The impact of the monetary gold principle on the determination of jurisdiction in the mixed maritime disputes

Abstract

Mixed maritime disputes are maritime disputes that involve the concurrent consideration of any dispute concerning sovereignty or other rights over continental or insular land territory, which according to Article 298(1)(a)(i) of United Nations Convention on the Law of the Sea, should be excluded from the jurisdiction of a court or tribunal referred to in Article 287. However, by means of treaty interpretation or consensus of two parties, International Tribunal for the Law of the Sea and other Annex VII tribunals have increasingly broken through the limits to actively exercise jurisdiction. Judgements under the influence of this tendency will be firmly resisted by states whose sovereign interests are damaged. Moreover, these judgements will not only fail to resolve disputes, but will create more serious international law and international political disputes, such as the judgement on preliminary objections of Mauritius v. Maldives delimitation case. In this judgement, the Special Chamber of International Tribunal for the Law of the Sea circumvented the Monetary Gold principle by citing the International Court of Justice advisory opinion and United Nations General Assembly resolution, which had no legally binding force. It is proposed that this judgement could open Pandora's box of challenges to general principles of international law and jurisdiction over sovereignty disputes. For States with mixed maritime disputes to resolve the issues mentioned above, it is necessary to respond to lawsuits actively, avoid adverse consequences caused by default judgements and reach regional consensus, and avoid unfavourable International Court of Justice advisory opinions and United Nations General Assembly resolutions.

Keywords

general principle of international law International Court of Justice advisory opinion

What is mixed maritime dispute

From the perspective of Judge Rüdiger Wolfrum, mixed maritime disputes are maritime disputes that involve the concurrent consideration of any dispute concerning sovereignty or other rights over continental or insular land territory.¹ Undoubtedly, the International Court of Justice (hereinafter ICJ) has jurisdiction over such cases according to Article 36 of its Statute. However, according to Article 298(1)(a)(i) of the United Nations Convention on the Law of the Sea (hereinafter UNCLOS), UNCLOS does not directly give any international judicial institution jurisdiction over territorial sovereignty issues in maritime disputes. But in practice, arbitral tribunals constituted under Annex VII of UNCLOS are increasingly inclined to adjudicate over mixed maritime disputes, such as the Arbitration regarding the Chagos Marine Protected Area (Mauritius v. the United Kingdom)² and the South China Sea Arbitration (The Philippines v. China).³ Moreover, a Special Chamber of the International Tribunal for the Law of the Sea (hereinafter ITLOS), even adjudicates over mixed maritime disputes involving the sovereignty dispute of a third party, such as the Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius v. Maldives) (hereinafter Mauritius v. Maldives delimitation case).⁴

The main reason why ITLOS and other Annex VII tribunals can break through Article 298(1)(a)(i) and exercise jurisdiction over mixed disputes involving territorial sovereignty issues is that other articles of UNCLOS leave a back door for ITLOS and other Annex VII tribunals. For example, Article 288(1) of UNCLOS stipulates that a court or tribunal referred to in Article 287 shall have compulsory jurisdiction over cases concerning the interpretation and application of the Convention. Therefore, disputes over sovereignty or other rights over continental or insular land territory related to maritime delimitation can be formulated as issues of interpretation and application of all the provisions relating to maritime delimitation, such as Part V or Part VI of the Convention on exclusive economic zone or continental shelve.⁵ So that ITLOS and other Annex VII tribunals could exercise compulsory jurisdiction over the case. In the South China Sea Arbitration, the Philippines transformed the unsettled dispute concerning sovereignty or other rights over continental or insular land territory between China in the South China Sea into an interpretation and application of the regime of the island in Article 121 and Article 13 of UNCLOS, in its claim, which was supported by the Tribunal in the Award.^1,³ It is proposed that everything turns in practice not on what each case involves but on how the issues are formulated, which means that formulate them wrongly and the case falls outside compulsory jurisdiction, yet formulate the same case differently and it falls inside.⁶

Since the ICJ stated the principle that ‘the land dominates the sea’ in the 1969 North Sea Continental Shelf judgement,⁷ in some cases, the delimitation of a maritime boundary may necessarily require a decision concerning disputed sovereignty over land.⁶ Therefore, it is proposed that a court or tribunal referred to in Article 287 should exercise jurisdiction over mixed maritime disputes by means of treaty interpretation or consensus of two parties.⁵ Not only will this approach not raise legality issues for jurisdiction, but it is even in line with the principle of effectiveness and enables the adjudicative body in question to truly fulfil its function.¹

However, it is proposed that this argument does not apply to the case involving a third party's interests and without the third party's consent to jurisdiction. There is a general principle of international law recognized by the international community that deals exclusively with cases involving the interests of the third party, which is Monetary Gold principle. The Monetary Gold principle is created by the jurisprudence of the international legal system,⁸ and inspires and finds reflection in various international instruments and has often been referred to in case law.^3,8–12 The core implication of the Monetary Gold principle is that, the jurisdiction of international judicial institutions must be subject to the consent of the contesting parties, which include not only the plaintiff and the defendant but also the third party whose legal interests would form the ‘very subject-matter’ of decisions.^8–10,13 In Mavrommatis Palestine Concessions case, the Permanent Court had considered that it operated ‘bearing in mind the fact that its jurisdiction is limited, that it is invariably based on the consent of the respondent and only exists in so far as this consent has been given’.¹⁴

The reason why international adjudicative institutions should prudently exercise jurisdiction over cases involving the interests of a third party is that once jurisdiction is exercised over cases involving the interests of a third party and without the consent of the third party, it would have a huge negative impact on the legitimacy of the jurisdiction and create a great obstacle to the enforcement of the judgements.^8,15 This impact has already been reflected in the South China Sea Arbitration,²¹⁶ and the authors believe that it will certainly reappear in Mauritius v. Maldives delimitation case.

