The Chagos question

A remote sandbank in the middle of the Indian Ocean, known as Blenheim Reef, is hitting the international news. The Mauritian government has sponsored an expedition to the reef to embarrass Britain in their long-running dispute over ownership of the Chagos Archipelago – which is home to the US military base at Diego Garcia.

But there’s a lot more to Blenheim Reef than meets the eye.

Blenheim Reef is a coral atoll located in one of the remotest places in the Indian Ocean, between the Chagos islands to the south and Maldives to the north. Although the ring-shaped atoll is almost 10 kilometres north to south and nearly five kilometres across, the sand and coral is only exposed at low tide and is covered in water at high tide.

As part of its ongoing attempts to regain administration of the Chagos Islands from Britain, the Mauritius government chartered a ship to visit Blenheim Reef after informing the British government (but not seeking their permission).

Although the expedition is officially conducting a “survey” of the reef, it is clear from the composition of expedition members (officials, lawyers, exiled Chagossians and journalists) that an underlying political purpose is to embarrass Britain.

What can the British government do in the glare of international media? Will this visit create a precedent for future unauthorised visits? The expedition seems to be a deft political move by Mauritius in further pressuring London over Chagos.

But the story is actually a lot more complicated than it initially appears.

In fact, it seems that Blenheim Reef may be terra nullius. Decades ago, the British government secretly concluded that the reef was not British territory and was owned by no-one, but declined to do anything about it.

The reef “is outside my jurisdiction”

According to now declassified Foreign Office files, the British government began puzzling over ownership of Blenheim as far back as 1975. Prompted by enquiries from an American visitor about ownership of the reef, Collin Allan, the Commissioner of British Indian Ocean Territory (effectively the civilian governor of the territory) concluded in a telegram to London that “the Reef is outside my jurisdiction.”

It seems that Blenheim Reef was not included in the 1814 Treaty of Paris that transferred Mauritius, Seychelles and their island dependencies (including Chagos islands) from France to Britain. Nor was it part of the 1965 Order in Council that detached the Chagos islands from Mauritius and established BIOT. It had been forgotten about.

Allan proposed claiming the reef as British territory. He was concerned that someone might, in his words, “do a ‘Minerva’ on us” and declare the reef to be an independent country (as had been attempted at Minerva reef near Tonga in the early 1970s).

But as subsequent analysis by Foreign Office officials made clear, it’s not as simple as that.

The trouble is that, based on limited observations, the reef seems to be completely under water at high tide. This would make it a “low tide elevation” which as opposed to “rocks” and “islands” can’t generally be “appropriated” as national territory. Nor under United Nations Convention on the Law of the Sea can low-tide elevations be used to generate territorial sea or an exclusive economic zone (as China has found out to its chagrin in the South China Sea).

Britain plants the flag

The Foreign Office decided to do nothing about these revelations.

But in 1982, officials were shocked to receive an overnight telegram from Navy Commander GN Wells, the senior British military representative in Diego Garcia. Wells told London that on 15 March 1982 he had landed on Blenheim Reef with a naval party “dressed in full white Naval Uniform” and planted a British flag on the sand (cemented into a 50 gallon oil drum so it wouldn’t float away).

According to the Wells telegram: “The British flag was raised over Blenheim Reef … and the territory formally claimed as part of the British Indian Ocean Territory.”

The Foreign Office was horrified – one official wrote the words “Good Grief” on the file. British Foreign Secretary, Lord Carrington, responded within hours with a cable stating that this action was not authorised, not to take any further action and to “suppress any publicity generated”.

In considering what to do about the situation, the Foreign Office bureaucrats were, in their own words, “nonplussed.” Wells’ action may have been unauthorised, but it was done with the best of intentions, and he was a senior British official in BIOT. Did it have any legal effect? According to their best advice, the reef wasn’t British territory and probably could never be, but they certainly didn’t want that publicised. On the other hand, taking the flag down would lose considerable face with the Americans.

One official concluded in an internal memorandum that it was best to do nothing, commenting that:

the flag be allowed to wither gently on its flagpole which it will no doubt do sooner rather than later, given the fact that it may well be under water some of the time.

“Terra nullius”?

But there were continuing fears that the Soviets or others may grab the reef. Indeed, during this time, there was a Soviet spy ship anchored at nearby Speakers Bank and there was concern that they may seek to establish a permanent presence. According to a memorandum from the Foreign Office legal advisor in April 1982:

Until sovereignty over it is asserted, it is terra nullius. In the absence of a claim to sovereignty by us it would be open to any other State to claim sovereignty over it.

Control over Blenheim Reef may matter even more today, for a lot of reasons.

Ongoing controversy over these and future visits to BIOT could be a major embarrassment for London, even if it is not technically claimed as British territory.

The potential for another country to claim it – and, say, build an artificial island upon it – could have a major impact on the US base at Diego Garcia.

Mauritius also wants to use Blenheim Reef as part of their assertions of a much extended exclusive economic zone in their maritime boundary dispute with neighbouring Maldives.

A lot depends on whether any features of Blenheim Reef (coral or sand) remain above water at high tide. Even if they did not several decades ago, they may now, as over time, coral atolls tend to grow into islands.

In coming days or weeks we may well see a Mauritian flag planted on Blenheim Reef, proclaiming it as Mauritius territory. How that would play out is anyone’s guess.

This article was produced as part of a multi-year project being undertaken on the Indian Ocean by the National Security College, Australian National University, with the support of the Department of Defence.

On Tuesday, Mauritius made good on a long-standing threat to Britain and sent a boatload of officials to visit the Chagos Archipelago without permission. This action has placed Britain, which administers the disputed island territory, in a very difficult position.

Touted by Mauritian Prime Minister Pravind Jugnauth as “historic”, the 15-day expedition is headed by Mauritius’ Permanent Representative to the United Nations Jagdish Koonjul (who has previously written in The Interpreter on potential resolutions to this dispute).

Koonjul is accompanied by Mauritius’ legal adviser, British academic Professor Philippe Sands, as well as Mauritian government officials and Chagossians. British and American journalists have also joined the voyage to document the spectacle.

The expedition intends to land at the remote Blenheim Reef, a partly submerged atoll approximately 230 kilometres north of Diego Garcia, the location of a large joint US–UK military base.

