Somewhere, Beyond the Sea

On 3rd October 2024, the UK and Mauritius announced a historic agreement on the issue of the disputed Chagos Islands. Subject to a future treaty, the UK will hand over sovereignty over the islands to Mauritius but will maintain some sovereign rights over Diego Garcia, Chagos’ largest island. Both sides have agreed that the displaced native population, which was not involved in the negotiations, will get the option to resettle the islands. This may put an end to decades of legal disputes.

In addition, both states have agreed to work towards the establishment of a new “Mauritian Marine Protected Area” (MPA). But MPA’s and the Chagos islands have a troubled history. Starting in 2010, the UK declared an MPA around the Chagos islands which prohibited any fishing, in an attempt to prevent the forcibly removed Chagossians from returning. We seek to showcase how conservationism has been abused by the UK to deny the Chagossians’ collective rights. We further seek to outline what considerations Mauritius will have to base the development of the announced new MPA on, to comply with its international obligations.

A Chagossian Odyssey

The remote Chagos Archipelago in the Indian Ocean has been home to the Chagossians (or Ilois, meaning “Islanders” in French Creole) since the 18th century. Since 1814, the islands were governed from Mauritius as a part of local British colonial rule. Following the 1965 negotiations leading up to Mauritian independence, the UK separated Chagos from Mauritius to secure the establishment of a joint US-UK military base on Diego Garcia, thereby forming a new colony: the British Indian Ocean Territory (BIOT).

The plans for a military base had tremendous implications for Chagos’ native population. The Chagossians, whose ancestors had been enslaved and forced to work on the islands‘ coconut plantations, were now forcibly expelled. Teachers and medical personnel were prevented from entering the islands and food shipments were massively reduced to pressure the population into leaving. Between 1967 and 1973, more than 1500 Chagossians were forced from their houses and villages, were denied reentry to the BIOT and were subsequently relocated to Mauritius and the Seychelles (para. 43), where many lived a life in extreme poverty. Return was labeled a criminal offense under the BIOT Immigration Ordinance No. 1 of 1971.

In exchange for a payment of £4 million in 1982, the expelled Chagossians in Mauritius were required to sign or thumb a waiver, renouncing their right to return to Chagos. Since the waiver was not in their native Creole tongue, most were oblivious as to its true content.

Continuous legal challenges followed in the UK (paras 121, 127). As a consequence, the Chagossians were allowed to undertake so-called “heritage visits” to the islands, enabling them to tend to cemeteries or visit their former homes. However, Section 9(1) of the BIOT (Constitution) Order 2004 still denies anyone the right to abode on the territory. The House of Lords finally denied the Chagossians their right to return in 2008. On the question of whether the UK government could simply deny the right to abode by legislation, one judge simply made the perfunctory comment: “The law gives it and the law may take it away”. International legal challenges, however, showcased that the law did, in fact, not take it away. Although an ECtHR application was found inadmissible by the court, the ICJ rendered an Advisory Opinion in 2019, which held that the detachment of the Chagos Archipelagos violated “the right of peoples to self-determination” (para. 177). The UNGA subsequently demanded that the UK “withdraw its colonial administration”.

Conservation as a Political Tool

The UK’s government has continuously abused environmental conservation efforts to prevent the Chagossians from returning to their homeland. It repeatedly indicated that resettling the islands would be impossible due to climate change, which has been disputed by scientists. However, the UK’s main attempt to shield its colonial practices by instrumentalizing the environment, constituted the declaration of a “marine protected area” (MPA) around the Chagos Islands.

On 1st April 2010, while ECtHR proceedings instituted by the Chagossians were still underway, the BIOT Commissioner proclaimed that the waters surrounding Chagos would become a 640,000 square kilometers large MPA, which would take the form of a “no take zone”, prohibiting any fishing in the BIOT’s waters including the entire EEZ. The Mauritian government and the Chagossians must indeed have felt like being subjected to a bad April fool’s joke. Prior to their expulsion, the Chagossians heavily relied on fishing and seafood, which was now impossible. At the same time, the MPA exempted the military base on Diego Garcia, permitting the US military personnel to fish even though the waters surrounding the base were those most threatened by overfishing.

The revelations that followed cast an even darker light on the MPA. A leaked confidential cable evidenced that the British administration viewed the proclamation of a no-fang zone as “the most effective long-term way to prevent any of the Chagos Islands’ former inhabitants or their descendants from resettling in the BIOT” (para. 15). In addition to racist remarks about the Chagossians (para. 7), the cable also showcased that the UK government sought to instrumentalize environmental groups against Chagos’ original inhabitants (para. 7).

