Abandoning Diego Garcia
As the U.S. gets into the war
The United States just today dived into the Israeli-Iran War. If you want my opinion, which will plus $2.50 get you a large cup of coffee at the corner store near my house, then I think the President made the right call but should not have been allowed to do so without Congressional approval. But I’m old-fashioned. It’s not that I believe American constitutional structures are sacred. It is that I don’t believe that one person alone should be making these decisions.
The bombers launched from Missouri, but most likely will land and rearm at Diego Garcia. I have therefore decided to rush my follow-up post about Britain’s decision to turn sovereignty back over to Mauritius, even though I would much rather be talking with the guys at the liquor store at Knicknerbocker and Decatur.
So please forgive typos and grammatical infelicities!
Diego Garcia and Mauritius
In the last post, I asked whether Britain had a reason to feel guilt over its long occupation of Mauritius, and concluded that the answer is no.
Nonetheless, London decided recently to hand the Chagos Archipelago — formerly known as the British Indian Ocean Territory, or BIOT — over to Mauritius and begin paying rent of £101 million per year for a naval base that the U.K. already uses. In fact, and unsurprisingly, Naval Support Facility Diego Garcia is really used almost exclusively by the United States … which pays rent to neither London nor Port Louis.
So why did London decide to abandon sovereignty? The ostensible reason is that in 2019 the World Court issued an advisory ruling stating that the U.K. was not allowed to detach the Chagos from the rest of Mauritius in 1968. (Both were formally annexed from France in 1814 and administered as one territory thereafter.)
The World Court decision
It is worth reading all 50 pages of the decision. (Amusingly, the “summary” is shortened to thirty pages.) The essential basis is simple: under international law, the U.K. had no right to split the territory of a non-self-governing territory without a referendum. And from whence comes that international law? Paragraphs 5 and 6 of General Assembly Resolution 1514 of 1960, which passed 89-0 (the U.S. and U.K both abstained):
Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
Since the World Court couldn’t find any other cases of an imperial power dismembering a colony before independence — Mayotte’s decision to stick with France after the Comoros declared independence was not considered — it thereby concluded that Britain had no right to split off the Chagos (page 43). There is more, but it all really comes down to that.
It’s a defensible interpretation. But it’s also amusing for two reasons. First, the World Court said this (page 39):
The Court is of the view that, while its determination of the applicable law must focus on the period from 1965 to 1968, this will not prevent it, particularly when customary rules are at issue, from considering the evolution of the law on self-determination since the adoption of the Charter of the United Nations and of resolution 1514 (XV) of 14 December 1960 … Indeed, State practice and opinio juris, i.e. the acceptance of that practice as law (Article 38 of the Statute of the Court), are consolidated and confirmed gradually over time. The Court may also rely on legal instruments which postdate the period in question, when those instruments confirm or interpret preexisting rules or principles.
In other words, it didn’t ask if the transfer was legal under customary international law as it existed in 1968. Rather, it examined if the U.K.’s actions would have been considered kosher today.
Second, they said:
The Court considers that, although resolution 1514 (XV) is formally a recommendation, it has a declaratory character with regard to the right to self-determination as a customary norm, in view of its content and the conditions of its adoption. The resolution was adopted by 89 votes with 9 abstentions. None of the States participating in the vote contested the existence of the right of peoples to self- determination.
So, even though the resolution was not considered to have legal force by the General Assembly when it was passed, the World Court could state that it had obtained the status of a “customary norm” and was therefore enforceable. Enforceable by whom, you ask? Well, the General Assembly, of course (page 48).
What happens if the U.K. ignores the advisory decision?
So that was the decision. What were the practical consequences?
Well, the official U.K. explainer reads like a satire:
At the request of Mauritius and the Maldives, the International Tribunal of Law of the Sea (ITLOS) demarcated the border between the Chagos and the Maldives. The U.K. noted that this case didn’t affect anything but worried that a future binding case might cause Britain problems. How China manages to get away with ignoring ITLOS decisions and whether the U.K. might emulate them was not discussed. Nor was how the U.S. or Turkey manage to not be members.
