GLOSSARY OF DEFINED TERMS / LIST OF ABBREVIATIONS | |
1965 Agreement | The agreement between the United Kingdom and the Mauritius Council of Ministers in 1965 to the detachment of the Chagos Archipelago |
1995 Fish Stocks Agreement | The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995 |
BIOT | The British Indian Ocean Territory |
CHOGM | The Commonwealth Heads of Government Meeting |
CLCS | The Commission on the Limits of the Continental Shelf |
Conference | The Third UN Conference on the Law of the Sea |
Convention | The 1982 United Nations Convention on the Law of the Sea |
EPPZ | Environmental Protection and Preservation Zone |
FCMZ | Fisheries Conservation and Management Zone |
FCO | The Foreign and Commonwealth Office of the United Kingdom |
ICJ | The International Court of Justice |
ILC | The International Law Commission |
ILC Guiding Principles | The International Law Commission’s Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligation |
IOTC | The Indian Ocean Tuna Commission |
IOTC Agreement | The Agreement for the Establishment of the Indian Ocean Tuna Commission |
ITLOS | The International Tribunal for the Law of the Sea |
Lancaster House Meeting | The meeting held at Lancaster House on the afternoon of 23 September 1965 |
Lancaster House Undertakings | Points (i) through (viii) of paragraph 22 of the final record of the Lancaster House Meeting of 23 September 1965 |
Mauritius | The Republic of Mauritius |
MLP | The Mauritius Labour Party |
MPA | Marine Protected Area |
PCA | The Permanent Court of Arbitration |
Public Consultation | The public consultation process carried out by the United Kingdom regarding the potential creation of the MPA |
UNCLOS | The 1982 United Nations Convention on the Law of the Sea |
United Kingdom | The United Kingdom of Great Britain and Northern Ireland |
Mauritius United Kingdom
Agent Agent
Mr Dheerendra Kumar Dabee GOSK, SC Mr Christopher Whomersley CMG
Deputy Agent Deputy Agent
Ms Aruna Devi Narain Ms Margaret Purdasy
Counsel Counsel
Professor James Crawford AC, SC, FBA The Rt. Hon. Dominic Grieve QC, MP
Professor Philippe Sands QC Professor Alan Boyle
Ms Alison MacDonald Ms Penelope Nevill
Mr Paul S. Reichler Ms Amy Sander
Mr Andrew Loewenstein Sir Michael Wood KCMG
Mr Samuel Wordsworth QC
Representatives
Mr Suresh Chandre Seeballuck GOSK Junior Counsel HE Dr Jaya Nyamrajsigh Meetarbhan GOSK Mr Eran Sthoeger
Ms Shiu Ching Young Kim Fat
Representatives
Advisers Ms Jo Bowyer
Ms Elizabeth Wilmshurst CMG Ms Mina Patel
Dr Douglas Guilfoyle Ms Neelam Rattan
Ms Rebecca Raynsford Mr Douglas Wilson
Junior Counsel Mr Yuri Parkhomenko Mr Remi Reichhold
Mr Fernando L. Bordin Assistants
Mr Rodrigo Tranamil Ms Nancy Lopez
in theory, there were a number of possibilities. The Premier and his colleagues could return to Mauritius either with Independence or without it. On the Defence point, Diego Garcia could either be detached by order in Council or with the agreement of the Premier and his colleagues. The best solution of all might be Independence and detachment by agreement, although he could not of course commit the Colonial Secretary at this point.64
Summing up the discussion, the SECRETARY OF STATE asked whether he could inform his colleagues that Dr. [Seewoosagur] Ramgoolam, Mr. Bissoondoyal and Mr. Mohamed were prepared to agree to the detachment of the Chagos Archipelago on the understanding that he would recommend to his colleagues the following:-
(i) negotiations for a defence agreement between Britain and Mauritius;
(ii) in the event of independence an understanding between the two governments that they would consult together in the event of a difficult internal security situation arising in Mauritius;
(iii) compensation totalling up to [illegible] Mauritius Government over and above direct compensation to landowners and the cost of resettling others affected in the Chagos Islands;
(iv) the British Government should use its good offices with the United States Government in support of Mauritius’ request for concessions over sugar imports and the supply of wheat and other commodities;
(v) that the British Government would do their best to persuade the American Government to use labour and materials from Mauritius for construction work in the islands;
(vi) that if the need for the facilities on the islands disappeared the islands should be returned to Mauritius.
SIR S. RAMGOOLAM said that this was acceptable to him and Messrs. Bissoondoyal and Mohamed in principle but he expressed the wish to discuss it with his other ministerial colleagues.
Dear Mr. Trafford Smith,
I and Mr Mohamed have gone through the enclosed paper on the question of Diego Garcia and another near island (i.e. two altogether) and we wish to point out the amendments that should be effected on page 4 of this document. The matters to be added formed part of the original requirements submitted to H.M.G. We think that these can be incorporated in any final agreement.
With kind regards,
S. Ramgoolam
P.S. The two copies handed over to me are herewith enclosed.67
(vii) Navigational & Meteorological facilities
(viii) Fishing rights
(ix) Use of Air Strip for Emergency Landing and if required for development of the other islands
(x) Any mineral or oil discovered on or near islands to revert to the Mauritius Government.68
RECORD OF A MEETING HELD IN LANCASTER HOUSE AT 2. 30 P.M. ON THURSDAY 23rd SEPTEMBER
MAURITIUS DEFENCE MATTERS
Present:- The Secretary of State
(in the Chair)
Lord Taylor
Sir S. Ramgoolam
Sir Hilton Poynton
Mr. S. Bissoondoyal
Sir John Rennie
Mr. J. M. Paturau
Mr. P. R. Noakes
Mr. A. R. Mohamed
Mr. J. Stacpoole
THE SECRETARY OF STATE expressed his apologies for the unavoidable postponements and delays which some delegations at the Constitutional Conference had met with earlier in the day. He explained that he was required to inform his colleagues of the outcome of his talks with Mauritian Ministers about the detachment of the Chagos Archipelago at 4 p.m. that afternoon and was therefore anxious that a decision should be reached at the present meeting.
2. He expressed his anxiety that Mauritius should agree to the establishment of the proposed facilities, which besides their usefulness for the defence of the free world, would be valuable to Mauritius itself by ensuring a British presence in the area. On the other hand it appeared that the Chagos site was not indispensable and there was therefore a risk that Mauritius might lose this opportunity. In the previous discussions he had found himself caught between two fires: the demands which the Mauritius Government had made, mainly for economic concessions by the United States, and the evidence that the United States was unable to concede these demands. He had throughout done his best to ensure that whatever arrangements were agreed upon should secure the maximum benefit for Mauritius. He was prepared to recommend to his colleagues if Mauritius agreed to the detachment of the Chagos Archipelago:-
(i) negotiations for a defence agreement between Britain and Mauritius;
(ii) that if Mauritius became independent, there should be an understanding that the two governments would consult together in the event of a difficult internal security situation arising in Mauritius;
(iii) that the British Government should use its good offices with the United States Government in support of Mauritius request for concessions over the supply of wheat and other commodities
(iv) that compensation totalling up to £3m. should be paid to the Mauritius Government over and above direct compensation to landowners and others affected in the Chagos Islands.
This was the furthest the British Government could go. They were anxious to settle this matter by agreement but the other British Ministers concerned were of course aware that the islands were distant from Mauritius, that the link with Mauritius was an accidental one and that it would be possible for the British Government to detach them from Mauritius by Order in Council.
3. SIR S. RAMGOOLAM replied that the Mauritius Government were anxious to help and to play their part in guaranteeing the defence of the free world. He asked whether the Archipelago could not be leased, (THE SECRETARY OF STATE said that this was not acceptable). MR. BISSOONDOYAL enquired whether the Islands would revert to Mauritius if the need for defence facilities there disappeared. THE SECRETARY OF STATE said that he was prepared to recommend this to his colleagues.
4. MR. PATURAU said that he recognised the value and importance of an Anglo-Mauritius defence agreement, and the advantage for Mauritius if the facilities were established in the Chagos Islands, but he considered the proposed concessions a poor bargain for Mauritius.
5. MR. BISSOONDOYAL asked whether there could be an assurance that supplies and manpower from Mauritius would be used so far as possible. THE SECRETARY OF STATE said that the United States Government would be responsible for construction work and their normal practice was to use American manpower but he felt sure the British Government would do their best to persuade the American Government to use labour and materials from Mauritius.
6. SIR S. RAMGOOLAM asked the reason for Mr. Koenig’s absence from the meeting and MR. BISSOONDOYAL asked whether the reason was a political one, saying that if so this might affect the position.
7. Mr. MOHAMED made an energetic protest against repeated postponements of the Secretary of State’s proposed meeting with the M.C.A. [Muslim Committee of Action], which he regarded as a slight to his party.
8. THE SECRETARY OF STATE repeated the apology with which he had opened the meeting, explaining that it was often necessary in such conferences to concentrate attention on a delegation which was experiencing acute difficulties, while he himself had been obliged to devote much time to a crisis in another part of the world.
9. MR MOHAMED then handed the Secretary of State a recent private letter from Mauritius which disclosed that extensive misrepresentations about the course of the Conference had been published in a Parti Mauricien newspaper. THE SECRETARY OF STATE commented that such misrepresentations should be disregarded, and that MR. MOHAMED had put forward the case for his community with great skill and patience.
10. MR. MOHAMED said that his party was ready to leave the bases question to the discretion of H.M.G. and to accept anything which was for the good of Mauritius. Mauritius needed a guarantee that defence help would be available nearby in case of need.
11. At SIR S. RAMGOOLAM’s request the Secretary of State repeated the outline he had given at a previous meeting of the development aid which would be available to Mauritius between 1966-1968, viz. a C.D. & W. [Commonwealth Development & Welfare] allocation totalling £2.4 million (including carryover) thus meaning that £800,000 a year would be available by way of grants in addition Mauritius would have access to Exchequer loans, which might be expected to be of the order of £1m. a year, on the conditions previously explained. He pointed out that Diego Garcia was not an economic asset to Mauritius and that the proposed compensation of £3m. would be an important contribution to Mauritius development. There was no chance of raising this figure.
