We don’t know what the end of the Chagos affair will be, but it is rapidly spinning into farce. The latest brickbat is an immensely awkward judgment delivered today by Justice Lewis KC, Chief Justice of the British Indian Ocean Territory (as well as the Falklands and the British Antarctic Territory).
The judgment finds that a 2004 administrative order passed by the Blair government to take away the native Chagossians’ right of abode could not do that. It also found that the government’s consistent practice since then of simply denying the Chagossians’ right to land on their own homeland is illegal. Coming after an earlier judgment six weeks ago in which he blocked the summary turfing-out by Royal Marines of four Chagossians who had landed on outlying islands to set up house and constituted no threat whatever to the Diego Garcia base, this dumps a large and very unwelcome file on Keir Starmer’s desk.
This dumps a large and very unwelcome file on Keir Starmer’s desk
On one side is the deal cobbled together in 2025 to hand over the Chagos archipelago to Mauritius. It is a project that depends on avoiding awkward opposition and – not to beat about the colonialist bush – to give the place to Port Louis cleansed of any tiresome natives who might make life difficult for the Mauritian government. Keir is signed up to this, as is the Attorney-General Lord Hermer, who has a sea-green incorruptible commitment to international law as interpreted by the United Nations, and is terrified of suffering the indignity of being sued in an international court.
On the other side is the fact that, whatever the legalities, the Chagossians have an enormous amount of right on their side. They have been there for a long time. Their forcible eviction between 1967 and 1973 as part of the security arrangements with the US for the use of Diego Garcia was a scandal, but at least was dictated by some degree of geopolitical necessity.
Today, there is no excuse for preventing their return to islands well away from the base. They have no love for, or loyalty to, an increasingly corrupt Mauritian government which frankly wants to see them dumped anywhere they can’t cause trouble. (This is the same government that in 2019 talked solemnly of hauling elderly UK officials before the International Criminal Court for the crime of expelling the Chagossians in the 1960s, but hey ho.) It’s not even as if there is much connection between Mauritius and Chagos; some 1,300 miles of empty ocean lies between them.
Nor is there much to be said for the Mauritians’ claim to lord it over Chagos. According to an advisory opinion from the International Court of Justice in 2019, an opinion heavily peppered with anti-colonialist rhetoric, the Mauritian case rests on the fact that Chagos and Mauritius were once administered together. Therefore, in the interests of self-determination, it was wrong to give Mauritius independence without throwing in the islands as well.
There are times when international law is an ass. If it does indeed demand that the returning Chagossians are subjected to a government thousands of miles away that they dislike and distrust merely because of an accident of past colonial history, then there is a strong argument that this is one of those times. Humanity and the ordinary meaning of the right to self-determination strongly suggest that we would act rightly in not taking much notice of it.
The government is worried. It has announced an appeal, and is desperately hoping that this will pull its chestnuts out of the fire. If it loses it could reverse the result by imperial legislation, but this would open another can of legal worms. What government would wish to be seen to be legislating to take away the right of loyal British subjects to live in their ancestral homeland and to nullify their right to self-determination? There’s no guarantee that a proposal like that would even pass.
Meanwhile the Foreign Office has surpassed itself in the tin-eared art of not winning friends and influencing people. In an oleaginous, patronising statement made after the previous judgment last month, it treated the Chagossians rather like errant schoolboys. ‘It remains both illegal and unsafe to enter the outer Chagos islands without a valid permit,’ it said. The government ‘recognises the importance of the islands to the Chagossian community and is working with Mauritius to resume a programme of heritage visits to the Chagos Archipelago. This kind of illegal, unsafe action is not the way to achieve that.’ Thanks a bunch. Carlton-Browne of the FO could not have done a better job of making a bad job worse if he had tried.
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