Written Statement of India

INTERNATIONAL COURT OF JUSTICE
THE LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS
ARCHIPELAGO FROM MAURITIUS IN 1965
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT OF
THE REPUBLIC OF INDIA
28 FEBRUARY 2018
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TABLE OF CONTENTS
Chapter 1 : Introduction
Chapter 2: Mauritius as a colony - Historical facts
Chapter 3: Process of decolonization of Mauritius - The Status of Chagos Archipelago
Chapter 4: United Nations resolutions and other measures
Chapter 5: N ecessity of the Question for Advisory Opinion
Chapter 6: Conclusion
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Chapter 1
Introduction
1. On 22 June 2017, the United Nations Gener al Assembly (UNGA) passed the resolution
A/RES/71/292, by 94 votes in favour, 15 votes against and 65 abstentions, pursuant to a request
from Mauritius, supported by African members of the United Nations, entitled "Request for an
advisory opinion of the International Court of Justice on the legal consequences of the separation
of the Chagos Archipelago from Mauritius in 1965." India voted in favour of the resolution. 1
2. The General Assembly decided, in resolution 71/292, in accordance with Article 96 of the
Charter of the United Nations, to request the International Court of Justice (ICJ), pursuant to
Article 65 of the Statute of the ICJ, to render an advisory opinion on the following two
questions:
(a) "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, including obligations reflected in
General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16
December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December
1967?"; and
(b) "What are the consequences under international law, including obligations reflected in the
above-mentioned resolutions, arising from the continued administration by the United
Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including
with respect to the inability of Mauritius to impl ement a programme for the resettlement
on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?"
1
On 22 June 2017, during the debate on agenda item 87 "Request for an advisory opinion ...... ", which preceded the
consideration of draft resolution A/71/L.73 and voting thereupon, lndia made a statement, in which it pointed out that
" ............. it is a matter of principle for lndia to uphold the process of decolonization and respect for the sovereignty of
nations. As part of our long-standing support to ail peoples striving for decolonization, we have also consistently supported
Mauritius, a fellow developing country in Africa with whom we have age-old people-to-people bonds, in that country's
quest for the restoration of its sovereignty over the Chagos archipelago. Continuing our consistent approach to this
important issue of decolonization, lndia supports draft resolution A/71/L.73, proposed by Mauritius and co-sponsored on
behalf of the members of the Group of African States, and will vote in favour of it." The complete Statement of Jndia is
available at United Nations General Assembly, Seventy-first session, Official Records A/71/PV.88 (22.06.2017), p. 14.
3. In terms of paragraph 2 of Article 65 of the Statute of the ICJ, the Secretary-General of
the United Nations Mr. Antonio Guterres, laid the Question for advisory opinion before the ICJ,
vide his Letter of23 June 2017 addressed to the President of the ICJ.
4. The President of the ICJ, vide its initial Order dated 14 July 2017, requested the UN
Member States, which are likely to be able to furnish information on the question submitted to
the ICJ for an advisory opinion. That ICJ Order had fixed the time-limit as 30 January 2018, by
which the United Nations and its Member States, may furnish such information; and 16 April
2018 as the time-limit within which States and organizations having presented written statements
may submit written comments on the other statements, in accordance with Article 66, paragraph
4, of the Statute of the ICJ. Later, the President of the ICJ, on the request of the African Union,
vide his Ortler dated 1 7 January 2018, revised these dates as 1 March 2018 and 15 May 2018
respectively.
5. The information so provided on the facts and law surrounding the issues involved in the
Questions for the advisory opinion, would add to the effort of the ICJ in the framing of the
advisory opinion.
6. The subject matter of the Question for advisory opm1on essentially concerns the
completeness of decolonization and independence of Mauritius from the United Kingdom (UK),
which commenced (took place) in March 1968, subject to the retention of occupation of the
Chagos Archipelago with the UK. The retention was the result of separation/detachment of
Chagos Archipelago from Mauritius in November 1965. The basis of the separation appears to
have been an understanding/agreement between Mauritius and the UK, wherein in return to the
use of Chagos Archipelago for defence purposes, UK made certain undertakings including for
compensation to Mauritius; fishing rights; benefits of oil and minerais; and the return to
Mauritius of Chagos Archipelago when it is no longer needed for defence purposes. This
agreement seems to have been constituted through a series of correspondence between Mauritian
political leaders and the UK authorities.
7. Chagos Archipelago is a group of seven atolls: Speakers Bank, Blenheim Reef, Peros
Banhos, Salomon Islands, Great Chagos Bank, Diego Garcia, and Egmont Islands. This group of
islands comprises more than 60 individual tropical islands in the Indian Ocean; situated some
500 kilometres (310 miles) due south of the Maldives archipelago.
