The Chagos Islands, Mauritius and the ICJ

Diego Garcia (Photo: BBC)

In 2017, the International Court of Justice sought to answer the following two questions 

(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;

(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?

For those who are perhaps unfamiliar with the history - or geography - of the Chagos Islands, here is a brief recap. The Chagos Islands are a small archipelago in the Indian Ocean, approximately mid-way between Madagascar and India. They were settled in the 1700s by Africans who had been French slaves in India, and these people became known as Chagossians. The islands themselves were under French rule until 1814, after which the islands (as part of Mauritius) were transferred to the UK. Chagossians lived on the island until - at the request of the United States - the islanders were forcibly expelled to allow for the establishment of a military base at Diego Garcia. This process was completed by 1973, after which the only residents of the islands have been employees of the US or UK military services.

Mauritius gained independence from the UK in 1968, just as the expulsion of Chagossians had begun. Later Mauritian governments have often claimed the Chagos Islands - renamed the British Indian Ocean Territory in in 1965 - as their own territory; however, at the time of the independence talks, representatives acting for Mauritius did not object to the transferral of the archipelago or its depopulation as they felt it may negatively impact the UK's willingness to grant independence.

In the years that followed, groups representing Chagossians fought a long and arduous legal battle to return to the islands. The nearest they came to a result was in 2000, when a UK court ruled in favour of the Chagos Refugee Group and determined that the 1971 ordinance prohibiting resettlement was invalid. Unfortunately for the CRG, the UK government carried out a feasibility study that showed resettlement to be prohibitively expensive. This setback was followed by the House of Lords ruling against the CRG's claims in 2008 and defeat for the CRG at the European Court of Human Rights in 2012.

Despite this, pressure began to mount on the UK, culminating in the ICJ's recommendations entitled Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. It is important to stress that the findings were not, and are not, binding. The ICJ found that “as a result of the Chagos Archipelago’s unlawful detachment and its incorporation into a new colony, known as the [British Indian Ocean Territory] BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968."

The ICJ determined that "the circumstances in which the colony of Mauritius agreed in principle to the detachment of the Chagos Archipelago, the Court considered that this detachment was not based on the free and genuine expression of the will of the people concerned". It also stated that "the process of decolonization of Mauritius was not lawfully completed in 1968".

While emphasising 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", in addressing the second question the ICJ weakly conceded that "as regards the resettlement on the Chagos Archipelago of Mauritian nationals, including those of Chagossian origin, the Court was of the view that this is an issue relating to the protection of the human rights of those concerned, which should be addressed by the General Assembly during the completion of the decolonization of Mauritius."

The ICJ was correct in its assessment of the UK's role. However, the weakness of its stated position is that the ICJ imagined the clock could be turned back to 1968. It did not acknowledge the attitudes of more recent Mauritian governments towards the plight of the Chagossians, their claims of self-determination or their right to return. Instead, it advocated "decolonization" by "returning" the islands to an independent Mauritius known to be hostile towards Chagossian claims. Concerns of the Chagossians in relation to this potential arrangement were not considered relevant to the recommendations. No alternative arrangements, such as Chagossian independence or self-rule, were examined.

In 2022 the then foreign secretary, James Cleverly, began negotiations with Mauritius with a view to handing over sovereignty by 2023. These negotiations involved officials from the UK and Mauritius governments only; there were no representatives of the Chagossian people present and neither were their views taken into consideration. When David Cameron succeeded Cleverly these talks were halted, but recommenced under David Lammy's oversight. 

Today it has been announced that agreement has been reached. The islands will be ceded to Mauritius, subject to the finalisation of a treaty, with the future of the US-UK military base assured for another 100 years. No right of return has been explicitly stated, although the UK has promised to create a "resettlement fund" to assist displaced Chagossians back to islands other than Diego Garcia - while welcome, the lack of specifics as to eligibility criteria and how this will work in practice is particularly frustrating.

Predictably, there has been much displeasure expressed from Conservative MPs, including from Cleverly himself who seems to have completely forgotten about his own role in events. Most of these objections have been around "sovereignty" and an apparent nostalgia for colonialism. Some argue that this diminishes the UK's standing in the world, and has weakened us militarily (despite the future of the base being guaranteed for a century and the US being perfectly happy with the arrangement). Sam Bidwell, writing in the Daily Telegraph, raged that "Starmer's betrayal is unforgiveable" and argues that "we will not survive in our increasingly dangerous world if we cannot act in our own self-interest".

