On February 25, 2019, the International Court of Justice (ICJ) ruled that the United Kingdom (UK) had not properly decolonized its holdings in the Indian Ocean and that it needed to end its administration of the Chagos Archipelago as “rapidly as possible”. This ICJ litigation is part of a larger campaign by a variety of groups including the UN General Assembly (UNGA), dispossessed islanders, island nations and others to wrestle control of the Chagos Archipelago — and the island of Diego Garcia (DGAR) — from the UK’s legal control.
Even though the ruling puts the UK’s colonial claims to the Chagos in doubt, it is the United States that has the most to lose since it relies upon a long term lease from the UK to support its continued occupation of DGAR — an important and geographically irreplaceable base in the middle of the Indian Ocean.
Virtually every media outlet that covered the case described it as a loss for the UK, although some seemed skeptical that the decision would change behavior since it was a “non-binding advisory opinion”. The UK Foreign Office asserted that the advisory opinion was “not a decision” and the defense facilities are vitally important to protect the British people, and others from “terrorist threats, organized crime and piracy”. Clearly, the British are putting up a “stiff upper lip” and not inclined to give the ICJ opinion much credence since ICJ advisory opinions are sometimes ignored by major powers
The 1965 ICJ advisory opinion which forbid the actual or threatened use of nuclear weapons, and the 2004 advisory ruling condemning Israel’s construction of barriers on the West Bank is illegal are examples where these opinions are discounted. And, in this case, the national security interests of two powerful countries would be affected by the loss of the . Given this, is it likely that the current decision will be regarded as interesting but legally irrelevant? Or, is this case something different and where is the US? Lastly, now that the ICJ questioned the legitimacy of continued UK sovereignty over the Chagos, is there a path forward for the UK and the US to retain their operating rights to DGAR while at the same time address the legitimate concerns expressed in the ruling?
Where Does the Decision Put the UK (and US) Legally and Politically?
ICJ cases cannot be understood without historical context. The forced eviction of Chagossian Islanders in 1965-1972 to make way for the US base on Diego Garcia has made its way through courts in the UK — up to and including their Supreme Court — an International Law of the Sea Arbitration and the European Court of Human Rights. The UK government’s right to exercise sovereignty over the Chagos has survived all of this litigation, including a formal Arbitral Decision (paragraphs 490-498) that ruled in favor of Mauritius in 2015 that the UK’s establishment of a Marine Protected Area (MPA) around the Islands (including DGAR) was improper.
To reach the conclusion that the UK did not respect the reversionary rights of Mauritius to the Chagos, the Tribunal upheld the “Landcaster” Agreement that was concluded in 1965 between the UK and Colonial Administrators in Mauritius (the Chagos were part of colonial Mauritius) which carried forward once Mauritius became independent in 1968. For its part, the Tribunal criticized the UK for not living up its end of the Landcaster Agreement for not engaging in proper consultation (para 534) with Mauritius prior to establishing an MPA in 2010 and possibly for bad faith for even establishing the MPA (due to Wikkileaks cables). Fortunately for the UK, the decision by the Arbitration Panel never contested whether the UK was entitled to continued use of the Chagos (and DGAR in particular) so long as there was a valid defense purpose.
Incidentally, the Tribunal never cited the UK for bad faith in establishing the MPA but there was contemporaneous press reporting in the UK that the UK had really established the MPA to block/frustrate the Chagossian’s return rights.
Other cases in the UK Courts and the European Court of Human Rights never dealt with the sovereignty/decolonization decisions. These other actions assessed whether the former Chagossian were paid proper compensation when they were evicted and whether they had rights to resettle on the islands. The UNGA, however, was never satisfied that the UK had the right to detach the Chagos from colonial Mauritius and the UNGA (and the African Union) both issued resolutions in 1965, 1966, 1967, 1968, 1980 and 2010 condemning the detachment as contrary to the UK’s obligation to fully decolonize. Given this ongoing concern with the UK’s continued retention of the Chagos, the UNGA felt obliged to get an ICJ ruling whether the UK had completed the process of decolonization of Mauritius — to include the Chagos.
The fact remains that India has significant and enduring ties to Mauritius and would likely be very amenable to use its good offices to broker some sort of arrangement that could either breathe new life into the Landcaster Agreement or exact specific promises from the UK.
The ICJ could have followed the decision in the 2015 Arbitration and found that the UK had not fully complied with the Landcaster Agreement and then advised the UK that it had to work through the process with the UNGA and Mauritius. However, the ICJ ruled in a nearly unanimous decision that Landcaster Agreement was legally invalid in its entirety and ordered that the UK to bring its “occupation” to an end. This portion of the decision is interesting because it completely disregarded the findings of the UN Law of the Sea Arbitration Panel and also ignored the fact that successive Mauritian governments had ratified the Landcaster Agreement after gaining independence. The ICJ could have also ruled that the UK government needed to begin to resettle the former Chagos residents in Diego Garcia or some of the associated islands or offered them land somewhere else. But the court applied a meat cleaver to the matter and held that the UK needed to turn the Chagos over to Mauritius under the supervision of the UNGA.
