Rt Hon Sir Robert Buckland KC, former Lord Chancellor and a Vice-President of the Society of Conservative Lawyers, spoke this month at the Law & Liberty Circle about the Chagos Islands. He castigated the government’s agreement with Mauritius as “politically naive” and “a complete U-turn” from the former British approach.
Reporting by Anthony Speaight KC
The history of the Chagos dispute
The Chagos archipelago is in the middle of the Indian Ocean. It is over 1,500 miles form Mauritius. There were no inhabitants until the mid 18th century, when a small number of settlers, mainly French, started coconut plantations. During the Napoleonic war the British navy captured these and other islands in the Indian Ocean. By the treaty of Paris in 1814 France ceded to Britain several islands including Mauritius as well as the Chagos Islands.
For reasons of convenience Britain combined the administration of these islands, including the Seychelles, as a single entity. In due course the Seychelles were separated; and in 1965 Mauritius, by then a self-governing colony, agreed with Britain to detach the Chagos Islands. By then coconut farming was in decline, and interest had commenced in the possibility of a military base on Diego Garcia, which is the largest of the Chagos. The defence facility would involve the departure of the 37 locally resident families. This 1965 agreement became embodied in a formal treaty. Amongst its terms were the payment of compensation, resettling the displaced islanders, and a transfer of sovereignty to Mauritius if and when, but not before, the Chagos ceased to be a military base..
Buckland speaks from considerable knowledge, having been the UK’s lead counsel before the International Criminal Court. Of the removal of the islanders he said:
"There is, sadly, no doubt that when the Chagossians were removed from the islands, this was done in a manner which was harsh and cruel".
But he regards Mauritius’s current claim for sovereignty as a different matter:
"Having studied all the documentary evidence from the UK government that we candidly disclosed, reaching right back to the 1960s, and then having presented it to the Court as part of my lengthy submissions, there is no evidence whatsoever that the soon-to-be independent Mauritius harboured any hopes or ambitions towards the Chagos Islands. The fact that the islands were administered as a dependency with Mauritius and the Seychelles did not drive the Seychellois government to make similar arguments to the one in Port Louis. It is not until the 1980s that we first see documentary support for a claim by Mauritius".
Mauritius abandons its earlier treaty and claims sovereignly
In 1968, Mauritius progress to independence was completed. In 1971, the removal of islanders was completed and Diego Garcia became a US military base. In 1975, Chagossians brought proceedings in the English High Court. The litigation was settled in 1982 with substantial payments. The Chagossians brought different proceedings contending illegality in the statutory ordinance for the clearance of the islands, but the House of Lords dismissed the claim. A later complaint by Chagossians to the Strasbourg court failed, with the court saying that they had previously freely settled their claim.
All scope for litigation in Britain and Strasbourg having been exhausted, the government Mauritius, by now more interested in a political claim for sovereignty than in reparation for the small group of islanders, turned its thoughts to the International Court of Justice. Mauritius faced the problem that the ICJ has jurisdiction on inter-state claims only with the consent of both sides. So it resorted to the device of inviting the UN General Assembly to seek an advisory opinion from the ICJ about decolonisation. Buckland deplored this tactic:
"This supports our fundamental contention that this was a sovereignty dispute, which of course is not the sort of issue that should be heard before the ICJ in any event. Instead, the dispute was wrongly characterised as one of “decolonisation”, which then allowed it to be heard before the Court".
An advisory opinion has been distorted into a judgment
In 2019, the ICJ by a majority produced an opinion against the UK. Buckland was not entirely surprised:
"We can’t be under any illusion that, in a world where colonialism is largely a thing of the past, international institutions are not going to view the status quo as ideal. You would be then forgiven for assuming that the question of self-determination by territory residents would be the determining factor, but in this case, something else was at work. In an age where the UN’s political forums seem paralysed and sclerotic, activism before the Court is being allowed, against a backdrop of political activity by the likes of China, who are hostile to the continued US presence on Diego Garcia".
Nonetheless, what the ICJ produced was not a judgment. It was no more than an advisory opinion:-
"Secondly, the fact that this was an advisory judgment only seems to be totally ignored by those who are suggesting that our non-compliance of it was a breach of international law".
Buckland sees law being used as politics
The sudden decision of the Labour government to enter into an agreement conceding sovereignty to Mauritius has, in Buckland’s view serious implications:
"The decision by the UK to surrender sovereignty, at a time when the potential role of the Diego Garcia base in the region may well become key, is politically naive and represents a complete U turn from our previous approach to these types of forum dispute. I believe that this capitulation makes challenge over the Falklands, Gibraltar and other overseas territories more likely. Law will be used as politics by other means".
The wider problem: the misuse of international forums
Buckland sees this as indicative of a wider problem:
"... the language and process of law is being increasingly used to further geo-political aims. To say that I think that this is a bad thing is an understatement. The over-use of forums such as the ICJ or ICC for the resolution of issues that are either best or first dealt with domestically, bilaterally or on the floor of the UN Security Council or General Assembly, has been exemplified by, for example, South Africa’s case against Israel at the ICJ, Mauritius’s case against the UK in the same Court and the issuing of arrest warrants in the case of Israeli political leaders by the ICC, an institution, which, by the way, I support, without a clear analysis of why Israel’s own independent and robust legal and judicial system is not able to deal with these serious matters".
Rt Hon Sir Robert Buckland KC practised at the criminal Bar for 20 years. He was MP for South Swindon from 2010 to 2019. He has been Chair of the Executive of the Society of Conservative Lawyers. He was appointed Solicitor-General in 2014, and Lord Chancellor in 2019. He is now a fellow at the Harvard Business School.