1. The Chagos islands question before ITLOS’s Special chamber in its 2021 Judgement on the Preliminary Objections
It was on 28th January 2021 when the Special Chamber of the International Tribunal for the Laws of the Sea (hereinafter: ITLOS) provided a ruling in its judgment concerning the preliminary objections in Dispute concerning the delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) dispute. [1] The judgment took cognisance of the fact that the jurisdiction of the court to provide a ruling in the above-mentioned issue is absent. The Parties, Maldives and Mauritius, instituted the proceedings as a part of a ‘special agreement’ that the parties had signed on 24th September 2019, thereby agreeing to transfer the arbitral proceedings initiated by Mauritius in accordance with Article 287(1) and Annex VII of theUnited Nations Convention on the Law of the Sea (hereinafter, “UNCLOS”) [2]to a Special Chamber of the Tribunal. [3]
The Special Chamber’s decision addresses five preliminary objections raised by the Maldives, all of which pursue the objective of the Chamber, finding that it does not possess jurisdiction over the questions involved. For the purposes of this article, the first two objections are of interest: the Maldives first contended that the United Kingdom must be seen as an indispensable third party to the dispute given the fact that there lies a claim by the United Kingdom over the Chagos Archipelago [4],any adjudication without the latter’s participation would be improper. [5] Secondly,the Maldives contended the absence of jurisdiction of the Special Chamber with regard to the matter concerning the sovereignty of the Chagos Archipelago– a question necessary to solve, for resolving the dispute. [6] Responding to these objections, the Special Chamber expressed its view that given the substance of these invocations by the Maldives “the legal status of the Chagos Archipelago is at the core of the disagreement between the Parties” as regards both, the first and the second preliminary objection. [7] It is important to note that a potential maritime delimitation dispute between the Maldives and Mauritius could only be possible if both States share maritime borders. The question of sovereignty over the Chagos Archipelago is thus important in this aspect precisely because Mauritius would if sovereignty over the Archipelago was established, constitute the relevant concerned party to the dispute either with an opposite or adjacent coast to the Maldives in order to insinuate a possible maritime delimitation per Article 74, paragraphs 1 and 3, and Article 83, paragraphs 1 and 3 of UNCLOS.
For the purposes of the Special chamber’s deliberation, as well as for the purposes of this article, the question of the legal status of the Chagos Archipelago is paramount. The Special Chamber based its ruling upon varied elements which have developed from the ever going dispute between United Kingdom and Mauritius concerning the sovereignty of Archipelago, such as the arbitral award of the 18th of March 2015 in the Chagos Marine Protected Area Arbitration (Mauritius v. the United Kingdom) [8], the advisory opinion rendered by the International Court of Justice of the 25th of February 2019 on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, [9] as well as on Resolution 73/295 of the United Nations General Assembly (hereinafter, “UNGA”) of the 22nd of May titled “Advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965” [10]. [11]
Through this article, the aftermath of the judgment as put forth by the Special Chamber based upon the Preliminary Objections with regard to the sovereignty of Chagos Archipelago would be articulated. The focus of my analysis rests thus on the contributions made by the Special Chamber to a different dispute than the one currently pending in front of the Special Chamber, it being the tussle of sovereignty between Mauritius and the United Kingdom over the Chagos Archipelago – involving aspects of the process of decolonisation and the right of peoples to self-determination. Furthermore, taking into account these contributions, I shall explore, albeit in a limited capacity, the consequences of the Special Chamber’s ruling for the Parties concerned in the sovereignty dispute over the Chagos islands from the perspective of the law of State responsibility. Nevertheless, first, a historical overview of the happenings relating to the dispute between Mauritius and the United Kingdom is warranted to offer the reader a fuller understanding of the gravity and complexity of the Chagos islands’ sovereignty claim(s).
