Winner gets nothing: Will there ever be justice for the Chagos Archipelago?

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Since the early seventies, sovereignty over the Chagos Archipelago has been at the centre of a dispute between Mauritius and its former colonial master, the United Kingdom (‘UK’).  Last year, on 22 May 2019, following an Advisory Opinion of the International Court of Justice[1] (ICJ), an overwhelming majority[2] of the United Nations General Assembly voted Resolution 73/295[3] requesting the UK to return unconditionally the Chagos Archipelago to Mauritius within a six months’ deadline and to cooperate over the resettlement of the former inhabitants of the islands. In defiance of the Resolution, UK reiterated its standard arguments that it is in no doubt of its sovereignty over the Chagos Archipelago and will cede the Archipelago to Mauritius when no longer required for defence purposes.  Concurrently, it argues that the ICJ had no jurisdiction over a dispute which is strictly bilateral and referred to the binding decision of the United Nations Convention for the Law of the Sea (UNCLOS) Tribunal[4]  of March 2015 when the Tribunal declared the establishment of a Marine Protected Area (‘MPA’) around the Archipelago by the UK was in breach of the ‘UNCLOS’ and in violation of the interests of Mauritius over the Archipelago. The argument that the dispute was strictly bilateral was rejected by the ICJ as not being relevant for the purpose of its Advisory Opinion.

This paper examines the latest developments as at August 2020. It is structured as follows: Part I sets out the historical and factual background to the Chagos dispute, which has ultimately, led to litigation before the UNCLOS Tribunal and the International Court of Justice. Part II examines the Advisory Opinion of the International Court of Justice which concluded that the decolonisation of Mauritius was not complete at the time of its independence. Part III highlights relevant historical documents, which revealed the real motivations of the UK behind the detachment and depopulation of the Chagos Archipelago.  In Part IV, an account is given on the legal campaign of the Chagossians, and it considers whether proceedings for crime against humanity can be initiated and finally, Part V concludes by looking at a possible United States option and the legal relevance of the Advisory Opinion.

Part I: Origins of the Dispute

The Chagos Archipelago is made up of sixty -five islands[5], the most famous ones being Diego Garcia, Egmont (six islands), Peros Banhos, Salomon islands, Trois Freres, Danger island and Eagle island[6]. It is situated in the middle of the Indian Ocean, flanked by Africa on the West and South East Asia on the East. Diego Garcia, the largest island of the Archipelago, now site for a major United States (‘US’) base, with an area of 27 Sq. Km, accounts for more than half of the archipelago total land area.[7] Mauritius is located at about 2200km to the South-West of the Chagos Archipelago.

In the early sixties at the height of the cold war, fearing the overarching influence of the Soviet Union in the Indian Ocean, the US and the UK entered into a secret deal to have a joint naval and military base on the island of Diego Garcia, given its ideal strategic location.   UK took immediate steps to detach the Chagos Archipelago from Mauritius and, on 8 November 1965, incorporated the Archipelago in a newly established administrative entity known as the British Indian Ocean Territory (‘BIOT’).  The true motives behind the dealings were never disclosed to Mauritian political leaders, who at the time, were negotiating with Britain for a newly independent Mauritius.

On 30 December 1966, in a secret Exchange of Notes with the US, the UK effectively confirmed the agreement and handed over the entire Chagos Archipelago, comprising of 65 islands to the US for “defence purposes”.   On the question of sovereignty, the Notes made specific mention that it remained with UK. UK then proceeded with the depopulation of the islands[8]. Their occupants, between 1300 to 1800 islanders, were forcefully dumped in Mauritius and Seychelles between 1967 and 1973.  Mauritius became an independent State on the 12 March 1968.

On 4 September 1972, pursuant to an Agreement, Mauritius accepted payment of the sum of £650,000 to meet the costs of resettlement of persons displaced from the Chagos Archipelago[9]. On 7 July 1982, a second agreement was concluded between the Government of Mauritius and the United Kingdom, for an ex-gratia payment of the sum of £4 million, with no admission of liability on the part of the UK “in full and final settlement of all claims” whatsoever of the “kind” referred to in Article 2 of this Agreement.[10]

The pecuniary gesture made by UK, however, did not attenuate the determination of the islanders from taking further action. After an initial unsuccessful attempt by Chagossians settled in UK, Olivier Bancoult, the leader of the Chagos Refugee Group (CRG) has, since year 2000, petitioned UK Courts [11] for further compensation for the injustice suffered and for the right of return to their ancestral homeland.  Whilst the outcome of the UK cases may not have been entirely to the satisfaction of the islanders so far, the proceedings before the Courts have, however, managed to a large extent, to piece out the different stages of the history of the archipelago, when  invaluable information were retrieved  from declassified  documents kept in the National Archives of UK .

In the early 70s, soon after achieving independence, and under pressure from parties across the political spectrum, the newly elected Mauritian Government mounted an intensive diplomatic campaign[12] on various international fora, claiming its right to exercise its sovereignty over the Chagos whilst agreeing to bilateral talks with UK.  In December 2010, however, the calm waters of diplomacy gave way to arbitration when following the creation of a Marine Protection Area around the Chagos Archipelago, Mauritius opted for arbitral proceedings under Annex VII of the UNCLOS on the grounds that the creation of the MPA was incompatible with the obligations of UK arising under Articles 2.3, 56.2 and 194.4 of the Convention[13]. The proceedings before the Tribunal did not decide the question of sovereignty as the Tribunal had no mandate to do so. The crucial question of sovereignty over the Chagos Archipelago was the subject-matter of an Advisory Opinion delivered by the International Court of Justice on 25 February 2019.

The dispute has since, escalated from bilateral talks to a war of allegations and counter allegations, but developments last year [14]arising from a meeting of the Prime Ministers of Mauritius and UK at the London African Summit, indicate that bilateral talks are probably back on the cards. After the rulings of the UNCLOS Tribunal and the Advisory Opinion of the ICJ, both in favour of Mauritius, it remains to be seen how far the international community will be supportive of any UN initiative to implement the UN General Assembly (‘UNGA’) Resolution 73/295.

Dispute before UNCLOS Tribunal

In April 2010, the then UK Foreign Secretary David Milliband announced the creation of a Marine Protection Area around the Chagos Archipelago which would, he asserted, protect the environment  and prevent any form of activity on some 250,000 square miles of the Archipelago (BIOT). It was a unilateral decision by the UK, taken behind the back of the Mauritian Government which had fishing and other economic rights in the territorial waters of the Chagos, further to an agreement reached in 1965 between the UK and the pre-independence Council of Ministers.

The environmental concern on the part of the UK was severely dented when Wikileaks, in December 2010, revealed a purported US diplomatic cable, summarising discussions between the US and the UK officials, prior to establishing the MPA. The author of the cable mentioned, inter-alia that according to (UK) government’s current thinking:

“…there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT uninhabited islands’.  The text continued “   BIOT’S former inhabitants would find it difficult if not impossible to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve”[15].  

