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ABSTRACT
The Chagos Archipelago off the East African coast has been the subject of a territorial and humanitarian dispute ever since it was ‘excised’ from the former British colony of Mauritius and forcibly depopulated, 50 years ago, to make place for an American military base on the principal island of Diego Garcia. Starting from a historic advisory opinion issued by the International Court of Justice (ICJ) on 25 February 2019 and an implementing resolution adopted by the United Nations General Assembly on 22 May 2019, this article aims at broadening the debate so as to take into account (i) the general context of relevant treaty instruments potentially affecting the Chagos and the Chagossians (primarily in the fields of human rights and environment); and (ii) the specific concerns of denuclearisation and disarmament raised by the Treaty on the African Nuclear-Weapon-Free Zone, in particular.
Acknowledgments
The author would like to thank the anonymous reviewers for their valuable comments, as well as the editorial team of the South African Journal of International Affairs for their work and support. He is also grateful to the participants in two academic workshops on the subject of the ICJ advisory opinion on Chagos, at the University of St. Gallen/Switzerland in October 2018 and at the Lauterpacht Centre for International Law (University of Cambridge) in April 2019, for helpful feedback.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Peter H. Sand is affiliated to the Institute of International Law at Ludwig-Maximilians-Universität in Munich/Germany. He was formerly Associate Professor of Law at McGill University Montreal/Canada; and served as legal adviser on environmental affairs for several international organisations, including the Food and Agriculture Organization of the United Nations (FAO), the International Union for Conservation of Nature and Natural Resources (IUCN), the United Nations Environment Programme (UNEP), the United Nations Economic Commission for Europe (UN/ECE), and the World Bank. He has published and/or edited a number of monographs and more than 100 peer-reviewed articles in the field of international law and governance.
Notes
1 For historical background see Abraham G, ‘Paradise claimed: disputed sovereignty over the chagos archipelago’, South African Law Journal, 128, 2011, pp. 63–99; Vine DS, Island of Shame: The Secret History of the U.S. Military Base on Diego Garcia. Princeton University Press, rev. edn., 2011; Sand PH, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik. Munich: Herbert Utz Verlag, 2011; Chelin JM, Les ziles la haut: histoire de l’archipel des Chagos. Port Louis: J. & S. Printing, 2012; Wenban-Smith WM & M Carter, Chagos: A History – Exploration, Exploitation, Expulsion. London: Chagos Conservation Trust, 2016; Allen SR & C Monaghan (eds.), Fifty Years of the British Indian Territory: Legal Perspectives. Heidelberg: Springer International, 2018.
2 ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’, United Nations General Assembly Resolution 71/292 (UN doc. A/71/L.73) of 22 June 2017.
3 <https://www.icj-cij.org/en/case/169/advisory-opinions>, reprinted in International Legal Materials, 58, 2019, pp. 445–602. In addition to the main text of the opinion, separate and joint declarations were appended by individual judges. Written and oral statements had been submitted to the Court by 31 States and the African Union. The written statement by South Africa (submitted on 1 March 2018) is available at <https://icj-cij.org/files/case-related/169/169-20180301-WRI-12-00-EN.pdf>; and a transcript of the oral statement (submitted on 4 September 2018 by J.G.S. de Wet, Chief State Law Advisor, Department of International Relations and Cooperation) at <https://icj-cij.org/files/case-related/169/169-20180904-ORA-01-00-BI.pdf> (accessed 8 August 2019). – On 30 April 2019, the UK Government declared that it rejected the ICJ opinion and reiterated its claim to sovereignty over the Chagos Archipelago; Hansard: House of Commons Debates 659 col 4WS (written statement by FCO Minister Sir Alan Duncan); but see also Burri T, ‘In the Wake of the ICJ’s Opinion in Chagos: Britannia Waives the Rules’, in Völkerrechtsblog: International Law and International Legal Thought. Heidelberg: AJV, 2019, database, accessed 8 August 2019, <https://voelkerrechtsblog.org/in-the-wake-of-the-icjs-opinion-in-chagos-britannia-waives-the-rules/>.
4 UN doc. A/RES/73/295 (24 May 2019): Joint resolution tabled by Senegal on behalf of the member states of the African Union (‘Advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965’, UN doc. A/73/L.84/Rev.1 and A/73/L.84/Rev.1/Add.1, 22 May 2019). South Africa was among the 50 African states voting in favour; voting records database, accessed 8 August 2019, <https://papersmart.unmeetings.org/media2/21492482/vote.pdf>.
5 See, eg, Milanovic M, ‘ICJ delivers Chagos advisory opinion, UK Loses Badly’, European Journal of International Law EJIL :Talk! (25 February 2019); Klabbers J, ‘Shrinking Self-Determination: The Chagos Opinion of the International Court of Justice’, European Society of International Law: ESIL Reflections, 8, 2, 27 March 2019; Iten JL, ‘L’avis consultatif de la Cour internationale de Justice du 25 février 2019 sur les Effets juridiques de la séparation de l’archipel des Chagos de Maurice en 1965’, Revue Générale de Droit International Public, 123, 2019, pp. 391–408; Minas S, ‘Why the ICJ’s Chagos Archipelago Advisory Opinion Matters for Global Justice – and for ‘Global Britain’, Transnational Legal Theory, 10, 2019, pp. 123–36; Bordin EL, ‘Reckoning with British Colonialism: The Chagos Advisory Opinion’, Cambridge Law Journal, 78, 2019, pp. 253–57; Burri T & J Trinidad (eds.), The International Court of Justice’s Advisory Opinion in Chagos. Cambridge University Press, forthcoming 2020.
6 Signed at Cairo on 11 April 1996, entered into force on 15 July 2009; text in International Legal Materials, 35, 1996, p. 698, on the drafting history see notes 90–102 infra . The treaty is named for the former South African nuclear weapons facility near Pretoria. Mauritius ratified it on 24 April 1996, and the UK ratified Protocols I and II on 19 March 2001.
7 UK-US Agreement on Availability for Defense Purposes of the British Indian Ocean Territory, concluded by exchange of notes in London (30 December 1966), 603 United Nations Treaty Series 273, with secret side-note and agreed confidential minutes, declassified and on file in UK National Archive FO 93/8/401; texts, with subsequent amendments and supplements (1972–2004) reprinted in Sand PH, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik. Munich: Herbert Utz Verlag, 2011, supra note 1, pp. 144–91. See also Afsah E, ‘Diego Garcia (British Indian Ocean Territory)’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law 3. Oxford University Press, 2012, pp. 93–8; Kattan V, ‘Self-Determination During the Cold War: UN General Assembly Resolution 1514 (1960), the Prohibition of Partition, and the Establishment of the British Indian Ocean Territory (1965)’, Max Planck Yearbook of United Nations Law, 19, 2016, pp. 419–68. On strategic aspects see Ladwig III WC, AS Erickson & JD Mikolay, ‘Diego Garcia and American Security in the Indian Ocean’, in Erickson AS & C Lord (eds), Rebalancing U.S. Forces: Basing and Forward Presence in the Asia-Pacific. Annapolis/MD: Naval Institute Press, 2014, pp. 131–79.