Of course, the maritime delimitation around the waters of the Chagos Archipelago might not cause the right claims and conflicts as complicated as the maritime delimitation of the South China Sea, which is a sea area with many coastal states. However, as the Chagos contains one of the healthiest reef systems in the cleanest waters in the world, supporting half the total area of good quality reefs in the Indian Ocean,¹⁷ reasonable delimitation based on respecting the interests of all parties is crucial for the maritime protection in the waters of the Chagos Archipelago.

The mixed maritime dispute concerning about Chagos Archipelago between Mauritius and the UK

The history of Mauritius asserting sovereignty over the chagos archipelago to the UK

Mauritius was a colony of the UK before it declared independence in 1968. The Mauritius Constitution Order of 26 February 1964, promulgated by the UK Government, defined the colony of Mauritius in Section 90 (1) as ‘the island of Mauritius and the Dependencies of Mauritius’.¹⁸ In many of the reports that the UK submitted to the Fourth Committee (Special Political and Decolonization Committee) of the General Assembly, the islands of the Chagos Archipelago are referred to as dependencies of Mauritius.¹⁸ In order to facilitate the establishment of a military based on the Chagos Archipelago by the United States (hereinafter U.S.), however, the UK separated the Chagos Archipelago from Mauritius by referring to a new colony, known as British Indian Ocean Territory (hereinafter BIOT) in 1965.¹⁸

Before independence, Mauritius and the UK signed a key agreement on the sovereignty of the Chagos Archipelago and the maritime rights in or near the waters of the Archipelago, which is “the agreement between the United Kingdom and the Mauritius Council of Ministers in 1965 to the detachment of the Archipelago” (hereinafter “the 1965 Agreement”).² In 1965 Agreement, Mauritius had rights in respect of the Chagos Archipelago, such as fishing rights in the waters of the Archipelago, the right to the return of the Archipelago when no longer needed for defence purposes, and the right to the benefit of any minerals or oil discovered in or near the Archipelago.²

After independence in 1968, Mauritius has claimed sovereignty over the Chagos Archipelago since the 1980s. In 2010, the UK unilaterally announced that it would establish a marine protected area around the Chagos Archipelago, which triggered Mauritius to initiate the Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom under Annex VII of UNCLOS.² In the Award of this case (hereinafter the Chagos arbitral award), the Tribunal found that, due to the 1965 Agreement, the UK had violated some of its obligations under UNCLOS, in the process of establishing a marine protected area.² On the other hand, the Tribunal failed to support Mauritius’ claim that the UK was not a coastal State of the Chagos Archipelago and therefore, had no right to establish a marine protected area around the archipelago.² The Tribunal considered that the core issue of Mauritius’ claim was related to a sovereignty dispute between the two parties concerning the Chagos Archipelago, over which the Tribunal had no jurisdiction because the dispute had nothing to do with the interpretation or application of UNCLOS.²

In 2017, the United Nations General Assembly (hereinafter UNGA) adopted Resolution 71/292, requesting the ICJ to render an advisory opinion on the separation of the Chagos Archipelago, from the perspective of decolonization.¹⁹ On 25 February 2019, the ICJ rendered an advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (hereinafter the Chagos advisory opinion). The ICJ was of the opinion that, the decolonization of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination; it followed that, the UK's continued administration of the Chagos Archipelago constituted a wrongful act entailing the international responsibility of that State and the UK was under an obligation to bring to an end its administration of the Chagos Archipelago.¹⁸ On 22 May 2019, UNGA adopted Resolution 73/295, affirming that, ‘the Chagos Archipelago is an integral part of the territory of Mauritius’ and demanding that the UK, ‘withdraw its colonial administration from the Chagos Archipelago unconditionally within no more than six months’ (UN Doc A/RES/73/295).²⁰ Instead of complying with the UNGA resolution, the UK continued to reaffirm its claim to the Chagos Archipelago (ITLOS 2019).²¹ Mauritius took the legal action that initiated the Mauritius v. Maldives delimitation case against Maldives as a defendant in ITLOS, a month after the UNGA resolution was adopted.