#Chagos islanders heading back to visit their remote homes today 50 years after forcible removal by Britain. Reporting on this historic (and politically provocative) trip on ⁦@BBCNews⁩. Britain claims sovereignty of the archipelago but UN courts say Mauritius is true owner. pic.twitter.com/RlQXJxJXdp

— andrew harding (@AndrewWJHarding) February 8, 2022

Ostensibly a “scientific survey” of Blenheim Reef, the voyage is intended to be a public rebuke to continued British administration over the contentious Chagos. According to Mauritius, Blenheim Reef is not only under Britain’s “illegal” administration, but it is also now subject to a maritime boundary dispute between Mauritius and neighbouring Maldives.

Mauritius has chartered the former naval ship, the €430,000 Euro per week “Bleu de Nimes” superyacht for the voyage. The delegation can enjoy the onboard sauna, gym and dual sun deck Jacuzzis en route to the disputed reef.

Blenheim Reef is a long way from Mauritius. While the Mauritius government originally intended for this voyage to depart from nearby Maldives, the Maldives government stymied the plan, forcing the superyacht to depart Seychelles instead.

Mauritius argues that the way in which the islands (now constituted as the British Indian Ocean Territory, or BIOT) were detached from Mauritius by Britain prior to independence was illegal. Mauritius has agitated for the return of the Chagos since the 1980s, and its efforts were buoyed in recent years.

In May 2019, the UN General Assembly passed UN Resolution 73/295 demanding that the UK “withdraw its colonial administration from the Chagos Archipelago unconditionally within a period of no more than six months”. After the UK ignored the deadline, Jugnauth branded it as an “illegal colonial occupier”.

This 2022 voyage is the latest move by Jugnauth to further his nation’s claim over the Chagos. While he is not joining the voyage personally, he noted his intention to join future expeditions to the Chagos.

On Monday 7 February 2022, Mauritian PM Pravind JUGNAUTH announces an expedition to #Chagos soon. pic.twitter.com/7m6hpymuHf

— Kwang Poon (@kwang_poon) February 7, 2022

So will this tactic work, and how will Britain respond?

This expedition undoubtedly shows a level of restraint by Mauritius. Rather than sailing a Mauritius Coast Guard vessel, a superyacht (while also undoubtedly more comfortable) will be a less threatening prospect for Whitehall’s decision-makers pondering a response.

Secondly, the expedition does not appear to be sailing near the sensitive and secretive joint UK­–US military base on Diego Garcia. Private yachts regularly transit through the Chagos, and anchor in its atolls. So as long as Bleu de Nimes steers clear of Diego Garcia, its transit will not affect base security. Blenheim Reef is a considerable distance from Diego Garcia.

Further, while representatives of the Chagossian community will join the expedition, there is no indication that the voyage plans to commence or further Chagossian resettlement. For its part, Mauritius has promised to resettle the Chagos Archipelago should it gain sovereignty.

The “scientific” nature of the voyage – purportedly to inform Mauritius’ ongoing International Tribunal for the Law of the Sea case against Maldives – also gives it some apparent legitimacy.

London, steadfast in its sovereignty claim, should be worried about whether this expedition is the thin edge of the wedge.

According to the BIOT website, permits are required for all vessels visiting the Chagos islands. The website warns that “any person who enters BIOT without permission may be liable to imprisonment for 3 years and/or a fine of £10,000 and the vessel used to enter BIOT waters may be seized and forfeited.”

But, according to Sands, Mauritius informed Britain of its intention to survey the Chagos in December 2021. Threatened with further legal action if it did not respond, Britain “blinked” and notified Mauritius it would not impede the expedition.

This laissez-faire response from London will no doubt embolden Mauritius to continue incursions into BIOT, which may become more strident and forceful.

Britain knows that enforcing its 2018 Ordinance on entry into the Chagos by intercepting Bleu de Nimes and prosecuting its passengers will undoubtedly invoke the wrath of the international community, which overwhelmingly supports Mauritius’ claim over the Chagos.

The 2010 “Gaza freedom flotilla”, in which 10 political activists were killed by the Israeli military while trying to “illegally” enter Gaza, shows how easily this type of maritime demonstration could get out of hand.

London faces a lose-lose situation. It either tacitly allows this and future Mauritian forays into its territory, or it responds which will likely generate pro-Mauritian media and international attention. Responses could include public statements, diplomatic action or possibly even interception by BIOT patrol vessel Grampian Frontier.

Either way, further expeditions are apparently planned, including more senior Mauritian leaders, perhaps even the prime minister himself.

Deft Mauritian diplomacy has put the spotlight on British intransigence. However this fortnight-long survey plays out, Britain’s international credibility will be diminished.
 

This article was produced as part of a multi-year project being undertaken on the Indian Ocean by the National Security College, Australian National University, with the support of the Department of Defence.

Australia’s defence of the rules-based international order is based on enlightened self-interest. As the 2017 Foreign Policy White Paper made plain: “We will act on the principle that Australia will be safer and more prosperous in a global order based on agreed rules rather than one based on the exercise of power alone.”

Yet in the case of decolonisation of the Chagos Archipelago in the Indian Ocean – a UK-administered territory also home to a major US military base at Diego Garcia – Australia seems to have disregarded its own interest in defending the rules and laws governing the globe.

Mauritius has long claimed sovereignty over the islands. Yet Australia stood with only five other countries in voting against a May 2019 UN General Assembly resolution calling for decolonisation, which followed an International Court of Justice (ICJ) advisory opinion that “the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible”. Canberra has also remained conspicuously quiet in the wake of last month’s judgement by a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) supporting the ICJ’s advisory opinion.

As David Brewster, Bec Strating and others have previously argued in The Interpreter, Canberra’s position undermines its own efforts to defend international law and implies a troubling moral equivalence. Australia seems to implicitly endorse its friends ignoring international law, while at the same time calling on other capitals to respect it.

But as well as being a moral failing, Australia’s position is a strategic own goal. It provides yet another opportunity for China to paint Australia as an insincere and hypocritical defender of the rules-based international order.

