar for Arbitral Tribunals or Conciliation Commissions has historically been the Permanent Court of Arbitration (PCA), or exceptionally the International Centre for Settlement of Investment Disputes (ICSID) (Southern Bluefin Tuna, Decision Paragraphs 8-9). Since COVID-19, both PCA and ICSID have promoted or conducted virtual hearings and so any forthcoming disputes and rules of procedure are likely to reflect the possibility for hybrid proceedings.

The Mauritius/Maldives Dispute on Judicial Participation

In light of COVID-19, the Mauritius/Maldives Dispute, PO hearings were first delayed from June 2020 to October 2020 (Mauritius/Maldives Order 2020/2, Paragraphs 4-6). Consultations and a decision on whether to hold hearings in a hybrid format then occurred between July-August 2020 (Mauritius/Maldives, PO Judgment, Paragraphs 25-27). As this predates the entry into force of the 2020 Amendments to the Rules of ITLOS it is apparent that the amendments were of a clarifying nature and that the Tribunal considered hybrid hearings were within its wide procedural discretion under both UNCLOS and the Rules of ITLOS.

Nonetheless, when the parties were notified as to the intention of Judges to participate in the hearings in person or remotely, the Maldives expressed concerns that the Judges ad hoc would be participating by different means: “[t]his could potentially undermine the fairness of the proceedings” and accordingly, the Maldives requested that, “if Judge ad hoc Oxman [Maldives’ choice] is to participate in the hearing remotely, then Judge ad hoc Schrijver [Mauritius’ choice] should also be requested to participate remotely” Mauritius/Maldives, PO Judgment, Paragraphs 27, 29 & 32). Mauritius opposed the Maldives’ request, arguing that such a request to Judge ad hoc Schrijver is without precedent and would equate a difference of treatment that is inconsistent with the complete equality of all Judges, including Judges ad hoc Mauritius/Maldives, PO Judgment, Paragraphs 30 & 33).

As Mauritius and the President of the Special Chamber emphasised, the participation of Judges ad hoc on terms of complete equality is explicitly contained in Article 17(6) of Annex VI of UNCLOS and Article 8 of the Rules of ITLOS. The same can be said of elected Judges and Judges ad hoc of the Seabed Dispute Chamber (Rules of ITLOS, Articles 3 & 25). The President of the Special Chamber therefore rejected the Maldives’ request as the Rules of ITLOS provide for Judges to decide on their own which mode of participation to adopt. Removing the discretion of a particular Judge, or type (elected/ad hoc) of Judge, would be discriminatory and without legal basis. Finally, hybrid hearings are premised on there being “no difference between the two modes of participation” (Mauritius/Maldives, PO Judgment, Paragraph 34).

As international dispute settlement bodies respond to external circumstances that may prevent them from fulfilling their functions, or result in untenable delays, the Tribunal should be commended for reaffirming the equality of video link and in person judicial participation. This includes reaffirming the trust of states thereof. Indeed, it is arguable that all rights and obligations of judges during hearings, including making a solemn declaration, holding themselves at the disposal of the Tribunal, questioning parties, witnesses or experts, and participating in deliberations can be equally executed via video link (Rules of ITLOS, Articles 5, 9, 41, 42, 76(3) & 80; UNCLOS, Annex VI, Articles 11 & 17).

Finally, once the consultations on procedure were concluded it is evident that all parties involved embraced the hybrid format. The solemn declaration of Judge ad hoc Oxman was given via video link, four public sittings were held in a hybrid format (Mauritius/Maldives, PO Judgment, Paragraph 42), and the reading of the Judgment included restricted public access due to COVID-19. The record demonstrates the hybrid participation of both Judges (6 in person, 3 via video link) and members of Counsel (Maldives and Mauritius).

Conclusion

The 2020 Amendments to the Rules of ITLOS sought to address the workings of the Tribunal during circumstances that may prevent it from fulfilling its function. The definition of “compelling reasons” to adopt a hybrid format is not exhaustively defined and so the Tribunal is well equipped to respond to similar unforeseeable events in the future. The Mauritius/Maldives, PO Judgment was the first testing ground for the new ITLOS Rules. The Tribunal has thankfully reaffirmed the equality and discretion of methods for Judges’ participation.

Whether the UK is an indispensable party to the dispute and therefore, under the Monetary Gold principle (M/V “Norstar”, PO Judgment, Paragraphs 171-174) the UK’s participation is essential for proceedings to continue, will likely hold the limelight of academic debate. Nonetheless, the full and effective participation of all Judges in proceedings is also essential as the decisions of ITLOS are final and binding and must reflect the opinions of all Judges (UNCLOS, Annex VI, Articles 30 & 33; Resolution on Internal Judicial Practice, Article 9(2)).

Finally, one may wonder that if a hybrid format can preserve the equality of participation in hearings during “exceptional” times, why should we not fully embrace the hybrid format as a general approach? As Schatz and I previously pondered (2020, p. 396), if hybrid formats bring with it the benefits of reduced costs to parties, reduced environmental costs to the international community, and increased accessibility and thus competitive edge for ITLOS, why not take this forward as a generally applicable option during the consultation of parties in respect of the proceedings’ procedure?