Was Folhlhavai (Chagos Archipelago) Ever Transferred to Britain? Re-examining the Legal Foundation of British Rule

If Folhlhavai (Chagos Archipelago) was not legally transferred to Britain in 1810 or 1814, an important premise underlying its subsequent colonial history would require reconsideration. British administration would remain an historical fact, but it would not answer the prior question of how Britain acquired sovereignty. Such a finding would neither establish Maldivian sovereignty nor render Folhlhavai terra nullius. It would instead require another juridical basis for British title to be identified before any antecedent title could be assessed on its own evidence.

This question precedes the dispute considered by the International Court of Justice in 2019. The Court determined the legal consequences of Britain’s separation of Folhlhavai from Mauritius in 1965 and concluded that the decolonisation of Mauritius had not been lawfully completed. It was not asked to determine how France originally acquired sovereignty over Folhlhavai or whether France actually transferred the archipelago to Britain in 1810 or 1814. This article examines that antecedent question.

What did France transfer?

Britain captured Île de France in December 1810. The Capitulation provided for the surrender of the “Isle of France, and all its Dependencies”, but neither Folhlhavai nor Foalhavahi (Diego Garcia) was expressly named. The omission does not establish exclusion because “dependencies” could encompass territories that were not individually identified. It does, however, make the juridical status of Folhlhavai at the moment of surrender central to determining whether it passed with Île de France.

The definitive settlement followed in Article VIII of the Treaty of Paris of 1814. France ceded to Britain “the Isle of France and its dependencies, especially Rodrigues and Les Séchelles” in “full right and sovereignty”.¹ Folhlhavai was again not named. Mauritius nevertheless told the ICJ that Mauritius and its dependencies, “including the Chagos Archipelago”, were formally ceded to Britain in 1814.² The words “including the Chagos Archipelago” are therefore an interpretation of the territorial reach of Article VIII rather than language contained in the treaty itself.

The Tromelin problem

The significance of that distinction becomes clearer through another territorial dispute arising from the same treaty. Mauritius claims Tromelin as a former dependency of Île de France, while France maintains sovereignty over the island. The relationship between the Tromelin dispute and the wider territorial questions surrounding Mauritius has received scholarly attention, including in Denys-Sacha Robin’s study of the maritime dispute surrounding Tromelin.³ The dispute is particularly relevant here because Mauritius’s claim again requires Article VIII to extend beyond the dependencies expressly named in the treaty.

The textual issue is documented directly in a 2013 report of the French National Assembly. The report records that the French version refers to “l’Ile de France, et de ses dependances, nommément Rodrigue et les Séchelles”, whereas the English version uses “especially Rodrigues and Les Séchelles”. It records Mauritius’s reliance upon the English wording and describes the Mauritian argument as appearing fragile because Tromelin is not named in the French text.⁴ The territorial meaning of “dependencies” under Article VIII is therefore not self-evident. It has generated an actual dispute between France and Mauritius concerning another island historically associated with Île de France.

Tromelin’s administrative history makes the comparison considerably stronger. A French Senate report records that Tromelin was de facto under the administrative dependence of Île de France until 1810. From 1814 until 1896 it was administratively dependent upon Île Bourbon, later Réunion, after which it came under Madagascar.⁵ France nevertheless continues to maintain sovereignty over Tromelin. In France’s own treatment of the island, successive changes in colonial administration did not determine territorial sovereignty.

The timing is particularly striking because Tromelin’s administrative attachment shifted away from Île de France in 1814, the same year in which Article VIII ceded Île de France and its dependencies to Britain. France does not regard Tromelin as having passed to Britain through that cession. Tromelin therefore demonstrates that administrative dependence upon Île de France cannot, without further evidence concerning juridical status, simply be equated with inclusion in the territorial sovereignty transferred under Article VIII.

Britain’s own distinction

Britain has drawn a closely related distinction concerning Folhlhavai itself. Before the ICJ in 2018, the United Kingdom’s Solicitor General, Robert Buckland QC MP, stated that the archipelago had “no geographical connection with Mauritius”. He explained that it had been administered as a dependency of Mauritius “for reasons of administrative convenience”. Britain further submitted that Folhlhavai was “not administered as an integral part of Mauritius” but was instead “attached” to Mauritius.⁶

Buckland reinforced the distinction through Sir Kenneth Roberts-Wray’s account of British colonial law. A dependency could be placed under the authority of another dependent territory “of which it does not form part”.⁶ Britain’s submission therefore recognised a legal category in which administrative attachment did not amount to territorial incorporation. The point is directly relevant when later administration from Mauritius is relied upon to establish the territorial status of Folhlhavai.

