The special chamber of the International Tribunal of the Law of the Sea (ITLOS) in its decision dismissed the objections of the Maldives, reinforcing the view that Chagos belongs to Mauritius and that the dispute will continue to be heard by ITLOS. So what are the implications of the ITLOS decision for the UK and the US? And why will the next chapter in the Chagos fight be coming from the Indian Ocean Tuna Commission?
On 28 January a special chamber of the International Tribunal of the Law of the Sea (ITLOS) dismissed Maldives’ objection that it could not hear the case about a 98,828 square kilometer stretch of ocean between the Chagos and Maldives and claimed by both sides. In short, what the Maldives argued was that the ITLOS could not hear the case since it was still not clear whether it was Mauritius or the UK that owned the Chagos. However, the ITLOS overruled this argument that found that Mauritius owned the waters around the Chagos and that the dispute between the two island-states in the Indian Ocean over this stretch of the ocean could continue.
IOTC: the next front
The case at the ITLOS will continue as it decides the maritime boundary between Mauritius and Maldives. But the next move in the Chagos saga won’t be coming out of the ITLOS, but rather it will be made at the Indian Ocean Tuna Commission (IOTC).
Following the ICJ verdict in 2019, Mauritius embarked on an offensive within the Indian Ocean Tuna Commission (IOTC) based in Victoria in Seychelles, the international authority regulating fishing in the region. IOTC membership is open to states that have coastlines along the Indian Ocean region, states that fish in the Indian Ocean as well as regional economic blocs. By virtue of its control over the Chagos, the UK is an IOTC member as a coastal state since 1995. After the ICJ verdict in February 2019, in June at an IOTC session in Hyderabad in India, Mauritius demanded that the IOTC expel the UK as a coastal state. After the ICJ verdict, Mauritius insisted, “the United Kingdom is not and cannot be the coastal state in relation to the Chagos Archipelago. The United Kingdom is therefore not entitled to be a member of the IOTC as a coastal state”.
At that time, other IOTC members said that needed to wait for instructions from their capitals on how to decide the question. On 4 March 2020, Mauritius once again demanded that “Termination of the United Kingdom’s membership in the IOTC as a coas- tal state” be put on the agenda of the 24th session of the IOTC.
But then Covid-19 hit and the IOTC’s 24th session in November 2020 was conducted online and only discussed matters requiring urgent attention. On 8 July 2020, Mauritius said it wanted the question to be discussed at the 25th session, due to be held this year. In the meantime, Mauritius has continued to protest the UK’s participation in the IOTC as a coastal state at technical committee and other IOTC meetings. The UK’s response to Mauritius’ offensive within the IOTC has been to re-iterate its sovereignty over the Chagos, how the ICJ was non-binding, and that given that the Chagos was within the Indian Ocean, “there can therefore be no doubt that the United Kingdom, as the state with sovereignty over BIOT as aforementioned, is entitled to be a member of the IOTC”.
Making mauritius’ case
Following the ITLOS decision, the Mauritian case at the IOTC has become incredibly strengthened, while that of the UK has considerably diminished.
The first problem for London is that the ITLOS says that it recognizes Mauritius as the state with sovereignty over the Chagos that it can be, “regarded as the state with an opposite or adjacent coast to the Maldives”. In other words, Chagos and its coast are Mauritian, not British. The second problem for London is that the ITLOS findings are binding. And the third issue is that there is just no way that the IOTC can simply ignore, or disagree with the ITLOS by keeping London on as a coastal state member.
This is for some very obvious reasons; the ITLOS is a tribunal in charge of interpreting and enforcing the United Nations Convention on the Law of the Sea (UNCLOS), the international law regulating maritime affairs. The IOTC is a regulatory body established under the same law, the UNCLOS. Not are both of them bound by the same set of rules, but both are organizations within the UN system: ITLOS under the UNCLOS, and the IOTC being founded in 1993 under the UN’s Food and Agriculture Organization (FAO). If it was unrealistic to expect that the ITLOS as a UN tribunal would ignore the legal determination of the UN’s highest court (the ICJ), it is equally unrealistic to expect a UN regulatory body (the IOTC) to ignore a binding legal decision by the highest UN court concerning maritime affairs (the ITLOS) enforcing the same law that it itself was founded on. “It’s going to be pretty hard for the IOTC not to kick the UK out” concludes Seegobin.
Armed with the ITLOS judgment denying the UK any international right to control the Chagos, the next chapter in the Chagos saga may be coming out of the Indian Ocean Tuna Commission as it meets in a special session in March this year.