The reality of Mauritius's inability to exercise jurisdiction over the waters of the chagos archipelago

Based on geographic ranging information provided by Google Maps, the Chagos Archipelago is located approximately 2200 km from the main island of Mauritius and 630 km from Maladhoo in the Maldives. Even apart from the fact that the UK actually controls the Chagos Archipelago, such a remote distance poses a significant obstacle for Mauritius to regulate the marine environment in the waters of the Chagos Archipelago. None of the 2021 environment statistics provided by Mauritius’ official website is related to the Chagos Archipelago and none of the information about the Mauritian government's tackling illegal activities in the waters of the Chagos Archipelago can be found on Mauritius’ official website, which is also enough to show that Mauritius is currently unable to regulate the marine environment in the waters of the Chagos Archipelago.²²

In contrast, the UK's government published information about its trakling of illegal, unreported, and unregulated fishing in the waters of the Chagos Archipelago on the website of the BIOT.²³ Besides, on the websites of the Indian Ocean Tuna Commission²⁴ and Google Map, the Chagas Archipelago are labelled as BIOT. It can be seen that the current regulation of the marine environment in the waters of the Chagas Archipelago is still undertaken by the UK government.

Analysis of the determinations made by the special chamber in the judgement on preliminary objections of Mauritius delimitation case

In Mauritius v. Maldives delimitation case, the Maldives made five preliminary objections to jurisdiction and admissibility.⁴ The Maldives contended that (a) the UK was an indispensable third party to the proceeding such that its absence deprived the Special Chamber of jurisdiction per the Monetary Gold principle; (b), the Special Chamber otherwise had no jurisdiction to determine the disputed issue of sovereignty over the Chagos Archipelago as between Mauritius and the UK; (c) the Special Chamber lacked jurisdiction because the parties had not engaged in the negotiations required by UNCLOS Article 74 (concerning the exclusive economic zone) and Article 83 (concerning the continental shelf); (d) there was no real dispute between Mauritius and the Maldives concerning the maritime boundary; and (e) Mauritius's claims were inadmissible due to abuse of process.^4,25

The first two objections of the Maldives were the crux of the case, and both of them were related to the legal status of the Chagos Archipelago, so the Special Chamber examined them together.⁴ It began by closely examining the Chagos arbitral award, the Chagos advisory opinion, and UNGA Resolution 73/295. In the view of the Special Chamber, two of the determinations in the Chagos arbitral award were important.⁴ First, the tribunal confirmed that there was a sovereignty dispute over the Chagos Archipelago between Mauritius and the UK, over which it had no jurisdiction.² Second, the tribunal determined that the UK's MPA creation around the Chagos Archipelago breached certain of Mauritius's maritime rights.² Because, before independence, Mauritius and the UK signed a key agreement on the sovereignty of the Chagos Archipelago and the maritime rights in or near the waters of the Archipelago, which is the 1965 Agreement.² In 1965 Agreement, Mauritius had rights in respect of the Chagos Archipelago, such as fishing rights in the waters of the Archipelago, the right to the return of the Archipelago when no longer needed for defence purposes and the right to the benefit of any minerals or oil discovered in or near the Archipelago.²

The Special Chamber next turned to the Chagos advisory opinion. It was of opinion that although the Chagos advisory opinion was aimed at the decolonization of the Chagos Archipelago, the ICJ's determination in the advisory opinion had ‘legal effect’ on the legal status of the Chagos Archipelago, that is, it could apply the advisory opinion as the basis for its own judgement.⁴ The Special Chamber was of the opinion that ICJ's determination that the UK's continued administration of the Chagos Archipelago was “an unlawful act of a continuing character, entailing its international responsibility, and must be brought to an end as rapidly as possible”¹⁸ was sufficient to enable it to conclude that Mauritius has full sovereignty over Chagos Archipelago, despite the existence of the 1965 Agreement and the fact that the Chagos Archipelago has always been actually controlled by the UK.⁴ In order to support its determination, the Special Chamber referred to the UNGA Resolution 73/295.⁴ The Special Chamber believed that the ICJ declined to opine on the means and timeline by which the decolonization process of Mauritius had to be completed, and the UNGA resolution just completed this step, which demanded that the UK should “withdraw its colonial administration from the Chagos Archipelago unconditionally within a period of no more than six months from the adoption of the present resolution”.^4,26 So, the Special Chamber determined that the continued claim of the UK to sovereignty over the Chagos Archipelago cannot be considered anything more than ‘a mere assertion’ and the UK had no legitimate claim to the Chagos Archipelago or interest in the Mauritius v. Maldives proceeding, the Monetary Gold principle could not apply.^4,26 The other three Preliminary Objections are the derivative of the above two. Therefore, after detailed arguments of the above two, the Special Chamber did not focus too much on refuting these three objections.

Based on the reality of the mixed maritime dispute over the Chagos Archipelago between Mauritius and the UK mentioned above, the authors believe that the Special Chamber's determination that the sovereignty dispute has been resolved by Chagos advisory opinion and UNGA resolution 73/295 is not convincing. It is proposed that Mauritius v. Maldives delimitation case is a case that is a mixed maritime dispute involving the interests of a third party and without the consent of the third party, whose judgement on preliminary objections violated the Monetary Gold principle.^26–29

Three issues arising from the circumvention of the Monetary Gold principle by the Special Chamber in dealing with the mixed maritime dispute over the Chagos Archipelago

This paper proposes that the Special Chamber did not make solid theoretical arguments in the process of exercising its jurisdiction over this case; at least, there are a few deficiencies in the legal logic arguments in the judgement on preliminary objections of Mauritius v. Maldives delimitation case.