The seeds of suspicion were thus planted and it became apparent that the creation of the MPA was not solely for environmental purposes but also to discourage any future resettlement over the Archipelago.

In the face of these developments, the Mauritian Government took immediate legal steps and initiated arbitration proceedings against the UK under Annex 7 of the UNCLOS.   It was a frontal challenge against the creation of the MPA, denouncing at the same time UK for acting in violation of its obligations under the Convention, in complete disregard of the interests of Mauritius under Articles 2.3, 56.2 and 194.4. The cornerstone of the Mauritian case was the ‘Lancaster House’ undertakings given by UK to the Mauritian Council of Ministers in 1965, prior to the detachment of the Chagos Archipelago.  The undertakings were, in the opinion of Mauritius, legally binding.

Before the Tribunal, the legal representatives of Mauritius initially argued that:

the binding nature of the undertakings stems not from Mauritius’ agreement to the detachment (Chagos Archipelago) but from the fact that the United Kingdom, on independence, not after independence -on independence- retained the Archipelago.

 It therefore affirmed the conditions on which it had come to receive the Archipelago, even if the consent was vitiated….at the very second of independence, when the excision was affirmed by the continued presence of the United Kingdom in the Archipelago, the United Kingdom disabled itself from denying the conditions attached to its presence.”[16]

{..}

At the very second of independence, when the excision was affirmed by the continued presence of the United Kingdom in the Archipelago, the United Kingdom disabled itself from denying the conditions attached to its presence. [. . .] [T]his is a situation in which the colonial authority exercising its power assumed a responsibility which it affirms not after independence, but on independence, the very second of independence, because otherwise it would have to hand the territory back. [. . .] [I]n the circumstances, the United Kingdom is bound by the obligations it assumed while it holds on to the territory.

In the alternative, it was wisely submitted that “if there was a lawful agreement on detachment of the Archipelago, then the consideration for Mauritiusconsent must include the undertakings that the United Kingdom expressly gave in exchange for it”.

Under either limb, the applicable test, as Mauritius saw it, is whether the UK intended to be bound by the undertakings. According to the UK’s own contention, the detachment of the Chagos received the consent of the Council of Ministers[17] in exchange for a number of undertakings agreed upon by the UK which included (a) compensation to Mauritius; (b) fishing rights would remain available to Mauritius as far as practicable; (c) the Archipelago would be returned when no longer needed for defence purposes; and (d) the benefit of any oil or mineral discovered would be preserved for Mauritius.

Under Article 2.3, the Tribunal concluded that there was an obligation on States to exercise their sovereignty, subject to other rules of international law but it must be understood that this obligation is limited to exercising its sovereignty under “general rules of international law”.  The ‘Lancaster House’ undertakings did not form part of the general rules of international law under the Convention. The Tribunal nevertheless ruled that there was a duty on the part of UK, especially given the acknowledgement of the UK in the reversionary interests[18] of Mauritius in the Chagos Archipelago, to act in good faith and respect the ‘Lancaster House’ undertakings. The requirement of the former colonial power to act in good faith permeates equally throughout the reasoning of the arbitral Tribunal under Article 56.2 with respect to the EEZ. The Tribunal found that there had been prior consultations between the parties on the question of fishing rights and the position of Mauritius was unique in that it could carry out traditional fishing in the territorial waters as well.

Similarly, under Article 194.4, in taking measures to protect the marine environment, the coastal State must not unjustifiably interfere with activities carried out by other States. There were competing interests and any interference with the rights of another State had to be proportionate to the legitimate objectives of the interests. Article 194.4 was applicable to the fishing rights of Mauritius which is an ongoing activity. UK was accordingly, legally bound as a matter of international law, by its undertakings given in 1965 at the Lancaster House Meeting and its official position made on numerous occasions that the Chagos Archipelago would revert to Mauritius as soon as it was no longer required for defence purposes.  Moreover, the UK had under general International law, an obligation to act in good faith in its relations with Mauritius including with respect to its undertakings.

Taking into account the UK’s undertaking to return the Chagos Archipelago to Mauritius when no longer required for defence purposes, the Tribunal ruled that it:

“gives Mauritius an interest in significant decisions that bear upon the possible future uses of the Archipelago. Mauritius’ interest is not simply in the eventual return of the Chagos Archipelago, but also in the condition in which the archipelago will be returned.”

Whilst the Tribunal did not decide on the question of sovereignty of the Chagos, nor on the actual legal status of the Council of Ministers to consent to the detachment of the Chagos, it pointed out nevertheless that:   

the undertakings provided by the United Kingdom 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.”[19]

The decision of the Tribunal regrettably did not bring Mauritius and the United Kingdom back to the negotiating table, but instead it was before the International Court of Justice that they met.

Part II: Incomplete Decolonisation 

On the 22nd June 2017, the UN General Assembly in accordance with Article 96 of the Charter of the United Nations adopted Resolution 71/292 for an Advisory Opinion from the ICJ on the following questions:
 

  1. Was the process of decolonisation 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, including obligations reflected in General Assembly Resolutions 1514 (XV) of 14 December 1960, Res 2066 (XX) of 16 December 1965, Res 2232 (XXI) of 20 December 1966 and  Res 2357 (XXII) of 19 December 1967?;  and
  1. What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossians origin?

The two questions were, no doubt, craftily drafted to ensure that the ICJ would advise on whether the decolonization process of Mauritius at the time of its independence was complete, an issue which was inextricably linked to the core question of sovereignty of Mauritius over the Chagos and what constituted the entirety of its territory, at the time of its independence. The second question related to the consequences of the continued presence and administration of the islands by the UK and how it affected the resettlement of the Chagos islanders by Mauritius.

The ICJ proceeded to analyse the issues by first, identifying the “relevant period” when the dispute crystallised, from 1965 onwards when the archipelago was detached from Mauritius, up to the time when Mauritius achieved its independence in 1968. Once the “relevant period” was identified, the next logical step was to determine the applicable rules of international law in the “context of decolonisation”. The Court nevertheless considered that since the breach was a continuing one, it would be relevant to examine the evolution of customary law from that date until the present date[20]

It resorted to the series of resolutions adopted by the UN General Assembly in the early 1960s when the process of decolonisation had started in many parts of the world and many colonies were acceding to independence. Resolution 1514 (XV), adopted by the General assembly on 14 December 1960, was a key resolution in the context of decolonisation. It provided for “the aspirations of all peoples to self-determination and their right to freely determine their political status and freely pursue their economic, social and cultural development”.  Resolution 1514 (XV) was applied to the case of Mauritius in a series of other resolutions[21]. These resolutions identified the colonial territory of Mauritius and its dependencies as the unit of self-determination for the purpose of independence. The Chagos Archipelago was one of the dependencies of Mauritius.

