"The principle of self-determination must be applied carefully in situations where the population has been established through colonization, potentially at the expense of prior inhabitants. International law must consider historical injustices and aim to prevent the perpetuation of colonial domination under the guise of self-determination."
(Cassese, A. (1995). Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, p. 223)
INTRODUCTION
In the specific case of the Chagos Islands, the agreement between the UK and Mauritius reflects both the recognition of international law—through the acknowledgment of Mauritian sovereignty—and the persistence of strategic military priorities, most notably the continued operation of the Diego Garcia military base. This note observes the historical detachment of the islands from Mauritius but also the broader implications for other territories under British control, such as the Falkland Islands and the Sovereign Base Areas in Cyprus. These territories provide a broader framework through which we can analyze how Britain’s reluctance to relinquish strategic assets has frequently clashed with international legal principles of self-determination and territorial integrity. While the agreements may present a step forward for resolving the Chagos dispute, they also raise important questions about the future of post-colonial justice and the extent to which international legal standards can be applied to resolve historical wrongs.
FACTS
After the UN General Assembly unanimously passed Resolution 1514 in 1960, calling for total decolonization, the UK began preparing for Mauritian independence. Four years later, In 1964, the US requested permission to build a military base on Diego Garcia. In return, UK received a discount on Polaris missiles. This arrangement faced criticism from the UN, as it violated principles of self-determination enshrined in international law. Here it must be prudent to remember that, as Professor Crawford noted, self-determination and territorial integrity are principles that may come into conflict. International law does not provide a definitive answer but requires a balancing of interests, taking into account the wishes of the people and the legitimacy of territorial claims. The UK and pre-independence Mauritius largely ignored this balancing act, with Mauritius under pressure to agree to the detachment as a condition for independence. In 1965, the UK purchased the islands from Mauritius via the Lancaster House Agreement, detaching the islands to form the British Indian Ocean Territory. While the nature of the purchase warrants its own article it shall be suffice for now to simply state, "The Court considers that, because respect for the territorial integrity of a State is an essential part of the right to self-determination, the detachment of part of a colony by the administering Power before independence, without the freely expressed and genuine will of the people concerned, is contrary to the right to self-determination." (ICJ Advisory Opinion, 25 February 2019, Paragraph 160).
POLITICS THROUGH OTHER MEANS: LAW
Since at least the 1980s, in the English Courts amongst others later, Mauritius challenged the UK's sovereignty over the archipelago, arguing that the separation of the islands from Mauritius was illegal under international law. In 2017, the UN General Assembly adopted Resolution 71/292, requesting an advisory opinion from the International Court of Justice (ICJ) on the legal consequences of the separation. In 2019, the ICJ delivered its advisory opinion in the case Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. The court concluded that the UK's continued administration of the Chagos Archipelago constitutes a wrongful act entailing international responsibility. The ICJ stated that the decolonization of Mauritius was not lawfully completed when Mauritius was granted independence in 1968, due to the unlawful detachment of the Chagos Archipelago.
The ICJ's opinion emphasized that all UN member states are under an obligation to cooperate with the United Nations to complete the decolonization of Mauritius. Following the ICJ's opinion, the UN General Assembly passed Resolution 73/295, demanding that the UK unconditionally withdraw its colonial administration within six months. Despite this, the UK ignored the ICJ’s ruling, dismissing it as merely advisory. The UK argued that the ICJ lacked jurisdiction over what it considered a bilateral dispute. Since the ICJ's advisory opinions, while not legally binding, carry significant moral and political weight under international law.
LASTING LEGACY OF THE BRITISH EMPIRE ELSEWHERE
The situation with the Chagos Islands is not unique in British colonial history. Similar patterns of territorial detachment, forced relocation, and protracted legal disputes have occurred elsewhere. For instance, similar islands in strategic and territorial holdings and their strategic significance, consider three islands under UK control: one in the Atlantic Ocean—the Falkland Islands; one in the Mediterranean Sea—the Sovereign Base Areas in Cyprus; and another in the Indian Ocean—the Chagos Archipelago. These islands illustrate patterns in British foreign policy concerning territorial sovereignty, strategic military interests, and the rights of local populations.