The special chamber did not refer to previous jurisprudences to circumvent the impact of sovereignty disputes on the jurisdiction of the case

The core issue in Mauritius v. Maldives delimitation case was whether the Maldives could invoke the Monetary Gold principle, which was a prerequisite for the jurisdiction of the Special Chamber.^26,29 Because the main basis for Mauritius’ request for maritime delimitation with Maldives was that Mauritius claimed to have sovereignty over the Chagos Archipelago.⁴ However, Maldives believed that the sovereignty of the Chagos Archipelago was unclear, and the UK still de facto controlled the Chagos Archipelago.⁴ So, whether the UK was an indispensable third party in the case depended on whether the sovereignty dispute between the UK and Mauritius over the Chagos Archipelago had been resolved. Mauritius and the Maldives had diametrically opposed views on this issue. Mauritius contended that the dispute had been settled in its favour, but the Maldives argued that the dispute de facto remained, referring to the Chagos arbitral award and contended that the Special Chamber didn’t have the jurisdiction over this dispute, referring to the Case Concerning East Timor (hereinafter ‘East Timor case’).^2,4,11 How to deal with the res judicata effect of the two cases was the first issue concerning the Monetary Gold principle that the Special Chamber needed to face.

The special chamber confirmed Mauritius’ maritime rights in the waters of the chagos archipelago by citing the 1965 agreement thereby confirming its jurisdiction over this case

The Chagos arbitral award dealt with the question of whether the UK had breached certain obligations under the UNCLOS in the process of establishing a marine protected area, but did not address the dispute concerning sovereignty over the Chagos archipelago.² There are significant differences between the UK, Maldives, Mauritius, and the Special Chamber on how to interpret this judgement.

The UK believed that the Tribunal's finding was not to declare the MPA illegal, but rather that the UK should have consulted Mauritius more fully about the establishment of the MPA, so as to give due regard to its rights.^2,30

The Maldives, argued that this award implies the effect of recognizing that the UK actually controlled the Chagos Archipelago and the sovereignty of the Chagos Archipelago was controversial, and this award had the force of res judicata between the UK and Mauritius in the sense that the UK was authorized to use its rights as a State Coastal Zone under UNCLOS regarding the Chagos Archipelago until the sovereignty dispute was settled.⁴

The Special Chamber did not accept the interpretation of the Chagos arbitral award by Maldives in favour of the UK, but accepted the interpretation of the award by Mauritius.⁴ Mauritius believed that because the arbitral tribunal clarified the fact that it had no jurisdiction over the sovereignty dispute over the Chagos Archipelago in its award, the award has no res judicata on the issue of sovereignty disputes.⁴ The Special Chamber further stated that the conclusions of the arbitral tribunal on Mauritius’ rights concerning the Chagos Archipelago are in accordance with the UK's legally binding commitments in the 1965 Agreement, which may be fruitful in assessing whether to consider Mauritius as a coastal state adjacent or opposite to the Maldives for the purpose of delimiting maritime boundaries.⁴

The authors believe that it was a very wise determination for the Special Chamber to use the 1965 Agreement to confirm its jurisdiction over the maritime delimitation dispute between Mauritius and Maldives. But the Special Chamber did not refer to previous jurisprudences to use the 1965 Agreement to circumvent the impact of the sovereignty dispute over the Chagos Archipelago on the jurisdiction of the case.³¹

The special chamber did not use the 1965 agreement to circumvent Chagos Archipelago sovereignty dispute, but tried to resolve the dispute legally

According to the claims made by the Maldives, the legal situation in this case, was quite similar to the East Timor case, and thus the Special Chamber should follow the ICJ's judgement in the East Timor case by rejecting the Mauritius’ claims as inadmissible.⁴

In the East Timor case, Indonesia was the third party, which entered and controlled East Timor by force for more than ten years.¹¹ Australia considered that the determination of the legality of Indonesia's conduct was a prerequisite for the judgement in this case.³² Without addressing the legality of Indonesia's actions, the issue that, if the treaty it concluded with Indonesia covering the East Timor continental shelf violated international responsibility, couldn’t be resolved.³² Portugal circumvented the question of the legality of Indonesia's actions.¹¹ Portugal only claimed that East Timor was a non-self-governing territory declared by the United Nations.³³ The people of East Timor had the right to national self-determination.³³ Portugal was the ‘administrator’ of East Timor's territory designated by the United Nations and had the right to represent East Timor in the delimitation of East Timor's continental shelf.³³ Australia's conclusion of a treaty on the delimitation of East Timor's continental shelf, was not with Portugal but with Indonesia, and its recognition of East Timor as a province of Indonesia violated the rights of Portugal and the people of East Timor and should bear corresponding international responsibilities_.³³

