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Disputes over the British Indian Ocean Territory: July 2017 update

Published Wednesday, July 26, 2017

This briefing describes the main developments since mid-2013 in long-running disputes over the British Indian Ocean Territory (BIOT). In November 2016 the previous UK Government decided not to allow Chagossian resettlement. The status of the Marine Protected Area is contested. The UK and Mauritius have been holding talks on sovereignty. In June 2017, the UN General Assembly voted to ask the International Court of Justice to give an advisory opinion on the issue. The US military base on Diego Garcia is set to continue until 2036. Meanwhile, there continues to be litigation in the English courts.

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Background

Between 1968 and 1973 the British Government cleared the entire Chagos Archipelago of its inhabitants, in anticipation of a US military base on the biggest island, Diego Garcia. The Archipelago was made a colony, the British Indian Ocean Territory (BIOT). It subsequently became a British overseas territory.

Two main disputes have arisen from these events. One has been between the Chagos Islanders and the British Government over the legality of their removal and whether they have a right to return. The other has been between the UK and Mauritius about sovereignty over the BIOT. In 1965 the UK undertook that it will cede sovereignty to Mauritius once the BIOT is no longer required for defence purposes.

A May 2013 Library briefing surveyed the origins and subsequent evolution since 1965 of these disputes, including past and ongoing legal cases brought before British, European and international courts. The briefing went on to explore potential ways forward for resolving these disputes by the time of the UK general election in May 2015. This update summarises the main developments over the intervening four years.

November 2016: the previous UK Government decides against resettlement

A fresh resettlement feasibility study has been carried out. It set out three resettlement options: large-scale resettlement; medium-scale resettlement; and pilot, small-scale resettlement. However, in November 2016 the previous Government announced that it had decided not to allow resettlement. The decision provoked condemnation from Mauritius and supporters of the Chagossian cause in the UK, and raised the prospect of further legal action. Since then, there has been debate about the best use of – and motives behind – a £40 million support package for Chagossians and renewed calls for the restoration of the right of abode as a prelude to a change of policy on resettlement.

The Marine Protected Area in limbo?

A Marine Protected Area (MPA) introduced by the British Government around the Chagos Archipelago (apart from Diego Garcia, where there is a US military base) in 2010 was ruled unlawful in 2015 by a Tribunal under the UN Convention on the Law of the Sea. The UK has insisted that the MPA is still in place. The Tribunal was much more equivocal on sovereignty than the Mauritian Government, which brought the case, will have hoped. It declined jurisdiction on the issue but found that the UK’s 1965 undertaking to cede sovereignty to Mauritius when the BIOT is no longer required for defence purposes is binding under international law.

Movement on sovereignty?

In 2015 a Marine Protected Area (MPA) introduced by the British Government around the Chagos Archipelago (apart from Diego Garcia, where there is a US military base) was ruled by a Tribunal under the UN Convention on the Law of the Sea to have been established without proper regard to the rights of Mauritius. Some legal commentators have taken this as tantamount to saying that the MPA is unlawful. The UK disagrees with this interpretation. The Tribunal was more equivocal on sovereignty than the Mauritian Government, which brought the case, will have hoped. It declined jurisdiction on the issue but found that the UK’s 1965 undertaking to cede sovereignty to Mauritius when the BIOT is no longer required for defence purposes is binding under international law.

Movement on sovereignty?

In July 2016 Mauritius said that it would seek a referral by the UN General Assembly to the International Court of Justice later in the year in order to obtain an advisory opinion on sovereignty. Mauritius ultimately held back from seeking a referral and there have been talks between the two governments. But Mauritius said that it would seek a referral in June 2017 if insufficient progress was made in the talks by then. On 22 June 2017 the General Assembly voted 94-15 to refer the issue.

The US military base is extended until 2036

A decision on whether to extend the life of the US military base on Diego Garcia for a further 20 years had to be made by the end of 2016. The decision to do so was announced in November 2016.

Litigation in the English courts

In June 2015 the Supreme Court heard an application for the 2008 verdict of the House of Lords – which ruled that the use in 2004 of Orders in Council to prevent the Chagossians from returning had been lawful – to be set aside. In June 2016 the Supreme Court ruled against the application by a majority of 3 to 2. However, the decision of the previous UK Government against allowing resettlement has led to an application for judicial review of the original ban. Supporters of the Chagossians hope that it will be heard during 2017 but it may not happen until 2018.

The Supreme Court heard an appeal on behalf of Chagossians against the MPA on 28-29 June 2017.

 

 

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