The recent ruling of the Permanent Court of Arbitration of the United Nations is a significant victory for the Mauritian side. For the first time since 1965, after having unilaterally dismembered the Mauritian territory, the UK will have to provide a full written account of how it acquired the Chagos Islands at a time when Mauritius was still a crown colony.
The issue before this international tribunal, set up pursuant to Annex VII of the UN Convention on the Law of the Sea, is whether the UK was entitled to unilaterally declare a Marine Protected Area around the Chagos Islands when its status as a coastal state with regard to the islands was not certain. The UK government had foreseen the difficulty and had raised preliminary objections to avoid the embarrassing situation of having to explain its status over the Chagos. Its objection has been turned down.
As a result, it will have to explain, for the first time since December 1960, how on earth it had violated UN Resolution 1514 with impunity especially when Clause 6 expressly provided that “any attempt aimed at the partial or total disruption of the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.
The UK government will also have to explain why it had chosen to ignore Resolution 2066 “warning the administering power (UK) to take no action, which would dismember the Territory of Mauritius and violates its territorial integrity”. The UN Tribunal will have to address these issues since the question of title and the declaration of the marine protected area are inextricably intertwined.
In the 1960s the UK had taken extra care to erect a legal barricade before the International Court of Justice (ICJ) against any claim that its former colonies may have had against it and Mauritius must have been its prime target. By virtue of Article 36 of the statute establishing the ICJ, UK made a declaration to accept the jurisdiction of the ICJ save that the international court will have no jurisdiction in relation to disputes arising between the UK and the “government of any other country which is a Member of the Commonwealth with regard to situations or facts existing before 1 January 1969”.
Soon after independence, Mauritius ill-advisedly made a similar reservation with regard to the ICJ, save that in the case of Mauritius no date is mentioned. The resulting effect of these reservations meant that Mauritius could not, as a member of the Commonwealth, bring the UK before the ICJ to exercise its right of sovereignty over the Chagos. It has always been a huge legal handicap to Mauritius for not being able to have recourse to the International Court of Justice (ICJ) to resolve the Chagos issue. What better forum to seize, when a member-state is in clear violation of UN resolutions it had committed itself to abide to in the first instance as a member of the UN?
We should recall that at one time Hon Paul Bérenger had threatened to end the membership of Mauritius to the Commonwealth. It would not have served any purpose. Britain immediately reacted and amended its reservation before the ICJ to provide that it shall apply to present and former members of the Commonwealth. The legal door to a dispute resolution before the ICJ was thus permanently bolted. Mauritius was left with only one option, an advisory opinion before the ICJ which is not binding but will have persuasive force within the global community.
The procedure is onerous though and, unless and until the necessary political support is obtained from the General Assembly, such a course of action cannot be lightly contemplated. This is why the ruling of the Permanent Court of Arbitration is so important. The Marine Protected Area was clearly a colourable device resorted to by the UK under the ecological guise that it was intended to protect the marine environment. The true motives of establishing the Marine Protected Area came to light when a US diplomatic cable dated May 2009, disclosed by WikiLeaks, revealed that a Foreign Office official had told the Americans that a decision to set up a “marine protected area” would “effectively end the islanders’ resettlement claims”. The protection of marine environment was a mere ploy intended effectively to prevent any attempt of resettlement by the Chagossians. The new turn of events shows that the legal strategy adopted by the Mauritian government is simply remarkable.
* Published in print edition on 31 January 2013