[et_pb_section fb_built=”1″ _builder_version=”4.5.1″ _module_preset=”default”][et_pb_row _builder_version=”4.5.1″ _module_preset=”default” min_height=”181px” custom_padding=”|0px||||”][et_pb_column type=”4_4″ _builder_version=”4.5.1″ _module_preset=”default”][et_pb_text _builder_version=”4.5.1″ _module_preset=”default” inline_fonts=”Cormorant Garamond,Molengo,Cormorant,Cormorant Infant”]<\/p>\n
1.\u00a0<\/span><\/span>The Chagos islands question before ITLOS’s Special chamber in its 2021 Judgement on the Preliminary Objections<\/span><\/span><\/strong><\/span>\u00a0<\/span><\/span><\/p>\n It was on 28th January 2021 when the Special Chamber of the International Tribunal for the Laws of the Sea (hereinafter: ITLOS<\/strong>) provided a ruling in its judgment concerning the preliminary objections in<\/span>\u00a0Dispute concerning the delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius\/Maldives)<\/em> \u00a0dispute. [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 \u2018special agreement\u2019 that the parties had signed on 24th\u00a0September 2019, thereby agreeing to transfer the arbitral proceedings initiated by Mauritius in accordance with Article 287(1) and Annex VII of the<\/span>United Nations Convention on the Law of the Sea<\/a> (hereinafter, \u201cUNCLOS<\/strong>\u201d) [2]<\/span>to a Special Chamber of the Tribunal<\/a>. [3]<\/span><\/span><\/p>\n The Special Chamber\u2019s 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],<\/span>any adjudication without the latter’s participation would be improper<\/a>. [5] Secondly,<\/span>the Maldives contended<\/a> the absence of jurisdiction of the Special Chamber with regard to the matter concerning the sovereignty of the Chagos Archipelago\u2013 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 \u201cthe legal status of the Chagos Archipelago is at the core of the disagreement between the Parties<\/em>\u201d 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.<\/span><\/span><\/p>\n 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<\/strong>. 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\u00a0of March 2015 in the\u00a0Chagos Marine Protected Area Arbitration (Mauritius v. the United Kingdom<\/em>) <\/em>[8], the advisory opinion rendered by the International Court of Justice of the 25th\u00a0of February 2019 on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965<\/em>, [9]\u00a0as well as on Resolution 73\/295 of the United Nations General Assembly (hereinafter, \u201cUNGA\u201d<\/strong>) of the 22nd\u00a0of May titled \u201cAdvisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965<\/em>\u201d [10]. [11]<\/span><\/p>\n 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<\/strong> 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<\/strong> \u2013 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\u2019s 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\u2019 sovereignty claim(s).<\/span><\/p>\n <\/span><\/p>\n 2. The sovereignty dispute between Mauritius and the United Kingdom over the Chagos Archipelago<\/span><\/strong><\/span>\u00a0<\/span><\/p>\n 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<\/em> (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<\/em> (2.3.).<\/span><\/p>\n 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.<\/span><\/p>\n 2.1. \u00a0The process of decolonisation of Mauritius and the question of the Chagos I<\/span>slands<\/span><\/strong><\/span>\u00a0<\/strong><\/p>\n 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 the<\/span>Charter of the United Nations <\/a>[12]\u00a0(hereinafter, \u201cthe UN Charter\u201d<\/strong>). In Article 73 of the UN Charter, it is stated that:<\/span><\/span><\/p>\n \u201cMembers 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<\/strong>, 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<\/em>\u201d. [13]<\/span>\u00a0<\/span><\/p>\n However, the promising wording of Article 73 was not considered as imposing legal obligations \u2013<\/span>it was rather interpreted as a basis for political commitment<\/a>. [14]\u00a0The 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 be<\/span>the Declaration on the Granting of Independence to Colonial Countries and Peoples<\/a> (December 1960, hereinafter, \u201cthe Colonial Declaration<\/strong>\u201d) [15], which demonstrated the very essence and foundation of the process of decolonisation \u2013 <\/span>the right of (colonial) peoples to self-determination<\/a>. [16]<\/span><\/span><\/p>\n Furthermore, the Declaration provided in paragraph 6 that any attempt by States aimed at disrupting the territorial integrity of a country \u201c<\/span>is<\/em><\/a>incompatible with the purposes and principles of the Charter of the United Nations<\/em><\/a>\u201d \u2013 without the proper consent of the colonial peoples.\u00a0 [17]\u00a0It 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 \u2013 since in its absence, a<\/span>colonial peoples would not be able to fully exercise self-determination in a divided territory<\/a>. [18]<\/span><\/span><\/p>\n 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.<\/span><\/p>\n 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\u00a0of 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 \u2013 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<\/span> \u201cconsiderable pressure<\/em><\/a>\u201d [19] in obtaining Mauritian consent in the form of the Lancaster House Agreement.<\/span>Afterwards<\/a>, the British Indian Ocean Territory (hereinafter, \u201cBIOT\u201d<\/strong>) [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 \u2013 a constituent island of the Archipelago. [21]<\/span><\/span><\/p>\n These events serve as the cornerstone of Mauritius\u2019s claim of sovereignty over the Chagos islands \u2013 a claim expressed \u201c<\/span>since at least 1980<\/em><\/a>\u201d [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.