CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ Nevertheless, on 30 December 1966, the UK and the USA agreed on concluding a 50-years lease of Diego Garcia for the purpose of establishing a US military base. In 2016, this lease was renewed for 20 years. 11 As a result of this agreement, the inhabitants of the Chagos Archipelago (Chagossians) were, between 1967 and 1973, either prevented from returning to their homes or forcibly removed by the UK. 12 In the 1980s some compensation was paid to them. 13 In 1968 Mauritius became independent and shortly thereafter a member of the UN. 14 Since 1980 the Organisation of African Unity (OAU) considered the issue of the Chagos Archipelago and adopted a resolution in which it demanded that the islands were returned to Mauritius. 15 The same demand was made by the Mauritian Prime Minister at the thirty-fifth session of the UN General Assembly in 1980; however, to no avail. 16 Numerous initiatives have been filed by Chagossians before UK courts to achieve a right of return. A first success before the High Court of Justice in 2006 and the Court of Appeals in 2008 was reversed by the House of Lords in 2008. 17 In 2012, the European Court of Human Rights declared the complaint inadmissible as Chagossians had already agreed to receive compensation as final settlement and had thus lost their status as “victims” as precondition for the admissibility of individual complaints. 18 After the UK had announced the creation of a marine protected area (MPA) in and around the Chagos Archipelago in April 2010, Mauritius filed a claim against the UK pursuant to Art. 287 UNCLOS before an Arbitral Tribunal constituted under Annex VII of UNCLOS challenging the MPA on the basis that it allegedly violated Mauritius´ fisheries rights as agreed in the Lancaster House Agreement. 19 On 18 March 2015, the Arbitral Tribunal decided that the UK had breached its obligations under Article 2 (3), Article 56 (2), and Article 194 (4) UNCLOS when establishing the MPA without prior consultation with Mauritius and that the UK´s undertaking to return the Chagos Archipelago to Mauritius, when no longer needed for defense purposes, was legally binding. 20 Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice Islands, Grenada, Guam, Mauritius, Montserrat, NewHebrides, Niue, Pitcairn, St. Helena, St. Kitts-Nevis-Anguilla, St. Lucia, St. Vincent, Seychelles, Tokelau Islands, Solomon Islands, Turks and Caicos Islands and the United States Virgin Islands” UN GA Res. 2357 (XXII) of 19. 12. 1967. 11 Opinion at paras. 36, 51; “Agreement concerning the Availability for Defense Purposes of the British Indian Ocean Territory” between United Kingdom of Great Britain, Northern Ireland and the United States of America, 30. 12. 1966. 12 Opinion at para. 43. 13 Id. at paras. 117, 119. 14 Id. at para. 42. 15 Id. at paras. 45, 47; “Resolution on the Diego Garcia” OAU AHG Res. 99 (XVII) of July 1980; “Decision on Chagos Archipelago” OAU AHG Dec. 159 (XXXVI) of July 2000. 16 Opinion at para. 46. 17 Id. at paras. 121 et seq.; Regina (Bancoult) v. Secretary of State for Foreign and Commenwealth Affairs 22. 10. 2008. 18 Opinion at para. 128; Chagos Islanders v. United Kingdom, No. 35622/04, 11. 12. 2012. 19 Opinion at paras. 48 et seq.; Republic of Mauritius v. United Kingdom of Great Britain and Northern Ireland, PCA 2011-03, Award 18. 03. 2015. 20 Opinion at para. 50.

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