12. SIR S. RAMGOOLAM said that there was a gap of some £4m. per year between the development expenditure which his government considered necessary in order to enable the Mauritian economy to "take off" and the resources in sight, and enquired whether it was possible to provide them with additional assistance over a 10 year period to bridge this gap.
13. THE SECRETARY OF STATE mentioned the possibility of arranging for say £2m. of the proposed compensation to be paid in 10 instalments annually of £200,000.
14. SIR S. RAMGOOLAM enquired about the economic settlement with Malta on independence and was informed that these arrangements had been negotiated in the context of a special situation for which there was no parallel in Mauritius.
15. SIR H. POYNTON pointed out that if Mauritius did not become independent within three years, the Colonial Office would normally consider making a supplementary allocation of C.D. & W. grant money to cover the remainder of the life of the current C.D. & W. Act, i.e. the period up to 1970. He added that if Mauritius became independent, they would normally receive the unspent balance of their C.D. & W. allocation in a different form and it would be open to them after the three year period to seek further assistance such as Britain was providing for a number of independent Commonwealth countries.
16. SIR S. RAMGOOLAM said that he was prepared to agree in principle to be helpful over the proposals which H.M.G. had put forward but he remained concerned about the availability of capital for development in Mauritius and hoped that the British Government would be able to help him in this respect.
17. MR. BISSOONDOYAL said that while it would have been easier to reach conclusions if it had been possible to obtain unanimity among the party leaders, his party was prepared to support the stand which the Premier was taking. They attached great importance to British assistance being available in the event of a serious emergency in Mauritius.
18. MR. PATURAU asked that his disagreement should be noted. The sum offered as compensation was too small and would provide only temporary help for Mauritius economic needs. Sums as large as £25m. had been mentioned in the British press and Mauritius needed a substantial contribution to close the gap of £4-5m. in the development budget. He added that since the decision was not unamimous [ sic ], he foresaw serious political trouble over it in Mauritius.
19. THE SECRETARY OF STATE referred to his earlier suggestion that payment of the monetary compensation should be spread over a period of years.
20. SIR S. RAMGOOLAM said that he was hoping to come to London for economic discussions in October. The Mauritius Government’s proposals for development expenditure had not yet been finalised, but it was already clear that there would be a very substantial gap on the revenue side.
21. SIR H. POYNTON said that the total sum available for C.D. & W. assistance to the dependent territories was a fixed one and it would not be possible to increase the allocation for one territory without proportionately reducing that of another.
22. Summing up the discussion, the SECRETARY OF STATE asked whether he could inform his colleagues that Dr. [Sir Seewoosagur] Ramgoolam, Mr. Bissoondoyal and Mr. Mohamed were prepared to agree to the detachment of the Chagos Archipelago on the understanding that he would recommend to his colleagues the following:-
(i) negotiations for a defence agreement between Britain and Mauritius;
(ii) in the event of independence an understanding between the two governments that they would consult together in the event of a difficult internal security situation arising in Mauritius;
(iii) compensation totalling up to £3m. should be paid to the Mauritius Government over and above direct compensation to landowners and the cost of resettling others affected in the Chagos Islands;
(iv) the British Government would use their good offices with the United States Government in support of Mauritius’ request for concessions over sugar imports and the supply of wheat and other commodities;
(v) that the British Government would do their best to persuade the American Government to use labour and materials from Mauritius for construction work in the islands;
(vi) the British Government would use their good offices with the U.S. Government to ensure that the following facilities in the Chagos Archipelago would remain available to the Mauritius Government as far as practicable:
(a) Navigational and Meteorological facilities;
(b) Fishing Rights;
(c) Use of Air Strip for emergency landing and for refuelling civil planes without disembarkation of passengers.
(vii) that if the need for the facilities on the islands disappeared the islands should be returned to Mauritius;
(viii) that the benefit of any minerals or oil discovered in or near the Chagos Archipelago should revert to the Mauritius Government.
23. SIR S. RAMGOOLAM said that this was acceptable to him and Messrs. Bissoondoyal and Mohamed in principle but he expressed the wish to discuss it with his other ministerial colleagues.
24. THE SECRETARY OF STATE pointed out that he had to leave almost immediately to convey the decision to his own colleagues and LORD TAYLOR urged the Mauritian Ministers not to risk losing the substantial sum offered and the important assurance of a friendly military presence nearby.
25. SIR S. RAMGOOLAM said that Mr. Paturau had urged him to make a further effort to secure a larger sum by way of compensation, but the Secretary of State said there was no hope of this.
26. SIR J. RENNIE said that while he had hoped that Mauritius would be able to obtain trading concessions in these negotiations, this was now ruled out. It was in the interest of Mauritius to take the opportunity offered to ensure a friendly military presence in the area. What was important about the compensation was the use to which the lump sum was put.
27. SIR S. RAMGOOLAM mentioned particular development projects, such as a dam and a land settlement scheme, and expressed the hope that Britain would make additional help available in an independence settlement.
28. SIR H. POYNTON said that the Mauritius Government should not lose sight of the possibility of securing aid for such purposes from the World Bank, the I.D.A. and from friendly governments. While Mauritius remained a colony such powers as Western Germany regarded Mauritius economic problems as a British responsibility but there was the hope that after independence aid would be available from these sources. When Sir S. Ramgoolam suggested that he had said that grants could be extended for up to 10 years, Sir H. Poynton pointed out that he had only indicated that when the period for which the next allocation had been made expired, it would be open to the Mauritius Government to seek further assistance, from Britain, even though Mauritius had meanwhile become independent. It would not be possible to reach any understanding at present beyond saying that independence did not preclude the possibility of negotiating an extension of Commonwealth aid.
29. At this point the SECRETARY OF STATE left for 10, Dowing Street [ sic ], after receiving authority from Sir S. Ramgoolam and Mr. Bissoondoyal to report their acceptance in principle of the proposals outlined above subject to the subsequent negotiation of details. Mr. Mohamed gave the same assurance, saying that he spoke also for his colleague Mr. Osman. Mr. Paturau said he was unable to concur.69
Collectively, the Tribunal will refer to points (i) through (viii) of paragraph 22 of the record of this meeting as the "Lancaster House Undertakings".
5. As regards points (iv), (v) and (vi) the British Government will make appropriate representation to the American Government as soon as possible. You will be kept fully informed of the progress of these representations.
6. The Chagos Archipelago will remain under British sovereignty, and Her Majesty’s Government have taken careful note of points (vii) and (viii).71
Council of Ministers today confirmed agreement to the detachment of Chagos Archipelago on conditions enumerated, on the understanding that
(1) statement in paragraph 6 of your despatch "H.M.G. have taken careful note of points (vii) and (viii)" means H.M.G. have in fact agreed to them.
(2) As regards (vii) undertaking to Legislative Assembly excludes
(a) sale or transfer by H.M.G. to third party or
(b) any payment or financial obligation by Mauritius as condition of return.
(3) In (viii) "on or near" means within area within which Mauritius would be able to derive benefit but for change of sovereignty. I should be grateful if you would confirm this understanding is agreed.72
As already stated in paragraph 6 of my despatch No. 423, the Chagos Archipelago will remain under British sovereignty. The islands are required for defence facilities and there is no intention of permitting prospecting for minerals or oils on or near them. The points set out in your paragraph 1 should not therefore arise but I shall nevertheless give them further consideration in view of your request.76
U.K./U.S. defence interests.
There is no objection to Ministers referring to points contained in paragraph 22 of enclosure to Secret despatch No. 423 of 6th October so long as qualifications contained in paragraphs 5 and 6 of the despatch are borne in mind.
2. It may well be some time before we can give final answers regarding points (iv), (v) and (vi) of paragraph 22 and as you know we cannot be at all hopeful for concessions over sugar imports and it would therefore seem unwise for anything to be said locally which would raise expectations on this point.
3. As regards point (vii) the assurance can be given provided it is made clear that a decision about the need to retain the islands must rest entirely with the United Kingdom Government and that it would not (repeat not) be open to the Government of Mauritius to raise the matter, or press for the return of the islands on its own initiative.
4. As stated in paragraph 2 of my telegram No. 298 there is no intention of permitting prospecting for minerals and oils. The question of any benefits arising therefrom should not [...] [illegible]78
[...]
(e) If the British Government decides that the Chagos Archipelago is no longer required for defence purposes, the islands will be returned to Mauritius. The question what would happen in such circumstances to any installations in the Chagos Archipelago is, of course, a hypothetical one, and would no doubt be discussed between the interested Governments in light of practical requirements and considerations at the time.
[...]
(i) The Honourable Member’s question is, again, a hypothetical one and I should make clear that there has never been any indication of minerals in the Chagos Archipelago, which is a string of coral atolls. The British Government has no intention of allowing prospecting for minerals while the islands are being used for defence purposes. For the position thereafter, I would refer the Honourable Member to the first sentence of the reply to Question (e).79
2066 (XX). Question of Mauritius
The General Assembly,
Having considered the question of Mauritius and other islands composing the Territory of Mauritius,
Having examined the chapters of the reports of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples relating to the Territory of Mauritius,16
Recalling its resolution 1514 (XV) of 14 December 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples,
Regretting that the administering Power has not fully implemented resolution 1514 (XV) with regard to that Territory,
Noting with deep concern that any step taken by the administering Power to detach certain islands from the Territory of Mauritius for the purpose of establishing a military base would be in contravention of the Declaration, and in particular of paragraph 6 thereof,
1. Approves the chapters of the reports of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples relating to the Territory of Mauritius, and endorses the conclusions and recommendations of the Special Committee contained therein ;
2. Reaffirms the inalienable right of the people of the Territory of Mauritius to freedom and independence in accordance with General Assembly resolution 1514 (XV);
3. Invites the Government of the United Kingdom of Great Britain and Northern Ireland to take effective measures with a view to the immediate and full implementation of resolution 1514 (XV);
4. Invites the administering Power to take no action which would dismember the Territory of Mauritius and violate its territorial integrity;
5. Further invites the administering Power to report to the Special Committee and to the General Assembly on the implementation of the present resolution;
6. Requests the Special Committee to keep the question of the Territory of Mauritius under review and to report thereon to the General Assembly at its twenty-first session.
