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Declaration of MPA around Chagos incompatible with UK’s undertakings

20 mars 2016, 08:31

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Declaration of MPA around Chagos incompatible with UK’s undertakings

A Tribunal appointed under Annex 7 of the United Nations Convention on the Law of the Sea ruled in March 2015 that the establishment in 2010 of a marine protected area (MPA) around the Chagos Archipelago by the United Kingdom (UK) was incompatible with the Convention. The Tribunal declared that it is now open for both parties in the arbitration proceedings initiated by Mauritius to enter into the negotiations that should have taken place prior to the proclamation of the MPA, with a view to achieving a mutually satisfactory arrangement for protecting the marine environment. (…) It relied heavily on its findings regarding the “undertakings” given by the UK, referred to as the Lancaster House undertakings. It took the view that the legal effect of the 1965 Agreement is central to the submissions of the parties.

Historical background

As Mauritius moved towards independence in the early 60’s and the United States (US) had expressed to the UK its interest in establishing “military facilities” on Diego Garcia – the main island in the Chagos Archipelago –, the British Government sought to excise the Chagos from the Colony of Mauritius prior to the latter’s independence. The excision had been requested by the US which wanted to ensure that no future independent Government in Mauritius would eventually challenge US presence whereas the Americans could rely on their long-time British allies to maintain their base.

(…) Sir Seewoosagur Ramgoolam, who was the leader of the Labour Party, the dominant party in the island, and the Chief Minister in the colonial government headed by the British Governor then laid down the pre-conditions for the colony’s Ministers to give their consent. It was agreed at the Lancaster House talks that “the British Government would use their good offices with the US to ensure that the following facilities in the Chagos Archipelago would remain available to the Mauritius Government as far as practicable. (…) It was also agreed that the benefit of any minerals or oil discovered in or near the Chagos Archipelago should revert to the Mauritius Government.”

The UK further undertook that if the need for the facilities on the islands disappeared, the islands should be returned to Mauritius. (…) On 5 November 1965, the British Governor of Mauritius informed the Colonial Office in London that Mauritian ministers had agreed to the detachment of Chagos on the understanding that the UK Government had agreed to the pre-conditions. Though there could be no treaty under inter- national law between the colonial power and the representatives of the colony, the Arbitration Tribunal considered at length, the relevance of this agreement and of the undertakings to the UK’s decision to establish an MPA around Chagos.

The Sovereignty Challenge

Mauritius has since achieving Independence in 1968 taken the view that the purported consent to the detachment of the Chagos was of no legal effect as it was not a sovereign State at the time and also that the consent was given un- der duress. In 1983 a Select Committee of the Mauritian Parliament referred to the “blackmail element” in the agreement. Two of the members of the Arbitration Tribunal, Judge James Kateka and Judge Rüdiger Wolfrum, took the view that the consent had been given under duress. (…) In the course of the arbitration proceedings, Mauritius maintained that the fact that part of its territory remained under colonial rule was a violation of the right to self-determination, as its people had not been given the opportunity to decide on the future constitutional status of the whole territory. (…)

Initiating Arbitral Proceedings Under Annex 7

Mauritius, which had made its strong objections to the establishment of the MPA known to the UK Government before and after the proclamation of the MPA in May 2010, started arbitration proceedings against the UK in December 2010 under Annex 7 of UNCLOS. Following publication of an article in The Independent on 9 February 2009 about the UK’s intention to establish a MPA around Chagos, Mauritius expressed its objection.

Mauritius reiterated its objections on subsequent occasions and the Mauritian Prime Minister (PM) raised the matter with his British counterpart when they met in Trinidad and Tobago on 27 November 2009 at the Commonwealth Summit. The Mauritian PM understood from this conversation that the UK PM had agreed to put the MPA project on hold. On his return to Mauritius, the PM stated his understanding in a Cabinet memo to his colleague Ministers and in a statement he made in Parliament. However, to Mauritius great surprise, the MPA was proclaimed on 1 April 2010.

The MPA and Mauritius rights over Chagos

The Tribunal found that it did not have jurisdiction over three of the four submissions made by Mauritius. On the fourth submission that the MPA ‘is incompatible with the substantive and procedural obligations of the UK under UNCLOS’, the Tribunal decided that in so far as jurisdiction is concerned it only had “to satisfy itself that the rights asserted by Mauritius are such as to justify the provisional conclusion that [the Lancaster House under- takings] may have been binding as a matter of international law and relevant to the application of Articles 2 and 56 [of UNCLOS]… Having reviewed the role of the undertakings in the Mauritian Ministers’ agreement to the detachment of the Archipelago, the Tribunal finds that this test is satisfied.”(…)

Since the records show that the creation of the MPA was a significant political decision, if the MPA is developed in years to come “it could well become impractical or impolitic for Mauritius to adopt a radically different course. In short, the MPA’s very existence bears upon the choices that Mauritius will have open to it when the Archipelago is eventually returned. In a like manner, the Tribunal considers that the benefit of the minerals and oil in the surrounding waters, which Mauritius will receive when the Archipelago is returned, may be significantly affected by the MPA, in particular in light of the expansive objective of environmental protection declared by the UK.”

The Tribunal went on to consider in some detail the Lancaster House undertakings given by the UK to Mauritius on 23 September 1965 as reasserted by the Mauritian Council of Ministers in November 1965 and their relevance to Mauritius fourth submission. Mauritius argued that the Lancaster House undertakings were binding legal commitments by the UK once they were accepted by the Mauritian Council of Ministers and subsequently gave rise to rights un- der international law upon the independence of the country. The Mauritius position was that this was part of an arrangement made in the course of negotiations for independence and “At the very second of independence, when the excision was affirmed by the continued presence of the UK in the Archipelago, the UK disabled it- self from denying the conditions attached to its presence.”

