By Vimalen Reddi
“Legal optimism, however, is often tempered by political anxieties. In the context of the Mauritius’s claim at the International Tribunal for the Law of the Sea, these anxieties are being felt in various quarters, manifested by the questions: What are the prospects and consequences of a loss against a friendly power and former colonial master? Were there any other alternatives? Wouldn’t a political and diplomatic resolution to this issue have served Mauritian and Chagossian interests better?” The 45 years struggle over the Chagos islands took a new turn on 22 December 2010, when Mauritius filed a claim at the International Tribunal for the Law of the Sea (ITLS) against the United Kingdom for the creation of the Marine Protection Area around the Chagos islands. It is a brave decision which has raised eyebrows in various quarters locally.
Recourse to international legal institutions to resolve conflicts in international political life – sometimes termed ‘juridified diplomacy’ – does offers an attractive course of action in a field mostly dominated by the constant pull between law and politics. The international tribunal or court, like domestic courts, offers (at least) the fiction of a place uncontaminated by politics, where state or individual can be brought to face up to their responsibilities before a higher order and the eyes of the world.
Legal optimism, however, is often tempered by political anxieties. In the context of the Mauritius’s claim at the ITLS, these anxieties are being felt in various quarters, manifested by the questions: What are the prospects and consequences of a loss against a friendly power and former colonial master? Were there any other alternatives? Wouldn’t a political and diplomatic resolution to this issue have served Mauritian and Chagossian interests better?
International law specialists will be very familiar with such anxieties in their field. After all, the same anxieties spawned scepticism at the viability of international legal institutions to settle international political disputes. Yet, the same anxieties ultimately failed to foresee the proliferation of such institutions, including the creation of an International Court of Justice (ICJ), which has, only over the last 20 years, healthily entertained more than 60 inter-state claims, including many territorial disputes between friendly countries.
In any case, there can be no doubt that the Prime Minister and his experienced and eminent team of international law specialists would have considered such anxieties before opting to file a claim at the ITLS. More so, lest we forget, it is not the first time that Mauritius has contemplated having recourse to an international court on the Chagos dispute.
In 2004, following the decision of the British government to promulgate the unfair British Indian Ocean Territory Order (BIOT Order), which prohibited the Chagossians from remaining on the islands without express authorisation, Mauritius contemplated having recourse to the ICJ to finally and conclusively settle the dispute. But instead of moving decisively, Mauritius dithered with threats, stifled again by political anxieties. These (political and diplomatic) threats ultimately proved a gross miscalculation and wholly counterproductive, achieving absolutely no progress, and fatally closing the way to any future recourse to the ICJ’s contentious jurisdiction on the Chagos dispute.
The 2004 debacle then is perhaps the case in point of where political anxieties, however legitimate, are overplayed at the expense of legal optimism. It is the one case which certainly requires reminding people about.
2004 – Mauritius, Chagos and the International Court of Justice (ICJ)
Following the uproar caused by 2004 BIOT Order, Mauritius was left with few options. First, it could have simply pressed on with the political and diplomatic manoeuvres which had so far, and frustratingly so, borne no fruit. Second, it could have opted to seize the ICJ’s jurisdiction. Mauritius instead chose a third option, a middle ground position, which consisted of using threats of legal action at the level of the ICJ to exercise political and diplomatic pressure on the United Kingdom.
To be sure, to have the ICJ’s jurisdiction seized would have been far from a straightforward course of action, not least because it first required that Mauritius relinquishes its membership of the Commonwealth. This is because a number of Commonwealth States, including the United Kingdom and Mauritius, had opted to recognise the jurisdiction of the ICJ, subject to a common qualification — the so-called doctrine of Inter Se between Commonwealth States. This doctrine qualified Commonwealth States’ acceptance of Article 36, excluding the ICJ from adjudicating disputes arising between them. The stated rationale for this was that Commonwealth Member States felt that the special relationship between them, borne of their common history, heritage and traditions, would be endangered if they could drag one another before a tribunal, and that this special relationship would serve them better where disputes arose between them.
To be clear, Article 36 of the International Court of Justice Statute, the so-called Optional Clause 36 provides that it is the option of the State whether it wishes to subject itself to the ICJ’s jurisdiction. What’s more, where the State chooses to be so bound, it may also restrict or limit the jurisdiction of the Court in a number of ways. Article 36 reflects the fundamental principle of state sovereignty, on which the whole of international law rests.