8. Mauritius has repeatedly asserted that the Chagos Archipelago is part of its territory and
that the UK should return the same to it. It is our understanding that while, the UK recognizes in
principle the Mauritian sovereignty over the Chagos, it maintains that the Chagos will be
returned to Mauritius once the islands are no longer required for defence purposes. Given the
absence of action on the part of the UK in returning the Archipelago, Mauritius has decided to
refer the matter, through the UN General Assembly, to the ICJ for an advisory opinion.
Chapter 2
Mauritius as a colony - the historical facts
9. In the late 15111 century, Portuguese explorers began to venture into the Indian Ocean and
recorded the location of Mauritius and the other Mascarene Islands, Rodrigues and Reunion (the
latter presently a French overseas territory). In the l 6111 century, the Portuguese were joined by
Dutch and English sailors, both nations having established East India Companies to exploit the
commercial opportunities of the Indian Ocean and the Far East. By that time, Mauritius was used
as a stopping point in the long voyages to and from the Indian Ocean, and no attempt was made
to establish a permanent settlement in the Mauritian territory. In this endeavour, the Dutch East
India Company established the first permanent colony in Mauritius in 1638. The Dutch
maintained a small presence on Mauritius, with a brief interruption, until 1710 at which point the
Dutch East India Company left the island. Following the Dutch departure, France took
possession of Mauritius in 1715, and renamed it as the "Ile de France."2
1 O. During this period, the Chagos Archipelago though very well known and appearing on
Portuguese charts as early as 1538, remained largely untouched. France progressively claimed
and surveyed the Chagos Archipelago in the mid- l 8th century and granted concessions for the
establishment of coconut plantations, leading to permanent settlement. Throughout this period,
France administered the Chagos Archipelago as a dependency of the "Ile de France"3
, i.e.,
Mauritius. In 1810, the British captured the "Ile de France" and renamed it Mauritius. By the
Treaty of Paris of 30 May 1814, France ceded the "Ile de France" and all its dependencies
(including the Chagos Archipelago) to the United Kingdom.4 Thus, the Chagos archipelago has
been part of the territory of Mauritius since at least the eighteenth century, at a time when
Mauritius was a French colony. Throughout the period of French colonial rule, France governed
the Chagos archipelago as one of the dependencies of Mauritius. All the islands forming part of
Mauritius, including the Chagos archipelago, were ceded by France to the United Kingdom. 5
2
Award dated 18 March 2015, The Arbitral Tribunal (Mauritius and the UK- ln the matter of the Chagos Marine Protected
Area Arbitration), paras 56-57, pp. 13-14.
3
Ibid, para 58, p. 14.
4 Ibid, para 59.
5
United Nations General Assembly, Seventy-first session, Official Records A/71/PV.88 (22.06.2017), p. 6.
The British Administration
11. From the date of the cession by France (May 1814) until 8 November 1965, when the
Chagos Archipelago was detached from the colony of Mauritius, the Archipelago was
administered by the UK as a Dependency of Mauritius. British administration over the Chagos
Archipelago was exercised by various means, including by visits to the Archipelago made by
Special Commissioners and Magistrates from Mauritius. 6
12. Although the broad outlines of British Administration of the colony during this period are
not in dispute, the Parties disagree as to the extent of economic activity in the Chagos
Archipelago and its significance for Mauritius, and on the significance of the Archipelago's
status as a dependency. Mauritius contends that there were "close economic, cultural and social
links between Mauritius and the Chagos Archipelago" and that "the administration of the
Archipelago as a constituent part of Mauritius continued without interruption throughout that
period of British rule". The UK, in contrast, submits that the Chagos Archipelago was only "very
loosely administered from Mauritius" and "in law and in fact quite distinct from the Island of
Mauritius." The UK further contends that "the islands had no economic relevance to Mauritius,
other than as a supplier of coconut oil" and that, in any event, economic, social and cultural ties
between the Chagos Archipelago and Mauritius during this period are irrelevant to the
Archipelago's legal status.7
13. For a clearer picture of the matter, a survey of the facts surrounding the
decolonization/independence of Mauritius, and the relevant UN resolutions, would hold merit.
6
Supra note 2, para 61.
7
Ibid, para 62.