8 See Jeffery L, Chagos Islanders in Mauritius and the UK: Forced Displacement and Onward Migration. Manchester University Press, 2011; Evers SJTM & M Kooy (eds), Eviction from the Chagos Islands: Displacement and Struggle for Identity Against Two World Powers. Leiden: Brill, 2011; Allen SR, The Chagos Islanders and International Law. Oxford: Hart Publishing, 2014; Alexandre C & K Koutouki, ‘Les déplacés des Chagos: retour sur la lutte de ces habitants pour récupérer leur terre ancestrale’, Revue Québécoise de Droit International, 27, 2, 2014, pp. 1–26.
9 See Lunn J, ‘Disputes Over the British Indian Ocean Territory: A Survey’, House of Commons Library Research Briefings (22 May 2013, updates 22 August 2018 and 28 May 2019); Sand PH, ‘The Chagos Archipelago cases: nature conservation between human rights and power politics’, Global Community Yearbook of International Law and Jurisprudence. 2013, pp. 125–49; Bancoult O, ‘The historic legal battle of the chagossians to return to their homeland, the Chagos Islands, and to be compensated for their deportation’, South African Yearbook of International Law. 39, 2014, pp. 21–31; Frost T & CRG Murray, ‘The Chagos Islands cases: the empire strikes back’, Northern Ireland Legal Quarterly. 66, 2015, pp. 263–87. The most recent Queen’s Bench decision (of 8 February 2019) in R (on the application of Hoareau and Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, [2019] EWHC 221 (Admin) is currently under appeal. See also the public pleas by Nobel laureates to allow resettlement of the Chagossians in their home islands: Jean-Marie Le Clézio (Le Monde, 19 October 2009); Joseph Stiglitz (The Guardian, 7 March 2011); Desmond T, et al., database, accessed 8 August 2019, <https://www.chagossupport.org.uk/single-post/2017/01/05/Seven-Nobel-Laureates-call-on-Barack-Obama-to-support-resettlement-of-the-Chagos-Islands>.
10 In the Matter of the Chagos Marine Protected Area Arbitration. Mauritius v. United Kingdom, Permanent Court of Arbitration, Case No. 2011–03 (final binding award 18 March 2015), reprinted in International Law Reports, 162, 2016, p. 1, 192. See note 81 infra, and Appleby T, ‘The Chagos marine protected area arbitration: a battle of four losers?’, Journal of Environmental Law, 27, 2015, pp. 529–41; Colson DA & BJ Vohrer, ‘In re Chagos marine protected area (Mauritius v. United Kingdom)’, American Journal of International Law, 109, 2015, pp. 845–51; Talmon SAG, ‘The Chagos marine protected area arbitration: a case study of the creeping expansion of the jurisdiction of UNCLOS part XV courts and tribunals’, International and Comparative Law Quarterly, 65, 2016, pp. 927–51.
11 See Taylor D, ‘Slavery in the Chagos Archipelago’, Chagos News, 14, 2000, pp. 2–4; and Minahan J, Encyclopedia of the Stateless Nations: Ethnic and National Groups Around the World. Westport/CT: Greenwood, 2002, pp. 413–17.
12 FCO Assistant Legal Adviser A.I. Aust (16 January 1970), as quoted by Lord Justice Laws in The Queen (ex parte Bancoult) v. Foreign and Commonwealth Office, Queen’s Bench Reports [2001] p. 1080, at 1086.
13 See Fox H, ‘United Kingdom of Great Britain and Northern Ireland: dependent territories’, in Bernhardt R (ed.), Encyclopedia of Public International Law 4 (Amsterdam: Elsevier 2000), pp. 1025–29, at 1026.
14 Note, however, that at the 72nd session of the UN General Assembly on 7 December 2017, the US delegation opposed (albeit unsuccessfully) a resolution that called for specific action towards future self-determination for the territory’s indigenous Chamorro population and for a report on environmental impacts of the US military base on the island (Resolution A/RES/72/102, ‘Question of Guam’, adopted by a majority vote of 80:9, with 62 abstentions).
15 International Covenant on Economic, Social and Cultural Rights (993 UNTS 3, in force 3 January 1976); and International Covenant on Civil and Political Rights (999 UNTS 171, in force 23 March 1976). Mauritius acceded to both Covenants on 12 December 1973.
16 Fox H, ‘United Kingdom of great Britain and Northern Ireland: dependent Ttrritories‘, in Bernhardt R, (ed), Encyclopedia of Public International Law 4. Amsterdam: Elsevier, 2000, supra note 13, p. 1029.
17 In its General Comment No. 31/80 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), the UN Human Rights Committee (composed of 18 independent experts) stated that ‘States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party’; UN doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004), at para 10.
18 See the submissions by NGO Reprieve to the House of Commons Foreign Affairs Select Committee, ‘Enforced Disappearance, Illegal Interstate Transfer, and Other Human Rights Abuses involving the UK Overseas Territories’, in Overseas Territories: Seventh Report of Session 2007–2008. HC 147-II (London: Her Majesty’s Stationery Office, 2008), pp. Ev 203–19 and 305–07; and the report by Nowak M, et al., to the UN Human Rights Council, ‘Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism’, UN doc. A/HRC/13/42 (2010), at pp. 46, 57, 72, 149 and 174.
19 Report of the Committee on its 93rd Session (Geneva, 7–25 July 2008), UN doc. CCPR/C/GBR/CO/6 (30 July 2008), p. 6. See also Allen SR, ‘International law and the resettlement of the (Outer) Chagos Islands’, Human Rights Law Review. 8, 2008, pp. 683–702; and id. (supra note 8) at 262–65.
20 Adopted on 21 December 1966, in force 4 January 1969; 660 United Nations Treaty Series 195. See Afsah E, ‘Diego Garcia (British Indian Ocean Territory)’, in Wolfrum R (ed), Max Planck Encyclopedia of Public International Law. 3. Oxford University Press, 2012, pp. 93–98 (supra note 7) at 96; and Allen SR, The Chagos Islanders and International Law. Oxford: Hart Publishing, 2014, supra note 8. at 268–70.
21 UK periodic reports under Article 9, UN doc. CERD/C/GBR/18-20 (March 2010), Annex IX, at para 96; and UN doc. CERD/C/GBR/21-23 (March 2015), Annex C.
22 Committee on the Elimination of All Forms of Racial Discrimination (CERD), ‘Concluding Observations’, UN doc. CERD/C/63/CO/11 (10 December 2003), at para 26, requesting that the UK include information in its next report on the measures taken to ensure the adequate development and protection of the Chagossian people’s rights under the Convention; ‘Concluding Observations’, UN doc. CERD/D/GBR/CO/18-20, para 12 (14 September 2011), stating that the State party concerned ‘has an obligation to ensure that the Convention is applicable in all territories under its control, including the British Indian Ocean Territory’; reiterated in the Committee’s ‘Concluding Observations’ on the reports submitted in 2015, UN doc. CERD/C/GBR/CO/21-23 (October 2016), paras 4 and 41, ‘urging the State party to hold full and meaningful consultations with the Chagossians (Îlois) to facilitate their return to their islands and to provide them with an effective remedy, including compensation.’ The next UK report to the Committee is due in 2020.