1398th plenary meeting,
16 December 1965.80
The status of Mauritius was also raised, along with that of other non-self-governing territories, in General Assembly resolutions adopted on 20 December 196681 and 19 December 1967.82
The Government of the United Kingdom shall ex gratia with no admission of liability pay to the Government of Mauritius for and on behalf of the Ilois96 and the Ilois community in Mauritius in accordance with Article 7 of this Agreement the sum of £4 million which, taken together with the payment of £650,000 already made to the Government of Mauritius, shall be in full and final settlement of all claims [arising from the removal or resettlement of the population of the Chagos Archipelago].97
The 1982 agreement was then implemented in Mauritius by the Ilois Trust Fund Act of 30 July 1982.98
No right of abode in the Territory
9. - (1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory.
(2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.102
On the same day, the United Kingdom adopted, by Order in Council, the British Indian Ocean Territory (Immigration) Order, 2004, replacing BIOT Immigration Ordinance, 2000 and removing the exception allowing Chagossians entry, except with respect to Diego Garcia. The Order also created a penal offence of unlawful entry into the territory.103
in settling their claims in the Ventacassen litigation and in accepting and receiving compensation, those applicants have effectively renounced further use of these remedies. They may no longer, in these circumstances, claim to be victims of a violation of the [European Convention on Human Rights], within the meaning of Article 34 of the [European Convention on Human Rights]. Those applicants who were not party to the proceedings but who could at the relevant time have brought their claims before the domestic courts have, for their part, failed to exhaust domestic remedies as required by Article 35 § 1 of the [European Convention on Human Rights].108
we regret very much the circumstances in which they were removed from the islands and recognise that what was done then should not have happened. A substantial sum in compensation was paid to the former inhabitants in the 1980s—a point that was recognised by the European Court of Human Rights in their recent decision. When in Opposition, the political party of which I'm a member said that we would look again at our current policy for BIOT. When we first came into Government, we were constrained by the proceedings in the European Court of Human Rights. But immediately after those proceedings were concluded, my colleague, the Foreign Secretary, announced that we would be looking again at the question of the United Kingdom’s policy towards BIOT. As part of that review we are looking again at the question of resettlement. And we hope to be able to reach conclusions in the early part of next year in respect of that.109
Section 2(b) of the [Interpretation and General Clauses Act] is amended in the definition of "State of Mauritius" or "Mauritius" by deleting the words "Tromelin and Cargados Carajos" and replacing them by the words "Tromelin, Cargados Carajos and the Chagos Archipelago, including Diego Garcia".112
Mauritius’ includes -
(a) the Islands of Mauritius, Rodrigues, Agalega, Tromelin, Cargados Carajos and the Chagos Archipelago, including Diego Garcia and any other island comprised in the State of Mauritius;
(b) the territorial sea and the air space above the territorial sea and the islands specified in paragraph (a);
(c) the continental shelf; and
(d) such places or areas as may be designated by regulations made by the Prime Minister, rights over which are or may become exercisable by Mauritius.117
Both delegations were of the view that it would be desirable to have a coordinated submission for an extended continental shelf in the Chagos Archipelago/British Indian Ocean Territory region to the UN Commission on the Limits of the Continental Shelf, in order not to prejudice the interest of Mauritius in that area and to facilitate its consideration by the Commission. It was agreed that a joint technical team would be set up with officials from both sides to look into possibilities and modalities of such a coordinated approach, with a view to informing the next round of talks.133
A third round of joint talks was proposed for November 2009 or January 2010,134 but did not take place in light of developments discussed below (see paragraphs 131-141).
Mauritius cannot alter the status of the BIOT continental shelf by making its own submission to the CLCS with respect to BIOT. [...] In accordance with the terms of article 76(7), only the coastal State may delineate the outer limits of the continental shelf. In accordance with article 76(8), only the coastal State may submit information to the CLCS on the limits of the shelf beyond 200 nautical miles. Mauritius is not the coastal State in respect of BIOT and as such it has no standing before the CLCS with respect to BIOT.135
(a) Nature fishing practised: mainly handline with some basket and net fishing by local population for own consumption.
(b) Use of international waters: nil, though vessels from Seychelles and occasionally Mauritius use anchorage facilities.
(c) Extent territorial waters: unknown. Area covered by banks (up to 80 fathoms) about 6,000 square miles.
(d) Value as source of fish: best reference report Wheeler Ommaney, Mauritius Seychelles Fisheries Survey. Fishable area roughly 2,433 square miles. Available potential: fish 95,000 tons, shark 147,000 tons.137
Included within the BIOT fishing zone are certain waters which have been traditionally fished by vessels from Mauritius. [...] the Commissioner of BIOT will use his powers under Section 4 of BIOT Ordinance No 2/1971, to enable Mauritian fishing boats to continue fishing in the 9-mile contiguous zone in the waters of the Chagos Archipelago. This exemption stems from the understanding on fishing rights reached between HMG and the Mauritius Government, at the time of the Lancaster House Conference in 1965 [...]. We would be most grateful if you would inform the Mauritius Government of the foregoing at whatever level you consider appropriate.143
There are good environmental reasons for this action. Tuna stocks migrate around the Indian Ocean, large numbers passing through the area to be included in the 200 mile zone. In the view of the British Government on the advice of technical experts, it is important that these waters are subject to regulatory control through licensing. If we fail to exercise our responsibilities stocks will dwindle to the detriment of other Indian Ocean states and territories. It is important also that we conserve the stock position and so protect the future fishing interests of the Chagos group. An extension of the zone will allow the application of regulations relating to types of net and fishing gear.
In view of the traditional fishing interests of Mauritius in the waters surrounding British Indian Ocean Territory, a limited number of licences free of charge have been offered to artisanal fishing companies for inshore fishing. We shall continue to offer a limited number of licences free of charge on this basis.150
Mauritius responded to this communication by reiterating its claim to sovereignty over the Chagos Archipelago.151
There are no plans to establish an exclusive economic zone around the Chagos islands. HMG takes seriously its obligations to ensure the conservation of the resources of the Archipelago and declared a 200 mile exclusive fishing zone on 1 October 1991 as its contribution to safeguarding the tuna and other fish stocks of the Indian Ocean. The British Government has honoured the commitments entered into in 1965 to use its good offices with the United States Government to ensure that fishing rights would remain available to Mauritius as far as practicable. It has issued free licences for Mauritius fishing vessels to enter both the original 12 mile fishing zone of the territory and now the wider waters of the exclusive fishing zone. It will continue to do so, provided that the Mauritian vessels respect the licence conditions laid down to ensure proper conservation of local fishing resources.154
The Government of Mauritius will wish to be aware that in order to help preserve and protect the environment of the Great Chagos Bank, the British Government proposes to issue a similar Proclamation [to the FCMZ] by the Commissioner for BIOT, but this time establishing an Environmental (Protection and Preservation) Zone. This will be defined so as to have the same geographical extent as BIOT’s FCMZ. It will not involve any change in the land areas comprised within BIOT. A copy of the Proclamation, together with copies of the relevant charts and co-ordinates, will be deposited with the UN under Article 75 of UNCLOS later this year.156
both under Mauritian law and international law, the Chagos Archipelago is under the sovereignty of Mauritius [...] The creation of any Marine Park in the Chagos Archipelago will therefore require, on the part of all parties that have genuine respect for international law, the consent of Mauritius.165
the proposal for a marine park in the Chagos Archipelago (BIOT) is the initiative of the Chagos Environment Network and not of the Government of the United Kingdom of Great Britain and Northern Ireland. However, the Government of the United Kingdom of Great Britain and Northern Ireland welcomes and encourages recognition of the global importance of the British Indian Ocean Territory and notes the very high standards of preservation there that have been made possible by the absence of human settlement in the bulk of the territory and the environmental stewardship of the BIOT Administration and the US military.166
8. The UK delegation explained that environmental law had been strengthened in BIOT over the last 15 years with the establishment of strict nature reserves, Ramsar designation in [Diego Garcia] and the establishment of an EPPZ. The Territory and its environs had become one of the most valuable sites in the world for coral biodiversity and also had the cleanest oceans and was a valuable scientific resource. This was due to lack of inhabitants. The UK derived no commercial benefit from resources. The fishery was a loss-making venture and heavily subsidised by HMG. Looking ahead, the value of BIOT as a reserve/sanctuary for marine life and coral would only increase. It was better to invest available resources in a higher level of environmental protection. There was a proposal from the Chagos Environment Network (CEN). One of the ideas being mooted was that the whole of the EEZ be a no-take zone for fishing. The scientific basis had not yet been fully established but the idea merited consideration. An alternative route would be a more gradual process, i.e., to designate the reefs as no take or another proposal of a different / larger area than that of the closure of reef areas extending 12 n miles from the 200m depth contour and leave the rest of the fishery open.
9. There were powerful arguments in the UK to establish a marine protected area. However, many questions still needed to be worked through. The UK delegation explained the advantage to Mauritius that through a marine protected area, the value of the Territory would be raised and this resource would eventually be ceded to Mauritius. No decisions had yet been taken. The UK was discussing issues with the US: BIOT was created for defence purposes and the environmental agenda must not overcome that purpose.
10. The Mauritian delegation explained that they had taken exception to the proposal from the CEN but on the basis that it implied that the Mauritians had no interest in the environment. They had also found it necessary to protest on sovereignty grounds. There was a general agreement that scientific experts should be brought together. However, the Mauritians welcomed the project but would need to have more details and understand the involvement of the Mauritian government. The UK delegation explained that not many details were available as the UK wanted to talk to Mauritius before proposals were developed. If helpful the UK could, for the purposes of discussion, produce a proposal with variations on paper for the Mauritians to look at.
11. The UK delegation added that the Foreign Secretary was minded to go towards a consultative process and that would be a standard public consultation, However, the UK had wanted to speak to Mauritius about the ideas beforehand. Also, we needed to bear in mind the case before the [European Court of Human Rights]. Any ideas proposed would be without prejudice to any judgment by the Court.167
(v) Establishment of Marine Protected Area
This item was included at the request of the British side. It explained that the UK Government wished to start dialogue on a proposal made by a British Non-Governmental Organisation to establish a marine protected area in the region of the Chagos Archipelago.
