20th October 2024
Towards resolving a puzzle about how and when the decision was announced
Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.
The news about the Chagos Islands provided such a puzzle.
Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?
Over at Prospect is an attempt at answering this question. Please click here and read the post.
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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.
And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.
The United Kingdom – if it was able – would have carried on playing for time.
So what happened?
Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.
The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.
What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):
This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.
And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.
Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:
The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.
And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.
Warnings such as this one from Johnson in 2023:
An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):
The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.
And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.
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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.
A little-known 2015 arbitration ruling was devastating in its detail:
(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)
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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.
In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.
But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.
Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.
The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.
And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.
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What I find a bit annoying about the reporting I’ve seen about the deal so far is that little of it seems to mention what the deal means for the Chagos Islanders.
That is not the fault of the commentary. You are annoyed at the messengers, instead the message.
The deal means very little for the displaced islanders, as my Prospect article avers.
Thank you for that information. Too bad, IMO.
Two thoughts come to mind:
1. Those who do not learn from history (UK) are bound to repeat it. The US has a “special relationship” with itself and no one else (apart perhaps from Israel – but let’s not jump into that issue here).;
2. And it follows that the metaphor of “if you sleep with a dog, you might wake up with fleas” is apt and not once but repeatedly. Though it is the UK that is the poodle so maybe the US is an XL American bull terrier.
Apparently it was the short-lived government of Liz Truss who first ventured to ‘do’ the deal, and her then Foreign Secretary, James Cleverly, set in motion a series of meetings between Mauritius, the US, and the UK to get this agreement signed in the autumn of 2022. Amazing that so many former ministers in Sunak’s last government were so vocal in their displeasure of this deal, when they (including Sunak, Cleverly, Andrew Mitchell, and more) set it up in the first place, albeit under the watchful nod of the USA.
If you see my Prospect article, you will see why the previous government(s) had little option but to open negotiations.
Perhaps the reason was to get a deal done before some fool in Parliament raised the notion the Chagossians might like their homeland back.
We moved to a nominally socialist government from which such notions might be expected to arise sometime. But relations between us and the USA might very well require such a notion was squashed very quickly. Our security services would likely encourage such a thought.
If it were done when ’tis done, then ’twere well it were done quickly.
I’d never heard of estoppel before but .. wow .. ooft.
Please can we apply that principle to politicians holding ministerial or shadow ministerial posts?
Solicitors? Senior managers or officials in public bodies .. like Health Boards, Post Offices, Metropolitan Police Forces .. other public bodies are available. Anyone with a duty of candour ..
Blimey, the list goes on.
Ah, now that takes us to the rise and fall of “public law estoppel” and that is quite a tale. Perhaps I should tell it one day.
Thanks DAG – a thoughtful piece.
Highlights just what a state our press is in, their heads so fundament-bound that they cannot even sniff the “Special Relationship” wind they so revere.
As for Johnson, nature abhors a vacuum but empty prose from the profligate one will seemingly do.
So the real underlying question, if not necessarily one for this blog, is what prompted the Americans to change their minds. My understanding is Mauritius has long been willing to accept title over the Chagos Islands subject to the existing lease to the US of Diego Garcia, and that it was the Americans’ rejection of this – hardly consistent with their anti-colonial rhetoric throughout the 20th century if not their actual stance – that also made such a solution unacceptable to the UK. I am glad to see the right thing done at last; the fact that the US was calling the shots trapped the UK in a legally indefensible position whose reputational costs mounted appreciably over time.
I think the combination of the 2015 judgment and 2019 ruling showed the Americans that the legal uncertainty was not going away, and a non-Tory government would not prevent it just because they could. And I also suspect Mauritius, on the eve of a general election, were generous.
Could this be it down as a benefit of Brexit? No support anywhere for the plucky Brits. The famous headline “Fog in the Channel, Continent isolated”, seems relevant.