Giving the Chagos Islands to Mauritius ignores the core principle of self-determination, which international law places above colonial-era borders. Chagossians must be allowed to decide their own future, just as in past UK-facilitated decolonisations. The Mauritius Treaty, however, sidelines their rights and creates new risks, says Dr Dan Boucher.
In my article ‘The Chagos Treaty – And the New Colonialism’, I responded to the argument set out by the Republic of Mauritius, apparently with the support of international law, for the ‘return’ of the Chagos Islands to Mauritius and the ‘completion’ of the decolonisation of the former colony of Mauritius, the stated objective of the Mauritius Treaty.
Their argument is that international law, as set out in the UN Declaration on Decolonisation, UN Resolution 1514 (XV), implies that colonial powers should not change the boundaries of their colonies prior to decolonisation.
They must facilitate the decolonisation of every colony as a whole. The United Kingdom failed to do this because sixty years ago the UK persuaded the then Mauritian Council of Ministers that while the island of Mauritius should proceed to decolonisation, the other part of the colony, the Chagos Islands, should be separated and become a new smaller colony to make provision for a US military base. Notwithstanding the fact that Mauritius not only accepted the proposal, but took a significant amount of money, £3 million (£70 million in today’s money) in compensation, the Mauritians subsequently argued that their consent was void. Specifically, they have claimed that because international law says that the territorial integrity of a colony should not be changed, the fact that the change was not imposed by the colonial power but made with the agreement of the Mauritians, was irrelevant such that their consent should be ignored.
The International Court of Justice agreed with the Republic of Mauritius in a non-binding advisory opinion in 2019. In this context it is argued that the correct way forward is for the Chagos Islands to be ‘returned’ to Mauritius so that decolonisation can be completed.
Prioritising Territorial Integrity over Self-Determination?
The problem, however, is that the above argument arises from a very partial understanding of decolonisation. The truth is that the prohibition on colonial powers seeking to change the territorial integrity of the colony ahead of decolonisation is not because of a conviction that the colonial power demonstrated great wisdom when initially determining the boundaries of the colony. It is rather to ensure that in granting self-government, they do not seek to pre-empt or constrain in any way the self-determination of the people, which international law readily acknowledges can change their territorial integrity.
By way of introduction, in order to appreciate the priority of self-determination over territorial integrity in the context of decolonisation, it is first important to note that this priority is in fact general and not confined to questions of decolonisation. This is eloquently demonstrated by the case of Czechoslovakia and the self-determination of its people to change their territorial integrity of become two separate sovereign states, the Czech Republic and the Slovak Republic, quite apart from processes of decolonisation. In turning specifically to decolonisation, though, two points must be made.
In the first instance, the fact that colonial territorial integrity is not forever frozen in time is evident from the perspective of international relations practice with respect to decolonisation. For example, the territorial integrity of the colony of India was not preserved after decolonisation but broken up in the context of self-determination into India, Pakistan and Balgadesh.
In the second instance, international law, as set out in UN Resolution 567 (VI), Resolution 648 (VII) and Resolution 742 (VIII,) makes it clear that decolonisation must be understood as part of a process of self-determination in which the people/peoples of the territory can keep their colonial territorial integrity or change it. Although primarily for the purpose of questioning the authenticity of attempts of newly decolonised polities to self-determine to make themselves part of the former colonial power, or another polity, these resolutions are very relevant for our purposes. Specifically, in expressing concerns regarding the validity of territorial integrities that involve geographical separation and the joining together of territories with distinct and different ethnic profiles, the resolutions articulate principles that necessarily call into question the validity of the borders of the pre-November 8th 1965 colony, as a matter of free self-determination, and thus the appropriateness of re-establishing them sixty years later.
If we turn to UN Resolution 742 (VIII), for example, we will see that it effectively queries the authenticity of territorial integrities in the following contexts:
‘Geographical considerations. Extent to which the relations of the Territory with the capital of the central government may be affected by circumstances arising out of their respective
geographical positions, such as separation’ by land, sea or other natural obstacles.’
