At law in the Indian Ocean

Yesterday we looked at the fortunes of one of the remaining fragments of the British empire. Coincidentally, this morning’s news puts the focus onto another one: the Chagos archipelago, also known as the British Indian Ocean Territory.

The Chagos are best known for a large United States military base on Diego Garcia, the largest of the islands. Fifty years ago, the British evicted all of the Chagos islanders – more than a thousand of them – to allow the base to be constructed. Since then they have been seeking to return, in a series of claims and lawsuits that, while so far unsuccessful in their aim, have cast British actions in an increasingly unfavorable light.

The question of sovereignty over the islands is logically separate from the fate of the islanders, although in practice the two are closely related. Prior to 1965 Chagos formed part of the territory of Mauritius, a British territory since the Napoleonic wars, which became independent three years later.

Mauritius contends that the islands rightfully belong to it, and in 2017 the United Nations General Assembly voted to refer the question to the International Court of Justice. The court upheld Mauritius’s claim, with only one of 14 judges dissenting, ruling that “The UK has an obligation to bring to an end its administration of the Chagos archipelago as rapidly as possible.”

The British government refused to budge, contending that the court’s opinion was only advisory. The General Assembly disagreed, and in 2019, by a humiliating vote of 116 to six, directed Britain to return the islands to Mauritius. (Australia and the US also voted in the minority.)

Britain promised only to do so when the islands were no longer needed for military purposes. But Mauritius has offered to continue the American lease on Diego Garcia, and it continued to pursue its claim by getting the issue in front of the International Tribunal for the Law of the Sea (ITLOS), by way of a request for arbitration on its maritime border with the Maldives.

The Maldives, which are the islands’ nearest neighbor (and were another of Britain’s five supporters at the UN), objected that ITLOS could not rule on the border without hearing Britain as a party, since there was an unresolved territorial dispute. But in its judgement released overnight, the tribunal found that the territorial dispute was not unresolved at all: that despite Britain’s recalcitrance, as a matter of law the dispute had been conclusively resolved in Mauritius’s favor.

Britain has again rejected the ruling; since the current British government is even less sympathetic to international law than its predecessors, there was never any likelihood that it would do otherwise. But there is nonetheless considerable diplomatic embarrassment in having ITLOS state baldly that its “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.”

More significantly, Britain’s position is doing damage to the rule of law worldwide. The Chagos islands are intrinsically unimportant, but the principle of peaceful and lawful resolution of territorial disputes is enormously important.

When we argue that China should submit to international arbitration over its claims in the South China Sea or the Senkaku / Diaoyu islands, or that Russia should not be allowed to seize territory unilaterally from Ukraine, or Israel from the Palestinians, we are arguing – correctly – that a rule-governed international order is ultimately in everyone’s interests.

When a major western power thumbs its nose at the overwhelming verdict of impartial international arbitration, it fatally undermines that argument. Britain should not be allowed to get away with it, and its friends should tell it so in no uncertain terms.

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