Mauritius Brings UNCLOS Arbitration Against The United Kingdom Over The Chagos Archipelago

Introduction

The Chagos Archipelago, which dots the heart of the Indian Ocean, is in the middle of a very 21st century international dispute.  In April 2010, the United Kingdom, with the backing of ocean science and environmental groups, declared most of the exclusive economic zone (“EEZ”) of the archipelago a marine protected area (“MPA”) and off-limits to all fishing.[1] Extending over a quarter-million square miles would be the largest “no-take” MPA in the world.  The island of Diego Garcia, which houses a major U.S. military base, listening post, and occasional prisoner waypoint for the wars in Iraq, Afghanistan, and beyond, is excepted from the MPA designation.

Mauritius also claims title to the archipelago and asserts that Mauritius and the people who previously lived there (the Chagossians or Îlois) have rights to the archipelago’s fisheries and other resources.

In early December 2010, the dispute between the United Kingdom and Mauritius came into sharp relief when the Wikileaks website published a leaked cable from the U.S. Embassy in London recounting a conversation with the Director of Overseas Territories in the U.K. Foreign and Commonwealth Office.  He is reported to have suggested that the MPA was designated not for environmental reasons, but to prevent the Chagossians from returning to the islands and interfering with the Diego Garcia base.[2]

On December 20, 2010, Mauritius instituted arbitral proceedings against the United Kingdom under the U.N. Convention on the Law of the Sea ("UNCLOS").[3] Mauritius seeks to resolve title to the archipelago and to challenge the MPA.  This suit has the potential to upend military operations at Diego Garcia and to address several important outstanding questions in international law.

Background

The first Europeans to arrive at the archipelago in the 16th century found it uninhabited.  The French later claimed the archipelago and populated it with African slaves to work its copra plantations.  The British took control of the islands in 1810, during the Napoleonic Wars, and France formally ceded them to the United Kingdom, as part of its new colony of Mauritius, by the 1814 Treaty of Paris.

By the early 1960s, with the hardening of the Cold War, the United States had begun to covet Diego Garcia’s strategic location and natural deepwater port.  But neither the Americans nor the British wanted any military base there to be subject to the control of Mauritius, which was on a path towards independence.  In 1964, the United States and the United Kingdom agreed that the archipelago should be separated from Mauritius and kept under British control, and that the Chagossians should be resettled elsewhere.  In 1965, Mauritius and the United Kingdom reached an agreement (“1965 Agreement”) that the archipelago would be excised from Mauritius and returned when no longer needed for defense purposes in exchange for £3 million plus the costs of resettling the Chagossians and buying out the plantations.  In November 1965, the British government issued an Order in Council under the Royal Prerogative[4] formally detaching the archipelago from Mauritius and reconstituting it as a new colony—the British Indian Ocean Territory (“BIOT”).[5] The following month, the U.N. General Assembly condemned the effort by the British to detach the archipelago from Mauritius to build a military base as a violation of the principles of self determination set out in Resolution 1514 on the Declaration on the Granting of Independence to Colonial Countries and Peoples (“Resolution 1514”).[6] The United Kingdom granted Mauritius independence in March 1968.[7]

To make way for a military base on Diego Garcia, the Chagossians in the archipelago had to be relocated.  Since the copra companies had owned all the property in the archipelago, the British simply bought out the plantations and closed them down.[8] By 1973, the British government shipped all the Chagossians to Mauritius and the Seychelles, where, by all accounts, many continue to live in poor conditions.[9]

The British initially paid Mauritius £650,000 to cover resettlement costs.  Subsequently, in 1982, the United Kingdom and Mauritius agreed that the British would set aside an additional £4 million in trust for the benefit of the Chagossians as “full and final settlement” of any claims on their behalf which may arise out of “all acts, matters and things done by or pursuant to the [BIOT] Order 1965” (“1982 Settlement Agreement”).[10] Some Chagossians nevertheless did sue in U.S. and U.K. courts for the right to return to the archipelago and for compensation, but the courts dismissed those suits by June 2008.[11] These Chagossians are now pursuing their claims before the European Court of Human Rights (“ECHR”), where their claims are still pending.[12]

Meanwhile, the United Kingdom was preparing to establish the MPA.  It held formal consultations with Mauritius on the issue in January and July 2009, and it opened the question up to the public in November 2009. [13] Environmental NGOs, such as the Pew Foundation, supported the MPA proposal as essential to protecting the archipelago’s “exceptional” biological diversity and relatively pristine condition.[14] Some human rights groups condemned the effort, however, as an attempt to "prevent[ ] Chagossians from resettling, because if fishing were prohibited they would have no means to support themselves after return."[15]

British Foreign Secretary David Miliband went ahead and announced the creation of the MPA on April 1, 2010, reserving that it was “without prejudice” to the ECHR proceedings or its commitment to return the archipelago to Mauritius when no longer needed for defense purposes.[16]

Mauritius’s Claims

After the revelation of the Wikileaks cable, Mauritius brought the present arbitration under UNCLOS Part XV and Annex VII, [17] which allow a party to submit “any dispute concerning the interpretation or application” of UNCLOS to binding arbitration, with certain exceptions.[18] Mauritius’s claim focuses on two main arguments:  (i) the United Kingdom is not the “coastal state” with respect to the archipelago, and therefore the United Kingdom has no right to establish any MPA in the archipelago’s waters in the first instance; and (ii) even if it is the coastal state, in establishing the MPA, the United Kingdom breached obligations under UNCLOS by acting in bad faith and without regard to the rights of Mauritius and the Chagossians and without sufficient consultation with other interested states and regional organizations. 