23 Adopted on 4 November 1950, in force 3 September 1953, 213 United Nations Treaty Series 221; Lord Hoffmann for the majority, para 64 in R. (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (Bancoult 2), [2008] UKHL 61, All England Law Reports 4 (4008) 1055, International Law Reports, 138, 2010, p. 628; but see Allen S, ‘The scope of third-party responsibility for serious human rights abuses under the European convention on human rights: wrongdoing in the British Indian Ocean territory’, Human Rights Law Review, 16, 2016, pp. 771–97.
24 Adopted on 26 November 1987, in force 1 February 1989, 1561 United Nations Treaty Series 363.
25 Adopted on 10 December 1984, in force 26 June 1987, 1465 United Nations Treaty Series 85.
26 Adopted on 4 July 1998, in force 1 July 2002, 2187 United Nations Treaty Series 3.
27 Mauritius ratified the ICC Statute on 5 March 2002, but later signed a bilateral immunity agreement with the United States (on 25 June 2003, though still not ratified by the Mauritian National Assembly) exempting US personnel on its territory from ICC jurisdiction under article 98(2) of the Statute; see Kelley J, ‘Who keeps international commitments and why? the international court and bilateral nonsurrender agreements’, American Political Science Review, 101, 2007, pp. 573–89; Cotton DH & GO Odongo, ‘The magnificent seven: Africa’s response to US article 98’, African Human Rights Journal, 7, 2007, pp. 1–34; and van der Vyver JD, Implementation of International Law in the United States. Frankfurt: Lang, 2010, at p. 207 n. 202.
28 Adopted on 8 June 1977, in force 7 December 1978, 1125 United Nations Treaty Series 3 and 609; ratified by the UK on 28 January 1988. See the Geneva Convention (Amendment) Act (Overseas Territories) Order of 17 April 2002, effective 1 May 2002, Statutory Instruments [2002] No. 1076. Mauritius (which had ratified the Protocols on 22 March 1982) formally objected to the BIOT extension by the UK on 27 June 2003, asserting its sovereignty over the Chagos Archipelago including Diego Garcia.
29 Adopted on 12 August 1949, in force 21 October 1950, 75 United Nations Treaty Series 135 and 287; ratified by the UK on 23 September 1957 (without extension to overseas territories) and by Mauritius on 18 August 1970.
30 The reference to BIOT in this context is by Moor L & AWB Simpson, ‘Ghosts of colonialism in the European convention on human rights’, British Yearbook of International Law, 76, 2005, pp. 121–93, at 162, 188 and 193. See also Bates E, ‘Avoiding legal obligations created by human rights treaties’, International and Comparative Law Quarterly, 57, 2008, pp. 751–88, at 753.
31 Vine DS, ‘Britain’s Own Guantánamo’, The Guardian, 28 July 2009; Sand PH, ‘Diego Garcia: British-American legal blackhole in the Indian Ocean?’, Journal of Environmental Law, 21, 2009, pp. 113–37 and 295–98; id., ‘Diego Garcia: nouveau ‘trou noir’ dans l’océan Indien?’, Revue Générale de Droit International Public, 113, 2009, pp. 365–74; and Harris P, ‘America’s other Guantánamo: British foreign policy and the US Base on Diego Garcia’, Political Quarterly, 86, 2015, pp. 507–14.
32 Fox H, ‘United Kingdom of great Britain and Northern Ireland: dependent territories‘, in Bernhardt R, (ed), Encyclopedia of Public International Law. 4. Amsterdam: Elsevier, 2000, supra note 13, at 1029.
33 Foreign and Commonwealth Office, Environment Charter: British Indian Ocean Territory. London: FCO, 26 September 2001, commitments at para. 3. See Pienkowski M (ed), Measures of Performance by 2007 of UKOTs and UK Government in Implementing the 2001 Environment Charters or Their Equivalents. Petersborough: UK Overseas Territories Conservation Forum, 2007, p. 14.
34 Adopted on 9 May 1992, in force 21 March 1994, 1771 United Nations Treaty Series 107, currently 197 Parties; ratified by Mauritius on 4 September 1992.
35 Adopted on 11 December 1997, in force 16 February 2005, 2303 United Nations Treaty Series 148, currently 192 Parties; accession by Mauritius on 9 May 2001.
36 Note, however, the 2016 Annual Report of the BIOT Chief Scientific Adviser. (Spalding M., London: FCO, 2017, on file with the author), recommending that ‘BIOT should be formally brought under UK commitments under UNFCCC’ and the 2015 Paris Agreement within two years (pp. 3 and 19).
37 Goodman S (ed), National Security and the Threat of Climate Change. Alexandria/VA: Center for Naval Analysis, 2007, p. 48.
38 Adopted on 5 June 1992, in force 29 December 1993, 1760 United Nations Treaty Series 79; ratified by Mauritius on 4 September 1992, with effect also for the Chagos Archipelago and Diego Garcia; see First National Report to the Convention on Biological Diversity. Port Louis: Ministry of Agriculture, Food Technology and Natural Resources, November 2000, pp. 8 and 27. The United States signed the Convention on 4 June 1994, but never ratified it; see Blomquist RF, ‘Ratification resisted: understanding America’s response to the convention on Biological diversity’, Golden Gate University Law Review, 32, 2002, pp. 493–596.
39 See Pearce F, ‘Britain’s abandoned empire’, New Scientist, 142, 1922, 23 April 1994, p. 26.
40 Sheppard CRC, ‘British Indian Ocean territory (Chagos Archipelago): our global opportunity’, Science in Parliament, 66, 4, 2009, pp. 30–31, at 30.
41 Parliamentary statement by FCO Minister Chris Bryant, Hansard: House of Commons Debates 508 col. 822 (6 April 2010).
42 Adopted on 22 March 1989, in force 5 May 1992, 1673 United Nations Treaty Series 57, currently 187 Parties; ratified by Mauritius on 24 November 1992; not ratified by the United States.
43 According to the 1998–2001 job description (Director of Public Works) for the Diego Garcia base operating contract DG21/LLC, a joint venture of First Support Services Inc. (Dallas/TX) and WS Atkins plc (Epson/UK).
44 Further Supplementary Arrangements on Diego Garcia (concluded by exchange of notes, Washington/DC, 13 December 1982), para 4; text in Sand (supra note 1), p. 179.
45 See Tucker F & BT Doughty, ‘Naval facilities, Diego Garcia, British Indian Ocean territory: management and administration’, Proceedings of the Institution of Civil Engineers: Maritime Engineering Group, 84, 1988, pp. 191–215, at 214.
46 In 2006, the US Navy sold 4,400 tons of scrap metal and other waste material accumulated in Diego Garcia to a consortium of British, US and Philippine companies; the shipment was auctioned off in Dubai. See Davis JE, ‘Diego Garcia earns $133,000 from selling scrap’, US Navy Press Release NNS061013-09, 13 October 2006.