The Falkland Islands, claimed by both the UK and Argentina, have been a point of contention, leading to the Falklands War in 1982. To this end, it will be relevant to consider the Statement by the Representative of Argentina, UN General Assembly, 37th Session, 4 November 1982, "The Question of the Malvinas Islands involves the territorial integrity of the Argentine Republic, which has been disrupted by the illegal occupation of part of its territory by the United Kingdom since 1833. The principle of territorial integrity must prevail over any other consideration." The English responded, "the principle of self-determination is paramount. The inhabitants of the Falkland Islands have repeatedly and emphatically expressed their wish to remain British. Their rights and wishes cannot be overridden by Argentina's claims of territorial integrity." (Statement by the Representative of the United Kingdom, UN General Assembly, 37th Session, 4 November 1982). Similar to the arguments were made by Mauritius regarding the Chagos Archipelago on questions of self-determination versus territorial integrity, (Written Statement of the Republic of Mauritius, ICJ Advisory Proceedings, 1 March 2018, para. 1.6).
Another island- Cyprus. The UK's retention of military bases in Cyprus after its independence in 1960, parallels the situation in the Chagos Islands. The Treaty of Establishment allowed the UK to retain sovereignty over certain areas for strategic purposes. Pre-emptively it was noted the continued existence of the military base in Cyprus illustrates the complexities of decolonization agreements that allow former colonial powers to retain strategic enclaves. Such arrangements often lead to disputes over sovereignty, jurisdiction, and the rights of local communities. With this backdrop, remember that, as Professor Milanovic noted, the concept of jurisdiction (over territory) under the European Convention (of Human Rights) is essentially about control. When a state exercises control over territory or individuals abroad, it must ensure that its actions comply with its human rights obligations. This principle prevents states from circumventing their duties by operating outside their own borders. This led to "Al-Skeini and Others v. the United Kingdom" (Application no. 55721/07) in the European Court of Human Rights. The Court noted that "acts of Contracting States performed outside their territory or which produce effects there can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention. In particular, it is clear that whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual." In reaction, This principle is relevant to the UK's retention of military bases in Cyprus after its independence in 1960. The Treaty of Establishment allowed the UK to retain sovereignty over certain areas for strategic purposes. While the "Al-Skeini" case specifically dealt with the UK's actions in Iraq, the Court's analysis of extraterritorial jurisdiction applies to other territories under the UK's control in Cyprus.
In each case, the UK's actions have been scrutinized under international law, particularly concerning the right to self-determination and the legality of retaining territories for military purposes. The patterns suggest a historical reluctance to fully relinquish strategic assets, even when international legal obligations point towards decolonization and the transfer of sovereignty and echoes; The pursuit of strategic interests by powerful states frequently leads to the disregard of international legal norms, particularly in the context of decolonization and the rights of indigenous peoples. Such actions undermine the integrity of international law and the principles of justice it seeks to uphold.