According to the claims of Portugal and Australia, the key issue to be solved in this case was whether the designation of Portugal as the administrator of the non-self-governing territory of East Timor in relevant UNGA resolutions and Security Council resolutions meant that, only Portugal could exercise sovereign power on behalf of East Timor and other States could only negotiate with Portugal on matters involving East Timor's sovereignty.¹¹ In its judgement, the ICJ supported Australia's claim. Although the relevant UNGA resolutions and Security Council resolutions pointed out that, Portugal was the administrator of East Timor, these facts, ‘could not be regarded as “givens” constituting a sufficient basis for determining the dispute between the Parties.¹¹ It followed from all the foregoing considerations that, the Court would necessarily first have to rule upon the lawfulness of Indonesia's conduct.¹¹ Indonesia's rights and obligations would thus constitute the very subject matter of such a judgement made in the absence of that State's consent, which would run directly counter to the principle according to which ‘the Court can only exercise jurisdiction over a State with its consent”’.³⁴

Indeed, there are many similarities between the East Timor case and Mauritius v. Maldives delimitation case. Both cases are mixed disputes over maritime demarcation and territorial sovereignty.^4,11 Both plaintiffs claimed sovereignty over the disputed territory, but had no actual control over the disputed territory.^4,11 The two defendants are not parties to the territorial dispute but must bear the consequences of the maritime demarcation caused by the territorial dispute. Both defendants, therefore, argued that, under the Monetary Gold principle, without the other party's consent to the territorial dispute, the ICJ or the special chamber of ITLOS shouldn’t assume jurisdiction over the case.^4,11 However, these similarities did not lead the judges in Mauritius v. Maldives delimitation case to the same determination as in the East Timor case. The reason lies in the differences between these two cases.

The most significant difference between these two cases is that, in Mauritius v. Maldives delimitation case, the UK and the Mauritius Council of Ministers concluded an agreement on Mauritius’ maritime rights before the independence of Mauritius, which is the 1965 Agreement.^2,4 In the 1965 agreement, Mauritius had rights related to the Chagos archipelago, i.e. fishing rights in the archipelago's water, the right of return from the archipelago when it is no longer required for defence purposes and the right to the benefit of oil or ore discovered near or in the archipelago.^2,4 Therefore, the Special Chamber could exclude the sovereignty dispute over the Chagos archipelago and exercise its jurisdiction over any dispute over maritime demarcation based solely on Mauritius’ maritime rights in the archipelago waters.⁴ In the East Timor case, however, it is clear that there was no similar agreement that would allow Portugal to still participate as a coastal state in the East Timor-related dispute over the maritime delimitation, without actual control over East Timor. Indonesia was therefore an indispensable third party in the case as the effective controller of East Timor.² Indonesia's occupation of East Timor was the very subject matter in the application of the Monetary Gold principle.²

Precisely because of this significant difference between these two cases, the Special Chamber in its judgement, did not respond to the part of the claims made by the Maldives related to the East Timor case, but focused on the impact of the Chagos advisory opinion and Resolution 73/295 on the disputes concerning sovereignty over the Chagos archipelago. It is proposed that using Chagos advisory opinions and UNGA resolution 73/295 as the basis for the judgement complicates simple issues and deviates from the previous jurisprudences of circumventing sovereignty disputes to make judgements more enforceable. The effectiveness of this approach is doubtful.

4.2 The special chamber could use ICJ advice opinion and UNGA resolution as a basis for judgement, but the effectiveness is doubtful

In Mauritius v. Maldives delimitation case, in order to refute the jurisdiction objections raised by the Maldives, Mauritius contended that the Chagos advisory opinion and UNGA resolution 73/295 had already resolved the sovereignty dispute over the Chagos Archipelago.⁴ Thus, the UK was not an indispensable third party in the case, and the Special Chamber did not need to apply the Monetary Gold principle to decline its jurisdiction in this case.⁴ The Special Chamber made the judgement in favour of Mauritius. It is proposed that the Special Chamber could use Chagos advisory opinion and UNGA resolution 73/295 as a basis for judgement, but the effectiveness is doubtful.

Reasons given by the special chamber for using the ICJ advisory opinion and the UNGA resolution as the basis for the judgement

The Special Chamber mentioned citing Chagos advisory opinion as the basis for its judgement because, while the ICJ's advice had no force of law, it contained a statement from international law authority on the issues it deals with.⁴ The Special Chamber demonstrated its view from two aspects. First, the ICJ advisory opinion and ICJ judgement were made with the same rigour and scrutiny, so, ‘judicial determinations made in advisory opinions carried no less weight and authority than those in judgements’.⁴ Second, the Court of Justice of the European Union (hereinafter ‘CJEU’) cited the ICJ advisory opinion as a basis for its judgement.⁴ The Special Chamber noted that the CJEU did not suggest that ICJ advisory opinion was ‘binding’, however, it attached due importance to the legal and factual determinations made by the ICJ in its advisory opinions (ITLOS, 2021).⁴ The Special Chamber, referred to the practice of CJEU, recognized those determinations of the Chagos Advisory Opinion, and considered them in assessing the legal status of the Chagos Archipelago (ITLOS, 2021).⁴