Beijing’s efforts to realise the “great rejuvenation of the Chinese nation” are not just playing out in the technological, economic and military domains. The Chinese Communist Party (CCP) also seeks “discourse power”. As analyst Elsa Kania describes it:

China is aiming to elevate its national capability to influence global values, governance, and even day-to-day discussions on the world stage, which Beijing believes should be commensurate with its economic and military might.

Although this push for “discourse power” has typically been focussed on advancing a narrative that paints the CCP and China in a positive light, the embrace of a belligerent form of so-called “Wolf Warrior” diplomacy points to a now-widespread view in Beijing that the best defence is a good offence. Beijing is not content simply to trumpet its strengths and achievements – it is seeking to delegitimise the actions of those states that stand in the way of its “core interests” regarding regime security, internal stability, economic growth, territorial and maritime claims, and much besides.

Consistent with this playbook, Beijing’s efforts to highlight alleged Australian war crimes in Afghanistan are plausibly viewed as a direct counteroffensive against Canberra’s longstanding public concerns over human rights violations in China. Foreign Ministry Spokesperson Zhao Lijian did exactly that in the wake of the release of the report last year into allegations against Australian special forces:

Australia and some other Western countries always portray themselves as human rights defenders and wantonly criticise other countries’ human rights conditions. The facts revealed by this report fully exposed the hypocrisy of the “human rights” and “freedom” these Western countries are always chanting.

Whether mocking former Secretary of State Mike Pompeo’s celebration of dastardly CIA deeds or lambasting NSA mass surveillance, Beijing exhibits a growing propensity to attack its rivals and opponents by highlighting perceived transgressions and double standards.

Which brings us back to the issue of decolonisation of the Chagos Archipelago. Australia is leaving itself wide open to China levelling just such “whataboutist” responses the next time Canberra calls on Beijing to respect any element of international law, whether in the South China Sea or Xinjiang.

So, what should Canberra do? There is a risk that publicly calling for decolonisation without London’s acquiescence would sour political ties with the UK. Such an Australian response is also unlikely to shift the UK position without political pressure from the United States.

Canberra should nevertheless lead a concerted effort through official channels to persuade London that complying with international opinion and law is in UK and allied interests. As well as pursuing this argument bilaterally with the UK, the Five Eyes Defence Ministers’ Meeting provides Canberra with a powerful mechanism to elevate the issue.

Given the critical role of the Chagos Archipelago’s Diego Garcia for joint air power projection in the Indian Ocean region, such an agenda item could be easily justified on the grounds of prudent military contingency planning.

By elevating decolonisation to the Five Eyes Defence Ministers’ Meeting, Canberra could also push Washington to seriously engage with this critical moral and strategic question.

To persuade a reluctant UK, Australia could also seek to coordinate a reassurance that the grouping will use its collective diplomatic and economic resources to further encourage Mauritius to provide continuity for the current military presence arrangements at Diego Garcia, which Mauritius has already offered to continue.

Having embraced universally applicable laws and rules as the standard by which Australia judges the conduct of other countries, Canberra cannot morally justify carving out exceptions for its friends. And embracing such a double standard undermines Australia’s efforts to hold China and other countries to these same standards.

In remarks delivered at the US State Department in early February, President Joe Biden championed the rule of law as part of “America’s abiding advantage” and spelled out his vision for a nation leading “not just by the example of our power but by the power of our example”. In its swing toward competition with Beijing, the US has made every effort to draw attention to China’s disregard for international law, while conveniently ignoring that law’s application to the US military presence on Diego Garcia and the US presentation of itself as a champion of the rules-based order.

Diego Garcia is the largest of 55 islands split off by the United Kingdom from its Seychelles and Mauritius colonies to create the British Indian Ocean Territory in 1965. Devised exclusively for military use, the BIOT has been the key US strategic outpost in the Indian Ocean since 1966. Shuttering civilian industry and removing Diego Garcia’s original inhabitants paved the way for initial construction of British-US military facilities in 1967. These facilities were used to great effect in tracking the Soviet navy throughout the Cold War, although it was India’s request for American support against China in the 1962 Sino-Indian War that drove Amercia’s initial request for access to the archipelago. The Chagossian population was given the option to resettle in Mauritius or Seychelles. Some were able to relocate to the UK. This unceremonious exile went largely unremarked at the time – to most, it was a small subplot in the high drama of the Cold War. But not to Mauritius, nor to the Chagossians.

Diego Garcia became a critical node of American expeditionary warfare in Afghanistan and Iraq. It remains an invaluable operating location in a region with few permanent American bases. But rules and values are now at the centre of intensifying competition between Washington and Beijing. While the US claims the Chinese Communist Party is seeking to overturn the rules-based order, it has done so in the face of Mauritius’ calls for restoration of its territory and near-universal rejection of British claims upon the archipelago.

Mauritius has the law on its side. A prolonged campaign by Mauritius to confront the UK over the status of the Chagos Islands was finally addressed by the International Court of Justice in 2019. In a stunning rebuke, the court handed down an advisory opinion which stated that Britain’s claim to the archipelago was illegitimate and that its retention of the archipelago constituted a failure to fully decolonise. A subsequent non-binding UN General Assembly resolution, passed by an overwhelming majority, demanded that the UK withdraw its “colonial administration” from the islands by the end of 2019. In 2021, the International Tribunal for the Law of the Sea (ITLOS) added its own confirmation of Mauritius’ sovereignty over the Chagos Archipelago, and criticised the UK’s failure to comply with the 2019 UN resolution.

The US is not inclined to abandon its strategic foothold in the Indian Ocean, nor is the UK’s Conservative government prepared to relinquish its claims to this colonial holdover. Both fear the potential consequences of ceding control, being subject to the whims of a state that might evict them from their unsinkable aircraft carrier. Admittedly, returning the islands creates risk – sovereignty trumps lease rights. A future Mauritian government might be less welcoming of the US and could revoke the lease. The US would also likely be forced to negotiate for benefits that it currently enjoys.

But the Mauritian government has sought to assuage those fears by offering, twice, to lease the land to the US for up to 99 years, if it is returned to their control. Mauritius’ UN ambassador made clear that it favoured a continued US presence at Diego Garcia, as well as its stabilising influence in the Indian Ocean region. Mauritius’ prime minister offered his own assurances following the ITLOS judgement, stating that “The end of UK administration has no implications for the US military base at Diego Garcia, which Mauritius is committed to maintaining”. Mauritius has offered both the US and UK a way to underline their commitment to the rules rather than flout them, while maintaining critical military access well into the next century.

