The Chagos Islands agreement: first thoughts

I have yet to reach a settled conclusion on the UK-Mauritius deal over the British Indian Ocean Territory, but there are a number of factors to consider

Unfashionably, I don’t have an immediate considered response to the government’s announced agreement with Mauritius over the British Indian Ocean Territory. I have several instincts, not all pointing in the same direction, and perhaps some of them waving a Union Flag or saying, in the manner of Low, “Very well, alone”. I make no apology for those: politics is about feeling and sentiment and instinct as well as about debate and ratiocination and conclusion. Nevertheless, as I have been asked a few times what my reaction is, I want to think the whole affair through and make sure that I do think what I think I think. As part of that process, and because it might be of interest to readers, I will set out a number of observations which I think are true, pertinent and to a degree persuasive, and I’ll see where I end up after that.

The details of the agreement, insofar as they have been finalised, are available from your preferred source of news and current affairs, but the BBC’s item is as good as starting place as any. I won’t rehearse the story of British expansion and colonialism in the Indian Ocean, but the relevant facts are these. The British Indian Ocean Territory is one of 14 British Overseas Territories (BOTs), formerly British Dependent Territories and before that Crown Colonies, which are the last remaining outposts of the Empire and are scattered across the globe. In population terms, they are tiny, with a combined total of less than 300,000; the game-changer was the loss of Hong Kong in 1997, with its population of nearly 6.5 million. The BOTs are sovereign territory administered by the United Kingdom though not part of it, and with varying degrees of self-government.

The British Indian Ocean Territory comprises the seven atolls of the Chagos Archipelago, a collection of more than 1,000 islands halfway between Tanzania and Indonesia. It has no permanent or native population (see below) and is only inhabited by the roughly 3,000 UK and US military personnel and associated support and contractors at the Naval Support Facility on Diego Garcia, the largest island. The facility is owned the Ministry of Defence but leased to the United States, and its stated if slightly vaguely expressed mission is “To provide logistic support to operational forces forward deployed to the Indian Ocean and Persian Gulf AORs in support of national policy objectives”. In practice that has meant many things, but the base is a key part of the United States’ global military footprint and a significant logistical hub and refuelling point, and has been used to launch long-range airstrike missions during the first Gulf War and operations in Afghanistan and Iraq.

As the BIOT is uninhabited except for military personnel, there is no real governance structure for the islands. The head of state is, of course, the King, but it is administered on a routine basis by the Commissioner for the British Indian Ocean Territory, a civil servant based at the Foreign, Commonwealth and Development Office in London. He is represented officially in the BIOT by the senior British military officer at Diego Garcia. (The role is currently vacant following the departure of Paul Candler in August. For many years—since the 1980s—the government of Mauritius has claimed sovereignty over the Chagos Archipelago, in which it has been supported by an advisory opinion of the International Court of Justice in 2019 which was endorsed by a resolution of the United Nations General Assembly (but contested by the British government).

In November 2022, following a meeting between prime minister Liz Truss and her Mauritian counterpart Pravind Jugnauth, the foreign secretary, James Cleverly, told the House of Commons that Britain and Mauritius would begin negotiations over the status of the BIOT. However, in December 2023, it was reported that the British government was preparing to leave the negotiations because of concerns over protecting UK and US strategic and military interests. After its election in July this year, the Labour government decided to continue the negotiations, and at the beginning of September Jonathan Powell, former Downing Street chief of staff, was appointed as the prime minister’s special envoy to the negotiations. This week, an agreement was announced, under which sovereignty of the BIOT in its entirety will be transferred to the government of Mauritius, but the United Kingdom will be “authorised to exercise the sovereign rights” over the island of Diego Garcia and therefore the Naval Support Facility for an initial period of 99 years. This is subject to the finalisation of a treaty and supporting legal instruments.

All of this is, as far as I can be sure, factual, accurate and uncontested. In other words, as the deathless phrase has it, we are where we are. So here are some of the observations and opinions which are currently on my mind and which will inform whatever I decide I think. They are not necessarily interconnected so I will put them down in what I hope is an intelligible order but it is not to imply links between them.