The British side supports the proposal for the following reasons:
(a) the region is still pristine as a result of non-settlement; and should remain one of the very few such rare areas in the world;
(b) the benefits out of fishing activities accrue mostly to developed countries rather than to those of the region; and
(c) the conservation and preservation of the pristine environment outweighs, by far, the benefits derived from fishing activities.
In reply, the Mauritian side while expressing concern that the matter was not a subject of prior discussions with Mauritius, welcomed the proposal, since it concerns the protection of the environment, the moreso that it is in line with the policy of Government to promote sustainable development.
The Mauritius side asked for additional details in respect of the proposed project.
The Mauritian side agreed that a team of officials and marine scientists from both sides meet to examine the implications of the concept with a view to informing the next round of talks. The British side made it clear that any proposal for the establishment of the marine protected area would be without prejudice to the outcome of the decision at the European Court of Human Rights.168
The British delegation proposed that consideration be given to preserving the marine biodiversity in the waters surrounding the Chagos Archipelago/British Indian Ocean Territory by establishing a marine protected area in the region. The Mauritian side welcomed, in principle, the proposal for environmental protection and agreed that a team of officials and marine scientists from both sides meet to examine the implications of the concept with a view to informing the next round of talks. The UK delegation made it clear that any proposal for the establishment of the marine protected area would be without prejudice to the outcome of the proceedings at the European Court of Human Rights.169
The Foreign Secretary said that he understood that UK and Mauritian officials had been talking very productively about a marine protected area being created during the bilateral discussions on areas of mutual cooperation on BIOT. He wanted to reassure PM Ramgoolam that the public consultation being launched was on the idea of an MPA and it was only an idea at this point. Going out to consultation was the right thing to do before making any decisions. We would talk to Mauritius before we made any final decision. Mauritian views were important. We were arranging a facilitator to travel out to Port Louis and to Victoria in January to hold meetings with all interested parties. While the focus would be on the Chagossian community, the facilitator would also listen to other peoples’ views.
The Foreign Secretary reassured PM Ramgoolam that there would be no impact on the UK commitment to cede the Territory to Mauritius when it was no longer needed for defence purposes. In the meantime, an MPA provided a demonstration of our bilateral relationship of trust and would make something of the remarkable features that exist in BIOT. He hoped the UK and Mauritius could work closely together on this.
PM Ramgoolam responded that environmental protection was an important subject for him. He had a few problems with the consultation document which he had only just seen and would be sending a Note Verbale on this. His first problem was on page 12 "we {Mauritius} have agreed in principle to the establishment of an MPA". This was not the case. Could we amend the consultation document?
In addition Mr Ramgoolam said that the consultation document completely overlooked the issue of resettlement. A total ban on fishing would not be conducive to resettlement. Neither was there any mention of the sovereignty issue. PM Ramgoolam did not want the MPA consultation to take place outside of the bilateral talks between the UK and Mauritius on Chagos.
The Foreign Secretary said he hoped there had been no misunderstanding. He understood that the discussions between the UK and Mauritius had been positive. He would ask officials to look at page 12 of the consultation document. Comment : we have amended the language in page 12 to reflect more closely the wording in the communiqué. He added that while the bilateral talks were an important forum, the purpose of the consultation was to bring the idea of an MPA to a wider public. Neither the consultation nor any decision would prejudice the court cases or any of the issues PM Ramgoolam referred to. He hoped PM Ramgoolam would see that the consultation was a positive thing.
PM Ramgoolam repeated his point that a ban on fishing would be incompatible with resettlement. The Foreign Secretary suggested he make that point in the consultation but there were all sorts of ways of organising sustainable fishing. Resettlement was a different question and would take enormous resources regardless of which Government did this. He knew that PM Ramgoolam was aware of the Government’s strong position on this issue.
PM Ramgoolam said he had a problem with the consultation document saying that the BIOT Commissioner would make the declaration of an MPA. They wanted it to be declared by the UK Government as Mauritius did not recognise BIOT. He pointed out that he had elections next year. Comment : this should not be an insurmountable problem. The Foreign Secretary might instruct the BIOT Commissioner to declare an MPA and make this clear in any press release.
The Foreign Secretary said he believed that there was nothing in the document that weakened the Mauritian claim on sovereignty. There was no reason for Mauritius to criticise Ramgoolam on that score. The UK commitment to cede the Territory was as before. He added that he had a lot of respect for PM Ramgoolam’s political skills and could not see the consultation being a problem for PM Ramgoolam.
PM Ramgoolam said he would take up the issue with Gordon Brown at CHOGM. He asked if the subject could be brought up at the next bilateral talks. The Foreign Secretary agreed that it could be.172
The Ministry of Foreign Affairs, Regional Integration and International Trade wishes to inform the High Commission that the Government of the Republic of Mauritius has not welcomed the establishment of a marine protected area during the bilateral talks on the Chagos Archipelago held in Mauritius last July, contrary to what is stated at page 12 of the Consultation Document.
In that regard, the Ministry of Foreign Affairs, Regional Integration and International Trade would like to point out that what was stated in the Joint Communiqué issued following the bilateral talks of last July was that the Mauritian side had welcomed, in principle, the proposal for environmental protection and agreed that a team of officials and marine scientists from both sides would meet to examine the implications of the concept with a view to informing the next round of talks.
The Ministry of Foreign Affairs, Regional Integration and International Trade therefore requests that the Foreign and Commonwealth Office accordingly amend its Consultation Document to accurately reflect the position of the Government of the Republic of Mauritius.173
The British High Commission would like to underline that the purpose of the consultation is to gain views on a proposal made by an environmental NGO: the Chagos Conservation Trust. No policy decision has been made on the issue in hand. Our approach aims to be consultative and inclusive: the Chagos Conservation Trust’s MPA proposal was discussed with the Government of Mauritius in bilateral talks on BIOT/Chagos Islands prior to the launch of the public consultation. We anticipate further discussion in the next round of bilateral talks, which we had hoped to hold this month, but which now look likely to be held in early 2010.
In light of this constructive and ongoing dialogue, the British High Commission would like to reassure the Ministry of Foreign Affairs, Regional Integration and International Trade that no offence was intended by the wording on page 12 of the draft consultation document that was shared with you on 10 November. We were, therefore, happy to amend the wording of the final document (released later that day on the following site: (http://www.ukinmauritius.fco.gov.uk) to reflect the views expressed in your Note Verbale.174
The Ministry of Foreign Affairs, Regional Integration and International Trade, whilst welcoming the amendment at page 12 of the Consultation Document, regrets to note that the precise stand of the Mauritian side on the MPA project, as stated in the Joint Communiqué issued following the bilateral talks of last July and in its Note Verbale of 10 November 2009, has not been fully reflected in the amended Consultation Document. That stand, as per the Joint Communiqué, reads as follows:-
"The Mauritian side welcomed, in principle, the proposal for environmental protection and agreed that a team of officials and marine scientists from both sides meet to examine the implications of the concept with a view to informing the next round of talks".
Furthermore, the Ministry of Foreign Affairs, Regional Integration and International Trade would like to state that since there is an on-going bilateral Mauritius-UK mechanism for talks and consultations on issues relating to the Chagos Archipelago and a third round of talks is envisaged early next year, the Government of the Republic of Mauritius believes that it is inappropriate for the consultation on the proposed marine protected area, as far as Mauritius is concerned, to take place outside this bilateral framework.
The Government of Mauritius considers that an MPA project in the Chagos Archipelago should not be incompatible with the sovereignty of the Republic of Mauritius over the Chagos Archipelago and should address the issues of resettlement, access to the fisheries resources, and the economic development of the islands in a manner which would not prejudice an eventual enjoyment of sovereignty. A total ban on fisheries exploitation and omission of those issues from any MPA project would not be compatible with the longterm resolution of, or progress in the talks, on the sovereignty issue.
The stand of the Government of Mauritius is that the existing framework for talks on the Chagos Archipelago and the related environmental issues should not be overtaken or bypassed by the consultation launched by the British Government on the proposed MPA.175
33. A tete-a-tete meeting took place between the British Prime Minister and myself in the morning of Friday 27 November 2009. Two main subjects were covered:
(a) Mauritian Sovereignty over the Chagos Archipelago; and
(b) the Marine Protected Area.
34. I explained to the British Prime Minister that the bilateral talks which we have engaged with the British side are going on in a positive atmosphere and that it is imperative that the issue of sovereignty continues to be addressed.
35. I stated that Mauritius does not recognize the British Indian Ocean Territory and therefore, we cannot even discuss the issue of a Marine Protected Area with them. I emphasized that the issue of resettlement remains a pending issue and Mauritian fishing rights have to be taken into consideration. I therefore indicated that since bilateral talks were intended to deal with all the issues concerning Chagos progressively, this is the venue we should continue to use to further our discussions.
36. The British Prime Minister paid tribute to the leadership role played by Mauritius in the deliberations of the meeting particularly on the issue of Climate Change from the perspective of Small Island Developing Countries. On the issue of Marine Protected Area, he assured me that nothing would be done to undermine resettlement and the sovereignty claim of Mauritius over the Chagos Archipelago and that he would put a hold on this project.176
10. [...] I [...] took the opportunity to convey to Mr Brown the deep concern of Mauritius over the proposal of the United Kingdom to establish a 'marine protected area' around the Chagos Archipelago and the launching of a public consultation by the UK Foreign and Commonwealth Office on 10 November 2009, just two weeks earlier, in this regard. That announcement had been the subject of media attention. I indicated to Mr Brown that when the British High Commissioner in Mauritius had called on me on 22 October 2009 to announce the UK’s proposal, I had expressed surprise that he was not able to offer me any document in relation to that proposal and told him that I would raise the matter with the British Prime Minister during the forthcoming CHOGM in Port of Spain. I had made very clear the objection of Mauritius to the UK’s proposal.