Thus, the Biden administration has an opportunity to remove tension between its hard strategic interests and its declared support for a rules-based order. In consultation with London, Washington should move quickly, announcing support for the transfer of the Chagos Archipelago to Port Louis’ control, accept the offered 99-year lease and sign a defence agreement with a democratic partner as an equal under the law. The fact that the British political opposition has already telegraphed its intent to comply with the UN directive at the earliest opportunity is further reason for haste. With international opinion increasingly opposed to continued British control of the islands, the case for their return is not only ethically correct but strategically sound.

To continue in the current arrangement leaves the UK and UK open to criticism for hypocrisy in their approach to international law. London’s refusal to comply with the ITLOS ruling can be likened to Beijing’s rejection of the Permanent Court of Arbitration’s 2016 award on the South China Sea, as both legal bodies are convened under the UN Convention on the Law of the Sea (UNCLOS). It is only with a shocking lack of self-awareness that either country could accuse Beijing of undermining the rules-based order while defying the UN over Mauritian sovereignty. Better to seize this opportunity to demonstrate commitment to the rule of law than to remain defiant and isolated on a question of human rights.

By demanding China conform to the rules-based order, the US and the UK have set a narrow rhetorical gate through which they themselves must walk. Attempts to justify a continuation of British control of the Chagos Islands look like destroying the rules-based order in order to save it, and reinforce China’s vision of world in which the weak suffer what they must.

Decisive action on behalf of the Biden administration to facilitate the return of Diego Garcia is not only ethically correct, but one that reinforces American commitment to international law and human rights. By committing itself to this course, Washington can avoid negative impact upon American strategic interests, while simultaneously bolstering the rules-based order in the Indo-Pacific.

The decision last month of a Special Chamber of the International Tribunal of the Law of the Sea on a maritime boundary dispute between Mauritius and the Maldives reflects two dimensions to the engagement by international courts in resolving disputes among Indian Ocean states. First, it represents the latest judicial victory for Mauritius in its efforts to reclaim the Chagos Archipelago. More broadly, it reflects an emerging trend in the judicial resolution of international maritime boundary disputes in the Indian Ocean.

Mauritius brought proceedings against the Maldives in 2019 to delimit the maritime boundary between the Chagos Archipelago and the southernmost atoll of the Maldives. The case again brought the issue of sovereignty over the Chagos Archipelago into the spotlight because the maritime claims of the Maldives and Mauritius can only overlap if the Chagos Archipelago belongs to Mauritius.

Britain detached the Chagos Archipelago from Mauritius at the time of its independence with the promise that it would be returned to Mauritius when it no longer required it. Diego Garcia, the largest island within the Chagos Archipelago, was then leased to the United States for use as a military base.

In 2019, the International Court of Justice (ICJ) issued an advisory opinion in which it determined that the decolonisation of Mauritius was not lawfully completed with the separation of the Chagos Archipelago and that the United Kingdom was obliged to end its administration of the islands as rapidly as possible. But London still maintains that it has sovereignty over the Chagos Archipelago despite the ICJ opinion.

Mauritius brought proceedings against the Maldives to determine their maritime boundaries under the compulsory dispute settlement process in the 1982 UN Convention on the Law of the Sea (UNCLOS). This allows parties to the treaty to turn to arbitration or adjudication to resolve disputes concerning its interpretation or application.

However, the Maldives argued that the Special Chamber had no power to hear the dispute because it didn’t have authority to resolve disputes over sovereignty over the Chagos Archipelago. The Special Chamber confirmed that UNCLOS proceedings cannot resolve territorial sovereignty disputes. Questions must only concern the maritime matters addressed in UNCLOS, and UNCLOS does not deal with territorial sovereignty.

Mauritius instead argued that there wasn’t a territorial dispute before the Special Chamber, as the ICJ’s advisory opinion had already determined that the Chagos Archipelago was an integral part of Mauritius. For Mauritius, the issue has been resolved in its favour and it is proceeding accordingly in its interactions with its neighbours. Mauritius argued that although the ICJ opinion is not legally binding, its determinations were “not devoid of legal effects”.

The Special Chamber agreed that “the decolonisation and sovereignty of Mauritius, including the Chagos Archipelago, are inseparably related”. Whereas the ICJ had previously carefully sought to deny that it was deciding any territorial sovereignty dispute between the United Kingdom and Mauritius, the Special Chamber more readily acknowledged the “unmistakeable” and “considerable implications” for the United Kingdom’s sovereignty arising from that opinion. As the Special Chamber accepted that Mauritius, and not the United Kingdom, was entitled to assert rights over Chagos Archipelago, the Maldives objections on this question were rejected.

In taking this approach, the Special Chamber has effectively transformed a non-binding opinion into a legally binding decision, albeit only binding between Mauritius and the Maldives and not on the United Kingdom. The litigation strategy pursued by Mauritius has borne fruit in ensuring an advisory opinion that was not supposed to resolve a bilateral territorial sovereignty has truly had that legal effect.

The case will now proceed to the determination of the maritime boundary between the Maldives and Mauritius, although a decision may not eventuate for another two years.

Mauritius-Maldives is not the only maritime boundary dispute in the Indian Ocean pending before an international court. Somalia instituted a case against Kenya in 2014 based on each state’s acceptance in advance of the Court’s jurisdiction rather than under UNCLOS. The public hearings on the boundary delimitation will be held next month.

This current engagement of international courts with maritime boundary delimitations in the Indian Ocean is not new. Bangladesh instituted proceedings under UNCLOS in 2010 to resolve its maritime boundary disputes with India and Myanmar in the Bay of Bengal and led to two awards delimiting respective maritime zones.

While maritime boundaries are most commonly bilaterally negotiated by states, it is notable that Indian Ocean coastal states are often willing to compel the use of adjudication or arbitration when those discussions do not produce results. Resort to an international court will only be possible if states are parties to UNCLOS or, alternatively, consent to the ICJ’s jurisdiction. All but four Indian Ocean states are parties to UNCLOS so there remains considerable potential for the judicial resolution of the many outstanding maritime boundary disputes in the region.

