Tromelin island with the GeoGarage platform (UKHO & SHOM chart)
From EJIL by Pierre-Emmanuel Dupont
The small, isolated, inhospitable (and
inhabited) island of Tromelin, located in the Indian Ocean north of
Mauritius and the French Reunion island, and east of Madagascar (see
map), has been the subject of passionate debate in recent weeks in France, both in the media (
here and
here) and within the Parliament (
transcript of the debate before the French National Assembly).
Tromelin is a flat and small feature,
about 1,700 metres long and 700 metres wide, with an area of about 80
hectares (200 acres).
Its flora is limited, while the site is known to
host significant numbers of seabirds.
There is no harbour nor anchorages
on the island, but a 1,200-metre airstrip, and there appears to be no
continuous human presence.
Called "Ile de sable" (Sand island) on this French map (Carte des Iles situées à l'Est et au Nord-Est de Madagascar) CM876 published in 1838 (edition 1863) from Charles-François Beautemps-Beaupré
data and drawn by Mr Daussy hydrographer.
Tromelin was discovered by a French
navigator in 1722, and France today claims sovereignty over it by virtue
of historical title (discovery of
terra nullius) dating back
to that date.
The islet was the scene of a sad – and little known –
episode of history as the place where approximately 60 Malagasy men and
women were abandoned for 15 years in the 18
th century after a
French ship transporting slaves eschewed on the island.
Most of the
slaves died within a few months.
Stamp published by TAAF January, 2nd of 2017
The survivors were finally rescued in
1776, when Bernard Boudin de Tromelin, captain of the French warship La
Dauphine, visited the island and discovered seven women and an
eight-month-old child.
Captain Tromelin also raised a French flag on the
island – and his name was given to it.
Detail on "Islot de Sable" in the first map representation (with some mistake on the date of its discovery, which is 1722 and no 1723 as written)
source : Gallica/BNF
French possession of Tromelin was
interrupted by Britain which took control of the island in 1810.
Then in
1954, the British gave their consent to France’s effective control over
Tromelin.
But sovereignty over Tromelin is still disputed, and the
island has been claimed by the newly independent Mauritius since 1976,
and reportedly also by Madagascar and the Seychelles (
see V.
Prescott, ‘
Indian Ocean Boundaries’ at 3462-63).
The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a
framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (
cogestion) of the island and of surrounding maritime areas.
Concerns expressed in France revolve
around the issue of a possible loss or abandonment by France of its
sovereignty over the feature, and most of all of its rights over the
exclusive economic zone (EEZ) of Tromelin, that France established in
1976 (
see Decree no. 78-146 of 3 February 1978, establishing,
pursuant to the Act of 16 July 1976, an economic zone off the coasts of
the islands of Tromelin, Glorieuses, Juan de Nova, Europa and Bassas da
India,
Law of the Sea Bulletin,
No. 71 [2010] at 16).
Critics also point to the risk of creating a
precedent that could be used to fuel arguments of those countries
(Mauritius, the Comoros and Madagascar) which repeatedly dispute French
claims of sovereignty over the other French-occupied Scattered Islands (
Îles Éparses)
of the Indian Ocean (Juan de Nova, Glorioso and Europa islands, the
Bassas da India atoll, and the feature known as Banc du Geyser), and
related maritime zones.
For example, Section 111 of the Constitution of
Mauritius provides that Tromelin is part of Mauritian territory.
"Plan de l'isle de Sable,
situé par la latitude de 15 deg 52m Sud et la longitude de 52 degrés 45 minutes à l'Orient de Paris"
including details of the shipwreck "l'Utile"
(15°53' S / 54°31' E in reality)
A cover from Tromelin Island.
Mauritius also
deposited
with the UN Department for Ocean Affairs and the Law of the Sea,
pursuant to Articles 16 and 47 of UNCLOS, charts and lists of
geographical coordinates of basepoints and baselines for the maritime
zones of Mauritius, which include basepoints around Tromelin (
see Maritime Zone Notification
M.Z.N.63.2008.LOS of 27 June 2008).