Chapter 3
Process of decolonization of Mauritius - the Status of Chagos Archipelago
Process of Mauritius' decolonization
14. In the beginning of 1831, the administration of the British Governor of Mauritius was
supplemented by the creation of a Council of Government. Originally, the Council was
composed of ex-officio members and those nominated by the Governor. Subsequently, the
Council was democratized through the introduction of elected members. The new Constitution
for Mauritius was adopted in 1947, which replaced the Council of Government with separate
Legislative and Executive Councils. The Legislative Council was composed of the Governor as
President, 19 elected members, 12 members nominated by the Governor and 3 ex-officio
members. The first elections of the Legislative Council were held in 1948. The next elections
held in 1953 marked the beginning of Mauritius' move towards independence. The Mauritian
representatives began to press the British Government for universal suffrage, a ministerial
system of government and greater elected representation in the Legislative Council. By 1959, the
Mauritius govemment had openly adopted the goal of complete independence. 8
15. Constitutional Conferences held in 1955, 1958 resulted in the revision of the Constitution;
and the creation of the post of Chief Minister in 1961. In 1962, Dr Seewoosagur Ramgoolam
(later Sir Seewoosagur Ramgoolam) became the Chief Minister within a Council of Ministers
chaired by the Governor and, following the 1963 elections, formed an all-party coalition
government to pursue negotiations with the British on independence. 9 The final Constitutional
Conference was held in London in September 1965 and was principally concerned with the
debate between those Mauritian political leaders favouring independence and those preferring
some form of continued association with the UK. On 24 September 1965, the final day of the
conference, the Secretary of State for the Colonies, the Rt. Hon. Anthony Greenwood MP, who
was the minister in the United Kingdom Government with responsibility for Mauritius,
8
Ibid, para 65.
9
Ibid, para 66.
announced that the United Kingdom Government intended that Mauritius would proceed to full
independence. 10
Detachment of the Chagos Archipelago
16. During the ongoing process of independence, the UK presented a proposai to separate the
Chagos Archipelago from the remainder of the colony of Mauritius, with the view to retain the
Archipelago under British control. According to Mauritius, the proposai stemmed from a
decision by the UK in the early l 960s to "accommodate the desire of the United States to use
certain islands in the Indian Ocean for defence purposes." 11 The US Navy had identified the
island of Diego Garcia as a location for military facilities in the Indian Ocean. The British
Government was approached in 1963 about the use of Diego Garcia with the necessity for
"detachment" in order to retain sovereignty and control and ensure the security of any future
military base on the island. This resulted in the creation of British Indian Ocean Territory
(BIOT) on 8 November 1965, by a prerogative Order in Council (UK Statutory Instrument No 1,
1965), comprising the Chagos Archipelago and some other islands formerly in the colony of
Seychelles. On 30 December 1966, the US and the UK governments signed an Exchange of
Notes making the entire Chagos islands "available to meet the need of both Governments for
defence." 12
17. On 19 July 1965, the Governor of Mauritius communicated the proposai to detach the
Chagos Archipelago to the Mauritius Council of Ministers. Initially, the Mauritian Ministers did
not like the idea of detachment, indicating that detachment would not be acceptable to public
opinion in Mauritius and proposed the alternative of a long term lease, coupled with safeguards
for minerai rights, fishing and agricultural rights. The Governor of Mauritius, however, informed
the Mauritian Ministers on 13 August 1965 that the proposa! of a lease was not viable. 13
18. Thereafter, a series of meetings and consultations culminated in a provisional agreement
in principle to the detachment of the Archipelago in exchange for the Secretary of State
10 Ibid, para 67.
11 Ibid, para 69.
12 Ibid, p. 2.
13 Ibid, para 72.
recommending certain actions by the United Kingdom to the Cabinet. The draft record of the
Lancaster House Meeting set out the following: 14 (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 interna} security
situation arising in Mauritius; (iii) compensation totalling up to f3m. to 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 imp01is 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.
19. Sir Seewoosagur Ramgoolam conveyed that this was acceptable to him, Mr.
Bissoondoyal and Mr. Mohamed in principle, but expressed the wish to discuss with his other
ministerial colleagues. The Mauritius side added the following to the list of six items
(undertakings): (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
minerai or oil discovered on or near islands to revert to the Mauritius Government. These
additions were incorporated in the final record of the Lancaster Ho use Meeting. 15
20. According to the records quoted in the Arbitral Award of 18 March 2015 in the matter of
the Chagos Marine Protected Area Arbitration between Mauritius and the UK, the Governor of
Mauritius informed, on 5 November 1965, the Colonial Office that the Council of Ministers has
confirmed agreement to the detachment of Chagos Archipelago on the understanding that
"H.M.G. have taken careful note of points (vii) and (viii)" means H.M.G. have in fact agreed to
them. 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. In (viii) "on or near" means within area within which Mauritius would be able to derive
14 Ibid, para 74.
15 Ibid, paras 76-77 (para 77 contains the full record of the meeting held in Lancaster House at 2.30 pm on Thursday 23'd
September in an effort to reach understanding for the detachment of Chagos).
