27 June 2017
On Thursday of last week (22/6/17) the United Nations General Assembly voted overwhelmingly by 94 votes to 15, with 64 abstentions, on a motion advanced by Mauritius seeking a referral to the International court of Justice (ICJ) for an advisory opinion on the Chagos Islands.
One suspects that the majority of any given population in Europe, Asia, Africa, the Americas and Australasia would have trouble identifying where the Chagos Islands might be, let alone the significance of the vote.
It was however, a vote of considerable significance and to understand why, and the identity of the 15 naysayers, a brief history is in order.
The Chagos Archipelago is located in the central Indian Ocean. It was part of the British colony of Mauritius until 1965 when it was detached from Mauritius and included in a new entity called the British Indian Ocean Territory. The British paid the colony the sum of three million pounds for the islands. The concept of a colonial power negotiating with one of its subjects to “purchase” part of its sovereign territory is fraught with issues, not the least of which is the unequal bargaining power of the two entitles. There is another significant problem that will be returned to below.
Between 1965 and 1968, when Mauritius gained its independence, the British government forcibly removed the whole of the Chagos population. They were mostly resettled in the UK and the USA. That wholesale removal of the population has been a running legal sore ever since.
Why would the British wish to purchase some remote specks of land in the Indian Ocean and treat its inhabitants in such an appalling manner? The answer to that question becomes immediately apparent when one realizes that the only significant island in the Chagos Group is Diego Garcia.
Having acquired the island in dubious circumstances and deported its entire population, the British then handed it over to the Americans who constructed a massive military base there. Another legal fiction is that it is a “joint” US-UK base, although evidence for that is virtually non-existent. The Americans were granted a 50-year lease, although they did not pay a single dollar for the privilege. That lease was extended for a further 20 years in December 2016.
Diego Garcia has acquired a further unenviable reputation since becoming essentially another military outpost. It is now part of the network of US military bases used to extrapolate US military power to wherever that power is needed to advance US geopolitical aims.
It has also been used as a staging post for ‘extraordinary rendition’ (i.e. unlawful kidnapping and shipment of individuals), and as one of the US’s network of centres for ‘enhanced interrogation’,( i.e. torture). The British may wish to reflect on their willingness to maintain the “joint facility” claim as joint management carries with a joint liability for the many and varied breaches of international law conducted on or from the island.
In the UN, the British ambassador argued that monetary compensation had been provided to Mauritius; and that it was a bilateral matter between the UK and Mauritius and that it should remain so.
That latter argument, also advanced by a number of the handful of countries who voted in support of the UK position, ignores both the actual resolution and an important body of international law that lies behind it.
The first part of the resolution, which is the only part to be discussed here, asks:
“Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968 following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly Resolution 1514 of 14 December 1960………..”
The significance of this part of the resolution is twofold. It does not go to the issue of whether Mauritius had sovereignty over the islands, but whether the process of decolonization was lawfully completed.
Secondly, the UN General Assembly Resolution referred to (1514 of 1960) makes it clear that the breaking up of colonies before independence is specifically prohibited.
In the present case, that is exactly what the UK did when it must have known that such an action was illegal under international law. Not for the first time, and one is confident, certainly not for the last time, international law for the major western powers is only a tool of geopolitical convenience. Western political leaders, of whom Australia’s Prime Minister Malcolm Turnbull is a prominent example, are fond of using phrases such as ‘the rule of law’ and ‘the rules based international order’.
There is a manifest disjunction between the rhetoric and the application in a wide range of areas, including in Australia’s case, the treatment of refugees and involvement in numerous illegal wars of choice.
It was therefore no surprise that Australia was one of the 15 countries that voted against the Mauritian resolution. The Australian UN representative was voting against the resolution she said, because:
- It was not appropriate to use the Court’s advisory opinion jurisdiction to determine the rights and interests of States arising from a specific context.
- The Diego Garcia military base played a pivotal part in the global fight against terrorism (and) that it was in the interests of all to ensure that there was no uncertainty about its status that could jeopardise its contribution to international peace and security.
This argument is beyond satire. It may be one reason why the Department of Foreign Affairs and Trade’s official website makes absolutely no mention of the UN vote and why Australia was part of a tiny minority (UK, USA, Israel, Afghanistan, Albania, Japan and South Korea were among the others) so out of step with the overwhelming weight of world opinion.
Similarly, the two major Australian newspaper chains (Murdoch and Fairfax) also failed to carry a single report on the debate, the outcome, or its considerable significance. Far easier, it would seem, to pretend something has not happened, than to have to justify yet another indefensible position.
*Barrister at Law and geopolitical analyst. He may be contacted at firstname.lastname@example.org