I could not resist rushing to the High Court to witness the eleventh-hour challenge to the deal to give away the Chagos archipelago to Mauritius, brought by two valiant Chagossian women. Outside, their supporters chanted ‘Chagossians British’ and waved their passports. Inside, it was a legal massacre, with the government’s lawyers insisting that the Foreign Secretary’s power to make treaties is not reviewable by the courts, that David Lammy had ‘broad powers of discretion’ to make what deals he liked with Mauritius and that there had been no promise to consult with the Chagossians on its terms, which meant no promise had been broken.
If a succession of foreign secretaries had tried engaging with the Chagossians, the islands could have stayed British
As the judge reeled off the grounds for overturning the injunction that had paused the deal overnight, it became brutally obvious that by not consulting them on the deal in any meaningful way and saying it didn’t have to, Britain was doing a second great wrong to British Chagossians. This is, of course, after the disgraceful act of evicting them from their homes with one suitcase each and then gassing their dogs over 50 years ago. The Labour government, led by a human rights lawyer – propelled by arguments from another famous British human rights lawyer, Philippe Sands, who was retained as counsel by Mauritius until this year – was betraying British citizens (which a large number of Chagossians are). It was ceding their home of many generations and its near-pristine marine environment to another power that has also treated them abominably. The hypocrisy was breathtaking.
At a press conference, Sir Keir Starmer said that there was ‘no alternative’ to his eye-wateringly expensive £30 billion, 99-year deal if Britain was to retain control of the vital military base at Diego Garcia. Honestly, I’m not sure that is true. The base was not threatened in any meaningful way by anyone. The British government could anyway have made a case for retaining the archipelago based on environmental justice and the rights of the Chagossians as an indigenous people – arguments now accepted by the Indigenous Peoples Mechanisms of the UN itself. It never tried.
My involvement with the Chagos Islands is as a mere bystander who helped the last Labour government to find a donor when it wanted to create the largest marine reserve in the world around the archipelago in 2010. I have listened since as it has been argued in the International Court of Justice (ICJ) and in its marine tribunal that the decolonisation of the Chagos was not properly concluded in the 1960s because the Chagos, though 1,300 miles from Mauritius, was in the same jurisdiction. Therefore, the arguments ran, Britain’s occupation has been illegal.
It seems that this is right, but under international law, the decolonisation argument is made about the rights of nations, not peoples. There is a more recent legal view that the Chagossians are an indigenous people with their own rights to self-determination.
If the UK had wanted to retain control – if not sovereignty, safeguard the base at Diego Garcia, and quieten the rancour in the Indian Ocean about its continued occupation – which has stopped African nations joining an alliance against the occupation of Ukraine – it had options. It could have gone back to the court citing the advice of ICJ Judge Gaja who suggested the UK ‘revisit the issue and in particular take into account the will of the Chagossians who were expelled… and of their descendants.’ Or ICJ Judge Isawara, who said, ‘a separation or split… is not contrary to the principle of territorial integrity as long as it is based on the free and genuine will of the people concerned.’
In other words, if a succession of foreign secretaries had tried engaging with the Chagossians – 90 per cent of whom in a recent poll opposed the islands being given to Mauritius – the islands could have stayed British.
A sizeable proportion of all Chagossians, thought to be around 5,000, reside in UK, some 5,000 in Mauritius, with another 500 in the Seychelles. Thanks to parliament granting all Chagossians British passports and waiving immigration charges a few years ago, the number of British Chagossians has been rising – an ongoing problem if they have no right to visit their former homeland or their ancestors’ graves. While Britain will give Mauritius a £40 million trust fund for the benefit of Chagossians, this is presumably only for those Chagossians in Mauritius who toe the government line. British Chagossians will get nothing and find their homeland belongs to another colonial power. The right to replace some of the 4,000 Filipinos who run the American base will go to Mauritians.
The deal also says remarkably little about the archipelago’s marine environment, an unbroken coral reef of five atolls and more than 50 islands that is unique and which remains one of the world’s largest fully no-take protected areas. NGOs hope Mauritius will create a new, lawful marine protected area (MPA) as large as the contested British one, but this will be in a separate written instrument yet to be agreed.
Mauritius’s plans are more credible than they were – thanks to a conference with the Zoological Society of London in Mauritius last year – but they depend entirely on external funding from foundations and international donors. It is unclear whether Britain will have any say over how much of the £30 billion it pays over the next 99 years will go to conservation. Mauritius’s record on marine conservation and fisheries management is poor. Its expectations that it will make money from conservation appear unrealistic. Will it keep the MPA going when it is already deeply in debt and tuna licensing would bring instant returns?
These are the questions oarliament must now consider. Chief among them is cost and whether a deal has to be done at all. Is there another way? ‘That ship has sailed,’ Philippe Sands told me at a recent meeting with MPs. He may be right, or it may be that the ship still lies at anchor and could be sent out to defend these bejewelled and teeming seas at the hoist of a flag.
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