‘Ethnic and cultural considerations. Extent to which the population are of different race, language or religion or have a distinct cultural heritage, interests or aspirations, distinguishing them from the peoples of the country with which they freely associate themselves.’[2]
Given the above, while one cannot assume what would have happened had the whole of the pre-November 8th 1965 colony been afforded self-determination, it is clear that if there was ever a colony likely to self-determine to become two separate countries this was surely it. In the first instance, the distance between Mauritius and the Chagos Islands was a staggering 1,339 miles, the distance from Kent to North Africa. In the second instance, the people groups of the two islands were different: the Chagosians were black and Christian, while the Mauritians were to a significant degree Indian and Hindu. In this context, there are strong grounds on which to argue that the pre-November 8th 1965 territorial integrity, frozen in time, without self-determination, can no more complete decolonisation than did the creation of the British Indian Overseas Territory (BIOT).
The Problems with Refuting Self-Determination
When champions of the Mauritius Treaty and the Diego Garcia Military Base and British Indian Ocean Territory Bill are challenged about the failure to make provision for Chagossian self-determination – even as Article 11 of the Treaty recognises the Chagossians, correctly implying that they are not the same as the Mauritians – they deploy one of two arguments. The usual argument is that, while it was very wrong and should not have happened, the fact that the Chagossians were forcibly removed from the Chagos Islands means that it is no longer possible to apply self-determination in relation to the Chagossians with respect to the Chagos Islands. Alternatively, they may try to argue that the Chagossians are represented because on the basis of the pre-November 8th 1965 territorial integrity of the colony, they are Mauritians, and further to their forced removal to Mauritius, some Chagossians also live on Mauritius. They are consequently given self-determination as part of the self-determination of Mauritius.
Neither of these arguments will do.
Taking them in reverse order, it is not remotely credible to argue that the Chagossians now enjoy self-determination as part of Mauritius.
In the first instance most Chagossians do not live in Mauritius and the numbers of Chagossians in Mauritius is falling rather than increasing. Moreover, the informal referendum of Chagossians that has been conducted, in which 3,056 Chagossians participated, shows 99.16% support for self-determination to not become part of Mauritius and to be a largely self-governing British Overseas Territory like Anguilla or Monserat.[3]
In the second instance, the suggestion that Chagossians can be collapsed into the category Mauritians is deeply troubling to many Chagossians because the Mauritians were effectively a party to their forced removal from the Chagos Islands, agreeing that the Chagossians should be forcibly removed to Mauritius where they have for the most part endured a very second class citizenship. While it is perhaps possible to regard the 1965 decision of the Mauritian Council of Ministers to accept the removal of the Chagos Islands as void to the extent that it was concerned with agreeing to the removal of the Islands, to the extent it was concerned with agreeing to help facilitate the forced removal of Chagossians from the Chagos Islands to Mauritius, it cannot be regarded as without consequence. It understandably makes the idea that Chagossians can find self-determination within a Mauritian identity quite impossible for many, just as it would be impossible for them to self-determine within a British identity. While they can self-determine to be part of the Republic of Mauritius or to be a British Overseas Territory, their self-determination must now be theirs and theirs alone.
The idea, meanwhile, that, while wrong, the forced removal of the Chagossians from their islands now negates the moral imperative to provide them with self-determination is quite extraordinary and could only be deployed logically if the Chagossian people had died out. Nothing, however, could be further from the truth. This people in exile have a growing population and they mostly live in just three countries: the UK, the Seychelles and Mauritius. It would be eminently possible to facilitate a self-determination referendum for them and, as the KMPG report on resettling the Chagos Island makes clear, it would be cheaper to resettle the islands than for the UK Government to give them to Mauritius and then lease back Diego Garcia for 99 years.[4] In the context of these clear opportunities, the decision not to facilitate Chagossian self-determination in 2025, justifying this on the basis of what happened between 1968 and 1973, necessarily validates rather than makes amends for this wrong-doing, and thereby freshly associates the current generation with the failings of those who went before us, bringing yet more shame on the United Kingdom.
Mauritian Delivery of Self-Determination?
In order to really appreciate the problems associated with the Mauritius Treaty and Diego Garcia Bill, though, it is important to confront and engage with two further realities:
First, although the Mauritius Treaty involves the UK paying the Republic of Mauritius more money than it would take the UK to resettle the Chagos Islands, the treaty does not hold the Mauritians to resettling the Chagos Islands. This is merely referenced as a possibility.
