Republic of Mauritius v United Kingdom

• Jurisdiction: Derecho Internacional
• Judge: Wolfrum,Kateka,Hoffmann,Greenwood,Shearer
• Date: 18 March 2015
• Court: Arbitration Tribunal (International)

Arbitration Tribunal2

(Shearer, President; Hoffmann, Kateka and Wolfrum, Members)

(Shearer, President; Greenwood, Hoffmann, Kateka and Wolfrum, Members)

(Chagos Marine Protected Area)

Republic of Mauritius

and

United Kingdom1

Arbitration Arbitration tribunal Composition Challenge to arbitrator Appearance of impartiality and independence Prior representation of party in matters unconnected with arbitration Participation in board selecting legal adviser Whether creating appearance of bias Applicable standard in inter-State arbitration United Nations Convention on the Law of the Sea, 1982 Dispute settlement before International Court of Justice, International Tribunal for the Law of the Sea or Annex VII arbitration Whether standard of impartiality and independence the same for all three methods of settlement

Arbitration Jurisdiction United Nations Convention on the Law of the Sea, 1982 Disputes concerning interpretation or application of the Convention Characterization of dispute Matter for the tribunal Proclamation of marine protected area (MPA) Whether State proclaiming MPA the coastal State Whether dispute concerning sovereignty over land Whether tribunal established under Convention possessing jurisdiction to decide on land sovereignty

Environment Marine environment Marine protected area (MPA) Nature of MPA Whether concerned exclusively with fisheries or pollution Effect on rights of other States Chagos Islands Proclamation by United Kingdom of MPA around Islands Rights of Mauritius Fishing rights Rights to oil and minerals Right of reversion Consultation Whether establishment of MPA compatible with United Nations Convention on the Law of the Sea, 1982

General principles of international law Good faith Abuse of rights Duties of States under United Nations Convention on the Law of the Sea, 1982 Duty to conduct international relations in good faith Evidence of improper motive Estoppel

Human rights Self-determination Decolonization Mauritius Independence of Mauritius from the United Kingdom Detachment from Mauritius of the Chagos Islands Whether contrary to right of self-determination Whether genuine consent to detachment of Islands Rights of population of the Islands

International organizations United Nations General Assembly Self-determination and decolonization Role of General Assembly Independence of Mauritius Detachment from Mauritius of Chagos Islands prior to independence Condemnation by General Assembly

International tribunals Procedure Documents Redacted documents disclosed in national proceedings Proposal to use documents in inter-State proceedings Whether unredacted versions should be disclosed Criteria for non-disclosure Procedure for determining whether redactions justified

Sea Law of the Sea United Nations Convention on the Law of the Sea, 1982 Marine protected area (MPA) Fishing rights Territorial sea Exclusive economic zone Articles 2(3), 56(2), 194 and 300 Coastal State Duty of coastal State to have due regard to rights of other States Proclamation of MPA by United Kingdom around Chagos Islands Whether sufficient account taken of rights of Mauritius Whether sufficient consultation Whether contrary to United Kingdom's obligations under Convention

Territory Colonial territory Principle of territorial integrity Dependency of colony Mauritius Chagos Islands Detachment of Chagos Islands prior to independence of Mauritius from United Kingdom Whether contrary to international law

Treaties Nature of treaties Agreement between United Kingdom Government and government of British colony Whether governed by international law Undertakings by United Kingdom Government as part of path to independence Role of undertakings in the consideration for agreement of colonial government to detachment of territory Mauritius Detachment of Chagos Islands prior to independence Reaffirmation of undertakings by United Kingdom Whether undertakings binding upon United Kingdom under international law

Summary:The facts:The Chagos Islands were an archipelago of coral atolls in the central Indian Ocean (see Map 1.1, [162 ILR 77]), the largest island of which was Diego Garcia (see Map 1.2, [162 ILR 78]). Between 1814 and 1965 they were administered as a dependency of Mauritius, a British colony until it became independent in 1968. During 1965 the United States expressed an interest in establishing a base on Diego Garcia. In the course of the constitutional conference held at Lancaster House, London, on the future of Mauritius, the United Kingdom Government requested the Government of Mauritius to agree to the separation of the Chagos Islands from Mauritius. In that connection, the United Kingdom Government gave a number of assurances to the Government of Mauritius (the Lancaster House undertakings).3 The Lancaster House undertakings included assurances that Mauritius would be paid compensation, that the islands would revert to Mauritius when no longer needed for defence purposes, that the benefit of any oil or minerals would accrue to Mauritius and that the United Kingdom would use its good offices with the United States Government to ensure that fishing rights would remain available to Mauritius.