1. An independent Mauritius has never exercised sovereignty over the Chagos Archipelago. The United Kingdom seized possession of Mauritius (a French colony since 1715) and the Chagos Archipelago (claimed by France as part of Mauritius) in 1810 and confirmed its claim in the Treaty of Paris in 1814. In 1903, Seychelles was separated and made a Crown Colony in its own right. In November 1965, the Chagos Archipelago was removed from the jurisdiction of the Crown Colony of Mauritius and added to the islands of Aldabra, Farquhar and Desroches from Seychelles to form the British Indian Ocean Territory, a separate Crown Colony, by an Order in Council. The colonial government of Mauritius was paid £3 million in compensation. In March 1968, Mauritius became an independent state within the Commonwealth, of which the Queen remained head of state; it declared itself a republic in March 1992. But its jurisdiction over the Chagos Archipelago had ended when it was a Crown Colony, and had been transferred to another, new Crown Colony. This needs to be considered when assessing Mauritius’s claim of sovereignty: it is not as simple as restoring a status quo ante.

2. The chief minister of Mauritius, Sir Seewoosagur Ramgoolam, and the Mauritian members of the Council of Ministers objected to the separation of the Chagos Archipelago but the decision was taken by the secretary of state for the colonies, Anthony Greenwood, as the responsible minister in the UK cabinet. Shortly after the British Indian Ocean Territory Order 1965 was issued, the United Nations General Assembly passed a resolution pointing to Resolution 1514 of December 1960, which said:

Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

The new resolution also affirmed that the division of a colonial possession was contrary to established international law. This document, UNGA Resolution 2066(XX), has formed the basis for Mauritius’s claim to sovereignty over the BIOT.

3. I have no doubt that the UK government’s forcible removal of the Chagossian population of the BIOT, around 2,000 people, between 1968 and 1974 was morally wrong. Although some financial compensation had slowly been made available over the years, it seems woefully inadequate and is sadly representative of a profound reluctance in Whitehall to provide financial compensation for anything. It seems to be unarguably a cruel and high-handed action to remove by force and then criminalise any attempt to return a group of people who owned virtually no property and mostly lived in accommodation provided by absentee landlords.

4. The legal character of the deportation should be treated separately from the moral nature. The agreement between the United States and the United Kingdom of December 1966 for a lease on Diego Garcia to construct a military facility presumed that the island would be uninhabited, and in March 1967 the Commissioner of the BIOT issued Ordinance Number 2, the Acquisition of Land for Public Purposes (Private Treaty) Ordinance, which allowed the government to acquire land at his discretion. This power was used to buy all the plantations in the archipelago from the Chagos Agalega Company for £660,000. The commissioner made this ordinance under the powers given to him by the British Indian Ocean Territory 1965 Order, which included the authority to make “laws for the peace, order and good government of the Territory”. This was not subject to oversight or appeal, as it was an exercise of the Royal Prerogative. Again, it is important to say that this falls firmly into the category of “unpleasant but not necessarily illegal”. The commissioner was exercising powers derived from a valid Order in Council, powers effectively delegated directly from the sovereign. That this created a situation in which the BIOT Administration became the sole property owner in the colony was not necessarily the intended purpose of the powers but does not mean they were exercised improperly.

5. There have been several subsequent court cases which create a complicated picture. In 2000, the High Court of Justice in London ruled that the BIOT Immigration Ordinance of 1971 which banned anyone without a permit from the territory had been illegal and that the Chagossians had a right of return. The government accordingly issued the BIOT Immigration Ordinance 2000 (and the BIOT Immigration Ordinance (Amendment) Order 2000) which repealed the provisions of the 1971 ordinance except with regard to Diego Garcia. But few Chagossians had the resources to return to the BIOT, and none did so on a permanent basis despite the new legislation. The British Overseas Territories Act 2002 gave British citizenship to anyone who had been a British Overseas Territory citizen prior to 21 May 2002; in relation to the Chagossians, this was not so much a remedy as an attempted compensation for the deportation.

6. As well as challenging the original deportation, a group of Chagossians applied to the High Court for compensation and restoration of property rights, a right of return including to Diego Garcia and measures facilitating their return. The action was dismissed by Mr Justice Ouseley in October 2003 on a number of technical grounds, including that it had little prospect of success. An appeal was refused by the Court of Appeal in July 2004, though the court, like Ouseley, noted powerfully and at length the suffering imposed on the Chagossians.

