In a Special Speech delivered on 17 May 2012, the Khalifatullah Hadhrat Munir Ahmad Azim Sahib (atba) of
Mauritius spoke succinctly on a range of world and national issues, and
religious and political developments.
The Speech was made in the backdrop of
Divine Revelations and it included many comments that were prescient and
prophetic, waiting to be unveiled in the fullness of time. Almost three years
down the timeline from that Speech, it is astonishing to reflect on the
extraordinary Light of Truth the short document represents in many ways. For instance, the fall of the then political regime at the hands of the people and the unravelling of its corrupt deeds were clearly foretold in a revelatory language familiar to the readers of the Qur'an where (future) events are described in phrases denoting something that has already taken place:
"Only Allah can
“dethroned” them (the present Government) and bring them to their destruction,
towards their great humiliation and in such a way that the people
(citizens of Mauritius) turn against them. Thereafter we shall
come to know how many frauds and corruption were done during their mandate".
In a previous article in this series, we have already noted
how the judicial system in Mauritius is indeed seeking to catch up with the
former Prime Minister Navin Ramgoolam and his coterie of men and women for their unlawful
activities and criminal offences. For reading the same, click here. In this article, we shall seek to
unravel yet another issue discussed on the occasion of the Special Speech-
the then raging national debate over the effectiveness of the government's strategies to regain possession over the Chagos Islands, over which Mauritius
has, for long, raised historic title and legal claims; though in reality and in
fact, these islands remain the British-administered island territories in the
Indian Ocean.
The Prime Minister’s ‘posturing’ on the Chagos Dispute
It is strikingly
instructive to note that the Special Speech was also made in the contextual
backdrop of the political posturing of the then Prime Minister of Mauritius,
Mr. Navin Ramgoolam, who was trumping his ‘patriotic’ fervour over the national
media: that he was seeking to re-establish effective national sovereignty over the
Chagos Island through international court procedures. Without full disclosure
on the complex legal situation where the matrix of facts and law requiring
evidentiary backing would invariably entail enormous legal costs and also the
possibility that the potential benefits of the proposed initiative to approach
the international tribunals on the dispute could be of limited range, the Prime
Minister hoodwinked the nation on perceived benefits through hammering on
certain selective facts and the legal procedures.
The Khalifatullah (atba) on the Chagos Question
In a political and
financial context where the governmental subsidy for politically expedient,
populist programmes had become a major strain on the resource-base of the
Mauritius national economy, the Speech of the Khalifatullah (atba) underscored
the need for avoiding the wastage of precious national resources through wrong
policy choices. In a searing indictment of the lop-sided priorities of then
Prime Minister, the Khalifatullah (atba) questions the real motivations behind
the ‘official foreign tours’ of the PM and the wasteful expenditures it
entailed for the country. Given that the international arbitration proceedings would
further entail the national exchequer to release millions of dollars in terms
of legal and administrative costs, the concern was that the PM was committing
the country to a course of legal action abroad which was uncertain of achieving
the professed national purposes.
In the backdrop of the PM’s ‘political
posturing’ on the Chagos Islands dispute, the Khalifatullah (atba) clearly
viewed it as one of the ways in which the then PM was seeking to “fool” the
common people by hiding behind national aspirations and sovereign claims over
the territory.
He
goes on to unambiguously predict that the
litigation shall not attain its objective the Prime Minister had set out -
to regain possession over the Chagos Islands from the UK. The Speech is available here.
To summarize, with regard to the
dispute over the Chagos Archipelago between Mauritius and the UK, the Khalifatullah (atba) made the following
central points in his Speech of May 17, 2012:
(i) Chagos once belonged to Mauritius
(ii) Sir Seewoosagur Ramgoolam, father of
the then PM Navin Ramgoolam, played a significant role in the detachment of the
Chagos from Mauritius, to the British administration.
(iii) Britain has established certain rights
over the Islands.
(iv) The current legal procedures and cases
will not be fruitful, in terms of Mauritius regaining possession over the disputed
territory of Chagos Islands.
