UN General Assembly (UNGA) Asks World Court to Assess theBIOT
The most recent, and perhaps most significant, litigation development has to do with an action that was initiated in June 2017 by the UNGA seeking advisory opinion from the International Court of Justice (ICJ) as to validity the 1965 detachment of the BIOT from the rest of the Colonial Mauritius. Had the Chagos remained part of Mauritius, then DGAR would have been assimilated into Mauritius when it became independent in 1968. Attacking the transfer at the point of inception today obviously create legal doubt as to who is the true owner of the Chagos Archipelago and, by extension, Diego Garcia.
On the merits, there are facets of this case which the UK will have difficulty overcoming. The 1965 detachment of Chagos Archipelago was codified in a provisional understanding between the British Secretary of State and the Premier of Colonial Mauritius in the above noted series of documents known as the Lancaster House Understandings. It was there agreed that the UK would detach the Chagos and would p ay £3 million in compensation to Mauritius above and beyond resettlement costs. The UK is also expected to pay the resettlement costs of the former residents.
- Use its good offices with the United States to support Mauritius’ request to use labor and materials from Mauritius for construction work on the islands:
- Return the islands if the need for the facilities on the island disappeared (defense purposes) (documented in a later exchange of letters);
- Accrete oil or mineral rights to Mauritius; and
- Use its good offices with the U.S. government to ensure that the following facilities in the Chagos would remain available to Mauritius as far as practicable: (a) navigational and meteorological facilities; (b) fishing rights; and (c) use of runways for emergency landing for refueling planes.
- When Mauritius became independent in 1968, the Mauritian Council of Ministers ratified that Landcaster understandings although the UN General Assembly objected to the detachment of the Chagos on three separate occasions .
The UK’s basic contention is that it has complied with all aspects of the promises that it made to the Mauritian colonial administration in 1965 in the Landcaster Understandings. It paid Mauritius £3 million and it continues to promise to cede the islands back to Mauritius when “no longer needed for defence purposes.” The UK will assert that it paid all of the sums due to Mauritius, and to the former residents, and assert that the Chagos, DGAR in particular, is an essential defense installation.
Mauritius will argue that the Chagos Islands are an integral part of Mauritius and could not be disassembled and should remain with Mauritius; then and now. They will assert so-called 1965 Lancaster House Undertakings with the UK was "obtained under conditions of duress and coercion" and did not represent an agreement among two sovereign countries i.e., it was an agreement between one component of the British government and another. The Mauritians may also argue that “defense purposes” language was designed to benefit the UK and not the United States.
This case involves a request from the UN General Assembly (UNGA) for the ICJ to issue an Advisory Opinion. The matter was initiated by Mauritius in June 2017 and passed by a vote of ninety-four in favor, sixty-five abstentions, and fifteen opposed. India voted in favor of the resolution. Recalling again that the UNGA had three times asked the UK to not “dismember” the Chagos from ahead of its independence, in 1968, the UNGA requested that the ICJ issues an advisory opinion on two questions:
First, “was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius” and having regard to international law?
Second, what are the consequences under international law arising from the continued administration by the United Kingdom . . . including with respect to the inability of Mauritius “to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”
The power of the ICJ to render advisory opinions to organs of the UN has been recognized under Article 65(1) of the ICJ Statue, which provides that the Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized ...” to include the UN General Assembly. Advisory opinions are not designed to settle disputes between states (since they must both generally consent) but, here, can provide definitive legal advice to organs of the United Nations. The UK will argue that Mauritius and the UK are the real parties to this dispute and the involvement of the General Assembly circumvents the requirement that there be consent between the two affected states. The fact that the UK had been chastised three times by the UNGA for its detachment of the BIOT in the 1960s and was admonished by the UNCLOS Tribunal for its shabby treatment of Mauritius in relation to the MPA designation vis-à-vis Mauritius, it is hard to envision that the ICJ will dismiss given that the UNGA, and the UN generally is suppose to advocate on behalf of those from non-self-governing territories.