However, even if a state is party to UNCLOS, there is an option to exclude the resolution of maritime boundary disputes from compulsory arbitration or adjudication. Australia has taken this path. When a state does so, compulsory conciliation may instead be undertaken, as happened when Timor-Leste pursued conciliation against Australia in 2016 and resulted in the Maritime Boundary Treaty.

While states are not always keen to refer their disputes to third parties for a legally binding decision, experience has shown not only how peaceful resolution of differences in the region can be achieved, but also the potential utility of international litigation to further other political agendas – in this case, the further affirmation of Mauritius’ sovereignty over the Chagos.
 

This article is part of a two-year project being undertaken by the ANU National Security College on the Indian Ocean, with the support of the Australian Department of Defence.

The dispute over the ownership of Diego Garcia and the rest of the Chagos Archipelago involves a complex array of legal, human rights, security and geopolitical issues. The United Kingdom wants to retain the islands it calls the British Indian Ocean Territory (BIOT). Mauritius wants to see the islands ceded to it. The United States wants to keep its military base. And many of the Chagossian diaspora who were forcibly removed decades ago want to return.

This multi-sided dispute has now been further complicated by arguments over ownership of the territory’s internet domain – “.io”. It seems that digital players may be increasingly caught up in geopolitics.

In the early days of the internet, countries and dependent territories were assigned a two-letter code to form part of the domain extension in a web address – .au for Australia, .uk for the United Kingdom, .nz for New Zealand, and so on. What might have initially seemed just an administrative designation has now become big business.

Responsibility for administration of these codes was granted by the Internet Assigned Numbers Authority (IANA) to so-called “responsible agents”. The identity of these agents varied widely between different nations. For example, the .au domain is regulated by the Australian government, but the .uk domain is left to the private sector.

BIOT received the domain designation .io, and the UK government left it entirely to the private sector to manage and profit from. As a result, the domain is “owned” by Internet Computer Bureau Ltd (ICB), a private company formed specifically to take advantage of niche domains. ICB in turn is now owned by US registry services giant Afilias.

The .io domain has turned out to be a big money spinner. As an abbreviation of Input/Output (an established programming maxim), .io is seen as a popular alternative for tech start-ups and cryptocurrency websites. Many legitimate businesses have included .io in their brand names, such as Branch.io and Apiary.io. Even 2016 US presidential hopeful Marco Rubio used rub.io as a shortened URL for his campaign website.

Despite it being a country code, Google treats .io as a generic domain (just like .com). This means that companies looking for global exposure get better search results on “myproduct.io” than they would on, say, “myproduct.com.au”. As a result, .io addresses are popular and lucrative for all concerned. But with that business comes an inherent stake in the Chagos dispute.

For one thing, businesses that rely on .io are invested in the continuation of the domain name – and therefore in the continuation of BIOT itself. If Mauritius gains sovereignty over the Archipelago, BIOT will cease to exist as a dependent territory, meaning that the domain may be scrapped. As domains are based on the International Organisation for Standardisation’s ISO 3166-1 alpha-2 codes, the removal of the BIOT from the standard would likely precipitate the end of the .io domain. Historical country code domain retirements include Zaire’s .zr domain, which was replaced by .cd for the Democratic Republic of the Congo. Further, the Soviet Union’s .su was replaced with domains including .ru (Russian Federation), .by (Belarus), and .ua (Ukraine). Lastly, Czechoslovakia’s demise and subsequent retirement of .cs created .cz (Czech Republic) and .sk (Slovakia).

The retirement of .io would have severe financial implications for its administrators as well as for the many companies that use the domain. The loss of traffic caused by a domain change could be substantial in the case of many of .io’s most visited websites.

On the other hand, many Chagossians and their supporters are wondering where all the money generated by domain sales is going – and how they might get their fair share. Domains can be big business for small countries. The Pacific island country of Tuvalu generates almost 10% of its annual revenue from the sale of domain rights for .tv. Montenegro benefits from the .me domain. In contrast, the tiny Pacific island Niue unsuccessfully fought a Swedish company for control and some $US150 million in lost profits associated with the .nu domain, claiming it is a national asset. Control of the .io domain was reportedly sold in 2017 for $US70 million, and its value will have only grown in the years since.

Already, the “The Dark Side of .IO” website – established by two .io users –  successfully encourages .io start-ups to donate the equivalent domain renewal fee to the UK Chagos Support Association.

The same association added the .io domain to their proposed list of income-generation mechanisms, should they be allowed to return to the Chagos. But as the British government does not administer the .io domain, this could create yet another impasse in the overall dispute.

There are also potential liabilities at stake. The .io domain is implicated in its fair share of criminal activity, including high-profile scams such as OneCoin and USI Tech, and many .io websites are implicated in child exploitation. Some European courts are considering whether to hold registrars culpable for illegal activity perpetrated on their domains. Any party that takes control over .io could be signing up for more than they bargained for.

Of course, the .io domain issue pales in comparison to the geostrategic stakes of the Chagos dispute for Indian Ocean security, but governments should be alert to these new actors and complications. Any future negotiated solution to the Chagos territorial dispute will probably need to take this issue into account – potentially even including the perpetuation of an “Indian Ocean” (or “IO”) territory – to preserve this profitable digital asset.
 

This article is part of a two-year project being undertaken by the ANU National Security College on the Indian Ocean, with the support of the Australian Department of Defence.

Mauritius is the legitimate sovereign over the Chagos Archipelago, including the island of Diego Garcia, which hosts an important US military base in the Indo-Pacific region. The government of Mauritius has publicly announced its willingness to enter into an agreement that would preserve the base, including with British involvement if desired, and keep the United States engaged in the region. What Mauritius is proposing is in the interests of the US and the British, as well as Mauritius and the countries in that part of the world.

In the mid-1960s, the British government of the day excised the Chagos Archipelago from Mauritius during the process of decolonisation and concluded an agreement with the US which allowed the latter to set up a naval base in Diego Garcia, the largest island of the archipelago.