Mauritius’s first claim–that the United Kingdom is not the “coastal state”–is really a challenge to title to the archipelago, since only the “coastal state” has the right to regulate fishing in coastal waters.[19] The United Kingdom claims that Mauritius ceded sovereignty to the archipelago to the United Kingdom in exchange for £3 million under the 1965 Agreement.[20] Mauritius counters that the 1965 Agreement was the product of extortion and abuse and is invalid, and that Mauritius retains sovereignty over the archipelago.  Mauritius alleges that the United Kingdom conditioned Mauritius’s independence on it giving up the archipelago, in violation of fiduciary obligations owed to its then-colony under Article 73 of the U.N. Charter and Resolution 1514.[21]

Whether these allegations, if proven, constitute sufficient basis for invalidating the 1965 Agreement may depend on the applicable law.  As a colony, Mauritius lacked full responsibility for its internal affairs and foreign relations and thus may not have been a “State” capable of entering into a treaty whose validity would be governed by the relatively strict Vienna Convention on the Law of Treaties.[22] If the Vienna Convention does apply, Mauritius would have to establish that the United Kingdom’s conduct was so bad as to amount to a violation of a peremptory norm of international law, since mere coercion, absent the actual threat or use of force, is insufficient.[23] Mauritius would also have to comply with the procedures of Article 65 of the Vienna Convention, which require a state claiming that a treaty is invalid to give notice of its “reasons” in a possibly more direct form than what is merely implicit in Mauritius’s current claims.    

Mauritius’s second claim is that, even if the United Kingdom is the “coastal state,” this large no-take MPA is “incompatible with [UNCLOS], and is without legal effect.”  States have certain responsibilities under international law to coordinate efforts to conserve environmental resources while also putting them to beneficial use.  UNCLOS, for example, allows coastal States to enact conservation measures in their waters to “protect and preserve . . . marine life,”[24] while also requiring that they exercise “due regard” for the rights of others to catch “surplus” fish.[25] Other large MPAs established in recent years have allowed some fishing to occur in certain areas.[26]

Mauritius alleges that the United Kingdom breached these obligations by unilaterally establishing the MPA without sufficient consultation with, or regard for, Mauritius, the Chagossians, or relevant regional fisheries management organizations (such as the Indian Ocean Tuna Commission).  The United Kingdom is likely to counter by arguing that it satisfied its obligations by consulting with Mauritius and accepting public comment on the MPA before it was implemented.  It is also likely to point out that the MPA was established “without prejudice” to the outcome of the Chagossians’s ECHR proceedings, and that the MPA may be revised as appropriate if the Chagossians prevail there.

Mauritius goes further to challenge not just the substance of the MPA but also the United Kingdom’s intentions in establishing it.  Mauritius relies on the Wikileaks disclosure to allege that the United Kingdom breached its obligations under UNCLOS Article 300 to act in good faith and not abuse its rights, since “[i]t appears that the true purpose of the ‘MPA’ is not conservation but to prevent the right of return” of the Chagossians.[27]
 

Jurisdiction

To reach the merits of these allegations, Mauritius may have to contend with several jurisdictional issues.  The first is whether the dispute settlement provisions of UNCLOS empower a tribunal to resolve disputes over title to land.[28] Some have asserted that this jurisdiction obviously exists,[29] while others have assumed that it plainly does not.[30] This question was argued in the Guyana/Suriname arbitration,[31] but that tribunal avoided the issue by finding that the parties were actually governed by an agreement on the starting point of the maritime boundary, and thus that its findings “have no consequence for any land boundary that might exist between the Parties.”[32] The Mauritius/United Kingdom tribunal will likely face this issue.

The tribunal will also have to decide whether it has jurisdiction over Mauritius’s second claim challenging the scope of the MPA.  The United Kingdom is likely to argue that Mauritius gave up the right to invoke the rights of the Chagossians to fish in the archipelago under the 1982 Settlement Agreement.  If that objection fails, the United Kingdom may also invoke its right under UNCLOS not to accept compulsory settlement of any dispute relating to fisheries in its EEZ.[33] Mauritius may then counter that this exception cannot apply because the dispute is not really about fisheries but about preserving military operations in Diego Garcia.  But there too the United Kingdom has opted out of compulsory jurisdiction under UNCLOS for disputes concerning military activities.[34] Alternatively, Mauritius may argue that a claim of bad faith under Article 300 provides an independent basis for jurisdiction from which UNCLOS provides no relevant exceptions.[35]

Conclusion   

On the merits, this case presents a conflict between the right of a coastal state to enact environmental restrictions on fishing in its EEZ and the rights of others to fish to protect their livelihoods.  MPAs have become a favored tool of marine scientists, environmentalists, and policy makers to protect and conserve global fish stocks, as exemplified by the call in the 2002 World Summit on Sustainable Development to establish “representative networks” of marine protected areas around the world by 2012.[36] But human rights groups have also raised concerns about the potential of MPAs to restrict disadvantaged peoples (like the Chagossians) from using those resources to improve their condition.[37] This case presents an opportunity for the tribunal to decide whether the United Kingdom struck the right balance with this MPA.

Then there is Wikileaks and the merits of Mauritius’s claim of bad faith.  In the end, the United Kingdom may still need to show that the MPA was carefully designed to protect not only a strategic military area, but a valuable environmental one as well.

About the Author:
Peter Prows, an ASIL member, is an attorney with Briscoe Ivester & Bazel LLP in San Francisco.