Most inland countries would ignore decisions of the world’s maritime court, the International Tribune for the Law of the Sea (Itlos). But this decision is different. It sheds important light on one of the few places in the world still regarded by many (including the United Nations) as a colony that should be returned to its original people. This time the ‘colony’ is the Chagos Archipelago – a group of islands and atolls in the Indian Ocean. Mauritius says the islands are a part of its territory. But the UK denies this. Despite a key opinion by the ICC and a crucial resolution by the UN general assembly both saying that the UK was unlawfully in occupation, the UK has held fast to its position – and to the archipelago. Following the Itlos judgment, however, will its hold be quite so secure?
Put simply, Mauritius wants the Chagos Archipelago back. Several thousand people from these islands were removed by the UK between 1968 and 1974 to make way for a UK and US military base. Now Mauritius says these people and their descendants want to go home, and Mauritius sees itself as the legitimate governing authority of the group of islands.
For this to happen, though, the UK has to be made to give up the islands, something it has persistently refused to do.
In 2019, the International Court of Justice gave an advisory opinion saying the UK was unlawfully exercising authority over the islands. The UK took no notice. That was followed by a UN general assembly motion giving the UK six months to quit the territory. Again, the UK took no notice, saying that it was the lawful authority and that if and when it no longer needed the archipelago for its defence purposes, it would ‘cede’ the territory to Mauritius. There has, however, been no sign that this will happen any time soon.
But Mauritius has been involved in a second dispute, this time with the (pro-UK) Maldive islands, over their respective fishing waters. To resolve the dispute, Mauritius has proposed to the Maldives that they should draw a border to define whose fishing fleet was allowed to fish where. This is a line that you would normally draw when two countries are coastally opposite or next to each other.
To understand what happened next, it is important to explain that Mauritius, the Chagos Archipelago and the Maldives are spread out, with hundreds – sometimes thousands – of kilometres between the three. Mauritius is the most southerly, then the archipelago – officially called the British Indian Ocean Territory by the UK – and then the Maldives the most northerly. When Mauritius proposed finalising a fishing boundary between itself and the Maldives, the reaction from Mal`e, capital of the Maldives, was strongly negative.
Mauritius was neither opposite nor next to the Maldives. It was the Chagos islands that were coastally opposite the Maldives, said Mal`e. And as the Chagos territory was British, not Mauritian, no fishing boundary could exist between Mauritius and the Maldives.
Mauritius took this dispute to Itlos, which is the equivalent of an international maritime court, asking it to intervene with a decision on the demarcation of a fishing boundary.
The Maldives objected, listing a number of preliminary technicalities, any one of which might have knocked out the whole case. As it turned out, the most significant argument made by the Maldives was that it was compulsory to involve the UK as a party to the dispute, since the Chagos islands were under UK authority. Since the UK had not been named by Mauritius as a party, the case could not go on, argued the Maldives.
But the Itlos court agreed with Mauritius: between them, the advisory opinion of the International Court of Justice and the UN resolution demanding UK withdrawal from the territory had finalised the question of Britain and the Chagos islands, said the Itlos court. They had made it clear that the UK was unlawfully exercising authority there and that it had to leave as soon as possible.
The implication of this was that there was no need for the UK to be a party to the maritime dispute over the fishing waters of the Maldives and Mauritius. It had in fact been told to leave. So, since the issue of the UK’s authority had been resolved already, with a finding against it, Mauritius was clearly the legitimate party to be discussing the question of a maritime border with the Maldives.
It is clear that the UK will not accept this judgment, delivered a week ago, and that further court action will be forthcoming, but in the meantime, Itlos has said that further legal preliminaries are needed before it can consider and resolve the disputed maritime border. The case will resume again once all this information has been forthcoming.
Many people have called the Western Sahara area the world’s ‘last colony’, but the Indian Ocean from Mozambique to Indonesia, as well as the ocean region further south is peppered with islands, like the Chagos archipelago, where European countries and Australia are said to exercise authority. The fight by Mauritius for what it says is the return of its rightful territory could well see some other islands, held by France, the UK and Australia, for example, making similar demands.