The issue of sovereignty over Tromelin
is a very complex one, that should be further examined through
interpretation of relevant international agreements, including the
Treaty of Paris of 30 May 1814 between France and the United Kingdom –
which transferred sovereignty over the French colony of Mauritius (then
known as Isle of France) and its dependencies to the British –, and
assessment of the subsequent practice of the States concerned.
For the
record, the provision concerning Mauritius (then Isle of France) in the
Treaty of Paris was its Article VIII, worded as follows:
His Britannic majesty stipulating for
himself and his allies, engages to restore to his most Christian majesty
[French King Louis XVIII], within the term which shall be hereafter
fixed, the colonies, fisheries, factories, and establishments of every
kind, which were possessed by France on the 1st of January 1792, in the
seas and on the continents of America, Africa, and Asia, with the
exception however of the islands of Tobago and St.
Lucie,
and of the Isle of France and its dependencies,
especially Rodrigues and Les Sechelles, which several colonies and
possessions his most Christian majesty cedes in full right and
sovereignty to his Britannic majesty, and also the portion of St.
Domingo ceded to France by the treaty of Basle, and which his most
Christian majesty restores in full right and sovereignty to his Catholic
majesty » (full text of the Treaty in E.
Hertslet,
The Map of Europe by Treaty, at 1 – emphasis added).
Assessing the merits of claims regarding
Tromelin would by far exceed the limits of this note.
The exercise will
likely include an in-depth examination of relevant archival materials,
namely those found in the
Bibliothèque Nationale de France (the National Library of France) and the
Archives Nationales d’Outre-Mer
(the National Overseas Archives), as well as in the British archives
including those of the United Kingdom Hydrographic Office.
1761 map (BNF)
At first
sight, the validity of the claims of France regarding Tromelin is not
obvious and needs to be critically assessed under the international law
relating to the acquisition of territory.
Mauritius is of the view that the
assignment by the Treaty of Paris of the Isle of France (Mauritius) to
the British Crown included Tromelin, so that upon reaching independence
in 1968, Mauritius should have entered into possession of Tromelin.
France of course holds a contrary view.
A French Parliament
report
advocating the ratification of the 2010 framework agreement between
France and Mauritius referred to the multiplicity of France’s “acts of
sovereignty and administration over this islet (îlot) even before the
independence of Mauritius [in 1968] […] without UK protest”.
Basically,
France’s historical title to the island is to be assessed against other
claims formulated by Mauritius, and reportedly also by Madagascar and
the Seychelles.
Irrespective of the sovereignty over
Tromelin, it is far from certain, at first sight, that this island (or
islet) of Tromelin be entitled to full maritime zones and in particular
an exclusive economic zone (EEZ).
This is dependent in particular on
interpretation of the terms of Article 121 para.3 of
UNCLOS,
according to which “[r]ocks which cannot sustain human habitation or
economic life of their own shall have no exclusive economic zone or
continental shelf”.
The precise meaning of Article 121 para.3 has long
proven controversial (see e.g. Erik Franckx, ‘The Regime of Islands and
Rocks’, in D.J. Attard, M. Fitzmaurice, N.A. Martínez Gutiérrez (eds.),
The IMLI Manual on International Maritime Law, Vol.I, Law of the Sea, at 99-124.).
Interpretation of this article has been one of the main points addressed by the Arbitral tribunal in its
Award of 12 July 2016 in the
South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China)
case before the PCA.
The tribunal in that case engaged in a thorough
interpretation exercise and made a number of findings as to the accurate
meaning of all components of paragraph 3 (« rocks », « cannot »
« sustain », « human habitation », « or », and « economic life of their
own »), which will probably offer some valuable guidance regarding
future similar cases.
What should be assessed properly is whether
Tromelin, due to its physical and geographical characteristics (as
evidenced by precise and recent scientific works and reports), is
entitled – as any island – to full maritime zones under Article 121
para. 2 of UNCLOS, or if it meets the definition of a rock within the
meaning of Article 121 para. 3, in which case it would not generate an
exclusive economic zone or a continental shelf.
