Chagos: Sovereignty issue before the ICJ

By RV

In trying to devise a scheme (MPA) to prevent the Chagossians from returning to the Chagos, the UK finds itself hoisted by its own petard 

The decision taken by the Government of the Republic of Mauritius declaring dispute, under Part XV of the Convention on the Law of the Sea, over the Marine Protected Zone surrounding the Chagos Archipelago is timely and warranted, and has important implications on two outstanding issues, namely the question of sovereignty over the Archipelago and that of the return of the Mauritians of Chagossian origin to the Chagos Islands. So far many commentators have highlighted, and rightly so, the fact that Mr Bancoult is a holder of a British passport and his declared legal battle against the UK government is being made as a BIOT citizen who has been deprived of his right to return to his homeland. This position is totally alien to the claim made by the Mauritian government to exercise its right to sovereignty over islands which legally form part of the Mauritian territory.

Mr Jean Claude de l’Estrac, in a recent editorial, went as far as reminding us that the Chagos Islands were detached from the Mauritian territory with the consent of the then Mauritian government (led by Sir Seewoosagur).

Let us look at the facts first. We may then understand the importance of the decision of the Mauritian government to declare dispute over the Marine Protected Area. First of all, the Mauritian government of that time did not have the competence to give consent to the proposals for the detachment of the Chagos Archipelago which formed part of the Mauritian territory. In any event such consent would be in breach of the United Nations Charter providing for the integrity of the territory of a state prior to its obtaining independence.

Indeed, prior to independence, the Government of Mauritius lacked the competence to give consent even if that consent had been lawful. On the other hand at the time of independence the UK government made promises of the return of the islands when no longer required for defence purposes, as an inducement to obtain the consent of the Mauritian government, even though it lacked competence.

Alongside the promises to revert the islands, there were other promises made as the record of the 23 September 1965 shows that the British government would make available to the Government of Mauritius in so far as practicable fishing rights and the benefit of any minerals or oil discovered in or near the Chagos Archipelago. Whilst the Mauritian government lacked capacity to consent, the same cannot be said of the UK government which had made a binding commitment to the Mauritian government.

In fact before the 1982 Select Committee, Sir Seewoosagur “recalled that at one of the meetings on the excision issue, with the Secretary of State, he stressed that the sovereignty of Mauritius over the islands should be maintained and all rights connected with fishing and mineral prospection should be preserved. He also claimed for the possibility for planes to use the strip on Diego Garcia for any emergency landing on their route to and from Mauritius. No records of the proceedings were communicated to him, but he had the impression that, apart from the claim of sovereignty, all other points were agreeable to the British government including a proposition that, in the event of excision, the islands would be returned to Mauritius when not needed by the United Kingdom government.”

Herein lies the relevance of the renewed confidence between the Mauritian government and Olivier Bancoult. The latter may have now become wiser after the true intent of the UK government as regards the Marine Protected Area was revealed from the cables obtained from WikiLeaks.

There is at present a case entered in the name of Mr Bancoult before the European Court of Human Rights, inviting the court to order the UK government to allow the Chagossians to return to the islands. The UK government is likely to face intensive pressure to implement the decision of the European Court should the decision go in favour of the Chagossians.

The right of return clearly implies that the UK government no longer requires the islands for the purposes they were excised from the Mauritian territory in the first instance. UK will therefore be bound by its promise to return the islands back to its lawful owner, the Mauritian government. Mr Bancoult is right when he says that the right of return cannot be dissociated with the question of sovereignty.

As the latest decision of the Government of Mauritius brings a new twist to the Chagos issue, Britain now realises that the question of the Marine Protected Area (MPA) is merely collateral to the question of sovereignty. In trying to devise a scheme (MPA) to prevent the Chagossians from returning to the Chagos, the UK finds itself hoisted by its own petard.

The International Court of Justice (ICJ) has jurisdiction to decide the sovereignty issue under the United Nations Convention on the Law of the sea. It will have to address that issue before any other.

* Published in print edition on 23 December 2010