The resolutions, in the opinion of the ICJ, could not have been adopted by the General Assembly in vain. In support of its contention, the Court referred to its prior advisory opinion in the matter of the Legality of the Threat or use of Nuclear Weapons, Advisory Opinion, where the Judges of the ICJ had already addressed the relevance of these resolutions and their normative character.  The Judges considered the legal status of these resolutions adopted by the UNGA, and whether they would give rise to an opinio juris[22]:

“…they can in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.  To establish whether this is true of a given General Assembly Resolution, it is necessary to look at at its content and the conditions of its adoption, it is also necessary to see whether an opinio juris exists as to its normative character.” [23]

Resolution 1514 (XV), in the opinion of the Judges, provided such evidence. It called upon administering powers to transfer all powers to the peoples of territories, without any conditions or reservations, in accordance with their freely expressed will and desire. In relation to the detachment of Chagos, Paragraph 6 of the resolution explicitly affirms the unity and territorial integrity of a country as a requirement under the UN Charter in the following terms:

any attempt aimed at the total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. [….] that decolonisation process accelerated in 1960 with additional 28 non-self-governing territories exercised their right to self-determination and achieved independence”. [24] 

Moreover, Resolution 1514(XV) which interpreted and applied the principles of the UN Charter placed an obligation upon the existing colonial powers in the context of decolonization to give independence to their colonies based on the principles of self-determination. In other words the relevant unit of self-determination based on the entirety of the territory of the colony. More to the point in relation to the dismantlement of the Mauritian territory, following the excision of the Chagos Archipelago, the Court cited Resolution 2066 (XX), which was adopted by the General Assembly on 16 December 1965 by 89 Votes to 0. It dealt exclusively with the “Question of Mauritius and other islands constituting the territory of Mauritius”.  The Resolution noted:

“… with deep concern that any step taken  by the administering power  to detach certain islands from the territory of Mauritius for the purposes of establishing a military base … and invited the administering  power to take no action which would dismember the Territory of Mauritius and violate its integrity”.[25]

In its application of Resolution 1514 (XV), the ICJ advised that “both State  practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of non-self-serving territory  as a corollary of the right to self-determination.” Having confirmed that the right amounted to customary international law[26], the Court stated that the right to self-determination of a people was defined by reference to the entirety of a self-governing territory:

“…no example has been brought to the attention of the Court in which following the adoption of resolution 1514 (XV), the General Assembly or any other organ of the United Nations has considered as lawful the detachment by the administering power of part of a non-self-governing territory, for the purpose of maintaining it under its colonial rule.  States have consistently emphasised that respect for the territorial integrity of a non-self -governing territory is a key element of the exercise of the right to self-determination under international law. The Court considers that the peoples of non-self-governing territories are entitled to exercise their right to self-determination in relation to their territory as a whole, the integrity of which must be respected by the administering power. It follows that any detachment 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 of self-determination.” [27]

As a consequence and based on the measures taken by the colonial power, in violation of the UN charter and the relevant resolutions of the UNGA, the ICJ concluded:

“…the unlawful detachment of the Chagos Archipelago and its incorporation into a new administrative entity the BIOT, the process of the decolonisation of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968.”[28]

The Court went on to enumerate a number of principles[29] concluding, inter-alia, that UK was under an obligation to bring its administration of the BIOT to an end as soon as possible, requesting the UNGA to ensure the process of the completion of the decolonization of Mauritius and the resettlement on the Chagos Archipelago of Mauritian nationals including those of Chagossian origin. 

Part III

 A: Detachment and Consent

The question whether the Chagos Archipelago was detached from Mauritius with the full agreement of the Mauritian Council of  Ministers to form part of the British Indian Ocean Territory has given rise to  numerous interpretations and theories over the years, since independence. Sir Seewoosagur Ramgoolam was unjustly pilloried and accused of alleged surrender to the British on the Chagos issue when in truth and in fact, he was placed before a “fait accompli”.  He told the Mauritian Parliament that much in 1979 when he stated “We had no choice but to agree to the detachment”.[30]

A Foreign Office memo, at the time of the Lancaster House talks in 1965, cited before the ICJ shed light on UK’s sinister plans at the time:

“…it would best suit the interests of the United Kingdom if the detachment of the Chagos was presented to Mauritius as a “fait accompli” or at most if Mauritius is informed of the United Kingdom’s plans “at the last minute”. [31] 

In another memo dated 22 September 1965[32], Sir Harold Wilson, then Prime Minister of UK, was told by his Private Secretary, Sir Olivier Wright that he had to “frighten Sir Seewoosagur with hope”. It was sheer blackmail using the independence of Mauritius as a tradeoff for the detachment of the Chagos Archipelago. The relevant part of the memo read: 

Sir Seewoosagur Ramgoolam is coming to see you at 10:00 tomorrow morning. The object is to frighten him with hope: hope that he might get independence; Fright lest he might not unless he is sensible about the detachment of the Chagos Archipelago. I attach a brief prepared by the Colonial Office, with which the Ministry of Defence and the Foreign Office are on the whole content. The key sentence in the brief is the last sentence of it on page three.

The key sentence referred to in the memo related to the detachment of Chagos: The Prime Minister may therefore wish to make some oblique reference to the fact that H.M.G. have the legal right to detach Chagos by Order in Council, without Mauritius consent but this would be a grave step.”

Further records establish the essence of the discussions between the UK Prime Minister Harold Wilson, and the leader of the Mauritian delegation, Sir Seewoosagur Ramgoolam:

“…the premier and his colleagues could return to Mauritius either with independence or without it. On the defence point, Diego Garcia could either be detached by Order in Council or with the agreement of the Premier and his colleagues. The best solution of all might be independence and detachment by agreement.”[33]

Later, that same day, a meeting took place between the UK government and the Mauritian Ministers, constituted of Sir Seewoosagur Ramgoolam, Mr Bissoondoyal Leader of the Independence Forward Bloc and Mr. Mohamed Leader of the Comite d’Action Musulmans.  At the end of the meeting, there was an agreement in principle, to the detachment of the Chagos subject to a number of conditions which included, inter-alia, compensation, fishing rights and the benefit of any mineral or oil discovered in or near the Chagos.[34]  On the 5 November 1965, the proposal for the detachment was discussed at the level of the Council of Minister presided by the British Governor. The colonial office in London was then informed that the Council had agreed to the detachment of the Chagos, on the understanding that the UK government had accepted the preconditions and furthermore, the benefit of any mineral or oil discovered in or near the Chagos Archipelago should revert to the Mauritian Government.[35]

To the Judges of the ICJ, the negotiations leading to the detachment of the Chagos and the alleged consent given by the Council of Ministers could not have taken place at arm’s length since Mauritius was still a colony and, as the records showed, the colonial power had used “independence” as a negotiating strategy. Moreover, the executive powers were concentrated in the hands of the colonial power and it made no sense to speak of consent when in the first instance, the Council of Ministers did not have the legal capacity to agree to the dismemberment of a significant part of the Mauritian territory.  The Judges relied, instead, on the deliberations of the UN Committee of Twenty-Four on decolonisation (C-24)[36]. The relevant part of the records read as follows :

“…when the Council of Ministers agreed in principle to the detachment from Mauritius of the Chagos Archipelago, Mauritius was, as a colony, under the authority of the United Kingdom. As noted at the time by the Committee of Twenty-Four: “the present Constitution of Mauritius . . . do[es] not allow the representatives of the people to exercise real legislative or executive powers, and that authority is nearly all concentrated in the hands of the United Kingdom Government and its representatives” (UN doc. A/5800/Rev.1 (1964-1965), p. 352, para. 154).