I believe this is a bad decision - but not for those reasons. The problem I have with what appears to have been agreed is that the UK has acted solely out of self-interest. Bidwell is correct - this does represent a betrayal, but a betrayal of the Chagossians rather than the British people. 

For many years I have hoped that the UK would eventually surrender sovereignty of the Chagos Islands. But to hand them to Mauritius, simply because it probably should have done that back in 1968, is the wrong course of action. To right the wrongs of the past, the UK needed to act in the interests of Chagossians, not an independent nation that has never earned the trust of many islanders. 

Yes, the UK needed a plan to return the island to Chagossians while identifying appropriate arrangements for the military base. This shouldn't have been difficult. Unfortunately, the UK's response to the ICJ's recommendations was not about how to restore human rights to expelled islanders. It did not feel a need for consultation with the Chagossian communities in the UK, Mauritius or the Seychelles, instead opting for a stitch-up with the Mauritian government that allows for the continued presence of the military base while Mauritius profits. I trust the ICJ are happy with that understanding of "decolonialization", but I'm not sure I am.

While Mauritius has never recognised the British Indian Ocean territory, neither has it recognised the Chagossians' right to reside there. Arguments have been about territory rather than people. As the Seychelles Chagossian Committee noted in 2018, "the Mauritian government’s demand is motivated by the commercial gains, rent from the United States and new fishing grounds… we do not want Mauritius to get our islands”.

Earlier today, the Lib Dems' former foreign affairs spokesperson, Layla Moran, said this on twitter/X: "This is very good indeed. The previous UK position went against rulings at international courts, which in turn opened us up to charges of hypocrisy when we spoke about upholding the international rule of law. Well done ⁦@FCDOGovUK ⁩ and all involved." Leader of the Scottish Lib Dems, Alex Cole-Hamilton, was similarly uncritically supportive of today's development and the roles of both the Conservative and Labour parties in bringing it about.

I'm afraid that is far too simplistic an approach for our party to take. Yes, we naturally want to see international law upheld and it is vital that the UK plans for a future for the islands in which they will no longer be a British overseas territory. But there was no need to rush into this, and to enter into talks about the islands without involving Chagossians in the discussions was simply negligent. Despite the promise of a "resettlement fund" there is, at present, no clear pathway by which Chagossians can return. Neither does there appear to any intention to involve them in discussions around the details of the proposed treaty. 

Another Chagossians' group, the UK-based Chagossian Voices, added: “Chagossians have learned this outcome from the media and remain powerless and voiceless in determining our own future and the future of our homeland. The views of Chagossians, the indigenous inhabitants of the islands, have been consistently and deliberately ignored and we demand full inclusion in the drafting of the treaty.”

A new arrangement agreeable to the UK, the US and Mauritius that acts against the interests of Chagossians is no solution at all. There is no clear picture of what any right of return may look like in practical terms. They clearly have no right to self-determination. In fact, what this agreement may actually have done is to kill Chagossians' hopes for another century. Strategic interests clearly trump human rights. 

The ICJ must bear some responsibility for this situation. In naively suggesting that the demands of Chagossians should not be considered until after a transfer of sovereignty to Mauritius, the ICJ may have destroyed any realistic hopes the islanders had. The ICJ is every bit as complicit in the failure to involve Chagossians in decisions about their own land as are the respective governments. Human rights and the views of the expelled native population should not have been some secondary consideration to be perhaps looked at once a pre-determined political arrangement had been achieved, but should instead have been the primary aim. Without a right to self-determination, the islands simply pass from one self-interested country to another without the Chagossians gaining anything. Even if the islanders are allowed to return, it will be on terms decided by Mauritius over which they will have had no say whatsoever.

Yes, I wanted to see British control of the Chagos Islands ended. But not like this. This is simply an undignified stitch-up between the governments of Mauritius and the UK, which criminally fails the Chagossians. The ICJ are also complicit in demanding a "solution" based on historical wishful thinking  rather than current political reality and the human dimension. 

Today is indeed a sad day, but not for the reasons Tory MPs are claiming. It's the day the UK made it clear that it cares nothing about Chagossians or the right to self-determination. The islanders were treated shamefully over 50 years ago; they have been treated no less shamefully today.