The Universal Postal Union announced that it would stop recognizing stamps issued by the BIOT. This is so silly that I don’t have much to say about it. Why is this silly? Well, uh, the air bases on Diego Garcia use U.S. stamps. And if the U.S. left, the U.K. could just use U.K. stamps.
If you’re wondering, the address would be something like:
U.S. Navy Support Facility
PSC 466 Box 31
FPO, AP 96595
Somebody told the BBC that the U.N. might ban overflights next, which is kind of strange, considering as the Security Council is the only international body with the power to do that. (The government mentioned that on page 3 of the explanatory memo.) I guess they were afraid that Mauritius might declare the airspace closed and the airlines would respect it because reasons? Or that the U.K. should care even if the airlines did start flying around the islands because … other reasons?
Procedural issues for the UK at the Comprehensive Nuclear-Test-Ban Treaty Organisation. I have been unable to find anything about what this might mean.
Mauritius threatened to throw Britain off the Indian Ocean Tuna Commission. That would do … uh … nothing? Like, the Royal Navy could still challenge foreign boats in BIOT waters. And it’s the Tuna Commission. It sounds like a punch line.
The Starmer government told Bloomberg that it was also worried that the International Telecommunications Union might deny the U.K. the right to use parts of the electromagnetic spectrum. (Also on page 3, the memo mentions “secure communications” under threat.) Uh … how? In 2024 the ITU ruled in favor of Iran, stating that the U.S. had to stop Starlink transmissions in Iranian territory. I need not tell you how that went.
It is remotely possible that the U.N. General Assembly might pass a resolution. But, well, those are recommendations with no legal force. If they were, then the French island of Mayotte would be in trouble. (See Resolution 42/17. Or Resolution 49/18.) Mayotte is in trouble, but mostly because so many Comorians are voting with their feet against their country’s perplexing decision to leave the French Republic in 1975.
You are happy to be in France. If it wasn’t for France, you would be in way deeper shit, ten thousand times more, there is no place in the Indian Ocean where people receive more help.
—President Emmanuel Macron, 20 December 2024, speaking on Mayotte to a crowd angry about the central government’s response to Cyclone Chido
Basically, none of the arguments about legal consequences from ignoring the ruling seem to have any substance. It’s remotely possible that Britain might get thrown of the Tuna Commission, I suppose.
There is one organization that takes international law very seriously and could in theory cause problems for the U.K.: the European Court of Justice. For example, the European Court of Justice (ECJ) recently annuled parts of the 2019 fishing and trade agreements with Morocco because it didn’t recognize Western Sahara as part of the kingdom. Now the European Commission needs to either figure out how to identify products from Western Sahara as different from the rest of Morocco or figure out how to satisfy the ECJ’s requirement that the “people” of Western Sahara — i.e., the original inhabitants before Morocco invaded — will get the lion’s share of the benefits.
But needless to say, this wouldn’t be a problem for the U.K., since the BIOT is host to a military base and exports basically nothing.
Turkey, France, the U.S. of A., Morocco, Israel, all these places are in violation of World Court decisions or General Assembly resolutions. None of it matters. The only international body whose decisions matter is the European Union matters, but that is because the E.U. is a legalistic confederation of states and not just a garden-variety international organization like the U.N. or the Tuna Commission.
Except that because Diego Garcia is just a military base, there is no dispute to take before the European Court.
In conclusion, the U.K. appears to have been under zero zip zilch nada cero actual pressure to comply with the World Court advisory decision.
Consequences of the decision
There is a flip side to the above, however. Other than the £101 million, Mauritius gets nothing. The key part is the clause reading “The Parties shall not undermine, prejudice or otherwise interfere with the long-term, secure and effective operation of the Base and shall cooperate to that end.”
So if Mauritius, say, tried to use its notional control over fishing rights to permit Chinese spy ships to get closer to the base than they can currently get (which is actually pretty damn close) then Washington would nudge our British satrapy colony satellite special friend ally to exercise that clause (or just do it ourselves, come on people, we invaded Panama) and that would be that.
I would say more but the President is speaking, so I will stop.