benefit but for change of sovereignty. I should be grateful if you would confirm this
understanding is agreed. The Governor also conveyed that "[Parti Mauricien Social Démocrate J
Ministers dissented and were considering their position in the government." So, the Parties differ
on the circumstances in which the consent was obtained and consequently its implications. 16
21. Thereafter, the detachment of the Chagos Archipelago was effected by the establishment
of the BIOT on 8 November 1965 by an Order in Council. Pursuant to that Order, the
governance of the newly created BIOT was made the responsibility of the office of the BIOT
Commissioner, appointed by the Queen upon the advice of the UK Foreign and Commonwealth
Office (FCO), and assisted by a BIOT Administrator. 17
22. On 19 November 1965, the Secretary of State cabled the Governor of Mauritius that 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 UK Government and that it would not be
open to the Government of Mauritius to raise the matter, or press for the return of the islands on
its own initiative. 18
23. Thus, in 1965, the United Kingdom split the Chagos Archipelago away from Mauritius,
and the islands of Aldabra, Farquhar, and Desroches from the Seychelles, to form the British
Indian Ocean Territory (BIOT). The islands were formally established as an overseas territory of
the United Kingdom on 8 November 1965. However, with effect from 23 June 1976 Aldabra,
Farquhar, and Desroches were returned to the Seychelles on their attaining independence.
Grant of Mauritius independence
24. On 4 March 1968, British authorities passed the Mauritius Independence Order 19 (The
Mauritius Independence Order, 1968) with a Schedule containing the Constitution of Mauritius.
Section 2.1 of the Order stipulates 12 March 1968 as the "appointed day". Section 4.1 of the
Order mentioned that the Constitution will corne into effect in Mauritius on the appointed day,
i.e., 12 March 1968.
16
Ibid, paras 79-80.
17
Ibid, para 81.
18
Ibid, para 84.
19
GN No. 54 of 1968 - "The Mauritius lndependence Order, 1968."
25. An "Explanatory Note" (which is not part of the Independence Order otherwise) explains:
"By virtue of the Mauritius Independence Act 1968 Mauritius will attain fully responsible status
within the Commonwealth on lih March 1968. This Order makes provision for a Constitution
for Mauritius to corne into effect on that day, including provision for the legislature, executive
government, the judicature and the public service. The Constitution also contains provisions
relating to citizenship of Mauritius and fondamental rights and freedom of the individual."
26. Accordingly, Mauritius became independent on 12 March 1968. It is pertinent to note that
on that day, the Chagos Archipelago was still under the UK occupation and being used for
defence purposes since November 1965.
Chapter 4
United Nations resolutions and other measures
UN resolutions
27. The key issue to be addressed in the Question for advisory opm10n relates to the
completeness of the decolonization of Mauritius. The United Nations being the chief world body
to help achieve the objective of decolonization, it is warranted to take stock of the efforts of the
United Nations towards this objective, as has been mentioned in the text of the Question itself.
Resolution A/RES/1514 (XV)
28. The key international document to the decolonization process is the United Nations
General Assembly resolution 1514 (XV) adopted on 14 December 1960 entitled "Declaration on
the granting of independence to colonial countries and peoples."
29. On 28 November 1960, Cambodia, on behalf of 26 Asian and African countries,
introduced a draft resolution which was eventually sponsored by 43 Asian and African States.
The Cambodian representative said that the sponsors of the draft had tried to find formulae and
solutions which could be acceptable to the greatest possible number of delegations, if not to all
Members of the Assembly. They therefore appealed to all delegations to study the text carefully
and open-mindedly, so that a period of humanity's history which should have been left behindthat
is, the exploitation of peoples by other peoples and the domination of countries by other
countries-could be forgotten. 20
30. The 43 African-Asian countries that sponsored the resolution for the adoption of
Declaration were: Afghanistan, Burma, Cambodia, Cameroun, Central African Republic,
Ceylon, Chad, Congo (Brazzaville), Congo (Leopoldville ), Cyprus, Dahomey (now Benin),
Ethiopia, Federation of Malaya, Gabon, Ghana, Guinea, India, Indonesia, Iran, Iraq, Ivory
Coast, Jordan, Laos, Lebanon, Liberia, Libya, Madagascar, Mali, Morocco, Nepal, Niger,
20
The Yearbook of the United Nations, 1960, Part 1: Section 1: Political and security questions, Chapter 5: Declaration on
granting independence to colonial countries and peoples, p. 46.
Nigeria, Pakistan, Philippines, Somalia, Saudi Arabia, Senegal, Sudan, Togo, Tunisia,
Turkey, United Arab Republic (now Egypt and Syria) and, Upper Volta (now Burkina Faso).21
31. The General Assembly, after solemnly proclaiming the necessity of bringing colonialism,
in all its forms and manifestations, to a speedy and unconditional end, adopted, on 14 December
1960, the resolution l 5 l 4(XV) entitled "Declaration on the granting of independence to colonial
countries and peoples"22
, by a vote of 89 to 0, with 9 abstentions. The abstaining countries were:
Australia, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa,
United Kingdom, and United States. 23
32. The international community, through this Declaration, demonstrated the strong resolve
that ail colonial countries and Trust and Non-Self-Governing Territories must be granted
forthwith complete independence and freedom to build their own national states in accordance
with the freely expressed will and desire of their peoples. The colonial system and colonial
administration in ail its forms must be completely abolished in order to afford the peoples of the
territories the opportunity to determine their own destiny and form of government. Ali
strongholds of colonialism in any form of possessions in the territory of other countries must be
eliminated. All countries must observe strictly and steadfastly the provisions of the UN Charter
and the resolution (Declaration) concerning equality and respect for the sovereign rights and
territorial integrity of all states.