On the specific question of consent, the Judges concluded that “heightened scrutiny should be given to the issue of consent in a situation where a part of a non-self-governing territory is separated to create a new colony”. The detachment could not, therefore, have been based on the free and genuine expression of the will of the people concerned.”[37]

B: Conspiracy to depopulate?

Mauritius achieved independence on 12 March 1968, after the Independence Party[38] secured a majority of seats at the general elections of August 1967.  On Independence Day, the Constitution of Mauritius came into force. The Constitution reflected, to a large extent, the discussions that took place during the Lancaster House Talks, but in substance, it bore all the hallmarks of a “Westminster Model” Constitution.[39]

A few weeks prior to the proclamation of independence, the Colonial Office sent the Constitutional expert, Professor De Smith to Mauritius “to put final touches to a prepared text which was to become our Constitution”. [40]  Amongst the last-minute changes made to the text, Section 20(4) of the Constitution was inserted, to provide that all islanders born immediately before the 8 November 1965[41] in the dependencies of Mauritius, which were comprised in the former colony of Mauritius, were deemed to be Mauritian and Seychelles citizens. It was done clearly with the intention to give credence to the assertion of UK that there were no permanent inhabitants on the islands save for contract labourers employed for the production of copra.

The deeming clause was drafted as follows “… a person shall be regarded as having been born in Mauritius if he was born in the territories which were comprised in the former colony of Mauritius immediately before the 8 November 1965 but were not so comprised immediately before 12 march 1968 unless either of his parents was born in the territories which were comprised in the territory of Seychelles immediately before 8 November 1965”.[42]  

Official minutes exchanged by officials of the Foreign Commonwealth Office (FCO) betray the real intention of the UK government behind the amendment brought to the draft of the Mauritian Independence Constitution. It was apparent from the minutes, that amendment bestowing Mauritian citizenship on the Chagossians was done “at short notice”, largely “to free us from the need, which we would have had if the islanders had remained mono-UK citizens, either to let them remain on BIOT or to permit them to enter Britain”[43].  There were other reasons also.

Section 20 (4) had far reaching consequences. Its application meant that there were no permanent population on the Chagos Archipelago and as such, Article 73 of the United Nations Charter would not come into play.  The text of Article 73 expressly provided for the responsibilities of an administering power of a territory towards the inhabitants of the administered territory:

“Members of the United Nations which  have or assume responsibilities for the administration of territories whose people have not yet attained a full measure of self-government recognise the principle that the interests of the inhabitants of these territories are paramount, 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, and to this end:

(a)        to ensure, with due respect for the culture of the peoples concerned, their             political, economic, social and educational advancement, their just treatment, and their protection against abuses;

(b)        to develop self-government, to take due account of the political aspirations of the people, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its people and their varying stages of advancement;

            (c)        to further international peace and security;

(d)        to promote constructive measures of development to encourage research, and to co-operate with one another and, when and where appropriate, with specialised international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and

(e)        to transmit regularly to the Secretary-General for information purposes,             subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social and educational conditions in the territories for which they are respectively responsible other than those territories to which `chapters XII and XIII apply”

Memos and correspondences[44] exchanged between the officials of the FCO and the UK representative at the UN, cited in Bancoult (No1)[45], clearly stand out as shameful examples of how the administering power, the UK, attempted to deny the existence of a permanent population on the Chagos.

On 28 July 1965, Mr T.C.D. Jerrom an official from the Foreign Office wrote in a memo:

Our understanding is that a great majority of (those people at present on the islands) are there as contract labourers on the copra plantations on a number of the islands; a small number were born there and in some cases, their parents were born there too. The intention is, however that none of them should be regarded as being permanent inhabitants of the islands. Islands will be evacuated as and when defence interests require this…… In the absence of permanent inhabitants the obligations of Chapter XI of the United Nations Charter[46] will not apply to the territory and we shall not transmit information on it to the Secretary General.” 

On November 15, 1965 another official wrote:

“…the territory is a non-self-governing territory and there is a civilian population even though it is small. In practice, however I would advise a policy of “quiet disregard”- in other words, let’s forget about this one until the United Nations challenge us on it”. 

Similar fears were expressed on the possibility of Britain incurring the wrath of the UN Special Committee on Decolonisation. A memo from the FCO in 1966, also cited in Bancoult, R (on the application of) v The Secretary of State for the Foreign and Commonwealth Affairs[47], reveals the dilemma faced by the Colonial Office:

They (the Colonial Office) wish to avoid using the phrase ‘permanent inhabitants’ in relation to any of the islands in the territory because to recognise that there are permanent inhabitants will imply that there is a population whose democratic rights will have to be safeguarded and which will therefore be deemed by the `UN `Committee of Twenty-four (i.e the Special Committee on Decolonisation) to come within its purview … It is of particular importance that the decision taken by the `colonial `office should be that there are no permanent inhabitants in the BIOT … subsequently it may be necessary to issue them with documents making it clear that they are “belongers” of Mauritius or the Seychelles and only temporarily resident in the BIOT.  This device, though rather transparent, would at least give us a defensible position to take up in the Committee of Twenty-four… It would be highly embarrassing to us if, after giving the Americans to understand that the islands in BIOT would be available to them for defence purposes, we then had to tell them that we proposed to admit that they fell within the purview of the UN Committee of `Twenty-four”.

In a note addressed to an official of the Colonial Office in 1966, the Permanent Under-Secretary wrote:

We must surely be very tough about this. The object of the exercise was to get some rocks which will remain ours; there will be no indigenous population except seagulls who have not got a [UN] committee (the status of women does not cover the rights of birds)”

Mr Greenhill, another senior civil servant, offered the following comments:

Unfortunately along with the birds go some few Tarzans or Men Fridays whose origins are obscure and who are being hopefully wished on to Mauritius etc. When this has been done, I agree we must be very tough and a submission is being done accordingly.”   

On the 23 October 1968, Mr A.I Aust Foreign Office, Legal Adviser advising the Secretary of State for Foreign Affairs wrote that there is no “established rule in international law that a citizen has a right to enter or remain in his country of origin/birth/nationality etc. A provision to this effect is contained in Protocol 4 to the European Convention of Human Rights but that has not been ratified by us - as I understand it, it has still not - and thus we do not regard UK as bound by such rule. In this respect we are able to make up the rules a see go along and treat the inhabitants of BIOT as not belonging to it in any sense.” 