2. The sovereignty dispute between Mauritius and the United Kingdom over the Chagos Archipelago
This part analyses the historical context surrounding and encompassing the dispute over the Chagos islands and sovereignty over the Archipelago. In the following paragraphs, the circumstances present during the procedure of decolonisation of Mauritius will be explained (2.1.), coupled with shedding light on an event and document of the past, which the Special Chamber specifically mentioned in its reasoning on the question of the legal status of the Chagos Archipelago: the Chagos Marine Protected Area Arbitration (2.2.) and the advisory opinion by the International Court of Justice on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (2.3.).
Equipped with understanding the historical narrative concerning the issue of sovereignty over the Chagos islands, the conclusions of the Special Chamber may be interpreted with greater accuracy and context. Only by familiarising oneself with past reasonings and deliberations can one properly discern the gravity of the Special Chamber’s Judgement on the Preliminary Objections rendered on the 28th of January in 2021.
2.1. The process of decolonisation of Mauritius and the question of the Chagos Islands
The dispute regarding the sovereignty of the Chagos Archipelago is as old as the Second World War. This dispute insinuated soon after the decolonisation post World War-2 was initiated as per theCharter of the United Nations [12] (hereinafter, “the UN Charter”). In Article 73 of the UN Charter, it is stated that:
“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories”. [13]
However, the promising wording of Article 73 was not considered as imposing legal obligations –it was rather interpreted as a basis for political commitment. [14] The legal norms pertaining to the process of decolonisation originated from subsequent UNGA resolutions, as well as from the practice of the Special Committee on Decolonisation (the Committee of Twenty-four). A rather landmark document adopted by the UNGA in this respect would bethe Declaration on the Granting of Independence to Colonial Countries and Peoples (December 1960, hereinafter, “the Colonial Declaration”) [15], which demonstrated the very essence and foundation of the process of decolonisation – the right of (colonial) peoples to self-determination. [16]
Furthermore, the Declaration provided in paragraph 6 that any attempt by States aimed at disrupting the territorial integrity of a country “isincompatible with the purposes and principles of the Charter of the United Nations” – without the proper consent of the colonial peoples. [17] It must be noted that the territorial integrity of a colonial entity, as encompassed in paragraph 6 of the Colonial Declaration, safeguards the proper exercise of the right to self-determination of a (colonial) peoples – since in its absence, acolonial peoples would not be able to fully exercise self-determination in a divided territory. [18]
It is on the backbone of these considerations, i.e., the right of a colonial peoples to self-determination and the prohibition of disrupting the territorial integrity of a colonial entity, that the question of sovereignty over the Chagos islands arose.
The Chagos Archipelago constituted a dependency of the Non-Self-Governing-Territory of Mauritius when in 1965, the time when possible Mauritian independence was discussed between the representatives of the United Kingdom and (the then colonial entity) Mauritius. On the 23rd of September, the then British Prime Minister, Harold Wilson, met with Premier Ramgoolam and other Mauritian ministers representing the colonial entity of Mauritius. In the discussion, the United Kingdom expressed the view, more or less clearly, that Mauritian independence may come at a cost, a condition – the representatives of Mauritius must consent to the detachment of the Chagos Archipelago, which was seen as an ideal location for a United States of America military base. Thus, independence was tied up with the detachment of the Chagos Archipelago, and the United Kingdom may be considered as having resorted to “considerable pressure” [19] in obtaining Mauritian consent in the form of the Lancaster House Agreement.Afterwards, the British Indian Ocean Territory (hereinafter, “BIOT”) [20] was created in 1965, with the Chagos islands detached from Mauritius and the local Chagossians of a population of about 2000 inhabitants forcibly removed from the entirety of the Archipelago in the wake of the planned construction of the said military base on the island of Diego Garcia – a constituent island of the Archipelago. [21]
These events serve as the cornerstone of Mauritius’s claim of sovereignty over the Chagos islands – a claim expressed “since at least 1980” [22]. In its reasoning after the detachment and independence, Mauritius contended that the necessary consent of colonial peoples (in this case of the ex-colonial entity of Mauritius), which would enable the United Kingdom to detach the Archipelago in an orderly manner with international law, was not given in accordance with the notions of the right of colonial people to self-determination.