Second, and more importantly, the possibility of the Mauritians facilitating the resettlement of the Chagossians on the Chagos Islands has been thrown into doubt in the last month by revelations that in order to place its flag on the Chagos Islands, the Mauritians will need to be taken there by the Indian Government for the very simple reason that they don’t have an appropriate vessel for the task.[5] In international relations while the ‘recognition’ of a state does not involve requiring that it have great or unusual powers, it does need the capacity to at least govern itself if it is not going to become a ‘failed state’ or effectively governed by someone else. If the Republic of Mauritius does not have the capacity to even go to the Chagos Islands under its own steam to raise the Mauritian flag over the islands, it is hard to conceive how it could resettle and govern the islands 1,339 miles away.
Further Challenges
Moreover, in order to fully unpack the implications flowing from these questions of capacity, it is important to have regard for two further difficulties:
- Leasing Other Islands
In the first instance, media reports suggest that rather than focusing on resettling the Chagos Islands with Chagossians, the Republic of Mauritius is more concerned with establishing further income streams by leasing more of these geo-strategic islands to other countries. It has been widely reported that India has done a defence deal with the Republic of Mauritius to lease an island for a listening post.[6] It is also said that immediately following the signing of the Mauritius Treaty, a Chinese delegation arrived in Port Louis to discuss, among other things, leasing an island. Moreover, while the treaty limits the scope for other countries to use the islands for defence and security purposes, there are no limitations whatsoever in relation to Mauritius leasing other islands for other purposes and, once leased, it would be very difficult to police what the islands are used for without potentially starting a war.
‘3. In accordance with this Agreement, in respect of the Chagos Archipelago beyond Diego Garcia, Mauritius agrees:
… d. 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.’[7]
- UN Resolution 742 (VIII),
In the second instance, one of the problems associated with trying to freeze the pre-November 8th 1965 territorial integrity in time is that one has to act as if tomorrow is the 9th November 1965 and not 9th November 2025 when it actually is 9 November 2025. The truth is that although the Chagos Islands should not have been separated from the rest of the pre-November 8th 1965 colony in the way that they were, they were and have been functionally separate, as of today, for sixty years. In this context, in looking at the proposition that the Chagos Islands now become part of the territorial integrity of Mauritius, mindful of the lack of capacity of the Republic, it is difficult to disregard the following principle in UN Resolution 742 (VIII), mindful that the capital of the polity of which its is proposed the Chagos Islands should become a part is Port Louis, 1,339 miles away: ‘Geographical considerations. Extent to which the relations of the Territory with the capital of the central government may be affected by circumstances arising out of their respective geographical positions, such as separation’ by land, sea or other natural obstacles.’
The Tuvulan Precedent
It is, however, only really possible to appreciate the full extent of the difficulty that is now facing the UK Government’s defence of the Mauritius Treaty, and the Diego Garcia Bill, when one confronts the full force of the precedents arising from the higher standards to which it has held itself since 1973. The colony of Mauritius was not the only former British colony to have embraced two different sets of islands, separated by a very significant distance and inhabited by people of different ethnicities. The Gilbert and the Ellice Islands provided the UK with a very similar decolonisation challenge and rather than preventing decolonisation by elevating a frozen conception of territorial integrity over self-determination, the UK demonstrated how it is possible to respect both the imperative for the colonial power not to change the territorial integrity of a colony immediately prior to decolonisation for its own purposes, and yet facilitate decolonisation and therein self-determination, resulting in the people concerned changing the territorial integrity of the erstwhile colony.
Like the Chagos Islands, the Ellice Islands were located a very considerable distance away from the larger and more populous Gilbert Islands although the distance between the two was actually less than between the Chagos Islands and Mauritius, just over 800 miles rather than the 1,339 miles between the Chagos Islands and Mauritius. The two sets of islands also upheld two different and ethnically distinct communities. While the people of the Ellice Islands were Polynesian, the more numerous people of the Gilbert Islands were Micronesian, just as the Chagossians were Africans, while the Mauritians (pre-the forced removal of Chagosssians) were to a large degree Indian.
