Jurisdiction by Shortcut? ITLOS, Soft Law, and the Chagos Archipelago: A Critical Appraisal of Mauritius v. Maldives (2021) -

Author: Historical and Legal Research Team
Maldivians for Chagos – The Maldives–Chagos Sovereignty Initiative

Abstract

The 2021 ruling of the International Tribunal for the Law of the Sea (ITLOS) in Mauritius v. Maldives has been portrayed as a triumph for decolonisation. Yet the judgment raises significant concerns about jurisdiction and the misuse of non-binding instruments. By granting binding weight to the 2019 International Court of Justice (ICJ) Advisory Opinion on Chagos and United Nations General Assembly (UNGA) Resolution 73/295, the Tribunal created what critics call “jurisdiction by shortcut.” Drawing on Thin (2021), Oxman (2021), and contemporary analyses in EJIL: Talk! and the University of Tasmania Law Review (2021), this article argues that ITLOS exceeded its mandate, undermining procedural fairness and weakening the Maldives’ historical position in the Chagos question.

1. Introduction: The Maldives and the Defect in Decolonisation

The Chagos Archipelago dispute highlights a deeper flaw in the UN’s decolonisation system. The Maldives, a British protectorate from 1887 to 1965, was never included on the 1946 UN list of Non-Self-Governing Territories (Phadnis, 1981). This omission insulated Britain from UN oversight during the crucial years when it detached Chagos from Mauritius to create the British Indian Ocean Territory (BIOT) in 1965.

In 2019, the ICJ ruled that Britain’s continued administration of Chagos was “unlawful” and that decolonisation was incomplete (ICJ, 2019). Although advisory and non-binding, ITLOS later used that opinion to assert jurisdiction over Mauritius’s maritime-boundary case against the Maldives (ITLOS, 2021). By equating advisory reasoning with binding law, ITLOS transformed the decolonisation narrative into a legal shortcut that overlooked Maldivian interests.

2. Advisory Opinions as Adjudicative Instruments

Thin (2021) warned that ITLOS “blurred the distinction between persuasion and obligation.” The Tribunal’s claim that the ICJ’s opinion “has legal effect and clear implications for the legal status of the Chagos Archipelago” (ITLOS, 2021, para. 247) misstates the nature of advisory authority. Advisory opinions guide interpretation but do not determine rights.

The University of Tasmania Law Review (2021) called this approach “jurisdiction by inference,” meaning ITLOS filled gaps in state consent with moral reasoning. By accepting Mauritius as a “coastal State” on that basis, ITLOS bypassed the requirement that sovereignty must first be determined through lawful consent or adjudication.

For the Maldives, this effectively froze the historical defect of its 1946 non-listing. If tribunals can treat advisory opinions as dispositive, the Maldives’ claim that its exclusion distorted decolonisation can never be tested on procedural grounds.

3. The Indispensable Third Party and the Monetary Gold Constraint

The Monetary Gold principle bars tribunals from ruling where an absent third State’s rights form the core of the dispute (ICJ, 1954). The Maldives argued that the United Kingdom’s continuing claim to Chagos sovereignty made it indispensable.

ITLOS rejected this argument, describing the UK’s position as “a mere assertion” (ITLOS, 2021, para. 246). Judge ad hoc Bernard H. Oxman (2021) dissented, stating that the Chamber’s jurisdiction “depends upon a prior determination of sovereignty which it lacks authority to make.” The dissent underscored the procedural breach: ITLOS ruled as if the ICJ’s non-binding advisory opinion had already resolved sovereignty.

For smaller States like the Maldives, this precedent erodes protection under Monetary Gold. It allows tribunals to ignore absent colonial powers while imposing rulings that reshape regional boundaries.

4. Negotiation, Ripeness, and Procedural Fairness

Articles 74 and 83 of UNCLOS require parties to “make every effort” to reach provisional arrangements before adjudication. The Maldives maintained that negotiations with Mauritius were impossible without implicitly accepting Mauritian sovereignty.

ITLOS disagreed, finding that “overlapping maritime claims and diplomatic correspondence” satisfied the existence of a dispute (ITLOS, 2021, para. 263). Judge Oxman (2021) countered that the Maldives’ restraint was lawful diplomacy, not obstruction. The Chamber’s interpretation transforms negotiation into a procedural formality.

This approach pressures smaller coastal States to litigate prematurely and punishes those who choose diplomacy to avoid compromising sovereignty.

5. The Politics of Expediency: Decolonisation by Courts

The Tribunal’s method exemplifies what Verfassungsblog (2022) called “decolonisation by courts.” Judicial enthusiasm for moral outcomes risks replacing one asymmetry with another.

Modern Maldivian scholarship confirms that the southern atolls maintained longstanding links to the Chagos region through trade and navigation. ITLOS ignored this record. By treating Mauritius as the sole coastal State, the Tribunal rewrote regional history through a narrow procedural lens.

6. Implications for Maldivian Sovereignty and UN Advocacy

The flaws in the ITLOS decision carry enduring implications:

Procedural erosion. The Chamber’s reasoning narrowed the scope for revisiting historical omissions like the Maldives’ unreported colonial status.
Marginalisation of smaller States. The Maldives was reduced to a bystander in a case affecting its own maritime neighbourhood.
Strategic opportunity. These procedural failures can underpin a renewed Maldives initiative at the UN Special Committee on Decolonisation (C-24) and the General Assembly, arguing that Chagos decolonisation remains incomplete and procedurally defective.

7. Conclusion: Restoring Procedural Balance

The Mauritius v. Maldives judgment illustrates how procedural shortcuts can distort decolonisation. ITLOS’s conversion of advisory guidance into adjudicative authority and its dismissal of the UK’s indispensable interest undermined both law and fairness.

For the Maldives, this ruling should be treated not as finality but as a prompt for strategic correction. True decolonisation requires procedural balance and historical inclusiveness. The Maldives can and should reassert its voice before the UN, presenting Chagos as a continuing question of justice rather than a closed chapter of empire.

References

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International Tribunal for the Law of the Sea (ITLOS). (2021). Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), preliminary objections, judgment of 28 January 2021. https://www.itlos.org/fileadmin/itlos/documents/cases/28/published/C28_PO_Judgment_20210128.pdf
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University of Tasmania Law Review. (2021). Delimitation of the maritime boundary between Mauritius and the Maldives. https://classic.austlii.edu.au/au/journals/UTasLawRw/2021/9.pdf
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