Arbitral Tribunal Constituted in Chagos Archipelago Dispute Between Mauritius and UK

The following is today’s ITLOS press release concerning the Chagos Archipelago disputed.  I am glad to see friend and colleague Ivan Shearer appointed as President of Arbitral Tribunal constituted under UNCLOS Annex VII.  For those who are unfamiliar with the cases, it concerns the UK creation of a marine protected area up to the outer limit of the exclusive economic zone of the Chagos Archipelago.  As Irini Papanicolopulu reported in Feb 2011 on EJIL: Talk!

Background to the dispute

The Chagos Archipelago, situated in the Indian Ocean, consists of some 65 islands for a total of approximately 60 sq km, generating marine areas that cover 54,400 sq km of ocean; the biggest island, Diego Garcia, has a surface of 44 sq km (see here and here). Formerly under UK colonial rule, since 1965 the Chagos Archipelago forms the British Indian Ocean Territory (BIOT). In the period 1967-1973 the inhabitants of the islands were forcibly displaced to Mauritius, Seychelles and the United Kingdom and were prevented from returning to the archipelago. . . .  From the late 60s, the island of Diego Garcia has been leased to the United States of America, which has constructed and operates a military base. Since its independence in 1968, Mauritius has claimed sovereignty over the Chagos Archipelago including Diego Garcia, while the United Kingdom has repeatedly declared that it will cede the islands to Mauritius when they are no longer needed for defence purposes.

The creation of the MPA

The application of Mauritius was triggered by the creation, in April 2010, by the United Kingdom of a marine protected area (MPA) including the territory, territorial waters and exclusive economic zone of the BIOT, with the exclusion of the military base on Diego Garcia. The MPA is a no-take area, where fishing is completely banned. The reasons given by the British Government for the creation of this MPA were the need to preserve the marine environment and augment the coverage of protected areas globally. As has been affirmed by environmental organisations which have supported the creation of the MPA (including IUCN and Greenpeace)the marine ecosystems of Chagos, including coral reefs, are particularly healthy and pollution in the area is low. The British Government has affirmed that the creation of the MPA is without prejudice to the cession of the Chagos to Mauritius when no longer needed and to the outcome of the case pending before the European Court of Human Rights. The recent publication of some Wikileaks documents, however, shows British officials stating that the creation of the MPA will be the best way to avoid any claim for resettlement of the evicted population (see here).

Claims by Mauritius

In its application, Mauritius contests the legality of the MPA on the basis of different grounds. In the first place, Mauritius contends that the United Kingdom is not the coastal State in this case. Secondly, according to Mauritius, the United Kingdom has failed “to have due regard to the right of Mauritius and those persons forcibly removed from the Chagos Archipelago”, to comply with the UNCLOS and “to seek to reach agreement with Mauritius or appropriate subregional or regional organisations … on measures necessary to ensure conservation”. Finally, referring to the Wikileaks materials, Mauritius considers that “the true purpose of the MPA is not conservation but to prevent the right of return”.

The core issue at dispute is therefore the legality of the MPA, as created by the United Kingdom. . . .

The case is also before the European Court of Human Rights (Chagos Islanders vs. the UK Government, application no. 35622/04).  See also the 2011 of the Assembly of the African Union (Assembly/AU/Res.1(XVI)), fully supporting the claim of Mauritius.  For background and documentation see United States and Britain in Diego Garcia: The Future of a Controversial Base (Palgrave Macmillan New York 2009).  For further detail, see the excellent treatment by Peter Sand, The Chagos Archipelago: Footprint of Empire or World Heritage, 30 Env. L. & Pol’y 232 (2010).

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

TRIBUNAL INTERNATIONAL DU DROIT DE LA MER

Press Release

THREE ARBITRATORS APPOINTED BY THE PRESIDENT OF THE TRIBUNAL

IN THE ARBITRAL PROCEEDINGS INSTITUTED BY MAURITIUS AGAINST THE UNITED KINGDOM IN RESPECT OF THE DISPUTE CONCERNING

THE ‘MARINE PROTECTED AREA’ RELATED TO THE CHAGOS ARCHIPELAGO

On 25 March 2011, the President of the International Tribunal for the Law of the Sea, Judge José Luis Jesus, appointed three arbitrators to serve as members of the Annex VII arbitral tribunal instituted in respect of the dispute between Mauritius and the United Kingdom concerning the ‘Marine Protected Area’ related to the Chagos Archipelago. The arbitrators are Ivan Shearer (Australia), James Kateka (Tanzania), and Albert Hoffmann (South Africa). The President appointed Ivan Shearer as the president of the arbitral tribunal. These appointments were made in consultation with the two parties to the dispute.

 

In accordance with article 3 of Annex VII of the United Nations Convention on the Law of the Sea, if the parties are unable to reach an agreement on the appointment of one or more of the members of the tribunal to be appointed by agreement, or on the appointment of the president of the arbitral tribunal, these appointments shall be made by the President of the International Tribunal for the Law of the Sea at the request of a party to the dispute and in consultation with the parties.

 

In a letter dated 21 February 2011, the Solicitor-General of Mauritius, acting on behalf of the Government of Mauritius, requested the President of the International Tribunal for the Law of the Sea to appoint the three arbitrators, since the two parties were unable to reach an agreement thereon.

 

The press releases of the Tribunal, documents and other information are available on the Tribunal’s websites: http://www.itlos.org and http://www.tidm.org and from the Registry of the Tribunal. Please contact Ms Julia Ritter or Ms Johanna van Kisfeld at: Am Internationalen Seegerichtshof 1, 22609 Hamburg, Germany, Tel.: +49 (40) 35607-227; Fax: +49 (40) 35607-245; E-mail: press@itlos.org

 

 

 

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