In this context rather than trying to change the territorial integrity of the colony of the Gilbert and Ellice Islands ahead of decolonisation for its own purposes, the UK Government discussed decolonisation with the islands without any particular agenda. As they did so it became apparent that the representatives of the people of the Ellice Islands were nervous about the prospect of being made part of a new sovereign state just consisting of the Ellice and Gilbert Islands because they felt they would be overshadowed by the much more numerous people of the Gilbert Islands and that their voice would be lost and their concerns overlooked. The UK Government responded by facilitating a self-determination referendum for the people of Ellice in 1974 and they voted to separate from the Gilbert Islands, 3,799 votes to 293. The UK Government then worked with the islands to give effect to this decision so that initially the Ellice Islands became a separate colony from the Gilbert islands in 1976, ahead of their becoming an independent sovereign state in 1978 named Tuvula, while in the following year the Gilbert Islands became an independent sovereign state, the Republic of Kiribati.
In this we see that there is no problem with changes being made to the territorial integrity of a colony before decolonisation. The point is simply that the initiative for this cannot come from the colonial power. It must come from the people of the territory in question. Indeed, although the point has been rather lost, the non-binding advisory Judgement of 2019 makes it clear that there would have been no issue with the separation of the Chagos Islands from Mauritius had this change been made as the result of a valid exercise of self-determination through a referendum.
‘The Court considers that the peoples of non-self-governing territories are entitled to exercise their right to self-determination in relation to their territory as a whole, the integrity of which must be respected by the administering Power. It follows that any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination.’[8]
The example provided by the conduct of the UK Government in relation to the Gilbert and Ellice Islands is of immense importance for Chagossians rejecting the Mauritius Treaty and Diego Garcia Bill and their quest for self-determination.
First, in providing an example of the decolonisation of a colony that embraced two groups of islands separated by huge distances and ethnicity, it tells us not only that, mindful of UN Resolution 567 (VI), Resolution 648 (VII) and Resolution 742 (VIII), it would not have been surprising had the self-determination of the pre-Nov 8th 1965 colony resulted in its becoming two separate entities, such that it would be disingenuous and wrong to argue that decolonisation can now be completed on a basis of assuming its pre-Nov 8th 1965 territorial integrity frozen in time. More importantly we now have to say that, given the precedent set by this close comparator colony, it is the outcome we would expect. Indeed, the presumption that the completion of decolonisation would change the territorial integrity of the pre-November 8th 1965 colony must be greater than in relation to Gilbert and Ellice Islands for two reasons. First, the geographical distance between Mauritius and the Chagos Islands is greater than that between the Gilbert and Ellice Islands. Second the risk of Chagossians being overshadowed by Mauritians is greater than that pertaining to the overshadowing of Ellice by the Gilbert Islands on account of the far larger number of Mauritians compared to Chagossians.
In the context not only of the legal implications flowing from UN Resolution 567 (VI), Resolution 648 (VII) and Resolution 742 (VIII), but the precedents set in relation to the Gilbert and Ellice Islands, not by any colonial power but specifically by the UK, together with the facts that: i) it is technically possible to provide the Chagosssians with a robust self-determination referendum, ii) resettling the islands would be cheaper than giving them to Mauritius and then leasing Diego Garcia, iii) the Republic of Mauritius has not committed to resettle the Chagos Islands, iv) the Republic would seem to lack the capacity to do so and v) be more interested in leasing the islands rather than helping to facilitate the completion of decolonisation, the Mauritius Treaty and Diego Garci Bill appear to be completely indefensible.
Legal Certainty and a Better Chance?
At this point champions of the Treaty and the Bill will no doubt fall back to their last line of defence, appealing to the support of the United Sates of America for the Treaty and the support of some Chagossians for the Mauritius Treaty.
- US Support?
US support is based on two considerations. First, the fact that it is a great deal for the United States in the sense that London pays for Diego Garcia, not Washington. Second, the United States has been concerned about the legal uncertainty surrounding its base on Diego Garcia. The fact that the sovereign power hosting the US military base, the UK, has not refuted the claims of Mauritius to the Chagos Island, but effectively agreed with them, has naturally made the Americans very unsure about the future of their base such that they have paused investment in relation to it. In this context, the UK Government’s argument is that the Mauritius Treaty, giving the Chagos Islands to Mauritius and then leasing back Diego Garcia, completes decolonisation and provides legal certainty for the military base. This argument, however, is now plainly problematic on two bases:
First, as this article makes plain, the Mauritius Treaty clearly does not provide the only way of providing the requisite legal certainty. One could do so by completing decolonisation through the provision of self-determination for the Chagossian people which does not prejudge whether they would elect to be part of the Republic of Mauritius or form a separate polity. Either outcome would provide the requisite legal certainty. If they chose to become a largely self-governing British Overseas Territory, as seems likely, the outcome would create legal certainty and be no more contested in international law than is the legal standing of Tuvula, separated from what is now the Republic of Kiribati. Moreover, in this context there would be no question of any other islands being leased out to different powers, which could well threaten international instability.
