British Indian Ocean Territory

Tuesday 5th November 2019 Written Statements

[The Minister for Europe and the Americas (Christopher Pincher)]

My noble Friend, the Minister of State for Foreign and Commonwealth Affairs (Lord Ahmad of Wimbledon), has made the following written statement:

The United Kingdom is aware of the proceedings brought by Mauritius against the Maldives under the UN convention on the law of the sea (UNCLOS). The UK is not a party to these proceedings, which can have no effect for the UK or for maritime delimitation between the UK (in respect of the British Indian Ocean Territory) and the Republic of the Maldives.

The UK has no doubt as to our sovereignty over the British Indian Ocean Territory (BIOT), which has been under continuous British sovereignty since 1814. Mauritius has never held sovereignty over the BIOT and the UK does not recognise its claim.

As we have made clear previously, we were disappointed that the sovereignty dispute over the BIOT was referred to the International Court of Justice (ICJ). By agreeing to answer the questions put to it by the General Assembly on behalf of Mauritius, the Court has enabled Mauritius to circumvent the basic principle that the Court should not consider a bilateral dispute without the consent of both states concerned. This sets a precedent which will potentially have wide implications for other states with bilateral disputes.

Despite these clear reservations, the UK participated fully in the advisory proceedings in good faith. We have also made known our views on the content of the opinion, including its insufficient regard to some material facts and significant legal issues. These included the 2015 binding UNCLOS arbitral tribunal award, which held the 1965 agreement between Mauritius and the United Kingdom, in which Mauritius agreed to detachment of the BIOT in return for benefits including the United Kingdom commitment to cede the territory when no longer needed for defence purposes, was legally binding. The opinion also gave insufficient regard to the reaffirmation by Mauritius, after independence, of the 1965 agreement.

In any event, what is undisputed is that the opinion is advisory and not legally binding. Moreover, the Court itself recognised that its opinion is without prejudice to the sovereignty dispute over the BIOT between the UK and Mauritius.

As the dispute over the BIOT is a sovereignty dispute, the General Assembly is not the appropriate forum to resolve such disputes. General Assembly resolution 73/295, adopted following the ICJ’s advisory opinion, cannot and does not create any legal obligations for the member states. Nor can or does General Assembly resolution 73/295 create legal obligations for other international actors such as a special chamber of the international tribunal for the law of the sea. Neither the non-binding advisory opinion nor the non-binding General Assembly resolution alter the legal situation, that of a sovereignty dispute over the BIOT between the UK and Mauritius.

A fundamental principle of international law and the international legal order is the principle of consent. It follows that the special chamber is not in a position to pronounce itself on the sovereignty dispute between the UK and Mauritius without the consent of the UK to resolve the sovereignty dispute before the special chamber.

The UK remains committed to implementing the 2015 UNCLOS arbitral tribunal award and seeking direct, bilateral dialogue with Mauritius.

[HCWS90]