11. I also conveyed to Mr Brown that since the bilateral talks between Mauritius and the United Kingdom were intended to deal with all issues relating to the Chagos Archipelago, they were the only proper forum in which there should be further discussions on the proposed 'marine protected area'.
12. I further pointed out that the issues of sovereignty and resettlement remained pending and that the rights of Mauritius in the Chagos Archipelago waters had to be taken into consideration.
13. In response, Mr Brown asked me once again: "What would you like me to do?" I remember these words clearly.
14. I replied: "You must put a stop to it". There could have been no doubt that I was referring to the proposed 'marine protected area'.
15. Mr Brown then said: "I will put it on hold". He told me that he would speak to the British Foreign Secretary. He also assured me that the proposed 'marine protected area' would be discussed only within the framework of the bilateral talks between Mauritius and the UK.177
I very much welcomed the opportunity to meet you at CHOGM. We had a useful discussion on the proposal for a Marine Protected Area in the British Indian Ocean Territory. I believe we both agree that without prejudice to wider political issues, discussed below, there is an opportunity to protect an area of outstanding natural beauty which contains islands, reef systems and waters which in terms of preservation and biodiversity are among the richest on the planet. As we agreed at the time, both the UK and Mauritius now need to reflect on next steps and work to bridge any differences in approach.
At our meeting, you mentioned your concerns that the UK should have consulted Mauritius further before launching the consultation exercise. I regret any difficulty this has caused you or your Prime Minister in Port Louis. I hope you will recognize that we have been open about the plans and that the offer of further talks has been on the table since July.
I would like to reassure you again that the public consultation does not in any way prejudice or cut across our bilateral intergovernmental dialogue with Mauritius on the proposed Marine Protected Area. The purpose of the public consultation is to seek the views of the wider interested community, including scientists, NGOs, those with commercial interests and other stakeholders such as the Chagossians.
The consultations and our plans for an MPA do not in any way impact on our commitment to cede the territory when it is no longer needed for defence purposes. Our ongoing bilateral talks are an excellent forum for your Government to express its views on the MPA. We welcome the prospect of further discussion in the context of these talks, the next round of which now look likely to happen in January.
As well as the MPA there are, of course, many other issues for bilateral discussion. My officials remain ready to continue the talks and I hope that Mauritius will take up the opportunity to pursue this bilateral dialogue.
[...]180
During our recent meeting in the margins of the Commonwealth Heads of Government Meeting, I had expressed the concerns of the Government of Mauritius about the Marine Protected Area project. I had stated that it was inappropriate for the British authorities to embark on consultations on the matter outside the bilateral Mauritius-United Kingdom mechanism for talks on issues relating to the Chagos Archipelago.
On the substance of the proposal, I had conveyed to you that the Government of Mauritius considers that the establishment of a Marine Protected Area around the Chagos Archipelago should not be incompatible with the sovereignty of Mauritius over the Chagos Archipelago. As you are aware, the Mauritian position, as also endorsed at various multilateral fora, is that the Chagos Archipelago was illegally excised by the British Government from the territory of Mauritius prior to the grant of independence to Mauritius. The Government of Mauritius has repeatedly informed the British Government that it does not recognize the so-called British Indian Ocean Territory and deplores the fact that Mauritius is still not in a position to exercise effective control over the Chagos Archipelago as a result of the illegal excision of its territory.
Moreover, the issues of resettlement in the Chagos Archipelago, access to the fisheries resources and the economic development of the islands in a manner that would not prejudice the effective exercise by Mauritius of its sovereignty over the Chagos Archipelago are matters of high priority to the Government of Mauritius. The exclusion of such important issues in any discussion relating to the proposed establishment of a Marine Protected Area would not be compatible with resolution of the issue of sovereignty over the Chagos Archipelago and progress in the ongoing talks between Mauritius and the United Kingdom.
In these circumstances, as I have mentioned, Mauritius is not in a position to hold separate consultations with the team of experts of the UK on the proposal to establish a Marine Protected Area.
You will no doubt be aware that, in the margins of the last CHOGM, our respective Prime Ministers agreed that the Marine Protected Area project be put on hold and that this issue be addressed during the next round of Mauritius-United Kingdom bilateral talks.181
The Ministry of Foreign Affairs, Regional Integration and International Trade wishes to inform the Foreign and Commonwealth Office that the Government of Mauritius considers that the next round of bilateral talks between the two Governments cannot take place during the month of January 2010, in the absence of satisfactory clarification and reassurances on the part of the Government of the United Kingdom on issues raised by the Government of Mauritius in the above-mentioned Note Verbale [of 23 November 2009] in relation to the Marine Protected Area project and in view of the continuation by the Government of the United Kingdom of the initial consultation process it had embarked upon.
The Government of Mauritius trusts that it will receive, within a reasonable period, adequate clarification and reassurances on the part of the Government of the United Kingdom on the issues raised in the above-mentioned Note Verbale.182
By far the biggest issue was the outcome of the PM Brown/PM Ramgoolam tete-a-tete. Ramgoolam had briefed Cabinet following the meeting at CHOGM and told them that Brown had agreed to 'drop' the consultation. He was very (and unusually) clear and definitive about this and had clearly expected Brown to make some sort of statement to this effect. Ramgoolam also briefed the press on the matter and took pride in pointing to this result as stemming from his good relationship with Brown (Boolell noted he had a 'soft spot' for him). As the days wore on after the summit without a statement, Ramgoolam became increasingly frustrated. When Miliband’s letter arrived (which we had written thinking it was very conciliatory), Ramgoolam took this as a kick in the teeth. Ramgoolam’s anger triggered the notes of 30 December and, upon Ramgoolam’s instructions, the press briefing by Boolell earlier this month.
Some of these points are manageable, but the discord between Ramgoolam’s readout of the PM’s meeting and the readout from Brown is clearly large and, in many ways, insurmountable. I detected no sense that the Mauritians are playing a game on this. Ramgoolam clearly believes Brown promised him what he had wanted and that, somehow, Miliband has sought to circumvent this. I assured Boolell this wasn't the case and showed him the readout we had received from No 10. We both scratched our heads.
I noted we needed a way forward that allowed the MPA consultation to continue and ensured that the issue did not become a political burden to the Government here. I passed across the draft letter I had shared with you yesterday and explained that, if we sent such a letter, a conciliatory reply from the Mauritians would go a long way to resolving things. Boolell suggested a number of changes to the letter.183
PM Ramgoolam reiterated his record of the bilateral with Gordon Brown: Brown had been 'very thankful' for all Ramgoolam had done sorting out the CHOGM Summit impasse with Sri Lanka - enabling Sri Lanka to climb down without being humiliated. When Ramgoolam had begun setting out his case on BIOT, Brown had 'interrupted' him to say 'Navin, what do you want?'. Ramgoolam says he had asked for the MPA consultation to be stopped, and Brown had agreed: "It’s done." Hence Mauritius’ upset when David Miliband’s letter of 15 December indicated the consultation was ongoing.
I went through our version of events and explained the readout we had received from the meeting. I noted that, although I obviously hadn't been present, I knew and trusted the PM’s [Private Secretary]. In light of the readout we'd received, David Miliband’s letter was written in good faith as a constructive gesture. We'd been stung by the reaction it had met, particularly by the mis-reporting of Boolell’s comments in the press and the claim we'd been 'dishonest'. Discussions with Koonjul and Boolell had revealed that the MFA here hadn't been fully aware of the extent of consultations we'd had with Ramgoolam himself, and this had (wrongly) coloured their advice to the PM. Mauritian non-participation at recent seminars wasn't helpful; they could easily have taken part under some form of disclaimer on sovereignty. More willingness to engage from them could have dispelled a lot of misunderstanding. He took these points.
Looking forward, I explained how my goal in meeting the PM was to enable both sides to move forward without humiliation and to avoid any further painting-into-corners. Ramgoolam jumped in: should he write to Gordon Brown to clarify the outcome of the CHOGM meeting? I sought to deflect him from this: for such a move not to backfire, the PM would have to be sure that he'd get the answer he wanted from Gordon Brown - there were political issues in the mix in the UK too. Was he sure this would work? Ramgoolam pondered aloud about what he perceived as David Miliband’s strong commitment to the MPA and whether recent political events in the UK might inhibit Gordon Brown from pushing Miliband to rein in the consultation, even if he'd wanted to.
I noted that I had been working with Boolell to draft a letter that might help both sides move forward. Boolell was keen for the PM to see it. I didn't want to send the letter until I knew it would help the situation. The draft answered all of Mauritius’ concerns re consultation with [the Government of Mauritius] taking place through bilateral talks, sovereignty, non-prejudice to settlement case at ECHR etc. Ramgoolam undertook to look at it with Ruhee. He was glad no other copies existed yet.
[...]
I followed up afterwards by telephone with Ruhee, principally to alert him to the [Public Consultation] facilitator’s impending arrival (there hadn't been a good moment to raise this in the meeting). We'd need to factor a line on this into the letter to clear the way for her to come without it becoming a politically exploitable issue here.184
2. Since there is an on-going bilateral Mauritius-UK mechanism for talks and consultations on issues relating to the Chagos Archipelago, it is inappropriate and insulting for the British Government to pursue consultations globally on the proposal for the establishment of an MPA around the Chagos Archipelago outside this bilateral framework. This position was brought to the attention of the British Government by way of Note Verbale dated 23 November 2009 issued by the Ministry of Foreign Affairs, Regional Integration and International Trade of the Republic of Mauritius to the UK Foreign and Commonwealth Office. We have not received any answer yet whilst the FCO continues to defy our deep concerns on this process.
3. The manner in which the Marine Protected Area proposal is being dealt with makes us feel that it is being imposed on Mauritius with a predetermined agenda.
4. The establishment of an MPA around the Chagos Archipelago must be compatible with the sovereignty of Mauritius over the Chagos Archipelago. Any endorsement of the proposed unilateral initiative of the FCO's, particularly in some scientific quarters, would be tantamount to condoning the violation of international law and the enduring human tragedy.
5. Moreover, the issue of resettlement in the Chagos Archipelago, access to the fisheries resources, and the economic development of the islands in a manner which would not prejudice the effective exercise by Mauritius of its sovereignty over the Chagos Archipelago are matters of high priority to the Government of Mauritius.