That unilateral dismemberment of Mauritian territory has now been clearly established as illegitimate through the 2019 Advisory Opinion of the International Court of Justice and by Resolution 73/295 of the United Nations General Assembly. All UN member states as well as UN Agencies and specialised bodies are now required to support the completion of the decolonisation of Mauritius and to refrain from any act that would give recognition to the unlawful British administration of the islands. Mauritius has long sought their return to its legitimate and sovereign control. International law is unequivocally on the side of Mauritius, and the British now have an opportunity to withdraw in good grace, before their position becomes untenable.

Mauritius recognises the security risks in the Indo-Pacific region, and it is conscious of the great value in having the US engaged in the region, including through the base on Diego Garcia. We fully understand the key role the base has played in ensuring stability in the region. There is a clear need to address multiple security challenges, including curbing trafficking of humans and drugs, preventing terrorism and keeping trade routes safe. For all these reasons, we have publicly stated our willingness to have an arrangement with the US so that it could continue to use the base. Indeed, we are willing to make a long-term arrangement – for 99 years, if so desired – that would last well into the next century, and there is a consensus among the major political parties in Mauritius to allow such US presence. The agreement which Mauritius offers is far better for the US than the current British deal, which expires in 2036 and the renewal of which would, again, be unlawful under international law.

As comfortable as the US may feel with the UK under their current agreement, the writing is on the wall: the UK’s stand in rejecting the ICJ Advisory Opinion and the accompanying UN General Assembly resolution is not sustainable. The British Labour Party has officially committed itself to comply with the ICJ ruling when it comes to power. Even now, the Prime Minister is under pressure from parliamentarians to comply with the ICJ ruling to avoid humiliation, isolation and loss of credibility on the international stage. The UK has already failed to get its candidate re-elected to the ICJ because of its ongoing violation of Mauritius’ sovereignty – the first time a Permanent Member of the Security Council lost a seat on the Court.

Following Brexit, the UK’s efforts to establish itself as a global power will inevitably be further hampered by its own refusal to abide by the rule of law – a principle that has traditionally been upheld with great pride by the British people. Sooner rather than later, the UK will realise that its own interests require it to get on the right side of history, support full decolonisation, and move with the momentum of the Black Lives Matter movement. The plight of the former inhabitants of the Chagos Archipelago, people of colour whom the British forcibly displaced from their homes, is not likely to be forgotten. Nor is the systematic refusal of the UK government to allow their return. Pressure will continue on the UK by the membership of the UN, the African Union and not least its own citizens.

Already UN maps clearly identify the Chagos Archipelago as part of Mauritius, in conformity with the ICJ’s ruling and the General Assembly resolution. The UK’s membership in organisations where it claims to represent the Chagos Archipelago will continue to be challenged. In short, its defiance of international law cannot continue much longer in the face of the opposition of the overwhelming majority of states.

It is therefore in the interest of the US to seize this opportunity to engage with Mauritius in concrete discussions for a long-term agreement. This trajectory can lead to an outcome that will be beneficial to all concerned.

While the exact terms of any agreement would have to be negotiated, the Government of Mauritius has made it clear that it has no desire to impose itself in the running of the base. We wish to have our rightful sovereignty recognised as a matter of principle and national fulfillment. We are aware that continuation of the base will require accommodation on our part, and we are willing to talk. For example, any resettlement could be restricted to other islands which lie at least 100 miles away from Diego Garcia, in order to ensure that the operation of the base is not disrupted by such resettlement. But we would expect that Mauritians, especially those of Chagossian origin, would be employed on the base as civilian workers.

Some have questioned whether Mauritius could be a reliable partner for the US. There is no basis for any doubts about our reliability. As a stable democracy with strong ties to the UK, US, Australia and especially India, Mauritius can offer the necessary guarantees that the US requires to ensure its long and unimpeded use of Diego Garcia. The growing security partnership between India and the US offers even greater assurance to the US, since Mauritius will not do anything that could adversely affect India’s security interests.

We are also very aware of our obligations under the Pelindaba Treaty, which restricts the use and stockpiling of nuclear weapons in the African region. This is a sensitive topic, no doubt, but we are certain that constructive negotiations will lead us to a solution that will satisfy both Mauritius’ obligations under the treaty and US national security interests.

The US now faces a choice. Washington can stay in alignment with London’s illegal position until that is no longer tenable or a Labour government returns the Chagos Archipelago to the effective control of Mauritius. Or it can work constructively with Mauritius and the UK to reach a new arrangement for the base, one that respects Mauritian sovereignty, fully protects US interests and reinforces the US position as a supporter of international law. Such a course will send a clear signal to others in the region and beyond that the US and UK are defenders of the international rule of law, respect the sovereignty of others and support decolonisation. And above all, it would create a more stable and secure position for the US on Diego Garcia, and allow it to play a key role in Indo-Pacific security well into the next century.


This article is published as part of a two-year project being undertaken by the ANU National Security College on the Indian Ocean.

The United States military base on Diego Garcia has a problem: it is housed inside an unlawful jurisdiction, the British Indian Ocean Territory (BIOT). According to the African Union, UN General Assembly and a recent advisory opinion of the International Court of Justice, BIOT is a colonial holdover that violates the territorial integrity of Mauritius. Britain refuses to dismantle BIOT out of deference to its ally, the US. This is a mistake. Full decolonisation is in the interest of all sides.

America’s support for British sovereignty over Diego Garcia is based on the assumption that London is a preferable “landlord” to Port Louis. If this was ever true in the past, it is not true today. British control over Diego Garcia and the rest of the Chagos Archipelago is illegal, unpopular, unnecessary, and at odds with the idea of a “rules-based” order in the Indo-Pacific. By contrast, Mauritius holds the keys to a long-term agreement over Diego Garcia that would be consistent with international law and beneficial to America’s broader strategic objectives in the region.

Port Louis has made no secret of its desire keep open the base on Diego Garcia. It is safe to treat this as a credible commitment. With no formal military of its own, Mauritius depends upon others for its external defence. And although India has provided a de facto guarantee of Mauritian security for the past 50 years, it is obviously risky for a small state to rely so much on the patronage of a single great power. A closer relationship with the US would provide Port Louis not just with more security, but also a degree of autonomy from New Delhi.

