Sanya Shah, Pravin Gandhi College of Law Mumbai
Neha Pandey, NLU Shimla
Editor: Jasmine Emmanuel, GLC Thrissur
The Chagos Archipelago, more commonly known as the Chagos Islands, is a group of several coral atolls. More than 60 islands are a part of these atolls, which are located in the Indian Ocean, a little south of Maldives. The Chagos Archipelago has been a part of Mauritius since the 18th century when it was a French colony that went by the name of Isle de France. After the territory was handed over to the United Kingdom in 1810 under the Act of Capitulation, people began referring to it as ‘Mauritius’. Currently, the territory remains under the jurisdiction of the United Kingdom as they ‘unlawfully’ split up the colony from Mauritius in 1965.
History of the Dispute
The dispute over the Chagos Islands dates back to 1965. In 1965, the United Kingdom bought the archipelago from Mauritius in order to build a water-based territory that would serve as the British-based territory on which the United States could conduct its military tasks. Up until then, the Chagos Archipelago was treated as a Dependency of Mauritius and thus meant that it was a part of that territory. Three years later, when Mauritius gained independence, the islands in the Chagos Archipelago remained under the power of the United Kingdom. The dispute over the Chagos Archipelago arose due to the two independent state’s fight over the territory.
Chagossians inhabited the Chagos Islands until they were forcefully expelled in 1968 due to its purchase. Following the expulsion, the native inhabitants of the land were forced to move to Mauritius or bordering territories such as Seychelles, and they were banned from entering the Chagos Archipelago. The United States used the largest island of the lot, Diego Garcia, as their military base that was provided to them by the United Kingdom due to an agreement; Diego Garcia is now the only island that is inhabited as military personnel reside on the base.
The United Kingdom formed British Indian Ocean Territory, or the BIOT, in November of 1965, and it consisted of several islands. When the Chagos Islands were separated from Mauritius, several other islands were also excised from the bordering territory of Seychelles; though, after Seychelles gained independence in 1977, the islands were returned to them. The United Kingdom decided to split up the colonies even though it was in violation of the United Nations Resolution 1514 which was passed in 1960. This resolution banned the break-up of territories before independence, but the United Kingdom still decided to separate the territories in order to form its own water-based military base.
After Mauritius gained independence, they asked for their territory to be returned to them, On 9 October 1980, the Mauritian Prime Minister, Sir Seewoosagur Ramgoolam, first claimed sovereignty over the Chagos Archipelago before the UN. The United Kingdom claimed that the Archipelago was now their overseas territory on which they were to continue their military activities. They claimed that they were not going to return islands as it was required to accommodate the United States desire to use certain islands in the Indian Ocean for defence purposes.”
Due to an economic handicap caused by the absence of the islands, Mauritius submitted a proposal through which it could cover the losses it suffered. Mauritius sought to improve its sugar import situation with the United States in exchange for the United Kingdom and the United States using the Chagos Islands as their defence base. Unfortunately, the United Kingdom rejected this proposal as they did not think the United States could be involved in such a matter. Their economic handicap was one of several reasons that caused Mauritius to take such severe steps. Mauritius decided to take legal action against the United Kingdom, and despite their several attempts to stop this, Mauritius succeeded in bringing the matter to an international court.
The Findings of the Arbitral Tribunal
Firstly, the case was brought before the Permanent Court of Arbitration situated in The Hague. In 2015, Mauritius initiated a legal proceeding about all these issues against the United Kingdom in the Permanent Court of Arbitration (PCA) at The Hague in the Netherlands. The UK made several attempts to resist Mauritius’ attempts to take the matter to any International Court through the claim that the existing issue was a bilateral matter. The Permanent Court of Arbitration reprimanded the government of the United Kingdom and found them guilty of the charge of the violation of legal rights of Mauritius citizens. It came under gross human right violation and PCA declared that its ―Marine Protected Area around the archipelago is illegal and held that it was created as an intentional attempt to stop the native inhabitants from being able to go back to their land.
The United Kingdom, after the ruling of The Arbitral Tribunal in 2015, claimed that they agree with Mauritius’ claim to sovereignty over the islands, but can only return the land after they assess that the islands are no longer required for military purposes. Following this, Mauritius sought to bring this case before the International Court of Justice.
At the UN General Assembly
On 22 June 2017 the United Nations General Assembly adopted resolution 71/292, in which, referring to Article 65 of the Statute of the Court, it requested the Court to give an advisory opinion about the existing issue. India was among the 94 nations that who were in favour of the resolution.
31 Member States of the United Nations and the African Union filed written statements, and 10 States and the African Union filed written comments on the written statements. 22 States and the African Union participated in the oral proceedings, which took place from 3 to 6 September 2018. In the Advisory Opinion given on 25th February 2019, the Court directed that “the process of decolonization of Mauritius was unlawfully completed when that country acceded to independence” and that “the UK is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible”.
ICJ’s Advisory Opinion
In February 2019, the UN’s highest court of justice, the International Court of Justice, ordered the UK to return the Chagos Islands to Mauritius as rapidly as possible. ICJ said that the occupation of Island was in breach of UN resolution 1514 that was passed in 1960, which specifically banned the breakup of colonies before independence. The UN General Assembly affirmed the ruling in May 2019 and set a six-month deadline for the U.K. to withdraw from the archipelago. The UK termed this ruling as ―an advisory opinion, not a judgment and claimed that ―the defence facilities on British Indian Ocean Territory helped to protect people here in Britain and around the world from terrorist threats, organised crime and piracy.
Arguments Advanced by Mauritius
i) The UK has unlawfully occupied this region- Mauritius argues it was illegal for the UK to break up its territory. It claims sovereignty over the island and demands the right to resettle former residents.
ii) Against the right of self-determination- The separation of the archipelago from Mauritius was mentioned clearly in the UN resolution 1514, also called as Colonial Declaration. Passed in 1960, it enshrined the right of self-determination for colonial peoples and specifically banned the breakup of colonies prior to independence. This was intended to keep borders stable, and to prevent colonial powers from simply absorbing colonial territory into their overseas territory so as to retain their sovereignty.
On 18th May 2020, the U.N. secretary-general gave a report on the implementation of the 2019 resolution, wherein Mauritius complained that the U.K.’s negative response to both the ICJ’s opinion and the U.N.’s resolution was not in consistence with its professed support for the international rule of law.
The UK is slowly finding itself more diplomatically isolated after its failures at the UN General Assembly concerning Chagos Islands. The shambles that is Brexit has also alienated the UK to a certain degree in terms of its relations with other EU members. The U.K.’s position in this dispute is strategically ill-advised. It leaves London vulnerable to the charge of hypocrisy at a time when it is trying to present itself as a supporter of a free and rules-based international order. One may hope that at some point in the future, the U.K. may find that its own interests are best served by a more flexible stance on the Chagos Islands. And will understand the pain of displaced Chagos Islanders who faced homelessness, poverty and associated hardships after being forcefully removed from their homeland.
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