33. The international community has thus maintained that the immediate and complete
elimination of colonialism in all its forms is the key to encourage the forces of peace, progress
and freedom. The United Nations, by adopting the Declaration, performed part of its duty bound
endeavour towards ending the colonial system.
34. The resolution called for the speedy and unconditional end to colonialism in all its forms
and manifestations and declared that "any attempt aimed at the partial or total disruption of the
21
The Yearbook of the United Nations, Ibid.
22 The text of the resolution containing the Declaration is available at A/RES/1514(XV)
http://www. un .org/ en/ga/search/view _ doc.asp ?sym bol=A/RES/1514(XV)
23 See A/L.323 and Add.1-6, adopted by the UN General Assembly on 14 December 1960, meeting 947 by roll-cal! vote.
national unity and the territorial integrity of a country is incompatible with the purposes and
principles of the Charter of the United Nations". 24
35. Notable among the nine States abstaining from voting was the UK. In a speech explaining
its abstention, the UK representative spoke of "The degree to which the peoples of these
territories, with our help, can succeed in creating new nations, undivided, strong and genuinely
independent, is, we believe, crucial both to their own future happ iness and to the progress and
well-being of mankind as a whole."25 Notwithstanding these stated aspirations, in July 1965, the
Governor of the British Colony of Mauritius was instructed to commence negotiations with
Mauritian Ministers about detachment of the Chagos Archipelago from Mauritius.
Resolution A/RES/2066(:XX)
36. Following the public announcement of the detachment of the Chagos Archipelago, the
matter was raised in the Special Committee on the Situation with regard to the Implementation
of the Declaration on the Granting of Independence to Colonial Countries and Peoples.
Consequently, on 16 December 1965, the UN General Assembly condemned the act of
detachment in resolution 2066 (XX) 26 entitled "Question of Mauritius", calling on the UK to
fully implement Resolution 1514 (XV) and "to take no action that would dismember the
Territory of M􀁛uritius and violate its territorial integrity".27
37. The General Assembly noted 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 adopted in resolution l 5 l 4(XV), and
in particular of paragraph 6 thereof which declares that "Any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a country is incompatible with the
purposes and principles of the Charter of the United Nations."
24
UNGA resolution 1514(XV) of 14 December 1960, operative paragraph 6.
25 Creation of BIOT- The Chagos Archipelago, p.l (https://sites.google.com/site/thechagosarchipelagofacts/ home/creationof-
biot)
26 The text of the resolution is available at A/RES/2066(XX)
http://www.un.org/ en/ ga/search/view _ doc.asp ?sym bol =A/RES/2066(XX)
27
Operative paragraphs 3, 4 of res. 2066(XX) of 16 December 1965.
38. The resolution explicitly expresses the condemnation of the UK not implementing the
Declaration to complete the decolonization of Mauritian territory. The General Assembly had,
through this resolution, further invited the UK to complete Mauritius decolonization and report
the same to it and to the Special Committee established with regard to the implementation of the
Declaration. The UK ignored this call and pressed ahead with its plans for the BIOT.
Resolution A/RES/2232(:XXI)
39. The UN General Assembly again considered this question in December 1966, relating to
the terri tories of ail States mentioned in resolution 1514 (XV) of 14 December 1960.
40. The General Assembly adopted the resolution 2232(XXI)28 on 20 December 1966. The
General Assembly, in this resolution, reaffirmed the inalienable right of people of colonial
territories including that of Mauritius to full and complete independence. By calling upon the
administering Powers to implement, without delay, UN resolutions on complete decolonization,
it reiterated incompatibility with the UN Charter, of any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of colonial Territories. The General
Assembly decided that the· United Nations should render all help to the peoples of these
Territories in their efforts freely to decide their future status. It requested the Special Committee
for special attention to the colonial Territories and tasked for reporting on the implementation of
this resolution in the next (2211d) GA session.
Resolution A/RES/2357(XXII)
41. As a result of inaction by the colonial power/s concerning completion of decolonization
and ignoring all previous resolutions to that effect, the General Assembly again took up this
question at its 2211d session (1967) and adopted resolution 2357(XXII)29 on 19 December 1967.