47 While the 1976 US Toxic Substances Control Act prohibits imports of hazardous wastes to the continental United States, wastes generated in overseas military bases may be returned for disposal in facilities approved by the US Environmental Protection Agency, under exemption procedures detailed in 63 US Federal Register 35384, 29 June 1998.
48 Adopted in the regional framework of the UN Economic Commission for Europe (UN/ECE) on 25 June 1998, in force 30 October 2001, 2161 United Nations Treaty Series 447, currently 47 Parties (Mauritius is not eligible to join).
49 The United States (which is eligible to join) did not ratify the treaty, and in 2001 withdrew from follow-up negotiations; see also the US statement in UN doc. ECE/MP.PP/2, Geneva: UN/ECE, 17 December 2002, reprinted in Environmental Policy and Law, 33, 2003, pp. 178–79.
50 See Andrusevych A & S Kern (eds), Case Law of the Aarhus Compliance Committee. Lviv, 3rd edn., 2016.
51 E-mail message to the author from BIOT Administrator J. Yeadon (26 November 2008), adding that ‘as this position is unlikely to change in the foreseeable future, there are no plans to enact legislation or ratify the Aarhus Convention in respect of BIOT’. Note, however, that the UK Environmental Information Regulations (EIRs, Statutory Instruments [2004] No. 3391) – which implement parts of the Aarhus Convention pursuant to the European Union’s Council Directive 2003/4/EC on Public Access to Environmental Information – have been held to apply in the BIOT ‘with such modifications as may be required to enable local enforcement’, according to an appellate ruling of the UK First-Tier Tribunal for Information Rights (FTT-IR) dated 28 July 2014; see Sand v. Information Commissioner and Foreign & Commonwealth Office, Case No. EA/2012/0196, paras. 39 and 52. What will happen to the EIRs after Brexit remains to be seen.
52 Adopted on 22 May 2001, in force 17 May 2004, 2256 United Nations Treaty Series 119, with 183 Contracting Parties as of 8 August 2019, including the European Union and Mauritius (which ratified the Convention on 13 July 2004, and the amendments to Annexes A and C on 28 November 2017).
53 Spalding M, 2016 Annual Report of the BIOT Chief Scientific Adviser. London: FCO, 2017, supra note 36, at 17–18, highlights the urgent need to replace the existing waste incinerators on Diego Garcia, and the pollution hazard created by continuing use of PFOS aircraft firefighting foam (strictly prohibited under EU regulations).
54 Adopted on 16 November 1972, in force 17 December 1975, 1037 United Nations Treaty Series 151; administered by the World Heritage Centre (WHC) of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in Paris. Also ratified by the United States on 7 December 1973, and by Mauritius on 19 September 1995. The United States withdrew from UNESCO with effect from 1 January 2019 (though continuing its membership in the World Heritage Convention) and had already stopped contributing to the World Heritage Fund since 2012.
55 BIOT Administration, The British Indian Ocean Territory Conservation Policy. London: FCO, 1997, p. 1.
56 On proposals by the non-governmental Mauritius Marine Conservation Society (MMCS) since 1996, see Ollivry T, Diego Garcia: enjeux stratégiques, diplomatiques et humanitaires. Paris: Harmattan, 2008, p. 30; a similar proposal was discussed by the UK Chagos Islands (BIOT) All-Party Parliamentary Group (APPG) at its 27th meeting (1 February 2012).
57 ‘Conserving the Marine Environment of the Chagos Archipelago’, IUCN Draft Motion No. 177 (2012); and Note Verbale by Mauritius No. 258/2012 MMG/CD/5 (12 September 2012).
58 Adopted at on 2 February 1971, in force 21 December 1975, 996 United Nations Treaty Series 245; ratified by the United States with effect from 18 April 1987, and by Mauritius with effect from 30 September 2001.
59 Ramsar site no. 1077 (354.2 km2); map in Pienkowski MW, Review of Existing and Proposed Ramsar Sites in UK Overseas Territories and Crown Dependencies. London: Department of Environment, Food and Rural Affairs, 2005, p. 865.
60 With a ‘Fisheries (Conservation and Management) Ordinance 1991’, replacing the Ordinance of 12 August 1984 (which in turn had superseded an earlier 1971 Ordinance).
61 United Nations Law of the Sea Bulletin, no. 54, 2004, p. 128.
62 Note Verbale No. 4780/04 to the UN Secretariat, and Note Verbale MHCL 886/i/03 to the FCO.
63 Implementing the Maritime Zones Act No. 2 of 28 February 2005; see UN Law of the Sea Bulletin no. 62, 2005, p. 35.
64 Recorded by the UN Secretariat in Law of the Sea Notification M.Z.N. 63.2008.
65 Note No. 26/09 of the UK Mission to the UN; and Note Verbale No. 107853/09 of the Mauritian Mission; both reprinted in United Nations Law of the Sea Bulletin, no. 69, 2009, p. 110, and No. 70 (2009), p. 59.
66 Adopted on 28 July 1994, provisionally in force since 16 November 1994; 1836 United Nations Treaty Series 3.
67 CLCS, Preliminary Information Submitted by the Republic of Mauritius Concerning the Extended Continental Shelf in the Chagos Archipelago Region Pursuant to the Decision Contained in SPLOS/1983, MCS-PI-DOC (May 2009). On 24 December 2015, Mauritius informed the CLCS that it intended to make a coordinated submission with the UK after further consultations during the following year. However, those negotiations were not pursued; and in light of the 2019 ICJ advisory opinion, Mauritius reiterated its sovereignty claim over the southern part of the shelf by way of a new submission on 26 March 2019; see CLCS, Partial Submission by the Republic of Mauritius Concerning the Extended Continental Shelf in the Southern Chagos Archipelago Region, MCSS-ES-DOC (March 2019, for the CLCS 50th plenary session in August 2019), Executive summary, p. 10.
68 Statement by Mauritian Foreign Minister Arvin Boolell, as quoted in ‘Chagos: opposition et inquiétudes des Maldives’, Le Mauricien, 19 February 2010.
69 Concluded at Vacoas/Mauritius on 13 March 2012, in force 18 June 2012, 2847 United Nations Treaty Series 277 and 307.
70 CLCS, Continental Shelf Notification 53.2010.LOS (28 July 2010); and Submission by the Republic of the Maldives, Executive Summary, MAL-ES-DOC (July 2010).
71 Note Verbale No. 1717/10 (9 August 2010); see Bowcott O, ‘Chagos Island exiles amazed by speed of foreign office’s opposition to seabed claim by maldives’, The Guardian, 27 September 2010.
72 Notes Verbales No. 10887/10 (29 October 2010) and No. 11031 (24 March 2011) to the UN Secretariat.
73 Statement by the Chairperson, 27th Session, UN Doc. CLCS/70 (11 May 2011), paragraph 30.
74 Written answer by FCO Minister of State Dr. Kim Howells, Hansard: House of Commons Debates 470 col. 559W (9 January 2008); British Yearbook of International Law, 79, 2008, p. 727.
75 Statement by FCO Parliamentary Undersecretary of State Bill Rammell, Hansard: House of Commons Debates 423 col. 292WH (7 July 2004); British Yearbook of International Law, 75, 2004, p. 669.
