In March 2015 Mauritius obtained an award against the United Kingdom concerning the disputed Marine Protected Area around Chagos. While the country should now decide whether to pursue the initial strategy of asserting effective sovereignty over the Archipelago, the next move is to work towards obtaining a UN General Assembly resolution asking for an advisory opinion of the International Court of Justice, suggests the author.

In December 2010, Mauritius started arbitration proceedings against the United Kingdom over the establishment of a Marine Protected Area around the Chagos Archipelago. This initiative was part of a broader policy shift to “internationalise” a dispute which had hitherto been dealt with essentially at bilateral level.

There are two issues in the dispute between the two countries over Chagos. One is Mauritius claim to sovereignty and the other is the UK’s shameful treatment of Mauritians of Chagossian origin.

Whilst the humanitarian issue had been “internationalised” to some extent with the active support of NGO’s and the media, the sovereignty dispute had been largely confined to the ambit of our bilateral relations with the UK and broached in the course of sporadic bilateral talks over four decades, except for the annual statement at the UN General Assembly on our claim.

“Mauritius has over the years forged a reputation as a safe, well regulated and business-friendly jurisdiction of substance for international investors.

As part of our internationalisation campaign Mauritius successfully obtained unanimous support of the African Union in January 2011, not only to its sovereignty claim but also for any action which it may take, including at the United Nations, to reassert its effective sovereignty over the islands. This was followed by other successful moves to obtain declarations of support from the Non-Aligned Movement and by G 77 Ministers at UNCTAD.

The policy shift was pursued with two other initiatives. First, the lobbying campaign in the US. Though the Chagos was excised from Mauritius at the behest of the USA and the main island of Diego Garcia is used as a US military base, our earlier strategy had focussed essentially on the UK. In 2011 we appointed a PR firm in the US to help us put the Chagos issue on the radar of the American policy circuit. Over several months, I met with dozens of Congressmen and their staff, think tanks, media persons, academics to do precisely that: put on the radar screens an issue which was for the most part totally ignored so far. I expressed the Government’s views on resolution of the dispute and the role that the US should play. One recurrent theme in several of my meetings and presentations was that the decolonisation of Africa would be incomplete as long as the Chagos remain under colonial rule. I found that this was an argument to which many of my interlocutors were most responsive.

At the same time, the Mauritius Mission to the United Nations in New York started a series of meetings with several delegations to prepare the ground for a major initiative which we proposed to take at the UN. In addition to the arbitration proceedings we had considered moving for a General Assembly resolution calling for an Advisory Opinion of the International Court of Justice on the Chagos issue.

Challenging the marine protected area

The announcement in December 2010 that Mauritius had initiated arbitration proceedings before a Tribunal to be appointed under Annex 7 of the United Nations Convention on the Law of the Sea must have caught the UK off-guard. In spite of the bipartisan approach adopted over the years on the Chagos issue, there was locally a lot of scepticism and, in some cases, outright criticism of the Government’s initiative. As we will see below, Mauritius could not take the sovereignty dispute before the International Court of Justice whereas the establishment by the UK of a Marine Protected Area, in spite of Mauritius’ strong objections and of assurances by the British Prime Minister, was, in Mauritius’ view, clearly a dispute over which an Annex 7 tribunal would have jurisdiction under the United Nations Convention on the Law of the Sea (UNCLOS).

When the UK appointed Sir Anthony Greenwood, the British Judge at the ICJ to the Arbitration tribunal, Mauritius challenged the appointment on the grounds that Judge Greenwood had maintained his links with the British Foreign Office after his appointment as an arbitrator and would therefore be disqualified. The other members of the Tribunal ruled against Mauritius. The UK then objected to the jurisdiction of the Tribunal and wanted their objection to be heard first. Mauritius did not want bifurcation and wanted the objection to be heard along with the merits. The Tribunal ruled in favour of Mauritius and thus, for the first time since the Chagos controversy started in 1965, the UK had to explain and defend its decisions over Chagos before an international tribunal.