7. At the same time, the government changed its stance substantially; the Foreign and Commonwealth Office abandoned its Resettlement Feasibility Study examining the logistics of the Chagossians’ return, and on 10 June 2004, the Privy Council approved the British Indian Ocean Territory (Constitution) Order 2004, which declared that no-one had a right of abode in the BIOT and could only enter with specific authorisation, and the British Indian Ocean Territory (Immigration) Order 2004, which repealed the 2000 Ordinance. Effectively the 1971 status quo was restored, but this time by Order in Council rather than under the authority of the Commissioner for the BIOT. A written ministerial statement from the Foreign Office a few days later stated that resettlement would prohibitively expensive and difficult, and immigration controls remained necessary for security reasons. The legality of the new immigration order was challenged by Olivier Bancoult, an activist for the Chagossian cause, on the grounds that it was ultra vires, unreasonable and contrary to the legitimate expectations of the Chagossians that they would be allowed to return. The order was struck down by the High Court and the decision confirmed by the Court of Appeal, but in 2008 the Appellate Committee of the House of Lords upheld it by a majority of three to two. In 2015, Bancoult applied to the Supreme Court for a review of the judgement, but in June 2016 the court dismissed the application.

8. The legal position as determined by the highest UK court, then, is that, while the Chagossians were undoubtedly treated very badly and compensated inadequately, they do not have a right of return to the BIOT and the government had acted within the law to arrive at that situation. To me, this suggests that the status of the Chagossians should to an extent be separated from the consideration of sovereignty over the BIOT. The two issues are linked, necessarily, but reaching a particular conclusion on one does not lead inevitably to any conclusion on the the other.

9. In fact, I would go further than that. It should be understood very clearly that resolving the issue of sovereignty is not the same as resolving the case of the Chagossians. The agreement which has been reached promises that the treaty which follows will “address wrongs of the past and demonstrate the commitment of both parties to support the welfare of Chagossians”, but that is so vague as to be meaningless. It certainly does not guarantee their right of return. “Addressing wrongs” and “supporting the welfare” of the Chagossians could be interpreted in many ways short of allowing them to return to the BIOT. The agreement also provides that Mauritius is “free to implement a programme of resettlement on the islands of the Chagos Archipelago”, though not to Diego Garcia, but it does not require it to do so. It should also be noted that this agreement has been contracted between the United Kingdom and Mauritius, without reference to the Chagossians themselves; and that they are divided in their ambitions. Some want to return to a place they regard as their home, others concentrate on their rights and status in their existing place of residence, and many resent the “settlement” of the issue without their being consulted. The Chagossian diaspora numbers around 10,000, of whom 3,500 live in Crawley in Sussex. What the agreement seems to do is allow the United Kingdom to relinquish responsibility for the resettlement, or not, of the Chagossians, while confirming that they will not be allowed to return to Diego Garcia.

10. It is valid, even necessary, to consider the issue of competing priorities. Let us assume for a moment that the Naval Support Facility Diego Garcia is a critical part of the framework of US defence policy—and therefore to some extent of British defence policy, whether we like it or not—and its security relies on excluding any unauthorised personnel from the island, and perhaps from nearby islands as well. What measures can that security imperative justify? What are governments allowed to do, what trade-offs are permissible, in pursuit of those policies? In this country, for example, there is statutory provision for compulsory purchase of land by public bodies, although it is tempered by Article 1 of Protocol 1 to the European Convention on Human Rights. I can see an intellectually coherent argument that it is never permissible to displace or remove a population, but I’m not sure I would endorse it because the possibility of a persuasive example seems too great. And if you set aside that absolute prohibition, then you are inevitably arguing about degree and context, and that makes the issue much more complicated and fraught.

11. The issue of sovereignty is very important in this. We need to be clear that the terms of the agreement as announced provide for sovereignty over the BIOT in its entirety to be ceded to Mauritius; that is, including sovereignty over Diego Garcia. The United Kingdom is to be given authority to exercise that sovereignty in the specific case of Diego Garcia for at least 99 years, but the “sovereign rights” it will exercise belong to Mauritius. I can see that this may have seemed an attractive and harmless compromise in the pressure and, perhaps, optimism of the negotiations; when Margaret Thatcher visited Beijing in 1982 to discuss the future of Hong Kong, one proposal developed by the Foreign Office was that the UK would cede titular sovereignty of Hong Kong to China, in return for which the Chinese government would formally agree to allow British administration of the colony to continue beyond the treaty-limited deadline of 1997. There was something of a precedent, if not exact, in that when Portugal and the People’s Republic of China had established formal diplomatic relations in February 1979, a secret agreement had recognised Macau, the Portuguese colony on the estuary of the Pearl River, as a “Chinese territory under Portuguese administration”. In the end China refused to entertain the notion in the case of Hong Kong, but it is in essence what the UK government has obtained in relation to Diego Garcia. How, though, will the border between these ideas, sovereignty and authority, be policed? It is worth reading a 2009 paper by Alexander Somek, Administration without Sovereignty, in this context. In particular, he observes that:

Occupying supreme authority over a territory is what distinguishes sovereignty from the functionally differentiated claims to supremacy that purportedly inhere in self-contained regimes… sovereign power is capable of overcoming obstacles wherever they might arise, lest it is not what it purports to be.