Eparses islands
As regards prospects for a settlement of the issue of Tromelin (and possibly other
Îles Éparses),
several observations may be made.
First, while it has been reported
that Mauritius would be prepared to submit the dispute to the ICJ, the
jurisdictional basis for such referral remains unclear.
One has to bear
in mind that France, upon ratifying UNCLOS in 1996, has
declared
that it does not accept any of the dispute settlement procedures
provided for in Part XV, section 2, of UNCLOS with respect inter alia to
“[d]isputes concerning the interpretation or application of articles
15, 74 and 83 relating to sea boundary delimitations, or those involving
historic bays or titles”.
Second, the settlement of the sovereignty
issue may possibly be disjoined from the issue of maritime entitlements,
as the Arbitral tribunal did in the
South China Sea Arbitration case when it pronounced on maritime entitlements of various features of the South China sea
without
addressing the sovereignty issue over those features.
As various
commentators have stressed, the tribunal could hardly have done
otherwise, since UNCLOS is not concerned with sovereignty over land
territory and islands, and assumes for the purposes of delimitation that
the issue of sovereignty is resolved.
This was also the position of the
Arbitral Tribunal in the
Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom)
case, where Mauritius opposed the establishment by the UK of a marine
protected area around the Chagos archipelago, administered by the UK but
claimed by Mauritius.
In its
Award of 18 March 2015,
the Tribunal held in substance that Mauritius’ claim that the UK did
not qualify as a “coastal state” within the meaning of UNCLOS as regards
the Chagos Islands concerned in fact the question of sovereignty over
the Chagos, which was not a matter concerning the interpretation or
application of UNCLOS, and therefore that it did not have jurisdiction.
This separation between sovereignty over
Tromelin and the determination of maritime zones generated by the
latter appears, even if implicitly, as the path chosen by the
negotiators of the 2010 framework agreement between France and
Mauritius.
Maritime boundaries between France and Mauritius
While disagreeing on the issue of sovereignty, the two sides
agreed on Tromelin’s entitlement to an EEZ.
The French side, while
reaffirming its sovereignty over Tromelin – and that it would not give
its consent to any third-party dispute settlement mechanism on that
issue –, stated that the objective of the agreement is “basically
political and aims at overpassing the sovereignty dispute […] through
adoption of a partnership approach in three specific sectors:
environment, archeology and fisheries” (
see Report of the French Senate).
It should also be noted that France and Mauritius had also adopted a
pragmatic approach in 1980 when they reached agreement on the
delimitation of part of their maritime boundary – setting Tromelin aside
(
see Convention between the Government of the French Republic
and the Government of Mauritius on the delimitation of the French and
Mauritian economic zones between the islands of Reunion and Mauritius, 2
April 1980, reprinted in US Department of State, Office of the
Geographer,
Maritime Boundary: France (Reunion)-Mauritius, Limits in the Seas No. 95 [1982] with map).
photo : Benoît Gysemberg, TAAF
The above-mentioned
report
of the French Senate stressed the common view of France and Mauritius
on the need to assert control over maritime zones surrounding Tromelin –
pending the resolution of the sovereignty dispute –, as a means to
establish other marine protected areas, to implement joint policies
regarding sustainable fisheries, or to combat illicit dumping, among
other issues.
It should also be noted that, given its
geographical situation, the determination of the status of Tromelin as
regards Article 121 para. 3 of UNCLOS would necessarily impact the
localisation of maritime boundaries with certain third States, namely
neighbouring islands, especially Madagascar.
Clive Schofield recently
observed that “the potential maritime claims to be made from the
disputed islands of the South China Sea, often illustrated by reference
to maps giving these features full-effect in the generation of strict
equidistance lines, is misleading” (C. Schofield, ‘What’s at stake in
the South China Sea? Geographical and geopolitical considerations’, in
R. Beckman, I. Townsend-Gault, C. Schofield, T. Davenport and L. Bernard
(eds.),
Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources at 24).
The author of the present note is of the
view that the same observation may be made as regards a number of
disputed features of the Indian Ocean – including Tromelin.
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