Why the reasons given by the special chamber are not convincing

First, the Chagos advisory opinion has never identified the sovereignty of the Chagos Archipelagic.^18,25 The Chagos advisory opinion only determined that the UK's administration over the Chagos Archipelago was not legitimate and demanded that the UK should terminate its administration, but did not require the UK to transfer its sovereignty over the Chagos Archipelago directly to Mauritius.^18,25,35 The legal basis for the ICJ's decision is Article 1 and Chapter XI of the UN Charter and UNGA resolutions on decolonization.¹⁸ The ICJ found that the main reason for the UK's violation of international law, in this case, was that the UK's administration over the Chagos Archipelago ‘was not based on the free and fair expression of the individuals’ will’¹⁸; therefore, it violated the right to self-determination of peoples.¹⁸ The means of enforcing or executing the self-determination right in a non-self-governing territory, such as the Chagos Archipelago, were set out in UNGA resolution 1541 (XV), principle VI, which states that ‘A non-self-governing territory can be said to have attained a full degree of self-government by (a) free association with an independent state; (b) emergence as an independent sovereign state; or (c) Integration into an independent state’.¹⁸

Therefore, it is suggested that according to UNGA resolution 1541 (XV), the decolonization of the Chagos Archipelago by self-determination will have many results. The return of the Chagos Archipelago to Mauritius is not the only option, joining the UK is also a possibility.²⁵ During the decolonization process of non-self-governing territories, it is not uncommon for a non-self-governing territory to join the overlord, as in the case of Hawaii and French Guiana.³⁶ Therefore, although the ICJ determined that the UK's administration over the Chagos Archipelago was not legitimate, the UK also has the opportunity to legalize its rule over the Chagos Archipelago by self-determination. So, it is proposed that the Chagos advisory opinion did not really resolve the mixed maritime dispute over the Chagos Archipelago.

Second, the UNGA resolution 73/295 resolved the sovereignty dispute over the Chagos Archipelago, but the Special Chamber couldn't use the UNGA resolution 73/295 as the legal basis for its judgement. As we all know, the ICJ advisory opinion and UNGA resolution are not legally binding on any state.^4,37 The Special Chamber was also aware of this problem, so when citing the UNGA resolution as the basis for its judgement, it specifically emphasized that it did not believe that paragraph 7 of UNGA Resolution 73/295 required it to support Mauritius’ claims.⁴

Therefore, to circumvent this problem, the Special Chamber thus referred to Portugal's practice in the East Timor case and regarded the Chagos advisory opinion and the UNGA resolution 73/295 as ‘givens’.^11,28,38,39

In the East Timor case, Portugal argued that Security Council and UNGA resolutions should be considered as ‘givens’. The ICJ found that the resolution of the Security Council was only binding on Portugal and what's more, UNGA had not always supported Portugal's proposition on the East Timor issue.¹¹ Thus, the sole fact could not be regarded as ‘givens’.¹¹ Or in other words, it is proposed that only when all facts pointed to the same result, the facts could be used as ‘givens’. Although ICJ did not support Portugal's claim in the East Timor case, in Mauritius v. Maldives delimitation case, the Special Chamber learned from Portugal's claim and took the Chagos advisory opinion and the UNGA resolution 73/295 as ‘givens’.

The advantage of regarding judicial determinations without binding force, for example ICJ advisory opinion or UNGA resolution, as a ‘given’ is that, judicial determinations without binding force can be used as the factual basis for a judgement, circumventing the international consensus that ICJ advisory opinion and UNGA resolution have no binding force. The disadvantage of this approach is, however, also obvious. When there are other facts with opposing content, ICJ advisory opinion or UNGA resolution cannot be used as a ‘given’ but only as fact. Two facts that are contrary to each other obviously cannot be used as ‘givens’ for a judgement. In this case, not all the facts pointed to the same result. UK's administration over the Chagos Archipelago is the fact that is contrary to the Chagos Advisory Opinion and UNGA resolution 73/295. So, the Special Chamber could neither employ the Chagos advisory opinion and UNGA resolution 73/295 as the legal basis for its judgement, nor as ‘givens’ for its judgement. To sum up, on the premise that the Chagos advisory opinion has not resolved the legal issues of the Chagos Archipelago sovereignty dispute, the effectiveness of the UNGA resolution 73/295 as the factual basis for the judgement is questionable.

The chagos advisory opinion and UNGA resolution 73/295 did not resolve the sovereignty dispute so the monetary gold principle should be applied

It is proposed that when the maritime delimitation dispute between Mauritius and Maldives was not based on the maritime rights which had already been transferred by the UK in the 1965 agreement, but on the legal status of the Chagos Archipelago, the sovereignty dispute over the Chagos Archipelago was definitely the ‘very subject-matter’ of this case. The key issue to be discussed at this time is whether the fact that the UK de facto occupied and administrated the Chagos Archipelago and denied Mauritius’ sovereignty over the Chagos Archipelago revealing that there was still a sovereignty dispute that should be applied the Monetary Gold principle, after the adoption of the Chagos advisory opinion and UNGA resolution 73/295.

