CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ In 1964, the Governor of Mauritius had discussed the idea of detaching the Chagos Archipelago from Mauritius with the Mauritian Premier who declared that he preferred a long-term lease rather than a detachment. 50 When the Governor of Mauritius was instructed by the Colonial Office to inform the Mauritian Council of Ministers of the proposal to detach the Chagos Archipelago, the Governor informed the Colonial Office that the Council of Ministers preferred a long-term lease of the islands. 51 In the following months, the Mauritius Government stated again and again that it was not interested in a detachment of the islands while the UK expressed in return that it had the legal right to detach the Chagos Archipelagos without Mauritian consent. 52 Finally, on 5 November 1965, the Mauritius Council of Ministers confirmed its agreement to the detachment of the Chargos Archipelago on the conditions specified in the above-mentioned Lancaster House Agreement of 23 September 1965 which included special undertakings, for example the payment of compensations to Mauritius and the initiation of negotiations for a defense agreement between the UK and Mauritius. 53 Between 1967 and 1973 the Chagossians who had left the islands were prevented from returning thereto and the others forcibly removed. 54 As of 1971, it was unlawful for any person to enter or remain in the Chagos Archipelago without permission. 55 Mauritius accepted payment of £650,000 in full and final discharge of the UK´s undertaking to meet the cost of resettlement of persons displaced from the islands. 56 In 1982, another payment of £ 4 million was made on an ex gratia basis, without any admission of liability on the part of the UK which was disbursed to 1,344 islanders with the condition to renounce the right of return to the islands. 57 Under UK law, no person has the right of abode in the BIOT nor the right to enter and remain there without authorization. 58 Today, Chagossians live in several countries, including the UK and Mauritius. 59 2. The Questions put to the Court According to the Court, there was no need to reformulate the questions or to interpret them restrictively because it was in any event for the Court to state the law applicable. 60 a) Question (a) The Court first determined the relevant period of time and subsequently the applicable

rules of law and their content. 61 aa) Relevant period of time

Reference is made to the period from 1965 until 1968 in which the General Assembly situates the process of decolonization of Mauritius, the separation of the Chagos Archipelago

50 Id. at para. 100. 51 Id. at para. 101. 52 Id. at paras. 103 et seq. 53 Id. at paras. 108 et seq.; Paragraph 22 Lancaster House Agreement. 54 Opinion at para. 114. 55 Id. at para. 115; Immigration Ordinance 1971, 16.04.1971. 56 Opinion at para. 117. 57 Id. at paras. 119 et seq.

58 Id. at para. 124. 59 Id. at para. 131. 60 Id. at para. 137. 61 Id. at para. 139.

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