It helps that the US and India are becoming closer strategic partners in the Indo-Pacific because of their shared concerns about the rise of China. Both powers have an interest in the US military maintaining a secure naval presence at the heart of the Indian Ocean. But New Delhi supports the decolonisation of the Chagos Archipelago. To maintain its standing, Washington must follow suit.

One common objection to Mauritian sovereignty over Diego Garcia is that Port Louis would look to charge an exorbitant amount of rent for the continued use of its territory (the UK does not charge rent for the base). Of course, it is impossible to know exactly how much compensation Mauritius would ask of the US before negotiations have taken place. But even an amount that approximated the $70 million paid annually by Washington to Djibouti would be a sound strategic investment. It would also be affordable, comprising less than 2% of the $3.6 billion in additional funding that congressional leaders are considering allocating (at minimum) for US defence initiatives in the Indo-Pacific.

Indeed, having to pay rent to Mauritius should properly be considered a good problem to have. It is the only way the US can place its access to Diego Garcia on a sound legal footing. Under the current arrangement, London could always determine that its legal responsibility to pursue decolonisation is a higher obligation under international law than its agreement with the United States. Only a bilateral agreement with Mauritius can put America’s basing rights beyond question.

Some have argued that Mauritius would restrict the storage of nuclear weapons on Diego Garcia. However, there is every possibility of finding creative solutions to Mauritius’ obligations under the anti-nuclear Pelindaba Treaty. In any case, such uncertainties only underscore the importance of engaging Port Louis now, in good faith, with a view to reaching a lasting agreement that will be acceptable to both sides.

Perhaps the biggest driver of US opposition to Mauritian sovereignty has been the fear that Port Louis would allow the resettlement of Diego Garcia or the smaller Chagos Islands by the indigenous Chagossians, whom Britain illegally expelled from the archipelago between 1965 and 1973. This is a reasonable expectation. Yet US military bases coexist with civilian communities from Guam to Guantanamo Bay. The small-scale and partial resettlement of Chagos would be entirely manageable, and nothing out of the ordinary.

In short, Mauritian sovereignty over the Chagos Archipelago would require the base on Diego Garcia to become a more “normal” military installation, in the sense that it would no longer exist inside a jurisdiction that exists solely for its convenience. But the base would not be rendered anything close to inoperable. On the contrary, Diego Garcia would remain one of the most important US staging posts in the world.

From the US perspective, overseas bases are most secure when they are at the invitation of host nations – that is, when they are underpinned by soft power (attractiveness) rather than coercion. In the case of Diego Garcia, the US should have confidence in what it can offer Port Louis in terms of friendship and long-term security. However, it should go without saying that Mauritius would be more attracted to such a partnership if US officials would support the decolonisation the Chagos Archipelago sooner rather than later.

The bottom line is that America’s access to Diego Garcia need not depend on Britain’s willingness to administer an illegal colonial jurisdiction in the face of stiff international condemnation. The best way forward is for the US to back the transfer of authority from London to Port Louis as soon as possible, while taking measures to ensure that Mauritius continues to have self-interested reasons to remain committed to a bilateral security partnership. This would ensure that the Pentagon’s long-term access to Diego Garcia is based upon consent rather than colonialism – the only sustainable solution.

This article is part of a two-year project being undertaken by the National Security College on the Indian Ocean, with the support of the Department of Defence.

The Chagos Archipelago of 54 islands, formerly administered as a dependency of the British Colony of Mauritius, was excised from Mauritius by the UK in 1965, three years before independence. It was renamed the British Indian Ocean Territory (BIOT), and its inhabitants (about 1500 people) were deported to Mauritius and Seychelles between 1968 and 1973 to make way for a US military base on the largest island, Diego Garcia. Depopulation enabled the British government to avoid having to administer the islands and to report annually to the UN via the Special Committee on Decolonisation, or C-24.

For the last five decades, the Foreign and Commonwealth Office (FCO) has prevented the Chagossians from returning to their homeland and denied them the right of abode in Chagos. It has resisted both political and legal attempts at promoting a resolution of the issues. On the international stage, UK sovereignty over Chagos has been challenged since at least 1980 by Mauritius.

Forty years of British parliamentary debates and questions, discussions and resolutions in UN bodies, the European Parliament, the African Union, the Commonwealth and 22 years of ongoing litigation in the English courts would suggest that it is time to resolve the Chagos dispute. The 2019 International Court of Justice (ICJ) Advisory Opinion and UN General Assembly (UNGA) resolution endorsing it are the latest landmarks in these challenges to UK sovereignty and to denial of the Chagossian right of abode and resettlement.

The ICJ decided that the decolonisation of Mauritius is incomplete, that the UK is under an obligation to bring an end as rapidly as possible to its administration of Chagos, and that the right to self-determination was a peremptory norm of customary international law before 1965.

The Court of Appeal in London heard a case in May against the UK Government’s decision in 2016 not to allow resettlement. However it is decided, Chagos could go to the UK Supreme Court for the third time and quite possibly to the European Court of Human Rights, where it would be the second time this court has considered the plight of the Chagossians.

For the past 18 years, the UK has at different times deployed a catalogue of unproven reasons against resettlement and an overall settlement, including defence, security, cost, feasibility, environment, conservation, rising sea levels and fighting terrorism, organised crime, piracy and drug trafficking. In contrast, Mauritius does not see any insuperable problems to resettlement, for which it earmarked funding in its budget last year.

The latest argument, though not so far deployed by the UK Government, is the supposed China “threat”.  However, Mauritius is not in any way beholden to China, and is a close ally of India. Furthermore, it has been made abundantly clear that it wants the US base to remain and is happy to negotiate a long-term agreement with the US and UK. It must be in the interests of all four countries to have an agreement which guarantees the future of Diego Garcia and maintains stability in the Indian Ocean. That is also in Australia’s interest as a significant regional player. It is also very much in the US strategic interest to develop a close relationship with Mauritius, almost 2000 kilometres south of Diego Garcia. Mauritius would welcome that.

