The two island states, Mauritius and Maldives are currently in a legal battle before the International Tribunal for the Law (ITLOS, the Tribunal) of the Sea relating to the 37,000-square-mile expanse of the Indian Ocean. They are claiming their own exclusive economic zone whose water is rich in fish by delimiting their overlapping maritime boundaries. This diplomatic brawl dates back to 2001. However, despite recognising the existence of an overlap in the maritime entitlements, the Maldives abdicated, leaving the case oscillated. Notably, this issue is bolstered by history as well. After analysing the history and merits of this case, this article shall paint a picture of the decision of the Special Chamber of the International Tribunal of the Law of the Sea.
In 1968, Mauritius was granted independence from the United Kingdom, following which the later separated Chagos Islands from Mauritius and leased to the United States for military purposes. Thousands of locals left were evicted to Mauritius. Since 1992 dispute between Mauritius, Maldives, and the United Kingdom is still an ongoing game. Mauritius and the United Kingdom are in a skirmish over the sovereignty of the Chagos Islands. On the other hand, although the bifurcation of the EEZ was tried by the Maldives in 1992, the procedure remained incomplete. To finally put matters into place, Mauritius seeks to delimit the maritime boundary between the Chagos Archipelago and the Maldives according to the United Nations Convention on the Law of the Sea (“UNCLOS”).
Despite the fact that Maldives are aware of the seas being overlapped, Maldives receded from any further negotiations, which has put Mauritius in legal turmoil. Hence Mauritius resorted to Part XV and Article 287 of the Convention. Part XI explicitly elucidated that primarily the parties of a dispute should settle peacefully through means of their choice. Meanwhile, Article 287 allows parties to choose their means of settlement of disputes. The parties in question chose to settle the delimitation dispute through a special chamber as per Article 287(2) and Annex VII of the Convention. Moreover, under the regime of Article 34 of the Convention and Article 125 of the Rules, Mauritius requested the Special Chamber of ITLOS for a judgement. On October 2022, tallying with its jurisdiction, both parties agreed to present the issue to a special chamber of ITLOS and started to hear the proceedings.
This actual maritime dispute dates back officially to 2019, when the matter was first submitted to the special chamber. Preliminary objections were raised by the Maldives pursuant to Article 294 of UNCLOS and Article 97 of the ITLOS Rules, challenging the admissibility of the case entirely. In 2022, all preliminary objections were dismissed, and the case went for a public hearing and up to date still pending.
Preliminary Grounds Failed
- How do Chagos Archipelagos get embroiled?
‘All five of Maldives’ preliminary objections were based on a “core” assertion – subsequently deemed erroneous by the Special Chamber – that there exists an “unresolved sovereignty dispute between Mauritius and the United Kingdom” over the Chagos Archipelago.’ ~ Mauritius-Maldives Memorial
On 2021, the preliminary objections raised on the jurisdiction and admissibility of the Special Chamber by Maldives failed and the case was allowed to proceed on merits. Arguably, among the 5 preliminary objections, the most important was where Maldives claimed that the Special Chamber did not have any jurisdiction to decide upon this matter since the sovereignty of Chagos is still being disputed. However, the objection was dismissed inasmuch as in 2019, the ICJ decided that the UK should hand back Chagos to Mauritius, a decision by which the UK did not abide yet.
Nonetheless, on a critical note, Maldives was quite indecisive when it came to voting for the sovereignty of Chagos. In 2019, it voted against at the General Assembly. However, recently the officials confirmed that the Maldives should vote for Mauritius’s sovereignty claim in favour of Mauritius in the future at the General Assembly. This sudden shift seemed more political than acting in the alliance. According to higher officials, this decision was taken in order to preserve the rich-fish waters upon which the Maldives highly depended economically. National critics posited that this turn might not be a priority for the country. However, given the high international pressure on the UK to render Chagos to Mauritius and being sceptical about its claim, Maldives reckoned that this might impact the Maldives-Mauritius bilateral relationship. In the long run, the international reputation and global opinion on Maldives may be tarnished.
On the other hand, while Mauritius was getting all other UN member states on board for voting in favour, this may not as well be a positive step. It may bear the risk of indulging ICJ and ITLOS into more political battles, which could be solved swiftly by the General Assembly alone. It affects the institution’s schedules and delays other states who are on the list to be heard in priority. It is also significant to derive that perhaps ITLOS could have made its investigation from scratch rather than accepting the final advisory decision of ICJ inasmuch as the extent of the research done and decision by the Advsory is feasible enough to rely on remains a matter of debate.
One of the main arguments of Maldives was that the ‘low tide elevation’ located around the Blenheim Reef could not be considered as a conquerable land, hence the claim of Mauritius should fail. However, by quoting the case of Qatar v Bahrain, the Tribunal held that ‘low tide elevation’ situated partly or wholly also forms part of the coastal configuration within the territorial sea of a State. Conclusively the Tribunal held that Blenheim Reef is eligible to be considered as a coastal line and hence part of a geographical configuration.