2.2. The Chagos Marine Protected Area Arbitration Award
The Chagos Marine Protected Area arbitration procedure, instituted by Mauritius on the basis of Article 287 and Annex VII, Article 1 UNCLOS, on the 20th of December 2010, may be regarded as the first forum of international adjudication and dispute settlement where Mauritius presented its sovereignty claims over the Chagos Archipelago. In the arbitral proceedings, the establishment by the United Kingdom of a Marine Protected Area (hereinafter, “MPA”) surrounding the islands of the Chagos Archipelago was addressed together with questions regarding the legal status of the Archipelago. [23]
That the notion of sovereignty over the Archipelago constituted a major element in the arbitral proceedings can be discerned from the first final submission of Mauritius, respectfully requesting the Arbitral tribunal to adjudge and declare, pursuant to UNCLOS, as regards the Chagos Archipelago,that:
“(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; […] [24]
Effectively, such a submission sought a determination (and confirmation) from the Arbitral tribunal that, indeed, the United Kingdom does not possess (full) sovereignty over the Chagos Islands and, furthermore, that sovereignty lies with Mauritius. However, after establishing that the underlying dispute of sovereignty over the Archipelago was cardinal in the proceedings regarding the first submission – with the notions of “a coastal state” being an aspect of the wider sovereignty dispute, theArbitral Tribunal concluded that it did not possess jurisdiction to adjudicate on the matter. [25]
Nevertheless, the Arbitral tribunal drew several important conclusions concerning the dispute over the Archipelago between the United Kingdom and Mauritius. The tribunal indicated that both parties to the proceedings agreed that there was an agreement between the Mauritian Council of Ministers and the United Kingdom in 1965 concerning the detachment of the islands from (the then colonial entity) of Mauritius.The parties to the proceedings disagreed as to whether Mauritian consent was freely given in the existing circumstances [26], and whether there was a valid or binding agreement, as well as concerning the very substance of the notions agreed on. [27] The tribunal continued that:
“in the course of these proceedings, the validity or otherwise of the 1965 Agreement was a central element of the Parties’ submissions on Mauritius’ First and Second Submissions, sovereignty, and the identity of the coastal State”. [28]
The Arbitral tribunal further stated that the legal effect of the Lancaster House Agreement of 1965 represents a principal element with respect to the submission of both Parties on Mauritius’ fourth submission.
Ultimately, the Arbitral tribunal did not adjudicate upon the question of sovereignty over the Chagos Archipelago in the Chagos Marine Protected Area Arbitration. The Tribunal, on the other hand, discussed a central aspect of the sovereignty dispute – the validity and binding nature of the “Lancaster House Agreement”. In this regard, the primary issue remains whether consent was truly freely given by the representatives of Mauritius to the detachment of the Chagos islands.
As will be demonstrated in the following section – covering the Chagos Advisory Opinion of the International Court of Justice, it is precisely this notion of consent, i.e., the freely expressed will of colonial peoples, that could render the detachment internationally lawful. Therefore, consent may be regarded as the very heart of the sovereignty dispute over the Chagos Archipelago between the United Kingdom and Mauritius.