Where Does the Ruling Leave the UK and US?
The ICJ judges are careful to say that their decision does not affect ultimate sovereignty over the Islands, although one must question how the ruling can be interpreted in any other way than an invalidation of the UK’s rights to the Chagos Islands. Of course, since the United States’ basing rights are predicated on a long term lease through 2036, the massive US infrastructure investments in runways, hangers, tracking stations, port facilities, communications facilities, repair facilities, etc., and its ability to occupy DGAR are entirely derivative of the UK’s ability to maintain its legal presence.
It is wrong for Washington to simply assume that the UK government will continue to “carry the water” for the US. Though technically termed a Permanent Joint Operating Base, the UK’s complement aboard DGAR is 40-50 military personnel while the American presence is on the order of 2500 military and civilian personnel, although the actual number is higher if one takes into account civilian contractors. Because this base is not associated with a NATO mission, the UK will have a much more difficult time defending its actions internally, since it is based on a bilateral relationship with the US. Since most of the UK military personnel are present on DGAR to only administer the US lease, versus serve an important UK defense or treaty commitment, proponents for preserving the lease can’t convincingly argue internally that retention of the territory is important to UK national security. This also makes it more difficult for proponents within the UK to argue for “business as usual” to keep things as they are, since the Landcaster Agreement states that the UK can only retain the Chagos so long as there is a valid defense purpose.
It is true that DGAR serves a critically important defense need; however, it is mostly a US need. Also, there is a great deal of internal sympathy for the plight of the Chaggosians who emigrated to the UK and there are a few reports that the government has been split on whether “carrying the water” for the US is worth alienating people at home. To be clear, neither the UNGA nor the ICJ in an advisory opinion can legally compel the UK to do anything. However, the ICJ advisory opinions are binding on other UN agencies (like the UNGA) and there is no doubt that if the UK did not take some action, that would create more political problems for the UK at home and abroad in which the “colonial” optics are not favorable to the UK. Also, the decision gives the UNGA plenty of fuel to constantly harass the UK with UNGA resolutions or find other ways to seek to hold the UK accountable within the UN system
US Course of Action
Since the US has the greatest amount of risk, the question becomes whether Washington should continue to hitch its wagon to London or strike out in a different direction. In July 2018, this author wrote that India is potentially a critical actor in this overall debate concerning DGAR. On the one hand, the US/India defense relationship continues to flourish. In September, at the so-called 2 plus 2 meetings involving Secretaries of State and Defense and their counterparts, the US and India reaffirmed their “strategic partnership” on both “regional and global issues”. There is also the recent designation of India as “Major Defense Partner”. On the other hand, India voted with UNGA to send the Chagos matter to the ICJ, knowing how important DGAR is to US defense needs.
There is reporting that India welcomes the US presence in the Indian Ocean; however, India probably had no practical political choice but to support the UNGA since the matter, after all, had to do with getting the UK to divest itself of colonial holdings. But the fact remains that India has significant and enduring ties to Mauritius and would likely be very amenable to use its good offices to broker some sort of arrangement that could either breathe new life into the Landcaster Agreement or exact specific promises from the UK.
A new Landcaster Agreement might (a) grant Mauritius access to lands and waters that are not in immediate use for defense purposes; (b) ensure that Mauritius receives either lease payments for the US use of Diego Garcia or some other form(s) of long term tangible economic benefits, such as base operating contracts set aside for Mauritian contractors. Alternatively, India could possibly play a role in helping broker a change in the status of the Chagos in which, perhaps, the UK cedes sovereignty but assumes the role as a Trustee of DGAR on behalf of the Mauritius — and the former Chagossians. That could be coupled with additional benchmarks on how the former Chagossians and Mauritius will be able to gain access to the fisheries, minerals, or to participate in some of the economic activities at DGAR.
There are an infinite number of formulations that could be attempted to pay respect to the ruling — and the anti-colonial aspirations of Mauritius and the dispossessed residents of the Chagos — while at the same time retain a key defense facility. However, pretending that the opinion is advisory and “hunkering down” seems to be unsustainable for the US and the UK in the long term, especially given the new Indo-Pacific Strategy in which the US is seeking to align itself with India and other Indian Ocean coastal and island nations to confront Chinese political and economic expansion in the Indo-Pacific region. There is no evidence that Mauritius wants the US to leave DGAR, so a process to engage Mauritius in some ways would be in Washington’s long term interests.
The views expressed in this paper are those of the author alone and do not reflect the views of CNA or any of its sponsors.