Chagos Arbitration Award of 18 March 2015
On 18th March 2015, the Tribunal constituted under Annex VII of
the United Nations Convention on the Law of the Sea (the “Convention”)
in the matter of the Chagos Marine Protected Area Arbitration, between the Republic of Mauritius and
the United Kingdom of Great Britain and Northern Ireland, announced
its Award. For the Award, click here.
The
arbitration proceedings were instituted by the Republic of Mauritius in the
wake of the establishment by the United Kingdom on 1 April 2010 of a Marine
Protected Area (“MPA”) around the Chagos Archipelago, an area that is
presently administered by the United Kingdom as the British Indian Ocean
Territory, over which the Republic of Mauritius has long claimed sovereignty
and historic rights.
In its Award of 18 March 2015, the Tribunal essentially
addressed four main legal issues that were put to it by the competing claimants.
For, the Parties differed between themselves, on questions ranging from the
competence of the Tribunal to adjudicate on the matters at dispute to the very
characterization of the nature of the dispute between the two Parties. The main
legal questions at dispute may be summarized as follows:
Mauritius made
four submissions, requesting the Tribunal to find that: (1) the
United Kingdom is not entitled to declare an MPA or other maritime zones
because it is not the “coastal State” for the purposes of the Convention; (2) given the commitments that it made to
Mauritius, the United Kingdom is not entitled unilaterally to declare an MPA or
other maritime zones because Mauritius has rights as a “coastal State” for the
purposes of the Convention; (3) the United Kingdom may not prevent the
Commission on the Limits of the Continental Shelf from acting on any submission
that Mauritius may make regarding the Chagos Archipelago; and (4) the MPA
is incompatible with the United Kingdom’s substantive and procedural
obligations under the Convention and the UN Fish Stocks Agreement.
Given the complex background of Mauritius-UK colonial relations and the associated political negotiations in the prelude to the detachment of the Islands from, and granting of, independence to the remaining territories of Mauritius in 1968 and also the subsequent developments, Mauritius found it expedient to invoke the authority of the International Tribunal (with a mandate to adjudicate on disputes arising out of the interpretation or application of the UN Convention on the Law of the Sea (UNCLOS, 1982)) to adjudicate on the diverging matters between the Parties. Through the submission of these legal questions, Mauritius
challenged the sovereign authority of the United Kingdom (which administers the
Chagos Island as part of its British Indian Ocean Territories) in its purported
establishment of a Marine Protection Area in and around the Islands, in the
year 2010 by seeking a legal determination
on the disputed question as to the identity of "the coastal state" for the
purposes of the UNCLOS.
From the nature of the submissions/legal claims presented,
it is apparent that Mauritius was advancing the legal argument that the sovereign authority to declare an MPA (Marine Protection Area) in and around the Chagos Islands would directly emerge and flow only from being "the coastal state" in question, in a context where the
issue of its claims of sovereignty is inextricably intertwined with the determination of the identity of the coastal state. The Tribunal in its Award, however, took the majority view
that the legality of the MPA purported to have been established by the UK in and
around the Chagos lslands in 2010 could be segregated from the larger dispute
over territorial sovereignty between the two countries, a dispute that has its
origins in the alleged illegality surrounding the colonial power’s detachment
of the Islands prior to the granting of independence to the Republic of
Mauritius.
Mauritius, thus,
did not succeed in getting the Tribunal to pronounce on this crucial question
of the alleged illegality of the detachment of the Islands by the UK. The
Tribunal viewed the first two questions raised by Mauritius as pointing to the
dispute over sovereignty-issues beyond the scope of its jurisdiction. As a
Tribunal with a mandate only to look into questions of interpretation or
application of the UN Convention on the Law of Sea and its provisions, the
Tribunal determined that in the circumstances of the case, the determination of
identity of the coastal state does not amount to a question within the scope
its mandate as any such determination cannot be separated from the sovereignty
question and as such, the Award refused to answer the questions on merits. The
third question was also not found to be of worthy of substantive consideration
as there is no standing dispute between the Parties at this point of time and
consideration of a futuristic/hypothetical questions would be juridically
premature and unnecessary.
