The Committee Stage of the House of Lords consideration of the Diego Garcia Military Base and British Indian Overseas Territories Bill has concluded, and Report Stage is scheduled for the first day back after Christmas on 5 January.
The two days in Committee were disturbing because of the key questions that the Government seemed unable or unwilling to answer.
These pertained, firstly, to the rationale for refusing to afford the people of the Chagos Islands a self-determination referendum and, secondly, to the rationale for giving the islands to the Republic of Mauritius from a security and defence perspective. Having written extensively about the self-determination failings elsewhere, in this article I will begin by considering four critical security and defence questions to which the Government failed to provide credible responses and an additional concern that has since been raised. I will then turn back to self-determination and argue, first, that the presenting security and defence concerns can all be resolved if one develops a proper understanding and application of self-determination and, second, that this is also the most appropriate way forward in the context of the priority placed on creating an international society of sovereign states, set out by the United States National Security Strategy.
The Defence and Security Problems with the Diego Garcia Bill
This article will begin by examining the four defence and security questions raised during Committee Stage to which the Government failed to provide satisfactory answers and one additional concern that was not addressed by the Committee.
1.The Capacity of the Government of Mauritius
In moving one of his Committee Stage amendments Lord Morrow pointed out that if we want to be good practitioners of international relations, we have to respect the distinct nature of international relations. While the absence of a global executive does not translate, as Hobbes would have us believe, into international anarchy, the norms and social conventions that inform international relations, creating a society not of individuals but of states, are in many ways quite unlike those that underpin domestic politics which can rely on all the sanctions of the modern state. In this context we can just as easily risk placing international peace and security in jeopardy through the naïve application of the assumptions of domestic politics by endlessly talking about the ‘rules based international order’, divorced from proper considerations of power, as we can by acting as if the international domain is one of international anarchy.
One of the key conventions of international relations is that of ‘recognition’ which in a very real sense acts as the doorway into the international society of sovereign states. Recognition is the mutual process through which two states recognise each other’s right to exist, territorial integrity and exclusive right to make the laws for that territorial integrity, implicit within which is the renunciation of any claim that they may have previously entertained to make the laws for all or part of the other territory. If two states can afford each other this reciprocal dignity, then they can give and receive ambassadors and establish diplomatic relations.
In making a judgement about whether to recognise another state, two considerations, should be uppermost in the thinking of any government committed to the practice of sustainable international relations. In the first instance, from their own immediate perspective, they will want to be sure that the country in question recognises their territorial integrity and does not contest it. In the second instance, from the perspective of their general interest in upholding international peace and stability, they will want to be sure that the country has a proper basis for claiming its territorial integrity and the capacity to deliver its government effectively. An established state will generally have no interest in recognising an aspiring country with a territorial integrity that is manifestly in violation of the principle of self-determination, or beyond the reach of its governmental capacity, if another more stable territorial configuration is available. To the degree that the government in question cannot provide for the effective governance of their whole territory, the legal claim to the territorial integrity will be out of alignment with the available powers to make good that claim, as a matter of practice, and the aspiring polity will be doomed to become a ‘failed state’. Such an outcome will create, to that extent, a governance vacuum that will have a potentially destabilising effect on global order that it will not be in the interests of any state, committed to international peace and stability, to facilitate or encourage.
Rather than demonstrating a genuine capacity to govern the borders to which it now aspires, the conduct of the Republic of Mauritius has in recent months caused alarm bells to ring. The Chagos Archipelago comprises some 60 islands located over a thousand miles away from Mauritius. The new borders that the Mauritius Treaty and the Diego Garcia Bill seek to bestow on the Republic of Mauritius thus have the effect of greatly expanding a state across the seas that, as Lord Morrow and Lord Callanan pointed out, does not possess a Navy.
The presenting difficulty was thrown into sharp relief at a press conference in September when the Prime Minister of Mauritius acknowledged that both the UK and India had offered a ship to take the Mauritians to the Chagos Islands to raise their flag over the islands following the transfer of sovereignty. While some were upset that the British offer was turned down, this was surely inconsequential. What was extraordinary was the revelation that Mauritius is so lacking in governing reach that it cannot even get to the Chagos Islands under its own steam to raise its flag.[1]
Let’s think about this for a moment. The Chagos Islands are of immense geo-strategic importance. They are currently under the sovereignty of a nuclear power with a Navy. However, because of a non-binding Judgement, the proposal is that sovereignty with respect to the islands should now be transferred to another country located over a thousand miles away, without a Navy, or nuclear weapons, and which cannot even get their own its own steam.
At this point those who have fought for the treaty in the name of their commitment to a rules-based international order will say. ‘Don’t worry. You forget that the US-British military base will remain in Diego Garcia.’ This manoeuvre, however, depends on completely undermining their position because in order to defend an arrangement they have sought out of regard for a ‘rules-based international order’, they now turn to arguments that are entirely concerned with crude power.