76 In 1997, the UK abandoned its claim to an EEZ around the uninhabited island of Rockall in the Atlantic (400 km off the coast of Scotland), citing UNCLOS Article 121(3); see the statement by Foreign Secretary Robin Cook, Hansard: House of Commons Debates 298 col. 397 (21 July 1997); and MacDonald F, ‘The last outpost of empire: rockall and the cold war’, Journal of Historical Geography, 32, 2006, pp. 622–47.
77 See Charney JI, ‘Rocks that cannot sustain human gabitation’, American Journal of International Law, 93, 1999, pp. 863–78, at 866 n. 21; Kwiatkowska B & AHA Soons, ‘Some reflections on the ever puzzling rocks-principle under UNCLOS Article 121(3)’, Global Community Yearbook of International Law and Jurisprudence, 11, 2011, pp. 139–47; and Murphy SD, ‘International law relating to Islands’, Hague Academy of International Law: Recueil des Cours, 386, 2016, pp. 9–266, at 56–76.
78 The FCO initially estimated the BIOT area as 544,000 km2 (more than double the territory of the UK), but in April 2012 corrected the figure upward to 638,568 km2 (usually rounded to 640,000 km2), citing a clerical error by the UK Hydrographic Office; (2012) 13:6 Marine Protected Area News.
79 See the voting record of Resolution 73/295 (supra note 4) and the summary of the Maldives’s explanation of vote, UN Press Release GA/12146 (22 May 2019). The representative of Mauritius replied, stating that the two countries had discussed the maritime boundary in 2010 on the basis of equidistance, but those discussions were inconclusive. See also the (overlapping) map in the 2010 CLCS Submission by the Maldives (supra note 70).
80 BIOT Proclamation No. 1 of 2010 (1 April 2010); see Sand P.H., ‘Fortress Conservation Trumps Human Rights? The ‘Marine Protected Area’ in the Chagos Archipelago’ (invited editorial), Journal of Environment and Development, 2012, pp. 36–9; Caron DD & S Minas, ‘Conservation or claim? the motivations for recent marine protected areas’, in Scheiber HN et al. (eds), Ocean Law Debates: The 50-Year Legacy and Emerging Issues for the Years Ahead. Leiden: Brill/Nijhoff, 2018, pp. 529–52, at 538.
81 In the Matter of the Chagos Marine Protected Area Arbitration, award of 18 March 2015, International Law Reports, 162, 2016, p. 1, 192 (supra note 10). See Waibel M, ‘Mauritius v. UK: Chagos marine protected area unlawful’, European Journal of International Law EJIL:Talk!, 17 April 2015; and Meetarbhan MJN, ‘The 2010 declaration of a marine protected area around the Chagos archipelago’, Yearbook of International Environmental Law, 28, 2017, pp. 15–37.
82 Dunne RP et al., ‘The creation of the Chagos marine protected area: a fisheries perspective’, in Johnson ML & J Sandell (eds), Advances in Marine Biology. 69. 2014, pp. 79–127, at 110. See also the exclusion of the US military base from the UK Ramsar Convention site on Diego Garcia (supra note 59).
83 Sand PH, United States and Britain in Diego Garcia: The Future of a Controversial Base. New York: Palgrave Macmillan, 2009, at 64. Section 3 of the BIOT Courts Ordinance of 1983 (in force since 1 February 1984) declares that the law of the Territory is ‘the law of England as from time to time in force’, ‘provided that the said law of England shall apply in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary.’
84 International Legal Materials, 35, 1996, p. 698, supra note 6.
85 UN General Assembly Resolution 2033 (XX), <http://www.refworld.org/docid/3b00f1d168.html>, reiterating similar declarations by the Organization of African Unity (OAU) and the Non-Aligned Countries (adopted at Cairo in July and October 1964).
86 Resolutions 2832 (XXVI) and 2992 (XXVII). See Braun D, The Indian Ocean: Region of Conflict or Zone of Peace? London: Hurst, 1983; and McAlister-Smith P, ‘Zones of peace’, in Wolfrum R (ed), Max Planck Encyclopedia of Public International Law. 10. Oxford University Press, 2012, pp. 1111–18, at 1114.
87 See Larus J, ‘Diego Garcia: political clouds over a vital U.S. Base’, Strategic Review, 10, 1982, pp. 44–55.
88 Report of the Ad Hoc Committee on the Indian Ocean, UN General Assembly: Official Records, 45th Session, Supplement No. 29 (A/45/29), at p. 1, para 3.
89 The African Nuclear-Weapon-Free Zone was modeled after four other regional agreements banning nuclear weapons in their area of application: the 1959 Antarctic Treaty, the 1967 Treaty of Tlatelolco (for Latin America and the Caribbean), the 1985 Treaty of Rarotonga (for the South Pacific), and the 1995 Treaty of Bangkok (for Southeast Asia); see Goldblat J, ‘Nuclear-Weapon-Free zones: a history and assessment’, Non-Proliferation Review, 4, 3, 1997, pp. 18–32; Roscini M, ‘Negative security assurances in the protocols additional to the treaties establishing nuclear weapon-free zones’, in Gärtner H (ed), Obama and the Bomb: The Vision of a World Free of Nuclear Weapons. Frankfurt & New York: Peter Lang, 2011, pp. 129–47; Siracusa JM & A Warren, ‘The nuclear non-proliferation regime: an historical perspective’, Diplomacy and Statecraft, 29, 1, 2018, pp. 3–28.
90 See UK Foreign and Commonwealth Office, Explanatory Memorandum for the African Nuclear-Weapon-Free Zone Treaty (The Treaty of Pelindaba), Command Paper 3498. London: H.M.S.O., 2000, para IV (a) (ii).
91 For background see Schonberg KK, ‘The generals’ diplomacy: U.S. military influence in the treaty process’, Seton Hall Journal of Diplomacy and International Relations, 3, 2002, pp. 68–83, at 80; Sand PH, ‘African nuclear-eeapon-free zone: what next for Diego Garcia?’ American Society of International Law (ASIL) Insights, 13, 12, 28 August 2009; Siracusa JM & A Warren, ‘The nuclear non-proliferation regime: an historical perspective’, Diplomacy and Statecraft, 29, 1, 2018, pp. 3–28 (supra note 89), at 17.
92 Map reproduced in Poitevin C, Le traité de Pelindaba: l’Afrique face au défi de la prolifération nucléaire. Brussels: Groupe de recherche et d’information sur la paix et la sécurité, 2009, at 31; and in Foy HK, Five Years after Entry-Into-Force of the Treaty of Pelindaba on the African Nuclear-Weapon-Free Zone: Progress, Challenges, and Next Steps, Background Paper for the Academic Symposium on the Non-Proliferation Treaty. New York: UN Office for Disarmament Affairs & Harvard Belfer Center, 28 April 2015, Appendix.