As mentioned above, in the ruling on preliminary objections in Mauritius v. Maldives delimitation case, the Special Chamber accepted Mauritius’ request to no longer allow a dispute concerning sovereignty between the UK and Mauritius.⁴ The result was that the UK's persistent sovereignty claim over the Chagos Archipelago could not be regarded as anything more than ‘a mere assertion’.⁴ Nevertheless, such a claim does not prove the existence of ‘a dispute’.⁴ It is suggested that, if the Special Chamber were to consider Chagos advisory opinion and UNGA Resolution 73/295 as the factual basis but not the legal basis for the judgement, the Special Chamber's decision on the question of whether the UK and Mauritius had a sovereignty dispute is unconvincing.

The classification that Chagos advisory opinion and UNGA resolution 73/295 could be considered as factual basis or legal basis has obvious influence on the process of judicial proof (Twining W., 1984).⁴⁰ In the process of judicial proof, the judge can actively interpret and apply the law, and for the factual basis of the judgement, the judge should also judge the probative force of evidence submitted by the parties (Allen R. J., 1994). In this case, if the Chagos advisory opinion was used as the legal basis for the judgement, the Special Chamber would have the discretion to determine the legal status of the Chagos Archipelago, while if the Chagos advisory opinion was used as the factual basis, it would be necessary to verify whether there was evidence to the contrary. But it can be seen that the Special Chamber deliberately ignored the evidence to the contrary, which is that the Chagos Archipelago is actually controlled by the UK_.²¹ Throughout its judgement, the Special Chamber did not discuss the legal impact of the fact that the UK's occupation of the Chagos Archipelago would have on the issue of the litigability of the maritime delimitation dispute between Mauritius and Maldives. Instead, it directly assumed that Mauritius enjoyed the sovereignty of the Chagos Archipelago and could effectively manage the Chagos Archipelago.⁴ Therefore, it is proposed that the set criteria must analyse the existence or non-existence of a sovereignty dispute to determine the existence of disputes.

Three principles for assessing such criteria—the existence of a dispute—can be determined under the judgements of the ICJ. First, a dispute is a conflict of legal interests or views between the parties involved, or a disagreement about a fact or point of law.^41,42 Second, ‘the existence of an international dispute is a matter of objective determination’, which is the jurisdiction of the Court.^43,44 To this end, the decision of the Court must be based on an in-depth consideration and examination of the relevant facts. It is also noteworthy that it is a matter of content, not form.⁴⁴ Third, the Court must consider a wide range of evidence, including documents or statements exchanged between the parties on various occasions.⁴⁴ At the same time, the Court should pay attention to the true intent of the statements or documents.⁴³

If employing these three principles to analyse the determination by the Special Chamber to the issue as to whether there was a dispute between Mauritius and the UK, it is found that the Special Chamber tried its best not to reveal the fact that there was a dispute between Mauritius and the UK, in order to exercise its jurisdiction over this case.

First, there is a clear conflict and disagreement between the UK and Mauritius over the sovereignty of the Chagos Archipelago in terms of law and fact. Mauritius claimed sovereignty over the Chagos Archipelago based on the 1965 Agreement, the Chagos advisory opinion and UNGA resolution 73/295. However, the UK believed that its sovereignty over the Chagos Archipelago had existed since 1814 and voted against UNGA Resolution 73/295.²¹ The Chagos advisory opinion and UNGA resolution 73/295 are non-binding in nature, so they have never legally resolved the Chagos Archipelago sovereignty dispute. Since these two documents cannot resolve the sovereignty dispute at a legal level, they cannot resolve the sovereignty dispute at a factual level. In fact, the UK controls the Chagos Archipelago.^21,30 Compared to the UK, Mauritius’ sovereignty claim over the Chagos archipelago looks more like ‘a mere assertion’. So there is indeed a conflict of rights and interests between the UK and Mauritius.

Second, the Special Chamber determined that following the Chagos advisory opinion and UNGA resolution 73/295, the UK's claim to sovereignty was ‘a mere assertion’ and that such a claim did not prove the existence of a dispute.⁴ It is suggested that this decision was based entirely on form rather than fact. In the East Timor case, assuming that Portugal had already lost control of East Timor, the ICJ determined that there was a dispute between Portugal and Australia. Where the UK actually controls the Chagos Archipelago, it is unreasonable to state that the UK's sovereignty claim over the Chagos Archipelago is still ‘a mere assertion’.

Third, the UK has never said it will abide by UNGA resolution 73/295 and the Chagos advisory opinion to end its governance over the Chagos Archipelago. Therefore, according to the criteria for the existence of the dispute given by ICJ's judgements, there is indeed a dispute between Mauritius and the UK. The Monetary Gold principle should be applied in this case.