2.3. The Chagos islands Advisory Opinion by the International Court of Justice
A little over two years after the Arbitral Award was published in the Chagos Marine Protected Area Arbitration, the UNGA decided on its 71st session (88th plenary meeting) to request the International Court of Justice to render an advisory opinion based on Article 96 of the UN Charter and [29] inResolution 71/292, adopted on the 22nd of June 2017, the UNGA referred to the International Court of Justice the following two questions:
“(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 […];
(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 the Chagos Archipelago […]?” [30]
As explained by Allen, for the International Court of Justice to answer the given questions, a determination of “how, and when, the right to self-determination crystallized as a matter of customary international law”. [31] If the right to self-determination of colonial peoples already existed as part of customary international law (hereinafter, “CIL”) at the time when Mauritius sought independence (before 1965), then the above-mentioned rules governing the exercise of self-determination being: a) paying regard to the freely expressed will of colonial peoples by the administering State (here the United Kingdom) and b) safeguarding the territorial integrity of the colony seeking independence by not detaching, unilaterally and without consent, a part of its territory, would certainly apply and be binding on the United Kingdom. [32]
In this regard, the International Court of Justice stated that in spite of formally being a recommendation, it does possess a declaratory character with respect to the right to self-determination of colonial peoples as a norm of CIL, given the manner of its adoption and content. Furthermore, the wording that may be observed in Resolution 1514 (XV) possesses a normative character – to the extent it “affirms that “[a]ll peoples have the right to self-determination”. [33] With the right to self-determination being part of CIL from the adoption of Resolution 1514 (XV), the Court further contended that preserving the territorial integrity of a Non-Self-Governing-Territory was a necessary element of the right to self-determination of colonial peoples. [34] Concerning a possible partition of the colonial territory, the Court clearly expressed its opinion that:
“[…] any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination”. [35]
It follows from the Advisory Opinion that detachment of a part of a Non-Self-Governing-Territory without the freely expressed and genuine consent of the colonial peoples concerned would be contrary to the obligations international law imposes on administering States. Applying such a conclusion to the dispute between the United Kingdom and Mauritius means that if one could establish that the consent of the representatives of Mauritius to the “Lancaster House Agreement” in 1965 cannot be regarded as being given in a free and genuine manner, then the detachment of the Chagos Archipelago by the United Kingdom could be understood as a breach of the United Kingdom’s international obligations.
Indeed, such was the conclusion reached by the International Court of Justice. After an examination of the facts of the case, as well as the factual details existing at the time the Lancaster House Agreement was concluded, the Court restated the conclusion of the Committee of Twenty-Four that the representatives of Mauritius did not enjoy the proper powers and authority to lawfully consent to the detachment of the Archipelago. The Court emphasised that “heightened scrutiny” should be applied to the question of consent of colonial peoples where a part of the colonial territory is detached to create a new colony. [36] In the end, the International Court of Justice found that:
“[…] as a result of the Chagos Archipelago’s unlawful detachment and its incorporation into a new colony, known as the BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968 [37], as well as that:
“[…] the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible […] [38].
However, according to the reasonings ofJudge Iwasawa in his declaration, the issue and question of sovereignty over the Chagos islands remained, at least explicitly, unanswered. [39] The Court did rather clearly express its opinion on the nature and binding force of the CIL right to self-determination of peoples, the importance of ensuring the territorial integrity of a colonial entity, and the fact that consent to the detachment of the Chagos Archipelago was not given according to the standards of the right to self-determination – thus invalidating the detachment. Although the Court declared that the process of decolonisation of Mauritius was not lawfully completed, the Court did not determine the legal status of the Chagos Archipelago as such, nor explained in detail the modalities of implementing the right to self-determination with regards to the Chagos Archipelago [40].
It may be beneficial to note at this point that after the rendering of the Advisory Opinion, the UNGA addressed the findings of the Court in 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” [41]. In the Resolution, the UNGA opted for a more direct approach toward defining sovereignty over the Chagos Archipelago compared to the International Court of Justice. It is stated in paragraph 2, section b), that the Archipelago “forms an integral part of the territory of Mauritius”, with the UNGA in paragraphs 6 and 7 calling upon the United Nations, together with all its specialised agencies, as well as upon all other international, regional and intergovernmental organizations, “including those established by treaty”, to
“[…] recognize that the Chagos Archipelago forms an integral part of the territory of Mauritius […]”. [42]
Both the Chagos Advisory Opinion and UNGA Resolution 73/295 may thus be regarded as providing some indications with respect to (possible) answers to the dispute surrounding the question of sovereignty over the Chagos Archipelago. The article now turns to the contribution(s) towards the finding of a (possible) solution to the sovereignty dispute made by the Special Chamber in its Judgement on the Preliminary Objections raised in the Dispute concerning the delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives).