6. The exclusion of such important issues from any MPA project and a total ban on fisheries exploitation would not be compatible with resolution of the issue of sovereignty over the Chagos Archipelago and progress in the ongoing talks between Mauritius and the United Kingdom.
7. The existing framework of talks between Mauritius and the UK on the Chagos Archipelago and the related environmental issues should not be overtaken or bypassed by the public consultation launched by the British Government on the proposed establishment of an MPA around the Chagos Archipelago.
8. The establishment of any MPA around the Chagos Archipelago should also address the benefits that Mauritius should derive from any mineral or oil that may be discovered in or near Chagos Archipelago (as per the undertaking given in 1965).185
Much of the time was spent covering old ground, including [Government of Mauritius] unhappiness with the way the consultation was launched and the divergent readouts from the PM-PM meeting at CHOGM. We noted that repeated media briefing from the Mauritian side was unhelpful (e.g. Saturday’s Mauricien).
Boolell raised the issue of Chagossian resettlement and the meaning of our 'without prejudice' phrase in the MPA consultation document. We noted it meant respect for the [European Court of Human Rights] judgement. We then sought to unpick the issue of resettlement from the MPA, underlining once more the risks that resettlement potentially posed to our commitment to cede the islands when no longer needed for defence purposes. There was considerable discussion of the role of the Chagossian community in this process.
[...]
In discussing the way forward from here, Boolell suggested that we meet with Cabinet Secretary Seebaluck [ sic ] to request bilateral talks. We might do so using a 'short' letter: our earlier draft had been too 'long' and 'open to misinterpretation'. Once the 12th February [the originally scheduled end of the Public Consultation] was past, the atmosphere would be 'conducive' and 'welcoming' to a new round of talks. We alluded to the fact that we might not find it easy to draw a line under the consultation without some form of engagement with the Chagossians, noting that some argued there was a requirement to engage fully even with those not able to respond to a written consultation process.
It was clear that the Mauritians would not welcome the visit of the facilitator. Boolell noted that a visit would be a 'slight' on the people and Government of Mauritius. They wanted to retain their 'sovereign rights'. We asked if a [video teleconference]-based consultation be easier [ sic ] for the Mauritians to swallow? Boolell could only agree to take note of this and consider the matter, but didn't commit.
We said that, if talks could be restarted (and we'd been waiting for the Mauritians to discuss dates since 22 January), they'd be productive only if Mauritius came with a clear sense of what it realistically wanted rather than either (a) demanding sovereignty as they had done in London or (b) dwelling only on those things that were unacceptable to Mauritius. It would be best to focus on areas of common ground and potential cooperation. The idea of an MPA provided areas for joint work - the Mauritian Finance Minister had set aside money for MPAs in his recent budget. We thought there was enough common ground for this to be a constructive area.
Boolell took the point and raised a couple of issues that could be profitably discussed:
• demarcation of the continental shelf;
• the terminology 'MPA'. Marine Protected Area gave the idea of 'ownership' and the UK 'protecting' its sovereignty claim. Conservation/Preservation were better words, or at least 'the protection of the marine environment'. Mauritius was increasingly recognising it was an 'Oceanic state' and cooperation around this sphere could be helpful.
• future PM-PM engagement;
• trilateral discussions with the US [we countered this wasn't within our gift]
• a rest from nuclear ships visiting DG (just to give some political space at home in Mauritius)186
3. I wish to reiterate the position of the Government of Mauritius to the effect that the consultation process on the proposed MPA should be stopped and the current Consultation Paper, which is unilateral and prejudicial to the interests of Mauritius withdrawn. Indeed, the Consultation Paper is a unilateral UK initiative which ignores the agreed principles and spirit of the ongoing Mauritius-UK bilateral talks and constitutes a serious setback to progress in these talks.
4. I further wish to inform you that the Government of Mauritius insists that any proposal for the protection of the marine environment in the Chagos Archipelago area needs to be compatible with and meaningfully take on board the position of Mauritius on the sovereignty over the Chagos Archipelago and address the issues of resettlement and access by Mauritians to fisheries resources in that area.
5. I also wish to state that the Government of Mauritius is keen to resume the bilateral talks on the premises outlined above.188
The United Kingdom should like to reiterate that no decision on the creation of an MPA has yet been taken. However, as stated previously in discussions between Ministers and Officials and set out clearly in the MPA consultation document, the establishment of any marine protected area will have no impact on the United Kingdom’s commitment to cede the Territory to Mauritius when it is no longer needed for defence purposes. Additionally, the United Kingdom is keen to continue dialogue about environmental protection within bilateral framework or separately. The public consultation does not preclude, overtake or bypass these talks.189
The High Commissioner further stated that "[l]ike Mauritius, the UK is keen to continue these bilateral talks as there are many other things we can discuss with regards to BIOT."190
[...]
6. The response was wide ranging, with a global reach. It included inputs from private individuals, academic and scientific institutions, environmental organisations and networks, fishing and yachting interests, members of the Chagossian community, British MPs and peers and representatives of other governments.
7. The great majority of respondents - well over 90% - made clear that they supported greater marine protection of some sort in the Chagos Archipelago in principle. However, views on this proposal were more mixed, covering a wide spectrum of views. Responses did not confine themselves to the options listed in the Consultation Document.
8. The main difference between the responses was their view on potential resettlement of members of the Chagossian community, and whether this question should be tackled before designation of any MPA, or whether changes could be made later if circumstances changed, in an MPA agreed, as the Consultation Document suggests, in the context of the Government’s policy on the Territory, without prejudice to ongoing legal proceedings.
9. Of those who supported one of the three listed options the great majority supported Option 1, a full no-take marine reserve for the whole of the territorial waters and Environmental Preservation and Protection Zone (EPPZ)/Fisheries Conservation and Management Zone (FCMZ). The reasons given were generally very much in line with the conservation, climate change and scientific benefits set out in the Consultation Document. A number also highlighted a legacy element, as well as the opportunity to show leadership and provide an example for others, while contributing to meeting a number of global environmental commitments.
10. In terms of numbers, support for options 2 and 3 was limited. However, they were universally the choice of the Indian Ocean commercial tuna fishing community, as well as a number of regional interests. While agreeing that there was a strong case for protecting the fragile reef environment, this group considered that the scientific case for the extra benefits of option 1 was not strongly demonstrated and the group did not want to see a negative economic impact on the tuna industry. In addition, a limited number of private individuals thought that controlled, licensed fishing at around the current level was sufficient protection and was not causing significant decline or degradation.
11. A significant body of response did not support proceeding with any of the three listed options at the current time. Of this group, some, including most but not all of the Chagossian community, argued simply for abandoning or postponing the current proposal until further consultation and agreement could take place, while others proposed one or another different option (a 'fourth option'), which sought to take account of Chagossian (and in some cases other regional) requirements.
12. As well as their headline comments on preferred options, respondents raised a number of issues of interest or concern to them. These included: the consultation process itself; the rights and interests of the Chagossian community; regional interests and concerns; enforcement of an MPA; costs associated with an MPA; yachting interests; piracy; Diego Garcia and the US base; bycatch from commercial fishing, including sharks and fragile species; fish stocks; reputational issues; and other proposed environmental measures. These are described in more detail in a final section which summarises the issues covered in responses received to each of the Consultation questions.191
Preferred options
That the Foreign Secretary announces the publication of the report on the responses to the FCO public consultation into whether to create an MPA in the Territory; commenting on the level of interest in the consultation and general support for environmental protection and for a no-take fishing zone; noting that the consultation has thrown up a range of views which need to be explored further; stating that he believes that the establishment of an MPA is the way ahead for the protection of the environment of the Territory and that he will ask officials to work towards this. But he should stop short of announcing that he is going to ask the BIOT Commissioner to declare an MPA in the Territory at this stage. I attach a draft statement which could be used as both as a press statement and as a Written Ministerial Statement.192
1. The FS has said that, in an ideal world, he would like to declare an MPA in BIOT and spend 3 months reaching some sort of agreement with the Mauritian government on the governance of the area but making it clear that we will have 3 months to consult them but if they won't come to an agreement, we will go ahead without them. You have asked for options, whether this is feasible and possible implications. We have discussed this with our High Commissioner in Port Louis.
2. The "3 months", or any defined period, to hammer out details of some sort of management structure will not fly in Mauritius. Ramgoolam would not be able to commit to negotiating in this framework if an MPA had already been declared. Any such offer would be seen as forcing them into a position and would only antagonize them further.
3. What might work in Mauritius is the announcement as suggested in my submission of 30 March. Our High Commissioner thinks that there might be a market for a proposal to work with Mauritius as a privileged partner on management issues but this would need to be done prior to a final decision and such talks would have to precede any formal announcement of an MPA. If Mauritius were not prepared to engage in any sensible way, we would want to press on without them, but we would want to give them time to reflect and ourselves time to manage the negative consequences.
4. The High Commissioner has asked that the Foreign Secretary be made aware that the timing could not be worse locally than to declare a full no-take MPA today. The Parliamentary Labour Party of Mauritius is currently in a closed door meeting and it is expected that they will announce their own elections during the course of today. All Ministers are uncontactable and so the High Commission have no capacity to manage political reactions. He also wanted to point out that declaring an MPA today could have very significant negative consequences for the bilateral relationship. It would be seen, especially by Ramgoolam, as exceedingly damaging timing and pressure would be on for him to commit to taking legal action to challenge the establishment of an MPA. The Foreign Secretary will recall the atmospherics of his telephone conversation with Ramgoolam on the day the consultation was launched.194
The Foreign Secretary was grateful for your submission and the copy of the report on the consultations. He has carefully considered the arguments in the submission and the views expressed during the consultation. He was grateful for your further note today. He has considered the submission in light of the High Commissioner’s views and has given serious thought to the different possible options for announcing an MPA.
The Foreign Secretary has decided to instruct Colin Roberts [the BIOT Commissioner] to declare the full MPA (option one) on 1 April. There will then need to be an announcement to this effect.