On 16 January 1970, the same Mr Aust advised on the need  for BIOT to enact an immigration ordinance  in order : (a) to provide legal power to deport people who will not leave voluntarily; (b) to prevent people entering (c) to maintain the fiction that the inhabitants of Chagos are not a permanent or semi-permanent population.

His memo further mentioned “the longer that such population remains and perhaps increases , the greater the risk of our being accused of setting up a mini-colony about which we would have to report to the United Nations under Article 73 of the Charter.”[48]

Following the advice of Mr Aust, the Immigration Ordinance 1971 was enacted by the Commissioner of BIOT.  In particular, section 4 of the Ordinance prohibited the resettlement of the Chagossians on the Archipelago. Section 4 of the Immigration Ordinance 1971 opened a new legal chapter before the courts in the UK.

Part IV

A: CRG Legal Campaign

The Chagossians never gave up on their rights of return to the Chagos.  In particular, as citizens of BIOT, they have courageously sought to enforce their right of abode on the Chagos and pressurised the UK government to fulfil its legal and binding obligations under English law as well as the European Convention of Human Rights.

The legal action before UK’s Courts really got started in November 2000, when the High Court quashed section 4 of the Immigration Ordinance 1971 which prohibited resettlement over the Chagos Archipelago, as being unlawful. It found that the duty of the colonial power was limited to the welfare of the inhabitants, not to their expulsion as such laws would be ultra-vires its power to legislate for “peace, order and Good Government”.

The Chagossians welcomed the judgment and read it as an acknowledgement of their right to return to their homeland, which was about to materialise.  There was an immediate reaction from the then Foreign Secretary Robin Cook,[49] who indicated that government would comply with the judgment and commission a Feasibility Study to investigate the implications of return. The authors of the Report of the Feasibility Study, however, expressed strong reservations as to the prospects of a return by the islanders. They considered that it would be prohibitively expensive[50], insecure and even went as far as invoking the dangers of climate change and the threat it represents to the Archipelago.

It was a severe blow to the Chagossians legal campaign compounded by the war on Iraq. The Diego Garcia base was seen as an indispensable hub and staging post for air and naval forces. Taking advantage of that fact, the UK Government enacted[51] in 2004, an Order in Council,[52]  which prohibited resettlement on the Chagos islands. A new challenge was mounted by the Chagossians Community and the case went all the way up to the House of Lords in 2008.  Once again, the report of the Feasibility Study[53] came to the forefront, and was the basis upon which the House of Lords rejected the application, maintaining that it was not unlawful to terminate the right for a resettlement.  On the question of the justiciability of a prerogative order, the Law Lords were unanimous to the fact that a prerogative order would be a justiciable issue and subject-matter of a judicial review.

On the strength of the favourable judgment of the House of Lords, the UK government went on to establish a Marine Protected Area around the Chagos islands on the 1st of April 2010. The immediate consequences of that decision was obvious in that it reinforced the no-settlement policy over the Chagos. Soon after designating Chagos as a Marine Protected Area[54], new documents surfaced, casting doubt on the accuracy of the Feasibility study and implicitly discrediting the official reasons[55] given by the UK government when enacting the BIOT (Constitution Order) 2004. The documents, known as the “Rashid Documents,” contained information which offered hope to the legal team of the Chagossians, that the information would have affected the factual basis upon which the House of Lords proceeded in its 2008 decision[56].

A new challenge, this time, against the 2008 decision of the Law Lords ( Bancoult No2) was mounted by Mr Bancoult, leader of the CRG.  It was made on the grounds that the decision of the House of Lords was wrong in law since the Secretary of State “failed in breach of his duty of candour in public law proceedings, to disclose relevant documents” which would have affected the factual basis upon which the Law Lords decided the 2008 case. The Law lords acknowledged the relevance of the Rashid documents but did not consider them as having any impact on their 2008 decision. The 2004 prohibition order remained in force. The observations made by Lord Kerr in relation to BIOT (Constitution Order) 2004, in his dissenting judgment, were nevertheless, quite indicative of the conundrum faced by the Supreme Court:

What motivated the decision to categorically forbid the Chagossians the right to go back to live in their homeland was an anticipated campaign that might have been politically embarrassing for the government. When this apprehended harm is pitted against the importance of the right to be denied, it is not difficult to recognise how severe the challenge to justify the 2004 Order truly was”.[57]

Both in the UK and the US, the decision of the Secretary of State for Foreign and Commonwealth Affairs David Milliband, to create a Marine Protected Area around the Chagos Archipelago was welcome as a paying strategy for UK’s foreign policy.  On the one hand, the initiative would, on the high moral grounds of environmental protection,[58]  be acceptable to the international community and on the other, the MPA will make the possible return of the islanders to the Chagos Archipelago even more remote.

In December 2010, Wikileaks published a purported US diplomatic cable, summarising discussions between US and UK officials prior to establishing the MPA. The cable, inter-alia, reveals that BIOT’S former inhabitants would find it difficult, if not impossible, to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve[59].

Once again, sensing that the real motivations to create an MPA were to prevent the return of the Chagossians, Olivier Bancoult  challenged[60] the decision of David Miliband, the Secretary of State, on the  following grounds  :”(a) the decision to implement the MPA was actuated by improper motives intended to prevent the Chagossians people from resettling in the “BIOT”;   (b) resettlement of the islanders were feasible as borne out in a consultative report prepared at the request of the Foreign Commonwealth Office and  (c) the lack of prior consultation with the Chagossians people  and the failure to disclose information relating to the MPA were inimical  to their interests. “ [61]

Bancoult relied on the Wikileaks cables, which gave an account of a meeting which had taken place on 12 May 2009 between the representative of the US embassy, the Director of Overseas territories and Commissioner for BIOT, Colin Roberts, and the BIOT administrator, Joanne Yeadon. According to the records of the meeting, British officials told a US embassy official that the MPA would ‘bring an end to fishing and ... legislate for the protection of seas and atolls in BIOT while leaving the military base on Diego Garcia unaffected’.  The note expressly recorded that the creation of an MPA ‘should aim to calm down the resettlement debate. Creating a reserve [ie an MPA} will not achieve this, but it could create a context for a raft of measures designed to weaken the movement’.

The Court of Appeal rejected any assertion of bad faith or that the MPA had been created for an improper purpose, to prevent the Chagossians from returning to the Chagos islands. As regards the Wikileaks cables, although the appellate court did not rule on their authenticity, it nevertheless held that since the cables had already been disclosed to the world by a third party, it should have been admitted in evidence.

The matter finally reached the Supreme Court of UK[62].  The judgment was largely concerned with the issue of inviolability of diplomatic archives[63] and to exceptions thereto.  The appellants did not make much progress since the Court avoided the wider question whether the UK was ‘resorting to dubious policies of environmental concern to cover its neo-colonialist policy’[64] and deny the Chagossians their right of return to their ancestral homeland’.