3. Contribution of the Special Chamber in its Judgement on the Preliminary Objections
Inthe proceedings, the question of the legal status of the Chagos Archipelago was addressed on numerous occasions by both the Parties to the dispute and the Special Chamber. Mauritius, for its part, contented that the Archipelago constitutes a part of its territory [43] and that on the basis of the Chagos Advisory Opinion, there remains no sovereignty dispute over the Islands [44]. The Maldives, on the other hand, expressed the view that the underlying sovereignty dispute between the United Kingdom and Mauritius remains unresolved. [45]
With regards to the legal status of the Archipelago, the Special Chamber considered in its reasoning the Chagos Marine Protected Area Arbitration Award, the Chagos Advisory Opinion, and UNGA Resolution 73/295. In the author’s opinion, the most far-reaching implications for the sovereignty dispute between Mauritius and the United Kingdom can be inferred from the Special Chamber’s reliance on (and interpretation of) the Chagos Advisory Opinion. For these implications to be made visible, it is necessary to recall the second indent of paragraph 246 of theJudgement on the Preliminary Objections:
“The determinations made by the ICJ with respect to the issues of the decolonization of Mauritius in the Chagos advisory opinion have legal effect and clear implications for the legal status of the Chagos Archipelago. The United Kingdom’s continued claim to sovereignty over the Chagos Archipelago is contrary to those determinations. While the process of decolonization has yet to be completed, Mauritius’ sovereignty over the Chagos Archipelago can be inferred from the ICJ’s determinations”. [46]
Especially the last sentence is rather telling. It may be said that in its reasoning, the Special Chamber effectively affirmed that sovereignty over the Chagos Archipelago rests with Mauritius – despite the latter not seeking a ruling concerning sovereignty with regard to the Archipelago [47].Such a conclusion could be reinforced by the Special Chamber’s determination that regarding the Chagos Archipelago, Mauritius does represent the coastal State for maritime delimitation vis-à-vis the Maldives, regardless of the fact that the process of decolonisation of Mauritius is not officially completed as of now. [48] Indeed, according to the Special Chamber, treating Mauritius as the coastal State – and, according to paragraph 246 (second indent), as the sovereign State – is in line with the determinations stemming from the Chagos Advisory Opinion as well as from the UNGA Resolution 73/295 [49]. [50]
Intriguingly, in relation to the UNGA Resolution 73/295 specifically, the Special Chamber reiterated that by the Resolution, the United Kingdom was demanded to “withdraw its administration over the Chagos Archipelago within six months from [the Resolution’s] adoption”. [51]According to the Chamber, the fact that after the expiry of the six-month period the United Kingdom still maintained their administration over the Islands only reinforces the finding that the United Kingdom’s claim of sovereignty over the Archipelago contradicts the conclusions and determinations expressed by the International Court of Justice in the Chagos Advisory Opinion. [52] Here again, a claim of sovereignty of the United Kingdom over the Chagos Archipelago could not be entertained, thus further enhancing the effectual affirmation of the sovereignty of Mauritius by the Special Chamber.
There is one more aspect to discuss, in brief, with respect to the Special Chamber’s findings in its Judgement on the Preliminary Objection on the legal status of the Chagos islands: what are the consequences stemming from an affirmed sovereignty of Mauritius over the Archipelago, particularly for the other Party of the sovereignty dispute – the United Kingdom, in terms of State responsibility?
4. Consequences
In a nutshell,as a general principle of international law, a State shall incur responsibility for a breach of the State’s international obligation attributable to it. [53] These two elements of State responsibility, that is, the attribution of an international obligation and the breach of said obligation of the State concerned, represent the core two building blocks of an internationally wrongful act – as indeed enshrined in Article 2 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (hereinafter, “ARSIWA”) [54]. [55]
Already in the Chagos Advisory Opinion, the International Court of Justice concluded that the United Kingdom did incur (international) responsibility for an internationally wrongful act – the continuing administration of the Archipelago. [56] More specifically, it was determined by the Court that this internationally wrongful act of the United Kingdom features a continuing character, with the initial (international) responsibility triggered as far back in time as 1965 with the separation of the Archipelago from Mauritius and the creation of the BIOT.