93 The current Wikipedia entry on the Pelindaba Treaty boldly declares (without source reference) that ‘Diego Garcia is part of the Chagos Archipelago claimed by Mauritius. The other islands of the Chagos Archipelago are considered in Africa and are under the treaty, but neither the United States nor the United Kingdom recognizes Diego Garcia as being subject to the treaty.’ See <https://en.wikipedia.org/wiki/African_Nuclear-Weapon-Free_Zone_Treaty> (accessed 8 August 2019, emphasis added). That interpretation appears to be based on a comparative study published by the Canadian Centre for Treaty Compliance (de Jong D & R Froklage, Regional Nuclear Weapon-Free Zones. Ottawa: Carleton University, 2 February 2010, claiming that ‘the rest of the Chagos Archipelago – of which Diego Garcia is a part – is incontestably included’), though without any authentic evidence for the distinction so drawn between Diego Garcia and the outer Chagos islands.
94 Adeniji O, The Treaty of Pelindaba on the African Nuclear-Weapon-Free Zone. Geneva: UN Institute for Disarmament Research, 2002. See also Ogunbanwo S, ‘History of the efforts to establish an African nuclear-weapon-free zone’, Disarmament, 19, 1, 1996, pp. 14–20; Roscini M, Le zone denuclearizzate. Turin: Giappichelli, 2003, at 16–18, 139–41; van Wyk JA, ‘No nukes in Africa: South Africa, the denuclearisation of Africa and the Pelindaba Treaty’, Historia: Journal of the Historical Association of South Africa, 57, 2, 2012, pp. 263–97; Swart SJ, ‘An African contribution to the nuclear weapons debate’, International Review of the Red Cross, 97, 2015, pp. 753–73.
95 Adeniji O, The Treaty of Pelindaba on the African Nuclear-Weapon-Free Zone. Geneva: UN Institute for Disarmament Research, 2002, supra note 94, at 283.
96 Ibid., at 149–50.
97 Letter from the British Ambassador to the Secretary General of the Organization for African Unity (Cairo, 11 April 1996), reprinted in Adeniji (ibid.), at 157, 299. See Sand PH, ‘Diego Garcia: a thorn in the side of Africa’s nuclear-weapon-free zone’, Bulletin of the Atomic Scientists, 65, 6, 8 October 2009; Stott N, ‘The treaty of Pelindaba: towards the Full Implementation of the African NWFZ Treaty’, Disarmament Forum (2011):2, pp. 15-25, at 19.
98 Adopted on 1 December 1959, in force 23 June 1961, 402 United Nations Treaty Series 71.
99 UK Foreign and Commonwealth Office, Overseas Territories Directorate, Polar Regions Department, <https://www.gov.uk/world/organisations/british-antarctic-territory> (accessed 8 August 2019, emphasis added); see also Henry I. and S. Dixon, British Overseas Territories Law (Oxford: Hart, 2nd edn. 2018), at 325. On other parallels and contrasts between BAT and BIOT, see Sand P.H., ‘‘Marine Protected Areas’ off UK Overseas Territories: Comparing the South Orkneys Shelf and the Chagos Archipelago’, Geographical Journal 178 (2011), pp. 201-7.
100 US Department of State, Bureau of International Security and Nonproliferation, Diplomacy in Action <https://www.state.gov/t/isn/4699.htm>, (accessed 8 August 2019, emphasis added). See also Fischer D.A.V. [South African lawyer and former assistant director general for external relations of International Atomic Energy Agency, IAEA], ‘The Pelindaba Treaty: Africa joins the nuclear-free world’, Arms Control Today, 25, 10, 1996, pp. 9–20, at 10: ‘While U.S. access to Diego Garcia may be affected by a future determination of sovereignty over the Chagos Archipelago, the [US] Arms Control and Disarmament Agency has stated that the notation on the annex map adequately protects U.S. interests because any resolution of the issue will have to occur outside the framework of the treaty’; and Tossini JV, ‘The British Indian Ocean territory: an unsinkable Aircraft carrier in the form of Diego Garcia’, UK Defence Journal, 1 September 2018, p. 1: ‘Neither the United States nor Britain recognizes Diego Garcia – or the BIOT as a whole – as being subject to the African Nuclear-Weapons-Free-Zone Treaty, which lists the BIOT as covered by the treaty.’ But see Chomsky N, Hopes and Prospects. London: Penguin, 2011, p. 168 (Diego Garcia as a ‘storage site for nuclear weapons for future use’, ‘perhaps the most egregious violation of the intent of an NWFZ’).
101 Russian reservation upon ratification (5 April 2011), as translated by the UN Office for Disarmament Affairs, available at <http://disarmament.un.org/treaties/a/pelindaba_1/russianfederation/rat/cairo> (accessed 8 August 2019, emphasis added). According to Russian Deputy Foreign Minister S Ryabkov, ‘This is an important reservation, which allows us to fully maintain our own security in hypothetical situations of the emergence [of] crises or conflicts in which the potential use of nuclear weapons is possible;’ as cited in Stott N, ‘The Treaty of Pelindaba: towards the full implementation of the African NWFZ Treaty’, Disarmament Forum, 2011, 2, pp. 15–25, at 20.
102 Rosen ME [Captain USN, international law attorney in the US Navy Judge Advocate General’s Corps], ‘Nuclear weapons free zones: time for a fresh look’, Duke Journal of Comparative and International Law, 8, 1997, pp. 29–77, at 48; see also Arkin WM, ‘Calculated ambiguity: nuclear weapons and the gulf war’, Washington Quarterly, 19, 4, 1996, pp. 3–18, at 10. In the past, the US has authorized the wartime deployment to Diego Garcia of nuclear depth bombs for P-3 [naval aircraft] operations; Fischer DAV, ‘The Pelindaba Treaty: Africa joins the nuclear-free world’, Arms Control Today, 25, 10, 1996, pp. 9–20 (supra note 100), at p. 10.
103 Baroness Kinnock of Holyhead, Private Notice Questions, Hansard: House of Lords Debates 718 col. 1364 (6 April 2010).
104 See Anderson K, ‘The Ottawa convention banning landmines, the role of international non-governmental organizations and the Idea of international civil society’, European Journal of International Law, 11, 2000, pp. 91–120; and Lawand K, ‘The convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction (Ottawa Convention)’, in Ulfstein G (ed), Making Treaties Work: Human Rights, Environment and Arms Control. Cambridge University Press, 2007, pp. 324–50, at 342.
105 See ICBL, Landmine Monitor Report 1999: Toward a Mine-Free World. Ottawa: Mines Action Canada, 1999, at 328–34, citing official US sources for Diego Garcia stocks as of 1997; last updated on 23 October 2017 (based on data from US Department of Defense) in ICBL Monitor Country Profiles, ‘United States Mine Ban Policy, Table: US stockpiles of antipersonnel mines in 2010’, showing a total of 26,398 GATOR antipersonnel mines stored outside the United States. The United States has used cluster mines in Iraq and Afghanistan; see US General Accounting Office, Military Operations: Information on U.S. Use of Land Mines in the Persian Gulf War. Washington/DC: GAO-02-1003, 30 September 2002.