B: Crime against Humanity

The notion of Crimes against Humanity first saw light in 1915 during the harrowing mass killing of Armenians in the then Ottoman Empire. This prompted the French, British and Russian governments to declare:

In view of these new crimes of Turkey against humanity and civilisation, the Allied governments announce publicly to the Sublime Porte that they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.”[65]

Back then, Crimes against Humanity was a newcomer and was not quickly accepted. As opposed to War Crimes, which was based on laws and customs of war, it was felt that laws and principles of humanity are not certain, varying in time, place and circumstance and accordingly it may be, to the conscience of the individual judge.” [66] The core difference between Crimes against Humanity and War Crimes is the nexus requirement regarding armed conflict or warfare. Indeed, as the name suggests, a key element for War Crimes is that the underlying crimes have been committed during an international or non-international armed conflict. By contrast, this is not required for Crimes against Humanity. The key element under Crimes against Humanity rests on whether there was a widespread or systematic attack against a civilian population by way of various underlying offences such as murder, extermination, deportation, torture or persecution.[67]

In 1945, in the aftermath of the Second World War, the Charter of the Nuremberg Tribunal included Crimes against Humanity as an offence. Its definition included murder, enslavement, deportation and other inhumane acts against a civilian population, before or during the war, or persecution on political, racial, or religious grounds in execution of or in connection with crimes within the jurisdiction of the tribunal irrespective of whether it was in violation of domestic law or not.As the definition shows, it was not totally clear as to whether the underlying crimes should have been committed in connection with warfare or not. After 1945, the link to warfare was gradually dropped, as was done interalia in the 1948 Genocide Convention, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity or the 1973 Convention on Apartheid.[68]

The notion of Crimes against Humanity today concerns attacks against a civilian population, which forms part of a widespread (for example, by repetition of similar crimes) or systematic practice (for example, as part of a policy by authorities or officials). This is the definition codified under Article 7 of the Rome Statute (the ‘Statute’) creating the International Criminal Court in 2002, and ratified by 123 States, including Mauritius and United Kingdom.

At the request of the prosecution, the pre-trial chamber of the International Criminal Court gave, on 6 September 2018, a “Ruling on Jurisdiction under article 19(3) of the Rome Statute”[69], over the alleged deportation of members of the Rohingya people from the Republic of the Union of Myanmar (Myanmar”) to the Republic of Bangladesh (Bangladesh”).

In essence, the Chamber ruled that the displacement of persons lawfully residing in an area to another State amounts to deportation, whereas such displacement to a location within the borders of a State must be characterised as forcible transfer.[70]  Having clarified that Article 7(1) (d) of the Statute comprises two different crimes against humanity, the Chamber also highlighted the fact that deportation or forcible transfer as being an open-conduct crime meaning that a “perpetrator may  commit  several different conducts which can amount to expulsion or coercive acts”.[71]  The relevance of the ruling lies in the scope of crimes against humanity under Article 7(1) (d) of the Statute and the circumstances that would constitute “deportation”, in contrast to “forcible transfer”.

Moreover, the Chamber noted:

Following their deportation, members of the Rohingya people allegedly live in appalling conditions in Bangladesh and that the authorities of Myanmar supposedly impede their return to Myanmar. Preventing the return of members of the Rohingya people falls within article 7(1) (k) of the Statute.  Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country.  Such conduct would, thus, be of a character similar to the crime against humanity of prosecution, which “means the intentional and severe deprivation of fundamental rights contrary to international law”. Furthermore, preventing a person from returning to his or her own country causes “great suffering, or serious injury […] to mental […] health”. `in this manner, the anguish of persons uprooted from their own homes and forced to leave their country is deepened.  It renders the victims’ future even more uncertain and compels them to continue living in deplorable conditions”.

Under Article 7(1) (d) of the Statute, a case needs to be of “sufficient gravity” in order to be tried by the ICC. In Prosecutor v Abu Garda[72], the pre-trial Chamber held that:

“the gravity of  a given case should not be assessed only from a quantitative perspective i.e by considering the number of victims; ….. the qualitative dimension  of the crime should also be taken into consideration when assessing the “gravity" of a given case.[73] 

The Rohingya case offers an interesting parallel to the Chagossians’ case. Like the Rohingyas, they are denied of their right of return to the Chagos, they face an uncertain future and continue to live in deplorable conditions. Both under Article 7(1) (k) of the Statute and under the International Human Rights, the Chagossians cannot be deprived of their right to enter their ancestral homeland.

Any future referral will, a priori, be subject-matter of an investigation by the prosecutor to determine whether there is sufficient basis to proceed, “taking into account all the circumstances of the case, including inter-alia, the question of jurisdiction, the gravity of the crime and the interests of victims and the age or infirmity of perpetrators in appropriate cases, and his or her role in the alleged crime”.

Part V:  Need for Justice- What are the options?

Soon after the ICJ gave its Advisory Opinion, the UK issued a statement destined to its allies and friends including Mauritius:

“In this important part of the world, the joint United Kingdom and United States defence facility on the BIOT plays a vital role in our efforts to keep our allies and friends, including Mauritius in the region, beyond and safe”.

The statement was received with scepticism in many quarters, including the academia. Elena Katselli, Senior Lecturer at Newcastle University, responding to the statement, gave a fit reply to UK’s proposal when she wrote[74] :

UK however overlooks the fact that it has no mandate to act as the “world’s guardian of peace and security. Rather, such primary responsibility is entrusted to the UN Security Council through Article 24 of the UN Charter which the UK was a main architect of. Significantly the principle of State equality which dictates that all states are equal and no state is more equal than another, and also prevents any state from acting as an “international policemen”. While there is no doubt that States individually and collectively must respond effectively to the serious threat of international terrorism, this must be done in accordance with international law.”

The refusal of the UK to comply with the ruling of the ICJ and UN Resolution 73/295, to make way for Mauritius to take possession of its islands has prompted Mauritius to look, for the first time, towards the US.

On the 13 December 2019, in an article published in The National Interest[75] (US Magazine), the Mauritian Ambassador to the UN wrote: 

“…. the Republic of Mauritius shares many of America’s concerns about threats to security in the Indian Ocean region, it is fully committed to the continuation of the base as a strategic U.S. facility. In fact, Mauritius is also willing to enter into a long-term lease agreement with the United States, which would go beyond the duration of the current UK-U.S. lease (which expires in 2036). Mauritius has made this pledge publicly before the ICJ and the UNGA and, most importantly, directly to the U.S. government”.

It was done at a time when the UK was in the middle of a general election and the risk of a Corbyn government, albeit a remote one, was possible.

The US option may still be on the Mauritian cards but is it a viable one?