The Tribunal found unanimously that in establishing the MPA surrounding the Chagos Archipelago the United Kingdom had breached its obligations under Articles 2(3), 56(2), and 194(4) of the UNCLOS. In a dissenting opinion two of the members of the Tribunal found that the submission of Mauritius that the UK is not the coastal state in relation to Chagos is well founded in fact and law on the merits.

Though the award was limited to the legality or otherwise of the MPA as the majority had decided that the Tribunal had no jurisdiction over what was characterised as the sovereignty issue, it is significant that two members of the Tribunal who also happen to be respected Judges of the International Tribunal on the Law of the Sea had, after careful consideration of the pleadings of both parties, expressed strong views supporting the Mauritian case on the excision of Chagos.

The unanimous decision of the Tribunal as well as the minority decision are a significant landmark in the legal dispute over Chagos. The question now is what happens next.

Taking the dispute to the international court

The International Court of Justice which is the principal judicial organ of the United Nations is empowered to decide cases where there is a legal dispute between two or more States OR to give advisory opinions.

However, a case concerning a dispute between two States can only be heard with the consent of both States. Such consent may be given by accepting the compulsory jurisdiction of the court or in any specific case. When a State accepts the compulsory jurisdiction of the Court it can also express reservations, thus excluding jurisdiction of the Court in certain cases. The UK had accepted the compulsory jurisdiction of the Court but had expressly excluded jurisdiction with respect to certain disputes with members of the Commonwealth. Mauritius therefore announced in 2004 that it would consider withdrawing from the Commonwealth so that it could take the dispute before the ICJ. As soon as this announcement was made, the UK took immediate steps to amend its reservation so that this would also apply to former members of the Commonwealth. Mauritius is therefore barred from taking the dispute before the ICJ unless the UK expressly consents to the jurisdiction of the Court. As the UK is unlikely to do so, our legal dispute over Chagos cannot be determined by the ICJ.

Article 96 of the UN Charter provides that the General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question. The UN General Assembly (UNGA) can therefore adopt a resolution asking for the Court’s opinion on legal question/s relating to Chagos. Whereas the decision of the Court in the exercise of its contentious jurisdiction, i.e. where a case is brought before it with the consent of the parties, is binding on the parties, an advisory opinion would not have similar legal consequences for the parties. The opinion may still have strong moral authority and persuasive authority.

Mauritius had therefore decided that in view of the UK’s amendment to its reservation under the ICJ Statute in 2004 which sought to exclude the compulsory jurisdiction of the Court with regard to the dispute over Chagos, the next best recourse would be to get the support of the UN General Assembly in asking for an advisory opinion on the legal questions relating to Chagos.

Though work started on such a move and at some point the crucial support of the President of the General Assembly had been obtained, Mauritius then decided that in view of the progress being made in the pending arbitration proceedings on the MPA, we would wait for these proceedings to be concluded before moving for the UNGA resolution (a draft of which had already been prepared with the assistance of international law experts).

Our campaign for a UNGA resolution asking for an Advisory opinion was consequently put on hold.

The final hearing in the arbitration proceedings over the MPA took place in April and May 2014 and the Tribunal’s award was made in March 2015.

Mauritius should now decide whether it will pursue the initial strategy, the implementation of which was put on hold, and now work on obtaining a General Assembly resolution asking for an advisory opinion of the ICJ.

The request for an advisory opinion is made by way of a question or questions addressed to the Court. The formulation of the question/s is of crucial importance as (1) they must be such that the Court is prepared to assume jurisdiction (a request from the General Assembly does not necessarily ensure that the Judges will find that the question posed is one they can answer) and (2) the court’s jurisprudence shows that the advisory opinion issued by the Court is based on the question as construed by the Judges and this may differ from what the State/s sponsoring the UNGA resolution had in mind.

While Mauritius explores all avenues for ensuring resolution of the dispute over Chagos so that our country can assert effective sovereignty over the Archipelago, the next move could be to initiate action with a view to obtaining an advisory opinion of the ICJ on legal questions pertaining to Chagos.