I would be grateful if you could take forward both.195
1. The Foreign Secretary said that he wanted to inform the Mauritius Prime Minister that he would today instruct the BIOT Commissioner to establish a Marine Protected Area (MPA) in the British Indian Ocean Territory. We were telling the Prime Minister this in advance as we did not want there to be any surprises.
2. The Foreign Secretary said that both the UK and Mauritius were commited [ sic ] to the environmental agenda and the establishment of the MPA had no impact on the UK commitment to cede BIOT to Mauritius when the territory was no longer needed for defence purposes. Nor would it prejudice the legal position of Mauritius or the Chagos Islanders. The UK valued the relationship with Mauritius and the Foreign Secretary hoped that we could cooperate together to ensure that the MPA was a success.
3. The Foreign Secretary said there had been a very large response to the consultation exercise with about a quarter of a million responses. This was a remarkable number. The majority of the responses were straightforward but there had also been responses from the environmental, political, governmental and scientific communities and some from the business community. The consultation showed that those arguing for commercial exploitation of the area were clearly in the minority. There had been some debate around the no-take approach and there was overwhelming support for that.
4. Ramgoolam said that he was disappointed that there had not been bilateral discussions. He asked if it might be possible to delay the announcement until after the Mauritius elections. It was a controversial issue in Mauritius. The Foreign Secretary said that the consultation had been thorough and there had already been an extension to the consultation period. It would not be possible to delay the announcement. The UK would stress that the decision was without prejudice to the legal position of the Chagos Islanders or to the discussions with Mauritius on the Territory.
5. The Foreign Secretary said he would say very clearly that we would work with all interested parties, in Britain and internationally, on the implementation of the notake approach. He would also make clear that our commitment to the government and people of Mauritius in respect of ceding sovereignty at the appropriate time was strong and clear. While recognising the disagreement with the Mauritius Government on the process leading up to the establishment of the MPA, he hoped that this could bring the two governments together to work in the best interests of the environment.
6. Ramgoolam said that he had to take the line that Mauritius disagreed with the decision on the MPA but he would like to say that he and the Foreign Secretary had talked about sovereignty. The Foreign Secretary stressed that the sovereignty issue had not changed and Ramgoolam should not seek to suggest that was the purpose of the phone call. If it would help, Ramgoolam could say that if both governments were re-elected then there could be early bilateral talks on the implementation of the MPA.
7. Ramgoolam said that when the Mauritians tried to talk to the United States about BIOT the Americans took the line that Mauritius needed to settle the sovereignty issue with the UK first. The Foreign Secretary said that our position was clear. We would cede the Territory to Mauritius when we no longer required the base.197
The Government of the Republic of Mauritius strongly objects to the decision of the British Government to create a marine protected area (MPA) around the Chagos Archipelago, as announced by UK Secretary of State for Foreign and Commonwealth Affairs David Miliband yesterday.
The Government of the Republic of Mauritius wishes to recall that on several occasions following the announcement by the British authorities for an international consultation on their proposal for the creation of an MPA in the waters of the Chagos Archipelago, the Government of Mauritius conveyed its strong opposition to such a project being undertaken without consultation with and the consent of the Government of the Republic of Mauritius. In this regard, the Ministry refers to its Notes Verbales No. 1197/28/10 dated 23 November 2009 and No. 1197/28/4 dated 30 December 2009 in particular. The position of the Government of Mauritius was also conveyed directly by the Prime Minister of Mauritius to British Prime Minister Gordon Brown during the Commonwealth Heads of Government Meeting (CHOGM) in Port of Spain last November and earlier to British Foreign Secretary David Miliband over the phone. The Minister of Foreign Affairs, Regional Integration and International Trade of Mauritius, Dr. the Hon. Arvin Boolell, also communicated the position of Mauritius to Foreign Secretary Miliband during CHOGM in Port of Spain and to the British High Commissioner at several meetings.
It was explained in very clear terms during the above-mentioned meetings that Mauritius does not recognize the so-called British Indian Ocean Territory and that the Chagos Archipelago, including Diego Garcia, forms an integral part of the sovereign territory of Mauritius both under our national law and international law. It was also mentioned that the Chagos Archipelago, including Diego Garcia, was illegally excised from Mauritius by the British Government prior to grant of independence in violation of United Nations General Assembly resolutions 1514 (XV) of 14 December 1960 and 2066 (XX) of 16 December 1965.
The Government of the Republic of Mauritius further believes that the creation of an MPA at this stage is inconsistent with the right of settlement in the Chagos Archipelago of Mauritians, including the right of return of Mauritians of Chagossian origin which presently is under consideration by the European Court of Human Rights following a representation made by Mauritians of Chagossian origin.
The Government of the Republic of Mauritius will not recognize the existence of the marine protected area in case it is established and will look into legal and other options that are now open to it. The more so, the Anglo-US Lease Agreement in respect of the Chagos Archipelago, concluded in breach of the sovereignty rights of Mauritius over the Chagos Archipelago, is about to expire in 2016 and the Chagos Archipelago, including Diego Garcia, should be effectively returned to Mauritius at the expiry of the Agreement.198
there was an election due at the beginning of May, which was a little over four weeks later. In the British system of government, when an election is called, essentially government stops. No new policies can be introduced. So, either Mr. Miliband took his decision on 1 April—which is the last possible date he could do so before the election —or he could leave the decision for the incoming government four weeks later. He took the decision, he did lose office, a new government came in, and they confirmed his decision.199
9. At his meeting with Prime Minister Ramgoolam on 3 June, the Foreign Secretary advised that he would familiarise himself with the issues surrounding the MPA but would not raise Ramgoolam’s hopes. He stressed that he could not give Ramgoolam any reason to hope for a change in policy but that he and Mr Bellingham did want to work closely with Ramgoolam and his government. Mr Bellingham repeated these messages when he met Foreign Minister Boolell at the AU Summit on 22 July 2010. The Acting High Commissioner in Port Louis has also recently informed Foreign Minister Boolell of the Minister for Africa’s letters to Lord Luce and Olivier Bancoult. However, the Mauritians are likely still to be disappointed: they had high hopes for the new Government. This issue is likely to continue to cause tension in our otherwise good bilateral relations with Mauritius, and could impact on our wider bilateral objectives, including working with Mauritius on counter piracy in the Indian Ocean.
10. The decision to continue with the MPA of itself is unlikely to push Mauritius to seek an Advisory Opinion at the International Court of Justice. But Boolell warned the Acting High Commissioner in Port Louis on 23 August that they would be prepared to do so if there were no progress on sovereignty. They would also seek compensation for income accrued over the period of time which the "UK had denied them their rights over the Territory". While we are confident in the strength of our legal case, a decision by Mauritius to challenge our position on sovereignty would be awkward. We will need to develop an active approach to Mauritius, therefore, being clear about our red lines, but being positive about bilateral talks and options for an advisory role in the implementation of the MPA. This might include options, such as offering Mauritius a "privileged partnership" where Mauritius could play an advisory role in the management of the MPA, which does not impact on the sovereignty position. While we are not obliged to offer Mauritius this, it might help to bring them along with us on the issue. We expect the new High Commissioner to have opportunities to take stock of Mauritian thinking in his introductory meetings.
11. There is a slim chance that Mauritius may raise the issue of their historical fishing rights in the Territory. During negotiations over the excision of the Chagos Archipelago between Mauritius and the UK in 1965, the UK gave an undertaking that HMG would use their good offices with the US government to ensure that certain facilities including fishing rights in Chagos would remain available "as far as was practicable". Over the years, these rights have come to mean free fishing licences to Mauritian-flagged vessels upon application. In our exchanges on the MPA to date the Mauritians have never raised the question of fishing rights. This may be because they see it as inconsistent with their sovereignty claim. Mauritius has shown interest only in trying to secure a percentage of the fishing licence money generated by the Territory’s fisheries. They do not accept our figures which show that the fishery operates at a substantial loss. Very few Mauritian-flagged vessels have fished in the Territory’s Fishing (Conservation and Management) Zone. Only a couple of Mauritian-flagged vessels are run by Chagossians and their "rights" are being taken up in the Judicial Review into the MPA case being brought by Clifford Chance against the Secretary of State.201
[...] The talks were wide-ranging, and other bilateral points will be reported separately to Africa Directorate. However, they all took the opportunity to raise Chagos/BIOT, which remains an irritant following the decision to establish a Marine Protection Area (MPA) in BIOT.
2. [President] Jugnauth said that he understood that the UK position was that sovereignty would be ceded to Mauritius once Diego Garcia was no longer needed for military purposes. But Mauritius had always understood that this meant the Cold War. The Cold War was now over, so was Diego Garcia still needed for military purposes? And if so, would there not always be a reason why the island was still needed? Jugnauth later added that the UK should just hand back the Territory; Mauritius had no problem with the US continuing to use the base, but they should pay rent to Mauritius.
3. Prime Minister Ramgoolam said that he appreciated you seeing him at Carlton Gardens on his recent visit to London. He rehearsed his disappointment following his CHOGM meeting with Gordon Brown, where he felt he had been promised that the MPA would be put on hold. But he was in "more sorrow than anger" mode. I said that we did not want to raise any hopes of a change of policy. The UK recognised the Mauritian position on sovereignty, and we trusted that the Mauritians understood ours. But, aside from sovereignty, there were a number of issues which could be discussed, and we hoped for a resumption of bilateral talks. The excellent and important relationship between the two countries should allow constructive discussions. You would be writing to set out the position. Ramgoolam said he would wait for the letter before considering his next move, but if there was no progress he would "have to do something".
4. Foreign Minister Boolell was grateful that Mr Bellingham had met him in Kampala at the recent [AU] summit. On BIOT, he said that the MPA consultation had marred the relationship, but if there was a will we could make progress. Mauritius was keen to restart bilateral talks, but 2014 was just around the corner and this was an important date under the UK/US agreement. They would like more clarity on this -the Government was under increasing pressure "from African Union friends" to take action ahead of that date. Boolell also mentioned Mauritius’ responsibilities under the Pelindaba Treaty (which says that there should be no nuclear weapons on the territory of AU members).