PRESENT DAY
UK and Mauritius joint statement, 3 October 2024, attempts to reconcile the UK's need to maintain strategic military interests with its obligations under international law to decolonize and respect the sovereignty of Mauritius. By acknowledging Mauritian sovereignty, the UK aligns itself with the ICJ's advisory opinion and UN resolutions, thereby addressing the international community's concerns. However, the retention of control over Diego Garcia for 99 years effectively extends the UK's and the US's strategic military presence in the region, raising questions about the genuine transfer of sovereignty. The payment to Mauritius could be viewed as compensation, but it also resembles a lease agreement, which may undermine the full exercise of sovereignty by Mauritius. This situation is reminiscent of past British lease agreements that have created similar tensions over the extent of sovereignty transferred. For instance, the Sino-British Joint Declaration of 1984, which led to the return of Hong Kong to China in 1997, was based on the premise that full sovereignty would revert to China after a 99-year lease of the New Territories. Another notable example is the Suez Canal Zone in Egypt, where the UK maintained a military presence through the Anglo-Egyptian Treaty of 1936, British control over the canal zone was seen as critical to maintaining access to global trade routes, but it led to significant tensions, culminating in the Suez Crisis of 1956, when Egypt sought to assert its sovereignty over the area. The crisis underscored the limitations of such arrangements, where military and strategic interests conflict with the sovereignty claims of newly independent states. Similarly, in the case of Diego Garcia, the extended control over the island for strategic military purposes raises concerns that the UK is prioritizing its defense and foreign policy goals over the principles of decolonization and self-determination.
The Vienna Convention on the Law of Treaties, also provides a framework for evaluating the legality of the original agreement that detached the Chagos Islands from Mauritius. Article 52 of the Vienna Convention states that a treaty is void if its conclusion was procured by the threat or use of force. Mauritius has consistently argued that it was coerced into agreeing to the detachment of the Chagos Archipelago as a condition for its independence, and this argument has been supported by the ICJ Advisory Opinion of 2019. While the UK has dismissed the ICJ’s opinion as advisory, the application of international legal principles suggests that the original agreement may have been legally flawed. The exclusion of Diego Garcia from the resettlement program raises additional human rights concerns, particularly regarding the Chagossians’ right to return. The Chagossians were forcibly removed from the islands in the 1960s and 1970s to make way for the US military base on Diego Garcia. International human rights law, specifically Article 13(2) of the Universal Declaration of Human Rights and Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR), guarantees individuals the right to return to their country.
REACTIONS AND CONTINUING CHALLENGES
The reaction to the Chagos agreement has been mixed. US President Joe Biden welcomed the agreement, citing its importance for maintaining the military base's operational future. The base on Diego Garcia remains a critical asset for US and UK military operations, and the agreement secures its use for the foreseeable future. In the UK, Conservative politicians criticized the deal as undermining British strategic interests, arguing that it sets a dangerous precedent for other territorial claims. For instance, James Cleverly has condemned Sir Keir Starmer as “weak, weak, weak” for handing the Chagos Islands to Mauritius - despite having kicked off negotiations over the deal when he was foreign secretary. This perspective overlooks the UK's obligations under international law and the moral imperative to address historical injustices. Chagossian diaspora groups, particularly in the UK, condemned the exclusion of displaced Chagossians from the negotiations. The Chagos Refugees Group, among others, continue to advocate for the right to return and for compensation. The lack of representation of the Chagossians in the negotiation process raises concerns about the inclusivity and fairness of the agreement. While the UK-Mauritius dispute seems to be resolved at the state level, many Chagossians continue to fight for reparations and the right to return. The situation highlights ongoing challenges in addressing the legacies of colonialism and ensuring that resolutions align with human rights standards.
CONCLUSION
In conclusion, the agreements surrounding the Chagos Archipelago reflect the ongoing struggle between upholding international legal principles and maintaining strategic military interests. While the UK's acknowledgment of Mauritian sovereignty marks a significant step towards compliance with international law, the continued control over Diego Garcia underscores the complexities of decolonization in a world where geopolitical priorities persist. The tension between self-determination and territorial integrity, so central to the Chagos case, mirrors similar conflicts in other British-controlled territories, such as the Falkland Islands and the Sovereign Base Areas in Cyprus. The exclusion of Chagossians from resettlement rights and their exclusion from the negotiation process highlight the continued marginalization of displaced communities in post-colonial settlements. As the international community grapples with the legacies of empire, the Chagos case serves as a poignant reminder of the enduring impact of colonialism and the need for meaningful reconciliation. For genuine justice to be achieved, it is crucial that future agreements not only address state-to-state relations but also include the voices and rights of those directly affected by historical injustices.
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