Mauritius submitted in the alternative that in the event that there was an agreement between the UK and the colony’s Ministers on detachment of the Chagos, then the UK undertakings were part of the consideration provided for the Mauritian consent. Mauritius argued that “the specific undertakings were part of the quid pro quo or ‘package of inducement’” given in exchange for what the UK regarded as Mauritius’ consent to the detachment of the Chagos Archipelago”. Mauritius affirmed that it is clear that the UK intended to be bound by these undertakings not only because of what happened at Lancaster House but also because of the subsequent and consistent pattern of statements and actions by responsible UK officials, and Legal Advisers. (…)

The Tribunal considered that “the undertakings provided by the UK at Lancaster House formed part of the quid pro quo through which Mauritian agreement to the detachment of the Chagos Archipelago from Mauritius was procured.” These undertakings were “an essential condition” to securing Mauritian consent to the detachment of the Archipelago. The Tribunal could see nothing in the record to indicate that “the UK intended anything less than a firm commitment that would shape its relations with Mauritius following independence.”

The Tribunal was confident that “without the UK’s undertakings, neither Sir Seewoosagur Ramgoolam nor the Mauritius Council of Ministers would have agreed to detachment.” It found that the UK had made repeated representations in respect of all the undertakings over the course of over 40 years and that Mauritius was entitled to rely on these representations and had in fact relied on these representations to its detriment and the UK was thus estopped from denying the binding effect of the commitments, “which the Tribunal will treat as binding on the UK in view of their repeated reaffirmation after 1968.”

Breach of UK’s Positive Obligations

The Tribunal considered that Mauritius was in a “unique position in comparison to third States” as it had been “granted rights in the territorial sea and contiguous zone even when other States were not and continued to receive licenses when other States did not.” This along with the fact that Mauritius continued to enjoy priority as the zones were expanded show that the UK did not consider that it had only a “moral obligation” but a positive obligation subject to some limitations.

Having determined that the Lancaster House undertakings had created positive legal obligations for the UK the Tribunal went on to decide, on the merits, the extent to which the UK had acted in breach of its legal obligations by declaring the MPA. The Mauritian case was that in view of its obligations under the Lancaster House undertakings, the UK had breached a number of provisions of UNCLOS namely Article 2(3) with respect to the territorial sea and of Article 56 (2) with respect to the Exclusive Economic Zone.

(…) The Tribunal considered that the UK’s obligation to act in good faith and to have “due regard” to Mauritius’ rights and interests arising out of the Lancaster House Undertakings, as reaffirmed after 1968, entailed, at least, both consultation and a balancing exercise with its own rights and interests. But in stark contrast with the UK’s consultations with the US to balance the MPA with US rights and interests, “the 21 July 2009 meeting with Mauritius reminds the Tribunal of ships passing in the night, in which neither side fully engaged with the other regarding fishing rights or the proposal for the MPA.” (…)

Conclusion

As stated by the Tribunal itself in its Final Observations, its concern “has been with the manner in which the MPA was established, rather than its substance.” Mauritius made it clear in the course of the proceedings that it did not have objections to measures aimed at environmental protection and the Tribunal also pointed out that it had taken no view on the substantive quality or nature of the MPA or on the importance of environ- mental protection. In determining the manner in which the MPA had been established, the Tribunal relied heavily on the undertakings given by the colonial power during constitutional talks prior to independence with the representatives of political parties in the then colony of Mauritius.

It is significant that fifteen years into the 21st century an international tribunal set up under UNCLOS has heard arguments on the legal significance and implications of agreements reached in the course of negotiations that had taken place between a colonial administration and its colony in the mid 60’s. The former colony now a sovereign State claimed that the obligations arising from these agreements were binding both because they were prior conditions, (quid pro quo for consenting to the decision to consent to the excision of Chagos) and under international law. The former colonial power denied that there were undertakings and argued that there were only understandings.

The Tribunal invited Mauritius and the UK to enter into the negotiations that the Tribunal would have expected prior to the proclamation of the MPA, with a view to achieving a mutually satisfactory arrangement for protecting the marine environment, to the extent necessary under a “sovereignty umbrella”. The Tribunal was not prepared to look into whether “the Lancaster House Undertakings endowed Mauritius with the attributes of a coastal State for the purposes of the Convention” but was in a position to state that the UK’s declared object and purpose of the MPA are certainly relevant to Mauritius, “a country with a reversionary interest in the area.” Thus in effect supporting the Mauritian view that the UK was only a temporary freeholder.

For the first time in a dispute that has been going on for over four decades, an international tribunal has determined that the Lancaster House Undertakings do create obligations for the UK including those relating to Mauritius reversionary rights over the Chagos. The Tribunal’s unanimous finding and the strong dissenting opinion of two reputed international Judges that Mauritius first submission that the UK is not the coastal state is “well founded in fact and law on the merits” provide a new legal perspective on Mauritius claims with respect to the Chagos Archipelago.

Milan J.N. MEETARBHAN Former Ambassador and Permanent Representative of Mauritius to the United Nations and a member of the Mauritius delegation in the Mauritius v. UK arbitration proceedings on the Chagos MPA.

The full version of this Paper was published in the Journal of Environmental Policy and Law, vol.45, No.6. December 2015, p248.