It’s not too late to stop Chagos surrender – and we should
Until the treaty to cede the strategically vital territory is ratified, which is impossible without legislation authorising ratification, it is open to the UK to walk away. And walk away it should, says Richard Ekins
Another plot twist! Donald Trump has weighed in on the UK’s Chagos deal, branding it an act of “great stupidity” and, in incendiary fashion, linking it to his desire to annex Greenland.
The first thing we should do is to separate the arguments about Chagos from the claims that are currently being made on Greenland, where neither the Danish government nor the population of Greenland seem willing to cede the territory to the United States.
Legislation to authorise ratification of the UK-Mauritius Agreement is back before the House of Commons today and the House of Lords may also debate the significance of Trump’s intervention. Thus far, the British government has asserted that it is not for turning, with Darren Jones MP, chief secretary to the Prime Minister, telling Times Radio that “The treaty has been signed with the Mauritian government. So I can’t reverse the clock on that.” If his point was that it is too late now for the UK to change its mind, he is clearly wrong. Until the treaty is ratified, which is impossible without legislation authorising ratification, it is open to the UK to walk away. And walk away it should.
To be clear, the reason to abandon the treaty of cession is not because Donald Trump has changed his mind about its merits. That said, American support has been fundamental to the government’s case for surrendering the Islands. Trump’s latest intervention undermines that part of the argument and turns the focus to the government’s other justifications, meaning that it will have to explain its position to Parliament afresh – and explain why the deal should go ahead despite American opposition.
The government’s initial statement is not promising. It repeats the line that the joint US-UK base on Diego Garcia, the largest island in the Chagos Archipelago, “was under threat after court decisions undermined our position and would have prevented it operating as intended in future”. But as Policy Exchange has been arguing consistently since October 2023, when the prospect of ceding the Islands to Mauritius first came into view, the legal case for handing over the Islands is very weak.
Mauritius has played a blinder
This is not to say that Mauritius has not played a blinder in terms of its exploitation of international institutions – it certainly has. Mauritius freely agreed to the excision of the Chagos Islands from its nominal territory in the 1960s – nominal because this was an accident of colonial administration and there is no real connection between the Chagos and Mauritius which are separated by a vast distance. It was many years after independence before a new Mauritian government decided to resile from its agreement and to claim the Islands. It struck a major blow, in its campaign of lawfare against the UK, in 2019, when the International Court of Justice (ICJ) abused its jurisdiction by issuing an advisory opinion which asserted that the decolonisation process had not been completed and that the UK’s continuing administration of the Chagos Islands was unlawful.
The advisory opinion did not establish that the UK had any obligation to hand the Islands over to Mauritius or indeed any obligation in international law whatsoever. The ICJ should not have issued an opinion in this context, when Mauritius and the UK disagreed about sovereignty, precisely because the UK had not agreed to have this dispute adjudicated by the Court. But the UK was perfectly entitled to stand its ground and to maintain that it remained sovereign. In 2021, a Chamber of the International Tribunal on the Law of the Sea (ITLOS), in a case between Mauritius and Maldives, asserted that the ICJ’s 2019 advisory opinion had established that Mauritius was sovereign over the Chagos Islands. This was clearly wrong – the 2019 Opinion did not say this and could not have established it – but it seems to have worried government lawyers.
The government’s case for surrendering the Chagos Islands is thus that unless we do so, ideally having agreed favourable terms with Mauritius, then Mauritius will leverage the 2019 Opinion into rulings from ITLOS and maybe some other unnamed bodies, which will make it impossible for us to operate out of Diego Garcia. As my Policy Exchange colleagues and I have shown, this is not a good argument for surrendering sovereignty. It also suggests that Mauritius is far from a friendly state.
Handing over the Islands on this basis amounts to a surrender to the prospect of further abuses of international adjudication, in which the UK’s rights as a sovereign state are ignored. Lord Hermer KC, the Attorney General, seems to see surrender of the Chagos as an opportunity to display fealty to the (international) rule of law. In fact, it is a landmark for UK failure to stand on its rights, to resist a loss of integrity in international adjudication, and robustly to defend its strategic interests.
For the Chagos Islands are utterly vital for our defence interests, not least to our relationship with the United States, which the government is rightly trying to preserve in the current turbulence. The deal that the UK has agreed with Mauritius is limited in time and creates further vulnerabilities in terms of our strategic position, exposing future operations to new legal risks and to the prospect of third parties, such as China, subverting a future Mauritian government.
None of this can be justified in terms of justice for the Chagossians, most of whom are now British citizens and do not seem to support this deal. The UK-Mauritius Agreement pays lip service to their historic connection to the Islands but in fact leaves Mauritius entirely free to do as it wishes in relation to the Chagossians, with only a tiny fraction of the substantial payments to be made to Mauritius earmarked for them, with payment at the Mauritian discretion in any case. In addition, as Policy Exchange showed in a paper published only a fortnight ago, handing over the Chagos Islands will gravely compromise the protection of one of the planet’s most important marine environments.
Richard Ekins KC (Hon) is head of Policy Exchange’s Judicial Power Project and professor of law and constitutional government in the University of Oxford