If we want to be good practitioners of international relations, we must not dignify and or accommodate outlandish and unsustainable sovereignty claims. In the absence of a global executive, while sovereignty and power are two different things that should not be conflated, the maintenance of international peace and stability requires that they must be kept in healthy alignment with each other. Failure to manage proper alignment undermines sovereignty, creating legal fictions that, mocked by reality, are inherently unstable and vulnerable to being quickly subjected to, and overwhelmed by, power. This imperative has become even more important since Committee Stage as a result of the publication of the United Sates National Security Strategy which is based on a clear affirmation of a vision of a functional international arena based on respect for the institution of state sovereignty.[2]
In the past, the British Indian Overseas Territory presented a credible alignment between sovereignty and power. The United Kingdom, a nuclear power with a Navy, has been sovereign over all the Chagos Islands. Its claim has not simply been a matter of power or sovereignty. Of course, in this context the power side of the equation has greatly strengthened by the presence of the country with the biggest defence budget in the world, the United States, but if we are to understand and promote peaceable international relations, we should not allow considerations of power to completely eclipse the other relevant considerations of principle.
In the present context, however, in the aftermath of the non-binding Judgement of the International Court of Justice in 2019, the above arrangement has been unsettled. A cloud now hangs over the current basis for the UK sovereignty claim to the Chagos Islands. The validity of the current balance between sovereignty and power has been challenged.
The UK Government solution is the Mauritius Treaty but the suggestion we should transfer the sovereignty of the Islands to a country that apparently does not even have the capacity to reach them without the help of the UK or India, creates a complete mismatch between sovereignty and power. Under that arrangement sovereignty over the islands, including Diego Garcia, will rest with a country without the capacity to make good its sovereign claim, thereby inviting future interactions in relation to these islands to increasingly be reduced to power. From a security and defence perspective this arrangement is far less consistent with stability than were the arrangements of the last fifty years.
2. Leasing Other Chagos Islands to the Highest Bidder
If ratified the Mauritius Treaty will necessarily create something of a governance deficit in relation to the 59 islands that the USA and UK are not based on. In order to consider the likely consequences of what Mauritius Treaty seeks to call into being, it is important to consider the potential relationships between countries other than Mauritius, the UK and USA and the remaining 59 Islands.
During the extraordinarily short House of Commons debate on the Diego Garcia Bill, concerns were expressed that other countries might seek to lease islands from Mauritius. Indeed, reference was made to the fact that it has already been widely reported that India has secured the lease of one of the other Chagos Islands from Mauritius and there have also been reports about China expressing an interest in another island. This drew a sharp response from the Government front bench which described the claims as ‘nonsense’ and that the treaty expressly protected against these eventualities.[3]
However, as Baroness Hoey pointed out during Committee Stage in the Lords, the part of the treaty that deals with the potential for Chagos Islands, other than Diego Garcia, to be used by countries other than the UK and the USA, is addressed by Annex 1 d of the treaty, which states.
“In accordance with this Agreement, in respect of the Chagos Archipelago beyond Diego Garcia, Mauritius agrees”—
“except in circumstances of necessity for a response to a humanitarian emergency or natural disaster in instances where the United Kingdom or the United States of America is unable or unwilling to provide such a response, Mauritius and the United Kingdom shall jointly decide on authorisations permitting the presence of non-United Kingdom, non-United States or non-Mauritian security forces, either civilian or military”.[4]
There are two problems for the UK and US governments arising from this protection.
In the first instance, it only pertains to security and defence. If a country approaches Mauritius and says that it would like to use an island for a security or defence purpose, Mauritius is obliged by the terms of the treaty to consult the UK and can only agree to an island being used by another country if the UK agrees. The obvious difficulty with this provision is that it leaves the door open for a country to lease an island for a purpose other than security and defence without a UK veto. If any country leased an island ostensibly for a non-security or defence purpose but then gradually introduced a security and defence function, the Republic of Mauritius would not have the capacity to know themselves or to remove the country from the island if it decided to remain.
In response to this one might say, well with the US military base near at hand, the Americans could move in to dislodge any country that seeks to use an island for a defence or security purpose without the agreement of Mauritius and the UK. But why make this more likely than would be the case in the context of an arrangement like that of the last fifty years where power has been better aligned to sovereignty? The United States has no interest in needlessly risking the lives of US servicemen and such an action always carry risks of escalations and in the theatre in relation to which the new US National Security Strategy suggests the current administration is particularly concerned about the possibility of war.[5]
In the second instance, given the widespread reports, in The Maritime Gazette amongst other places, that India has paid Mauritius to secure a defence presence on a Chagos Island, the UK Government needs to come clean and tell Parliament whether the Republic of Mauritius approached the UK Government ahead of doing the deal with India.[6] If they did not, then that provides yet another warning light as to why the Lords should not pass the Diego Garcia Bill and why the UK must not ratify the treaty. If, however, the answer is that the Republic of Mauritius sought UK approval, then why did the UK Government agree? The answer should have been a clear ‘no’ for two reasons. First, it would be completely inappropriate for the Republic of Mauritius to enter deals about what will happen to the Islands in the future when the UK Parliament has not yet agreed to the transfer of sovereignty over the Chagos Islands to Mauritius and when the Treaty is consequently not ratified. Second, it would be completely wrong also because the procedures relating to UK approval, as set out in the treaty, similarly have not been ratified.
