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The Chagos Archipelago: A Theatre of Opportunity and Challenge in the Indian Ocean

Located at the centre of the Indian Ocean, the Chagos Archipelago is a group of 55 tiny islands that, since 1965, has been administered by the United Kingdom as a British Indian Ocean Territory. Its biggest island, Diego Garcia, is host to a highly important US military air base. Sovereignty over the archipelago has recently emerged as an issue of contestation between Mauritius and the UK, and the presence of American military troops has only served to consolidate the strategic importance of Chagos for the US in the Indian Ocean. In light of the recent rejection by the Permanent Court of Arbitration of the UK's declaration of a marine protected area around the archipelago, this paper argues that even as Mauritius, US, and the UK occupy pivotal positions in the larger context of control over Chagos, the territory has the potential to serve as an important foreign policy regulator vis-a-vis India's strategic engagement in the Indian Ocean.

In December 2010, the Republic of Mauritius filed a legal challenge against the United Kingdom of Great Britain and Northern Ireland over the declaration of a Marine Protected Area (MPA) by the United Kingdom in April of the same year, in the waters surrounding the Chagos Archipelago. An Arbitral Tribunal was constituted under Annex VII of the United Nations Convention on the Law of the Sea by the Permanent Court of Arbitration (PCA) to conduct the arbitral proceedings on the 1 matter. On 18 March 2015, the Tribunal gave its award in favour of Mauritius with respect to the UK's obligations under international law. It found that the UK had failed to meet its obligations under the Convention, which 􀀴requires the United Kingdom to have due regard for Mauritius' rights and to act in good faith with respect to its 2 undertakings to Mauritius􀀷. Specific observations were made by the Tribunal after a review of the events that took place between February 2009 and April 2010, and these proved critical to its final judgement. These observations include the following:

1. The Tribunal found that the consultations that took place prior to the declaration of the MPA were characterised by a 􀀴lack of full information􀀷 about the proposed area, and a consequent 􀀴absence of sufficiently 3 reasoned exchanges between the Parties􀀷.

2. The Tribunal found that the United 4 Kingdom 􀀴engaged far less􀀷 with Mauritius, than it did with the United States concerning its strategic and economic interests in the Chagos Archipelago.

3. In the Tribunal's understanding, the lack of sufficient engagement 􀀴created reasonable 5 expectations􀀷 that Mauritius would have the chance to express its concerns before the final decision was taken. However, the declaration of the MPA precluded all such opportunities.

4. Although the Tribunal did find the United Kingdom in breach of its obligations, it declined to comment upon the 􀀴improper 6 purpose􀀷 in the declaration of the MPA itself.

With regard to its rights under the Convention on the Law of the Sea, Mauritius argued that the United Kingdom's undertakings in 1965 upon which Mauritian consent to the detachment of the Archipelago was obtained, were legally binding. The Tribunal found that such undertakings were binding on the United Kingdom with respect to: (a) fishing rights; (b) the eventual return of the Archipelago; and (c) the benefit of mineral and oil resources. The Tribunal also observed that based on the legal principle of estoppel, the fact that the United Kingdom had repeated its undertakings on numerous occasions after the independence of Mauritius, prevented them from now being non- 7 binding.

In its award, the Tribunal stated that it lacked the jurisdiction to consider the submissions made by Mauritius regarding the interpretation of the term 'coastal State' by both parties, and to comment upon the rights therein of Mauritius as the coastal State that prevent the United Kingdom from unilaterally declaring an MPA around the Chagos Archipelago. It stated that Mauritius did not run the risk of losing potential rights before the Commission on the Limits of the Continental Shelf with regard to the claims it made against the 8 United Kingdom. Although the Tribunal ultimately decided that it did not have the jurisdiction to address issues related to the sovereignty dispute between the two countries, the arbitral proceedings and the subsequent judgement marked the first instance of an international court or tribunal condemning the conduct of the UK with respect to the Chagos Archipelago. The Prime Minister of Mauritius, Sir Anerood Jugnauth, called the Tribunal's ruling 9 􀀴historic􀀷. It is in this context that this paper looks at the importance of Chagos against the changing political and strategic realities in the Indian Ocean.

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