The Chagos All-Party Parliamentary Group, which has 53 members from the seven political parties in British Parliament, has long argued for resettlement and a negotiated settlement with Mauritius. A compromise solution is a staged transfer of the Outer Islands, more than 160 kilometres from Diego Garcia, to Mauritius leaving Diego Garcia for future discussions. There is precedent for this, the UK having returned three BIOT islands to Seychelles in 1976 at independence. Diego Garcia’s sovereignty status could be reviewed at any time and at latest by 2036, when the 1966 UK/US Agreement (there is no lease or rent) making the territory available for the defence purposes of both nations comes to an end, only 16 years away.

Such a solution would go a long way to addressing the ICJ Advisory Opinion of 25 February 2019 and UNGA resolution 73/295 of 22 May 2019. With the hindsight of 18 years, it is painfully obvious that much distress, huge litigation costs, damage to the UK’s reputation in failing to uphold human rights and international law, and the UK’s isolation in the UNGA could have been avoided.

For as long as the UK clings on to Chagos, it has an international legal responsibility to restore the right of return and abode to the Chagossians. The Outer Islands have never been and will never be required for defence purposes. The US does not in principle object to resettlement. The UK needs to redeem its reputation in the international community for the promotion of human rights and international law. Recently, the official UN world map was revised and shows Chagos as belonging not to the UK but to Mauritius.

The writing is on the wall map.

The tug-of-war between the United Kingdom and Mauritius over Chagos archipelago – and the US military base on Diego Garcia – is hotting up. In 2019, the United Nations General Assembly passed a resolution which endorsed a non binding decision from the International Court of Justice that supported Mauritius’s claim to the Chagos. London has so far stoutly resisted calls to hand over the islands.

Given its regional proximity, what role should India play in resolving the dispute consistent with its own interests?

Both Britain and the United States expect help from India on Chagos. At the UN General Assembly in May 2019, Washington and London had hoped New Delhi would modify and even dilute the provisions of the draft resolution. Instead India voted in favour of Mauritius, with the Indian representation stating unequivocal support for “all peoples striving for decolonisation”. But Indian officials have since refrained from commenting on the issue.

Some British commentators have explained India’s move as an attempt to position itself as a leader among post-colonial states. New Delhi, they contend, remains enamored of South-South cooperation, prioritising partnerships with Southern states over cooperation with Euro-Atlantic partners. They argue that supporting Mauritius was a “symbolic” rather than substantive win, with New Delhi overlooking its long-term interests in countering China’s growing presence in the Indian Ocean. With its own ambitions to develop a base in the Mauritian island of Agalega stalled, New Delhi’s move at the UN backfired.

Indian observers have been more understanding of their country’s imperatives. As they see it, Diego Garcia presents New Delhi with a predicament with no easy answers. On one hand, Indian policymakers must demonstrate solidarity with Mauritius, a close Indian Ocean partner. On the other, they must consider their country’s burgeoning ties with the United States and Britain. If New Delhi now seems reticent on the matter, it is because it finds itself in a debilitating dilemma.

But India’s conundrum may seem more severe than it really is. For all the talk about India not wanting China to fill an Indian Ocean strategic vacuum created by any departure of US forces, supporting Mauritius has always been a fairly straightforward choice for New Delhi. Diego Garcia’s controversial history has meant that room for manoeuvre on the issue has been limited. As much as they value political ties with London and Washington, Indian policymakers cannot be seen to favour a US military presence over indigenous people’s rights.

A second reason that New Delhi has not supported the US over Diego Garcia is the constrained nature of India-US military cooperation in the Western Indian Ocean, a space where Indian and US strategic objectives do not properly align. In particular, New Delhi does not support US naval operations in the Persian Gulf intended at coercing Iran. With growing maritime interests in the Middle East, India is keen to improve naval ties with all regional capitals, including Tehran. New Delhi can’t get itself to deploy naval assets to a US facility used to facilitate anti-Iran naval operations.

Lastly, Indian realists are concerned about strategic reciprocity. If Indian warships and surveillance aircraft publicly use Diego Garcia, Washington would expect access to India’s bases in the Andaman and Nicobar islands. New Delhi has a mutual logistics agreement with the United States but has been slow to operationalise the pact for fear of opening up its island bases to the US navy. While maritime “access” in South and Southeast Asia has never really been an issue for Washington, the regular presence of US warships in the Andaman Sea, Indian analysts reckon, could more credibly threaten China’s use of the regional sea lines of communication, potentially creating discord in the region.

Notwithstanding closing bilateral military relations between India and the US – including a tri-services exercise and joint anti-submarine patrols – a strategic quid pro quo involving Diego Garcia could also force the Indian navy into a framework of closer strategic engagement with the US navy in South Asia. This could impinge on New Delhi’s strategic autonomy, rendering India a de facto alliance partner of the United States – a proposition wholly unacceptable to Indian policymakers.

Further, many in India’s strategic establishment are convinced that Beijing’s expanding maritime footprint in the Indian Ocean isn’t merely the result of greater PLAN deployments. Belt and Road infrastructure projects have played an equally significant part, enmeshing regional states in a Chinese-led initiative. This isn’t the type of presence that India-US joint naval operations seem capable of effectively pushing back.

And yet events are moving fast, and in ways unanticipated by India. Since the beginning of this year, there have been reports of an expansion of the PLA base in Djibouti, greater Chinese naval operations in the Western Indian Ocean, growing Chinese intelligence and survey ships in the Andaman Seas and, perhaps, the beginnings of a Chinese military presence in the Pakistani port of Gwadar. Some say that China’s well-known salami slicing strategy is increasingly at play in South Asia.

India’s Ladakh standoff with China confirms that belief. So far New Delhi has treated its land skirmishes with the PLA as a localised matter. Yet the need for a maritime hedge and greater strategic alignment with the US in the Indian Ocean is clearer than ever.

Indian officials know that brokering a settlement on Diego Garcia could form part of the expected give-and-take. New Delhi could, for example, facilitate an agreement giving Port Louis sovereignty, whilst tempering Mauritian expectations that it could impose restrictions on the positioning of US nuclear assets.

India might realise that a failure to make common cause with Washington in the Western Indian Ocean, including Diego Garcia, might adversely implicate New Delhi’s attempts to dominate littoral-South Asia.
 

This piece is part of a two-year project being undertaken by the National Security College on the Indian Ocean, with the support of the Department of Defence.