The only other matter of governance with respect to the Chagos Islands beyond Diego Garcia in relation to which the Mauritius Treaty gives the UK an effective veto pertains to developments in the 24-mile area around Diego Garcia and so is very narrow. Moreover, it is set out in terms that also give Mauritius an effective veto on anything we suggest for that area which constitutes a clear erosion of freedom of movement compared with the present.
Beyond 24 miles the Treaty affords the UK more limited powers of objecting rather than vetoing two categories of developments. The first pertains to building and to the proposal to build, before it happens. The second relates to ‘emergent risks’ which relates is negative developments that are already underway. While these rights of objection are, of course, welcome they are subject to a series of limitations which mean that the kind of security they can offer is much more constrained than that enjoyed today.
In the first instance, if Mauritius is sovereign, the UK could not object to all building, or to Mauritius involving other countries in the life of the islands, and once a building has been constructed, supposedly for a non-security or defence purpose in the control of Mauritius, there is no veto on it being bought by another country in the context of which it could quietly be repurposed for a security or defence role.
In the second instance, a critical limitation of the protection in relation to emergent risks, which might involve a building developed for an apparently peaceable purpose being brought by the representative of another country and subsequently redeployed for a hostile purpose, is that this is already under way. Given that the jurisdiction with sovereignty over the islands does not have the power to make good its sovereignty for the purpose of forcing the person/country in question to return the building to its original designation, this is problematic. The UK and United States could intervene by force, but they would then be operating narrowly on the basis of crude power rather than sovereignty because neither would have sovereignty over the island.
In the third instance, because these rights to object are not veto rights, Mauritius could resist, requiring more information or that some alternative action is taken ahead of deciding how to respond. These would take time, when we would have otherwise had freedom to be agile and take immediate action. Furthermore, they could ultimately disagree. In this context the matter would be remitted to the Joint Committee and that could result in lengthy dispute resolution procedures while the emergent risk can develop unabated. This means that in comparison with current arrangements those proposed by the treaty bring with them far greater uncertainty.
There is, of course, in all this an even more basic concern. We have to acknowledge the possibility that if we transfer sovereignty over islands to a country that does not have the power to make good its sovereign claim in terms of power, we effectively open the door to the possibility that another country might visit an island and use it without even bothering to ask.
Although in her speech Baroness Hoey made it absolutely clear to the government that she understood that the treaty does provide protections in relation to leasing for security and defence purposes where the applicant country is upfront about this and stressed that her concern pertained narrowly to applications to lease ostensibly for other purposes, the Government effectively ignored her question. The minister made no attempt to reflect on what might happen if a country secured an island lease for a non-security/defence purpose but then gradually allowed their use of the island to be redesignated for that purpose. They could so easily say that going forward they refuse to abide by the terms of the lease, noting that possession is nine tenths of the law.
This is a huge question that need not arise if the Chagos Islands remain under British sovereignty.
3. The Geo-Politics of Money
From the perspective of the United States, acquiescing with an arrangement that involves the UK paying the Republic of Mauritius a huge sum of money for the use of Diego Garcia is problematic on two bases.
First, the act of providing Mauritius many billions to lease Diego Garcia encourages the country to regard the islands less as the home of the Chagossians and more of as an income stream that might be greatly expanded in relation to other islands. Of course, this exists in the context of the constraints of the treaty limitations considered above but, so long as a country seeks to lease for purposes other than security and defence the scope for the UK to object will be limited. If the UK genuinely believes that Mauritius should be sovereign over the other 59 islands it is hard to see how it could object to non-security and defence developments which it would be hard to control for the reasons set out above, and indeed for further reasons we shall come to later.
Second, all the monies paid to Mauritius to access Diego Garcia are monies that currently neither the UK nor the US have to pay, and the loss of this money will reduce the money available for the UK to invest in defence, which the US is asking it to increase. The only real beneficiary from this arrangement will be Mauritius.
Again, these points were made during Committee but, dodging the actual arguments, the only response the Government made was the assertion that the United States supports the treaty.
4. The Mauritius Treaty and the Wider Rules Based International Order
Those seeking to defend the Mauritius Treaty from the perspective of a ‘rules-based international order’ do not just get into difficulty because of the problems arising from pressing domestic political assumptions beyond what is possible in international relations, defined by the absence of a global executive. They also encounter the much more serious difficulty, from the point of view of their own internal consistency, of approaching the Mauritius Treaty and Pelindaba Treaty in a way that not only falls short of the standards of the rules-based international order, but which also undermines it.
Lord Lilley and Baroness Goldie pointed out that the Republic of Mauritius is a signatory to the Pelindaba Treaty which commits the countries of the Continent of Africa, of which Mauritius is one, to not having nuclear weapons on their soil. If all the Chagos Islands, including Diego Garcia, come under Mauritian sovereignty then it will plainly not be possible for Britain or the United States to bring nuclear submarines to Diego Garcia or any nuclear weapons. This would completely jeopardise the strategic utility of Diego Garcia and thereby place international peace and security in jeopardy.
Furthermore, this difficulty needs to be seen in the context of Article 7 of the Mauritius Treaty which expressly states:
‘Each Party confirms that none of its existing international obligations or arrangements now in force or effect between it and any third party is in conflict with the provisions of this Agreement, and that nothing in this Agreement shall affect the status of existing international obligations or arrangements except as expressly provided for in this Agreement.’
