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Chagos Archipelago: Who owns Blenheim Reef?

21 février 2022, 21:30

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Chagos Archipelago: Who owns Blenheim Reef?

An article last week in The Interpreter, and discussed in l’express on 17 February, by researchers at the Australian National University gave a misleading account of Britain’s past claim to Blenheim Reef and failed to mention Mauritius’ long-established claim.

Most readers will not have access to the files in the National Archives in London which the authors used, and the story will doubtless appear credible and intriguing. However, by using edited quotes from those files the authors distorted the truth which is very different.

Was Blenheim Reef “forgotten” in the Treaty of Paris 1814 and the 1965 Order in Council? Blenheim Reef is a submerged coral atoll in north of the Chagos Archipelago parts of which are above water at low tide, approximately 11 nautical miles from the nearest islands in Salomon Atoll.

Mauritius (Ile de France) was ceded to the British under the Treaty of Paris 1814, along with Chagos as one of its dependencies. In 1965, Britain used an Order in Council to excise the Chagos to form a new colony, the British Indian Ocean Territory (BIOT). Neither the Treaty nor the Order in Council needed to include any specific reference to Blenheim Reef, but that does not mean it was “forgotten” or omitted as asserted in the article.

What did the British Foreign Office conclude in 1975 about the status of Blenheim Reef?

When an American citizen from Illinois enquired about Blenheim Reef in 1975, the BIOT Commissioner in the Seychelles sought advice from the Foreign Office in London. In his telegram he expressed his view that although Blenheim was geographically part of the Chagos he thought that because it was not listed in the 1965 Order in Council it was therefore outside his jurisdiction.

In London, officials concluded that Blenheim Reef did not appear to be an island but nonetheless was part of the Chagos continental shelf, over which Britain exercised sovereignty, and they instructed the BIOT Commissioner to send a reply to the American stating that he had “administrative jurisdiction” over the Reef.

Under international law this was entirely correct. Under the 1958 Convention on the Territorial Sea and the Contiguous Zone Britain could not claim sovereignty over a reef which was submerged at high tide (a ‘low-tide elevation’) unless it lay within the territorial sea of another island. Britain claims a 3 nautical mile territorial sea in Chagos so Blenheim Reef is outside this limit. But equally no other State could claim it. Under the 1958 Convention on the Continental Shelf however Britain was entitled to sovereignty for the purposes of exploring and exploiting the natural resources of the Shelf.

There was therefore no question that Blenheim Reef belonged to “noone” (terra nullius) as implied by the article. The Foreign Office was in no doubt and had settled the matter as far as it was concerned.

Commander Wells Royal Navy plants a flag on Blenheim Reef in 1982

When on 15 March 1982 the British Representative (BritRep) planted a British flag on a visit to the Reef 7 years later this was at a particularly sensitive time for London, with sovereignty over the Falkland Islands in dispute, and the ongoing Law of the Sea Conference. Embarrassed by Cdr Wells’ actions an official remarked that he “does go off the rails occasionally like this” but declined to order removal of the flag by the new BritRep who was now in post to avoid loss of face with the Americans so soon after his arrival on Diego Garcia.

Contrary to what the article claims, London was not concerned that the Soviets or another State “might grab the reef”, nor had the Legal Adviser concluded that it was terra nullius. The original document in the Archives makes this clear that this advice was only:

“If Blenheim Reef does constitute an island, it can, as I have said, be an object of territorial sovereignty. Until sovereignty over it is asserted, it is terra nullius. In the absence of a claim to sovereignty by us it would be open to any other State to claim sovereignty over it...” This is a correct statement of law, but as the Foreign Office concluded in 1975 and this remained unchanged in 1982, Blenheim Reef was as far as they were concerned a low-tide elevation not an island, and they informed the new BritRep that this was the case.

“Furthermore since, according to Commander Wells, Blenheim Reef is a low tide elevation, it is not an object over which territorial sovereignty can be claimed”.

Mauritius’ Claim to Sovereignty of the Chagos

The article also neglected to mention that since 1977 Mauritius has claimed a 12 nautical mile territorial sea throughout its territory including the Chagos Archipelago. Indeed in 1982 the Foreign Office noted that “Mauritius claims sovereignty over BIOT and at this moment in Mauritus politics with elections due next month, we would not wish to stir up this issue by making a formal claim to Blenheim Reef”.

Now that an International Trubunal for the Law of the Sea has concluded that Mauritius is the sovereign state in the Chagos and has been since 1968, there is little doubt that Blenheim Reef is territory over which Mauritius exercises full sovereignty. The current Mauritian survey should however conclusively establish whether it is an island or a low-tide elevation.

Neither Britain nor Mauritius have ever had doubts over their respective claims to Blenheim Reef and contrary to what the authors may think, there is simply no likelihood of another country claiming it, nor building an artifical island there, and no impact whatsoever on the US base on Diego Garcia.

Biography

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<p>Richard Dunne is a Barrister and former Royal Naval Officer who advised the Commander in Chief Fleet during the 1980s on legal matters including the International Law of the Sea. He has researched extensively into the Chagos Archipelago for the last 12 years. He is the editor of the website <a href="https://sites.google.com/site/thechagosarchipelagofacts/" target="_blank">Chagos Archipelago Facts</a><sup>&nbsp;</sup>.</p>