42. In this resolution, the General Assembly reiterated all condemnations, displeasures
concerning the non-implementation of the Declaration on the Granting of Independence to
28
The text of the resolution is available at A/RES/2232(XXI)
http://www.un.org/ en/ ga/search/view doc.asp ?symbol=A/RES/2232(XXI)
29
The text of the resolution is available at A/RES/2357(XXII)
http://www.un.org/ en/ ga/search/view _doc.asp ?symbol =A/RES/235 7(XXI 1)
Colonial Countries and Peoples. The General Assembly also reiterated all requests conceming
the help and assistance to the peoples of these Territories and conceming the reporting
obligations of the Special Committee.
Arbitration
4 3. F ollowing the announcement of the Marine Protected Area (MP A) in the maritime zone
around the Chagos Archipelago by the UK Govemment on 20 December 2010, the Govemment
of Mauritius initiated arbitral proceedings against the UK Government under the Law of the Sea
Convention (UNCLOS) challenging its legality on the basis of the disputed sovereignty.
Mauritius argued that the UK, not being a "coastal State" in respect of Chagos Archipelago
under UNCLOS and international law, had no authority to purport to establish a MPA around the
Archipelago. The UK and Mauritius presented their arguments before the Arbitral Tribunal in
April 2014.
44. The Tribunal considered in detail the undertakings given by the United Kingdom to the
Mauritian Ministers at the Lancaster House talks in September 1965. The UK had argued that
those undertakings were not binding and had no status in international law. The Tribunal
however, rejected that argument, holding that those undertakings are of value and have binding
effect. It found that the UK's commitments towards Mauritius in relation to fishing rights and oil
and minerai rights in the Chagos Archipelago are legally binding.30 The Tribunal found
unanimously that the United Kingdom's undertakings with respect to (a) fishing rights, (b) the
eventual return of the Archipelago, and ( c) the benefit of minerai and oil resources were legally
binding on the United Kingdom. 31
45. The Tribunal reviewed the circumstances surrounding the detachment of the Archipelago
and concluded that the United Kingdom's undertakings were part of the bargain by which
Mauritian agreement to detachment was obtained and demonstrated intent to bind the United
Kingdom, whether or not they were legally binding prior to independence. As a legal matter, the
Tribunal noted that the United Kingdom had repeated the undertakings on many occasions since
30
Award, supra note 2, para 547.B, p. 215.
31 Ibid.
the independence of Mauritius and concluded that the United Kingdom was prevented, by the
legal principle of estoppel, from now denying that the undertakings were binding upon it.
46. In the absence of clarity concerning sovereignty of Chagos Archipelago and in the
absence of necessary and adequate consultations with Mauritius with the view of giving due
regard to the Mauritian rights and interests under UNCLOS, the Arbitral Tribunal found the
establishment of the MP A by UK. around the Chagos Archipelago in contravention of
UNCLOS. 32
47. The Arbitral Tribunal rendered its Award on 18 March 2015, in which it unanimously
held that the MP A which the United Kingdom declared around the Chagos Archipelago in April
2010 was created in violation of international law, and hence unlawful.
Regional efforts
48. In June 2015, the Assembly of the African Union passed a resolution on Chagos
Archipelago.33 The African Union recognized the Chagos Archipelago, including Diego Garcia,
as integral part of the terri tory of Mauritius. The resolution reflected the resolute commitment of
Mauritius for the effective exercise of its sovereignty over the Chagos Archipelago, in keeping
with the principles of international law. The African Union deplored, in the resolution, the
continued occupation of the Chagos Archipelago by the U K, painting out that this has the effect
of denying Mauritius its sovereignty over the Archipelago and it leaves the decolonization of
Africa as incomplete.
49. The African Union held, through the resolution, the excision by the UK of the Chagos
Archipelago from the territory of Mauritius as unlawful, stating that it violated the international
law and the UN resolutions. The AU has, by committing full support to the cause of Mauritius,
called upon the UK to end the unlawful occupation of the Chagos Archipelago and return the
same to Mauritius.
32
Ibid.
33 Assembly/ AU/Res. l (XXV) - Doc. EX.CL/901 (XXVII).
Chapter 5
Necessity of the Question for advisory opinion
50. British Cabinet papers, at the time of detachment of the Chagos Archipelago, reveal that
Mr. Harold Wilson, the Prime Minister, informed the Mauritian Premier in September 1965 that
part of the price for independence was Mauritius' assent to the detachment of the Chagos. In the
immediate post-independence period, the excision of the Chagos was of limited consequence to
the new state of Mauritius which was struggling with economic and ethnie problems and it was
not until June 1980 that a majority of the Mauritian parliament first called on the UK to retum
Chagos Archipelago to Mauritius and the first formai claim was subsequently made by Mauritius
on 9 October 1980 in an address by the Mauritian Prime Minister to the UN General Assembly. 34
51. In 1982, following the report of a Select Committee into what had happened in 1965, the
Mauritian Government's formai position was that Chagos had been illegally excised from
Mauritian territory. Since then, Mauritius has repeatedly claimed sovereignty over the Chagos.