In this context there clearly needs to be a statement on the face of the treaty disapplying the Pelindaba Treaty with respect to Mauritius vis-à-vis Diego Garcia, but as Baroness Goldie helpfully pointed out no such provision is made.
Responding to the point the minister simply stated
‘…the Government of Mauritius, the Government of the UK and the Government of the US see no contradiction in what the treaty says, and explicitly lays out, in respect of the ability of Diego Garcia to operate in the way that it has always done, with the lethal capabilities as outlined elsewhere in the Bill.’
The only sense that could be made of that statement was that the three countries have decided they won’t worry about the contradiction between what the Penlindaba Treaty says and the absence of any provision releasing Mauritius from the treaty as required by Article 7. The clear consequence of this was helpfully alluded to by Lord Lilley in his response to the minister:
‘I am not persuaded that that is necessarily in line with the Pelindaba treaty. That does not worry me so much. It may worry the noble and learned Lord, Lord Hermer, or any future Lord Hermer in Mauritius, but let us hope that they will be ignored.’
In assessing the implications of this we need to ask, given the past conduct of Mauritius, first agreeing with the UK Government to the detachment of the Chagos Island in return for £3 million (the equivalent £70 million in today’s money) in 1965, and then renouncing absolutely all claims on 7th July 1982 in return for a further £4 million, how long will they find it convenient to acquiesce with this arrangement? It would be no more difficult for them to engage the organs of the rules-based international order to cite the Pelindaba Treaty as justification for changing course on Chagos at some point in the future, than it has been for them to cite the UN Declaration of Decolonisation to justify changing course on what they previously agreed with the UK. Clearly, on this occasion, they are being paid a much greater sum, many argue at least £35 billion, which might be sufficient to keep them onside. However, it may, at some point in the future, be in the interest of another country to encourage Mauritius to adopt a more legalistic approach to the Pelindaba Treaty in return for some other benefit. In this context the current arrangements are clearly very uncertain both for the United Kingdom and for the United States.
More than that, however, in assuming this approach, the champions of the treaty necessarily cut the rules-based international order moral high ground from beneath their feet. Rather than standing for the international rules-based order, the above suggests that the Mauritius Treaty is implicated in undermining a key aspect of it in relation to a matter of huge importance, the role of nuclear weapons on the continent of Africa. The precedent flowing from this has potentially deeply disturbing consequences including for those whose regard for the rules-based international order does not permit them to abstract its consideration from questions of power.
Thus, the problem with the Mauritius Treaty is not only that it abstracts its consideration of rules from considerations of power in a manner that is necessarily destabilising in the absence of a world state, but that it goes further, abstracting some rules from other rules, to justify validating the ends that it seeks. Here we see an apparent willingness to abstract, and thereby prioritise, the rules in the treaty apart from Article 7, vis-à-vis Article 7, just as the Treaty has already demonstrated a commitment to abstracting, and thereby prioritising, concern for the principle of colonial territorial integrity, (that only ever really enjoyed a kind of technical rather than substantive existence until November 1965, and has for the last sixty years not existed in any sense,) from/over concern for the principle of self-determination.
A Further Defence and Security Consideration
There is a further security and defence concern that did not come up during Committee Stage which should be acknowledged, which relates to the way in which the Mauritius Treaty institutionalises UK vulnerability in a way that should be a real concern both to UK citizens and to the United States.
In coming to terms with the nature of the uncertainty about what might happen in the context of disagreements on the Joint Committee, and in future negotiations between Mauritius generally, it is important to appreciate that this treaty hands over key UK leverage to Mauritius. Given the distinct nature of international relations, defined by the absence of a global executive, this is a very high-risk strategy.
One might imagine that the leverage the UK could deploy going forward would involve it trading on its control of payments to Mauritius, threatening to delay or withhold funding in order to concentrate the mind of the Mauritian government. The Mauritius Treaty, however, gives all such leverage away. Article 15 deals with terminating the agreement and states. ‘1. Mauritius may terminate this Agreement only if one of the following grounds for termination of this Agreement exists: a. a failure by the United Kingdom to make payment as required by Article 11.’
Because Article 1 makes Mauritius sovereign over the Chagos Archipelago from the point of ratification, if the UK ever fails to make the requisite payment within 21 days of the date set by the treaty, the UK and the US would lose the base at Diego Garcia and all veto and consultation rights in relation to the wider group of islands. Diego Garcia could, in principle, then be transferred by to another power. Whichever way one looks at the arrangement, this is very bad for the UK and the USA.
On the one hand, Mauritius could use the way in which this agreement limits leverage by requiring annual payment within a 21 day period on pain of losing Diego Garcia and all Chagos Archipelago veto and objection rights, as a means of limiting the UK’s room for manoeuvre when using its objection rights. In this context we would keep Diego Garcia and Mauritius would keep the money but the scope for deploying our veto rights and powers of objection would be weakened in the sense that Mauritius would know that if it objected to a UK request, the UK could not then threaten to withhold payment and that any such act would liberate Mauritius from all its UK obligations.
On the other hand, it is not impossible to imagine a scenario in which Mauritius, working with another power, might seek to make intolerable demands of the UK to try to provoke us to say we won’t pay so they can be freed from the constraints with respect to the UK and USA arising from the treaty.
