Chagos: What’s next after the decision of the International Tribunal of the Law of the Sea?

The special chamber of the International Tribunal of the Law of the Sea (ITLOS) in its decision dismissed the objections of the Maldives, reinforcing the view that Chagos belongs to Mauritius and that the dispute will continue to be heard by ITLOS. So what are the implications of the ITLOS decision for the UK and the US? And why will the next chapter in the Chagos fight be coming from the Indian Ocean Tuna Commission?

On 28 January a special chamber of the International Tribunal of the Law of the Sea (ITLOS) dismissed Maldives’ objection that it could not hear the case about a 98,828 square kilometer stretch of ocean between the Chagos and Maldives and claimed by both sides. In short, what the Maldives argued was that the ITLOS could not hear the case since it was still not clear whether it was Mauritius or the UK that owned the Chagos. However, the ITLOS overruled this argument that found that Mauritius owned the waters around the Chagos and that the dispute between the two island-states in the Indian Ocean over this stretch of the ocean could continue.

IOTC: the next front

The case at the ITLOS will continue as it decides the maritime boundary between Mauritius and Maldives. But the next move in the Chagos saga won’t be coming out of the ITLOS, but rather it will be made at the Indian Ocean Tuna Commission (IOTC).

Following the ICJ verdict in 2019, Mauritius embarked on an offensive within the Indian Ocean Tuna Commission (IOTC) based in Victoria in Seychelles, the international authority regulating fishing in the region. IOTC membership is open to states that have coastlines along the Indian Ocean region, states that fish in the Indian Ocean as well as regional economic blocs. By virtue of its control over the Chagos, the UK is an IOTC member as a coastal state since 1995. After the ICJ verdict in February 2019, in June at an IOTC session in Hyderabad in India, Mauritius demanded that the IOTC expel the UK as a coastal state. After the ICJ verdict, Mauritius insisted, “the United Kingdom is not and cannot be the coastal state in relation to the Chagos Archipelago. The United Kingdom is therefore not entitled to be a member of the IOTC as a coastal state”.

At that time, other IOTC members said that needed to wait for instructions from their capitals on how to decide the question. On 4 March 2020, Mauritius once again demanded that “Termination of the United Kingdom’s membership in the IOTC as a coas- tal state” be put on the agenda of the 24th session of the IOTC.

But then Covid-19 hit and the IOTC’s 24th session in November 2020 was conducted online and only discussed matters requiring urgent attention. On 8 July 2020, Mauritius said it wanted the question to be discussed at the 25th session, due to be held this year. In the meantime, Mauritius has continued to protest the UK’s participation in the IOTC as a coastal state at technical committee and other IOTC meetings. The UK’s response to Mauritius’ offensive within the IOTC has been to re-iterate its sovereignty over the Chagos, how the ICJ was non-binding, and that given that the Chagos was within the Indian Ocean, “there can therefore be no doubt that the United Kingdom, as the state with sovereignty over BIOT as aforementioned, is entitled to be a member of the IOTC”.

Making mauritius’ case

Following the ITLOS decision, the Mauritian case at the IOTC has become incredibly strengthened, while that of the UK has considerably diminished.

The first problem for London is that the ITLOS says that it recognizes Mauritius as the state with sovereignty over the Chagos that it can be, “regarded as the state with an opposite or adjacent coast to the Maldives”. In other words, Chagos and its coast are Mauritian, not British. The second problem for London is that the ITLOS findings are binding. And the third issue is that there is just no way that the IOTC can simply ignore, or disagree with the ITLOS by keeping London on as a coastal state member.

This is for some very obvious reasons; the ITLOS is a tribunal in charge of interpreting and enforcing the United Nations Convention on the Law of the Sea (UNCLOS), the international law regulating maritime affairs. The IOTC is a regulatory body established under the same law, the UNCLOS. Not are both of them bound by the same set of rules, but both are organizations within the UN system: ITLOS under the UNCLOS, and the IOTC being founded in 1993 under the UN’s Food and Agriculture Organization (FAO). If it was unrealistic to expect that the ITLOS as a UN tribunal would ignore the legal determination of the UN’s highest court (the ICJ), it is equally unrealistic to expect a UN regulatory body (the IOTC) to ignore a binding legal decision by the highest UN court concerning maritime affairs (the ITLOS) enforcing the same law that it itself was founded on. “It’s going to be pretty hard for the IOTC not to kick the UK out” concludes Seegobin.

Armed with the ITLOS judgment denying the UK any international right to control the Chagos, the next chapter in the Chagos saga may be coming out of the Indian Ocean Tuna Commission as it meets in a special session in March this year.