UK Government Humiliated over Chagos Islands Again 167


The International Tribunal of the Law of the Sea, a UN body based in Hamburg, last week delivered a stern and unequivocal rebuke to the UK in ruling the UK has no legal interest in the maritime area of the Chagos Islands. You will recall that the UK in the 1970’s ethnically cleansed the entire population from Chagos at gunpoint to make way for the US nuclear base on the Chagos Island of Diego Garcia.

In its judgement, The Special Chamber of the Tribunal last week ruled (para 247) by 8 votes to 1 that the Maldives must agree a boundary with Mauritius, as

it is inconceivable that the United Kingdom, whose administration over the Chagos
Archipelago constitutes a wrongful act of a continuing character and thus must be
brought to an end as rapidly as possible, and yet who has failed to do so, can have
any legal interests in permanently disposing of maritime zones around the Chagos
Archipelago by delimitation.

The Tribunal was of course here following the UN General Assembly and the International Court of Justice; the illegality of British occupation of the Chagos Islands is now indisputable in international law. What this tribunal adds is the dismissal of the notion that the UK has any legal rights to impose administrative or regulatory measures on the grounds that sovereignty is disputed. The Tribunal has said the Chagos Islands are part of Mauritius and there can be no dispute.

I am pleased partly because of my long term advocacy for the Chagos Islanders, but also because enabling the coming into force of the Tribunal was one of the proudest moments of my life. It is a very long story, and some day I will tell it, but the short version is that the entry into force of the UN Convention on the Law of the Sea had been delayed for decades because of a dispute over the deep seabed mining regime. This specified a licensing system for mining in the deep seabed beyond all national limits, with the proceeds from licenses being distributed to developing nations. The United States had refused to ratify and the entire Convention, including the Tribunal, had been stymied as Western European powers followed the US lead over deep seabed mining.

When I became Head of Maritime Section at the FCO and Alternate Head of the UK Delegation to the UN Preparatory Commission (Prepcom) for the Convention – which was tasked with sorting out the mess – I can genuinely say that by persuading the UK government to soften its stance, (a Herculean task within Whitehall) and by establishing a strong personal rapport with the leaders of the developing world delegations, and especially with Dolliver Nelson and UN Under Secretary General Satya Nandan, I broke the impasse. My writing talent in clever drafting that eventually fed into the Protocol on Deep Seabed Mining made a real difference, but it really was the fact that I mixed freely with the developing world delegations, and sat on the beach with them drinking rum punch or eating ackee and fish washed down with Red Stripe in local restaurants, that broke the barriers.

I don’t know how to make you believe this, but this really was pretty revolutionary. The Prepcom met in Jamaica for a month every year and again in New York every August, and the “First World” delegates just did not socialise with the “G77 Delegates” except at stilted formal occasions or with enormous condescension. Making real friends across the barrier was not normal. I strongly recommend to you the current BBC true story drama “The Serpent”. Apart from the major subject, its portrayal of the milieu, lifestyle and attitudes of Western diplomats abroad is absolutely spot-on. I made the political breakthrough just by being straight and friendly with people. Indeed the key compromises were agreed with Satya and Dolliver while we splashed our legs in a pool. By coincidence, the UK had the revolving chair of the Western European and Others (WEOG) group at just the crucial time, which was a great help in getting the compromises through.

I should add that the FCO Legal Adviser, David Anderson, was my boss most of the time at these meetings; he was arguably the world’s leading authority on the law of the sea and the primary credit for the Convention coming onto force goes to him. He was to become one of the first judges at the Tribunal. A true Yorkshireman, I remember many hours walking around Brussels and New York with him while he peered at restaurant menus finding where he could get his chosen meal cheapest. I should also mention the tolerant and visionary Dr John Hughes, my line manager, who trusted me and gave me huge latitude. It is further fair to note that others took on the work to completion after me as I was posted to Poland by the time the Convention came into force. But somewhere I have kept the lovely note from John Hughes telling me the Convention had come into force, and that while my name would not be on it, the achievement was enormous.

I am very conscious that the strain of being on trial, and particularly awaiting the verdict, has made me self-obsessed. I have received really awful online abuse since I published my affidavits, and it has led me to want to think about the real achievements of my life, and even about the time when I was highly valued within the political establishment rather than somebody entirely outside of respectable society. Not that I would change a thing about my whistleblowing and I am sure this maudlin period will pass. Please forgive and indulge me for a little while.

Being chosen as the seat of the Tribunal was very important both to Hamburg and Germany, and I remember an official visit there to look at the site and discuss the accommodation for judges, the diplomatic status of staff and numerous other points. The hospitality was amazingly good, and I got taken out on the Gorch Fock for a day, which I shall never forget.