Of course, the counter point can be made that if the UK failed to pay, for whatever reason, this would not change the fact that the United States base remained on Diego Garcia and Mauritius would not have the wherewithal to dislodge them. However, they could use their sovereignty to make a lease to another power which could then seek to make good its claim to the island.
Whichever way one looks at it, the Mauritius Treaty injects significantly greater uncertainty into the Indo-Pacific that would not exist if it was possible to find a valid basis upon which to continue current arrangements.
The Critical Relationship Between Defence and Self-Determination
Having examined the four critical security and defence questions that remain unresolved from Committee Stage, together with the additional Article 15 point, it is now important to turn to consider the way in which the principle of self-determination can help provide a better and more stable configuration between sovereignty and power going forward. In doing-so I will build on what I have previously written about self-determination in relation to the Chagossians.[7]
In international law questions of territorial integrity are always subject to self-determination. This is plain quite apart from questions of decolonisation as witnessed in the self-determination of the peoples of the erstwhile Republic of Czechoslovakia to become the Czech Republic and the Slovak Republic. But it is also clear in relation to colonies both after decolonisation, as witnessed in the break-up of the former colony of India into India, Pakistan and Bangladesh, and in colonies before decolonisation, as seen in the break-up of the Gilbert and Ellice Islands which, after briefly existing as two separate colonies, went on to become two independent countries.
In this the critical self-determination comparator for Mauritius and the Chagos Islands is that provided by the Gilbert and Ellice islands because both were British colonies, and both embraced two sets of islands separated by huge distances and different people groups. While the Gilbert and Ellice islands were separated by 800 miles and one was Micronesian and the other Polynesian, Mauritius and the Chagos Islands are separated by over a thousand miles, and one is majority Indian the other African. In some ways, however, the most important contrast is that of population numbers, the Gilbert Islands and Mauritius having larger populations than the Ellice and Chagos Islands, but the differential being far greater in respect of Mauritius vis-à-vis the Chagos Islands.
When the UK government approached the Gilbert and Ellice islands about how best to approach decolonisation, the representatives of the Ellice islands were very clear that they did not want to become part of an independent sovereign state with the Gilbert Islands because the greater population of the Gilbert Islands meant that the voice of the people of Ellice would be lost. The UK Government responded by offering the people of the Ellice Islands a self-determination referendum in 1974 in which the options were to remain joined to the Gilbert Islands or to separate. They voted overwhelmingly to become a separate polity, 3,799 votes to 293, and the islands became two separate colonies in 1976. Ellice then became the monarchy of Tuvula in 1978 and the Gilbert Islands the Republic of Kirabati in 1979.
On this basis it is plain that there is no principle that colonies cannot change their territorial integrity before decolonisation. The problem with what happened on 8 November 1965 was not changing the territorial integrity of a colony before decolonisation but that the territorial integrity of the colony was changed without the provision of a self-determination referendum for the people of the Chagos Islands in which the options should have been to be part of the same territorial integrity as Mauritius or to form a separate jurisdiction. In this context, if it was wrong to change the territorial integrity of the pre 8 November 1965 colony without a self-determination referendum, how much more inappropriate to change it again sixty years later, when it has been effectively separate for sixty years, again without a self-determination referendum. However, the imperative for providing a self-determination referendum for the Chagossians today is event stronger than was the case in relation to the Ellice Islands because of two distinct features mentioned in the Non-Binding Judgement, the significance of which were not the focus of its attention.
In the first instance, the Judgement states:
‘The Court begins by recalling that the Chagos Archipelago consists of a number of islands and atolls. The largest island is Diego Garcia, located in the south-east of the archipelago. Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius.’[8]
Acknowledgement of the fact that the Chagos Islands were a ‘dependency’ of the colony of Mauritius makes it plain that they were not part of the same colonial unit of Mauritius in the sense of being on all fours with that part relating to the island of Mauritius. Indeed, the deployment of the term ‘dependency’ implies a colonial relationship within a colony. In this sense while there were strong reasons to believe that the Chagos Islands would not choose to remain part of the same territorial integrity of Mauritius if afforded self-determination because of the distance between the two islands, the difference of people group and the imbalance of numbers, there is the more fundamental point that the citizenship of Mauritius, which was not insignificant during the late colonial era, was not something into which the Chagossians had been invited. In this sense the territorial integrity of Mauritius as a civic category did not extend to the Chagos Islands.
The principles applied regarding the formation of a valid new territorial integrity as part of decolonisation are useful at this point. As UN Resolution 742 (VIII) makes clear, different components of a valid territorial integrity formed after decolonisation must be on the basis of ‘absolute equality’ of citizenship, otherwise there is the risk of creating a new colonialism where some are more equal than others. In the same way we can apply this principle forward, we can also apply it back. It enables us to see that if colonial citizenship, such as it was, was not on all-fours across the territory of the colonial unit, but actually sustained internal discrimination, denying benefits of colonial citizenship to a distant territory, keeping them out of the governance of the territorial integrity of the colonial unit as a whole, the result was the creation of colonialism with colonialism. In a context where this arrangement was effectively institutionalised by the constitutional arrangements of the colony, the presumption of the basis of self-determination must be between the group of people with the same rights and not joining a subject people to the same self-determination frame of reference as those in relation to whom they were afforded lesser rights. The degree of subjection in our case is evident in the fact that the Chagossians were not represented in the legislature of the territorial integrity of the colonial unit of Mauritius and yet, without affording them the dignity of fellow citizenship, the Mauritians were content to claim the Chagos Islands as their own.