Meanwhile, the UK has consistently maintained that it has no doubts about its claim to
sovereignty whilst at the same time acknowledging that it will cede the islands to Mauritius
when they are no longer required for defence purposes. 35
52. The Constitution of Mauritius stipulates that the outer islands of Mauritius includes the
islands of Mauritius, Rodrigues, Agalega, Cargados, Carajos, and the Chagos Archipelago, and
any other island comprised in the State of Mauritius. The Government of the Republic of
Mauritius has stated that it does not recognise the British Indian Ocean Territory (BIOT) which
the United Kingdom created by excising the Chagos Archipelago from the territory of Mauritius
prior to its independence, and claims that the Chagos Archipelago forms an integral part of the
territory of Mauritius under both Mauritian law and international law. 36
34
Supra note 28, p. 2.
35
Ibid.
36 "Chaqos remains a motter for discussion". Le Defimedia. Archived from the original on 27 April 2015. Retrieved
22 September 2012, https:// en. wiki pedia. org/wiki/Chagos _Archi pelago _ sovereignty _ dispute#cite _note-defil-2
Depopulation
53. Between the years of 1967 and 1973, some 2000 Chagossians were removed from the
Chagos Islands and shipped to Mauritius and Seychelles.37 The I slanders were apparently
removed unwillingly and without consultations. Remaining Chagossians on the island of Diego
Garcia were also reportedly pried onto ships destined for the islands of Peros Banhos and
Salomon. By 1973, the Chagos Archipelago had all its permanent inhabitants completely moved
out.38 Throughout internai discussions about resettlement options for the Chagossians,
memoranda from this period indicate that the U.K. Government was fully aware that it proposed
to expel native islanders from their homeland, and insofar as they considered the legal rights of
the islanders, showed determination to override such legal rights. 39
54. It is pertinent to note in this context that the BIOT Ortler enacted by the Queen (of
Britain) in 1965, empowered the Commissioner to 'make laws for the peace, order and good
governance of the territory'. Using the powers under Section 11 of the BIOT Ortler, the
Commissioner enacted BIOT Ordinance of 1971. Section 4 of the 1971 Ordinance provided for
the compulsory removal of ail the inhabitants. Proceedings were brought by way of judicial
review in the High Court in England in August 1998 by a Chagossian person named Olivier
Bancoult. In the judicial review proceedings, the validity of the 1971 BIOT Immigration
Ordinance was challenged and on the 3
rd November 2000 the Divisional Court held that section
4 of the Immigration Ordinance was beyond the legal authority of the BIOT Constitution.40
55. On 10 June 2004 the UK Govemment passed into law the British Indian Ocean Territory
(Constitution) Ortler 2004 and the BIOT (Immigration) Ortler 2004.
41
By declaring that no
person has the right of abode in the territory, or the right to enter it except as authorized, these
37 Norton-Taylor, R(2012) Diego Garcia archives shed light on fate of deported Chagos lslanders.
http://www.theguardian.com/uk/2012/apr/18/archives-diego-garcia, See Model United Nations at UC Davis: Davis Model
United Nations Conference XV, 20-21 2017, p. 8. (http://dmunc.org/wp-content/uploads/UNSC-Formatted.pdf)
38 Model United Nations at UC Davis, ibid, pp 8-9.
39
UK/US Agreements <https://sites.google.com/site.'thechagosarchipelagofacts/diego-garcia/u…..,.
Mode! United Nations at UC Davis, ibid, p. 9.
40
Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and Another (No,1) Divisional
Court, Queen's Bench Division, (2000) 123 ILR 555. Model United Nations at UC Davis, ibid.
41
British lndian Ocean Territory (Constitution Orcier) Buckingham Palace, The Queen's Majesty in Council (2004) Model
United Nations at UC Davis, ibid, p.10.
Orders ensure the abrogation of existing rights to live in the territory which the Chagossians
possess. This provoked a further challenge by Mr. Bancoult [Bancoult (2)] in 2006 where the
UK Divisional Court held the Orders to be irrational.42 In the Court of Appeal, the Orders were
unanimously held to be an abuse of power. In 2008, the Secretary of State appealed to the Bouse
of Lords on the question on the validity of section 9 of the British Indian Ocean Territory
(Constitution) Order 2004 but by the end of it they basically held that this was a matter of
foreign policy and the Judiciary should not interfere.43
56. U.K. Foreign Secretary David Miliband's announcement of the creation of a Marine
Protected Area ("MPA") in the British Indian Ocean Territory ("BIOT") in 2010 included a "notake"
marine reserve where commercial fishing stood banned.44 The measure appears to have
direct implications for the possible resettlement of the native population of the Chagos
Archipelago.