For instance, the UK’s clause deposited at the ICJ excluded, amongst other things, the jurisdiction of the ICJ with regard “to any disputes with the government of any country which is a member of the Commonwealth with regard to situations or facts existing before 1 January 1969”. (The temporal limitation of 1 January 1969 was inserted to exclude all disputes arising during decolonisation.) The effect of the British exclusionary clause would thus have prevented Mauritius from resorting to the ICJ on the Chagos dispute, because it is a member of the Commonwealth.
The Mauritian government, which had obtained legal advice independently as well as from the Commonwealth’s own Legal and Constitutional Affairs Division, did in fact contemplate this course of action, but did not ultimately act by it. Instead, Mauritius candidly and very publicly threatened to leave the Commonwealth and seize the ICJ’s jurisdiction, should the UK not compromise on the Chagos issue.
The BBC reported on 30 March 2004 that Mauritius had decided to pursue its claim over Chagos and that it “would seek negotiation with the British Government, but (had) not ruled out recourse through the United Nations or the International Court of Justice.” On 7 July 2004, the Guardian reported that Mauritius had threatened to leave the Commonwealth so that it could take Britain to the International Court of Justice for the return of the Chagos Islands. It reported that the then Mauritian Prime Minister, Mr Bérenger, had written to Mr Blair, the then British Prime Minister, “about the issue several months ago and (was) angry that he (had) not yet received a reply”. Another official was reported to have added that “a significant compromise by the British government would be needed in the next few weeks to head off the threat”. The Guardian reported that the Mauritian Prime Minister would be flying to London on 9 July 2004 to discuss withdrawal with the then Commonwealth Secretary General, Don Mckinnon.
These threats, however, proved futile, as a few days before the Mauritian Prime Minister was to fly to London, the United Kingdom quietly moved to simply modify its exclusion clause to the ICJ’s jurisdiction, to exclude any disputes between itself, Commonwealth States and former Commonwealth States, therefore quashing any Mauritian hopes to ever have recourse to the contentious jurisdiction of the ICJ, even if it left the Commonwealth.
Britain’s revised clause, deposited on 5 July 2004, now simply excluded, amongst other things, the jurisdiction of the ICJ with regard to “any disputes with the government of any country which is or has been a member of the Commonwealth”, with regard to situations or facts existing before 1 January 1974. Prof Anthony Aust, legal advisor to the Foreign and Commonwealth Office for 35 years confirms, in his handbook of international law that the rationale for the revision of the UK’s exclusion clause was that “Mauritius had said publicly (and rather rashly) that it was considering leaving the Commonwealth so that the ICJ would have jurisdiction under the 1969 declaration”.
One can have a measure of sympathy for the then Mauritian Prime Minister, Mr Bérenger, as he stood by the side of the Commonwealth Secretary General on 9 July 2004 to reaffirm his determination to bring the Chagos dispute to the ICJ, seemingly unaware of the UK’s revised position regarding the ICJ’s jurisdiction, only a few days earlier.
It is not clear whether Mauritius was ever serious about leaving the Commonwealth and bringing a claim to the ICJ. It would certainly not have been a first for a State to leave the Commonwealth voluntarily: Pakistan, Fiji and South Africa all left but were later re-admitted.
There are two possible conclusions, both of which are unflattering to the Government of Mauritius at the time. Either, the Government of Mauritius was indeed serious about leaving the Commonwealth and having recourse to the ICJ, but remained indecisive, held back by political anxieties, and mistakenly preferred to threaten legal action instead. Or, the Government of Mauritius was never actually serious about leaving the Commonwealth and having recourse to the ICJ, once again trapped by political anxieties, and was eventually found out.
What is clear, however, is that Mauritian political strategy against opponents with over 500 years of guile and experience in international political life, was at best naïve, and indeed proved very costly. What is also clear is that political anxieties did trump the legal optimism in 2004, with the result that no progress was made, and Mauritius lost the option to one day refer the matter to the ICJ’s contentious jurisdiction.
The creation of the Marine Protection Area in the Chagos islands by the United Kingdom, however, has now opened the doors of the ITLS. And recourse to the ITLS will necessarily, albeit indirectly, reopen the issue of sovereignty. After 45 years of struggle and with little if no progress on the issue of sovereignty, Mauritius has at last decided, similar to Mr Bancoult when he bravely initiated legal proceedings in the United Kingdom, to give the law a chance.
Vimalen Reddi is a barrister and formerly Legal Consultant at the Commonwealth Secretariat. He also taught International Criminal Law at the London School of Economics and Political Science.
* Published in print edition on 14 January 2011