In the second instance, contrary to the suggestion of Baroness Chapman that there is no valid people to exercise self-determination with respect to the Chagos Islands the conduct of the UK Government denies that. As the Judgement notes:
‘On 7 July 1982, an agreement was concluded between the Governments of Mauritius and the United Kingdom, for the payment by the United Kingdom of the sum of £4 million on an ex gratia basis, with no admission of liability on the part of the United Kingdom, in full and final settlement of all claims whatsoever of the kind referred to in the Agreement against the United Kingdom by or on behalf of the Ilois. This Agreement also required Mauritius to procure from each member of the Ilois community in Mauritius a signed renunciation of the claims.’[9]
In deciding that in addition to make ‘an ex gratia basis, with no admission of liability on the part of the United Kingdom, in full and final settlement of all claims whatsoever of the kind referred to in the Agreement against the United Kingdom by or on behalf of the Ilois’ where Mauritius was required ‘to procure from each member of the Ilois community in Mauritius a signed renunciation of the claims’[10] BUT not everyone else living on Mauritius, the UK Government effectively recognised that the real people of the Chagos Islands are not the Mauritians but the Chagossians. Having established this precedent through its conduct, which also demonstrated that securing an expression of the opinion of the Chagossians (albeit under duress and without many understanding what they were signing) was possible, it is quite impossible for the UK Government to now pretend that it cannot afford the Chagossians, a people capable of renouncing their islands under duress, a free self-determination referendum in relation to the future of their islands.
In the context of the UK having committed the great wrong of forcibly removing the Chagossians from their islands between 1968 and 1973, there are now two imperatives.
First, the only way to make restitution for this crime is to now return their islands to them. There is no need to hold a referendum to establish that if our apology for forcibly removing them is to mean anything, it must be accompanied by this act. If we are not prepared to do this then rather than apologising for the wrongs of the past, we effectively reaffirm the rightness of the policy of the late sixties and early seventies today. In so doing our government lines itself up to the role of villain in the Chagos equivalent of Mr Bates V the Post Office, which will make for a very compelling and disturbing drama.
Second, we must provide them with a self-determination referendum about whether, as a people settled in their islands, they wish to be part of the Republic of Mauritius or whether they wish to continue as the British Indian Overseas Territory.
The moral failure both to resettle the Chagossians and to provide them with a self-determination referendum is greatly compounded by two revelations:
First, that the UK Government is now proposing to pay the Republic of Mauritius more money to lease Diego Garcia than the KPMG report demonstrates would be required to resettle the Chagossians on their islands.[11]This lights up the moral failure to resettle the islands in technicolour, sending a deeply hurtful message to the Chagossians. It involves our government, gratuitously exaggerating rather than repenting of the original wrong in a manner that adds to rather than making amends for the shame we must bear for our conduct from 1968 until 1973 in removing the Chagossins and from 1974 onwards in not having yet facilitated their return.
Second, the fact that our Labour Government chose to make self-determination the key standard by which it would stand in relation to British Overseas Territories. While the Labour manifesto made no commitment to give the British Indian Overseas Territory to the Republic of Mauritius it commits a future Labour Government to:
‘…protecting the British Overseas Territories and Crown Dependencies, including the Falklands and Gibraltar. Labour will always defend their sovereignty and right to self-determination.’[12]
In this context, far from the Salisbury Convention pressing Peers to support the Diego Garcia Bill, the opposite is in fact the case.
Two Final Questions
Before moving to our conclusion, it is important to anticipate and respond to two potential questions
- Why Don’t We Ask Mauritius to Facilitate a Self-Determination Referendum After Sovereignty is Transferred to them?
At this point some might argue that given that, although the treaty has not come into force and has not been ratified, the Prime Minister signed it, we should now look for a means whereby the Mauritians can facilitate resettlement and self-determination. In working this through, quite apart from the security and defence concerns, the following points must be understood:
First, the principal failure of the UK must not be regarded as the decision to forcibly remove the Chagossians between 1968 and 1973 apart from our failure to afford them a self-determination referendum in 1965 of the kind we offered the Ellice Islands in 1974. The two are intimately connected. It would have been impossible to afford the Chagossians self-determination in 1965 and then forcibly remove them in 1968 and it is clear from historical records that the removal of Chagossians to Mauritius was part of the negotiations with the Mauritians back in 1965. Put another way, the decision not to grant the Chagossians a self-determination referendum in 1965 was bound up with, and is a function of, the decision to forcibly remove them which had already been taken.[13] In this context it would be a serious mistake to allow the imposition of any change in the territorial integrity of the Chagos Islands, such as proposed by the unratified Mauritius Treaty, without a prior self-determination referendum.