So I am delighted now to see the Tribunal be so robust over the Chagos Islands. It really does matter that the UK is in defiance of these international courts. The UK has wide interests, and may from time to time need to seek the authority of the International Court of Justice or the International Tribunal for the Law of the Sea to assert them. That the UK has ignored major and overwhelming majority rulings from these courts, will undoubtedly be likely to rule the courts’ perception of the UK in other cases. Which will, for example, one day include the maritime boundary dispute with an independent Scotland.

The major question on Scottish Independence in international law is whether Wales, England and Northern Ireland (WENI) and Scotland will both be successor states, inheriting all the legal benefits and obligations of the UK, or whether only WENI is the successor state to the UK and Scotland is a new state. This is a crucial matter. There are examples both ways. For example, only Russia is the successor state of the Soviet Union, whereas Czechia and Slovakia are both successor sates of Czechoslovakia.

If WENI wants to keep its position on the UN Security Council it will need to be the sole successor state. But if it is, it will need to inherit all of the UK’s national debt and Scotland none (as Russia did for the Soviet Union). There will be strong international interest in WENI not being the sole successor state, as a lever to get this second rate power off its anomalous position on the UN Security Council. There are also consequences for nuclear weapon power status. Then there is the question of the colonies – to whom will they belong after separation? A disproportionate number of Scots shed their blood in obtaining those colonies or died of malaria administering them. (It is not lost on me they shed a lot more of the blood of those the colonies were stolen from). Scotland should demand the Chagos Islands as its share of colonial possessions – and then immediately decolonise. A plan which properly explained will certainly help attain UN recognition. The US base would then become a matter of negotiation between Mauritius and the USA, but from the starting point of the US having no right to be there.

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167 thoughts on “UK Government Humiliated over Chagos Islands Again

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  • Guy Thornton

    The yanks are Mauritius’s biggest aid donor, so if and when UK hand them over to Mauritius, the base at Diego Garcia will continue without interruption…I say this to disabuse anyone thinking there will be a happy ending for the islanders.

    • mark golding

      More embitter than disabuse Guy. I realise power can be blindly vengeful yet the seeds for a stinging provocation against the UK imperium have been sown. Whether they take firm root and grow in the self-absorbed collective mind of the British peerage is another matter.

      Thankfully they face the collective mind of an astute British public who today connect with honor and respect. Joined by the heart the nation appreciates the hundred thousand who have now been taken by COVID-19 in Britain were not determined warriors holding up the forces of a mighty empire to save their land. They were the innocent victims of infection, mismanagement and miscalculation.

      • nevermind

        Maybe it takes an equal treatment of UK nationals somewhere across the old empire, Mark, a little taste of its own medicine so to speak, before peeps here realise that theirs is a void now.

  • Colin Smith

    Why do the Chagos Islanders not get independence and get thrown in with Mauritius? If there is a US base there, they may be quite happy to keep it going, charge them rental and live somewhere like kings. I would bet that others will be the ones to benefit from whatever develops from this.

    • nevermind

      Colin, the Chagos islands are not dependent on being given beads or blankets, nor would they like fast food and or the destruction of their local environment by the US activities on the islands.
      They live of the sea mainly, there are coconut trees and benign gardening/agriculture that kept them alive. Not to be able to visit and or pray at the graves of their ancestors is very important to them. I’m not sure they would agree to be the springboard of another cold war front for Biden/Blinken/Bojo either.

      • Mosaik

        I believe the Brits have already tried buying off the islanders with resettlement and cash schemes.
        The answer was no thanks. Keep your money and give us back our islands and our life.

  • Eoin

    Interesting Craig, thank you very much.

    Are you trying to establish the acronym WENI, and claim credit, much like that chap who coined PIIGS [Portugal, Italy, Ireland, Greece, Spain] following the 2008 financial crash?

    As an intermediate step, can we change “UK” to “SWINE” then? Or would that tempt the usage of “WINE” when Scotland is liberated, and wine is far too attractive a term.

    And when Northern Ireland follows Scotland, will the last acronym be WE or EW, the latter being the sound you make when you step in something unpleasant.

  • JohninMK

    Craig outlines an interesting dilemma for the British Government that I had not seen put with such clarity before.

    Does the UK Government go with the wishes of what I suspect is by far the majority of the WENI population and willingly let Scotland go into the two state solution that he describes, sharing all the assets and liabilities in some equitable formula? Or do they follow the demands of the PTB, desperate to hold onto the crazy “we are still a World power” mantra, that they benefit from, at any cost.

    To us, average people on the street, it is a no brainer as all we see are the costs of being a pseudo World power with no benefits, when we no longer have the revenues, or reserve currency, just debt, to support it. Sending a carrier to patrol off the Chinese coast? WTF is that about? It certainly isn’t in our commercial interests, its a US vassal move.