42 R (Bancoult) v. Secretary of Foreign and Commonwealth Affairs (2006) EWHC 1038 (Divisional Court), Madel United
Nations at UC Davis, ibid.
43
UK Court of Appeal (2008) QB 365/ 3 WLR 955. Madel United Nations at UC Davis, ibid.
44 Rincon, P. (2010) UK Sets up Chagos Islands Marine Reserve. http://news.bbc.eo.uk/2/hi/science/nature/8599125.stm&gt;.
Chapter 6
Conclusion
57. The historical facts indicate that the Chagos Archipelago throughout, pre and post
colonial era, has been part of the Mauritian territory. These islands carne under the British
colonial administration as part of Mauritian territory.
58. The UK, since May 1814, is adrninistering/occupying the Chagos Archipelago as part of
Mauritian territory in the capacity of a colonial power. The understanding reached in Novernber
1965 between Mauritius and the UK for the retention of Chagos by the UK for defence purposes
and return thereof to Mauritius when no longer needed for defence purposes, is also in itself an
evidence that Mauritius has been and continues to be the sovereign nation for the Chagos
Archipelago, this being irnrnaterial that by whorn and for what purpose these islands are, for the
tirne being, used or adrninistered.
59. Thus, the historical aspect of the rnatter evidences and establishes the Chagos
Archipelago as part of the Mauritian territory to the exclusion of the sovereignty of any other
state.
60. The legal aspect should root and establish itself in the historical facts, behaviour of the
nations concerned, and the consideration of the issue/s by the relevant bodies/institutions, United
Nations being the rnost relevant body in rnatters of world affairs. Mauritius becarne independent
on 12 March 1968. Frorn the legal perspective, the sequence of events before independence,
around that tirne and thereafter play a crucial role in deterrnining the status of cornplete
decolonization.
61. The United Nations, in Decernber 1960, recognizing the ardent desire of the peoples of
the world to end colonialisrn in ail its manifestations; believing in the necessity of an end to
colonialisrn and all practices of segregation and discrimination associated therewith; convinced
of the right of all peoples to full freedorn and of the integrity of their national territory, solernnly
proclairned the necessity of a speedy and unconditional end of colonialisrn in all its forrns and
manifestations in the General Assernbly resolution 1514(XV). This resolution declared "any
attempt aimed at the partial or total disruption of the national unity and the territorial integrity of
a country, incompatible with the purposes and principles of the Charter of the United Nations."
62. However, instead of complying with the resolution, m November 1965,
retention/detachment of the Chagos Archipelago took place, appearing to be in violation of
obligations under the resolution. The United Nations reacted to the detachment of the Chagos
Archipelago by adopting resolution 2066 (XX) entitled "Question of Mauritius" in December
1965, calling on the UK to fully implement Resolution 1514 (XV) and "to take no action that
would dismember the territory of Mauritius and violate its territorial integrity". The resolution
obligated the UK to complete the decolonization of Mauritius and report the same to the General
Assembly and to the Special Committee.
63. The UK however, pressed ahead with its plans for the detachment of Chagos Archipelago.
There being no positive steps by the UK towards and resulting in complete decolonization of
territories including the Mauritius, the UN General Assembly again considered the issue in
December 1966. Condemning the non-implementation of its resolutions and the continuation of
colonial occupations, the General Assembly adopted resolution 2232(XXI) on 20 December
1966, reaffirming the right of colonial territories including Mauritius to full and complete
independence, with the call to the administering Powers to without delay, complete
decolonization. Seeing no action by the administering Powers, the General Assembly once again
adopted similar resolution 2357(XXII) on 19 December 1967.
64. The Arbitral Tribunal constituted by agreement between Mauritius and the UK has, in its
Award dated 18 March 2015, unanimously found legally binding - UK's undertakings with
respect to: the fishing rights of Mauritius in the waters of Chagos Archipelago; the eventual
return of the Archipelago to Mauritius and; the benefit of minerai and oil resources in and near
the Archipelago. The A ward has, by declaring as unlawful the Marine Protected Area established
by the UK in the waters of Archipelago, denied the status of the UK as the coastal State for the
Archipelago. Further, by declaring as legally binding the undertaking of the UK to return the
Archipelago to Mauritius, the A ward has confirmed the legal obligation of the UK to return the
Archipelago to Mauritius.

65. The historical facts conceming the Chagos Archipelago and the legal aspects associated
therewith confirm: the sovereignty of the Chagos Archipelago with Mauritius (which fact the
UK also admits); non-implementation by the UK of the UN resolutions concemmg
decolonization of Mauritius; and the process of decolonization of Mauritius so remains
incomplete.
Respectfully Submitted
Dr. Vishnu Dutt Sharma
Joint Secretary and Le gal Ad viser
Ministry of Extemal Affairs
Govemment of India
28 F ebruary 2018