Second, we must come to terms with the implications flowing from the role played by the Mauritians between 1965 and 1973. They were asked to agree to a deal that involved both the detachment of the Chagos Islands and the forced removal of the Chagossians and made themselves a party to that by agreeing to take the Chagossians, and the money they received could be understood at least in part, perhaps in large part, as compensation for accommodating the Chagossians. Had the Mauritians been part of the same people as the Chagos Islands they would never have agreed to the treatment of their brothers and sisters in this way. In a context where they are now content to claim that a great wrong has been righted, presenting themselves as the injured party rather than the Chagossians, huge questions must exist about whether any self-determination referendum provided by Mauritius would be fair and whether it would seek to engage with all displaced Chagossians, not just the minority that live in Mauritius today.
Third, the fact that Article 6 of the treaty does not commit the Mauritians to resettle the islands but simply recognises that this is a possibility is completely vacuous because their right to resettle the island is implicit in the transfer of sovereignty to Mauritius. Given the points above, the inclusion of this redundant reference without any commitment to resettle the Chagossians, causes huge alarm bells to ring. Moreover, when seen in light of the September press conference, and the revelation that the Republic of Mauritius requires access to a British or Indian ship to go to the Chagos Islands to raise its flag, we see very clearly that the chances of the islands being resettled by the Chagossians under the governance of the Republic of Mauritius are far less than under the UK.
Finally, and crucially, on 2nd December the United National Committee on the Elimination of Racial Discrimination, a key organ of the rules based international order, issued a decision calling on the UK and Mauritius not to ratify the Mauritius Treaty because it fails the Chagossian people, not least with respect to self-determination.[14]
In this the Lib Dem Commons amendment that a self-determination referendum should be encouraged after we transfer sovereignty gets things the wrong way round. Going forward the key point is that the Chagossians must not have their boundaries changed a second time without a prior referendum, especially given the existence of the Ellice Islands precedent. Furthermore, in order for the self-determination referendum to be real, it must be facilitated by a country with sovereignty over the islands that has the capacity to resettle them.
- How is British Overseas Territory Status Consistent with Self-Determination and Sovereignty?
At this point another question may arise about the relationship between British Overseas Territories, self-determination and sovereignty. Specifically, can one really self-determine to become a British Overseas Territory and if one does, how does that fit with sovereignty given that the said British Overseas Territory is not itself a sovereign state?
Although most colonies self-determine to become completely independent sovereign states, that is not true in every circumstance. Some small jurisdictions, with a close affinity to the old colonial power, elect to become largely self-governing but to remain a party to UK sovereignty, subject to UK governance in defence and foreign policy, and using the British legal system as a final court of appeal. In this sense they regard themselves as British, hence the ‘British Chagossian’ category.
It would logically be very difficult to tell a people: ‘We are going to offer you self-determination but before we do, we are going to constrain your self-determination and say you can only choose arrangements that completely cut your constitutional ties with us.’ That would amount to a constrained rather than a full self-determination. UN Resolutions 567 (VI), 648 (VII) and 742 (VIII) expressly cater for colonies to self-determine to become largely self-governing but electing to understand themselves as joined to the old colonial power for some purposes going forward and part of its sovereignty. Thus, it is not that these jurisdictions have been denied self-determination or even full self-determination. They have been afforded full-determination and chosen to become British Overseas Territories.
In order to understand the breadth of this liberty it is important to note that in the case of at least one former colony, movement towards decolonisation has resulted not only in self-determination to change territorial integrity, as in the case of the Gilbert and Ellice islands, resulting in two new independent states, but in a movement to change territorial integrity that results in two jurisdictions: one of which elects to become an independent state while the other becomes elects to become a British Overseas Territory. This is provided by the colony of St Christopher-Nevis-Anguilla, which went on to become the independent state of St Kitts and Nevis and the British Overseas Territory of Anguilla.
Moreover, in understanding the freedom that comes with self-determination it is also important to be clear that British Overseas Territories are no more bound to this arrangement in perpetuity than is any jurisdiction bound to its current arrangements. In that sense when considered globally, self-determination expresses the principle at the heart of the Westminster political tradition that no Parliament can bind its successors. That is not to plant uncertainty in the heart of the arrangement, which is likely to remain in perpetuity, but this must remain so if people are not to feel that they have effectively been trapped in a territorial integrity forever.
Finally, while British Overseas Territories are not sovereign states themselves, they do not sit outside the international society of sovereign states. They are joined by their consent to the United Kingdom and its sovereignty.
Self-Determination Principles and Defence Considerations Working Together
If one has regard both for the security and defence considerations and the self-determination imperative, together with the need to properly relate provisions of principle, law and sovereignty with provisions of power in the absence of a global executive, there is a clear way forward for the Government. It should arrange a self-determination referendum for the Chagossians as it did to the people of the Ellice islands, giving them the options of becoming part of the Republic of Mauritius or continuing as a British Indian Overseas Territory. The referendum would obviously need to cater for the nature of the Chagossian people as a community in exile and not just involve Chagossians currently residing in one particular country. If the result is that the Chagossians elect to become part of the Republic of Mauritius, then this must be honoured but all the evidence suggests that they will elect to become a resettled British Overseas Territory.[15] This would be a win-win all round.
In the first instance, the self-determination wishes of the people of the Chagos Islands would be respected, something Mauritius and the International Court of Justice would have to recognise.