106 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, adopted in Oslo on 18 September 1997, in force 1 March 1999, 2056 United Nations Treaty Series 211, currently 164 Parties; ratified by Mauritius on 3 December 1997, and by the UK on 31 July 1998; extended to UK overseas territories (explicitly including the BIOT) on 4 December 2001. See Caflisch L & F Godt, ‘De la réglementation à l’interdiction des mines anti-personnel’, Revue Suisse de Droit International et de droit Européen, 8, 1998, pp. 1–50; and Boothby WH, Weapons and the Law of Armed Conflict. Oxford University Press, 2nd edn., 2016, pp. 149–88.
107 Written answer by Foreign Secretary Robin Cook, Hansard: House of Commons Debates 345 col. 504W (6 March 2000); see also the letter dated 25 February 2003 from Adam Ingram, Minister of State for the Armed Forces, to the Diana Princess of Wales Memorial Fund and the ICBL, as quoted in Jacobs CW [US Army Judge Advocate], ‘Taking the next step: an analysis of the effects the Ottawa convention may have on the interoperability of United States forces with the armed forces of Australia, great Britain and Canada’, Military Law Review, 180, 2004, pp. 49–114, at 95 n. 182.
108 Ambassador D. Broucher, ‘General Status and Operation of the Convention: UK Intervention on Article 1’; as quoted in Jacobs (ibid., supra note 107), at 67.
109 ‘Permitting the transit of antipersonnel mines through the territory of a State Party would undermine the object and purpose of the [Convention] … and contradict its prohibition on assisting anyone in the stockpiling and use of antipersonnel mines’, ICRC Legal Office, in ICBL, Landmine Monitor Report 1999: Toward a Mine-Free World. Ottawa: Mines Action Canada, 1999, supra note 105, Annex, at 1005-6; and see Carter P (chair of the British Bar Human Rights Committee), letter dated 19 November 2003 to the UK Foreign Secretary, as quoted by Jacobs (ibid., supra note 107), at 95: ‘If anti-personnel mines were offloaded onto land, eg, to be transferred from ship to aircraft, this would not be consistent with our Ottawa Convention obligations’. On the obligation under Article 1(1)(c) not ‘to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention’, see also Maslen S, Commentaries on Arms Control Treaties: The Convention on the Prohibition of the Use, Stockpiling, Production and Transfers of Anti-Personnel Mines and Their Destruction. Oxford University Press, 2004, p. 100.
110 Eg, see the US$46.5 million contract awarded to Sealift Inc. of Oyster Bay/NY for time charter of its cargo vessel MV Fisher to ‘preposition’ ammunition in and around Diego Garcia from November 2009 to September 2014; contract N00033-09-C-3301, Defense Industry Daily (14 July 2009), following earlier similar time charters since 1998. On ship-based ammunition storage in the Diego Garcia lagoon (within designated ‘explosive safety quantity distance’ arcs, ESQD) see generally Labs EJ, The Future of the Navy’s Amphibious and Maritime Prepositioning. Washington/DC: U.S. Congressional Budget Office, November, 2004, p. 6.
111 Convention on Cluster Munitions, adopted on 30 May 2008, in force 1 August 2010, 2688 United Nations Treaty Series 39. See Wiebe V, ‘Footprints of death: cluster bombs as indiscriminate weapons under international humanitarian law’, Michigan Journal of International Law, 48, 2009, pp. 85–168; David E, ‘La convention de 2008 sur les armes à sous-munitions’, Revue Générale de Droit International Public, 113, 2009, pp. 789–806; Nystuen G & S Casey-Maslen (eds), The Convention on Cluster Munitions: A Commentary. Oxford University Press, 2010; and Boothby WH, Weapons and the Law of Armed Conflict. Oxford University Press, 2nd edn., 2016, supra note 106, at 264–78.
112 See Crook JR, ‘Contemporary practice of the United States relating to international law: U.S. policy regarding landmines’, American Journal of International Law, 102, 2008, pp. 190–91. – The treaty currently has 106 States Parties (Mauritius acceded on 1 October 2015).
113 Article 7(1) (b), similar to the corresponding article of the Ottawa Convention.
114 Written answer by Baroness Taylor of Bolton, Minister for International Defence and Security, Hansard: House of Lords Debates 718 col. 385WA (6 April 2010).
115 Statement by FCO Minister Baroness Kinnock of Holyhead, Hansard: House of Lords Debates 715 col. 1020 (8 December 2009); see also the written answer by FCO Minister Bill Rammell, Hansard: House of Commons Debates 508 col. 1506W (8 April 2010).
116 UK Report under Article 7 for the year 2016, Form B (Stockpiles and Destruction), reiterating as ‘unchanged’ the information submitted in the report for the year 2013.
117 So-called ‘NATO clause’, introduced at the request of Germany and other NATO member countries; on the ‘interoperability’ issue, see also Boothby WH, Weapons and the Law of Armed Conflict. Oxford University Press, 2nd edn., 2016, supra note 106, at 274.
118 Similar unilateral statements were made by Australia, Canada, the Czech Republic, Montenegro, Poland and Serbia, but were contested at subsequent treaty meetings by other parties including Brazil, Mexico and Switzerland; on this unresolved controversy see Hayashi M, ‘The Ottawa convention on landmines in two perspectives: international humanitarian law and disarmament’, in Krishna-Hensel SF (ed), Global Cooperation: Challenges and Opportunities in the Twenty-First Century. Aldershot: Ashgate, 2006, pp. 75–108, at 97–100; and Dörmann K, ‘Land mines’, in Wolfrum R (ed), Max Planck Encyclopedia of Public International Law. 6. Oxford University Press, 2012, p. 670 (updated online 2015), reprinted in Lachenmann F & Wolfrum R (eds), The Law of Armed Conflict and the Use of Force. Oxford University Press, 2017, pp. 629–37, at para 18.
119 Written answer by Ainsworth B., Minister of State for the Armed Forces, Hansard: House of Commons Debates 476 col. 1061W (5 June 2008). See also Evans R & D Leight, ‘UK secretly allowed US to keep cluster bombs at base’, in The Guardian. London, 2 December 2010, pp. 1–2, quoting ‘temporary exceptions’ granted by Nicolas Pickard, head of the FCO’s security policy unit, according to US Embassy cables revealed by Wikileaks. – By contrast, Norway successfully insisted on the immediate removal of all prohibited ordnance from the American bases on its territory.
120 Signed in Moscow on 31 July 1991, in force 5 December 1994; U.S. State Department Dispatch Supp. 2:5 (October 1991). See Federation of American Scientists, Strategic Arms Reduction Treaty (START) Inspectable Sites in the United States. Washington/DC, 1997, database, accessed 8 August 2019, <http://www.fas.org/nuke/control/start1/news/stus97.html>.
121 Diakov A & E Miasnikov, ‘RESTART: the need for a new U.S.-Russian strategic arms agreement’, Arms Control Today, 36, 7, 2006, pp. 6–11, at 9.
122 Prague (signed 8 April 2010, in force 5 February 2011); International Legal Materials, 50, 2011, pp. 342–348. Following both parties’ completion of the agreed reductions of their strategic nuclear arsenals, the treaty’s ‘central limits’ took effect on 5 February 2018; see US State Department Press Statement (5 February 2018).