How should states with mixed maritime dispute respond to the trend of international judicial institution actively exercising jurisdiction

It is perceived that, the Special Chamber shows the tendency of ITLOS to actively exercising jurisdiction in judgement on the preliminary objections of Mauritius v. Maldives delimitation case. The judgement, in this case, may affect ITLOS’ determination of jurisdiction issues in future cases. Indeed, there are many special features of this case, which might make it difficult for the judgement of this case to form res judicata for future cases. Prior to the judgement of the Monetary Gold case forming the Monetary Gold principle, some scholars also believed that the situation of the Monetary Gold case was exceptional, the case not being ‘confined to the interpretation of the technical clauses of the relevant instruments without providing an occasion for a decision on wider issues of international law’.^45,46 But in fact, the Monetary Gold principle has already become one of the general principles of international law.⁸

Moreover, it is perceived that international judicial institutions are increasingly active in exercising jurisdiction.⁴⁷ This tendency not only can be seen in disputes over maritime rights but also in disputes of WTO and ICC decisions on the prosecutor's request related to territorial jurisdiction over Palestine. In the panel report of WTO, Article XXI(b)(iii) of the GATT 1994, which is the security exception clause that had been considered beyond the jurisdiction of the panel, was interpreted and applied for the first time by the panel in Russia-Traffic in Transit.⁴⁸ In the ICC decision, Palestine's being considered as “[t]he State on the territory of which the conduct in question occurred” under Article 12(2)(a) of the Rome Statute as well as to the point that the Court's territorial jurisdiction in the situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.^39,49

It is, therefore, suggested that, the States with mixed maritime disputes can respond to the trend of international judicial institution actively exercising jurisdiction can by using the right of intervention.

It is proposed that the ITLOS actively exercising jurisdiction is in tension with the Monetary Gold principle. If ITLOS blindly exercises its jurisdiction and ignores the protection of the legal interests of third parties, the legitimacy and compliance of ITLOS judgement will be significantly challenged.⁵⁰ Although the ITLOS judgement under Article 296 of UNCLOS in theory, only binds the parties, ITLOS cannot prevent the ruling of the case from indirectly affecting the legal interests of third parties, i.e. decisions of other non-parties to comply with the ITLOS judgement.⁵⁰ The result is that, in order to guarantee the legitimacy of ITLOS judgements, ITLOS must allow third parties, whose interests may be affected by the decision in any dispute, to intervene in the proceeding through Article 31 of Annex 6 of UNCLOS.

Similar to Article 62 of the ICJ Statute, Article 31 of Annex 6 of UNCLOS also gives a third party the right to intervention. Theoretically, both the Monetary Gold principle and the right to intervene, as reflected in Article 62 of the ICJ Statute, are intended to protect the third party's legitimate interests. The difference between the two is that the Monetary Gold principle tries to deny the jurisdiction of the ICJ, while Article 62 of the ICJ Statute guarantees the ICJ jurisdiction by giving the third party the right to intervene.⁵¹ The Court represents the legal interests of third parties by declaring itself incompetent for the following two reasons. First, the power is subject to consent. Second, the third party has proper procedural rights. When the Court finds that the procedural rights of the third party are more important than the parties’ procedural rights to the dispute, the Court tends to apply the Monetary Gold principle.⁵⁰ On the contrary, the Court would prefer to apply Article 62 of the Statute of the ICJ to allow third parties to intervene in the proceedings.⁵⁰ Therefore, in Mauritius v. Maldives delimitation case, ITLOS disregarded the third party's lack of consent and exercised jurisdiction over the case, which might mean ITLOS considers the fair trial rights of the parties to the dispute to be more important than the procedural rights of the third party, or in other words, ITLOS is increasingly active in exercising jurisdiction.

When ITLOS actively exercises jurisdiction and extends it to the third party, it should also allow the third party to actively exercise the right of interference to intervene in the proceedings. Although according to existing case law, it is difficult for third parties to exercise the right to intervene successfully. However, it is suggested that the right to intervene is the most effective means for third parties to protect their own legal interests in the ITLOS jurisdiction process.⁵² Any state whose interests are at the centre of the dispute, even involving the Monetary Gold principle, must readily meet the requirements of Article 31 of Appendix 6 of UNCLOS to be allowed to intervene.⁵⁰

Conclusion

In Mauritius v. Maldives delimitation case, it can be seen that the Special Chamber could circumvent the impact of the Chagos Archipelago sovereignty dispute on the case through the 1965 agreement, but the Special Chamber introduced this sovereignty dispute into the case again by adopting the Chagos advisory opinion and the UNGA resolution 73/295. Since the Chagos advisory opinion and UNGA resolution 73/295 have no binding force, they have never de facto resolved the Chagos Archipelago sovereignty dispute. So from the perspective of whether the UK and Mauritius have a sovereignty dispute, the UK is still the indispensable third party in this matter. It can, thus, be seen from the judgement on preliminary objections of this case that ITLOS tries to avoid the application of the Monetary Gold principle, which shows the trend of ITLOS actively exercising jurisdiction. This trend can be seen not only in ITLOS, but also in other international judicial institutions. To deal with this situation, for States with mixed maritime disputes, it is necessary to actively respond to lawsuits, avoid adverse consequences caused by default judgements.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Mehran Idris Khan

Notes

Author biographies

Boyu Liao is an associate professor of law at the law school of Dalian Maritime University. His area of research is international law.

Mehran Idris Khan is a Postdoctoral fellow at the law school of Dalian Maritime University. His area of research is international law focusing on international environmental law and maritime laws.

Yen-Chiang Chang is a Professor of International law at the law school of Dalian Maritime University. His area of research is international law.

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