British relations with the Maldives provide a limited regional illustration. They were conducted through Ceylon during the protectorate period without making the Maldives part of Ceylon. The constitutional arrangements were different, so the comparison cannot determine title. It illustrates only the narrower point that the colonial government through which authority was exercised did not necessarily define the territorial identity of the administered territory.

The twelve-year evidentiary gap

The later British record is clearer than the evidence presently identified for the moment of transfer. The ICJ records that Governor Lowry Cole listed Folhlhavai among the dependencies of Mauritius in 1826. It also refers to Mauritian ordinances of 1852 and 1872 describing the islands as dependencies.⁷ These are significant evidence of subsequent British classification, but the first specific British documentary classification identified in the Court’s historical account postdates Article VIII by twelve years.

The Court later characterized the territories as having been “administered without interruption by the United Kingdom” following the 1814 Treaty.⁸ That is the Court’s characterization of the historical relationship. It does not eliminate the separate evidentiary question exposed by the chronology of the documents identified in its account. Later British classification can demonstrate how Britain regarded and administered Folhlhavai, but it cannot by itself establish what France possessed in a juridical capacity and transferred in 1814.

The evidence capable of resolving that question must therefore include the French record preceding British acquisition. French ordinances, jurisdictional instruments, concessions and governmental correspondence may establish that Folhlhavai possessed the status necessary to fall within the dependencies surrendered in 1810 and ceded in 1814. If they do, the conventional chain of title gains substantial support. If they do not, another juridical basis for Britain’s acquisition would have to be identified.

The question the ICJ did not decide

The ICJ concluded in 2019 that Folhlhavai formed an integral part of the non-self-governing territory of Mauritius when Britain detached it in 1965. The Court therefore found that Mauritius’s decolonisation had not been lawfully completed.⁹ Those conclusions answer the decolonisation question submitted to the Court, but they do not constitute an adjudication of every antecedent question concerning territorial title.

The distinction matters because Tromelin and Britain’s own submissions demonstrate the same underlying point from different directions. France does not accept that administrative dependence upon Île de France necessarily established inclusion within Article VIII. Britain has acknowledged that administrative attachment to Mauritius did not necessarily amount to incorporation into Mauritius. Neither position proves that Folhlhavai was excluded from the 1814 cession, but together they show why later administration cannot substitute automatically for evidence of the territory’s juridical status at the moment of transfer.

The unresolved issue is therefore not whether Britain governed Folhlhavai. It plainly did. Nor does treaty silence establish that Britain lacked title. The narrower question is whether Britain acquired sovereignty through the instruments usually invoked to explain its rule. That requires proof that France possessed Folhlhavai in a juridical capacity that brought it within the “dependencies” surrendered and subsequently ceded.

If that proposition can be established from the contemporary French record, the conventional chain of title survives this inquiry. If it cannot, Britain’s subsequent sovereignty requires another legal explanation, after which any antecedent title would have to be examined independently. The 2019 Advisory Opinion answered whether the separation of Folhlhavai from Mauritius in 1965 was compatible with the law of decolonisation. A historically prior question remains open to examination. On what juridical basis did Britain acquire sovereignty over Folhlhavai in the first place?

References

1. Definitive Treaty of Peace and Amity between Great Britain and France, signed at Paris 30 May 1814, art VIII.
2. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion), Written Statement of the Republic of Mauritius, 1 March 2018, para 2.16.
3. Denys-Sacha Robin, ‘La zone maritime disputée entre la France et Maurice autour du récif de Tromelin’ (2019) 65 Annuaire français de droit international 579.
4. Assemblée nationale, Rapport No 830, Hervé Gaymard, 20 March 2013, discussion of the competing French and Mauritian interpretations of Article VIII.
5. Sénat, Rapport No 65, 1996–1997, recording Tromelin’s de facto administrative dependence upon Île de France until 1810, Île Bourbon, later Réunion, from 1814 to 1896, and Madagascar thereafter.
6. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion), CR 2018/21, 3 September 2018, 10–11, paras 19–21 (Robert Buckland QC MP, Solicitor General for the United Kingdom).
7. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ Rep 95, paras 27–29.
8. ibid para 170.
9. ibid paras 170, 182–183.