On the fourth question regarding the compatibility of the
unilateral declaration of the MPA by the UK, with its international legal
obligations under the Law of the Sea and other applicable rules, the
Arbitration Award upheld that the UK was obliged to have due regard for the
interests and rights of Mauritius and to
act in good faith with respect to the terms of the
political undertakings that were drawn up in the negotiations with the
Mauritius leaders at the time of the negotiations leading to the detachment of
the Chagos islands. Mauritius was successful in persuading the Tribunal to
agree with its arguments on the binding nature of the “Lancaster House
Undertakings” of September 1965, the outcome of the political negotiations
leading to the eventual detachment of the Chagos Islands. Hence, the United
Kingdom’s undertaking to ensure that fishing rights in the Chagos Archipelago
would remain available to Mauritius as far as practicable is legally binding
insofar as it relates to the territorial sea. Secondly, the United Kingdom’s
undertaking to return the Chagos Archipelago to Mauritius when no longer needed
for defense purposes is also held to be legally binding and finally, the undertaking
to preserve the benefit of any minerals or oil discovered in or near the Chagos
Archipelago for Mauritius is also held to be legally binding.
Reviewing
the record of events from February 2009 to April 2010, the Tribunal found that
the United Kingdom engaged far less with Mauritius in consultations regarding
the proposed MPA and the absence of sufficiently reasoned exchanges between the
Parties. Despite creating reasonable expectations that Mauritius would have
further opportunities to respond and exchange views before any final decision
was taken, the United Kingdom announced the MPA without meeting these
expectations. Accordingly, the Tribunal found that the United Kingdom failed to
meet its obligations under the Convention. In its final observations, the
Tribunal indicated with regard to the possible re-establishment of an MPA in
the Chagos Islands that it is now “open to the Parties to enter into the
negotiations…with a view to achieving a mutually satisfactory arrangement for protecting
the marine environment, to the extent necessary under a “sovereignty umbrella”’.
Former PM’s
Press Statement of 21 March 2015
Mr. Navin Ramgoolam, the former Prime Minister of
Mauritius (and the present Leader of the Opposition on leave of absence), held
a Press Conference soon after the International Tribunal declared its Award,
hailing it as a major victory for his previous government’s policy decision to
invoke the international court procedures for the purpose of obtaining the
possession of the Chagos Islands. In his self-congratulatory mood, the former
PM even advised the present government of Mauritius to "not to waste time establishing
any party committee to act quickly by contacting the legal team that enabled
this victory to counter any British attempts to annihilate judgment and not to consider any solution other than the
return of the archipelago to Mauritian sovereignty, while giving guarantees to
the United States to maintain its military base on Diego Garcia." (See the link: http://www.lemauricien.com/article/apres-jugement-du-tribunal-arbitral-permanent-sur-les-chagos-ramgoolam-affirme-sa-grande-sat )
Notwithstanding the euphoria of the
former Prime Minister, return of the Chagos Archipelago to Mauritian
sovereignty is unlikely to materialize any time soon. Though the UK suffered a
moral and legal defeat on the unilateral imposition of the MPA in and around
the Chagos, the Award does not have any implications for the administrative
control of the country over the Islands as the UK has been legally permitted to
continue with its old policy undertaking “to return the Chagos Archipelago to Mauritius
when no longer needed for defense purposes”.
The Award also reveals that while
agreeing to this undertaking in the context of the Mauritius Parliamentary
questions in November 1965, the UK has also made it clear that a “decision about the need to retain the
islands must rest entirely with the United Kingdom Government and that it would
not (repeat not) be open to the Government of Mauritius to raise the matter, or
press for the return of the islands on its own initiative”. (Para 84 of the Main Award, pp. 30-31)
The Arbitration Award also contains an
account of the tremendous challenges- political, diplomatic and legal predicament- the nation
(Mauritius) faces in relation to its policy of regaining the Chagos Islands. We
reproduce below a revealing paragraph:
157. On 9 September 2010, the new British High Commissioner in Mauritius, Mr
Nicholas Leake, met with the then President of Mauritius, the Rt. Hon. Sir
Anerood Jugnauth KCMG QC GCSK PC, 202 Prime Minister Ramgoolam, and Foreign
Minister Boolell while presenting his credentials. The High Commissioner’s
account of that conversation is as follows:
[. . .] The talks were wide-ranging, and other bilateral points will be
reported separately to Africa Directorate. However, they all took the
opportunity to raise Chagos/BIOT, which remains an irritant following the
decision to establish a Marine Protection Area (MPA) in BIOT.