    The Covid disaster has brought forward the time when we run out of money, either tax income or increased debt. The whole of SWENI is going to have to pull in the horns and cut all non essential expenditure if the core of Government is to survive,

    This decision affects us all, not only Scotland should have the referendum, it should include all of us in SWENI.

    • mark golding

      A number of Royal Navy frigates have deployed to the South China JohninMK such as HMS Sutherland, Argyll and Montrose as well as HMS Albion the RN amphibious transport dock carrying engineers and scientists from AUWE.

      Yes a somewhat US vassal move on the surface yet essentially we are using our undersea experience to detect and plot China’s ‘underwater great wall,’ a series of undersea hydrophones that have been laid on the sea bed connected by fibre-optic cables to their militarized islands and a central monitoring facility in Shanghai. This sensor network could nullify any attempt by Western submarines to operate in the area without detection. China is also laying sensors further out into the Pacific hoping to detect submarine activity around Guam and Japan.

      While our commanders at Northwood want to project hard power in the SCS by for instance by sending HMS Queen Elizabeth our newest carrier in a so called ‘calibrated response’ to uphold the ridiculous ‘Rules-Based Order,’ this I believe can be deemed a pompous construct, tinged with Western hypocrisy principally when we know China is the UK’s 6th largest customer totalling £30.7Bn last year together with China’s inward investment averaged nearly £10Bn per year between 2017-19. While in recovery from the economic damage of the pandemic and dealing with the effects of Brexit, the UK can ill afford to alienate a major trading partner.

      I believe one must also consider the smaller powers in the region where the arrival of reckless and bullying US forces together with more assertive UK forces may place them in a difficult diplomatic position if they do not wish to directly confront China, their powerful neighbour.

        • mark golding

          Commander-in-Chief Senior-General Min Aung Hlaing, must be investigated and prosecuted for genocide in the north of Rakhine State, as well as for crimes against humanity and war crimes in Rakhine, Kachin and Shan States.

      • Tom Welsh

        “…the ridiculous ‘Rules-Based Order…”

        As in “them that has the gold makes the rules”.

        Maybe it’s time someone drew the attention of Washington, London, etc. to the obvious fact that they don’t have the gold any more. The Chinese and the Russians do.

        As well as the hypersonic missiles.

      • Coldish

        Mark Golding (20.14): You write: ‘This sensor network could nullify any attempt by Western submarines to operate in the area without detection’. That sounds like a good thing. Submarines are warships and it’s in the interest of coastal states to know when they are in the neighbourhood.

  • Shaza

    You are not outside of respectable society.
    Everyone has flaws, foibles and doubts. But achieving so much with these anyway is what makes you and people like you so amazing.

    You are a true human being and the very best of us.
    Thank you Craig.

  • Clare Shepherd

    Twas ever thus. I travelled through Argentina in 1979/1980 and came home thinking ‘I guess the British Govt. have some understanding of what the Argentines feel about the Falklands/Islas Malivinas’. Not long after, I realised that diplomats don’t socialise among the masses, they are, no doubt, wined and dined by people who tell them what they want to hear.

    • Courtenay Barnett

      Clare,

      So true – and so – look at the world as it is.

      Will the UK which professes to be a great defender of Human Rights and the Rule of Law – submit the Falklands case to the appropriate international tribunal?

      Suspect – if the law is pointing other than in your direction – then not.

      So fucking hypocritical and conniving!

  • Walter Cairns

    Great post as usual Craig. If I had my way every Government building would feature a prominent sign that says “WESTERN INTERVENTION ALWAYS MAKES MATTERS WORSE”

  • nevermind

    For anybody wanting to know the history of the law of the seas and how sailors in the past and present helpef each other, go no further than looking at either the film or the history of ‘the sinking of the RMS Laconia.’

    https://en.m.wikipedia.org/wiki/Laconia_incident

    film can be seen here, its rivetting and well starred.
    https://www.yidio.com/show/the-sinking-of-the-laconia?utm_source=Bing&utm_medium=Search&t_source=64&utm_campaign=uk-157&msclkid=39fda1ec2fbc1c94beaac1f64831ff19

      • Twirlip

        Nevermind: I had to read fonso’s comment twice, to make sure I hadn’t misunderstood. Dare I suggest that you also should probably have done so? The comment makes perfect sense, and it is even true. Trust me, I’ve analysed it into predicate logic! 🙂

        • nevermind

          thanks twirlip, I will remeber, predicated logic, should I ever read a party political blog wondering about donation flows and subsequent honours/ public contracts following.

  • Steven Bowles

    WENI is an idiotic expression and I rightly ignore the views of anybody that uses it.
    The UK will not give up its security council seat because a small province achieves independence.
    Its always fascinating to watch those pushing for independence completely ignore the economic and employment costs.

    • vin_ot

      “WENI is an idiotic expression and I rightly ignore the views of anybody that uses it…..”
      ….except on this occasion, because …

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