Dr Dan Boucher explains that the proposed Mauritius Treaty is not the only, nor the best, solution to the legal and strategic questions surrounding the Chagos Islands and the US military base on Diego Garcia. He contends that instead of transferring sovereignty to Mauritius, the United Kingdom and the United States should support a self-determination referendum for the Chagossian people, coupled with resettlement of the outer islands. Such an approach, he maintains, would correct the original legal defect in the 1965 detachment, secure the long-term legal standing of the US base, better serve British and American strategic interests, and deliver a more just outcome for the displaced Chagossian community.
Earlier this month President Trump appeared to yield to constant British Government pressure seeking his support for Prime Minister Keir Starmer’s deeply controversial Mauritius Treaty, which proposes transferring the Chagos Islands from UK to Mauritian sovereignty.
However, the manner of his concession has done nothing for the Mauritius Treaty. The President has rightly expressed serious concerns about the weakness of the lease arrangements and stated that the bottom line is that the United States will assert its rights to its military base on Diego Garcia by force if necessary.
In a tweet, the United States Ambassador to the UK, Warren A. Stephens, subsequently said that while the transfer was not great, it was the best available option.
‘The ideal outcome would be for the UK not to transfer sovereignty of the Chagos Islands, but it was the best deal on the table for successive UK governments.’
As hinted at by Ambassador Stephens, it has never been clear that the United States has been concerned by the non-binding Advisory Judgment that the Chagos Islands should not have been detached from Mauritius in 1965.
They only seem to have been bothered because the UK has been bothered.
Had the UK simply said that it is not its policy to comply with non-binding advisory judgments, especially those of courts with no relevant jurisdiction (the International Court of Justice has no standing to rule in this dispute because it is between members of the Commonwealth), then one suspects the United States would not be in any way concerned.
The difficulty for the United States has arisen from the fact that it has an important military base located on the island of a close ally which it now wishes to give to another country that is not an ally of Washington and has close links to China.
There Is a Much Better Deal
While the Mauritius Treaty is undoubtedly the only deal that Keir Starmer has sought to sell to the United States, it is the contention of this article that there is another solution that Washington should pursue that would address the presenting difficulty in a manner that would be much more conducive to the interests of the United States and indeed those of the UK.
The central problem that has generated questions regarding the legal position of the Chagos Islands arises from the fact that in 1965 they were detached from Mauritius without affording the Chagossians a prior self-determination referendum.
As the International Court of Justice recognised, and as precedent demonstrates, the prohibition against changing the territorial integrity of a colony prior to decolonisation is a prohibition against the colonial power making that change for its own purposes. There would have been no problem whatsoever with the detachment in November 1965, had there been a prior referendum in which the people of the Chagos Islands had voted for detachment to become a separate British Overseas Territory.
Relevant precedents can be found in the cases of the Gilbert and Ellice Islands and St Christopher-Nevis-Anguilla.
Like Mauritius and the Chagos Islands, the Gilbert and Ellice Islands were part of the same colonial unit, separated by significant distances (800 miles and 1,339 miles respectively) and populated by different people groups of radically different sizes. After representatives of the Ellice Islands made it clear to the UK that they did not want to become part of the same sovereign state as the Gilbert Islands because this would make them into a permanent minority, the UK offered the residents of the Ellice Islands a self-determination referendum. The islanders voted for separation, became a colony in their own right and subsequently went on to become the independent state of Tuvalu, while the Gilbert Islands became the Republic of Kiribati. Anguilla, meanwhile, declared its independence from St Christopher and Nevis, which elected to become an independent state, while Anguilla chose to be, and remains today, a largely self-governing British Overseas Territory.
Notwithstanding the centrality of the failure to provide self-determination to the conclusion that the 1965 detachment was wrong, Mauritius has not sought to make it part of its proposed resolution. It has instead homed in on the argument that because the detachment of the Chagos Islands was contrary to international law, the solution now is simply for the islands to be ‘returned’ to Mauritius. No doubt the fact that the Chagossians are no longer resident on their islands has made it easier to deploy this approach. The non-binding Advisory Judgment has backed them in their claim.
There is, however, another way of addressing the legal uncertainty surrounding the US military base arising from the 1965 detachment which engages directly with the denial of that which made it problematic: self-determination. This approach is more compelling for two reasons. First, it is not vulnerable to the potential criticism that it effectively uses the forced removal of the Chagossians as a means of bypassing self-determination. Second, it has a much better outcome for the Chagossians, the United States and the UK.