Lest it was overlooked, the US has already replied to an invitation to enter into a long-term lease agreement with Mauritius.  In its written submissions before the ICJ, the US, in reply to assurances given by Mauritius that there are no risks to the continued existence of the  Diego Garcia base , made it known that it has no interest in entering into any arrangement with Mauritius to operate the base. It is not a State secret that the US has already signed a lease agreement with the UK to occupy the Archipelago and operate a base in Diego Garcia until 2036[76]. The two countries enjoy a special relationship and it would be unrealistic to expect US to prefer Mauritius as a landlord in lieu of UK, at a time when geopolitics in the Indian Ocean is exacerbated by the expansive naval and military presence of China and India.

In spite of the special relationship between the US and the UK and the signature of the lease agreement with BIOT for occupation up to 2036, the views expressed by Dr. Harris Assistant Professor of Political Science Colorado State University[77] inviting the US to enter into bilateral talks sooner or later with Port Louis may hold the key to a feasible and long lasting solution to the present problem. But first, the United States should come to terms with the fact that following the Advisory Opinion of the ICJ, BIOT is no longer sustainable as a jurisdiction over Diego Garcia. The BIOT umbrella under which the US has comfortably taken refuge and operates its base over the years, is now under global scrutiny carrying legal, political and moral implications  both  for  the UK and the US. The credibility of the UK as a champion of human rights on the international scene, especially at time when it is trying to forge new relationships with countries outside the EU following Brexit weighs heavily in the balance against BIOT. There is no guarantee that in future another UK Prime Minister may not take a different approach on the Chagos issue and abide with the UNGA Resolution 73/295 to complete the process of decolonisation of Mauritius. The US is, no doubt, mindful of the uncertainty ahead.

There is too much at stake now that the Indo-pacific region is coveted by both India and China. Diego Garcia is regarded as “a crucial platform for the projection of U.S. military power throughout all sectors of the Indian Ocean, including the Persian Gulf -Arabian Sea[78]” giving the US a full oversight and strategic position over the region. The base played key roles “in the First Gulf War (1990– 1991), Operation Desert Fox (1998), and the post–9/11 invasions of Afghanistan (2001) and the Iraq war. (2003)”[79].

The ICJ is the highest legal authoritative organ of the UN on International law, and its pronouncements have compelling importance. It is early days to predict the impact of its Advisory Opinion on the Chagos issue. Only time will tell, but the legal and diplomatic measures taken by Mauritius to obtain legal recognition of its sovereignty is no mean achievement.  Mauritius has demonstrated to the rest of the world and especially, to its partners in Africa that the struggle for full decolonisation of former colonies is still an ongoing process in the 21st century, no matter how mighty the former colonial master.  The UK is now under an obligation to bring its administration of the BIOT to an end as soon as possible, and the UNGA has already embarked on a process to complete the decolonisation of Mauritius and eventually the resettlement on the Chagos Archipelago of Mauritian nationals including those of Chagossian origin.

From a legal perspective, the Advisory Opinion has confirmed the importance of the UN resolutions. They were not adopted in vain and constitute an important body of ‘soft law,’ vital to understand decolonisation process of the 1960s, and in the struggle of colonised people for self -determination. As Stephen Minas, academic at King’s College London explained[80]:

“… in this Advisory Opinion, the unprejudiced analysis of ‘soft law’ in the form of General assembly resolutions, as evidence for the development of customary international law, allowed the Court to discern rules of self-determination that captured the currents of the 1960s wave of decolonisation while furnishing new impetus for the completion of the decolonisation project in the twenty-first century without conditions or exceptions. Bluntly the message for the present is that not only is the old division of the world into ‘Man Fridays’ and colonial administrators indefensible but so too are its legacies”.

On the question of resettlement the Court stated that it was an issue related to human rights that the UN General Assembly should address during the completion of the decolonisation process. The UK is urged to cooperate with Mauritius to facilitate resettlement. Now that the ICJ has dispelled all doubts on the question of sovereignty, it should be understood by the UK that it serves no purpose for UK to undertake “to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes” since in the first instance, the UK has no title to the archipelago.  That fact has now been officially acknowledged by the UN when its Secretariat released a new map of the Indian Ocean, depicting the Chagos Archipelago as a territory of Mauritius. 

In this geopolitical ballgame a pragmatic approach is best suited to secure the interests of Mauritius, since history has taught us that reliance on the enforcement of UNGA Resolutions can be a long wait and is probably the weakest link of international law.

 

[1]Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 , 25 February 2019 No 169

[2] 116 nations voted in favour of a UN General Assembly resolution calling for the complete decolonisation of Mauritius within a six -month deadline by ending the UKs administration over the islands. Only six – the US, Hungary, Israel, Australia, the Maldives and the UK – voted against it, with 56 abstaining.

[3] Resolution 73/295 Advisory Opinion of the ICJ  on the Legal Consequences of the Separation  of the Chagos Archipelago from Mauritius in 1965; deadline expired on 22 November

[4] Tribunal appointed under Annex 7 of the United Nations Convention on the Law of the Sea (UNCLOS).

[5] 65 islands according to the 1966  Exchange of Notes UK-US

[6] Mauritius Legislative Assembly Report of the Select Committee  Report on the Excision of the Chagos Archipelago ( No 2 1983)

[7] Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 , 25 February 2019 No 169 para 26

[8] Some 1500 to 2000 islanders were accounted for living on the islands of Diego Garcia, Peros Banhos and Solomon. Today the Chagossians are spread between Mauritius, Seychelles and the UK, most of them were given British passports and are living in Crawley on the outskirts of London.

[9]Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 , 25 February 2019 No 169 para 117

[10]  Ibid para 119

Article 2 provides inter-alia :

(a)    All acts, matters and things done or pursuant to the British Indian Ocean Territory Order 1965, including the closure of the plantations in the Chagos Archipelago, the departure or removal of those living or working there, the termination of their contracts, their transfer non and resettlement in Mauritius and their preclusion from returning to the Chagos Archipelago (hereinafter referred tones “the events”); and

(b) Any incidents, facts or situations, whether past, present or future, occurring in the house of the events or arising out of the consequences of the events.”

[11]R (  on the application of Bancoult) v Secretary of  State for Foreign and Commonwealth Office (No. 1) [2001] QB 1067, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2, [2008]UKHL 61, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2016}UKSC 35 and R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2014]EWCA Civ 708

[12] The Government of Mauritius has continuously raised the Chagos Issue before the UN General Assembly, the Non-Aligned Movement, the Organisation of African Unity and in bilateral talks with UK 

[13] Articles 2.3 (sovereignty over territorial sea to be exercised subject to other rules of international law ), 56.2 ( coastal state must have due regard to the rights of other States  in its EEZ) and 194 .4 (measures to protect marine environment must not constitute unjustified interference with the rights of other States signatories to UNCLOS)

[14] London African Summit 2019

[15] The Chagos Marine Protected Area Arbitration Award at par 542

[16] Milan J. N. Meetarbhan “Reexamining the Chagos Marine Protected Area Arbitration”, 45 Environmental Policy  and Law 248

[17] see below Part III on the question of consent

[18] The Archipelago will revert back to Mauritius when no longer required for defence purposes.