Following the facts and the law presented by both parties, Mauritius submitted to the Special Chamber to declare that it has the jurisdiction to determine the claim and to grant a successful delimitation of the maritime area according to the parameter required. As for Maldives, given the fact that Maldives were among a few countries who voted against the claim of Mauritius for owning the Chagos, Maldives submitted to the Special Chamber to rule out the claim as inadmissible. This is because the Maldives do not still consider the capability of Mauritius to enter a claim on behalf of the Chagos. Nonetheless, the final decision of the Special Chamber is pending.
The stand taken by the Maldives to have this case dismissed or ruled in his favour is plausible. If the EEZ is successfully delimited, Maldives might end up with half of the rich fish-waters. This shall eventually affect its economy as the latter depends on exporting those fish for revenue. However, by now turning in favour of Mauritius, Maldives is more concerned about its international relationship, the bilateral agreement with Mauritius and the global opinion, which altogether may affect his economy and tourism permanently.
On the other side, Mauritius is disputing the delimitation of the sea to have the matter cleared once for all on the sovereignty of Chagos. Moreover, a judgement by the Advisory has already been pronounced for UK to hand back Chagos to Mauritius. With this, Mauritius got all the right to legally move ahead in bringing a case of maritime delimitation before a Special Chamber of ITLOS.
It is beneficial to briefly brush on the first-ever maritime case between Bangladesh and Myanmar. Bearing similar facts, Bangladesh initiated a proceeding against Myanmar in 2011 to have the maritime boundary delimited in the Bay of Bengal, including their EEZ and continental shelf up to 200 Nautical Miles. In this case, the decision of ITLOS was rendered in favour of Bangladesh. Significantly the Tribunal in this particular case came up with a three-step approach which was also later used in Ghana v Cote D’Ivoire. In the present case, Mauritius suggested making use of the three-step approach for the Tribunal to reach a fair decision like the two aforementioned cases. Nonetheless, it is vital to note that each case has its own merits and different facts.
Conclusively for submission, both parties, Mauritius and Maldives, having their justified reasons at their ends, are waiting for the final judgement from the Special Chamber.
On 28 April 2023, the Special Chamber of the International Tribunal for the Law of the Sea rendered judgment on the current dispute.
In the final submissions, Mauritius requested the Special Chamber to adjudicate that the Special Chamber has the jurisdiction to determine the claim of delimiting the continental shelf beyond 200 nautical miles and such claim is admissible. Moreover, Mauritius requested to have the entire maritime boundary between Mauritius and Maldives within 200 nautical miles and in the outer continental shelf, connecting 53 points declared.
As for Maldives, the latter requested the Special Chamber to adjudicate and declare that the claim of Mauritius should be dismissed inasmuch as it is inadmissible, and the Special Chamber would act ultra vires should it accede to such request. Moreover, anent the EEZ, Maldives requested that the maritime boundary between them is connected from point 46 to point 47 as opposed to the calculations of Mauritius.
The Special Chamber henceforth adopted a 3-step method to achieve an equitable solution as adumbrated in Articles 74 and 83 and Article 38 of the International Court of Justice. However, it is also to be noted that such equitable solutions have no encysted guidelines and are hereby left to the Court or the state to decide which might be beneficial as each case comes with its own set of facts and having one standard method may not bode well. Although the application of this method is not mandated, it has been used in several ‘delimiting maritime boundary’ cases, namely Bangladesh V India, Ghana V Côte d’Ivoire and Somalia V Kenya. The 3 stage method is about drawing a temporary line measuring from the base points of the two parties, making any required alterations according to circumstances and consequently endorsing that the conclusive line of boundary does not end up in gross proportionality between the parties. It brings transparency and predictability.
The Special Chamber decides that it has no jurisdiction in allowing the claim of Mauritius for delimiting the continental shelves beyond 200 nautical miles. The reason for this decision is that Mauritius failed to sufficiently establish at a level of certainty that it had any prerogative in the area of overlapping claims. There are two reasons which led to this uncertainty. First is that Mauritius could not establish a natural prolongation of its land territory through the continental shelf of the Maldives within 200 nautical miles that is uncontested by Mauritius’. Secondly, the other two lines drawn by Mauritius to reach the critical foot of the slope point contained a significant amount of uncertainty. For Mauritius to win this case, all their points should have been established with certainty and according to what the 3 stage method demands. Such a method requires certainty and solid mathematical calculations in order not to cause gross disproportionality, which, unfortunately, Mauritius failed to deliver.
Quraisha Joomratty is a graduate of the University of Mauritius with a BA (Hons) Law and Criminal Justice and LLM Corporate Law. She further completed her Graduate Diploma in Law from the University of Central Lancashire, UK, a Masters in Business Administration from Istanbul Bilgi University and currently completing Formation 2 at the Istanbul Centre of International Law Centre. With 5 years of experience in the legal field, Quraisha is interested in Criminal Law and Human Rights Law.