The Special Chamber explicitly cited the findings of the International Court of Justice in its reasoning pertaining to the second preliminary objection raised by the Maldives, stating that the Court did determine that the United Kingdom’s continued administration represents a continuing unlawful act which must be ceased as soon as possible. [57] Therefore, with the additional authoritative ascertainment from the Special Chamber, the responsibility of the United Kingdom for its internationally wrongful (continued) administration of the Chagos islands may now be understood as more than sufficiently established.
According to the law of State responsibility, the breaching State is requested to cease the continuing breach of its international obligation. [58] Interestingly, a spokesperson for the British Foreign Office responding to the Judgement on the Preliminary Objectionsremarked that:
“The [United Kingdom] has no doubt as to our sovereignty over the British Indian Ocean Territory (BIOT), which has been under continuous British sovereignty since 1814. Mauritius has never held sovereignty over the BIOT and the [United Kingdom] does not recognise its claim”. [59]
The author cordially invites the reader to contemplate if these words correspond with the United Kingdom’s international obligations under the law of State responsibility.
5. Concluding thoughts
The legal status of the Chagos Archipelago pertaining to the sovereignty dispute between Mauritius and the United Kingdom was, as depicted above, the central element of numerous events on the international plane: from arbitral proceedings, an advisory opinion, to UNGA resolutions. Nevertheless, with the Special Chamber’s contributions, the closure of the question might, ultimately, be within sight.
What remains open is how the United Kingdom will approach the topic in the future. Thepublic hearing in the Dispute concerning the delimitation of the maritime boundary of Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) was fixed for Monday, the 17th of October 2022. [60] Perhaps, after all, one might observe a change of heart afterwards.
Endnotes
[1] International Tribunal for the Law of the Sea (Special Chamber), Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Judgment on the Preliminary Objections (hereinafter: Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections), 28th of January 2021, No. 28, para. 354 (Operative provisions).
[2] The United Nations Convention on the Law of the Sea (UNCLOS), Montego Bay, 10th of December 1982, 3 UNTS 1833-1835.
[3] ITLOS/Press 313: Special Chamber finds that it has jurisdiction to adjudicate upon the dispute concerning the delimitation of the maritime boundary and that Mauritius’ claim in this regard is admissible (hereinafter: ITLOS/Press Release 313), 28th of January 2021, p. 1. According to Article 287, paragraph 1 UNCLOS, the choice of a particular means out of four possible dispute resolution mechanisms in disputes featuring questions of interpretation or application of the UNCLOS is one of the State party’s: see: Crawford, James: Brownlie’s Principles of Public International Law (9th edition), Oxford University Press, Oxford 2019 (hereinafter: Crawford: Brownlie’s Principles of Public International Law), p. 708.
[4] Akande, Dapo: Abandoning, Revising or Rethinking the Basis and the Application of the Monetary Gold Doctrine: A Discussion of Zachary Mollengarden & Noam Zamir’s AJIL Article, EJIL:Talk!, 18th of May 2021, para. 2 (accessed online on the 1st of October 2022).
[5] Stefanelli, Justine N.: ITLOS Allows Mauritius-Maldives Boundary Dispute to Proceed (hereinafter: Stefanelli: ITLOS Allows Mauritius-Maldives Boundary Dispute to Proceed), American Society of International Law, 2nd of February 2021 (accessed online on the 1st of October 2022); ITLOS/Press Release 313 (supra note 3), p. 2-3; Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 99.
[6] ITLOS/Press Release 313 (supra note 3), p. 3; Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 118.
[7] Ibidem, para. 115. It is important to note that a potential maritime delimitation dispute between the Maldives and Mauritius could only be possible if both States share maritime borders. The questions of sovereignty over the Chagos Archipelago is thus important in this aspect precisely because Mauritius would, if sovereignty over the Archipelago was established, constitute the relevant concerned State with an opposite or adjacent coast to the Maldives for possible maritime delimitation as per Article 74, paragraphs 1 and 3, and Article 83, paragraphs 1 and 3 UNCLOS: see Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 251.