[19] Op. Cit note 14 , at para 421

[20] ibid paras 140-142

[21] Resolution 1654 (XVI), Res 1810(XVII), Res 2066(XX), Res 2189(XXI), Res 2232(XXI)

[22]  Opinio juris denotes a subjective obligation, a sense on behalf of a State that it is bound in to the law in question. The International Court of Justice reflects this standard in ICJ Statute, Article 38(1)(b) by reflecting that the custom to be applied must be "accepted as law".  

[23] Legal Consequences of the detachment  of the Chagos Archipelago from Mauritius in November 1965 para 151

[24] ibid para150

[25] ibid para 165

[26] ibid paras 146 -156

[27]Legal Consequences of the detachment  of the Chagos Archipelago from Mauritius in November 1965  para 160

[28] ibid para174

[29] ibid paras 177-181

[30] ibid para 44

[31] ibid para 95

[32] Ibis Paras 100-112

[33] Record of conversation cited in the Chagos Marine Protected Area Arbitration dispute between Mauritius and UK 18 March 2015 par 73

[34] The Governor also specified to the colonial office that the term” in or near” the Archipelago meant “within an area within which Mauritius would be able to derive benefit but for change of sovereignty”. 

[35] Sir Seewoosagur Ramgoolam had after the London Meeting addressed a handwritten note to the Under Secretary of State at the colonial Office, Trafford Smith setting out further preconditions relating to navigational facilities, fishing rights, emergency landing facilities and the benefit of mineral or oil   discoveries.

[36] The United Nations Special committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to colonial countries and Peoples, referred to as the special committee on decolonisation.

[37] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965; para 172

[38] Coalition of three parties Mauritius Labour Party, Independence Forward Bloc and Comite D’action Musulman.

[39] ‘Westminster models’ ensured continuity as far as possible  of the form of government prior to independence  and also certain basic features associated with UK’s  unwritten  Constitiution

[40] Sir Satcam Boolell  Chagos : The Danger of a Referendum ; published in For the Love of my Country at  page 72

[41] Date on which the Chagos Archipelago was incorporated in the newly constituted  BIOT

[42] 8 November 1965 is in effect the date when Archipelago was detached from the territory of Mauritius and 12 march 1968 the independence day of Mauritius.

[43] FCO 31/2192, Ewans to Rowlands  13 May 1977 referred to in The Subject as a Civic Ghost : Law, Dominion and Empire in the Chagos Litigation by T.T Arvind

[44] Exchanges  from  national archives  which were made public after  expiry of 30 years prescription

[45] ibid footnote 8 at pages 1081 et seq

[46] Article 73 of the UN Charter

[47] [2006] EWHC 1038

[48]  R (on the application of Bancoult) v Secretary of  State for Foreign and Commonwealth Office (No. 1) [2001] QB 1067

[49]  Dr Navin Ramgoolam then Prime Minister and Sir Satcam Boolell then High Commissioner met Robin Cook Secretary of State on 28 October 1997 to discuss resettlement of Chagossians. The Secretary of State, Robin Cook maintained that the only viable option was better to interact the Chagossians into Mauritian life. Chagos : The Danger of a Referendum  published in"For the Love of my Country “ Page 72

[50] Government estimated that it would cost £ 5M to take the inhabitants back and £ 5 m every year to maintain the inhabitants in terms of school, health care as well as law enforcement over the island

[51] BIOT ( Constitution Order ) 2004

[52] “2004 Order” is enacted by way of a prerogative  Order  without the sanction of  Parliament, the Foreign Secretary exercises the Order which is assented to by the Sovereign

[53] This in-spite of disturbing evidence that pressure was applied on the  consultants and their inexperience and lack expertise on the question of climate conditions  that will affect the Chagos

[54] The  Mauritian Government  had in the meantime  challenged the decision before the UNCLOS Tribunal  ( See Part One)

[55] Environmental including Climate change

[56] The Rashid documents contained a draft report which could shed light on the accuracy of the Feasibility Study prepared on behalf of the Uk government

[57]R (on the application of Bancoult No2) v Secretary of State for Foreign and commonwealth Affairs  [2016]UKSC 35 Para 166( Lord Kerr)

[58] Greenpeace movement had already expressed its support for the initiative.

[59] The Chagos Marine Protected Area Arbitration  Award  par 542

[60] In R ( on the application of Bancoult)  v Secretary of State for Foreign and Commonwealth Affairs  [2014] EWCA CIV 708

[61] footnote 53 refers

[62] R( Bancoult (No3) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3

[63] As regards the admissibility of the cables which government argued were inviolable due to the fact that they formed part of Diplomatic archives under the Vienna Convention, the majority held that there were exceptions to the Vienna Convention where the documents were already in the public domain due to its distribution by Wikileaks albeit unlawfully and second where the documents have passed from a diplomatic embassy here the embassy in London to a state departments. Having agreed that the cable was admissible, the next question that arose is whether their admissibility would have made any difference to the final decision of the administrative court.  The majority (5-2) held that they would not have made any difference. On the question of fishing rights the Law Lords unanimously felt that this is a matter which should be left to Mauritius if the latter was of the view that its fishing rights were adversely affected.

[64] Marcus Cleaver UK Law Weekly R( Bancoult  No 3) v Secretary of State for Foreign and Commonwealth Affairs  2018 UKSC 3 (20 February 2018

[65] See International Criminal Law, A. Cassese, 3rd Edition, page 84.

[66] Ibid no.2, page 85, citing R. Lansing and J Brown Scott in the Memorandum of Reservationsto the Report presented to the preliminary Peace Conference by the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties.

[67] See Article 7 of the Rome Statute and section 2 and 4(1) (a) of the International Criminal Court Act.

[68] Ibid no.2, page 90.

[69] ICC-RoC 46(3)-01/18

[70] ibid para 55

[71] Examples of such conduct include deprivation of fundamental right, killing, sexual abuse, torture, enforced disappearance, destruction and looting

[72] Prosecutor v Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09

[73] See article by J. Muneesamy former Trial Lawyer for the  prosecutor  of the ICC in Newsletter ODPP Issue 100

[74] Chagos Islands: UK refusal to hand back archipelago disregards international law and echoes era of colonialism The Conversation  June 11 2019

[75] National Interest, 2019. Breaking Up with Britain: Why Mauritius Wants an Agreement with America

https://nationalinterest.org/feature/breaking-britain-why-mauritius-wants-agreement-america-105087

[76] Mauritian press reported of a renewed offer, made publicly by the Permanent Representative of Mauritius to the UN, on the willingness of the Republic of Mauritius to agree to an extended lease of 99 years over Diego Garcia.

[77] Article published in Journal of Indo- Pacific Affairs (JIPA)  on 8 June 2020

[78] ibid note 71

[79] ibid note 71

[80] Why the ICJ’s advisory opinion matters for global justice - and for global Britain Transnational  Legal Theory 2019 Vol 10 no 1

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