123 New START, Article IV (11), International Legal Materials, 50, 2011, at p. 345.
124 Sand PH, ‘The Chagos archipelago: footprint of empire, or world heritage?’ Environmental Policy and Law, 40, 2010, pp. 232–42, at 237 (‘a prime arms control loophole’).
125 Dunne R, ‘Nuclear Berths at Diego Garcia’, database, accessed 8 August 2019, <https://sites.google.com/site/thechagosarchipelagofacts/diego-garcia/pollution>. From 2010 to 2016, visiting US nuclear-powered submarines were serviced at Diego Garcia by the submarine tender USS Emory S. Land (AS-39), previously stationed at the US naval base of Santo Stefano in the Mediterranean, from where she had to leave in the face of persistent public protests over alleged radionuclide wastewater discharges in an adjoining Italian marine protected area; see Aumento F et al., ‘Transuranium radionuclide pollution in the waters of the La Maddalena national marine park’, Journal of Environmental Radioactivity, 82, 2005, pp. 81–93; Erickson AS et al., ‘Diego Garcia and the United States’ emerging Indian Ocean strategy’, Asian Security, 6, 2010, pp. 214–37, at 226. The Mauritian Government protested against the transfer of the Emory S. Land to Diego Garcia by a diplomatic note, referring to its international obligations under the Pelindaba Treaty; summary in US Embassy cable of 20 January 2010, database, accessed 8 August 2019, <https://wikileaks.org/plusd/cables/10PORTLOUIS21_a.html>. In 2016, the tender was permanently moved to the US naval facility in Guam.
126 Kristensen HM, ‘US nuclear forces’, SIPRI Yearbook, 2016, pp. 611–18, at 616; Kristensen HM & M Korda, ‘United States nuclear forces, 2019’, Bulletin of the Atomic Scientists, 75, 2019, pp. 122–34.
127 Doyle S, ‘The United States sale of trident to Britain, 1977–1982: deal making in the Anglo-American nuclear relationship’, Diplomacy and Statecraft, 28, 2017, pp. 477–93; Kristensen HM & RS Norris, ‘British nuclear forces’, Bulletin of the Atomic Scientists, 67, 2011, pp. 89–97; Kile SN & HM Kristensen, ‘British nuclear borces’, SIPRI Yearbook, 2018, pp. 252–55. The UK’s HMS Vanguard (S-28) has, however, been out of operation since 2015; see ‘Nuclear Submarine to Get New Core After Test Reactor Problem’, BBC News (6 March 2014), database, accessed 8 August 2019, <https://www.bbc.com/news/uk-politics-26463923>.
128 In the view of the ICJ judges, resettlement of the Chagossians in their home islands is ‘an issue relating to the protection of human rights of those concerned, which should be addressed by the General Assembly during the completion of the decolonization of Mauritius’; ICJ advisory opinion opinion (supra note 3), para 181. See also Burri T, ‘Two points for the international court of justice in Chagos: take the case, all of it – it is a human rights case’, in Questions of International Law: Questions de Droit International. Milan: University of Milano-Bicocca, online 31 January 2019.
129 ‘Chagos: Une inspection nucléaire sera réclamée sous le traité de Pelindaba, annonce Boolell’, L’Express Maurice (<http://www.lexpress.mu>, Port Louis, 2 November 2010); cited in Sellström T, Africa in the Indian Ocean: Islands in Ebb and Flow. Leiden: Brill, 2015, at 354. For references to the deployment of nuclear weapons at the Diego Garcia base, see notes 100–103 supra.
130 See <http://www.lalitmauritius.org/en/newsarticle/1903/diego-garcia-first-ever-call-for-inspections-under-pelindaba-treaty-for-nuclear-arms-free-africa/>; and <http://www.lalitmauritius.org/en/newsarticle/2131/pravind-jugnauth-must-urgently-call-for-inspections-for-nuclear-materials-illegally-stocked-on-diego-garcia/> (accessed 8 August 2019).
131 Eg, see ‘Diego Garcia in Nuclear Weapons Free Zone’, Mauritius Times editorial (Port Louis, 21 August 2009), <http://www.mauritiustimes.com/210809r.v.htm>. Note, however, that Mauritius has not signed the general Treaty on the Prohibition of Nuclear Weapons. New York, 7 July 2017, not yet in force, unlike 20 other member states of the African Union (including South Africa, which ratified the treaty on 25 February 2019).
132 Millar TB, ‘Geopolitics and military/strategic potential’, in Cottrell AJ & RM Burrell (eds), The Indian Ocean: Its Political, Economic and Military Importance. New York: Praeger, 1972, pp. 63–77, at 72; see also Harkavy R.E., ‘Thinking About Basing’, in Lord C. (ed.), Reposturing the Force: U.S. Overseas Presence in the Twenty-First Century. Newport/RI: US Naval War College, 2006, pp. 17–39, at 28 (‘immune to future political threats’).
133 UN doc. A/RES/73/295 (24 May 2019, supra note 4).
134 ICJ advisory opinion of 25 February 2019 (supra note 3), Declaration of Judge Peter Tomka, as reprinted in International Legal Materials, 58, 2019, pp. 483–5, at 485, quoting the ‘solemn commitment‘ by Mauritius to accept the continued operation of the foreign military base on Diego Garcia in accordance with international law. See also Jeffery L, ‘The international court of justice advisory opinion on the Chagos Archipelago’, Anthropology Today, 35, 3, 2019, pp. 24–27, at 26.
135 Affirmed in the Mauritian diplomatic protest concerning USS Emory S. Land, referenced in the US Embassy cable of 20 January 2010, <https://wikileaks.org/plusd/cables/10PORTLOUIS21_a.html> (supra note 125).
136 Supra, pp. 3–5; see also Sand PH, ‘Chagos and the perplexities of the law of treaties’, in Burri T & J Trinidad (eds), The International Court of Justice’s Advisory Opinion in Chagos. Cambridge University Press, forthcoming 2020, supra note 5, at ch. 7, fig. 15.
137 Agreement for Defence Purposes of the British Indian Ocean Territory, concluded in London on 30 December 1966 (supra note 7), 603 United Nations Treaty Series 273.
138 It is noteworthy in this context that Article 1(b)(ii) in Annex II of the 1966 Agreement reserved to the UK authorities ‘exclusive jurisdiction over members of the United States forces with respect to offences, including offences to security, punishable by law in the territory but not by the law of the United States’; text reprinted in Sand PH, United States and Britain in Diego Garcia: The Future of a Controversial Base. New York: Palgrave Macmillan, 2009, supra note 83, at 76. That provision was modeled after Article VII (2) (a) of the NATO Status of Forces Agreement (SOFA, 199 UNTS 67, adopted in London on 19 June 1951, in force 23 August 1953); see Rouse JH & GB Baldwin, ‘The exercise of criminal jurisdiction under the NATO status of forces agreement’, American Journal of International Law, 51, 1957, pp. 29–62; Woodliffe J, The Peacetime Use of Foreign Military Installations under Modern International Law. Dordrecht: Nijhoff, 1992, at 173.