In the second instance, the difference in the cost of resettlement compared with the cost of leasing Diego Garcia could be spent in UK defence and be a net gain to both the UK and the Americans.
In the third instance, all the Chagos Island would remain legally under the sovereignty of the UK, and sovereignty and power would be much better aligned because the islands would be under the sovereignty of a nuclear power with a Navy. As such this solution would be much better aligned with the United States National Security Strategy because it upholds rather than undermines sovereignty.
In the fourth instance, there would be no need to form the dangerous precedent that would arise from encouraging the Republic of Mauritius to turn a blind eye to aspects of its international law obligations under the Pelindaba Treaty.
In the fifth instance, there would be no risks arising from the potential that at some point in the future another government of the Republic of Mauritius might change its mind on this, as happened in relation to the 1965 agreement.
This outcome would not only be the morally correct outcome but the outcome that negotiates the best relationship between sovereignty and power, in the context of the absence of a global executive, and which is consequently most consistent with the preservation of international peace and stability.
In this given that the treaty cannot be ratified if the House of Lords refuses to give the Diego Garcia Bill a Third Reading in January, the responsibility that now rests on the House of Lords is considerable.
Their task has, however, been made much easier since the conclusion of Committee Stage by developments within the UN published on 2nd December.
The Government’s entire argument for the Mauritius Treaty and Diego Garcia Bill has been that they constitute the only way forward for those committed to an enlightened rules-based international order. This pitch is now in tatters because on 2 December a key organ of the UN, the ultimate guarantor and expression of that rules-based international order, the UN Committee on the Elimination on Racial Discrimination published its ‘Decision’ on the Mauritius Treaty. In that document the Committee not only expresses concern about the treaty but actually exhorts the UK and Mauritius not to ratify it.
The UN Committee on the Elimination of Racial Discrimination Decision 1 (2025):
‘Calls upon Mauritius and the United Kingdom of Great Britain and Northern Ireland to suspend the ratification of the bilateral agreement;
Urges Mauritius and the United Kingdom of Great Britain and Northern Ireland to engage immediately with the Chogossian people, ensure their free, prior and informed consent, and to respect and guarantee their human rights under the Convention, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, including:
• Their right to return to their ancestral lands in Diego Garcia Island;
• Their right to self-determination while ensuring the full and meaningful participation of the Chagossian people in all decision-making processes impacting them and their land;
• Their cultural rights, including their access to cultural and spiritual sites and to preserve their cultural heritage;
• Their right to effective remedies and full repatriation, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Urges Mauritius and the United Kingdom of Great Britain and Northern Ireland to fully respect their international obligations and to continue cooperating to bring an end to the harm suffered by the Chagossian people and the violations of their rights.’[16]
Dr Dan Boucher
[1] https://www.devdiscourse.com/article/international/3623843-historic-milestone-mauritius-reclaims-chagos-sovereignty-with-indian-support
[2] The vision is one of sovereign countries working together. It includes the following: ‘We stand for the sovereign rights of nations, against the sovereignty-sapping incursions of the most intrusive transnational organizations, and for reforming those institutions so that they assist rather than hinder individual sovereignty and further American interests.’ https://www.whitehouse.gov/wp-content/uploads/2025/12/2025-National-Security-Strategy.pdf
[3] https://hansard.parliament.uk/commons/2025-10-20/debates/6BCF0411-DCED-403B-BBC6-212400EE90BF/DiegoGarciaMilitaryBaseAndBritishIndianOceanTerritoryBill
[4] https://www.gov.uk/government/publications/ukmauritius-agreement-concerning-the-chagos-archipelago-including-diego-garcia-cs-mauritius-no12025
[5] ‘Preventing conflict requires a vigilant posture in the Indo-Pacific.’ And ‘Importantly, this must be accompanied by a robust and ongoing focus on deterrence to prevent war in the Indo-Pacific.’ https://www.whitehouse.gov/wp-content/uploads/2025/12/2025-National-Security-Strategy.pdf
[6] https://maritime-executive.com/article/india-secures-defense-presence-on-chagos-islands
[7] https://fotbot.org/the-chagos-treaty-and-the-new-colonialism
[8] https://www.icj-cij.org/node/105779
[9] https://www.icj-cij.org/node/105779
[10] Ibid.
[11]https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjJ9vvNzLqRAxWzYEEAHc8tOFoQFnoECCsQAQ&url=https%3A%2F%2Fdata.parliament.uk%2FDepositedPapers%2FFiles%2FDEP2014-1543%2FFeasibility_Study_for_the_Resettlement_of_the_BIOT_Draft_Report.pdf&usg=AOvVaw2utWGJkYYLxzernu7w9pVw&opi=89978449
[12] https://labour.org.uk/wp-content/uploads/2024/06/Labour-Party-manifesto-2024.pdf
[13] https://parliamentnews.co.uk/self-determination-the-gilbert-and-ellice-islands-precedent-and-what-it-means-for-the-united-kingdom-and-the-chagossian-people-today
[14] https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2FCERD%2FEWU%2F11263&Lang=en
[15] https://fotbot.org/whitestone-insight-endorses-landmark-chagos-islands-sovereignty-poll
[16] https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2FCERD%2FEWU%2F11263&Lang=en
