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| Ad hoc judge Bernard H. Oxman |
Let's be real: this decision is a jerry-rigged legal manoeuvre more motivated by political expediency than genuine jurisprudence. It not only misconstrues UNCLOS but also disrespects foundational doctrines of state and consent of jurisdiction in international adjudication. In a courtroom where balance and moderation ought to have been the guiding forces, the judgment was colored by politics, and the law was disfigured. A judicial decision to allow Mauritius' claim to proceed, despite a dispute over the sovereignty of the Chagos Archipelago with the United Kingdom, is a diplomatic trap and a massive overreach.
From the outset, the Maldives has unequivocally stated that the Chagos Archipelago is at the heart of a sovereignty dispute between Mauritius and the UK. The Maldives has consistently maintained that the resolution of the territorial title is a prerequisite for defining maritime zone boundaries, a principle firmly established by the ICJ, UNCLOS, and customary international law. Rather than seeking preferential treatment, the Maldives has sought legal clarification before pursuing any remedy, a course of action that any honest international lawyer would find unobjectionable.
But the Tribunal refused even to address this fundamental legal condition. Instead, it relied heavily on the advisory opinion of the ICJ on the decolonisation of Chagos and General Assembly Resolution 73/295, both of which are non-binding instruments. It's also worth considering what became of the ICJ's advisory opinion concerning the Wall in the Occupied Palestinian Territory: cited as having legal force, yet never marshalled as a way to resolve a bilateral territorial dispute conclusively. That's because advisory opinions are supposed to elucidate, not adjudicate. However, on this occasion, a tribunal took a bold step beyond when it expressed the view that Mauritius's sovereignty was "inferred" from the opinion. It was a step beyond judicial restraint, a transformation of political preferences into legal certitudes. It subverted the doctrine of res judicata, which mandates that disputes can be settled only by decisions that are final and binding. What the Tribunal provided instead was an inference dressed up as law, and that's a dangerous precedent.
The Tribunal's actions were not just a misinterpretation of the situation but a complete disregard for it. It spun a judge-made narrative of a convenient fiction dropping into a hole. A presumption does not create an entitlement in international law, and an advisory opinion is not a source of legal title. However, the Tribunal dismissed the Maldives' legitimate concern that the UK had been excluded from the case on UK territory, based on the premise that there was no dispute over sovereignty. It relied on a non-binding pronouncement by the ICJ, despite the court having never made such a categorical statement.
As Judge Oxman correctly noted in his thoughtful dissent, discussing a critical aspect. He drew attention to something that should be clear to anyone who looks beyond the geopolitical theatre that still surrounds them: You cannot delimit a permanent maritime boundary as long as the land from which those maritime claims originate is legally unsettled. If they ignore land issues in the future, they will not only create flawed laws but will also put the state's security at risk. It incentivises those who bypass crucial sovereignty considerations by proceeding directly to delimitation. This behaviour incentivises them to abuse dispute resolution mechanisms and demand what they are not already legally entitled to. It makes UNCLOS dispute settlement a shortcut to resolving outstanding land disputes.
Critics of the Maldives have attempted to paint its rejection of maritime delimitation negotiations with Mauritius as a sign of bad faith. However, as Judge ad hoc Oxman correctly noted, the Maldives' withdrawal was a strategic and principled invocation based on well-established principles of international law. The Maldives was trying to avoid being drawn into an unresolved sovereignty dispute between Mauritius and the United Kingdom, a dispute that remains legally and diplomatically unresolved. The Maldives' actions were a demonstration of the kind of restraint that states commonly exercise when faced with unfavourable questions of sovereignty.
To suggest, as some critics have, that the Maldives should have taken a more proactive stance is to misunderstand the nature of international law. It's worth remembering that it took Malaysia and Singapore decades to refer their island dispute, Pedra Branca, to the ICJ. The Maldives' response, therefore, can be seen as a legally justifiable one, given that it came after the expiry of a reasonable time and should not be deemed a refusal based on an obstinate and groundless position. The Maldives' actions demonstrate a commitment to the principles of international law.
States are not required under Articles 74(2), 73, and 83(2) of UNCLOS to precipitously approach delimitation under uncertain legal circumstances. Those provisions are there for a reason: to avoid precipitating action and to permit judgmental action instead. However, ITLOS interpreted the Maldives' warning not simply as a precaution, but as non-cooperation —a remarkable and unjust stance, particularly as the Tribunal itself should have known that the issue of sovereignty had not been laid to rest.
Strangely, the Tribunal was ignorant of geographical realities. It is considered that Mauritius itself has an "opposite or adjacent coast," despite Mauritius being over 2,000 km distant from the Chagos and having no physical, cultural, or historical links to the Chagos archipelago before colonial incursions. In the Maldives, whose residents had fished and travelled through the waters of the south surrounding Chagos for centuries, they were regarded as foreigners in this instance. This judgement turns basic geography into a diplomatic convenience; an "Alice-in-Wonderland" like expulsion of reality designed to work against the undeserving party.
We must also never forget that the Maldives stood by the United Kingdom, not in blind faith but against an unchanging backdrop. The British never incorporated the Chagos Islands into Mauritius before colonisation. They removed it from Mauritius because it never really belonged there. The Maldives was a nautical adjunct of the Chagos Islands; the French and later British only cartographed them under colonial pretexts of terra nullius. By ignoring this history, ITLOS did a disservice to the Maldives by refusing to assert its rightful claim, as well as to the principle of national self-determination for small countries that seek an even-handed legal process and not selective endorsement. The Tribunal's decision sets a perilous precedent that could lead to the erosion of self-determination by permitting border adjustments without the consent of the affected people.
The ITLOS decision is about more than an institutional error; it constitutes a strategic and legal failure. It introduces ambiguity to the law of the sea, challenges the requirement for sovereignty in delimitation, and utilises advisory opinions to redraw borders with no accountability or oversight. This overlooks the equilibrium that UNCLOS aims to foster and supports only hasty judgments cloaked in moral garb without any firm legal foundation.
This is where Oxman's opinion got it wrong. His dissent was not only a necessary legal response, but it was also a display of integrity in a tribunal cowed before the dictates of politics. For the Maldives, his dissent would be a cornerstone in any future application for review, correction and confirmation of a fundamental truth: that we cannot draw lines in the sea without knowing who owns the land below them. Judge Oxman's dissent will play a critical role in future rounds of litigation, helping the Maldives in its pursuit of review, correction, and, hopefully, justice.