The Chagos MPA has also failed to withstand judicial scrutiny. Only a few days prior to the MPA’s proclamation, the UK’s government had assured their Mauritian counterparts that no decision had been taken on the establishment of such a zone (para. 531) despite already advanced plans. Then Mauritian Prime Minister Seewoosagur Ramgoolam accused the UK of a “policy of deceit”. Mauritius subsequently instituted proceedings before an Annex 7 UNCLOS tribunal on 10 December 2010. In 2015, the tribunal issued an award which found that the MPA violated Articles 2(3) and 56(2) UNCLOS because Britain had failed to consider Mauritius’ fishing rights (para. 536) and that the MPA constituted an unjustifiable interference with the rights of Mauritius, violating Article 194(4) UNCLOS (para. 541).

Overall, the Chagos MPA should be understood as an attempt to exploit conservationist efforts to uphold Britain’s colonial rule. It constitutes a clear violation of international law and serves as a tool to safeguard the UK-US military base, rather than the BIOT’s marine environment.

New Solutions for a New MPA

However, the looming return of sovereignty over the islands to Mauritius casts a new light on the issue of marine protection. The UK-Mauritius joint statement published on 3rd October 2024 not only envisions a resettlement of Chagos (except for Diego Garcia), but also the establishment of a “Mauritian Marine Protected Area”. Given the dreadful developments that surrounded the previous MPA, this raises the question of how the new MPA should be designed to comply with international law and enable the Chagossians’ return.

MPA’s remain largely unregulated under international law. Still, under Article 194(1) UNCLOS, states are obliged “to prevent, reduce and control pollution of the marine environment”. Article 194(5) UNCLOS further places a special emphasis on the protection of “fragile ecosystems” and “endangered species”. Under Article 6(a) of the Convention on Biological Diversity (CBD), states are further under an obligation to “develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity”. Conservation and sustainable use of the oceans are likewise recognized as one of the UN’s sustainable development goals.

Indeed, the waters surrounding Chagos are some of the most biodiverse ones worldwide and house many species of molluscs and corals and provide important protection to manta rays. On the other hand, shark populations around Chagos have declined by 90 percent between 1975 and 2006, while 85 percent of corals within the BIOT were damaged in 2016 in a bleaching event, showcasing this ecosystem’s fragility. Therefore, maintaining an MPA would be a crucial step in ensuring compliance with Mauritius’ obligations to safeguard the marine ecosystem.

Nonetheless, international law prevents the designation as a “no-fang zone” in the present case, as it would violate Article 10(c) CBD, which obliges states to “protect and encourage customary use of biological resources in accordance with traditional cultural practices”. Given that the Chagossians have long relied on fishing as an important food source, any new MPA should take this traditional practice into account.

Furthermore, these obligations should be viewed considering the special rights of indigenous peoples, which apply next to the human right to return (Article 12(4) ICCPR). The UK government has systematically sought to portray the Chagossians as non-permanent “contract workers”. However, the Chagossians have continuously inhabited the islands since 1793, have their own language, and engaged in unique cultural traditions characterized by a special connection to the islands. While the definition of “indigenous peoples” remains somewhat ambiguous, the Chagossians distinct culture and traditions justify a classification as indigenous, which also corresponds to their own self-perception.

Under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the Chagossians therefore enjoy the rights to freely pursue the islands’ economic development (Art. 3 UNDRIP), to return to the lands they have been expelled from (Art. 10 UNDRIP) and to hold and develop the territories and resources they have traditionally held (Article 26 UNDRIP). Additionally, engaging them actively in the development of the new MPA (see: Article 18 UNDRIP) could remove the stain of colonialism that is attached to the UK’s MPA.

Albeit merely soft law, the above-mentioned rights largely align with the obligation under Article 10(c) CBD and should be considered when the new MPA is developed. While preserving Chagos’ biodiversity is crucial, the new MPA should emphasize sustainable fishing practices alongside protection of particular habitats and species. Thereby, it would enable the Chagossians to develop the islands without harming efforts at conservation.

Concluding Remarks

The 2010 MPA served mainly as a tool to further the UK’s strategic interests and abused concerns about the maritime ecosystem to continue the UK’s colonial presence. The looming return of the Chagos islands to Mauritius presents an opportunity to create a new protective regime that takes account of the Chagossians resource rights and the need to respect traditional practices.

Since the UK and Mauritius have agreed that the lease for Diego Garcia and its military base will be extended for another 99 years, it may be a long time before the sun truly sets over the British Empire in the Indian Ocean. Nevertheless, the new MPA presents an opportunity to remove some of its vestiges and should emphasize the sustainable use of Chagos’ resources, while also safeguarding its pristine environment. This would be a crucial prerequisite for the resettlement of Chagos.