<\/span><\/span><\/p>\n 2.2. \u00a0The Chagos Marine Protected Area Arbitration Award<\/span><\/strong><\/span>\u00a0<\/span><\/p>\n The Chagos Marine Protected Area<\/em> arbitration procedure, instituted by Mauritius on the basis of Article 287 and Annex VII, Article 1 UNCLOS, on the 20th\u00a0of 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, \u201cMPA<\/strong>\u201d) surrounding the islands of the Chagos Archipelago was addressed together with questions regarding the legal status of the Archipelago. [23]<\/span><\/p>\n 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,<\/span>that<\/a>:\u00a0<\/span><\/span><\/p>\n \u201c(1) the United Kingdom is not entitled to declare an \u201cMPA\u201d or other maritime zones because it is not the \u201ccoastal State\u201d<\/strong> within the meaning of inter alia Articles 2, 55, 56 and 76 of the Convention;<\/em> […] [24]<\/span>\u00a0<\/span><\/p>\n 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 \u2013 with the notions of \u201ca coastal state\u201d being an aspect of the wider sovereignty dispute, the<\/span>Arbitral Tribunal concluded<\/a> that it did not possess jurisdiction to adjudicate on the matter. [25]<\/span><\/span><\/p>\n 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.<\/span>The parties to the proceedings disagreed<\/a> 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:<\/span>\u00a0<\/span><\/span><\/p>\n \u201cin the course of these proceedings, the validity or otherwise of the 1965 Agreement was a central element of the Parties\u2019 submissions on Mauritius\u2019 First <\/strong>and Second Submissions<\/strong>, sovereignty, and the identity of the coastal State<\/strong><\/em>\u201d. [28]<\/span><\/p>\n 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.\u00a0<\/span><\/p>\n Ultimately, the Arbitral tribunal did not adjudicate upon the question of sovereignty over the Chagos Archipelago in the Chagos Marine Protected Area Arbitration<\/em>. The Tribunal, on the other hand, discussed a central aspect of the sovereignty dispute \u2013 the validity and binding nature of the \u201cLancaster House Agreement\u201d. 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.<\/span><\/p>\n As will be demonstrated in the following section \u2013 covering the Chagos<\/em> 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<\/em> may be regarded as the very heart of the sovereignty dispute over the Chagos Archipelago between the United Kingdom and Mauritius.<\/span>\u00a0<\/span><\/p>\n 2.3. \u00a0The Chagos islands Advisory Opinion by the International Court of Justice\u00a0<\/strong><\/span><\/p>\n A little over two years after the Arbitral Award was published in the Chagos Marine Protected Area Arbitration<\/em>, the UNGA decided on its 71st\u00a0session (88th\u00a0plenary meeting) to request the International Court of Justice to render an advisory opinion based on Article 96 of the UN Charter and [29] in<\/span>Resolution 71\/292<\/a>, adopted on the 22nd\u00a0of June 2017, the UNGA referred to the International Court of Justice the following two questions:\u00a0<\/span><\/span><\/p>\n \u201c(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 <\/em>[…];\u00a0<\/span><\/p>\n (b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the<\/em> [United Kingdom] of the Chagos Archipelago<\/em> […]?\u201d [30]<\/span>\u00a0<\/span><\/p>\n As explained by Allen, for the International Court of Justice to answer the given questions, a determination of \u201c<\/span>how, and when, the right to self-determination crystallized as a matter of customary international law<\/em><\/a>\u201d. [31] If the right to self-determination of colonial peoples already existed as part of customary international law (hereinafter, \u201cCIL\u201d<\/strong>) 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]<\/span><\/span><\/p>\n In this regard, the International Court of Justice stated that in spite of\u00a0 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 \u2013 to the extent it \u201c<\/span>affirms that \u201c[a]ll peoples have the right to self-determination<\/em><\/a>\u201d. [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:<\/span>\u00a0<\/span><\/span><\/p>\n \u00a0\u201c[…] any detachment<\/em><\/strong> 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<\/strong><\/em>\u201d. [35]<\/span>\u00a0<\/span><\/p>\n 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 \u201cLancaster House Agreement\u201d 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.<\/span><\/p>\n 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 \u201cheightened scrutiny<\/em>\u201d 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:<\/span>\u00a0<\/span><\/p>\n \u201c[…] as a result of the Chagos Archipelago\u2019s 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<\/strong><\/em>\u00a0[37],\u00a0as well as that:\u00a0<\/span><\/p>\n \u201c[…] the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible<\/strong><\/em> […] [38].<\/span><\/p>\n However, according to the reasonings of<\/span>Judge Iwasawa in his declaration<\/a>, 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 \u2013 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].<\/span><\/span><\/p>\n 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 \u201c<\/span>Advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965<\/em><\/a>\u201d [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 \u201cforms an integral part of the territory of Mauritius<\/em>\u201d, 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, \u201cincluding those established by treaty<\/em>\u201d, to<\/span><\/span><\/p>\n \u201c[…] recognize that the Chagos Archipelago forms an integral part of the territory of Mauritius<\/strong> <\/em>[…]\u201d. [42]\u00a0<\/span><\/p>\n Both the Chagos<\/em> 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)<\/em>.<\/span><\/p>\n <\/span><\/p>\n 3. Contribution of the Special Chamber in its Judgement on the Preliminary Objections<\/span><\/strong><\/span>\u00a0<\/strong><\/p>\n In<\/span>the proceedings<\/a>, 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<\/em> 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]<\/span><\/span><\/p>\n With regards to the legal status of the Archipelago, the Special Chamber considered in its reasoning the Chagos Marine Protected Area Arbitration <\/em>Award, the Chagos<\/em> Advisory Opinion, and UNGA Resolution 73\/295. In the author\u2019s 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<\/em> Advisory Opinion. For these implications to be made visible, it is necessary to recall the second indent of paragraph 246 of the<\/span>Judgement on the Preliminary Objections<\/a>:\u00a0<\/span><\/span><\/p>\n \u201cThe determinations made by the ICJ<\/em><\/strong> 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<\/strong>. The United Kingdom\u2019s continued claim to sovereignty over the Chagos Archipelago