Had the Chagossians been afforded a self-determination referendum in 1965, it is likely they would have voted to become a British Overseas Territory separate from Mauritius because a vote to remain joined to Mauritius would have been a vote to become a permanent minority in a new state. Indeed, the reasons for the Chagossians to vote for separation were far more pronounced than those of the residents of the Ellice Islands in relation to the Gilbert Islands because the Chagossians constituted a much smaller minority of the combined population of Mauritius and the Chagos Islands than the residents of the Ellice Islands constituted in relation to the combined population of the Gilbert and Ellice Islands, and the distance between them was significantly greater. Moreover, and quite unlike the Ellice Islands, which rested on all fours with the Gilbert Islands within the colonial unit that they shared, the Chagos Islands only ever existed as a ‘dependency of Mauritius.’
Moving to the present, one would have to say that the chances of a vote against rejoining Mauritius are now even greater than in 1965 because the Mauritians have since helped facilitate the forced removal of the Chagossians by agreeing to provide the onward destination in their forced relocation, without which they could not have been forcibly removed. Indeed, Mauritius has not even provided a Chagossian right to resettle the outer islands in the Mauritius Treaty and clearly does not have the capacity to deliver resettlement. Furthermore, polling suggests that if the Chagossian people, now resident primarily in the UK, Mauritius and the Seychelles, were afforded a self-determination referendum with respect to their islands, they would vote against being joined to Mauritius and for becoming a resettled British Overseas Territory. This is also the clear objective of the Chagossian Government in Exile.
Mindful of the above, the better way forward, the better deal, must involve providing the Chagossian people with a self-determination referendum and resettlement of the outer islands. In the context of a Chagossian vote to become a resettled British Overseas Territory, the legal standing of all the islands, including Diego Garcia, would then be secure. Mauritius would then have no more claim over the Chagos Islands than the Gilbert Islands (now called the Republic of Kiribati) has in relation to the Ellice Islands (now called Tuvalu) today.
This outcome would have at least four significant advantages for the United States:
In the first instance, the whole Chagos archipelago would remain under UK sovereignty, rather than being transferred to a small country located over 1,000 miles away that does not possess a navy. This would avoid the creation of a relative power vacuum in relation to the Chagos archipelago beyond Diego Garcia, which will likely be of interest to other countries. It would also avoid subjecting the military base to the operational constraints of the Pelindaba Treaty (which will apply if the islands are subject to Mauritian sovereignty) and attempted manipulation of the USA by other powers in relation to its demands.
In the second instance, this would afford President Trump the opportunity to play a leading role in correcting what is now regarded as a great moral wrong: the forced removal of the Chagossian people. It is ironic that this approach was apparently approved by the Democrat President, Lyndon Baines Johnson, who was associated with the civil rights legislation of the 1960s. President Trump would be able to demonstrate his superior leadership in taking a stand for the dispossessed black Chagossian people and their First Minister, Misley Mandarin. The Chagossian Government in Exile, which strongly supports the US base on Diego Garcia, has pledged to name an island in the Chagos archipelago in honour of President Trump on their resettlement.
In the third instance, the United States could ask the UK to redirect the £35 billion it would have otherwise given Mauritius to lease Diego Garcia into its NATO contribution. Some of that money would need to be spent on resettling the Chagossians but, as the KPMG costings on resettlement make clear, this would require significantly less money than the Mauritian lease, and the remaining monies could then be spent on defence.
In the fourth instance, this approach better contributes to the fulfilment of the United States National Security Strategy commitment to fostering an international arena of strong sovereign states. The United Kingdom is a key ally of the United States that shares its values and is a fellow Permanent Member of the UN Security Council. It is not in America’s interest for the moral authority of the UK to be weakened by its submitting to a non-binding judgment and giving up its sovereignty over places of great geo-strategic importance in the Indo-Pacific to an ally of China. Neither is it in America’s interest for the moral authority of the UK to be weakened by its submitting to a shameful arrangement that associates its people with what is effectively a new 99-year Chagossian dispossession plan, making provision for the UK to pay Port Louis £35 billion to lease an island from which the Chagossians, and not the Mauritians, were forcibly removed.
The United States should vigorously press the UK not to ratify the Mauritius Treaty and to pursue this alternative solution. In contemplating this, it is worth remembering that the ethical failings of the treaty are such that the UN Committee on the Elimination of Racial Discrimination has already called on the UK and Mauritius not to ratify the Treaty.
Dr Dan Boucher
Dr Boucher has a PHD in sovereignty and international relations.