[8] Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), an Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (hereinafter: Chagos Marine Protected Area Arbitration), Award, 18th of March 2015.
[9] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (hereinafter: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion), I.C.J. Reports 2019, p. 95.
[10] UNGA, Resolution 73/295: Advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (hereinafter: UNGA, Resolution 73/295)), A/RES/73/295, 24th of May 2019.
[11] ITLOS/Press Release 313 (supra note 3), p. 2. Stefanelli: ITLOS Allows Mauritius-Maldives Boundary Dispute to Proceed (supra note 5).
[12] Charter of the United Nations, San Francisco, 26th of June 1945.
[13] Article 73, Charter of the United Nations, San Francisco, 26th of June 1945. Emphasised in bold by the author.
[14] Urša Demšar et. al.: The concept of duress in the world of decolonization (hereinafter: Urša Demšar et. al.: The concept of duress in the world of decolonization), Questions of International Law, 55 (2018) 119-130, p. 123, footnote no. 17.
[15] UNGA, Resolution 1514 (XV): Declaration on the Granting of Independence to Colonial Countries and Peoples (hereinafter: UNGA, Resolution 1514 (XV)), A/RES/1514(XV), 14th December 1960.
[16] Urša Demšar et. al.: The concept of duress in the world of decolonization (supra note 14), p. 122-124.
[17] UNGA, Resolution 1514 (XV) (supra note 15), para. 6.
[18] Shaw, Malcolm N.: Peoples, Territorialism and Boundaries, European Journal of International Law, 3 (1997) 478-507, p. 493-494.
[19] Allen, Stephen: The Chagos Advisory Opinion and the Decolonization of Mauritius, American Society of International Law (hereinafter: Allen: The Chagos Advisory Opinion and the Decolonization of Mauritius), Volume: 23, Issue: 2, 15th of April 2019, Background section (accessed online on the 1st of October 2022).
[20] Another Non-Self-Governing-Territory – the British Indian Ocean Territory – a new colony, was established on the 8th of November 1965, merging the Chagos islands with three islands from the Seychelles: see Fallah, Sara M.: 1968 Decolonization – Mauritius and the Chagos Archipelago (hereinafter: Fallah: 1968 Decolonization – Mauritius and the Chagos Archipelago), Austrian Review of International and European Law, 23 (2018) 123-142, p. 134.
[21] Urša Demšar et. al.: The concept of duress in the world of decolonization (supra note 14), p. 119-120; Allen: The Chagos Advisory Opinion and the Decolonization of Mauritius (supra note 19); additional information on the circumstances and context pertaining to the detachment of the Chagos Archipelago may be found in the Written Statement of the Republic of Mauritius to the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 Request for Advisory Opinion, Volume I, 1st of March 2018; Fallah: 1968 Decolonization – Mauritius and the Chagos Archipelago (supra note 20), p. 134.
[22] Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 61.
[23] Ibidem, para. 128.
[24] Ibidem, para. 132; Chagos Marine Protected Area Arbitration (supra note 8), para. 158. Emphasised in bold by the author.
[25] Chagos Marine Protected Area Arbitration (supra note 8), paras. 221, 228-230.
[26] For a more detailed explanation with regards to the facts presented during the arbitral proceedings in the Chagos Marine Protected Area Arbitration see the Documents section, in particular the Written submissions, accessible online via the Permanent Court of Arbitration’s webpage: https://pca-cpa.org/en/cases/11/.
[27] Chagos Marine Protected Area Arbitration (supra note 8), para. 418.
[28] Ibidem, para. 418. Emphasised in bold by the author. The Arbitral tribunal further stated that the legal effect of the »Lancaster House Agreement« of 1965 represents a principal element with respect to the submission of both Parties on Mauritius’ fourth submission: ibidem, para. 419.
[29] Article 65, Statute of the International Court of Justice, accessible online via the International Court of Justice’s webpage: https://www.icj-cij.org/en/statute.
[30] UNGA, Resolution 71/292: Request for an advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, A/RES/71/292, 22nd of June 2017, p. 2.
