Beyond the ITLOS Boundary: Why the Maldives Must Address the Antecedent Title to Folhlhavai (Chagos Archipelago)

The former President of the International Tribunal for the Law of the Sea, Judge Jin-Hyun Paik, gave a useful explanation of how the Mauritius–Maldives maritime case began. He stated that neither Mauritius nor Maldives had made a declaration under Article 287 of the United Nations Convention on the Law of the Sea (UNCLOS). In those circumstances, Mauritius initiated arbitration under Annex VII in June 2019. The two countries subsequently agreed in September to transfer those proceedings to a Special Chamber of ITLOS. This chronology is important because it challenges a claim now heard in the Maldives: that maritime delimitation could have been prevented simply by refusing to attend the ITLOS proceedings.

Why Annex VII Applied

Article 287 allows States that are parties to UNCLOS to choose one or more procedures for resolving disputes concerning the interpretation or application of the Convention. Those procedures include ITLOS, the International Court of Justice, arbitration under Annex VII and special arbitration under Annex VIII. Neither Mauritius nor Maldives had made the relevant declaration selecting a procedure. That absence did not place either country outside the UNCLOS dispute-settlement system. Article 287(3) provides that a State without a declaration in force is deemed to have accepted Annex VII arbitration. Mauritius was therefore able to institute Annex VII proceedings against the Maldives on 18 June 2019 without obtaining a new Maldivian agreement to commence the case. The legal basis already existed through UNCLOS, to which both countries were parties.

What happened in September 2019 was different. Mauritius and Maldives agreed to transfer the existing dispute from Annex VII arbitration to a Special Chamber of ITLOS. The Maldives could have refused to enter into that agreement, in which case the consensual transfer to the Special Chamber would not have occurred. But this does not mean that the underlying proceedings would have disappeared. Mauritius had already invoked the Annex VII mechanism three months earlier. The relevant question is therefore not whether Maldives could have refused to go to ITLOS. It plainly could have refused the transfer. The real question is what would then have happened to the Annex VII arbitration that was already underway.

Why Non-Attendance Was Not Enough

Article 9 of Annex VII provides an important answer. Where one party does not appear or fails to defend its case, the other party may request the arbitral tribunal to continue the proceedings. The provision expressly states that the absence of a party “shall not constitute a bar to the proceedings.” The tribunal would still have been required to satisfy itself that it possessed jurisdiction and that the claim was well founded in fact and law. The Maldives could therefore have challenged jurisdiction and admissibility, as it later did before the ITLOS Special Chamber. What it could not achieve merely through absence was an automatic termination of the case. Article 28 of the ITLOS Statute establishes essentially the same principle for proceedings before that Tribunal.

This distinction should be kept clear in the present debate. There may have been arguments against jurisdiction, and there may be legitimate criticism of the decision to transfer the dispute to an ITLOS Special Chamber. Those are legal questions worthy of examination. They are not the same as saying that refusing to attend would itself have prevented delimitation. Anyone making that particular claim must explain how non-participation would have defeated Annex VII Article 9. More importantly, they must identify the jurisdictional or procedural mechanism that would have prevented Mauritius from pursuing the arbitration it had already instituted.

The Territorial Question Maldives Did Not Present

The more consequential issue lies in what the Maldives actually argued once the case proceeded. Maldives challenged the jurisdiction of the Special Chamber and relied heavily upon the unresolved sovereignty controversy over Folhlhavai. However, it presented that sovereignty controversy as one between Mauritius and the United Kingdom. Maldives did not ask the Chamber to recognise an independent Maldivian territorial title to Folhlhavai. The proceedings therefore developed on the basis that Mauritius and Maldives were the relevant opposite coastal States, while the dispute over sovereignty concerned Mauritius and Britain. An affirmative Maldivian claim to Folhlhavai was never placed before the Chamber for adjudication.

That history matters when considering what the Maldives can realistically do now. Simply attempting to recover the maritime area affected by the 2023 delimitation while accepting the territorial premise upon which that delimitation was conducted confronts a final international judgment. A domestic declaration that the Maldivian exclusive economic zone extends farther south cannot by itself remove that difficulty. If the deeper Maldivian position is that the territorial premise itself was historically wrong, the legal inquiry has to move away from the maritime boundary and towards the title to the land from which those maritime entitlements were generated.

The Case Must Reach Behind 1965

This is where an antecedent Maldivian territorial claim becomes fundamentally different from the case already considered internationally. The familiar Mauritius narrative begins with Britain’s separation of Folhlhavai from Mauritius in 1965. A Maldivian claim cannot begin there. It must ask an earlier question: how did Folhlhavai come to be treated as part of the colonial territorial structure associated with Mauritius in the first place? If the islands had previously formed part of the Maldivian territorial domain, their later administration with Mauritius cannot by itself answer the question of earlier title.

Answering that question requires more than producing old maps or demonstrating that Maldivians knew of Folhlhavai. Maldivian records, European documents, navigational evidence and historical toponyms must be examined together. Royal titulature is also relevant, particularly Sultan Hassan IX’s sixteenth-century reference to the “Seven Islands of Pullobay.” The significance of such evidence lies in what it may reveal about the territorial understanding of the Maldivian state before French and British administration. The research must then go further and examine evidence of authority, administration, settlement and other manifestations of territorial relationship appropriate to the period.

If an antecedent Maldivian title can be established, the inquiry then moves into the colonial chain of title. The records must explain how France claimed Folhlhavai and what legal basis supported that acquisition. They must establish whether there was any Maldivian cession, recognised conquest, abandonment or other process capable of terminating an existing title. The subsequent British acquisition must then be examined in the same manner. If no legally effective displacement of an existing Maldivian title can be identified, the question becomes considerably more serious than a disagreement about a modern maritime boundary.

A Different International Question

Such a claim would not simply reopen the question decided by the International Court of Justice in 2019. The ICJ considered whether the decolonisation of Mauritius had been lawfully completed following Britain’s separation of Folhlhavai in 1965. An antecedent Maldivian claim asks what happened before the territorial arrangement underlying that question came into existence. It would examine whether Folhlhavai had previously belonged to the Maldivian territorial domain and how it subsequently came under European colonial administration. The Mauritius–Maldives proceedings before ITLOS did not determine that question either, because Maldives never submitted an affirmative claim to sovereignty over Folhlhavai.

This distinction should shape the Maldivian strategy. If Maldives continues to accept that Folhlhavai belongs to Mauritius and seeks only to recover maritime space allocated by the 2023 judgment, it must confront the finality of that delimitation. If the historical evidence instead supports an antecedent Maldivian title to Folhlhavai, the territorial question comes first. The principle that the land dominates the sea then assumes practical significance: maritime entitlement follows territorial sovereignty. The central issue is consequently not only how much maritime space Maldives lost through the ITLOS judgment. It is whether Folhlhavai formed part of the Maldivian territorial domain before European colonial intervention and, if so, when and by what lawful process that title was displaced. That is the question the existing international proceedings were never asked to decide.