Second, an agreement embracing the delivery of self-determination for the Chagossian people would provide greater legal certainty than the Mauritius Treaty precisely because of the failure of the Mauritius Treaty to make provision for Chagossian self-determination. If the Mauritius Treaty is ratified then, notwithstanding the attempt of clause 4 of the Diego Garcia Bill to remove the ongoing foundation for Chagossian identity in the UK, by means of replacing British Oversea Territories Citizenship for Chagossians with British citizenship, the Chagossians, a growing nation in exile, are not going to go away. They will almost certainly obtain a form of international personality, calling into question the Mauritian claim to the Chagos Islands, creating further legal uncertainty for the United States.
- Chagossian Support?
In responding to the support of some Chagossians for the Mauritius Treaty two points should be made. First, it would be highly unusual for any act of self-determination to result in all Chagossians voting one way. As demonstrated by the Islands of Ellice, some voted to remain joined to the Gilbert Islands. Second, in a context where no progress has been made in relation to the resettlement of the Chagos Islands in many years, it is not surprising that some Chagossians have thought that their access to the Chagos Islands under the Mauritians can’t be any worse than that provided hitherto by the British, and they have cautiously backed the treaty. The point of this article, however, is that while the Mauritian case for taking the Chagos Islands rests entirely on a commitment to territorial integrity frozen in time, such that they are not seeking to facilitate self-determination for the Chagossians, or committing to the resettlement of their Islands, it is important to understand that the UK’s options are now more limited. Specifically, the only way in which the UK could maintain its sovereignty in relation to the islands, within international law, would be if it provides the Chagossians self-determination and resettles the islands. In this context, and mindful of the Tuvulan precedent, Chagossians who have been persuaded to back the Mauritius Treaty should perhaps give this more thought.
The Way Forward
If the Government seeks to progress its Diego Garcia Bill in the Lords – and it must do so, and the legislation become law, in order to facilitate ratification of the Mauritius Treaty – it will need to table a motion to commit the Bill to Committee Stage. At this point the Conservatives will then be able to re-table their amendment to the motion that Committee Stage must not commence until after a 30 day consultation with the Chagossians. In the debate that follows the international law arguments around self-determination, UN Resolution 567 (VI), Resolution 648 (VII) and Resolution 742 (VIII), and the precedent arising from the past conduct of the United Kingdom as a colonial power in relation to the Ellice and Gilbert Islands, will be of huge importance. Ultimately the House of Lords has the capacity to save the United Kingdom from the great dishonour of the treaty because if it refuses to pass the Bill at Third Reading the Mauritius Treaty cannot be ratified. The Government may then invoke the Parliament Act and seek ratification in the next session. This would, however, secure13 precious months during which there will be an opportunity to shine more might on the injustices of both the Mauritius Treaty and the Diego Garcia Bill and make the case for an alternative solution.
By Dr Dan Boucher.
[1] https://fotbot.org/the-chagos-treaty-and-the-new-colonialism
[2] https://docs.un.org/en/A/RES/742(VIII)#:~:text=CONTENTS,Non%2DSelf%2DGoverning%20Terri%2D
[3] FOTBOT to host informal Chagos Islands referendum | Friends of the British Overseas Territories
[4] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjtj4Tiy-OQAxWzX0EAHTUCFjcQFnoECBcQAQ&url=https%3A%2F%2Fqna.files.parliament.uk%2Fws-attachments%2F178757%255Coriginal%255CFeasibility%2520study%2520for%2520the%2520resettlement%2520of%2520the%2520British%2520Indian%2520Ocean%2520Territory%2520Volume%25201.pdf&usg=AOvVaw17pKIO2S0lJ__9jHXresg4&opi=89978449
[5] https://www.devdiscourse.com/article/international/3623843-historic-milestone-mauritius-reclaims-chagos-sovereignty-with-indian-support
[6] https://maritime-executive.com/article/india-secures-defense-presence-on-chagos-islands
[7] CP 1334 – Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Mauritius concerning the Chagos Archipelago including Diego Garcia
[8] https://www.icj-cij.org/node/105780