Thatcher, perhaps characteristically, framed the exercise of authority without sovereignty as a kind of management contract, but the analogy of inter-state relations as a kind of quotidian, enforceable legal agreement is not really workable. The question, ultimately, is how, if at all, the treaty which the UK and Mauritius eventually agree will be regulated; if Mauritius’s sovereignty comes into conflict with the UK’s exercise of sovereign rights, which will prevail?

12. This potential clash between sovereignty and the exercise of sovereign rights is not just a philosophical or etymological debate. It is made sharp and imminent by two factors; first, that the British and US interests in the BIOT are primarily defence-related, and concerned with military reach and force projection; second, that Mauritius is closely allied with the People’s Republic of China, which the West is increasingly recognising as at least a strategic rival, if not an outright opponent. After a visit by President Hu Jintao in February 2009, China invested $750 million in a special economic zone at Jinfei in 2010, at that point the largest single foreign investment in Mauritius ever. The two countries signed a free trade agreement in October 2019, China’s first such arrangement with an African country, which included provisions to promote “the development of a Renminbi clearing and settlement facility in the territory of Mauritius” and to share “expertise in fintech to promote innovation in financial services”. The FTA has seen bilateral trade increase by 75 per cent, and a Mauritian trade official last year expressed a hope that it would be “a basis for enhanced collaboration between China and Mauritius”. Only last month, the People’s Bank of China and the Bank of Mauritius agreed a bilateral currency swap agreement.

13. The Mauritius Safe City Project is symbolic. It uses cameras and other surveillance equipment, including facial recognition software, installed at key locations to help reduce crime, vandalism and anti-social behaviour, and was financed by a $455 million loan from from the Export-Import Bank of China. Much of the technology is provided by Chinese companies, and it has the potential to exercise the sort of intrusive, authoritarian social control that China itself is pursuing.

14. It is difficult to pinpoint the exact likely points of conflict or dispute in this triangular relationship. But we know that China is active in intelligence-gathering, espionage and the infiltration of government and parliamentary institutions. On that basis, it would be irresponsible to disregard any danger of a major and sensitive military installation now coming under the sovereignty, even if delegated sovereignty, of a country which is strongly linked to and financed by China. At the very least, transfer of sovereignty to Mauritius must increase the risk of the infiltration and surveillance of Diego Garcia by Chinese forces.

15. The loss of the British Indian Ocean Territory will reduce the number of British Overseas Territories to 13. Although the issue of the Chagos Archipelago is sui generis and the presence of the Naval Support Facility on Diego Garcia has no counterpart in any of the other BOTs, the agreement to relinquish sovereignty has inevitably brought the status of the the territories into question. The foreign minister of Argentina, Diana Mondino, has already welcomed the deal with Mauritius as representing an end to “outdated practices” and promised “concrete action” to make good Argentina’s claim to sovereignty over the Falkland Islands. This was inevitable: any British Overseas Territory which is subject to a rival claim of sovereignty, like the Falkland Islands, Gibraltar, the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus or South Georgia and the South Sandwich Islands, will come under renewed pressure. Why should it not be so? If the United Kingdom is willing to concede its claims over the BIOT, why not over other territories? The prime minister, when asked to guarantee there would be no concessions on the sovereignty of other BOTs, did not do so. This does not necessarily indicate he has some extensive or malign plan to divest the UK of its overseas territories, but Sir Keir Starmer must at least recognise that the door has been opened on the issue, and he will have to be resolute in resisting pressure from many quarters if he is genuinely committed to the BOTs.

Conclusion

This is a complex issue (but what is not in contemporary politics?). I am not suggesting either that Sir Keir Starmer has a reflexive hatred of Britain and its history, nor that the issue of Mauritius’s claim to sovereignty over the BIOT could simply be ignored. But I think the agreement which the government has reached has to be very carefully assessed in terms of what it has achieved, what it has sacrificed or conceded, and what it has brought into question. The prime minister is trying to present this as first and foremost a success in that it has secured the future of Diego Garcia, but this Panglossian attitude is not sustainable in the longer term, and he will have to face up to the criticisms and challenges which have legitimately been raised.