Implications for UK and US
The ITLOS decision is full of implications for the positions of the UK and the US. First, the UK. “This is the third time since December 2010 that an international court or tribunal has decided in Mauritius’ favor concerning the Chagos” former UN representative of Mauritius Milan Meetarbhan tells l’express. The ITLOS decision, however, is particularly damaging for the UK’s argument. In 2015, an arbitral tribunal of the United Nations Convention on the Law of the Sea (UNCLOS) decided that the UK was not allowed to unilaterally declare the Chagos archipelago a marine protected area (London tried to green-wash its control over the island chain while at the same time making resettlement of the Chagossians there impossible).
Although the tribunal decided that it could not decide who the islands belonged to, it relied on a 1965 agreement on the eventual return of the islands by the UK to Mauritius to decide that Mauritius had certain rights in the Chagos and that the UK could not unilaterally declare the area a protected zone without clearing the move with Port Louis.
Then in 2019, the UN’s highest court, the International Court of Justice (ICJ) in an advisory opinion slammed the UK’s continued occupation of Chagos as “unlawful” and demanded the UK hand back the islands to Mauritius. A decision that was quickly followed by a UN General Assembly (UNGA) resolution that same year that demanded the UK hand back the Chagos to Mauritius by November 2019. London simply ignored both decisions. What the UK has argued since is that the UNCLOS tribunal did not decide who owned the Chagos whereas the ICJ decision was “non-binding”. These were the arguments that Maldives picked up to argue at ITLOS that there still legal uncertainty about who owns the Chagos. “We have to draw a distinction here, binding means enforcement. Now we cannot argue that a lack of enforcement means that there is uncertainty about the legal principle itself” explains Meetarbhan.
In a nutshell is what the ITLOS decided as well when it said, “determinations made by the ICJ in an advisory opinion cannot be disregarded simply because the advisory opinion is not binding” the ITLOS concluded that the ICJ decision, “do have legal effect” and that “while the process of decolonization has yet to be completed, Mauritius’ sovereignty over the Chagos archipelago can be inferred from the ICJ’s determinations”.
The ITLOS further found the UK ignoring the UNGA’s deadline to leave the Chagos only further strengthened Mauritius’ claim. On the contrary, coming to the UK’s argument, the ITLOS concluded that, “if, indeed, the ICJ has determined that the Chagos Archipelago is a part of the territory of Mauritius, as Mauritius argues, the continued claim of the United Kingdom to sovereignty over the Chagos Archipelago cannot be considered anything more than a mere assertion”.
According to Meetarbhan, “This is very significant, what this shows is that the UK may have been right about the power to enforce the ICJ’s advisory opinion, but it is not right when it comes to the law and ignoring a determination of international law”. The problem for the UK, however, is that it cannot simply shrug off the ITLOS’s findings as it tried to do with the ICJ’s one. “It already looked pretty damning for the UK after the ICJ and the UNGA, but this new ITLOS decision makes it worse because it says that the UK has no claim on the Chagos whatsoever and what is more, an ITLOS decision is binding” says Ram Seegobin of Lalit. Indeed, the rules of the ITLOS itself state, “the judgment of the tribunal is final. It is binding on the parties to the dispute on the day it’s reading”.
This just completely demolishes the UK’s argument, Seegobin adds. For London, a binding decision from the ITLOS upholding the ICJ decision and deciding that the Chagos is Mauritian now leaves them in a tight spot. “How much longer can the UK continue to insist that the law is on its side when all these judges and tribunals are saying exactly the opposite?” Meetarbhan asks, “it is high time for the UK and the US to come to the negotiating table and avoiding further political embarrassment”.
It’s not the UK that’s been left high and dry by the ITLOS decision, so has the US. Following London’s lead, Washington DC has traditionally refused to engage Mauritius over the Chagos by insisting that the Chagos is a bilateral problem to be solved between London and Port Louis. The ITLOS decision comes as a cold shower for Washington as well. “For there to be a bilateral issue, there must be two sides which have claims” explains Seegobin, “what ITLOS has just said is that the UK has no claims and no legal role in the Chagos so this is not a bilateral problem between Mauritius and the UK at all, Chagos is just a Mauritian problem”.
What the ITLOS decision (which is binding under international law) is showing is that the US is increasingly being shown to be running a military base on Diego Garcia (the largest atoll in the Chagos) on territory that is illegally occupied by a state with no claims to it under international law. With time, the political embarrassment for the US is only being compounded. Unlike the UK, the costs for the US are much smaller.
Successive Mauritian governments (and all mainstream political parties without exception) have signaled their intention to keep the US base on Diego Garcia even if Mauritius gets the Chagos back. The latest offer was sent by Prime Minister Pravind Jugnauth to US President Joe Biden shortly following his election. With the internationally recognized owner of the Chagos prepared to ensure that no strategic interests of the US are jeopardized, “in light of these reassurances, it’s going to become even more difficult for the US to continue to maintain its position, at some point it will have to ask itself why continue to go through this embarrassment?” insists Meetarbhan.