Is the Maldives’ Engagement in ITLOS Proceedings the Path Forward on Chagos Sovereignty?

Issued by the Legal & Strategic Affairs Circle, Maldivians for Changos

The Republic of Maldives’ decision to join Mauritius in the maritime boundary delimitation proceedings before the International Tribunal for the Law of the Sea (ITLOS) has raised some eyebrows at home and abroad. The question is then posed: why did the Maldives not first protest decolonisation over the Chagos Archipelago due to its previous affiliation with these islands? However, others ask: Does the commitment to ITLOS end any possibility of a future Sovereignty claim? In truth, the choice to seek validation through delimitation was more correct than wrong; legally, politically, and strategically. Moreover, it has not closed off the Maldives from staking its claim on Chagos Sovereignty, where it rightfully belongs: the United Nations Special Committee on Decolonisation (C-24).

On a different note: The Nexus with Sovereignty and Not Delimitation

Maritime boundary delimitation and territorial Sovereignty fall into two separate legal categories under the United Nations Convention on the Law of the Sea (UNCLOS). In this disputed case, the jurisdiction of the Special Chamber of ITLOS was limited to delimiting only the respective Exclusive Economic Zones (EEZs) between the Maldives and Mauritius; It had no jurisdiction to rule on the ultimate Sovereignty of the Chagos Archipelago.

The current state, established by international legal practice, is that a State can negotiate (or have adjudicated) its boundaries without prejudice to its Sovereignty claims. It is this recognition, already acknowledged in ITLOS and ICJ jurisprudence, that participation in delimitation cannot be equated with recognition of title or Sovereignty over a disputed territory. The Maldives approached ITLOS in these terms, and therefore, no legal right or claim was lost.

The Political Math: Not Landing on a Lopsided Outcome

If we boycotted it, the ITLOS would still have been heard. The Tribunal could have adjudicated on Mauritius’ submission ex parte. This potentially jeopardised a maritime boundary far less beneficial to the Maldives’ fishing rights, resource access and maritime security.

The Maldives responded by securing its economic and strategic interests in the central Indian Ocean, while leaving the possibility of contesting Sovereignty open for later consideration. This method sidestepped both the representation vacuum and the diplomatic penalty of looking noncompliant with UNCLOS dispute resolution.

The Diplomatic: Avoiding Wag the Dog UN Post-ICJ Advisory Opinion

Since the 2019 ICJ advisory opinion and UNGA Resolution 73/295, Mauritius has been considered the administering State of the Chagos Archipelago as far as the UN is concerned. The pro-UK vote of the Maldives in the General Assembly was a historical trend based on strategic and security considerations, not what had been accepted as “official” renunciations of Sovereignty.

Following the ICJ opinion’s misrepresentation by some as a binding decolonisation order to circumvent the C-24 process, diplomacy in the Maldives has undergone significant changes. Challenging Mauritius’ place at the Tribunal when its arguments were heard would have constituted an exercise in form over substance because the party representation at ITLOS had to adhere to the position of the UNGA. Thus, by engaging in delimitation, the Maldives was able to protect its maritime entitlements without prejudging Sovereignty.

Where to Protest and When on the Timing of Decolonisation Demonstration

The demand to decolonise before delimitation would not have worked for two reasons:

Limits of jurisdiction: ITLOS could not rule on Sovereignty and decolonisation.

Forum Appropriateness: Appropriately, decolonisation claims have no place before a maritime boundary tribunal; they are the purview of the C-24 and the General Assembly.

The Maldives, in contrast, works by securing a defined EEZ first, so as not to unnecessarily leave its maritime dues if seaward territory claims were disallowed completely later. This provides a solid foundation for entering negotiations on a Sovereignty claim at the UN, in order to reach an agreement between the two parties that is firmly rooted in unambiguous entitlement.

The Road is Not Closed: Retaking Chagos at the C-24

ITLOS jurisdiction is not the end of the Maldives’ chance for the return of Chagos. The question of Sovereignty has not been addressed in the context of a UN decolonisation exercise. The Maldives can still:

Invoke UNGA Rule 12 to place “The Question of the Chagos Archipelago: Sovereignty Claim of the Republic of Maldives” on the agenda, with a request for referral to C-24. Provide historical and legal evidence that the Chagos Archipelago’s separation from the Maldives was part of the geopolitical manoeuvring during the Cold War, and that this separation violated the UN’s core decolonisation principles.

Question whether the ICJ opinion, which is advisory, was applied in a manner that circumvented C-24 rules and process, to deprive the Maldives of its right as a concerned State to have its voice heard.

Positioning the Maldives as a historically justified stakeholder, the high-water mark of this approach is to recast the Chagos Islands beyond just a UK-Mauritius dispute into a multi-claimant decolonisation case.

Bottom Line: Caution Now and Options Later

Participation in the ITLOS delimitation is not a concomitant surrender of historic rights by the Maldives. This was a rational and calibrated move to safeguard near-term maritime interests within the framework of UNCLOS, while preserving the larger Sovereignty card for later use. Pathways towards decolonisation and the process of delimitation are two separate paths; a win in one does not necessarily mean the closing down of options.

With a clear maritime boundary established, the Maldives now has a better case before the UN Special Committee on Decolonisation and two supporting pillars to stand upon: historical legitimacy and procedural fairness. By taking action at the UN, the Maldives can ensure that the Chagos question is not resolved over its head, but with its voice being heard right at the table.