The Government of Mauritius indicated its consent to the detachment of the Islands on these terms

The detachment of the Chagos Islands from Mauritius was accomplished by an Order in Council adopted in November 1965, after which the Islands were administered by the United Kingdom as the British Indian Ocean Territory (BIOT). During the next six years the population of the islands was removed, most being required to resettle in Mauritius, and a large military base was constructed on Diego Garcia. From 1975 former residents of the Islands and their descendants pursued a series of actions through the English courts and the European Court of Human Rights seeking compensation and a right to return to their former homes on the Islands.4

Since at least 1980 the Government of Mauritius claimed that consent to the 1965 excision of the Islands was not given voluntarily and that Mauritius had sovereignty over the Islands. These claims were resisted by the United Kingdom. The United Kingdom Government, however, reaffirmed the Lancaster House undertakings. In particular, a regime was established for licensing Mauritian fishing vessels when conservation zones were established around the Islands. Moreover, a series of talks were held between Mauritius and the United Kingdom regarding fisheries on the basis that these talks were without prejudice to the sovereignty dispute.

In early 2009 the United Kingdom Government began to consider the establishment around the Chagos Islands of a marine protected area (MPA) in which all fishing would be prohibited. The proposed MPA was then discussed between the United Kingdom and United States governments and the United Kingdom gave certain assurances to the United States that the proclamation of an MPA would not affect the operation of the United States military base on Diego Garcia. The MPA proposal was also discussed at bilateral talks between Mauritius and the United Kingdom in July 2009 and in a number of diplomatic exchanges, including a meeting between the Prime Ministers of the two countries during the Commonwealth Heads of Government Conference in November 2009. Mauritius expressed its opposition to the establishment of an MPA and repeated its claim to sovereignty over the Islands. Between November 2009 and March 2010 the United Kingdom conducted a public consultation regarding the MPA proposal, during which the majority of those participating expressed support for the establishment of an MPA in which all fishing was prohibited. Shortly after receiving the results of the consultation, and on the eve of elections in both Mauritius and the United Kingdom, the United Kingdom Government declared the establishment of the MPA on 1 April 2010. Mauritius commenced proceedings against

the United Kingdom under Article 287 and Annex VII of the United Nations Convention on the Law of the Sea (the Convention)

Constitution of the Tribunal and the Challenge to an Arbitrator

Mauritius appointed Judge Rdiger Wolfrum as a member of the Tribunal. The United Kingdom appointed Judge Christopher Greenwood. As the Parties were unable to agree on the appointment of the remaining members of the Tribunal, the President of the International Tribunal for the Law of the Sea (ITLOS) appointed Professor Ivan Shearer as President, and Judges Albert Hoffmann and James Kateka as Members.

Mauritius challenged the appointment of Judge Greenwood on the grounds that, before he became a Judge of the International Court of Justice in January 2009, Judge Greenwood had represented the United Kingdom Government in a number of cases before international and English courts and that, in April 2011, Judge Greenwood had been a member of the appointments board which had selected a new Legal Adviser for the Foreign and Commonwealth Office. While it was not suggested that Judge Greenwood was in fact biased, Mauritius maintained that these circumstances created an appearance of partiality.

The challenge was heard by the four remaining members of the Tribunal.

Held (unanimously):The challenge to Judge Greenwood was dismissed. (1) Arbitrators in proceedings under the Convention should enjoy the highest reputation for fairness, competence and integrity, and there should be no circumstances that might give rise to justifiable doubts as to the arbitrators' impartiality and independence. In deciding whether that test was met, the applicable law was that found in Annex VII of the Convention, supplemented by the law and practice of international courts and tribunals in inter-State cases. A party challenging an arbitrator had to demonstrate and prove that, applying those standards, there were justifiable grounds for doubting the independence and impartiality of the arbitrator. The Convention provided for three different means of dispute resolution: by the...