5. Boolell recognised that the US base was here to stay, but Mauritius wanted to exercise its "legitimate rights" over the territory. They wanted to be part of any discussions, and were unhappy that the US refused to engage with them and kept telling them to discuss all BIOT issues with us. Boolell drew attention to the Chagossian case in the ECHR, and said that this was a rare case where the Mauritian government and opposition were united. He also hinted at "mobilising world opinion", an ICJ case, and seeking "compensation for lost revenue" since independence.203
On the basis of the facts and legal arguments presented in its Memorial, Reply, and during the oral hearings, Mauritius respectfully requests the Arbitral Tribunal to adjudge and declare, in accordance with the provisions of the 1982 United Nations Convention on the Law of the Sea ("the Convention"), in respect of the Chagos Archipelago, that:
(1) the United Kingdom is not entitled to declare an "MPA" or other maritime zones because it is not the "coastal State" within the meaning of inter alia Articles 2, 55, 56 and 76 of the Convention; and/or
(2) having regard to the commitments that it has made to Mauritius in relation to the Chagos Archipelago, the United Kingdom is not entitled unilaterally to declare an "MPA" or other maritime zones because Mauritius has rights as a "coastal State" within the meaning of inter alia Articles 56(1)(b)(iii) and 76(8) of the Convention; and/or
(3) the United Kingdom shall take no steps that may prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission that Mauritius may make to the Commission regarding the Chagos Archipelago under Article 76 of the Convention;
(4) The United Kingdom’s purported "MPA" is incompatible with the substantive and procedural obligations of the United Kingdom under the Convention, including inter alia Articles 2, 55, 56, 63, 64, 194 and 300, as well as Article 7 of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995.
For the reasons set out in the Counter-Memorial, the Rejoinder and these oral pleadings, the United Kingdom of Great Britain and Northern Ireland respectfully requests the Tribunal:
(i) to find that it is without jurisdiction over each of the claims of Mauritius;
(ii) in the alternative, to dismiss the claims of Mauritius.
In addition, the United Kingdom of Great Britain and Northern Ireland requests the Tribunal to determine that the costs incurred by the United Kingdom in presenting its case shall be borne by Mauritius, and that Mauritius shall reimburse the United Kingdom for its share of the expenses of the Tribunal.
(1) the United Kingdom is not entitled to declare an "MPA" or other maritime zones because it is not the "coastal State" within the meaning of inter alia Articles 2, 55, 56 and 76 of the Convention; and/or
[...]
Article 288 Jurisdiction
1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.
2. A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.
[...]
Article 286
Application of procedures under this section
Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.
is confined to disputes concerning the interpretation or application of UNCLOS. It concerns UNCLOS and UNCLOS alone. It does not, unless expressly extended, concern other treaties, even other treaties on the law of the sea. Nor does it cover customary international law, even the customary international law of the sea such as is applicable between parties and non-parties or between non-parties.217
We do not, of course, contend for the existence of any implicit exclusion of all land sovereignty matters from article 288(1), [...]. We say that Mauritius’ 'we are the coastal State' claim is predicated on the determination of a long-standing dispute over a sovereignty that it wishes to be decided by reference to sources exterior to the Convention and, as such, on the ordinary meaning of article 288(1), the dispute is not one concerning the interpretation or application of the Convention.226
Whether a state qualifies as "the coastal state" under the Convention (or "a coastal state," and we note the Convention uses both formulations) in respect of a particular state of affairs is a question arising under the Convention, and it can only be resolved by reference to the Convention itself and by general international law applicable in accordance with the Convention.230
the idea of sovereignty was within the contemplation of the negotiators; they thought about it, they talked about it. Despite this, no consensus was reached on an explicit exclusion. If they truly did not wish a Tribunal such as this to deal with the words that are before you, such an express exclusion [...] could have been drafted and would have been included.236
Nor does Mauritius consider jurisdiction over land sovereignty issues to be relevant only in the context of maritime boundary delimitations.
Article 293 Applicable law
1. A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.
2. Paragraph l does not prejudice the power of the court or tribunal having jurisdiction under this section to decide a case ex aequo et bono, if the parties so agree.
All the Convention asks us to consider first is whether there’s a dispute falling within the interpretation and application of the Convention (Article 288) and it then directs, if [the Tribunal is] satisfied that that is the case, [the Tribunal] "shall apply this Convention and other rules of international law not incompatible with this Convention" (Article 293).240
The purpose of the reference to "other rules of international law not incompatible with this Convention" is to dispel any doubt that, in interpreting and applying the provisions of the Convention, a Part XV court [or] tribunal may have recourse to such secondary rules as the law of treaties, State responsibility, diplomatic protection et cetera, and may apply other rules of international law when directed to do so expressly by a provision of the Convention.245
It is "most certainly not to empower a Part XV court or tribunal to decide disputes which have arisen in fields of international law that lie outside the provisions of the Convention."246
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:
(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;
The travaux plainly point to one conclusion. The issue of sovereignty over land was addressed, and a majority wanted a compulsory dispute settlement system capable of touching on such questions. A minority did not. All the minority got was the opt-out in Article 298(1)(a)(i), and that became part of the package deal.260
Many, [...] merely assert that Part XV cannot cover issues of territorial sovereignty: they offer no footnote and no explanation and no reasoning, beyond—at most—a bald reference to the words of Article 298(1)(a)(i), unaccompanied by any further textual analysis. [...] Another three attempt some explanation of their views but offer no reasoning at all beyond a sentence or two (that is Churchill, Oxman and Thomas). Closely read, at least two of the authors cited do not actually seem to rule out the possibility of jurisdiction in at least some sovereignty disputes (Torres Bernárdez and Smith). In fact quite a few of the authors cited use language along the lines of the Convention seeming, or appearing to, or probably, excluding such disputes, but they don't actually offer a firm conclusion. One author (Adede) makes the historical point that the President of the Conference in 1977 said, in his view, territorial disputes would not fall within Part XV and another, Yee, simply repeats that observation.261
The result of a proper a contrario understanding of Article 298(1)(a)(i) is not that all sovereignty disputes are automatically included under the Convention, it is that such disputes are not automatically excluded. Not every question relating to land will fall within the Convention, only those which must necessarily be dealt with in order to resolve a dispute that is within the Convention. The question is, as Professor Treves has put it, "whether the dispute, [...] as a whole, can be seen as being about the interpretation or application of the Convention."262
It posits certain States being utterly unwilling to agree to determine territorial disputes where these arose in the context of maritime delimitation claims, and insisting on the terms of the Article 298 opt-out (which excludes sovereignty disputes even from conciliation), but at the same time those very same States being willing to agree to the compulsory determination of such disputes in the far broader context of claims made wherever the Convention refers to a coastal state.268
Were this the case, the United Kingdom submits, "there would be an opt-out for 'who is the coastal State' disputes".269
The debates do not reflect any consideration of any kind of the possibility that a justiciable dispute as to land sovereignty could be raised in the context of [...] who was the, or indeed a, coastal State. The supposed majority does not exist, because no one was considering what Mauritius is now proposing.271
Instead, "the negotiating history does no more than confirm that there is no foundation whatsoever for the radical and unwarranted jurisdiction that Mauritius contends for in this case."272
a link must exist between the substantive provisions of the treaty invoked and the dispute. This limitation is vital. Without it, States could use the compromissory clause as a vehicle for forcing an unrelated dispute with another State before the Court.
(Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, Separate Opinion of Judge Koroma, I.C.J. Reports 2011, p. 183 at p. 185, para. 7.)
[t]here is no wording in Articles 288(1) or 298(1) to suggest that they somehow apply differently in different circumstances. No references to the impacts of undertakings or jurisdiction with respect to former colonies. So if Mauritius is correct in its interpretation of Article 288(1), then, as long as the claimant State can plausibly assert that the respondent State is exercising the rights or duties of a coastal State, that claimant State will be able to bring a claim challenging the territorial sovereignty of the respondent State.274
with the passage of time, as dispute settlement under the 1982 Convention and Part XV has become increasingly established and settled, as the International Tribunal for the Law of the Sea and Annex VII Tribunals have been confronted with a range of issues and questions that may not have been at the forefront of the minds of the drafters of the Convention, or indeed in their minds at all, sensible solutions have been found, and the law has evolved. Those solutions have been practical and they have been effective. It is true that they may have taken the interpretation of the Convention to a place where some of the early writings that the United Kingdom likes to rely upon may not have foreseen and may not like. But it cannot be said that disaster has followed.275
the reality is the very opposite of what the United Kingdom argues: far from undermining the whole Convention, if [the Tribunal] take[s] jurisdiction over this case, [it] will strengthen the dispute settlement structure of the Convention; to decline jurisdiction will be to exacerbate the dispute, to prolong it unnecessarily, and to signal that Part XV serves to perpetuate a colonial era dispute such as this one.276
The United Kingdom has consistently described Mauritius as having rights in reversion of the islands. It has described itself as a mere "temporary freeholder." This fact alone places this dispute in a category of one. No other case like it anywhere, and the United Kingdom has not been able to find one for us.277
According to Mauritius, this "is the key to this case. It allows you to open the door that leads to the particular facts of this unique dispute."278 However, "to admit one dispute touching upon such matters is not to admit them all," and "not all such disputes will necessarily come within the jurisdiction of a Part XV court or tribunal."279 In Mauritius’ view, the Tribunal should concern itself "with the facts of this case and this dispute and this case and this dispute only and no other."280
1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.
rule that the United Kingdom is [...] not "the coastal State" of the Chagos Archipelago. The skies will not fall if [the Tribunal] so rule[s], although this "Marine Protected Area" will. The Tribunal will do no more than state that Mauritius is the "coastal State" in relation to the Chagos Archipelago and that the Chagos Archipelago forms an integral part of the Republic of Mauritius. The American base will not be affected, as we have shown. The British will leave. The former residents of the Chagos Archipelago who wish to return finally will be free to do so and their exile will come to an end. Contrary to the United Kingdom’s submissions, [...] those are the consequences that flow from applying the law, from exercising jurisdiction and interpreting and applying the words that sit in the Convention.282
These are not the sort of consequences that follow from a narrow dispute regarding the interpretation of the words "coastal State" for the purposes of certain articles of the Convention.