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Legal Reflections on the Chagos: Past and Future

By Marc R. M. Hein SC, G.O.S.K

A public lecture was held recently by Professor Phillip Sands, QC under the auspices of The Adelaide Law School, Australia. It was an Oration in commemoration of his colleague James Crawford, who was from Adelaide and the common factor between the two men is that they had both acted as legal advisers to the State of Mauritius on the Chagos dispute. Philippe Sands, QC was eloquent and informative; retracing the steps from the origins leading to the present situation. The summarised arguments in this article are much inspired from his Oration.

The Past

To understand the US interest in the Indian Ocean, one may go back to the Atlantic Charter, this official statement made after President Roosevelt and Prime Minister Churchill met in August 1941, whereby they meant to delimitate their respective zones of influence around the globe, after World War II. Then, later in time in September 1965, an interesting point were the private notes to Prime Minister Harold Wilson when Sir Seewoosagur Ramgoolam went to visit him at Downing Street, during the Constitutional Conference in London. It was clearly stated that the British Prime Minister was to promise independence to Mauritius only if it was agreed to retrocede the Chagos Archipelago to Britain. As we know The British Indian Ocean Territory (BIOT) was then created by an Order in Council and some 2,000 inhabitants; the Chagossians, were forcefully expelled mainly to Mauritius and a few to the Seychelles.

Another milestone was the famous UN General Assembly Resolution 1514 (XV) of 1960 which declared the rights of colonised countries to independence and self-determination. This UN Resolution, now an integral part of public international law, has for long been the basis of our claim to the Chagos and years of struggle followed and a number of cases entered before the English courts on a number of issues, including a Marine protected Area (MPA) which the British wanted to introduce. Then in June 2017, the UN General Assembly voted to refer the Chagos issue to the International Court of Justice (ICJ) for an advisory opinion and a landmark opinion was delivered in February 2019 in favour of Mauritius, whereby it was ruled that the “decolonisation of Mauritius had not been completed” and basically that the Chagos was Mauritian territory. In May 2019, the ICJ’s decision was confirmed by the UN General Assembly (Resolution 73/295) summoning Britain to leave the Chagos within 6 months. 116 countries voted For, only 6 Against plus 56 Abstentions; this was a serious setback for Britain on the international scene.

The Chagos was thus officially declared an integral part of Mauritius and in February 2020, the UN World maps proceeded with this change. Then in January 2021 there was a ruling from the International Tribunal for The Law of the Sea following from a maritime boundary dispute south of the Maldives which further promoted the case for Mauritius as the alleged British claim of being neighbours to the Maldives in the Indian Ocean was rejected. Finally, in August 2021, the Universal Portal Union (UPO); a UN agency in charge of world portal services, banned the BIOT from using beautiful brand-new stamps reflecting marine life in the Chagos issued by the same BIOT.

The Future

Mauritius will need to keep pressurising Great Britain on all fronts on the international scene, in relation to the Chagos. There should be no respite unless real progress is made. Other organisations like the International Civil Aviation Organisation (ICAO) should soon be tackled to indirectly determine that sovereignty over the Chagos is Mauritian and not British – ICAO provides standards to regulate aviation across the world. Indeed, if Britain is no longer a coastal state in the Indian Ocean, it should not therefore have a seat on the Indian Ocean Tuna Commission (IOTC). The African Union and several other countries support the Mauritian claim but evidently the question is: Why would the US and the UK care? Why would they be bothered?

Mauritius will keep being a thorn in the side of both countries in the field of public international law. The post-Brexit situation has shown that Britain no longer has the automatic support of the European Union at the UN. We note that Australia keeps supporting the US and UK when even Canada is abstaining. The recent alliance among the US, UK and Australia following the feud with France and the cancelled order of the French submarines a few weeks ago may also be noted. The new trilateral alliance AUKUS concerns the Indo-Pacific region but their efforts to counteract China are contradictory to their own legal stand towards the Chagos. The US, UK and Australia are taking China to task on legal issues of sovereignty in the South China Sea but are doing the contrary in the Chagos.

This hypocrisy is damning in democracies which profess the Rule of Law nationally and internationally. We are in the midst of international geopolitics where a lot is blurred on purpose. For Mauritius to confront much bigger nations is no easy task where certain wins can be pyrrhic victories and if they want to, such nations can evidently harm us. When we need vaccines for our citizens, we need friends. When we need help to get out of the harmful and damning FATF grey list, we need friends. The US has been generous to Mauritius in dealing with AGOA for our textiles exports and we have preferential rates for our sugar exports too, let us not risk losing all of this. 

Our strategy should be clear. The US and UK are our friends, but we need to assert our rights on the Chagos as international law entitles us to. We will use the means we have to assert such rights but remain friends and there is no need for useless squabbling. We also know that we will never get the US out of Diego Garcia. To state the contrary is not idealistic, it is stupid. I state that Mauritius should be prepared to offer safe terms to the US to keep Diego Garcia on a long-term lease of 99 years. International mediation may be the key to find a solution here and progress from this imbroglio. We need to mediate and negotiate to show good faith and keep the US happy that the long-term lease will be fully binding in law. There would be a new form of tenancy with Mauritius as the landlord.

And why not afterwards build a Marine Protected Area (MPA) with the willing help of all parties and stakeholders and indeed do something positive for the environment in this region. This was after all the designated intention of the UK which has already worked elaborately with international NGOs on the matter and the creation of an MPA could be hopefully done with the technical help of the British government and universities.

But more than all, the human element has been determining in the whole Chagos matter. The Chagossians were “deported” against their will, they were forced to embark on ships with sometimes one suitcase each, leaving everything behind. This argument has been of paramount importance before the ICJ. Indeed “deportation” of persons is within the definition of “crime against humanity” and can fall within the ambit of the International Criminal Court (Article 7 of the Rome Statute).

There needs to be the commitment from our government that the Chagossians will be allowed to go back to certain islands in the Chagos, where limited economic development may take place within environmental standards and thus create a new envied model of ecological development - after all, the Chagos are meant to be paradisiacal islands. Let us not forget that there are some 55 islands and Peros Banhos for example is some 250 kms far away from Diego Garcia. This is a large group of islands geographically, where cohabitation is possible and there is room for manoeuvre.

I have given new thoughts to the Chagos issue and I now start to believe that maybe, yes, it is within the domain of something feasible and achievable that we may get back the Chagos archipelago whilst negotiating a long-term lease with the US on Diego Garcia. With determined diplomacy, what is remote can become possible and what is possible can become reality.

The article was published in the L'Express Newspaper on 8 November 2021.