2.
[President] Jugnauth said that he understood that the UK position was that sovereignty would be ceded to Mauritius once
Diego Garcia was no longer needed for military purposes. But Mauritius had
always understood that this meant the Cold War. The Cold War was now over, so
was Diego Garcia still needed for military purposes? And if so, would there not
always be a reason why the island was still needed? Jugnauth later added
that the UK should just hand back the Territory; Mauritius had no problem with
the US continuing to use the base, but they should pay rent to Mauritius.
…………………..
5.
Boolell recognised that the US base was here to stay, but Mauritius wanted to
exercise its “legitimate rights” over the territory. They wanted to be part of
any discussions, and were unhappy that
the US refused to engage with them and kept telling them to discuss all BIOT
issues with us. Boolell drew attention to the Chagossian case in the ECHR,
and said that this was a rare case where the Mauritian government and
opposition were united. He also hinted at “mobilising world opinion”, an ICJ
case, and seeking “compensation for lost revenue” since independence.
(Para 157 of
the Main Award, pp. 66-67;
see
also United Kingdom record of meeting
between British High Commission in Port Louis and President, Prime Minister and
Foreign Minister of Mauritius on 9 September 2010 (Annex UKCM-119). )
Even the former PM Mr. Navin Ramgoolam
is on record, revealing his actual experience of discussing the Chagos Issue
with the United States in the following words in the Award:
“Ramgoolam said that when the
Mauritians tried to talk to the United States about BIOT the Americans took the
line that Mauritius needed to settle the sovereignty issue with the UK first.
The Foreign Secretary said that our position was clear. We would cede the
Territory to Mauritius when we no longer required the base”.
(Para 153 of the Main Award, pp. 64; see also Notes of telephone call from Foreign
Secretary to Mauritius’ Prime Minister of 1 April 2010 in e-mail of 1 April
2010 from Global Response Centre (Annex UKR-67).
It would be a leap of imagination and
highly misleading to consider that these core facts of the ground situation has
altered any which way as a consequence of the new Arbitration Award. As the
Khalifatullah (atba) presciently stated and predicted in the special Sermon of
May 17, 2012 despite the plans made by the then PM to restore back the Chagos
Islands to the possession of Mauritius, the Islands continue to remain under
the administrative control of the United Kingdom. Despite the former PM’s wish
to declare the continued presence of the UK in the Chagos Islands as unlawful,
the Arbitration Award has virtually endorsed the British rights of continued
possession and administrative control of the Islands till into a future when it
would no longer be needed for their “defence purposes”, a scenario highly
unlikely to materialize anytime soon in the near future.
Conclusion
The detachment of the Chagos Islands by
the United Kingdom took place prior to the granting of independence to the
colony of Mauritius in 1968, a fact that was recognized and not disputed by the
UK as well during the Arbitral proceedings. In the prelude to the national
independence, there were a series of Constitutional Conferences in the UK in
which the leaders of the Mauritius national movement from the different
political parties and interest groups participated. It was during these
political negotiations that the British administration raised the issue of
detachment of the Islands for the purpose of establishing a defence base for
the US in order to sub-serve the then larger causes of the “free world” in a
Cold War milieu.
The Mauritius delegation, under the
leadership of Sir Seewoosagur Ramgoolam
initially objected to the proposal on the ground that it would be “unacceptable
to public opinion in Mauritius” and proposed the alternative idea of a long
term Lease of the territory. Since that leasing arrangement was not acceptable
to the US, based on the suggestion of the Mauritius leader Mr. Bissoondoyal,
the UK Secretary of State for the Colonies agreed to the return of the Islands if the need for
the defence facilities disappeared. Crucially, the negotiations did not
prescribe any limitation period for the reverting of the Islands. The national
leadership was anxious for political independence and wished to go back from
the UK Constitutional Conference with a full confirmation on the advent of freedom
at the earliest opportunity. They did value the economic support and continued
beneficial relations with the UK and the US and wanted to play a role in being
a partner in the defence of the “free world” and some of them even recognized
the significance of defence facilities then being proposed to be established in
the Chagos Islands. Under the circumstances, Sir Ramgoolam and a number of
other colleagues agreed upon the detachment of the Islands even as his
colleague and fellow participant in the negotiations, Mr. Paturau considered it
a poor bargain for Mauritius and even went on to register his dissent in the
final meeting.