[31] Allen: The Chagos Advisory Opinion and the Decolonization of Mauritius (supra note 19), para. 1.
[32] UNGA, Resolution 1514 (XV) (supra note 15), especially paras. 2, 4-7; Allen: The Chagos Advisory Opinion and the Decolonization of Mauritius (supra note 19), para. 1; Urša Demšar et. al.: The concept of duress in the world of decolonization (supra note 14), p. 122-124.
[33] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (supra note 9), paras. 150-153.
[34] Allen: The Chagos Advisory Opinion and the Decolonization of Mauritius (supra note 19); Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (supra note 9), para. 160.
[35] Ibidem, para. 160. Emphasised in bold by the author.
[36] Ibidem, para. 172.
[37] Ibidem, para. 174. Emphasised in bold by the author.
[38] Ibidem, para. 183(4). Emphasised in bold by the author.
[39] Webb, Philippa: The United Kingdom and the Chagos Archipelago Advisory Opinion: Engagement and Resistance, Melbourne Journal of International Law, 21(3) (2021) 726-748, p. 735. In order to safeguard the principle of consent by a State to the judicial settlement of its dispute with another State, see: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (supra note 9), Declaration of Judge Iwasawa, p. 251, para. 10, as well as para. 90 of the Advisory Opinion.
[40] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (supra note 9), Declaration of Judge Iwasawa, p. 251, para. 10.
[41] UNGA, Resolution 73/295 (supra note 10).
[42] Ibidem, p. 2-3. Emphasised in bold by the author.
[43] Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 56.
[44] Ibidem, para. 118.
[45] Ibidem, para. 100.
[46] Ibidem, para. 246, 2nd indent. Emphasised in bold by the author.
[47] ITLOS/Press Release 313 (supra note 3), p. 6.
[48] Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 250.
[49] Despite not being binding, UNGA resolutions »may sometimes have normative value«: see: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, p. 254-255; Shaw, Malcolm N.: International Law (6th edition), Cambridge University Press, Cambridge 2008, p. 116.
[50] Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 250.
[51] Ibidem, para. 246, 3rd indent. See as well: UNGA, Resolution 73/295 (supra note 10), p. 2, para. 3.
[52] Ibidem; ITLOS/Press Release 313 (supra note 3), p. 4.
[53] Crawford: Brownlie’s Principles of Public International Law (supra note 3), p. 524.
[54] UNGA, Resolution 56/83: Responsibility of States for internationally wrongful acts, A/RES/56/83, 28th of January 2002, Annex on p. 2. It is important to note that the International Court of Justice already relied on the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts in its reasoning: see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, para. 128; see as well: Nieto-Navia, Rafael: State Responsibility in Respect of International Wrongful Acts of Third Persons: The Theory of Control, accessible online via: https://www.corteidh.or.cr/tablas/r32504.pdf (accessed online on the 1st of October 2022), p. 7.
[55] Crawford: Brownlie’s Principles of Public International Law (supra note 3), p. 526.
[56] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (supra note 9), para. 177; Allen: The Chagos Advisory Opinion and the Decolonization of Mauritius (supra note 19), State Responsibility, paras. 1-2.
[57] Dispute concerning delimitation of the maritime boundary – Judgement on the Preliminary Objections (supra note 1), para. 173.
[58] Article 30, ARSIWA; Victor Stoica, Victor: Cessation of the International Wrongful Act before the International Court of Justice, Romanian Journal of International Law, 17 (2017) 26-39, p. 28.
[59] Harding, Andrew: UN Court rules UK has no sovereignty over Chagos islands, BBC News – Africa, 28th of January 2021, URL: https://www.bbc.com/news/world-africa-55848126 (accessed online on the 1st of October 2022). Emphasised in bold by the author.
[60] ITLOS/Press 321: Public hearing to start on 17 October 2022, 18th of August 2022.
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About the Author
Anže Mediževec is an LLM Candidate (College of Europe), Master’s Degree in Public International Law (University of Ljubljana), Bachelor’s Degree in Law (University of Ljubljana).
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