Is there a way out of the Chagos maelstrom?

Clearly the only sensible way forward is through negotiation and compromise

By David Snoxell

Who would have thought that a year after the Coalition Government in London took office, committed as it was to bringing about a just and fair settlement concerning the Chagossians, the

situation would become even more complicated? The latest twist in this seemingly never-ending saga is the decision by the Government of Mauritius to challenge the nomination by the UK of Sir Christopher Greenwood to the Arbitral Tribunal of UNCLOS. The Tribunal will adjudicate on the case brought by Mauritius last December, challenging the legality of the Marine Protected Area. The MPA was declared by the previous British Government shortly before the general election last year. Mauritius questions whether it is appropriate for a judge, who has been close to one of the two parties for a number of years, to sit on the Tribunal.

So often the issues of Chagos have ended up in the legal long grass when patience, diplomacy and compromise could have brought about a settlement. The UK’s two most regrettable mistakes, made on the advice of FCO officials, were the June 2004 Orders in Council, which overturned the November 2000 High Court judgment in favour of the Chagossians, and the declaration of an MPA on 1 April 2010, without the agreement of Mauritius and the Chagossians. The first has ended up in the European Court of Human Rights (ECtHR); the second at the International Tribunal of the Law of the Sea (ITLOS), as well as a judicial review of the MPA, brought by Olivier Bancoult, pending in the High Court.

Following Robin Cook’s acceptance of the 2000 judgment, allowing the Chagossians to return to the Outer Islands of the Archipelago, I urged the FCO that this new situation provided a unique opportunity to negotiate a resolution of the issues with all the parties concerned. 3 years 7 months later the Foreign Secretary’s decision was reversed, by Orders in Council. I had strongly advised against this undemocratic stratagem.

In the hurried consultation period before the MPA designation many were those who warned the FCO that without the agreement of Mauritius and the Chagossians the MPA would lack legitimacy and effectiveness. For example in a letter to the Foreign Secretary in March 2010 the Marine Education Trust noted “Any failure to include adequately the Chagossians and the Government of Mauritius in the development of an MPA undermines the transparency of the process and threatens its long term effectiveness”. The Chagos Islands All-Party Parliamentary Group also said that provision for Chagossians interests (eg local fishing) and those of Mauritius should be made within the proposed MPA.

These were decisions taken by the former Government but the present Government is saddled with the consequences. So is there a way out of the impasse? I believe there is but the onus rests with the British Government. They could propose to Mauritius a resumption of the 2009 bilateral talks which Mauritius suspended over the MPA row, but this time with the aim of reaching an across the board resolution of the issues. The future of the Islands and that of the Chagossians, the right of return, the MPA and sovereignty cannot be excluded from the agenda and Ministers must be engaged. If this were done expeditiously there might not be a need for both sides to pursue their cases at ITLOS and the case at the ECtHR could be settled out of court. Clearly the only sensible way forward is through negotiation and compromise.

David Snoxell

British High Commissioner to Mauritius 2000-04
Coordinator of the Chagos Islands All-Party Parliamentary Group
Chairman of the Marine Education Trust

* Published in print edition on 3 June 2011