In return for the political agreement
for the detachment by the Mauritius leaders, the UK administration agreed upon
the payment of certain, enhanced compensation for Mauritius on account of the
detachment. Likewise, in what has come to be named as the Lancaster House Undertakings of 23 September 1965, the UK also gave
an undertaking to respect certain other privileges and entitlements. These
include the following: (1) if the need for the facilities on the islands disappeared
the islands should be returned to Mauritius and that (2) the benefit of any
minerals or oil discovered in or near the Chagos Archipelago should revert to
the Mauritius Government and that (3) as far as practicable fishing rights
shall be permitted in the Chagos Archipelago. (Inset: Baron Anthony Greenwood, Secretary of State for the Colonies, 1964-69.)
The present claims of Mauritius point
to the unequal bargain inherent in the colonial context in which these
negotiations and understandings took place. It thereby makes the inferential
argument that the enormous power difference and political pressure on the
national leadership along with other relevant principles of international law,
including on right to national self- determination and the principle of
territorial inviolability of nations under colonial rule would invariably mean
that the detachment agreement over the Chagos Archipelago was vitiated and void ab
ignitio. The purported establishment of the MPA by the UK through a
unilateral declaration that almost disregarded the due and legitimate rights of
the Mauritius gave it an opportunity to challenge the legality of the measure
under the Law of the Sea Convention. It also hoped that the sovereignty
question could be finally settled through the Arbitration.
One would have
personally liked to see Mauritius re-gaining sovereignty over the Islands. But,
as is known, because of the political agreements/understandings that the Mauritius
leaders, including most notably and definitely, Sir Seewoosagar Ramgoolam has
had with the British government in the prelude to the national independence,
the Chagos had moved into British-American control for their geo-strategic preoccupations,
with Britain gaining legal rights of administrative control over the BIOT till
a time far into future when they will on their own hopefully transfer the
territory as no longer needed-a proposition which is highly unlikely to
materialize in our own times.
The Award graphically
documents as to how the PM Ramgoolam was heavily influenced by considerations of
electoral politics and the prospects for return to power in taking this
unprecedented position of a legal war on the UK over the Chagos Islands issue. Having raised up the expectations on the controversial issue, the PM had no political option except to be seen to be staying the course, especially with the UK virtually ignoring his protestations. While
the national discourse on the Chagos Arbitration, shaped by the PM’s narrative,
focussed on the sovereignty challenge, the Award clearly establishes that
despite the national/domestic political posturing by the PM, the Mauritius
position at the Court on the case was based on legal strategies. In any case,
the Tribunal found that it does not have the juridical competence/ legal
jurisdiction to look into the sovereignty dispute between the countries, as the
legal challenge was on other issues such as certain measures Britain unilaterally
took to protect the marine environment around the Islands under its control.
One final thought:
Had the people of Mauritius been fully aware of the enormous costs the
Arbitration proceedings entailed and the limited outcomes it would eventually
produce for the nation, would they have allowed the leaders to go on with their
plans?
Through his succinct remarks on the
Chagos Arbitration on May 17, 2012, the Khalifatullah (atba) was speaking
exactly like a true patriot and son of his soil, a true and committed Mauritian
who was aware of what machinations and plans the wily politicians are capable
of playing in their power-games, all in the name of the people. Viewed in its
entirety, despite his protestations to the contrary, it is apparent that the former PM's international court procedure
route for re-establishing the national sovereignty over the Chagos Islands, did
not attain with the success he was hoping for, an outcome that was clearly
foretold in the Speech of May 17, 2012 by the Khalifatullah (atba). One can only
marvel at the extraordinary insights- be it on spiritual and religious matters
or on secular and world affairs- that Allah (swt) continues to bestow on His chosen
servant of this era, the Khalifatullah
Hazrat Munir Ahmad Azim Sahib (atba) of Mauritius, Alhamdulillah, Soumma Alhamdulillah.